UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 96-50426 _________________

SHERMAN ELECTRONICS SUPPLY INC,

Plaintiff - Appellant,

versus

ZENITH ELECTRONICS, Defendant - Appellee.

Appeal from the United States District Court For the Western District of Texas (SA-94-CV-557)

January 14, 1997 Before HIGGINBOTHAM, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Sherman appeals the district court’s grant of summary judgment

dismissing its claim under the Texas Deceptive Trade Practices Act,

Tex. Bus. & Comm. Code § 17.46 (“DTPA”). We review a district

court’s grant of summary judgment de novo. Doddy v. Oxy USA, Inc.,

(5th Cir. 1996); Fed. R. Civ. P. 56(c). We agree

with the district court that Sherman did not have consumer standing

under the DTPA. To qualify as a “consumer,” the claimant must (1)

have sought or acquired goods or services by purchase or lease, and

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. (2) show that these same goods or services form the basis of the

DTPA complaint. Meineke Discount Muffler v. Jaynes,

(5th Cir. 1993); Tex. Bus. & Comm. Code §§ 17.45(4) & (10). We

find that Zenith’s alleged promise to prevent “bootlegging” of

parts into Sherman’s service area was neither a good nor a service

under the statute.

Neither party suggests that Zenith’s alleged obligation to

stop bootlegging was a “good” under the DTPA. The question in this

appeal is whether the obligation, if it exists, counts as a

service. The DTPA defines “services” as “work, labor, or service

purchased or leased for use, including services furnished in

connection with the sale or repair of goods.” Tex. Bus. & Comm.

Code § 17.45(2). Sherman’s annual contracts with Zenith, which

included an incorporation clause and a written modification

provision, never mentioned the alleged duty to police bootlegging.

Accordingly, we find that the purchase price for the television

parts did not include a purchase of the alleged obligation.

Although Sherman purchased parts from Zenith, these goods did not

furnish the basis of its DTPA claim. Therefore Sherman does not

meet the consumer standing requirements of the DTPA. See Americom

Distrib. Corp. v. ACS Communications, Inc.,

(5th

Cir.) (DTPA complaint dismissed where plaintiff purchased goods,

but plaintiff’s complaint was based on suspension of

distributorship, not fault in goods), cert. denied,

,

-2-

,

(1993).

In this case, the picture is clear: the alleged policing

obligation was neither a good nor a service under the DTPA, which

precludes Sherman’s consumer standing under the statute. Therefore

we AFFIRM.

-3-