REPORT AND RECOMMENDATION 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

GREGORY GENE BRISCOE, et al.,

Plaintiffs,

v. 

JAGUAR LAND ROVER NORTH 

AMERICA,

Defendant.

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CIVIL ACTION NO. 4:23-CV-00260-

ALM-AGD

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

The above-referenced case was referred to the undersigned United States Magistrate 

Judge for pre-trial purposes in accordance with 28 U.S.C. § 636. Pending before the court is

Defendant Jaguar Land Rover North America’s (“Defendant”) Motion for Judgment on the 

Pleadings (Dkt. #21) and Defendant’s Motion for Summary Judgment (Dkt. #29). Having 

reviewed Defendant’s Motion for Judgment on the Pleadings, Gregrey Gene Briscoe1 and Lori 

Smith’s (“Plaintiffs”) Response (Dkt. #26), Defendant’s Motion for Summary Judgment, 

Plaintiffs’ Response (Dkt. #30), Defendant’s Reply (Dkt. #31), Plaintiffs’ Sur-Reply (Dkt. #33), 

and all other relevant pleadings, the court finds that Defendant’s Motion for Judgment on the 

Pleadings (Dkt. #21) should be denied as moot and Defendant’s Motion for Summary Judgment 

(Dkt. #29) should be granted in part and denied in part as discussed herein.

1 Plaintiff Gregrey Gene Briscoe’s name is misspelled as Gregory in the caption of the case. The court uses the 

spelling from Plaintiffs’ Unsworn Declaration of Gregrey Gene Briscoe. See Dkt. #30, Exhibit A. 

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BACKGROUND

Factual History

On December 28, 2016, Plaintiffs purchased a 2017 Jaguar F-Pace 3 for the purchase 

price of $59,943.42 (the “Vehicle”) (Dkt. #14 at p. 3). Included with the purchase of the Vehicle, 

Plaintiffs received a Jaguar Elite Care, 5-year, 60,000-mile, bumper-to-bumper and drive-train 

warranty (Dkt. #14 at p. 3). Over four years later, on March 28, 2021, while Plaintiff Lori Smith 

was traveling out of state, the Vehicle experienced a total loss of power and came to a complete 

stop (Dkt. #14 at p. 3). The Vehicle then flashed multiple error codes on the dashboard (Dkt. #14 

at pp. 3–4). At the time of the power failure, the Vehicle’s odometer read 28,519 miles, and 

Plaintiffs had nine months left on the Jaguar Elite Care warranty (Dkt. #14 at p. 4). Per the 

warranty, the Vehicle was towed from Columbus, Mississippi to Land Rover Birmingham in 

Irondale, Alabama (the “Facility”) at Defendant’s expense (Dkt. #14 at p. 4; Dkt. #29 at p. 5). 

The Facility performed repair work and returned the Vehicle to Plaintiff Lori Smith at her 

mother’s house in Columbus, Mississippi on April 2 or April 3, 2021 (Dkt. #14 at p. 5; Dkt. #29 

at p. 5). After the Vehicle immediately experienced the same or similar issues, the Vehicle was 

towed back to the Facility, again at Defendant’s expense, on April 29, 2021 (Dkt. #14 at p. 5; 

Dkt. #29 at p. 5). Upon the Vehicle’s return to the Facility, a reinspection of the Vehicle revealed 

multiple error codes (Dkt. #14 at p. 5). During the second repair process, the Facility inspected 

the Vehicle multiple times, each time finding and repairing new error codes (Dkt. #14 at pp. 5–

6). Plaintiffs made multiple calls for status updates during the second repair process (Dkt. #14 at 

p. 6). 

While the Vehicle was at the Facility undergoing repair work, Plaintiffs filed a claim with 

the Better Business Bureau Autoline alternative dispute program (Dkt. #29 at p. 5). Then, on 

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May 20, 2021, Plaintiffs’ attorney sent a demand letter to Defendant insisting that Defendant 

“immediately cease and desist all communications with [Plaintiffs]” unless related to future 

repairs (Dkt. #29 at p. 6). About a month later, on or about June 15, 2021, Plaintiffs filed a 

Lemon Law action with the Texas Motor Vehicle Department, which was subsequently 

dismissed (Dkt. #14 at pp. 7–8; Dkt. #29 at p. 6). On June 21, 2021, the Facility reported to 

Plaintiffs that the Vehicle was ready for pickup (Dkt. #14 at p. 6; Dkt. #29 at p. 6). Plaintiff Lori 

Smith traveled to the Facility to pick up the Vehicle, but stated that the Vehicle made strange 

noises, and Plaintiff Lori Smith insisted that the Vehicle was not repaired and that she would not 

accept the Vehicle (Dkt. #14 at p. 6; Dkt. #29 at p. 6). On September 28, 2021, the Facility sent a 

certified letter to Plaintiffs stating that the Vehicle has been ready for pickup for several months, 

and that if Plaintiffs did not retrieve the Vehicle, it would be processed as abandoned and sold at 

auction (Dkt. #29 at p. 6). 

On November 22, 2021, counsel for Plaintiffs sent another demand letter to Defendant 

instructing Defendant to cease contact with Plaintiffs and only communicate through Plaintiffs’ 

counsel (Dkt. #29 at p. 7). As with the first demand letter, this demand letter stated that Plaintiff 

Gregrey Gene Briscoe “was revoking acceptance” of the Vehicle (Dkt. #29 at p. 7). 

Procedural History

On March 28, 2023, two years after Plaintiffs experienced the initial issues with the 

Vehicle, Plaintiffs filed the instant lawsuit against Defendant (Dkt. #1; Dkt. #29 at p. 7). 

Plaintiffs allege in their Amended Complaint that Defendant breached an express warranty in 

violation of the Magnuson Moss Warranty Act (“MMWA”), violated the Texas Deceptive Trade 

Practices – Consumer Protection Act (“DTPA”) in various ways, committed common law fraud, 

and committed breach of contract and breach of warranty (Dkt. #14 at pp. 9–11). On December 

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6, 2023, Defendant filed a Motion for Judgment on the Pleadings and Motion to Dismiss Certain 

Claims under 12(c) and 9(b) (Dkt. #21). Defendant’s Motion for Judgment on the Pleadings 

moved to dismiss Plaintiffs’ causes of action for DTPA unconscionable action or course of 

conduct, DTPA implied warranty of good and workmanlike repair, and common law fraud (Dkt. 

#21 at p. 1).2 On December 27, 2023, Plaintiffs filed their Response (Dkt. #26). 

On January 26, 2024, Defendant filed its Motion for Summary Judgment seeking 

judgment on Plaintiffs’ claims for breach of express warranty under the MMWA and DTPA, 

claim for breach of implied warranty of merchantability under the DTPA, claim for breach of 

implied warranty of good and workmanlike repair under the DTPA, claim for unconscionable 

action or course of action under the DTPA, claims for common law fraud, claims for monetary 

damages, and “vague claim of agency.” (Dkt. #29 at pp. 2–3). Plaintiffs filed their Response 

(Dkt. #30) on February 16, 2024, Defendant filed its Reply (Dkt. #31) on February 23, 2024, and 

Plaintiffs filed their Sur-Reply (Dkt. #33) on March 1, 2024. On February 23, 2024, Defendant 

filed objections to some of Plaintiffs’ summary judgment evidence (Dkt. #32), and on March 4, 

2024, Defendant filed objections to the evidence attached to Plaintiffs’ Sur-Reply (Dkt. #34). On 

March 13, 2024, Plaintiffs filed responses to Defendant’s objections (Dkt. #35; Dkt. #36).3

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported 

claims or defenses to help “secure the just, speedy and inexpensive determination of every 

action.” Nat’l Cas. Co. v. Kiva Const. & Eng’g, Inc., 496 Fed. App’x 446, 449 (5th Cir. 2012) 

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). Summary judgment is proper if the 

2 Because Defendant raises the same issues in its Motion for Summary Judgment, the court recommends denying as 

moot Defendant’s Motion for Judgment on the Pleadings and Motion to Dismiss Certain Claims under Rule 12(c) 

and 9(b) (Dkt. #21). 

