Essential Elements of a DTPA Claim in Texas

DECEPTIVE TRADE PRACTICES: 
   
What does a successful DTPA claim require? 

To prevail on a DTPA claim, the plaintiff must demonstrate (1) the plaintiff’s status as a consumer, (2) the defendant can be sued under the DTPA, (3) the defendant committed a wrongful act under the DTPA, and (4) the defendant’s actions were a producing cause of the plaintiff’s damages. Tex. Bus. & Com. Code §17.50(a) (West 2011); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) (“A consumer must, in order to prevail on a DTPA claim, . . . establish that each defendant violated a specific provision of the Act, and that the violation was a producing cause of the claimant’s injury.”).

To prove a DTPA action for failure to disclose information, the plaintiff must show (1) a failure to disclose, (2) which was known at the time of the transaction, (3) which was intended to induce the plaintiff into a transaction, and (4) that the plaintiff otherwise would not have entered the transaction if the information had been disclosed. Colonial Cnty. Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 517–18 (Tex. App.—Corpus Christi 2000, no pet.).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00672-CV - 12/1/11

Limitations Period for Claim under the Texas Deceptive Trade Practices Act (DTPA)

The statute of limitations for a DTPA claim is two years. Tex. Bus. & Com. Code Ann. § 17.565 (West 2011). A DTPA claim accrues when (1) the false, misleading, or deceptive act or practice occurred, or (2) the consumer discovered or in the exercise of reasonable diligence should have discovered the false, misleading, or deceptive act or practice. Id.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00672-CV - 12/1/11 

WHEN A BORROWER IS NOT A CONSUMER UNDER THE DTPA 

Prerequisites for Breach of Warranty Claim

   
BREACH OF WARRANTY CLAIM - NOTICE AND OPPORTUNITY TO CURE

To maintain an action for a breach of warranty, a buyer must notify the seller that a breach occurred within a reasonable time after he discovers or should have discovered any breach. See Tex. Bus. & Com. Code Ann. § 2.607(c)(1) (West 2009).

The burden of alleging and proving proper notice is on the buyer. Tex. Bus. & Com. Code Ann. § 2.607(c)(1); U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 200 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that notice requirement is better described as condition precedent for buyer’s cause of action than affirmative defense).
 
Failure to notify the seller of the breach, thereby allowing the seller an opportunity to cure, bars recovery on the basis of breach of warranty. See Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 189 (Tex. App.—Dallas 1996, no writ). A general expression of the buyer’s dissatisfaction, however, may be sufficient to comply with section 2.607. U.S. Tire-Tech, Inc., 110 S.W.3d at 201. And, ordinarily, notice is a question of fact to be determined by the trier of fact; it becomes a question of law only if no room for ordinary minds to differ exists. Carrol Instr. Co. v. B.W.B. Controls Inc., 677 S.W.2d 654, 657 (Tex. App.—Houston [1st Dist.] 1984, no writ). In addition, courts have applied the section 2.607 bar only to UCC breach of warranty claims. See Lochinvar Corp., 930 S.W.2d at 189 (holding that failure to notify the seller under 2.607(c)(1) of a breach, thereby allowing the seller an opportunity to cure, bars recovery on the basis of breach of warranty). Compare Sw. Lincoln-Mercury, Inc. v. Ross, 580 S.W.2d 2, 4 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (holding that where breach of warranty is foundation of claim for treble damages under DTPA, buyer must notify seller that breach of warranty has occurred, in accordance with section 2.607(c)(1)) with Mobil Min. & Minerals Co. v. Texas Auto Pool, Inc., 01-91-00093-CV, 1992 WL 211503, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31, 1992, writ denied) (mem. op., not designated for publication) (holding that section 2.607(c)(1) does not bar non-breach of DTPA warranty claims).

Section 2.607, therefore, would not be a bar to Hull’s fraud, negligence, negligent misrepresentation, breach of contract, and non-breach of DTPA warranty claims. We conclude that the trial court erred in granting the defendants’ traditional summary judgment motion.

 SOURCE: Houston Court of Appeals for the First District - 01-10-00724-CV - 5/12/11