United States District Court, S.D. Texas, Victoria Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
APA-THE ENGINEERED WOOD ASSOCIATION'S MOTION TO
W. HEAD, JR. SENIOR UNITED STATES DISTRICT JUDGE
Order addresses the Rule 12(b)(6) motion of Defendant APA-The
Engineered Wood Association ("APA") to dismiss the
claims that Plaintiff Gaetan Pelletier has made against it.
Previously the Court has granted Rule 12(b)(1) motions to
dismiss filed by all other Defendants in this suit and by all
other Defendants in a suit of similar substance. See
Cause No. 6:17-cv-6. APA did not file a Rule 12(b)(1) motion
in this suit.
Engineered Wood Association (formerly the American Plywood
Association) is a trade association. According to Plaintiff,
Weyerhaeuser is a member of APA and promoted
Weyerhaeuser's flooring at issue in this case.
Plaintiff admits that APA did not sell the allegedly faulty
flooring, Plaintiff brings claims for breach of express and
implied warranty as well as claims for violation of the
Magnusson-Moss Act. Warranty claims in Texas can only be
brought against sellers. Sanchez v. Liggett Myers,
Inc., 187 F.3d 486, 491 (5th Cir. 1999); Allgoodv.
R.J. Reynolds Tobacco Co., 80 F.3d 168, 170-71 (5th Cir.
1996); see also Tex. Bus. & Com. Code Ann.
§§ 2.313(a); 2.314(a). The Magnusson-Moss Act does
not create warranties, but limits a seller's ability to
restrict warranties. Because no state warranty exists, the
Act does not apply. For the foregoing reasons, the Court
finds that Plaintiff fails to state a claim upon which relief
may be granted for breach of warranty.
alleged that APA breached the duty of good faith and fair
dealing. But "Texas law does not impose a generalized
contractual duty of good faith and fair dealing...."
Hux v. Southern Methodist Univ., 819 F.3d 776, 781
(5th Cir. 2016). Plaintiff admits that he had no contractual
relationship with APA. The Court finds that Plaintiff fails
to state a claim for breach of the duty of good faith and
brings multiple tort claims. Those claims are governed by a
two year statute of limitations. Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a). Pelletier's Amended Complaint
reveals he advised Defendant Hickman that the flooring had
water damage before July 10, 2014. Plaintiffs Original
Complaint was filed on May 4, 2017, more than two years after
the flooring was damaged. All of Plaintiff s negligence
claims are barred by limitations unless the discovery rule
alleged by Plaintiff applies. The discovery rule applies only
when a defendant fraudulently conceals the plaintiffs injury,
the nature of the injury is inherently undiscoverable, and
may be objectively verified. Plaintiff had possession of the
flooring and noted water damage in 2014. The facts pleaded in
this case do not support an extension of limitations. For the
foregoing reasons, the Court finds that Plaintiffs tort
claims are barred by limitations.
claims for intentional misrepresentation, fraud, and fraud by
nondisclosure are not barred by limitations. However, all of
these claims are based upon alleged representations made on
APA's website. Plaintiff alleges no interaction with APA
or its representatives, other than the website,
before he purchased the flooring. Plaintiff attached
portions of documents that he viewed that were linked to
APA's website. Those documents were prepared by
Weyerhaeuser, not APA. (D.E. 49-6, 49-7). Plaintiff further
alleges that the misrepresentations were designed to
"mislead the customer and entice sales for the
company's greater profits . . . ." This allegation
fails to state a fraud or misrepresentation claim against APA
which did not prepare the documents or sell the flooring.
alleges fraud by nondisclosure based upon APA's alleged
fiduciary duty to make "very clear the water resistance
ability of their product in the warranty . . . ." (D.E.
49-1, ¶ 137). The affirmative duty to speak in Texas
arises only in a confidential or fiduciary relationship.
Confidential or fiduciary relationships are based upon
relationships such as those between an attorney and client or
where one person trusts in and relies on another as a result
of a moral, social, domestic, or personal relationship.
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d
193, 199 (Tex. 2002); Crim Truck & Tractor Co. v.
Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594
(Tex. 1992). When a business transaction is involved, the
confidential relationship must predate and be separate and
apart from the agreement made the basis of the suit.
Associated Indent. Corp. v. CAT Contracting, Inc.,
964 S.W.2d 276, 288 (Tex. 1998). Plaintiffs viewing of
APA's website does not create a fiduciary or confidential
relationship under Texas standards. For the foregoing
reasons, the Court finds that Plaintiff failed to state a
claim for intentional misrepresentation, fraud, or fraud by
Plaintiff brought a claim for civil conspiracy. Civil
conspiracy requires a combination of persons who agree to
pursue an objective and to further that objective one or more
of them commit an overt, unlawful act that results in damage
to the plaintiff. Homoki v. Conversion Servs., Inc.,
717 F.3d 388, 404-05 (5th Cir. 2013) (citing Juhl v.
Airington, 936 S.W.2d 640, 644 (Tex. 1996)). Plaintiff
does not allege any facts to support a meeting of the minds
or an agreement between and among APA and the other
Defendants. Plaintiffs assertion that executives at
Weyerhaeuser were on APA's board or committees is
insufficient. Moreover, Plaintiffs complaint does not allege
any facts to support an unlawful act by any of the defendants
or an unlawful purpose. For these reasons, the Court finds
that Plaintiff has failed to state a claim upon which relief
can be granted for civil conspiracy.
not raised by Defendant APA, the Court finds Plaintiff has no
standing to bring claims against APA for the same reasons
stated in its order granting Defendants' Rule 12(b)(1)
motions in Cause No. 6:17-cv-6 and its order granting the
other Defendants' Rule 12(b)(1) motions in this case.
See Ford v. NYLCare Health Plans of Gulf Coast,
Inc., 301 F.3d 329, 332 (5th Cir. 2002) ("[Courts]
must-where necessary-raise [the issue of standing] sua
sponte."); Save the Bay, Inc. v. U.S. Army, 639
F.2d 1100, 1102 (5th Cir. 1981) ("[I]t is incumbent upon
federal courts...to constantly examine the basis of
jurisdiction, doing so on our own motion if
Court GRANTS Defendant APA's motion to
dismiss Plaintiffs claims (D.E. 54).