In response, Centennial asserts that the Eckman group should be required to show that they did not have assets of $25,000,000 or more as part of the proof required to establish consumer status. In support of the proposition that the defendant should bear the burden to plead and prove the applicability of the $25,000,000 exception of section 17.45(4), the Eckman group relies upon Challenge Transportation v. J-Gem Transportation, Inc., 717 S.W.2d 115 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.). In that case, the court of appeals held that the defendant had the burden to plead and prove that the plaintiff fell within the category of excepted businesses.
Miller cites no legal authority. Miller had the burden to disprove that HSA was a consumer under the DTPA. Challenge Transportation, Inc. v. J. Gem Transportation, Inc., 717 S.W.2d 115 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.). See also Eckman v. Centennial Savings, 784 S.W.2d 672, 674-75 (1990).
Therefore, there is no evidence to review which would allow appellants to qualify as a business consumer under the $25 million limitation. Appellants insist that Centennial had the burden to plead and prove as an affirmative defense the $25 million exception, citing as authority the recent decision, Challenge Transportation, Inc. v. J-Gem Transportation, Inc., 717 S.W.2d 115 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.). However, Challenge deals only with "consumers" as per section 17.45, subparagraph (4) not "business consumers within the meaning of Section 17.45(4)(10)" as pleaded by appellants. Within the statutory scheme, the term "business consumer" incorporates the term "consumer."