Texas DTPA Lawyer – Thomas P. Finley, Jr. Attorney at Law has represented many clients since 1986 in claims pursuant to the Texas Deceptive Trade Practices Act.
The Texas Deceptive Trade Practices-Consumer Protection Act is commonly referred to as the Texas DTPA and can be found in the Texas Business and Commerce Code chapter 17. The DTPA has had many legislative changes through the years.
The purpose of the DTPA is 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.
An important feature of the Texas DTPA is that it SHALL be liberally construed to promote its underlying purposes to PROTECT CONSUMERS.
The DTPA has two (2) definitions which are for “Consumer” and “Business Consumer” as follows:
A “Consumer” means 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.
A “Business consumer” means an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services for commercial or business use.
Basically any “person” which includes an entity or business that violates any of the provisions of the DTPA. A “person” is defined as “an individual, partnership, corporation association or other group, however organized.”
There are four most common actionable areas that can be brought against a defendant that committed a wrongful act or acts that are shown to be a producing cause of economic damage or mental anguish damages. The main four kinds of claims are 1) Any person which includes a business making a false, misleading, or deceptive act or practice as specifically listed in Section 17.46 of the Texas Deceptive Trade Practices act (the “laundry list”) which is relied upon by a consumer to the consumer’s detriment; 2) a breach of an express or implied warranty; 3) any unconscionable action or course of action by any person; or 4) the use or employment by any person of an act or practice in violation of Chapter 541 of the Texas Insurance Code.
The most common violations of the Texas DTPA that are considered false, misleading or deceptive acts or practices include, but are not limited to, misrepresenting the characteristics of goods or services; representing that an agreement confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law; and/or failing to disclose information concerning goods or services known at the time of the transaction, if the 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. The “laundry list” in Section 17.46 of the Texas DTPA contains more violations not mentioned above.
In addition to the damages provided for in the Texas Deceptive Trade Practices act a consumer can also bring a cause of action through a law other than the DTPA called “tie-in-statutes” if the facts of the case apply.
A written demand/notice letter is required. A basic requirement before a consumer and/or business consumer can file a lawsuit under the Texas DTPA is giving written NOTICE of the claim to the person or business at least sixty 60 days before filing the suit advising the person or business 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 defendant.
The defendant has four options after receiving the demand/notice letter: 1) pay the amount requested; 2) ignore the notice; 3) send the plaintiff a proposed settlement within 60 days; or 4) wait until a lawsuit is filed and then file a settlement proposal within 90 days of filing an original answer.
The settlement offer must include an offer to pay the amount of the consumers claim for damages and the consumer’s reasonable and necessary attorney’s fees incurred as of the date of the offer. The consumer’s rejection of a reasonable settlement offer could cause the Court to limit damages and attorney’s fees recovered.
1) After filing the lawsuit the Court may compel MEDIATION; 2) The lawsuit must be filed within two years after the date of the alleged violations in most cases; 3) It is possible that the Texas DTPA could be preempted by federal law or other state law; 4) “AS IS” agreements and a defendant’s reliance on government information might be a defense claimed; and 5)
Economic damages are recoverable which are defined as “compensatory damages for pecuniary loss, including costs of repair and replacement.” It is also possible in some circumstances to be awarded an injunction if needed, an order restoring property and other relief. If successful in Court the court costs and reasonable and necessary attorney’s fees will be awarded to the consumer. There are also circumstances when the defendant is found by the Court to have acted knowingly that the consumer could recover damages for mental anguish and up to three times the amount of economic damages. If the defendant is found by the Court to have acted intentionally the consumer may be awarded by the Court a total of up to three times economic damages and up to three times mental anguish damages. These “treble damages” are based on a firm finding by the Court of “knowingly” and/or “intentionally” based upon the evidence. If the Texas DTPA claim is brought through a “tie-in” statute there might be additional damages available.
If the court finds that the consumer brought the DTPA action and it was groundless in law or brought in bad faith, or brought for the purpose of harassment, the Court can award to the Defendant reasonable and necessary attorney’s fees and costs of court.
1) Contact me so we can discuss your case and whether you desire to retain me as your lawyer.
2) Be prepared to fill out my Client Questionnaire. In addition to the basic information about you and the relevant parties, you must provide a very important DIARY OF EVENTS. The Diary of events is sometimes time-consuming but is very important in the preparation of your case. I also refer to this as a “timeline of events” and it needs to be detailed with the dates as best you can remember.
3) We must both sign a written fee agreement. Regardless of our discussions or correspondence I will not be considered retained or your lawyer without a signed written fee agreement.
