Howard v. Lowe's Home Ctrs., LLC
Howard v. Lowe's Home Ctrs., LLC
Opinion of the Court
*954Before the Court is Defendant Lowe's Home Centers, LLC's ("Lowe's") Motion for Summary Judgment, (Dkt. 48), and Plaintiff Shari Howard's ("Howard") response, (Dkt. 58). Having considered the parties' arguments, the factual record, and the relevant law, the Court finds that Lowe's motion should be granted.
I. BACKGROUND
Howard, representing herself,
Out of the broken fridge arise a number of causes of action. Howard asserts claims for: (1) statutory and common-law products liability, (id. at 5-6, 8); (2) violations of seller's warranties contained in the Texas Business and Commerce Code and the common law, such as the implied warranty of merchantability, (id. at 6-7, 9); (3) common-law fraudulent misrepresentation, (id. at 7-8); common-law fraud, (id. at 11); (4) breach of contract, (id. at 12); (5) negligent inspection, advertising, and repair, (id. at 12-13); (6) false advertising violations of the Lanham Act,
The second dispute concerns Lowe's alleged failure to give Howard a five percent discount on a number of purchases made from a prepaid account. (Id. at 15-17). Howard says that she entered into a prepayment program in which she would deposit money into a Lowe's account and then receive a five percent discount on purchases made with account funds. (Id. at 15). According to Howard, Lowe's applied the discount to several purchases but not to a number of others. (Id. at 16). She *955alleges damages stemming not only from being overcharged but also from costs associated with the time that she had to spend arguing with Lowe's employees about the discount. (Id. at 16-17).
From these facts, Howard asserts claims for (1) common-law conversion, (id. at 17-18); (2) "illegal banking," (id. at 17-18); and (3) violations of the Sherman Act,
Lowe's filed a motion for summary judgment seeking judgment on all of Howard's claims, (Mot. Summ. J., Dkt. 48), and Howard filed a response. (Resp. Mot. Summ. J., Dkt. 58).
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. ,
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett ,
III. DISCUSSION
A. Refrigerator Claims
1. State-law claims
For all of Howard's state-law claims related to the defective refrigerator, Lowe's asserts that it is entitled to summary judgment under Section 82.003 of the Texas Civil Practice and Remedies Code (" Section 82.003"). (Mot. Summ. J., Dkt. 48, at 4-6). Section 82.003 provides that for products-liability claims, "[a] seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves" one of seven exceptions. Tex. Civ. Prac. & Rem. Code § 82.003(a). The statute defines *956products liability claims according to the substance of the claim, not the form:
"Products liability action" means any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.
Tex. Civ. Prac. & Rem. Code § 82.001(2). In other words, whether Section 82.003 applies to a particular claim depends not on whether the plaintiff labeled it as a products-liability claim, but rather on whether liability arises out of personal injuries or property damage caused by a defective product. See Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez ,
One tool Texas appellate courts use to determine whether Section 82.003 applies to a particular cause of action is the economic loss rule. Lopez v. Huron ,
Here, the Court finds that Section 82.003 applies to Howard's refrigerator-related state-law claims against Lowe's. Howard's damages arise either out of personal injuries or property damage. Howard alleges that the defective unit cost her thousands of dollars in lost food. (Am. Compl., Dkt. 25, at 4). Howard alleges that she was forced to buy a leaky replacement cooler, which damaged her home and furniture. (Id. ). She alleges that the refrigerator dislocated her shoulder three times, (id. at 5; Howard Dep., Dkt 59, at 91:25-92:4), *957and that the unit caused "permanent disability to [her] elderly parent" by causing her mother to fall and injure herself. (Am. Compl., Dkt. 25, at 5). The lost food and the dislocated shoulder have allegedly cost Howard "lost profits in [her] construction project and writing projects ... physical injury and permanent disability to [herself] ... physical pain and suffering, mental anguish, and emotional distress." (Id. at 5). Even the injuries resulting from Lowe's alleged breach of contract are described in terms of personal injury: Howard says Lowe's breach "caus[ed] all of [her] and her mother[']s resultant physical injuries, their permanent disabilities, and their pain and suffering." (Id. at 12). Although Howard makes some reference to economic damages, she is far from alleging "purely economic" damages. Lopez ,
(a) Statutory Exceptions to Section 82.003
Section 82.003 contains seven exceptions that subject a nonmanufacturing seller to liability when the seller's conduct caused the plaintiff's harm. Tex. Civ. Prac. & Rem. Code § 82.003(a)(1)-(7). Lowe's asserts that none of the exceptions apply. (Mot. Summ. J., Dkt. 48, at 6-9). Howard responds that Sections 82.003(a)(2), (3), (5), and (6) apply. (Resp. Mot. Summ. J., Dkt. 58, at 7-9). For the reasons discussed below, the Court finds that none of the exceptions apply in this case.