3 Since the court did not rely on evidence that was objectionable, the court need not consider Defendant’s objections 

to Plaintiffs’ evidence. 

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pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” FED. R. CIV. P. 56(a). “A genuine dispute of material fact exists ‘if the evidence is such 

that a reasonable jury could return a verdict for the nonmoving party.’” Certain Underwriters at 

Lloyd’s, London v. Axon Pressure Prod. Inc., 951 F.3d 248, 255 (5th Cir. 2020) (citing Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). All inferences must be construed in the light 

most favorable to the nonmoving party. See id.; Osprey Ship Mgmt. Inc. v. Foster, 387 Fed. 

App’x 425, 429 (5th Cir. 2010). “[T]he substantive law will identify which facts are material. 

This means [o]nly disputes over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary judgment.” Gibson v. Collier, 920 

F.3d 212, 219 (5th Cir.), cert. denied, 140 S. Ct. 653 (2019) (citing Parrish v. Premier 

Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019)) (internal quotations omitted).

The party moving for summary judgment has the burden of showing that there is no 

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. 

Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 191 (5th Cir. 2011). “[W]here the 

movant bears the burden of proof at trial, the movant ‘must establish beyond peradventure all of 

the essential elements of the claim or defense to warrant judgment in his favor.’” Lyons v. Katy 

Indep. Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020) (citation omitted). However, if the movant 

does not bear the burden of proof at trial, the movant is entitled to summary judgment if “the 

nonmoving party has failed to make a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof.” Gonzales v. ConocoPhillips Co., 806 Fed. App’x 

289, 291 (5th Cir. 2020) (citing Celotex, 477 U.S. at 323). Once the movant has carried its 

burden, the nonmovant “must go beyond the pleadings and identify specific evidence in the 

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record showing that there is a genuine issue for trial.” Powers v. Northside Indep. Sch. Dist., 951 

F.3d 298, 307 (5th Cir. 2020). “If the evidence is merely colorable, or is not significantly 

probative, summary judgment may be granted.” Malbrough v. Stelly, 814 Fed. App’x 798, 802 

(5th Cir. 2020) (citing Anderson, 477 U.S. at 249-50).

ANALYSIS

A. Breach of Express Warranty

Enacted in 1974, the Magnuson Moss Warranty Act (“MMWA”) “creates a statutory 

cause of action for consumers ‘damaged by the failure of a supplier, warrantor, or service 

contractor to comply with any obligation [imposed by the Act] or [established by] a written 

warranty, implied warranty, or service contract.’” Walton v. Rose Mobile Homes, LLC, 298 F.3d 

470, 474 (5th Cir. 2002) (citing 15 U.S.C. § 2310(d)(1)). (Alterations in original). “The MMWA

does not provide an independent basis for liability, but instead provides a federal cause of action 

for state law express and implied warranty claims.” Taliaferro v. Samsung Telecomms. Am., 

LLC, No. 3:11-cv-1119-D, 2012 WL 169704, at *10 (N.D. Tex. Jan. 19, 2012) (internal 

quotation marks and citations omitted). Similarly, the Texas Deceptive Trade Practices Act 

(“DTPA”) provides a mechanism by which parties may enforce express and implied warranties. 

Tsao v. Ferring Pharms., Inc., No. 4:16-cv-01724, 2017 WL 746451, at *6 (S.D. Tex. Jan. 4, 

2017) (“Although the DTPA allows a consumer to pursue a breach of warranty claim, the act 

itself does not create any warranties. It merely codifies provisions of the UCC and provides for 

additional remedies.”). Thus, Plaintiffs’ MMWA and DTPA claims hinge upon their state law 

claims for breach of warranty. 

To establish breach of an express warranty, 

Plaintiff ‘must allege (1) an express affirmation of fact or promise by the seller 

relating the goods; (2) that such affirmation of fact or promise by the seller 

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became a part of the basis of the bargain; (3) that [Plaintiff] relied upon said 

affirmation of fact or promise; (4) that the goods failed to comply with the 

affirmation of fact or promise; (5) [Plaintiff] [was] injured by such failure of the 

product to comply with the express warranty; and (6) that such failure was the 

proximate cause of [Plaintiff’s] injury.’

Harris v. BMW of N. Am., LLC, No. 4:19-cv-00016, 2020 WL 7081808, at *5 (E.D. Tex. Dec. 3, 

2020) (quoting Johnson v. Philip Morris, 159 F. Supp. 2d 950, 952 (S.D. Tex. 2001)); see also

TEX. BUS. & COM. CODE § 2.313(a)(1). The parties do not dispute the first three elements; that is, 

that an express warranty exists that was part of the basis of the bargain and relied upon by 

Plaintiffs. Where the parties differ is the last three elements; that is, whether the express warranty 

was breached, proximately causing injury to Plaintiffs. Defendant raises three issues under 

Plaintiffs’ alleged breach of express warranty claims: (1) whether the Vehicle was properly 

repaired under the warranty; (2) whether Defendant breached the express warranty when it did 

not transport the Vehicle to Texas; and (3) whether Plaintiffs were entitled to trip interruption 

benefits under the express warranty.

1. Repair of the Vehicle

During the 5-year, 60,000-mile period, Defendant warranted the Vehicle as follows: 

Jaguar warrants that during the warranty period, if a 2017 Model Year Jaguar 

vehicle is properly operated and maintained, repairs required to correct defects in 

factory-supplied materials or factory workmanship will be performed without 

charge upon presentment for service at an authorized Jaguar retailer; any 

component covered by this warranty found to be defective in materials or 

workmanship will be repaired, or replaced, without charge, with a new or 

remanufactured part distributed by Jaguar, at its sole option.

(Dkt. #29 at p. 4).

Defendant claims summary judgment is proper on Plaintiffs’ express warranty claim 

because the Vehicle was repaired, without charge, under the warranty (Dkt. #29 at p. 10). For 

this assertion, Defendant relies on its expert’s affidavit (Dkt. #29, Exhibit C). Defendant’s 

expert, Brandon Sangster, averred: “The documented concerns or issues for which the subject 

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vehicle was presented to the Alabama dealership were repaired under the new vehicle limited 

warranty and at no charge to the owner.” (Dkt. #29, Exhibit C at ¶ 22). The Facility sent a 

certified letter to Plaintiffs on September 28, 2021, stating that “[a]ll the agreed upon work has 

been completed and your vehicle has been ready for pick-up since June 24, 2021.” (Dkt. #29, 

Exhibit J). Accordingly, Defendant has produced evidence to support its theory that no breach of 

express warranty occurred with regard to repair of the Vehicle. 

Plaintiffs, however, insist that the Vehicle was not repaired as required under the express 

warranty. Initially, when the Vehicle was returned to Plaintiffs in early April 2021, the Vehicle 

immediately presented with the same or similar issues and was towed back to the Facility. It is 

undisputed that the Vehicle was not repaired at that time. However, the Facility continued 

working on repairing the Vehicle. Among other issues, the Vehicle needed a new engine wiring 

harness, which had to be ordered from the United Kingdom (Dkt. #29, Exhibit C at ¶¶ 7–9). The 

procurement of the harness took longer than usual due to the Covid-19 pandemic and the related 

supply-chain issues (Dkt. #29 at p. 6) (“While this custom-made harness is difficult enough to 

obtain in ordinary times, this dealer was trying to source the part during supply challenges 

created by the world-wide Covid-19 pandemic.”). However, once acquired, the Facility replaced

the harness, performed test drives, and made specific repairs. Mr. Sangster averred:

Another test drive was performed, where the check engine light came on due to a 

P2096-02 DCT being stored. An inspection of the work previously performed was 

carried out and found to be sound with no damage. The code was deemed to be 

the result of a faulty oxygen sensor, which was replaced. A final test drive for this 

concern was carried out with the concern being fully rectified and no longer 

present at that time.

