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Click here for the full text of this decision FACTS:Pete and Marcella Everett filed suit against several automobile and seat belt manufacturers, appellees, based on the production and sale of defective TK-52 buckles. The Everetts’ suit alleged several causes of action, including breach of warranty, violations of the Texas Deceptive Trade Practices Act, and money had and received. The Everetts pleaded that their vehicles, a 1994 Nissan pickup owned by Pete and a 1991 Isuzu Rodeo owned by Marcella, came factory-equipped with TK-52 buckles. The trial court granted appellees’ motions to dismiss the statewide class-action suit after determining that the Everetts lacked standing because they had not alleged an injury in fact. Specifically, the court found that there were no allegations that the TK-52 seat-belt buckles in Marcella’s 1991 Isuzu Rodeo or in Pete’s 1994 Nissan pickup had malfunctioned, that Pete did not seek to recover personal injury damages that he allegedly suffered from a TK-52 seat belt, and that neither Marcella nor Pete had alleged an economic injury that was redressable through their pleaded claims. The Everetts appealed. HOLDING:Affirmed. The court states that the sole issue on appeal is whether the Everetts alleged an injury sufficient to establish their standing to assert certain causes of action on their own behalf and on behalf of “[a]ll persons who own a vehicle equipped with TK-52 Buckles . . . that is registered in Texas, except those persons who have made claims against any defendant for personal injury damages allegedly arising out of seatbelt malfunction” or whether, as asserted by appellees, the Everetts lack standing individually and as class representatives because they have suffered no injury that is redressable through their pleaded claims. The Everetts argue that they alleged an injury in fact an economic injury by pleading that their TK-52 buckles are defective, are not effective restraints, pose serious safety risks and have caused them concrete economic damages in the form of loss of the benefit of their bargain in purchasing their vehicles and the prospective cost of replacing the defective buckles. The court notes that the Everetts do not plead that the TK-52 buckles in their vehicles have ever partially engaged when they attempted to latch them, nor do they plead that the buckles have provided them with insufficient restraint or have come unlatched while they were driving. They likewise do not plead that in an accident or under stress the buckles will inevitably fail. Thus, the court finds that they have pleaded that an unmanifested defect a propensity to partially latch and to thereby provide insufficient restraint exists within the TK-52 buckles in their vehicles. The court points out that the Texas Supreme Court has not yet addressed which claims, if any, a plaintiff possesses standing to assert based on an unmanifested product defect that causes only economic damages. The court began its analysis with the Everetts’ warranty claim and held that, to establish statutory standing to assert a breach of the implied warranty of merchantability claim, the Everetts were required to plead that the alleged defect in the TK-52 buckles proximately caused each of them injury. The court states that to cause redressable injuries in the breach of the implied warranty of merchantability context, a defect must either have manifested during the product’s normal use or such manifestation must be inevitable when the defective feature of the product is used. The court notes that although the Everetts’ vehicles are more than a decade old, the defect that they allege has caused them economic injuries has not manifested itself, nor do the Everetts claim that it will inevitably manifest itself. Instead, the court finds, the Everetts have pleaded for contract-based damages from the alleged breach of the implied warranty of merchantability while alleging a tort-based products liability defect. The court holds that such a mixing of liability and damage theories does not establish an injury. The court then applies the statutory standing analysis to determine whether the Everetts have pleaded facts establishing their standing to assert a DTPA claim. The court notes that the DTPA allows a plaintiff to recover for misrepresentation under the higher of the two common law measures of economic damages: either the “out-of-pocket” measure or the “benefit-of-the-bargain” measure. But the court holds that the Everetts’ pleading does not allege facts demonstrating the type of injury that is compensable under the DTPA. The court finds that, so far, according to the Everetts’ pleadings, they have received the benefit of their bargain; they were promised and they received seat-belt buckles that latched and provided sufficient restraint. In other words, although allegedly defective, the TK-52 buckles in the Everetts’ vehicles have apparently functioned as represented for the past decade. Thus, because the Everetts have not pleaded facts that would satisfy the language of the statute requiring an allegation of an economic injury, the court concludes that the Everetts do not have statutory standing to assert a DTPA claim. As to the Everetts’ money had and received claim, the court points out that the Everetts’ pleading offers no explanation of how appellees purportedly possess money that belongs to the Everetts; they do not plead that they purchased their vehicles from any of the appellees and they do not allege that appellees overcharged them for their vehicles. The Everetts plead only that their vehicles are worth less because they are fitted with TK-52 buckles and that, if they have the buckles replaced, they will incur out-of-pocket expenses. Consequently, the court holds that the Everetts have not pleaded an injury demonstrating their standing to assert this equitable claim. OPINION:Sue Walker, J.; Cayce, C.J.; Holman and Walker, JJ.

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