Section 82.003(a)(2) applies when "the seller altered or modified the product and the claimant's harm resulted from that alteration or modification." Tex. Civ. Prac. & Rem. Code § 82.003(a)(2). Howard states that "any of Lowe's handling [of the product] could have made the malfunctions exist." (Resp. Mot. Summ. J., Dkt. 58, at 8) (emphasis added). Howard's conjectural phrasing underscores the fact that she cannot trace the refrigerator's defects to any alteration or modification made by Lowe's.
Section 82.003(a)(3) applies when "the seller installed the product, or had the product installed, on another product and the claimant's harm resulted from the product's installation onto the assembled product." Tex. Civ. Prac. & Rem. Code § 82.003(a)(3). Howard states only that Lowe's installed the refrigerator, (Resp. Mot. Summ. J., Dkt. 58, at 8), but she does not allege-much less offer evidence-that Lowe's installed the refrigerator onto another product. Howard has therefore failed to create a material factual dispute about whether Section 82.003(a)(3) applies.
Section 82.003(a)(5) applies when "(A) the seller made an express factual representation about an aspect of the product; (B) the representation was incorrect; (C) the claimant relied on the representation in obtaining or using the product; and (D) if the aspect of the product had been as represented, the claimant would not have been harmed by the product or would not have suffered the same degree of harm." Tex. Civ. Prac. & Rem. Code § 82.003(a)(5). Howard alleges that Lowe's made "express, specific" representations that "(1) [the fridge] was new, (b) [its] refrigerator and freezer sections both worked normally for normal performance, (c) that they worked as new, [and] (d) that they had product design and performance capability such as to make it a reasonable choice for Plaintiff's household use." (Am. Compl., Dkt. 25, at 7).
Courts interpreting Section 82.003(a)(5) have declined to apply that exception when the seller's representation was simply a general positive statement about the product. See, e.g. , Gill v. Michelin N. Am., Inc. ,
This Court therefore interprets Section 82.003(a)(5) to exclude generic positive statements about a product, such as statements that the product is "good" or "safe." First, the statute's text limits its application to representations about "an aspect of the product" rather than to statements about the product in general. Tex. Civ. Prac. & Rem. Code § 82.003(a)(5) (emphasis added). Second, applying the exception to generic statements would significantly undermine the statute's purpose of insulating nonmanufacturing sellers from liability. If a seller were to become liable simply for *959telling a customer that a refrigerator is a new unit that works normally, Section 82.003 could be sidestepped on the basis of even the most routine customer service conversations. Here, Howard alleges that a Lowe's employee told her the fridge "was new," that it "worked normally for normal performance," that it "worked as new," and that it would "make it a reasonable choice" for household use. (Am. Compl., Dkt. 25, at 7). These are the same sorts of "general representations" that another court in this district has rejected. Gill ,
Finally, Section 82.003(a)(6) applies when the seller "actually knew of a defect to the product at the time the seller supplied the product[,] and ... the claimant's harm resulted from the defect." Tex. Civ. Prac. & Rem. Code § 82.003(a)(6). Howard's argument is that Lowe's had to know this specific unit was defective because Whirlpool had previously been sued regarding other unspecified defects of different units of the same model, and that Lowe's and Whirlpool are so intertwined that Lowe's must have known about the other defective units. (Resp. Mot. Summ. J., Dkt. 58, at 9-10). Even if Howard had submitted evidence to substantiate this claim, it would be insufficient to establish actual knowledge under Section 82.003(a)(6). If supported, Howard's argument would establish, at most, that Lowe's was aware of a risk that the particular unit sold to Howard might be defective. Federal courts in this circuit routinely hold that should-have-known allegations fall short of Section 82.003(a)(6)'s actual-knowledge requirement. See Evans v. Kawaski Motors Corp., USA , No. CIV.A. H-15-659,
The Court finds that Lowe's is a nonmanufacturing seller for the purposes of Section 82.003 and that all of Howard's state-law claims are products-liability actions under the statute. The Court further finds that there is no material factual dispute about whether any Section 82.003(a) exception applies to Howard's state-law claims. These findings entitle Lowe's to judgment as a matter of law on Howard's state-law claims relating to her defective refrigerator. The Court therefore holds that Lowe's is entitled to summary judgment on all such state-law claims.
