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Consumer Protection
South Texas College of Law Houston
Steiner, Mark E.

Consumer Transactions – Fall 2007
·        DTPA Causes of Action: §17.50 (1) false, misleading, or deceptive act or practice that is (a) specifically enumerated in the statute [“the laundry list”] and (b) relied on by a consumer to the consumer’s detriment; (2) breach of an express or implied warranty; (3) any unconscionable action or course of action by any person; (4) a violation of Insurance Code ch. 541
·        “Laundry List” is §17.46(b)(1)-(27)
·        For attorney’s fees to be included, you have to have a breach of warranty/DTPA claim in the cause of action, currently no attorney’s fees are allowed just for breach of K
·        DTPA Cause of Action Requires:
Ø      P is a consumer
Ø      Δ committed proscribed acts under §17.50
Ø      Δ’s acts were the producing cause of consumer’s damages
1.      Statutory Interpretation
o       US Sup. Ct. is all over the map on how to resolve statutory ambiguities
o       Look at the plain meaning of the text; if there are ambiguities or an absurd result, look at outside issues à legislative intent, the actual construction of the statute (parts, subparts, etc.)
o       In TX, there is less chance of ambiguity because of TX Gov’t. Code §311.023 (stating court can consider: object sought to be attained, circumstances under which the statute was enacted, legislative history, c/l or former statutory provisions (like laws on same/similar subject), consequences of a particular construction, administrative construction of statute, and the title preamble and emergency provison)
o       §17.44 calls for the DTPA to be liberally construed and applied to promote its underlying purposes (protecting consumers against false/misleading/etc. business practices)
2.      Consumer
o       Defined in §17.45: 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 $25M or more, or that is owned or controlled by a corporation or entity with assets of $25M or more
o       **CANNOT be a business with assets of $25M or more**
3.      Seek or Acquire
Martin v. Lou Poliquin Enter.: p. 17 – previous cases had said consumer must be a person who transfers valuable consideration; this case says you don’t need valuable consideration to be a DTPA consumer – only capacityand intent
Holeman v. Landmark: p. 21 – ad on radio for car dealership says “all offers will be accepted regardl

§         ER said EE was not a consumer because the ER paid for it; EE says he didn’t have to pay for/purchase it – it was purchased on his behalf and he acquired the services (from “seek/acquire”)
§         Court decided if the legislature had intended for the definition of consumer to be limited to the purchaser or lessee, it would have said so
§         “Once a contract exists, the requirement of a purchase is clearly met” (Court’s language in the case)
Wellborn v. Sears Roebuck Co.: p. 28 – garage door opener malfunctioned and the garage door closed on P’s son, killing him; ISSUE: can the son, who did not purchase the opener, drive a car, or install the opener, still be a consumer under DTPA? HELD: Yes
Why would Ps bring their claim under DTPA and not a wrongful death tort c/a? DTPA requires proof of actual damages, treble damages, and attorney’s fees; wrongful death/tort c/a requires proof of actual damages and punitive damages àthe threshold for punitive damages is very high, so it’s more of a “slam dunk” under DTPA