dissenting.
I respectfully dissent.
Failure to Perform as Represented on Warranty or Label
The majority holds the Wilkins’ claims are not barred because they “submitted their claim to arbitration,” and “[t]he trial court was empowered to take such delay into account under Section 64.004 of the Agriculture Code.” Helena Chem. Co. v. Wilkins, 18 S.W.3d 744, 751-52 (Tex.App.—San Antonio 2000, no pet. h.). However, it is undisputed the Wilkins did not request arbitration until approximately sixteen months after the suit was abated for that purpose and, as a result, their claims that they were “damaged by the failure of the seed to produce or perform as represented by warranty or by the label required to be attached to the seed”1 were not arbitrated; rather, the, arbitration board determined the Wilkins’ “request did not qualify for arbitration.” Accordingly, section 64.004 does not apply. See Tex. Agrig. Code Ann. § 64.004 (Vernon 1995) (“In any litigation involving a complaint that has been the subject of arbitration under this chapter, ... [t]he court may also take into account ... any finding as to the effect of delay in filing the arbitration claim ....”) (emphasis added). Therefore, even if we view “must” in section 64.002 of the Texas Agriculture Code as directory rather than mandatory, and even if the Wilkins’ failure to timely institute arbitration was not jurisdictional, their failure to timely submit their claim to arbitration during the abatement ordered for that purpose should have resulted in the dismissal of their claims arising out of the label on the seed package. Cf. Hines v. Hash, 843 S.W.2d 464, 469 (Tex.1992) (A trial court should dismiss a plaintiffs DTPA suit if it fails to give the notice required by the DTPA “while the action is abated for that purpose.... See Miller v. Kossey, 802 S.W.2d 873, 876-77 (Tex. App. — Amarillo 1991, writ denied) (no notice for more than six months after abatement granted until date set for trial).”).
DTPA — Misrepresentation Apart From Label or Warranty
Apart from the information printed on the labels on the seed packages, the Wilkins allege only one misrepresentation. According to the Wilkins, Helena representative Elmore told them that Cherokee was a “good” seed. However, this alleged misrepresentation amounts to no more than non-actionable puffing. Prudential Ins. Co. of America v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 163 (Tex.1995) (holding statements that a “building was ‘superb’, ‘super fine’, and ‘one of the finest little properties in the City of Austin’ ” “were not misrepresentation of material fact but merely ‘puffing’ or opinion”). Nor will this statement support the jury’s finding that Helena and Hyperformer committed an unconscionable act or course of action. See Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998) (“To be actionable under subsection (A), the resulting unfairness must be ‘glaringly noticeable, flagrant, complete and unmitigated.’ ” (quoting Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.1985))).
Because the Wilkins’ claims arising out of alleged misrepresentations apart from the label on the seed package .are not actionable, and their claims arising out of the label are barred by their failure to timely institute arbitration, I would reverse the trial court’s judgment and render judgment in favor of Helena and Hy-performer. Because the majority fails to do so and instead affirms the trial court’s judgment, I must respectfully dissent.
. Tex. Agric. Code Ann. § 64.002(a) (Vernon 1995).