2. Federal law claims
In addition to bringing state-law claims for her refrigerator-related injuries, *960Howard also claims that Lowe's violated the Lanham Act,
Howard's Sherman Act claim is similarly meritless. (Am. Compl., Dkt. 25, at 13, 19 (citing
B. Discount Claims
Howard claims that Lowe's failure to give her a five percent discount on a *961number of purchases constitutes conversion. (Am. Compl., Dkt. 25, at 16 ("[O]n [78] occasions ... Lowe's refused to apply [my] cash for the contracted-for 5 [percent] discount.") ). Howard also claims that Lowe's is liable for conversion because Lowe's "stole ... all/part of each deposit" made into her prepaid account. (Id. ). To prove a conversion claim under Texas law, a plaintiff must prove that: "(1) [s]he legally possessed the property or was entitled to it; (2) the defendant wrongfully exercised dominion and control over the property, excluding the plaintiff; (3) the plaintiff demanded the property's return; and (4) the defendant refused." Arthur W. Tifford, PA v. Tandem Energy Corp. ,
With respect to the discount allegations, Howard does not state a claim for conversion. She identifies no property that she possessed or to which she was legally entitled. Instead, she simply alleges that she paid more for Lowe's products than she should have. Because Howard does not-and cannot-identify property to which she was entitled, she fails to state a claim for conversion regarding the denied discount, and Lowe's is entitled to summary judgment on that claim.
With respect to Howard's claims of theft, there is no evidence beyond her bare allegations that Lowe's has stolen her money. For example, Howard states that Lowe's "stole [her] cash from her $5,000 account with them." (Resp. Mot. Summ. J., Dkt. 58, at 14). In her deposition, Howard refers vaguely to "Lowe's stealing cash from my prepaid cash account," (Howard dep., Dkt. 59, at 62:8-9), and to "the other moneys [Lowe's] stole from me," (id. at 125:1), but does not identify the date that a theft took place or the amount stolen. Howard offers no evidence to support her unspecified allegations. She cannot rest her conversion claim "upon mere allegations ... but must set forth specific facts showing the existence of a genuine issue for trial." Rosado v. Deters ,
Finally, Howard claims that Lowe's prepaid account constitutes "illegal banking", (id. at 17-18), but cites no law that provides her with a cause of action, and the Court can find none. Lowe's is therefore entitled to summary judgment on that claim, as well.
IV. CONCLUSION
For these reasons, Lowe's Motion for Summary Judgment, (Dkt. 48), is GRANTED . The trial set for February 5, 2018, is VACATED . Lowe's Motions in Limine, (Dkt. 53), are DENIED AS MOOT .
Howard was a practicing attorney licensed in Arizona from the early 1980s until 1995. (Howard Dep., Dkt. 59, at 19:15-29:14).
Chapter 82 of the Texas Civil Practice and Remedies Code, titled "Products Liability," was enacted to address "disparate products liability issues" by statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc. ,
In fact, Howard admits that she does not have any evidence that Lowe's altered or modified the refrigerator. (Howard Dep., Dkt. 59, at 131:7-18).
Howard also says that she "relied on Lowe's large national position and its claims that it was a legitimate, law-abiding seller of quality household appliances and extra protection plans guaranteeing extended warranty of repair or replace." (Resp. Mot. Summ. J., Dkt. 58, at 8). Lowe's reputation and its general claims about its business practices are not representations about a specific product and thus do not trigger the application of Section 82.003(a)(5).
In her deposition, Howard was unable to identify a specific advertisement that made a false or misleading statement about a particular product. (Howard Dep., Dkt. 59, at 66:21-70:2).
Howard presumably means to refer only to
Reference
- Full Case Name
- Shari I. HOWARD v. LOWE'S HOME CENTERS, LLC
- Cited By
- 3 cases
- Status
- Published