IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50216
Summary Calendar
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KEN GRIFFITH, doing business as
Mr. Fashion; RENE GRIFFITH, doing
business as Mr. Fashion,
Plaintiffs-Appellants,
versus
LEVI STRAUSS & CO.,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
(EP-92-CV-59)
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January 24, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
The appellants were retail merchants selling goods of Levi
Strauss & Co. ("Levi"). Levi terminated that relationship because
the appellants failed to abide by Levi's "distribution policy" by
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
selling wholesale, instead of selling retail only. The appellants
filed a lawsuit--not on the basis of an unlawful termination--but
instead claiming damages for loss profits because Levi had not told
them--and they had not found out until after the termination of the
relationship--that the distribution policy forbidding wholesale
marketing of Levi's goods by retailers allowed for an exception at
the U.S.-Mexico Border ("Border Exception") where the appellants
were located. In other words, the appellants' claim is that Levi's
failure to apprise them of the Border Exception deprived them of
profits they could have made during their relationship with Levi by
selling wholesale as well as retail. The appellants sued, alleging
misrepresentation under the Texas Deceptive Trade Practices Act and
a breach of duty of good faith in the performance of a contract
under Texas contract law. The district court concluded that "the
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Board Exception" was not part of the alleged contract, and because
the claim for misrepresentation and the breach of duty arose
independent of the contract, dismissed the complaint. Our review
of the briefs and records convince us that the district court got
it right: the fatal flaw in the Griffiths' claim, as alleged in
their pleadings and as argued before us, is that those claims
require that any false representation or any breach of duty occur
within the framework of an agreement between Levi and the
appellants. In this case, there was simply no term of a contract
between the appellants and Levi that was misrepresented, nor was
there any term of the contract with respect to which there was a
breach of any contractual duty on the part of Levi. With respect
to new arguments made on appeal that were not made in the district
court below, each of them is equally meritless: consumers have a
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private cause of action under DTPA only with respect to acts that
are specifically enumerated in section 17.46. As such, the
appellants' catchall deceptive practice claim must fail.
Furthermore, the appellants' claim under DTPA, § 17.46(b)(5)
concerning goods and services fails because this type of claim
protects consumers--that is, it must pertain to goods or services
that Levi has sold to the Griffiths. Finally, the Griffiths' claim
of negligent misrepresentation also fails: Levi's reservation of
right to terminate its accounts for violating their distribution
policy cannot be false because it specifically allows Levi the
option not to terminate such accounts.
In short, the appellants' attempt to use the DTPA and the law
of negligent misrepresentation to obtain the benefit of a bargain
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they never made with Levi must fail. Consequently, the judgment of
the district court dismissing this complaint is
A F F I R M E D.
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