DTPA PRIMER

 

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.

 

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.