(Dkt. #29, Exhibit C at ¶ 9). Mr. Sangster ultimately concluded that all issues identified “were 

repaired under the new vehicle limited warranty and at no charge to the owner.” (Dkt. #29, 

Exhibit C at ¶ 22). 

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Plaintiffs presented no evidence to the contrary in their Response. Instead, Plaintiffs 

allege the Vehicle was not repaired under the warranty because upon Plaintiff Lori Smith’s 

arrival to pick up the Vehicle in June 2021, “the vehicle made an alarming noise when Plaintiff 

Lori turned the vehicle on.” (Dkt. #30 at p. 7). Rather than inspect the Vehicle and include an 

expert report, Plaintiffs rely on Plaintiff Lori Smith’s observations to assert that there is a fact 

question whether the Facility replaced the defective engine wiring harness with “an ill-fitting 

engine harness” and whether the Vehicle was repaired when it made “alarming noises” after 

being “reported as ready for pick-up on or about June 21, 2021.” (Dkt. #30 at pp. 6–7). 

In order to prove that the Vehicle was, in fact, not repaired under the warranty, expert 

testimony is required. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) 

(“Expert testimony is required when an issue involves matters beyond jurors’ common 

understanding.”) (citing Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119–20 (Tex.2004)); 

see also Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004) (holding that a 

plaintiff’s lay testimony “was not enough . . . [i]nstead, we have consistently required competent 

expert testimony and objective proof that a defect caused the [complained-of issue].”).

Here, Plaintiffs failed to designate an expert, and therefore do not have expert testimony

stating that the Vehicle had not been properly repaired. However, based on Plaintiff Lori Smith’s 

experience with the Vehicle on or about June 25, 2021, the Vehicle appeared to exhibit issues 

leading to “alarming noises,” and Defendant’s expert report illustrates how more error codes 

were discovered upon inspection in October 2023. Construing these facts in the light most 

favorable to Plaintiffs, a fact question remains as to whether the Vehicle was repaired under the 

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warranty in June 2021.

4 Thus, summary judgment is improper on Plaintiffs’ breach of express 

warranty claims under the MMWA and the DTPA.

2. Towing the Vehicle

Defendant raises the issue of whether there was a breach of the express warranty when 

Defendant did not tow the Vehicle to Texas, but rather towed the Vehicle to the nearest 

dealership: the Facility in Alabama (Dkt. #29 at p. 12). Plaintiffs, however, do not raise this issue 

under breach of express warranty. Instead, Plaintiffs raised this as a claim for fraud. However, 

“out of an abundance of caution” Defendant addressed this claim to the extent it may apply to the 

breach of express warranty (Dkt. #29 at p. 12, n.5). 

The express warranty afforded a towing benefit as follows: “In the event of a mechanical 

disablement of your Jaguar vehicle which renders the vehicle inoperative, the Jaguar Assistance 

Center will arrange to transport your vehicle to the nearest Jaguar retailer. This service will be 

provided . . . at no cost to you.” (Dkt. #29, Exhibit B at p. 30) (emphasis added). It is undisputed 

that the Vehicle was towed to the nearest Jaguar dealership from Columbus, Mississippi, where 

Plaintiff Lori Smith experienced the mechanical disablement (Dkt. #14 at pp. 4–5; Dkt. #29 at 

pp. 12–13). The Vehicle was towed to the Facility, then to Plaintiff Lori Smith’s mother’s house, 

and back to the Facility, each time at no cost to Plaintiffs. As such, there is no genuine dispute of 

material fact that the express warranty was not breached in relation to the towing of the Vehicle. 

Accordingly, to the extent it was raised, Defendant is entitled to summary judgment on this 

element of alleged breach of express warranty.

4 While Plaintiffs may have raised a fact question at this stage in the litigation, it is unclear how Plaintiffs will be 

able to establish at trial that the Vehicle was not repaired under the warranty without the testimony of an expert 

witness. The court makes no determination as to the ultimate viability of Plaintiffs’ claim for breach of express 

warranty to contradict Defendant’s expert. 

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3. Trip Interruption Benefits

Plaintiffs argue that Defendant breached the express warranty because Defendant did not 

reimburse Plaintiffs for expenses incurred as a result of the Vehicle’s issues. The express 

warranty provides as follows: “Trip interruption benefits are provided in the event of a warrantyrelated disablement that occurs more than 50 miles from your primary residence. Reasonable 

reimbursement for meals, lodging and alternate transportation expenses are included, unless you 

have already reached your final destination.” (Dkt. #29, Exhibit B at p. 31). The warranty 

includes a notation that “[r]eimbursement for meals and lodging is not extended if you have 

already reached your final or intended destination.” (Dkt. #29, Exhibit B at p. 31).

In Plaintiffs’ Amended Complaint, Plaintiffs allege Plaintiff Lori Smith was in 

Columbus, Mississippi visiting her mother when the Vehicle experienced a total loss of power 

(Dkt. #14 at pp. 3, 5). Defendant argues that Plaintiffs are not entitled to trip interruption benefits 

because Plaintiff Lori Smith had already reached her final destination, i.e., her mother’s house in 

Columbus, Mississippi (Dkt. #29 at pp. 13–14). Plaintiffs counter this argument by asserting—

for the first time—that Plaintiff Lori Smith was on her way to Pensacola, Florida and that their 

home in Texas was the final destination (Dkt. #30 at p. 8). (“Plaintiffs oppose Defendant’s 

argument because Plaintiff Lori had not reached her destination, Pensacola, Florida . . . . Also, to 

be clear, Plaintiff Lori’s final destination was her home in Texas.”). 

Defendant’s Reply correctly asserts that prior to Plaintiffs’ Response, there is no mention 

of a trip to Florida in any of the pleadings. The only destination mentioned is Columbus, 

Mississippi. However, in Plaintiffs’ Sur-Reply, Plaintiffs state that Defendant “chose not to 

depose any of the Plaintiffs, nor any other witnesses, but if it did, it could have asked Smith 

about the exact reason of her travel to Mississippi, and her final destination.” (Dkt. #33 at p. 4). 

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Construing this information in the light most favorable to Plaintiffs, a fact question exists as to 

whether Plaintiff Lori Smith’s trip was interrupted prior to reaching her final destination. Thus, 

Defendant is not entitled to summary judgment on this claim. 

B. Breach of Implied Warranty of Merchantability

Texas Business and Commerce Code § 2.314 mirrors Uniform Commercial Code § 2-314 

and sets out the implied warranty of merchantability. “Unless excluded or modified (Section 

2.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if 

the seller is a merchant with respect to goods of that kind.” TEX. BUS. & COM. CODE § 2.314(a); 

see also UNIF. L. ANN. UNIF. COM. CODE § 2-314(1). To establish a breach of the implied 

warranty of merchantability, Plaintiffs must establish the following four elements: “(1) the 

defendant sold goods to the plaintiff; (2) the goods were unmerchantable when they left the 

manufacturer’s possession; (3) the plaintiff notified the defendant of the breach; and (4) the 

plaintiff suffered injury.” Young v. Cutera, Inc., No. 4:19-cv-00388-RWS, 2021 WL 9526862, at 

*3 (E.D. Tex. Aug. 9, 2021). It is undisputed that the implied warranty of merchantability applies 

to the Vehicle. Where the parties disagree is whether the Vehicle was merchantable. 

