Insurance Litigation

Texas DTPA 101: Texas Deceptive Trade Practices-Consumer Protection Act

This article is intended to focus on certain basic terms and concepts of the Texas Deceptive Trade Practices-Consumer Protection Act. Chapter 17 of the Texas Business and Commerce Code covers deceptive trade practices. More specifically, Subchapter E focuses on deceptive trade practices and consumer protection. Section 17.41 provides that the subchapter may be cited as the Deceptive Trade Practices-Consumer Protection Act (typically abbreviated and commonly referred to as “DTPA”). A plaintiff must demonstrate three things in order to bring, and more importantly—succeed—in a DTPA lawsuit. The plaintiff must first show that he or she meets the definition of a “consumer” as defined in the DTPA. Next, the plaintiff must prove that defendant committed one of the actions specified in Section 17.50(a) (1), (2), (3), or (4). Lastly, the plaintiff must show that defendant’s action was a “producing cause” of the consumer’s damages.

DEFINITION OF A CONSUMER: Section 17.45(4) of the DTPA defines “consumer” as “an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more.” Within that definition of consumer, it is necessary to take a closer look at how “goods” and “services” are defined by the DTPA. Section 17.45(1) defines the term “goods” as “any tangible chattels or real property purchased or leased for use.” Section 17.45(2) defines the term “services” as “work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods.” By way of example, my mother who recently bought a dresser for her bedroom would meet the definition of a consumer because: she is an individual who acquired goods (the dresser) by purchase (charging the furniture on a credit card).

DECEPTIVE ACTS OR PRACTICES: Section 17.46(b) contains a list of 31 enumerated acts or practices that are prohibited under the DTPA (commonly referred to as “the laundry list”) and provides that the term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the acts that are immediately listed in that section. This article will only highlight some of those acts, but the full list may be found at the following link:

Some of the more common deceptive acts that a consumer may encounter in a transaction involve a violation of the laundry list, such as:
(1) Section 17.46(b)(7): representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(2) Section 17.46(b)(9): advertising goods or services with intent not to sell them as advertised;
(3) Section 17.46(b)(13): knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service;
(4) Section 17.46(b)(14): misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
(5) Section 17.46(b)(22): representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced; and
(6) Section 17.46(b)(24): failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.

Section 17.50(a) provides that each act or practice enumerated in Section 17.46(b) is actionable under the DTPA. Not only does the consumer have to establish that a deceptive act or practice occurred, the consumer must also demonstrate that he or she relied on the act or practice to the consumer’s detriment. If a consumer relied on a misrepresentation by a seller, then the consumer’s purchase of the goods becomes the basis of the complaint. A consumer may also maintain an action where any of the following acts are the cause of economic damages or damages for mental anguish: (1) breach of an express or implied warranty; (2) any unconscionable action or course of action by any person; or (3) the use or employment by any person of an act or practice in violation of Chapter 541 of the Insurance Code. The DTPA awards court costs and reasonable and necessary attorneys’ fees to each consumer who prevails.

DAMAGES: Section 17.50(b)(1) provides that in a suit filed under the DTPA, each consumer who prevails may obtain the amount of economic damages found by the trier of fact. If the trier of fact finds that the conduct of the defendant was committed knowingly, then the consumer may also recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of economic damages. In the alternative, if the trier of fact finds the conduct was committed intentionally, then the consumer may recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of damages for mental anguish and economic damages. Section 17.45(11) defines economic damages as “compensatory damages for pecuniary loss, including costs of repair and replacement” and expressly excludes from the definition of exemplary damages, those damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.

PRE-SUIT NOTICE: Section 17.505(a) states that prior to filing a suit seeking damages under Section 17.50, a consumer shall give written notice to the person (potential defendant) at least 60 days before filing the suit advising the person in reasonable detail of the consumer’s specific complaint and the amount of economic damages, damages for mental anguish, and expenses, including attorneys’ fees, if any, reasonably incurred by the consumer in asserting the claim against the would-be defendant. During the 60-day period, the consumer may be presented with a written request to inspect the goods that are the subject of the consumer’s action.

LIBERAL CONSTRUCTION: Section 17.44(a) provides that the DTPA shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.

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