dissenting.
I respectfully dissent. The majority treats us to a lengthy quotation from a per curiam opinion wherein the Supreme Court specifically reserved a question of statutory construction for the future. Ozuna v. Delaney Realty, Inc., 600 S.W.2d 780, 781 (Tex.1980). The time for construction of the statute has now arrived but the majority has succeeded in avoiding the issue.
In so doing, it narrowly construes the decisive case of Riverside National Bank v. Lewis, 603 S.W.2d 169 (Tex.1980), and pointedly ignores the controlling language found in the Lewis opinion:
“Thus, we hold that a person who brings a private lawsuit under section 17.50 must be a consumer, as defined in section 17.45(4). The other courts that have considered this issue have been in accord. See, e. g., Hi-Line Electric Co. v. Travelers Insurance Co., 587 S.W.2d 488 (Tex.*317Civ.App.-Dallas 1979), writ ref’d n. r. e., 593 S.W.2d 953 (1980) (per curiam); Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737 (Tex.Civ.App.-Austin 1977, writ ref’d n. r. e.).” (603 S.W.2d at 173, emphasis in original)
The majority also chooses to ignore the approval of this language found in Hi-Line : *
“Appellee contends that a consumer must seek or acquire goods or services from the person he is suing. We agree.... We hold that appellant is not a consumer with respect to appellee because the alleged misrepresentation was not made in connection with any actual or prospective sale or lease transaction in which appellant was seeking or acquiring goods, or services supplied by appellee.” (587 S.W.2d at 490, emphasis in original)
This is the language now controlling the case at the bar.
In three pleadings, plaintiffs sought relief only under DTPA and at no time did any plaintiff seek relief in tort, contract, or under Tex.Bus. & Comm.Code Ann. § 27.01 (1968). Nor do the plaintiffs seek to rely upon the doctrine of respondeat superior so as to lay claim against the seller of the land because of the acts of his agent. Instead, plaintiffs dealt with defendant who was acting solely as an agent for the grantor and who was paid by the grantor, not the plaintiffs.
In their eagerness to pursue the legislatively created panacea, DTPA, plaintiffs and their counsel overlooked and neglected to pursue an available remedy which would have given them substantial relief against not only the agent for the seller (our defendant), but the owner of the property who was the beneficiary of the fraudulent conduct of which they complain. Tex.Bus. & Comm.Code Ann. § 27.01 is the statute designed specifically to protect gullible purchasers such as plaintiffs assert themselves to be. Complete relief could have been secured had plaintiffs invoked the provisions of § 27.01. See, e. g., R. O. McDonnell Development Co. v. Schlueter, 339 S.W.2d 701, 706 (Tex.Civ.App.-Fort Worth, writ ref’d n. r. e.); Penroc Oil Corp. v. Donahue, 476 S.W.2d 849, 851 (Tex.Civ.App.-El Paso 1972, writ ref’d n. r. e.). See also, Comment, 33 SW.L.J. 703, 720 (1979). See and cf. Person v. Latham, 582 S.W.2d 246, 249 (Tex.Civ.App.-Beaumont 1979, writ ref’d n. r. e.).
I am wholly unpersuaded by the reference to the law review note mentioned in the majority opinion. The author of the article was considering the liability of the builder-vendor as shown conclusively by the language used before and after the single overly broad sentence quoted by the majority.
The plaintiffs were not consumers as defined in the Act. Riverside National Bank v. Lewis, supra. Having no standing to bring and maintain their suit, it is clear that the trial court erred in entering judgment against the defendant. If additional legislation is needed to protect the public from unscrupulous real estate agents, such is a matter which has been entrusted to the Legislature and it will be in session within a few months.
I cannot join in a judicial lucubration which refuses to follow either the statutory or case law on the subject. I would reverse the judgment of the trial court and render judgment for the defendant. I do not suggest a remand of the cause so as to enable plaintiffs to pursue their legitimate claim under § 27.01, discussed herein, for the reason that it is apparent from the face of the pleading that their cause of action is barred by limitation.
Originally, in its per curiam opinion reported in 593 S.W.2d 953 (Tex. 1980), the Supreme Court had withheld its approval of the language quoted above. The majority of the Court in Riverside National Bank v. Lewis has now approved this basic holding in Hi Line.