For goods to be merchantable, the goods must 

(1) pass without objection in the trade under the contract description; and (2) in 

the case of fungible goods, are of fair average quality within the description; and 

(3) are fit for the ordinary purposes for which such goods are used; and (4) run, 

within the variations permitted by the agreement, of even kind, quality, and 

quantity within each unit and among all units involved; and (5) are adequately 

contained, packaged, and labeled as the agreement may require; and (6) conform 

to the promises or affirmations of fact made on the container or label if any.

TEX. BUS. & COM. CODE § 2.314(b)

Plaintiffs’ Amended Complaint argues that the Vehicle was unmerchantable because it 

was not “fit for the ordinary purposes for which [cars] are used.” (Dkt. #14 at p. 10). Defendant 

alleges that the Vehicle was merchantable and did not contain a defect when it was sold to 

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Plaintiffs (Dkt. #29 at p. 14). Yet Plaintiffs argue in their Response that the Vehicle could not 

pass without objection in the trade and that it was unfit for its ordinary purposes (Dkt. #30 at p. 

9). 

Plaintiffs cite Plaintiff Gregrey Gene Briscoe’s Unsworn Declaration, an April 1, 2021, 

Invoice, a June 24, 2021, Invoice, and several photos of the dashboard error codes to establish 

that the Vehicle had 28,519 miles just over 4 years after Plaintiffs purchased the Vehicle (Dkt. 

#30, Exhibit A at ¶ 3, Exhibit C, Exhibit M). These exhibits do not establish that a defect existed 

when the Vehicle left Defendant’s possession, nor do they establish that the Vehicle was not fit 

for its ordinary purpose. Rather, the evidence Plaintiffs cited establishes that Plaintiffs 

experienced more than four years of defect-free use of the Vehicle. In fact, Plaintiffs put nearly 

30,000 miles on the Vehicle before they experienced an issue that was covered by their warranty. 

“If goods are defective, [a] seller may be liable for breach of an implied warranty.” Gen. Motors 

Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex. 1998). However, goods are not defective where “the 

product merely fails to fulfill the precise expectations of the consumer . . . .” Id. “A product 

which performs its ordinary function adequately does not breach the implied warranty of 

merchantability merely because it does not function as well as the buyer would like, or even as 

well as it could.” Id. Plaintiffs cite no case law or statutory authority to the contrary. 

Accordingly, the court recommends that summary judgment is appropriate on Plaintiffs’ claim 

for breach of the implied warranty of merchantability.

C. Breach of Implied Warranty of Good and Workmanlike Performance

Texas courts have recognized an implied warranty for good and workmanlike 

performance. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987) (“We hold 

that an implied warranty to repair or modify existing tangible goods or property in a good and 

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workmanlike manner is available to consumers suing under the DTPA.”). The Texas Supreme 

Court “define[d] good and workmanlike as that quality of work performed by one who has the 

knowledge, training, or experience necessary for the successful practice of a trade or occupation 

and performed in a manner generally considered proficient by those capable of judging such 

work.” Id. (collecting cases). The Texas Supreme Court further explained that it “do[es] not 

require repairmen to guarantee the results of their work; [it] only require[s] those who repair or 

modify existing tangible goods or property to perform those services in a good and workmanlike 

manner.” Id. (emphasis in original).

Plaintiffs raise issues that the Vehicle was not fully repaired in April 2021, that the 

Vehicle was not repaired in June 2021, and that to date, the Vehicle is still not operable in its 

current state (Dkt. #30 at pp. 11–13). These assertions are based on additional mechanical issues 

discovered each time the Facility or Defendant’s expert ran diagnostic tests on the Vehicle. 

Plaintiffs rely on these newly discovered issues to state that the technicians did not repair the 

Vehicle in a good and workmanlike manner. Such assertions run afoul of the standard. As 

Melody Home Mfg. Co. stated, the implied warranty of good and workmanlike performance does 

not guarantee results; it guarantees good and workmanlike performance. 741 S.W.2d at 354. 

Here, Plaintiffs complain of the results of the repairs. Plaintiffs have presented no evidence to 

support the assertion that the repairs were not performed in a good and workmanlike manner. 

Plaintiffs state that the Facility does not know what repairs were done in April 2021 and 

cite an email from Joel Spanick, a Service Advisor for the Facility (Dkt. #30, Exhibit E at p. PLF 

0038). Mr. Spanick stated that (1) he does not have an explanation why one electrical issue was 

not discovered in April 2021, but that the Vehicle is “very complex”; (2) he did not know why 

certain notes were not included on the repair order, but the work performed was found in the 

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technician’s notes that would normally be sent to the customer for approval, but not in this case 

since the issue was covered under the warranty; and (3) he could not explain why a repair order 

was documented incorrectly because he was not the advisor for the Vehicle at that time (Dkt. 

#30, Exhibit E at p. PLF 0038). This email contains several admissions, but none of Mr. 

Spanick’s statements above demonstrate that the Facility did not know which repairs were 

performed.

Plaintiffs also make the conclusory assertion that because the Facility did not discover a 

coolant leak during the initial repair in April 2021, the Facility did not perform the services in a 

good and workmanlike manner (Dkt. #30 at p. 12). Plaintiffs do not cite any authority to support 

such assertion. And again, Plaintiffs are complaining of the results of the initial repair, not the 

manner in which the work was performed. Additionally, Plaintiffs assert that the services 

rendered were not performed in a good and workmanlike manner because the Vehicle, upon 

inspection in October 2023, revealed more error codes and was inoperable due to a dead battery 

(Dkt. #30 at pp. 12–13). Plaintiffs’ assertions fail to account for the more than two years that the 

Vehicle sat on the Facility’s lot after being reported as repaired in June 2021. 

Regardless, Plaintiffs’ assertions that the implied warranty for good and workmanlike 

performance was breached requires expert testimony. “[G]ood and workmanlike [is defined] as 

that quality of work performed by one who has the knowledge, training, or experience necessary 

for the successful practice of a trade or occupation and performed in a manner generally 

considered proficient by those capable of judging such work.” Melody Home Mfg. Co., 741 

S.W.2d at 354 (emphasis added); see also id. (finding that expert testimony is not required where 

“the breach of the implied warranty was plainly within the common knowledge of laymen”). As 

Defendant argues, “[t]he techniques and methods employed by the service technician to examine, 

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diagnose, and repair a complex luxury vehicle are not ‘plainly’ within a layperson’s knowledge.” 

(Dkt. #29 at p. 17). 

The only expert opinion regarding the performance of the repairs of the Vehicle was 

provided by Defendant’s expert. Mr. Sangster averred, “It is not unusual, or below industry 

custom or standards, for a technician to diagnose and repair a vehicle issue, verifying it with a 

test drive, and then have the same or similar issue later re-appear, requiring further diagnosis and 

repair.” (Dkt. #29, Exhibit C at ¶ 21). Mr. Sangster concluded, “The repair procedure, methods, 

and length of time for repair by the dealer were reasonable and customary for the industry and 

circumstances.” (Dkt. #29, Exhibit C at ¶ 22). For the foregoing reasons, the court recommends 

granting summary judgment on Plaintiffs’ claim for breach of the implied warranty of good and 

workmanlike performance. 

Additionally, Texas courts have held that “implied warranties that ‘services will be 

performed in a good and workmanlike manner’ usually ‘arise [only] under the common law 

when public policy mandates [such].’” Dizdarevic v. Goodyear Tire & Rubber Co., No. 4:19-

CV-0963, 2020 WL 3513255, at *3 (S.D. Tex. Apr. 22, 2020) (quoting Shakeri v. ADT Sec. 

