A Texas court of appeals has upheld a jury verdict against an alarm company salesperson who was found guilty of violating the state’s Deceptive Business Practices law as an appellant.
According to the decision rendered by the 14th Criminal Court of Appeals of Texas in Harris County, defendant Marc Wakefield Dunham misrepresented himself to an elderly client as an employee of her existing security company.
The woman told the jury that she did not realize he was from a different company until she was signing the paperwork for the takeover, by which time a technician was already in the house performing the installation.
The transcript of the decision from the court reads as follows:
Dunham was a door-to-door salesman for Capital Connect. On or about June 15, 2016, Appellant [Dunham] rang the doorbell of Eloise Moody, an 81-year-old lady recently widowed and diagnosed with cancer. When Moody answered, Appellant pointed at the “Central Security Group” alarm sign in Moody’s front yard and said: “I’m here to update your security.”
Appellant also said, referring to the Central Security Group sign, “I’ll put a light on it, make it visible from the street” which he explained would be helpful to “update the neighborhood.”
Appellant was not wearing a uniform or name tag and did not say what company he worked for. Moody, therefore, understood Appellant to be employed by her alarm company (Central) and that he was intending to place a light on the sign in her front yard.
Appellant then stepped into Moody’s doorway prompting her to open the door further. As he did this, Appellant said: “Would you like me to pull off my shoes. I don’t know what your panel looks like.”
Still believing that Appellant was employed by Central, Moody told him the panel was “in the back of the house through the laundry, through the kitchen.” Moody testified that she would never have let Appellant enter her home if she had known he worked for a different company.
Appellant walked deep into the house, peeked at the panel in the laundry room and then asked, “Can we sit here and talk?” so he could use the kitchen tabletop to write on. With Moody sitting at the table, Appellant presented various new features to Moody and told her that the features and their installation would be free.
According to Moody, Appellant kept saying, “This is free. It won’t cost you anything.” Moody was still under the engineered impression that Appellant worked for her original alarm company. She would later find out that these “free” new features came with a contract that was far more expensive than her existing one.
Appellant then called Central to have Moody cancel her contract, and he told her that if they gave her any “flak” she should tell them that the Central hardware was “being taken out,” and hand the phone to him and tell them that he was her son. Although Moody later told Appellant that she could not do anything without her daughter’s approval, Appellant continued with the sale.
According to Moody, during this call, a Capital Connect technician summoned by Appellant had already arrived and was in the process of removing the Central system and rewiring the house for Capital’s hardware. Appellant also telephoned Capital Connect and had Moody speak with a representative. A recording of the call was admitted into evidence.
Moody said that she was currently paying Central. When the representative asked her if she was having a new alarm system installed because the prior company was going out of business, had been taken over, or was no longer able to perform monitoring services, Moody answered, “No, I’m just changing it up.”
The representative then asked if Moody understood that by accepting the offer, she would be changing alarm companies, and she responded, “That I will what” and “I’m not understanding you.” The representative said that Capital Connect is a separate company from Central, and Moody said “Yes.” Later during the call, Moody stated she was having difficulty hearing.
When Appellant presented her with the paperwork, she realized he didn’t work for Central, but she signed anyway and entered into a five-year agreement with Capital with a higher monthly cost—roughly double her service fees through Central. She also initialed next to the following statement: “I understand that Capital Connect has not bought, taken over or is in any way partnered with my current alarm monitoring company.”
She testified that she did not realize how much the new system was going to cost. A few days later, Moody canceled the new contract with Capital.
Appellant was charged with deceptive business practices pursuant to Penal Code § 32.42(b). Specifically, the information alleged that Appellant intentionally, knowingly, and recklessly:
(1) represented that a commodity or service was of a particular style, grade, or model, when it was another, by giving the impression to Eloise Moody that an alarm system was a Central Security Group system when it was actually a Capital Connect system;
(2) represented the price of the service falsely or in a way tending to mislead by telling Moody that a new alarm installation would be free when it would actually require her to sign a new contract at additional cost; and/or
(3) made a materially false or misleading statement in connection with the purchase or sale of a service by telling Moody that a new alarm installation would be free when such installation actually would require her to sign a new contract at additional cost.
He pleaded not guilty and was tried before a jury who found him guilty of the offense. The trial court sentenced Appellant to one year in the county jail, and the court of appeals affirmed.
