Texas DTPA Flashcards
(31 cards)
Application of the DTPA
it is liberally construed to protect consumers against false, misleading and deceptive business practices, unconscionable actions, and breach of warranty, and to provide efficient and economical procedures to secure such protection
Waiver of DTPA
Generally cannot be waived in TX
Valid DTPA waiver in TX
Will be valid if it is written, signed by a consumer represented by counsel, bold and conspicuous and identified by the heading “Waiver of Consumer Rights”
As is disclaimer
is not a waiver of the DTPA
Remedies are Cumulative
- remedies provided by the DTPA are in addition to remedies provided by any other law, not exclusive
- No double recovery permitted for a single act or practice that is actionable under more than one theory of recovery
- If there are different acts or practices resulting in different damages, cumulative recovery is permissible
Who can bring a DTPA claim?
- public entities like the attorney general
2. private parties that are “consumers”
Consumer
1) must seek or acquire
2) by purchase or lease
3) goods or services
Seek or Acquire
Acquired: someone who buys something and takes possession of it
-One may also acquire goods or services where the objective of a transaction was to benefit that person (like a tenant with respect to services purchased by landlord)
Mere incidental beneficiary is NOT a consumer
By Purchase or Lease
gratuitously service will not count
One who receives goods or services as a gift is a consumer if the gift giver purchases the gift or services
Goods or Services
Goods: tangible things including real estate and living animals
Not goods: intangibles, like stocks or money
Services: includes repair or construction contracts, insurance contracts, and professional services
Not service: a person borrowing or seeking to borrow money is not a consumer
Exemptions to DTPA
- Business Consumer
2. statutory Exemptions
Business Consumer
a business consumer with at least $25 million in assets or that is owned or controlled by a corporation or entity with such assets, is not a consumer for DTPA purposes
The state or state agency is not a business consumer
Statutory Exemptions to DTPA
- publication of advertisement by newspaper without knowledge of the false, misleading, or deceptive nature of the publication
- Professional Services
- Personal Injury Claims
- Transactions over $100,000 based on written contracts
- transactions over $500,000
Professional Services Exemption to DTPA
DTPA does not apply to claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill
Exceptions to the Exemption: will be subject to DTPA
1) an express misrepresentation of a material fact that cannot be characterized as opinion, advice, or judgment
2) failure to disclose information concerning goods and services
3) an unconscionable action
4) breach of an express warranty
Transactions over $100,000 based on written contracts - Exemption
does not apply to a transaction involving the consumer’s residence
can be an accumulation of related transactions to the same project with consideration more than $100,000
Who may be sued under the DTPA
-Immediate parties may be sued w/o privity (buyer suing seller real estate agent)
-Remote Parties may only be sued if misrepresentation directly reached buyer; “In connection with”;
Manufacture of piping in house, buyer can only sue if buyer was given a brochure with misrepresentation
- the goods or services purchased must form the basis of the complaint
- An agent who violates the DTPA may be individually liable, even if he was acting in a representative capacity
4 claims under the DTPA
A consumer may maintain an action for any of the following that cause economic damages or damages for mental anguish:
1) the use of false, misleading, or deceptive act or practice that is specially enumerated- The Laundry List , and is relied on by consumer to her detriment
2) breach of an express or implied warranty
3) any unconscionable action; or
4) the use of any act or practice that violated a chapter of the insurance code dealing with unfair methods of competition and unfair deceptive acts
The same act may give rise to more than one of these four claims
The Laundry List Claim under DTPA
Over 30 but most commonly tested are:
1) general misrepresentation- D must make a statement of fact (not mere opinion) regarding goods or services that is inaccurate or false
2) misrepresentations regarding legal rights- violation when the seller of goods or services misrepresents the nature of the agreement or the rights and remedies available
3) failure to disclose- requires 1) knowledge by D of information regarding goods or services; 2) nondisclosure of this information; 3) an intent to induce the consumer to enter into the transaction; and 4) causation (consumer would not have entered transaction if it had been disclosed)
Unconscionability claim under DTPA
an act or practice that takes advantage of a consumer’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree and to the consumer’s detriment
Determined at the time of sale
No need to prove intent by D
Breach of Warranty claim under DTPA
- helps enhance damages for normal breaches of existing warranties
- DTPA does not create any warranties, general law will govern the applicability of the warranties but the DTPA provides a vehicle for a breach of warranty claim to be brought
Ex of warranties: implied warranties of title, merchantability, and fitness, good and workman like performance
Insurance Code
Claim for violation must be established outside of the DTPA
Defenses and claim resolution under the DTPA
- defendant’s reliance on written information provided by another. D must show that he gave the consumer reasonable and timely written notice of the D’s reliance
- Can prove that violation was not the producing cause of the consumer’s damages
- Motion to compel mediation- within 90 days of service
- arbitration clause provisions are enforceable
Pre-suit notice of DTPA claim
A consumer must give the D at least 60 days written notice before filing suit
- must include the amount of damages and give reasonable details about the complaint
- if impractical it will be waived
Settlement of DTPA claim
The D may tender an offer of settlement within 60 days after receipt of notice, or within 90 days after filing an answer
a rejected settlement offer that is substantially the same as damages found by the trier of fact limits the consumer recovery to the lesser of the amount tendered or the amount found by the trier of fact