Servs., Inc., 816 F.3d 283, 294 (5th Cir. 2016)). “The Supreme Court of Texas has clarified that 

[p]ublic policy does not justify imposing an implied warranty for service transactions in the 

absence of a demonstrated, compelling need and [t]here is no compelling need for an implied 

warranty when other adequate remedies are available to the consumer.” Dizdarevic, 2020 WL 

3513255, at *3 (internal quotation marks and citations omitted). Here, the court recommends that 

several of Plaintiffs’ claims for the breach of express warranty under the MMWA and DTPA 

should survive summary judgment. Thus, other adequate remedies are available to Plaintiffs, and 

Texas courts would not impose an implied warranty in the present case. See Shakeri, 816 F.3d at 

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295 (“Because Plaintiffs have adequate remedies for ADT’s conduct in both their negligence and 

breach of contract causes of action, Texas courts would not recognize an implied warranty in 

ADT’s repair and modification of the alarm system.”). Accordingly, the court recommends 

summary judgment on Plaintiffs’ claim for breach of the implied warranty of good and 

workmanlike performance.

D. Breach of Contract

Plaintiffs’ Amended Complaint alleges “Breach of Contract/Breach of Warranty (Texas)” 

as another cause of action (Dkt. #14 at p. 11). Other than incorporating preceding paragraphs of 

the Amended Complaint, Plaintiffs do not plead the elements of breach of contract nor any facts 

that would support such a claim. Rather, Plaintiffs claim that the incorporated paragraphs 

“constitute a breach of warranty, which proximately caused the direct and consequential 

damages of Plaintiffs.” (Dkt. #14 at p. 11). Defendant disputes this breach of contract claim 

because Defendant and Plaintiffs do not have a contract within the common law meaning (Dkt. 

#29 at p. 18). Additionally, Defendant disputes this claim “because the underlying transaction 

involved the sale of goods, which means the transaction is governed by the Texas Uniform 

Commercial Code (UCC).” (Dkt. #29 at p. 18). 

“Texas has adopted the Uniform Commercial Code (UCC) in its Business and Commerce 

Code.” Coim USA, Inc. v. Sjobrand, Inc., 663 F. Supp. 3d 684, 688 (N.D. Tex 2023) (citing TEX.

BUS. & COM. CODE § 2.102 et seq.). “[W]hen parties enter into a contract for the sale of goods, 

Chapter 2 of the Texas Business and Commerce Code controls the conduct of the parties.” Id. 

(internal quotation marks and citations omitted). “Where the U.C.C. applies, it displaces all 

common law rules . . . regarding breach of contract and substitutes instead those rules of law and 

procedure set forth in the U.C.C.” Id. (internal quotation marks and citation omitted). 

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Plaintiffs do not discuss the breach of contract claim in their Response to Defendant’s 

Motion for Summary Judgment, so the court presumes Plaintiffs do not oppose Defendant’s 

position. LOCAL RULE CV-7(d) (“[A response] shall contain a concise statement of the reasons in 

opposition to the motion and a citation of authorities upon which the party relies. A party’s 

failure to oppose a motion in the manner prescribed herein creates a presumption that the party 

does not controvert the facts set out by movant and has no evidence to offer in opposition to the 

motion.”). Accordingly, the court recommends that summary judgment is proper on Plaintiffs’ 

breach of contract claim. 

E. DTPA Claim for Unconscionable Action or Course of Action

“The DTPA creates a cause of action for consumers based on ‘(1) the use of or 

employment of a false, misleading, or deceptive act or practice that is included in the “laundry 

list” of violations under section 17.46(b), (2) the breach of any express or implied warranty, and 

(3) an unconscionable action or course of action.’” Franklin v. Apple, Inc., 569 F. Supp. 3d 465, 

478 (E.D. Tex. 2021) (quoting Int’l Med. Ctr. Enters., Inc. v. ScoNet, Inc., No. 01-16-00357-CV, 

2017 WL 4820347, at *7 (Tex. App—Houston [1st Dist.] Oct. 26, 2017)). To establish a claim 

under the DTPA for unconscionable action or course of action, Plaintiff must show that 

Defendant engaged in “an act or practice which, to a consumer’s detriment, takes advantage of 

the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair 

degree.” TEX. BUS. & COM. CODE § 17.45(5). 

Plaintiffs’ Amended Complaint fails to plead with any particularity how Defendant 

engaged in unconscionable acts. Plaintiffs’ threadbare assertion is merely a recital of the 

elements (Dkt. #14 at p. 10). (“Defendant and Defendant’s authorized agents and representatives 

engaged in an ‘unconscionable action or course of action’ to the detriment of Plaintiffs as that 

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term is defined by Section 17.45(5) of the Texas Business and Commerce Code, by taking 

advantage of the lack of knowledge, ability, experience, or capacity of Plaintiff[s] to a grossly 

unfair degree.”). Defendant’s Motion for Summary Judgment argues that such claim fails 

because “(1) there is no evidence to support [the claim], and (2) the claim is really just a mere 

breach of warranty claim and not actionable under this provision of the DTPA.” (Dkt. #29 at pp. 

18–19). Plaintiffs’ Response alleges that Plaintiff Lori Smith was told (by an unidentified 

person) that the Vehicle would be towed to Texas once repaired (Dkt. #30 at p. 15). Plaintiffs 

also allege in their Response that the Vehicle was not properly repaired by June 2021 when the 

Facility reported the Vehicle as ready for pickup (Dkt. #30 at pp. 15–16). Plaintiffs further allege 

that the Vehicle “remains improperly repaired today, almost three years later.” (Dkt. #30 at p. 

16). Finally, Plaintiffs allege that Defendant took advantage of their “lack of knowledge, 

experience, and capacity to adequately repair the vehicle themselves, to a grossly unfair degree.” 

(Dkt. #30 at p. 17). Plaintiffs conclude that the foregoing illustrates that a genuine dispute of 

material fact exists in three ways: 

(1) Whether the vehicle’s defect was corrected before it was reported as ready for 

pick-up on or about June 21, 2021, in fulfilment of the warranty, by replacing its 

defective engine harness with an ill-fitting engine harness; (2) whether the 

vehicle’s defect was corrected before it was reported as ready for pick-up on or 

about June 21, 2021, in fulfilment of the warranty, when the vehicle’s alarming 

noises pierced the air; and (3) whether the vehicle’s defect was corrected before it 

was reported as ready for pick-up on or about June 21, 2021, in fulfilment of the 

warranty, when the vehicle’s battery failed to be addressed.

(Dkt. #30 at p. 17) (emphasis added).

As stated by Plaintiffs, each of the identified alleged genuine disputes of material fact 

relate to whether the Facility repaired the Vehicle “in fulfilment of the warranty.” These three 

alleged disputes of material fact do not, however, relate to whether Defendant took advantage of 

Plaintiffs’ lack of knowledge, ability, experience, or capacity to adequately repair the Vehicle 

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themselves, to a grossly unfair degree. Instead, each instance, if proven to be in Plaintiffs’ favor 

by a factfinder, would result in a breach of the express warranty. Thus, such breach would not be 

actionable under this section of the DTPA.

Defendant also argues that Plaintiffs were not taken advantage of to an unfair degree 

because they were represented by counsel as of May 2021. In support of this assertion, 

Defendant relies on Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 745 (Tex. App.—Fort 

Worth, Feb. 24, 2005). Representation of counsel was not what led the court to determine that 

unconscionable actions did not occur. The court found that along with the representation of 

counsel, the plaintiff contacted a company following a “glowing recommendation” from a realty 

company, the plaintiff had the option of selecting another company, and the plaintiff, or her 

representatives, obtained four separate home inspections before the plaintiff purchased the home. 

