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Everett v. TK-Taito11/3/2005
of injury that is compensable under the DTPA. See id.
The Everetts' pleading, like the plaintiffs' pleading in Rivera, does not plead facts demonstrating the type of injury that is compensable under the DTPA. So far, according to the Everetts' pleadings, they have received the benefit of their bargain; they were promised and they received seat belt buckles that latched and provided sufficient restraint. Although the Everetts generally pleaded that the TK-52 buckles "are defective," they have not identified in their pleading any way in which the TK-52 buckles in their vehicles performed differently from the way Appellees represented the buckles would perform. They have not pleaded characteristics or benefits that the seat belts were represented to have but did not have. In other words, although allegedly defective, the TK-52 buckles in the Everetts' vehicles have apparently functioned as represented for the past decade. Likewise, although the Everetts pleaded that it would cost $500 per vehicle to replace the TK-52 buckles, they have not pleaded facts demonstrating a failure that necessitates replacement and, indeed, they have not replaced the buckles in their vehicles. At some point, potential loss-of-benefit-of-the-bargain injuries and potential cost-of-repair or replacement injuries from a defect that has not manifested itself simply become too remote in time to constitute an "injury" for statutory standing purposes under the DTPA. Accord Polaris, 119 S.W.3d at 341; see also Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 362 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (noting that claim for benefit-of-the-bargain damages based on unmanifested defects "looks suspiciously like a claim for fear of future injury to property, which Texas has rejected"). Thus, because the Everetts have not pleaded facts that would satisfy the language of the statute requiring an allegation of an economic injury, the Everetts do not have statutory standing to assert a DTPA claim.
We are aware that Florida has recognized a plaintiff's standing to bring suit for an unmanifested defect under that state's equivalent of the DTPA. See Collins, 894 So.2d at 989-90 (recognizing standing to sue for diminished value of vehicle under Florida equivalent of DTPA). The Collins court summed up the issue it faced stating, "This case turns on a relatively simple question, at least as to damages--Is a car with defective seatbelt buckles worth less than a car with operational seatbelt buckles?" Id. at 991. Here, however, the Everetts make no allegations in their pleadings that the TK-52 buckles in their vehicles are not operational. Thus, we decline to follow the analysis of the Collins court.
D. Constructive Trust
A constructive trust is an equitable remedy used to prevent unjust enrichment. Medford v. Medford, 68 S.W.3d 242, 248 (Tex. App.--Fort Worth 2002, no pet.); Teve Holdings, Ltd. v. Jackson, 763 S.W.2d 905, 908 (Tex. App.--Houston [1st Dist.] 1988, no writ). To establish that a constructive trust exists, the proponent must prove (1) breach of a special trust, fiduciary relationship, or actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing to an identifiable res. Mowbray v. Avery, 76 S.W.3d 663, 681 n.27 (Tex. App.--Corpus Christi 2002, pet. denied). The proponent of a constructive trust must strictly prove the elements necessary for the imposition of the trust. See, e.g., Ginther v. Taub, 675 S.W.2d 724, 725 (Tex. 1984) (requiring strict proof of unfair conduct or unjust enrichment on the part of the wrongdoer). Whether a constructive trust should be imposed must be determined by a court based on the equity of the circumstances. Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999). Its sco
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