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In Texas, one of the most powerful consumer protections is the Texas Deceptive Trade Practices Act ("DTPA"). The DTPA is specifically designed to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty. Moreover, the DTPA provides consumers with an efficient and economical procedural "road map" to secure such consumer protections.
There are four requirements a plaintiff must establish to bring a cause of action under the DTPA. A plaintiff must: (1) Establish "consumer" status as defined by the DTPA; (2) Establish a violation of the DTPA (as enumerated in the DTPA); (3) Establish that the violation of the DTPA was the producing cause of plaintiff's damages; and (4) Establish relevant damages caused by the violation of the DTPA. The following is a brief overview of the aforementioned requirements necessary to bring a cause of action under the DTPA.
Step one, establish "consumer" status as defined by the DTPA. The DTPA defines a "consumer" as a person who (1) seeks or acquires (2) by purchase or lease (3) any good or service. "Consumer" status may extend to an intended beneficiary if the good or service was purchased for the benefit of the intended beneficiary. Notably, the Plaintiff's "good or service" which was "purchased or leased" must form the basis of the consumer's DTPA complaint. In other words, the act in question must have occurred in connection with the consumer transaction.
Step two, once consumer status is acquired, establish a violation based on the specific claims listed in the DTPA. If the underlying complaint does not violate the specific claims listed in the DTPA, it is not a DTPA violation. The available claims include: (1) Misrepresentation of Characteristics; (2) Misrepresentation of Quality; (3) Misrepresentation of Legal Rights; (4) Failure to Disclose; (5) Breach of Warranty; and/or (6) Unconscionability. Each available claim has its own elements and requirements which must be met in order to bring a cause of action.
For example, to establish any misrepresentation claim, a plaintiff must establish that he or she relied on the act or practice in question and the plaintiff's reliance on defendant's act or practice was to the plaintiff's detriment. Moreover, the DTPA does not create warranties. Therefore, any breach of a warranty claim brought under the DTPA must be established under either a statute or the common law. For example, a UCC Implied Warranty of Merchantability ensures that a seller "sells goods of the kind" and that the "goods are suitable for their ordinary purpose." The breach of an Implied Warranty of Merchantability may be actionable under the DTPA as a breach of warranty action if the other DTPA requirements are met.
Step three, establish that the violation or breach of the DTPA was a producing cause of damages. The "producing cause" is defined as a substantial factor which brings about the injury and without which the injury would not have occurred.
Finally, step four, establish that the damages were incurred by the producing cause. Once established that the plaintiff incurred damages due to the defendant's DTPA violation, a plaintiff may recover: (1) General Economic Damages; (2) Mental Anguish Damages (only if the conduct was committed knowingly); (3) Reasonable and Necessary Attorney's Fees (only if Plaintiff prevails); (4) Up to Triple Economic Damages (if the conduct was committed knowingly); and (5) Up to Triple Mental Anguish Damages and Up To Triple Economic Damages (if the conduct was committed intentionally).
While there are numerous elements that must be met to bring an action under the DTPA, Texas has done a masterful job of creating a clear and concise "road map" for consumers to know whether they have a possible cause of action. However, it is important to contact your attorney so that he or she may guide you through the facts and advise you as to whether you have an actionable cause of action under the DTPA.
Note: This is not a comprehensive list of all requirements, elements, defenses, and/or exceptions applicable to the DTPA. This is only intended to be a limited summarization of the key characteristics of the DTPA.
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