Head, 159 S.W.3d at 745. As such, here, the fact that Plaintiffs were represented by counsel 

during the repairs is not a dispositive factor, but one to be considered. The court notes that unlike 

in Head, Plaintiffs did not have options for where to take the Vehicle, and Plaintiffs did not 

select the Facility on a “glowing recommendation.” So, the court finds Head to be inapposite to 

the present case. 

However, “[a]n allegation of a mere breach of contract, without more, does not constitute 

a ‘false, misleading or deceptive act’ in violation of the DTPA.” Ashford Dev., Inc. v. USLife 

Real Estate Servs. Corp., 661 S.W.2d 933, 935 (Tex. 1983) (internal quotation marks and 

citations omitted). “Instead, . . . the inquiry is whether the alleged unconscionable conduct ‘could 

have resulted in the absence of a contract between the parties.’” Shakeri, 816 F.3d at 295 

(quoting Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13 (Tex. 1996)). “Interpreting Texas law, 

[the Fifth Circuit has] stated that where ‘allegedly unconscionable statements’ are made but 

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where the breach of the contract causes the harm, a plaintiff cannot maintain a claim for 

unconscionable conduct under the DTPA.” Id. (citing Malsom v. Match.com, L.L.C., 540 Fed. 

App’x 412, 415 (5th Cir. 2013) (unreported)). 

Here, Plaintiffs would not have a claim against Defendant if there was no express 

warranty. The harm suffered by Plaintiffs as a result of the alleged unconscionable actions is

based on the assertion that the Vehicle was not repaired and that the Vehicle was not towed to 

Texas. The repairs were being performed under the express warranty and the Vehicle was towed 

under the express warranty. Thus, any damages arising out of those transactions would be based 

on an alleged breach of the express warranty. Accordingly, Plaintiffs cannot maintain a claim for 

unconscionable acts under the DTPA. Thus, the court recommends that summary judgment be 

granted on this claim. 

F. Common Law Fraud

In Texas courts, to establish a fraud claim, Plaintiffs must show: 

“(1) [Defendant] made a material representation that was false; (2) it knew the 

representation was false or made it recklessly as a positive assertion without any 

knowledge of its truth; (3) it intended to induce [Plaintiffs] to act upon the 

representation; and (4) [Plaintiffs] actually and justifiably relied upon the 

representation and thereby suffered injury.”

Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). “The fourth 

element has two requirements: the plaintiff must show that it actually relied on the defendant’s 

representations and, also, that such reliance was justifiable.” JPMorgan Chase Bank, N.A. v. 

Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018). To adequately plead fraud in federal 

court, Federal Rule of Civil Procedure 9(b) imposes “heightened pleading requirements” that to 

“alleg[e] fraud or mistake, a party must state with particularity the circumstances constituting 

fraud or mistake.” Pace v. Cirrus Design Corp., 93 F.4th 879, 889 (5th Cir. 2024) (quoting FED.

R. CIV. P. 9(b)) (emphasis added). When a party’s “misrepresentation claims are based on 

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alleged false statements, he must satisfy Rule 9(b)’s heightened pleading.” Id. Courts have 

required parties to plead the circumstances constituting fraud to include the “who, what, when, 

where, and how of the fraud or misrepresentation.” Id. at 890 (internal quotation marks and 

citations omitted). 

Plaintiffs’ Amended Complaint falls below the heightened pleading standard for fraud in 

federal courts. Plaintiffs’ cause of action for “COMMON LAW FRAUD (TEXAS)” is 

essentially a bare recital of the elements of a fraud claim with an incorporation by reference to 

“Paragraphs six through fifteen.” (Dkt. #14 at pp. 10–11). Paragraphs 6–9 of Plaintiffs’ 

Amended Complaint are jurisdiction and venue statements (Dkt. #14 at pp. 2–3). Paragraphs 10–

15 relate, in relevant part, to the following: (1) the background facts about the mechanical issues 

the Vehicle experienced while Plaintiff Lori Smith was driving in Mississippi; (2) the towing of 

the Vehicle to and from the Facility and Plaintiff Lori Smith’s mother’s home in Columbus,

Mississippi; (3) the trouble shooting of the multiple mechanical issues discovered during the first 

and second repair attempts between April 2021 and June 2021; (4) the alleged representations 

from the Facility that the Vehicle would be returned to Plaintiffs in Texas under the Jaguar 

Reunite Program; (5) Plaintiffs making multiple requests for the car to be transported to Texas 

and requests for updates on the status of the repair; (6) the Texas Department of Motor Vehicles 

claim filed in June 2021; and (7) Plaintiffs’ continued payments for the Vehicle while it 

remained in the possession of the Facility (Dkt. #14 at pp. 3–8). None of paragraphs 6–15 plead 

with any particularity the who, what, when, where, and how of the federal fraud claim’s 

heightened pleading requirements. 

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It is not until paragraph 19 that Plaintiffs set out the alleged false misrepresentations

(Dkt. #14 at pp. 8–9). Paragraph 19 alleges the following statements constitute fraudulent 

misrepresentations: 

a. Almost two years since the reported incident, and no action has been 

completed by Defendant to remedy the problems. 

b. False assertions were made by Defendant and its representatives (Joel 

Spanick, Eugene Stewart, and Dan Germond) during the Texas Department of 

Motor Vehicles investigation/administrative hearing regarding their alleged 

response to inquiries, actions, and notices to Plaintiffs which delayed a 

resolution of this claim. 

c. False assertions were made by Urgently that Defendant would return the 

Vehicle to Texas under the Jaguar Reunite Program. 

d. False assertions were made by Defendant and its representatives (Joel 

Spanick, Eugene Stewart, and Dan Germond) during the Texas Department of 

Motor Vehicles investigation/administrative hearing that the dealership made 

many attempts to contact Plaintiffs by phone to discuss and address their 

concerns. 

e. False assertions were made by Defendant and its representatives (Joel 

Spanick, Eugene Stewart, and Dan Germond) during the Texas Department of 

Motor Vehicles investigation/administrative hearing that the vehicle was 

fixed, and the Plaintiffs had been notified.

f. False assertions were made by Defendant and its representatives (Joel 

Spanick, Eugene Stewart, and Dan Germond) during the Texas Department of 

Motor Vehicles investigation/administrative hearing that the Vehicle was not 

returned because Plaintiffs notified the dealer not to return it since Defendant 

would be buying back the vehicle.

(Dkt. #14 at pp. 8–9). The foregoing allegations of fraudulent misrepresentations do not meet the

heightened pleading requirements (who, what, when, where, and how) for federal fraud claims. 

To begin, the first allegation, a., does not allege any statement and therefore cannot 

constitute a fraudulent misrepresentation. Next, the allegation in c. refers to “[f]alse assertions 

. . . made by Urgently,” a roadside assistance company. Defendant asserts Urgently is an 

independently owned company and not an agent of Defendant (Dkt. #29 at p. 25). Thus, this 

allegation cannot be used to support a fraud claim against Defendant. Next, in b., d., e., and f.,

Plaintiffs recount multiple allegedly false misrepresentations made “during the Texas 

Department of Motor Vehicles investigation/administrative hearing” by Joel Spanick, Eugene 

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Stewart, and Dan Germond. Joel Spanick is a Service Advisor for the Facility, and Dan Germond 

is a Service Director for the Facility (Dkt. #30, Exhibit C). As addressed, infra., Mr. Spanick and 

Mr. Germond are not agents or representatives of Defendant. As such, any reliance on the 

alleged misrepresentations of Mr. Spanick and Mr. Germond are not attributable to Defendant 

and cannot be used to support Plaintiffs’ fraud claim against Defendant. 

