Court of Appeals of Texas, Fifth District, Dallas
TAC MED HOLDINGS, INC. AND LORETTA YOUNG, Appellants
REV RECREATION GROUP, INC. F/K/A ALLIED RECREATION GROUP, INC., Appellee
Appeal from the 296th Judicial District Court Collin County,
Texas Trial Court Cause No. 296-02909-2017
Justices Schenck, Osborne, and Reichek
L. REICHEK, JUSTICE
Tac Med Holdings, Inc. and Loretta Young purchased a motor
home from a dealer in Arizona and picked it up from the
manufacturer, REV Recreation Group, Inc. f/k/a Allied
Recreation Group, Inc., in Indiana. When problems arose with
the motor home, appellants sued in Collin County, Texas. REV
moved to dismiss based on a forum selection clause contained
in appellants' sales contract with the dealer. The trial
court granted the motion and dismissed the lawsuit.
Appellants challenge that ruling on appeal. For reasons set
out below, we reverse the order dismissing appellants'
claims against REV and remand the cause to the trial court
with instructions to reinstate the case.
is a resident of Hidalgo County, Texas, and owns Tac Med, a
Texas corporation. REV is a motor home manufacturer located
in Indiana. In May 2015, appellants purchased a 2015 Holiday
Rambler from the Lazydays RV dealership in Tucson, Arizona.
According to the petition, appellants had problems with the
motor home almost immediately. Young notified REV, who
instructed her to take it to the factory in Oregon for
repairs. When Young reached Oregon, the motor home caught
fire. Young notified Lazydays and REV that she was afraid to
drive the Rambler after the fire incident.
to the petition, Lazydays and REV advised appellants that
their "only remedy" was to purchase a more
expensive diesel motor coach, which they did. Appellants paid
$309, 000 for the 2016 Monaco Diplomat and went to REV's
manufacturing facility in Indiana to pick it up. Once there,
appellants allege, REV and/or Lazy Days
"admonished" her that the "only way" she
could take delivery would be to sign the sales contract. The
contract identified Tac Med as buyer and Lazydays as seller
and contained the forum selection clause at issue here. The
clause, in all caps, provided as follows:
15. APPLICABLE LAW, MANDATORY MEDIATION, VENUE AND FEES: THIS
CONTRACT AND DISPUTE BETWEEN SELLER AND PURCHASER ARE
GOVERNED BY ARIZONA LAW WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS. PURCHASER WILL PARTICIPATE IN PRE-SUIT
MEDIATION BEFORE FILING ANY LEGAL ACTION AGAINST SELLER.
ALL LEGAL ACTIONS BROUGHT BY PURCHASER OR SELLER RELATING
TO THE VEHICLE PURCHASED OR ITS SALE, SERVICE OR USE MUST BE
FILED EXCLUSIVELY IN PIMA COUNTY, ARIZONA. PURCHASER
UNCONDITIONALLY WAIVES ANY RIGHT TO INITIATE OR PARTICIPATE
IN ANY CLASS ACTION OR CLASS ARBITRATION.
contract, the seller disavowed any implied warranty of
merchantability or of fitness for a particular purpose on new
vehicles unless the seller gave the purchaser a written
warranty, "on Seller's behalf," or, at the time
of sale or within ninety days, the seller entered into a
service contract with the buyer. The seller provided a
limited implied warranty of merchantability for used cars.
Finally, the seller included the following provision in
13. FURTHER EXCLUSION OF WARRANTIES: ALL WARRANTIES
OR SERVICE CONTRACTS, IF ANY, BY A MANUFACTURER, SUPPLIER OR
SERVICE CONTRACT PROVIDER, OTHER THAN SELLER, ARE THEIRS, NOT
SELLER'S, AND ONLY SUCH MANUFACTURER, SUPPLIER OR
PROVIDER SHALL BE LIABLE FOR PERFORMANCE UNDER SUCH
WARRANTIES. PURCHASER UNDERSTANDS THAT SELLER IS NOT AN AGENT
OF ANY MANUFACTURER, WARRANTOR OR SERVICE CONTRACT PROVIDER.
. . .
signed the contract and left. As with the Holiday Rambler,
appellants had problems with the new motor home almost
immediately. Those problems continued over the next year. In
June 2017, appellants filed this lawsuit against Lazy Days
their lawsuit, appellants alleged "never-ending"
problems with the motor home that substantially impair its
use, safety, and value, appellants' attempts to have the
motor home repaired, and misrepresentations made by both REV
and Lazydays. They sued both defendants for DTPA violations,
unconscionable acts, breach of warranty, fraud, and breach of
response to the lawsuit, the defendants filed a joint motion
to dismiss based on the forum selection clause in the sales
contract. In their response, appellants noted that REV was
not a signatory to the sales contract and raised
unconscionability and absence of contractual privity. REV
then filed a brief arguing it was entitled to enforce the
clause in the retail sales contract because (1) under the
express language of the provision, all parties intended
"all legal actions" related to the Monaco to be
brought in Arizona, including appellants' claims against
REV, and (2) as a nonsignatory, REV could enforce the
provision under a theory of direct benefits estoppel because
appellants seek to enforce direct benefits ...