Making The Most Of Your Damages - By SJ Dunstan

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on 16 May 2017
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I stepped into my first law school classroom in August 2011. That feels like an eternity ago! I have been living in the legal world for so long that I sometimes forget what things people who aren’t attorneys know and don’t know.

One thing of which I am certain, however, is that almost no one in the non-attorney world is aware that, while they may have a cause of action under the common law, there are also statutory laws out there designed to protect consumers, deter businesses from committing wrongful conduct, and maximize a consumer’s damages. One such law is the Texas Deceptive Trade Practices Act (the “DTPA”). Let’s examine a helpful example of how the DTPA works:

Penny Pane goes to Deranged Dealer, a used car dealership, in order to purchase a used car to drive to work and to transport her family eight (herself, her spouse, and their six minor children) around to various places.

When she arrives at the dealership, Danny Deceitful, one of Deranged Dealer’s salesmen, shows Mrs. Pane a used 2004 Pontiac Grand Am GT Coupe. The odometer reading indicates that it has only 50,000 miles on it. Mr. Deceitful tells Mrs. Pane the price tag of $8,000 is a “real steal,” the air conditioner “works great,” Pontiacs are “wonderful, reliable cars,” and a Grand Am is “a perfect car for transporting a family of eight.”

Mrs. Pane, surprised at the relatively low mileage, asks Mr. Deceitful about the car’s history, explaining that she only wants to buy a car with a single previous owner due to some bad experiences she has had in the past. Mr. Deceitful tells Mrs. Pane that an elderly gentleman purchased the car brand-new in 2004, he was the sole owner, and he only used it for short trips back and forth to the grocery store. He tells Mrs. Pane that Deranged Dealer obtained the car at an estate sale following the elderly gentleman’s death. Relying on everything Mr. Deceitful told her, Mrs. Pane decides to purchase the Pontiac, pays Deranged Dealer $8,000, and drives off in the car.

In reality, Mr. Deceitful told Mrs. Pane quite a few fibs. First, Mr. Deceitful rolled back the odometer before Mrs. Pane arrived, and the car actually has 200,000 miles on it, not 50,000. Second, a Grand Am with 50,000 miles on it typically retails for $4,300 in Mrs. Pane’s geographical location, and one with 200,000 miles on it retails for $3,000, so the Pontiac’s $8,000 price tag isn’t a “real steal,” regardless of its mileage. Third, while the Grand Am’s air conditioner is functional, it will not blow out air as cold as it could absent a major system overhaul. Fourth (speaking from personal experience), Pontiac Grand Ams are anything but wonderful or reliable vehicles. Fifth, a Grand Am Coupe seats only five people at a time, so it is less than ideal for a family of eight. Sixth, and finally, Deranged Dealer did not buy the car at an estate sale; the dealer bought it at a police auction after it was seized from its last owner, who was the eighth person to have owned the car before Deranged Dealer purchased it.

A week later, Mrs. Pane discovers the entire truth about the car. Mrs. Pane could certainly sue Deranged Dealer. She would probably not be successful suing the dealership for Mr. Deceitful’s representations about the air conditioner, the car’s price, its reliability, or its suitability for a family of eight. While arguably untrue in the minds of most people, these statements are mere “puffing” or opinion, and are not actionable.

In fact, despite the pile of lies Mr. Deceitful fed to Mrs. Pane, her only strong arguments in a lawsuit to recover damages is the odometer tampering and the representations as to the car’s ownership history. Mrs. Pane could bring suit against Deranged Dealer under the common law. However, it would be a much smarter move for Mrs. Pane to bring suit against Deranged Dealer under the DTPA. Why?

The DTPA allows only consumers utilize the statute. Mrs. Pane is a “consumer” because she purchased a good for personal, family, or household purposes. Deranged Dealer violated several provisions of the DTPA when Mr. Deceitful told her that the car had only 50,000 miles on it and the car had only one prior owner.

Under the DTPA, Deranged Dealer cannot:

(1) represent that the car has characteristics it does not have;

(2) represent that the car is of a particular standard or quality if it is of another;

(3) disconnect, turn back, or reset the odometer so as to reduce the number of miles indicated on the odometer gauge; or

(4) fail to disclose information concerning the car about which Deranged Dealer knew at the time Mrs. Pane purchased it if Deranged Dealer failed to disclose such information with the intent to induce Mrs. Pane purchase the car, if Mrs. Pane would not have purchased the car had Deranged Dealer disclosed the information.

Most courts and/or juries would decide that Deranged Dealer’s failure to disclose that the car did not have only a single previous owner (due to Mrs. Pane expressly explaining to Mr. Deceitful how important this was to her), and its misrepresentation of the car’s mileage and rolling back of the odometer violated all of the above DTPA provisions.

The reason Mrs. Pane would be much better off filing suit under the DTPA, as opposed to under the common law, is the DTPA’s damages provisions. When a consumer prevails under the DTPA, she is entitled to court costs and attorney’s fees.

In addition, if the consumer proves that the defendant committed wrongful conduct knowingly, the trier of fact is entitled to award the consumer damages for mental anguish, and up to three times the amount of the consumer’s economic damages. If the consumer proves that the defendant committed wrongful conduct intentionally, the trier of fact is entitled to award the consumer damages for mental anguish, and up to three times the amount of the consumer’s economic and mental anguish damages!

There are several other statutes referred to as “tie-ins” to the DTPA, including, for example, the Insurance Code. These tie-in statutes allow consumers to utilize these same damages provisions when seeking recovery in a lawsuit.

Accordingly, even when a person knows they have been wronged and knows they have legal recourse against the wrongdoer, there is always a risk that the person will not pursue their claim in a way that will maximize their possible recovery. For that reason, it is often a smart idea to retain legal counsel when you believe someone has taken advantage of you.

713 227-1717 

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