The only agent or representative of Defendant in these allegations is Eugene Stewart, 

who represented Defendant during Plaintiffs’ Lemon Law hearings (Dkt. #29 at p. 24). In Texas, 

courts recognize the so-called judicial-proceedings privilege. Landry’s Inc. v. Animal Legal Def. 

Fund, 631 S.W.3d 40, 46 (Tex. 2021). The privilege applies in judicial and quasi-judicial 

proceedings. Blasko v. Miller, 678 F. Supp. 3d 832, 848–49 (N.D. Tex. 2023). “The judicialproceedings privilege is an absolute privilege that normally covers ‘any statement made by the 

judge, jurors, counsel, parties, or witnesses, and attaches to all aspects of the proceedings, 

including statements made in open court, pre-trial hearings, depositions, affidavits and any of the 

pleadings or other papers in the case.’” Id. at 849 (citing Landry’s, 631 S.W.3d at 46). “Although 

commonly applied in defamation cases, the privilege prohibits ‘any tort litigation based on the 

content of the communication’ at issue.” Landry’s, 631 S.W.3d at 46 (quoting Collins v. Zolnier, 

No. 09-17-00418-CV, 2019 WL 2292333, at *3 (Tex. App.—Beaumont May 30, 2019)). The 

above four instances of fraudulent misrepresentations that Plaintiffs allege are attributable to Mr. 

Stewart, a representative of Defendant, were each made during the Lemon Law proceedings. 

Because Plaintiffs’ cause of action for fraud is “based on the content of the communication” 

during the Lemon Law proceedings, the judicial-proceedings privilege applies. 

As Plaintiffs’ allegations do not properly allege common law fraud, it follows that their 

summary judgment evidence does not establish fraud. Plaintiffs did not provide any evidence to 

REPORT AND RECOMMENDATION – Page 24

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demonstrate Plaintiffs’ reliance on the allegedly false misrepresentations. Plaintiffs also did not 

provide evidence to demonstrate that Defendant or its representatives knew the statements were 

false or made the statements recklessly as a positive assertion without any knowledge of their 

truth. Finally, Defendant’s statements during the Lemon Law proceedings are 

privileged from any tort litigation under Texas’ judicial-proceedings privilege. Accordingly, 

Plaintiffs have failed to plead with any particularity how Defendant or its 

representatives made fraudulent misrepresentations. Likewise, Plaintiffs failed to offer summary 

judgment evidence in support of their fraud claims. Therefore, the court recommends that 

Defendant is entitled to summary judgment on Plaintiffs’ fraud claims. 

G. Monetary Damages

Plaintiffs seek economic and actual damages in the amount of $138,643.42 for the

following: “(a) Repurchase of the Vehicle ($59,943.42); (b) Loss of Use ($60,000.00); (c) Rental 

cars, and other travel expenses ($11,300.00); and (d) Lost wages (40 hours @ 185.00/hour 

($7,400.00)).” (Dkt. #14 at p. 12). Plaintiffs also seek damages for mental anguish in an amount 

not less than $250,000.00 (Dkt. #14 at pp. 12–13). Defendant argues that, under the explicit 

language of the express warranty, Plaintiffs are not entitled to any of the economic or actual 

damages they seek, nor are Plaintiffs entitled to damages for mental anguish (Dkt. #29 at pp. 20–

23).

1. Limitation of Remedies/Repurchase of the Vehicle

As explained herein, Texas has adopted the UCC into its Business and Commerce Code. 

Texas allows contractual modification or limitation of remedies through § 2.719 of the Texas 

Business and Commerce Code. Section 2.719(a)(1) states: 

(1) the agreement may provide for remedies in addition to or in substitution for

those provided in this chapter and may limit or alter the measure of damages

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recoverable under this chapter, as by limiting the buyer’s remedies to return of the 

goods and repayment of the price or to repair and replacement of non-conforming 

goods or parts.” 

TEX. BUS. & COM. CODE § 2.719(a)(1) (emphasis added). Section 2.719(a) also provides that 

“resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, 

in which case it is the sole remedy.” TEX. BUS. & COM. CODE § 2.719(a)(2) (emphasis added).

Such “[l]imited and exclusive remedy provisions are enforceable under Texas law.” Pleasant 

Grove Indep. Sch. Dist. v. FieldTurf USA, Inc., 648 S.W.3d 608, 613–14 (Tex. App.—Texarkana 

July 1, 2022) (collecting cases). 

In relevant part, the Vehicle’s warranty states, in bold typeface: “Limitation of 

Remedies[:] Under the warranty, it is agreed that the sole exclusive remedy against Jaguar and its 

authorized retailers shall be for the repair or replacement of defective parts as provided herein.” 

(Dkt. #29, Exhibit B at p. 8). This provision is similar to that in Pleasant Grove, which states, in 

relevant part: “This warranty is limited to the remedies of repair or replacement, which shall 

constitute the exclusive remedies available under this warranty.” 648 S.W.3d at 614. Plaintiffs 

argue that limitations on remedies such as that contained in the express warranty are typically 

considered invalid under § 17.42 of the DTPA (Dkt. #30 at pp 21–22). Such argument is 

generally true where the claims are based on false, misleading, or deceptive acts or practices in 

the so-called laundry list under DTPA’s § 17.42 or unconscionable actions under DTPA’s 

§ 17.45(5). TEX. BUS. & COM. CODE §§ 17.42, 17.45, 17.46. However, as discussed, supra,

summary judgment is proper on Plaintiffs’ claim that Defendant engaged in false, misleading, or 

deceptive acts or practices under § 17.42. Thus, such a limitation on remedies is not invalid. 

Under the conspicuous terms of the express warranty, Plaintiffs’ remedies for breach of warranty 

are limited to repair or replacement. Accordingly, Plaintiffs are not entitled to the repurchase of 

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the Vehicle, a remedy that is excluded under the terms of the warranty, and the court 

recommends granting summary judgment on any claim for such damages. 

2. Consequential Damages

Additionally, the express warranty limits consequential damages in two separate sections. 

The first relevant section states, in bold typeface and all-caps: “Jaguar does not accept 

responsibility under any of the warranties in the Passport to Service for any consequential 

damage or commercial loss to the owner, or any incidental expenses, loss of time, or 

inconvenience.” (Dkt. #29, Exhibit B at p. 8). The second relevant section states, in bold 

typeface: “Jaguar and your retailer are not responsible for any time that you lose, for any 

inconvenience you might be caused, for the loss of your transportation, or for any other 

incidental or consequential damages you may have.” (Dkt. #29, Exhibit B at p. 9). 

Because the express warranty explicitly excludes consequential damages, Plaintiffs are 

not entitled to recover monetary damages for loss of use or lost wages. The only consequential 

damages Plaintiffs may be entitled to recover are some, if not all, of their rental cars and other 

travel expenses. Any such travel expenses will be limited to the terms of the trip interruption 

benefits provision, which, as recommended, supra, should survive summary judgment. However, 

the court recommends that Defendant is entitled to summary judgment on the remaining 

consequential damages Plaintiffs seek. 

3. Damages for Mental Anguish

Plaintiffs are seeking not less than $250,000.00 for the “high degree of mental pain and 

distress” they allegedly suffered (Dkt. #14 at pp 12–13). Plaintiffs argue that they are entitled to 

recover under Subsection (b) of Section 17.50 because Defendant’s actions were done 

“knowingly,” which would entitle Plaintiffs to “recover damages for mental anguish, as found by 

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the trier of fact, and the trier of fact may award not more than three times the amount of 

economic damages.” TEX. BUS. & COM. CODE § 17.50(b)(1). Section 17.50 of the DTPA 

provides the following consumer relief: 

(a) consumer may maintain an action where any of the following constitute a

producing cause of economic damages or damages for mental anguish:

(1) the use or employment by any person of a false, misleading, or deceptive

act or practice that is:

(A) specifically enumerated in a subdivision of Subsection (b) of Section

17.46 of this subchapter; and

(B) relied on by a consumer to the consumer’s detriment.

