DTPA Flashcards
What are the elements of a prima facie DTPA Case???
- Consumer Status
- DTPA Violation (17.50)
- D’s actions were a producing cause of P’s damages.
What is Consumer Status?
Seeks or acquires; goods or services; by purchase or lease.
What is a 17.50 violation?
- Laundry List
- Warranties (DTPA does not give rise to warranties by itself)
- Unconscionable act
Definition of Seeks or Acquires?
- Willing Buyer
- Ability to purchase
- Made in good faith
Intended 3rd party beneficiary
3rd parties are customers if the good or service was purchased with the intent to benefit the 3rd party.
Does not include incidental beneficiaries.
3 most common laundry list violations
(5) Product had approval or other characteristics which they do not.
(7) product had certain quality which it does not.
(24) Disclosure: Did not disclose in order to induce the customer to buy. If disclosed would not have bought.
What is an unconscionable act?
An act or practice which, to the customers detriment, takes advantage of the lack of knowledge, ability, capacity or experience of the consumer to a grossly unfair degree.
Statute of limitations (DTPA)
2 year from date of deceptive act or discovery of deceptive act.
Elements of a valid waiver?
- In writing and signed by consumer; 2. does not create a disparate bargaining position; 3. retained counsel for this specific transaction.
Pre suit notice
60 days UNLESS statute of limitation is about to expire OR the DTPA claim is a counter claim.
Contents of a pre suit notice
Specific complaint; Amount of economic damages; Damages for mental anguish; Expenses including attorney fees
Different types of damages?
Economic
Mental Anguish
Actual (Economic + Mental Anguish)
Attorney Fees
Damages if Intentionally committed?
3X (economic +mental anguish)
Damages if Knowingly committed?
(3 X economic ) + mental anguish
Definition of intentional?
means actual awareness of the falsity, deception, or unfairness of the act or practice
Definition of knowingly?
“Knowingly” means actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim
Damages for Tie-in statutes?
3 X actual damages regardless of intent.
What is an express warranty?
Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain
What is the implied warranty of merchantability?
fit for the ordinary purposes
Implied warranty of fitness for a particular purpose
- Seller at the time of contracting has reason to know any particular purpose for which the goods are required
and
2.The buyer is relying on the seller’s skill or judgment to select or furnish suitable goods
Exclusion or modification of warranties
Needs specific and conspicuous language disclaiming warranty OR Buyer’s failure to see patent defects OR Shorthand phrases like “as is”.
Disclaimer of warranty of merchantability must mention merchantability in the disclaimer
Disclaimer of warranty of fitness must be in writing and conspicuous
Warranties typically associated with housing
Implied Warranty of good and workmanlike manner
Implied warranty of Habitability
Implied warranty of suitability
When may MMWA invalidate warranty disclaimers?
especially implied warranties of merchantability and fitness. Applies only to consumer products only “normally used for personal, family, or household purposes”. Must be a consumer to enforce Magnusson Moss.
Elements of common law fraud?
- false statement. 2. Knowledge it was false. 3. Intent to deceive/ plaintiff relied on representation. 4. Injury.
