Texas DTPA

Question 1

Application of the DTPA

Answer 1

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

Question 2

Waiver of DTPA

Answer 2

Generally cannot be waived in TX

Question 3

Valid DTPA waiver in TX

Answer 3

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”

Question 4

As is disclaimer

Answer 4

is not a waiver of the DTPA

Question 5

Remedies are Cumulative

Answer 5

• 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

Question 6

Who can bring a DTPA claim?

Answer 6

1. public entities like the attorney general

2. private parties that are “consumers”

Question 7

Consumer

Answer 7

1) must seek or acquire
2) by purchase or lease
3) goods or services

Question 8

Seek or Acquire

Answer 8

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

Question 9

By Purchase or Lease

Answer 9

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

Question 10

Goods or Services

Answer 10

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

Question 11

Exemptions to DTPA

Answer 11

1. Business Consumer

2. statutory Exemptions

Question 12

Business Consumer

Answer 12

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

Question 13

Statutory Exemptions to DTPA

Answer 13

1. publication of advertisement by newspaper without knowledge of the false, misleading, or deceptive nature of the publication
2. Professional Services
3. Personal Injury Claims
4. Transactions over $100,000 based on written contracts
5. transactions over $500,000

Question 14

Professional Services Exemption to DTPA

Answer 14

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

Question 15

Transactions over $100,000 based on written contracts - Exemption

Answer 15

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

Question 16

Who may be sued under the DTPA

Answer 16

-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

Question 17

4 claims under the DTPA

Answer 17

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

Question 18

The Laundry List Claim under DTPA

Answer 18

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)

Question 19

Unconscionability claim under DTPA

Answer 19

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

Question 20

Breach of Warranty claim under DTPA

Answer 20

• 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

Question 21

Insurance Code

Answer 21

Claim for violation must be established outside of the DTPA

Question 22

Defenses and claim resolution under the DTPA

Answer 22

1. 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
2. Can prove that violation was not the producing cause of the consumer’s damages
3. Motion to compel mediation- within 90 days of service
4. arbitration clause provisions are enforceable

Question 23

Pre-suit notice of DTPA claim

Answer 23

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

Question 24

Settlement of DTPA claim

Answer 24

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

Question 25

DTPA claim SOL

Answer 25

2 years or 2 years after the consumer discovered or with reasonable diligence should have discovered the act or practice

Question 26

Remedies for DTPA claim

Answer 26

1. economic damages: compensate for pecuniary loss, including repair or replacement
2. mental anguish damages: if the trier of fact determines the D acted knowingly, the consumer may also recover mental anguish damages.

Question 27

Additional DTPA damages

Answer 27

If D acted knowingly: the consumer may be awarded up to 3x the economic damages

If D acted intentional: the consumer may be awarded up to 3x the economic and mental anguish damages

Question 28

Producing cause

Answer 28

A consumer must show the the D’s conduct was a producing cause of encomium of damages for mental anguish

Can be a substantial factor in bringing about the injury - easier standard than proximate cause

If “as is” provision, then producing cause may be negated if bargained for transaction

Question 29

Equitable remedies

Answer 29

The DTPA also provides for injunctions, recession, restitution, and any other relied which the court deems proper

Question 30

DTPA Attorney Fee’s

Answer 30

Consumer’s AF: must be in a dollar amount and not a percentage of recovery. Will be awarded if consumer prevails

Defendant’s AF: will recover if the action was groundless, brought in bad faith, or brought for the sole purpose of harassment

Question 31

Actual Damages

Answer 31

which are more broad than economic damages, may be recovered in cases brought under tie-in statutes.

Includes all compensatory damages, as well as damages for mental anguish and pain and suffering

If claim brought under tie-in statute, consumer may recover any actual damages incurred.

Can still 3x the economic damages that are part fo the actual damages