TEX. BUS & COM. CODE § 17.50(a)(1)(A)–(B). Subsection (b) of Section 17.46 includes a 

laundry list of actions, none of which Plaintiffs have brought in this lawsuit. As discussed, supra, 

there is no evidence that Defendant engaged in false, misleading, or deceptive acts or practices, 

let alone knowingly engaged in such action. 

Additionally, Defendant challenged Plaintiffs’ claim for mental anguish in its Motion for 

Summary Judgment (Dkt. #29 at p. 20, n.7). Tellingly, Plaintiffs do not contradict Defendant’s 

position, but rather argue that the consequential damages limitation provision is unenforceable 

(Dkt. #30 at pp. 21–22). However, as discussed, supra, this limitation in the warranty is 

enforceable. Thus, having been challenged by Defendant and not supported by evidence to the 

contrary from Plaintiffs, there is no genuine dispute as to any material fact that Plaintiffs may

recover mental anguish damages based on the allegation that Defendant knowingly engaged in 

false, misleading, or deceptive acts or practices. Accordingly, Defendant is entitled to summary 

judgment on Plaintiffs’ claims for mental anguish damages. 

H. Agency Law Theory

While not a cause of action, Plaintiffs raise the issue of agency law in their Amended

Complaint (Dkt. #14 at p. 12). Plaintiffs allege, in total, that 

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[a]t and during the time of the acts and/or omissions complained of herein, any

acts and/or omissions committed by an agent, representative, or employee of

Jaguar occurred within the scope of the actual or apparent authority of such

person on behalf of Jaguar. As such, Jaguar is therefore liable to Plaintiffs for the

acts and/or omissions of any such agent, representative, or employee, complained

of herein by virtue of such agency relationship.

(Dkt. #14 at p. 12). Meanwhile, Defendant argues that “[m]ost of Plaintiffs’ wrath in this case is 

directed toward parties who they have not even sued. Plaintiffs complain, for example, about 

employees at [the Facility] and a company called Urgently. These are independently owned 

companies, and neither one was an agent of [Defendant].” (Dkt. #29 at p. 25). 

The express warranty for the Vehicle states, “This New Vehicle Limited Warranty is the 

only express warranty applicable to your vehicle. Jaguar neither assumes, nor authorizes anyone 

to assume for it, any other obligation or liability in connection with this warranty.” (Dkt. #29, 

Exhibit B at p. 8) (emphasis added). Not only does the warranty explain that no one is authorized 

to act as an agent for Defendant, but as Defendant argues, the law prohibits such agency action. 

See Coffey v. Fort Wayne Pools, Inc., 24 F. Supp. 2d 671, 679 (N.D. Tex. 1988) (“Under this 

rationale, a GM dealership would be an agent of GM because GM exercised control over the 

dealership by limiting the dealers supply of vehicles to those which GM manufactured. However, 

it is well-settled that dealers in new automobiles are purchasers from the manufacturer and not 

agents of the manufacturer.”). Thus, the Facility’s employees and the repair work performed at 

the Facility were not actions that can be imputed to Defendant based on the theory of agency 

law. 

Additionally, Alabama and Texas law each prohibit distributors such as Defendant from 

controlling retailers’ work regarding warranties. The Texas Occupations Code provides that “a 

manufacturer or distributor may not directly or indirectly own an interest in, operate or control, 

or act in the capacity of a franchised dealer or dealership for the same type of motor vehicle that 

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the manufacturer manufactures or distributes or the distributor distributes.” TEX. OCC. CODE

§ 2301.476(c) (cleaned up). In Alabama, where the Facility is located, the law provides that it

constitutes [an] unfair and deceptive trade practice[] . . . for any manufacturer . . . 

to own an interest in a new motor vehicle dealership, to operate or control a 

dealership, to make direct sales or leases of new motor vehicles to the public in 

Alabama, or to own, operate, or control a facility for performance of motor 

vehicle warranty or repair service work. 

ALA. CODE § 8-20-4(3)(s) (cleaned up). Thus, Texas and Alabama law prohibits Defendant from 

forming a principal-agent relationship with the Facility. 

Further, Defendant has a franchise agreement with the Facility and other dealerships that 

expressly excludes a principal-agent relationship. An excerpt from the Jaguar Land Rover North 

America, LLC Dealer Agreement Standard Terms and Conditions provides the following: 

Independent Contractor 14.1 Dealer, for all purposes of this Agreement, is an 

independent contractor and Dealer is not the agent or representative of Company 

or its affiliates for any purpose. No other contractual relationship exists between 

Dealer and Company and Dealer has no contractual relationship with 

Manufacturer. Dealer is not granted any express or implied right or authority to 

assume or create any obligation on behalf of or in the name of Company or to 

bind Company in any manner whatsoever. 

(Dkt. #29, Exhibit N at p. 13) (emphasis added). Thus, the unambiguous terms of the franchise 

agreement with Defendant and the Facility clearly establish that there is no principal-agent 

relationship. 

The foregoing establishes that, by law and by agreement, there is no actual authority for 

anyone to act as an agent for Defendant. Plaintiffs, then, rely on the theory of apparent authority 

(Dkt. #30 at pp. 19–21). The case law Plaintiffs provided states that “a court examines the 

conduct of the principal and the reasonableness of the third party’s assumptions about authority.” 

Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 913 (Tex. App.—Dallas Mar. 31, 2008). 

Plaintiffs argue that apparent authority is established by their reasonable belief that the Facility 

and Jaguar Assistance Center had authority to act as agents of Defendant and through the 

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statements of Defendant (Dkt. #30 at pp. 19–21). Plaintiffs rely on the language of the warranty 

that tells consumers to utilize “authorized retailers . . . to repair or replace defective parts.” (Dkt. 

#30, Exhibit F at p. 8). Plaintiffs also rely on the language of the warranty that directs consumers 

to use a service called Jaguar Assistance Center (Dkt. #30 at pp. 20–21).

The court agrees with Defendant that, rather than “clothe [Jaguar] Land Rover retailers 

and the Jaguar Assistance Center with indicia of authority” to bind Defendant to an obligation or 

liability (Dkt. #30 at p. 20), the provisions cited by Plaintiffs merely “(a) confirm that retailers 

perform warranty work on covered vehicles; and (b) inform customers of the Customer 

Assistance Program.” Nowhere in the warranty does the language state that retailers or the 

Customer Assistance Program have the authority to bind Defendant to any obligation. Indeed, 

the warranty has conspicuous language to the contrary, stating that no one has the authority to 

bind Defendant to any obligation or liability. Moreover, any such principal-agency relationship 

between Defendant and the Facility would run contrary to the law. Thus, any alleged action that 

Plaintiffs impute to Defendant based on an agency theory is unfounded. 

CONCLUSION AND RECOMMENDATION

For the foregoing reasons, the court recommends that Defendant’s Motion for Summary 

Judgment (Dkt. #29) be GRANTED IN PART and DENIED IN PART as set forth herein. The 

court further recommends that Defendant’s Motion for Judgment on the Pleadings (Dkt. #21) be 

DENIED AS MOOT. Any request for relief not addressed by this report and recommendation 

should be denied as MOOT.

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific 

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finding or recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or refers to the 

briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the 

unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by 

the district court, except upon grounds of plain error, provided that the party has been served 

with notice that such consequences will result from a failure to object. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other 

grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).

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