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Here is the Primer in a Nutshell: (Too many euphemisms?)
- Have to be a Consumer: Have to buy or lease something. Can be goods, materials or services.
- Proper Defendant: Someone who sold or leased goods, materials or services.
- Defendant Committed DTPA Violation: This can include any one of the 24 subparts of Section 17.46(b) or anyone of the numerous "Tie In" Statutes. However, here are the most common violations and most probably the ones affecting you: Representing the characteristics or qualities of the good or service to be one thing when they were of another.
- The misrepresentation or violation of the DTPA causes injury or damage to you.
That's it. That is the DTPA in a Nutshell. Naturally, it get's way more complicated than that but that is what every case starts with if you drill down to the basics.
There are some SPECIAL aspects of the DTPA such as:
- You get attorneys' fees. No matter how big or small your claim is, the DTPA doesn't just "allow" attorneys' fees. It AWARDS them if a violation occurs.
- You can get ADDITIONAL DAMAGES. These are extra damages that can be awarded if the Defendant commits a DTPA Violation "KNOWINGLY". And Knowingly means what it sounds like it means. That the Defendant was aware they were making a misrepresentation when they made it.
- TREBLE DAMAGES. This is one of the most misunderstood parts of the DTPA even for lawyers. First, Treble Damages or three times the award or Additional Damages are not automatic. The jury or fact finder CAN award UP TO Three Times the actual damages. Or they can award nothing. Zero. Not one dime. It is optional and in no way is it definite, sure or certain. In addition, the TREBLE part is the LIMIT of what you can recover. It means that you can get a TOTAL award of THREE (3) times your actual damages. Or your actual damages plus twice again that amount. Example: If you win $10,000 in actual damages, you can recover ADDITIONAL DAMAGES of $20,000 or a TOTAL award of $30,000.
- TREBLE DAMAGES or ADDITIONAL DAMAGES do not include court costs or attorneys' fees.
- ADDITIONAL DAMAGES allow evidence of mental anguish after a KNOWING violation. Conversely, there are no MENTAL ANGUISH damges, inconvenience damages or damages because you went through a hell of a lot of trouble at the ACTUAL damages phase. You only get to present evidence of these injuries if the jury finds the Defendant committed a DTPA violation KNOWINGLY.
There are countless other subissues and nuances about the DTPA which is why it is always best to consult an attorney on your claim.
The DTPA or Deceptive Trade Practices Act is the Consumer Law in Texas designed to prevent consumers from being cheated. In other states, the DTPA is called the Consumer Law, but in Texas, we still refer to it as the Texas Deceptive Trade Practices Act.
So what is so great about this consumer law? The key fundamental element is that it allows the Consumer to recover his or her attorneys' fees if a defendant commits a violation of the Texas Deceptive Trade Practices Act. That is powerful.
Take for example a case I had a few years back. An avid fisherman buys what is supposed to be a topline boat that he pays over $30,000 for, not including the engines. The boat seller represents that the boat is perfect for offshore fishing and the hull should last for years. The boat starts to split and develop cracks. The fisherman wants his money back and for the boat seller and boat manufacturer to take the boat back. They refuse. At that point, he can go to a lawyer and sue the seller and manufacturer for contract claims, but contract claims allow a wide assortment of defenses. Attorneys fees are recoverable, but the questions a jury sees are difficult to understand. He can also sue them for negligent misrepresentation and negligence, but this cause of action does not allow recovery of attorneys' fees.
If he uses the Deceptive Trade Practices Act, he can recover the costs of repair, the loss of use of the boat and get his attorneys' fees and there are little to no defenses available as there are in contract claims.
Better yet, take a senior client who survived the Holocaust when her parents sent her and her brother into Switzerland in the 1930s. Ruth bought a travel cancellation policy and paid several hundred dollars for it. When the trip came, an emergency occurred when her granddaughter could not make the trip because of complications in her pregnancy. Ruth attempted to use the trip cancellation policy, but was denied. Even though her damage amount, the trip costs were small - around $3500, the Deceptive Trade Practices Act provided her the means to hire an attorney and rectify the wrong.
