Specifically, to state a claim against a manufacturer under the Texas Act for a misrepresentation, facts must be alleged that the manufacturer (1) made a misrepresentation that (2) was the "producing cause" of a consumer's harm, that is, "reached a consumer and induced him to buy [a] product." Church & Dwight Co. v. Huey, 961 S.W.2d 560, 565-66 (Tex. App. 1997) (finding manufacturer liable where "Church & Dwight's marketing efforts were incorporated into American Grafitti's marketing efforts, and they formed the basis for Huey's decision to use the product."). Defendant argues that Plaintiff has failed to state a claim because Plaintiff's allegations against Defendant are "devoid of any specifics" that show that Defendant was the cause of Plaintiff's harm.
Because the Amstadt defendants were “upstream suppliers” of the parts used in a plumbing system and because their alleged misrepresentations were not communicated to consumers, the court found that the plaintiffs could not satisfy the “in-connection-with” requirement under the TDTPA. Id. at 647, 650–51;see also Church & Dwight Co. v. Huey, 961 S.W.2d 560, 565 (Tex.App.1997) (citing Amstadt and concluding that the “in connection with” requirement was met where the “[the manufacturer's] marketing efforts were incorporated into [the immediate seller's] marketing efforts, and they formed the basis for [the plaintiff's] decision to use the product”).
A misrepresentation made during contract negotiations may form the basis of a DTPA claim if the defendant misrepresents a material fact about the goods or services sold to the plaintiff. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995); Church & Dwight Co. v. Huey, 961 S.W.2d 560, 567 (Tex.App.-San Antonio 1997, pet. denied). However, the mere failure to perform a contractual obligation cannot form the basis of a DTPA claim.
A misrepresentation made during contract negotiations may form the basis of a DTPA claim if the defendant misrepresents a material fact about the goods or services sold to the plaintiff. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); Church Dwight Co. v. Huey, 961 S.W.2d 560, 567 (Tex. App.-San Antonio 1997, pet. denied). However, the mere failure to perform a contractual obligation cannot form the basis of a DTPA claim.
A misrepresentation made during contract negotiations may form the basis of a DTPA claim if the defendant misrepresents a material fact about the goods or services sold to the plaintiff. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); Church Dwight Co. v. Huey, 961 S.W.2d 560, 567 (Tex. App.-San Antonio 1997, no pet.). However, the mere failure to perform a contractual obligation cannot form the basis of a DTPA claim.
Donelson v. Fairmont Foods Co., 252 S.W.2d 796, 799 (Tex.Civ.App.-Waco 1952, writ ref'd n.r.e.). No special terms or form is required to make a warranty. See Church Dwight Co. v. Huey, 961 S.W.2d 560, 568 (Tex.App.-San Antonio 1997, pet. denied) (advertising brochure sufficient to constitute a warranty); McCrea v. Cubilla Condominium Corp. N.V., 685 S.W.2d 755, 757 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.) (subsequent letter stating a warranty sufficient to negate contract's express waiver of all warranties). We conclude the April 1, 1997 letter is an express warranty covering the materials and labor incorporated into the buildings.
Klein erroneously contends that the dispositive issue is "whether the defective custom windows in this case were, or were not, a component part." The case upon which Klein relies heavily, Church & Dwight Co. v. Huey, 961 S.W.2d 560 (Tex. App. 1997), makes clear: "Amstadt's reasoning is not limited to cases where the manufacturer has produced a component part of a completed product, but . . . stands for the broader principle that the manufacturer in any case must be connected to the consumer transaction in order to be held liable for deceptive trade practices." Id. at 565.
“The elements of a DTPA misrepresentation claim are: (1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3) the acts were a producing cause of the plaintiff's injuries.” Church & Dwight Co., Inc. v. Huey, 961 S.W.2d 560, 567 (Tex. App.-San Antonio 1997, pet. denied).
Most of the cases address the liability of manufacturers of a product. Hamm v. Mercedes-Benz USA, LLC, 2019 WL 4751911 (N.D. Cal. Sept. 30, 2019) ; Loughridge v. Goodyear Tire and Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002) ; Church & Dwight Co., Inc. v. Huey, 961 S.W.2d 560 (Tex. App.—San Antonio 1997). The rest are inapposite for other reasons.
63 ("DTPA"). Church & Dwight Co. v. Huey, 961 S.W.2d 560, 564-66 (Tex. Ct. App. 1997). According to Plaintiffs, the same is true for Ernestburg, Kinch and Kmet.