The Deceptive Trade Practices Act is so powerful on attorneys fees that if a violation of the DTPA or Deceptive Trade Practices Act is found by the jury, the attorneys fees MUST be awarded. The only question is how much. In the case of Ruth, the attorneys' fees far exceeded the value of the claim and were more persuasive than the claim itself.
Consequently, you can purchase a small item like say a dishwasher and if there was a Deceptive Trade Practice violation, you can recover the amount of the purchase plus attorneys fees even if the legal fees are $10,000 and the dishwasher was only $300.
It is fundamental that a violation of a Deceptive Trade Practices Act includes a false, misleading or deceptive act or practice. The most common violation is representing that something has characteristics and qualities it does not have. There are multiple others, but this essential claim is found in most every Deceptive Trade Practices Act case.
There is also the classic "bait and switch". A "bait and switch" is where the sales pitch is for one thing but you get another instead. My client once bought a boat and was told he was getting the current year model. He bought the boat and when he took it in for repairs the following year, they listed it as the wrong year model. Turns out they listed the model year correctly and his purchase paperwork showed it was the new model year when it was not. Under the DTPA, this is a violation and constitutes a false, misleading or deceptive practice or act. The boat dealer paid for his damages which were the difference between the cost of the new model and the cost of the older model. In addition, they paid additional damages and his attorneys' fees to that point.
A very powerful, politically connected homebuilder in Texas built and sold some houses to clients of mine. The homes were in the $300,000 to $350,000 range when sold and appeared to be well built, stylish homes in Central Texas. The homeowners moved into their homes and later that fall, when the rains began, were flooded 3 times in the first year of ownership. The large homebuilder denied any responsibility for the flooding or damage and I was contacted. We filed suit against the homebuilder and the developer and were met with complete resistance. Neither the homebuilder or the developer took any responsibility for the flooding damage. It was clear these houses would flood again but still, not one penny was offered to the homeowners. During discovery, it was learned that the builder had found one of the homes down the street covered by one of the floods that came from the nearby farm fields that overflowed into the neighborhood. The builder then added an additional 4 inches of concrete to the existing slab in order to elevate the living floor level above the high water mark observed in the construction phase. Not one engineer or hydrologist was consulted nor did they try to discover where the water came from, why it was entering the neighborhood or what could be done to prevent future flooding. This major Texas homebuilder did nothing then or since then to change the massive water flow that essentially covered roughly 5 acres of the subdivision in 18 inches to 24 inches of water. Even through the week plus trial, there was no offer to settle. Finally, the jury came back and awarded everything we asked for for each homeowner plus all of their attorneys' fees. Then, the next day, the jury awarded $2,500,000 in additional damages under the Deceptive Trade Practices Act. According to the lifelong resident judge of the case, this was the first punitive damage award ever in Guadalupe County.
In addition, if a jury finds that the defendant did commit a Deceptive Trade Practices Act violation, then a second question can be asked whether the defendant committed the Deceptive Trade Practices Act violation knowingly. This means that the defendant knew and had actual awareness of the violation of the Deceptive Trade Practices Act at the time of the sale or lease to the consumer. If the jury finds that the defendant committed a Deceptive Trade Practices Act violation KNOWINGLY, then they are then asked to award "ADDITIONAL DAMAGES". These ADDITIONAL DAMAGES are just a polite name for punitive damages. The jury will be allowed to consider many of the same elements they consider when awarding punitive damages in a gross negligence or malice case.
These ADDITIONAL DAMAGES have a limitation of twice again the amount of the actual damages awarded the consumer. There are also other limitations for very small amounts like the dishwasher, but for most items, the ADDITIONAL DAMAGES are limited to twice the amount of the actual damages, not including attorneys' fees, awarded the consumer. So if the jury awarded $30,000 for the boat to the fisherman, they could then award say $150,000 for the ADDITIONAL DAMAGES. The fisherman would only be allowed to keep an additional $60,000 or a total of $90,000 not counting attorneys' fees.
NEW PHONE & FAX: Phone: 409 813 1443 Fax: 409 813 1468