DTPA Mediation - consequences

QUESTION
If, as the defendant, you compel mediation and you loose, does that
become part of actual damages?


ANSWER
Not sure I follow the question. Here are the possibilities:

A) You go to mediation, and the case settles by agreement. Everything is over, nothing to worry about.

B) Go to mediation and no settlement is reached.

The fact that you went to mediation would not impact the economic damages, but would of course increase the amount of attorneys' fees that the parties have incurred. So, if the Defendant compelled mediation, the case did not settle and at trial the Defendant lost - the additional attorneys' fees incurred by the plaintiff would be part of the plaintiffs request to the court for an award of attorneys' fees.

Also, you should think about how 17.5052 works, and consider what the impact would be of the defendant making a "full value" settlement offer, if the plaintiff turns it down.

17.49(e) & 17.50

QUESTIONS
1) The author of the book says that you can get pecuniary loss (and therefore economic damages under 17.50(b)(1)) for loss steming from a personal injury (i.e. rehab & medical expenses). How can you square that w/17.49(e)'s exclusion for PI damages?

2) The author of the book in p. 250 & 260 seems to say that physical damages are included in the definition of actual damages. Although pre 1995 cases say this, the author says that this definition continues but now it only applies to 17.50(h) b/c thats the only part of the DTPA that allows for actual damages. Once again, how do you square that the 17.49(e)?

ANSWER
As you can see from a quick Westlaw or Lexis search, there is no case law interpreting 17.49(e).

I read 17.49 (e) NOT as a bar on personal injury damages, but as a bar to pursuing what should be a personal injury tort CASE via the DTPA. The tort claim must be brought in tort. If there are other aspects of the situtation that are non-personal injury, these could be brought via the DTPA.

I think that 17.50(h) trumps 17.49(e) given the language of 17.50(h) "notwithstanding any other provision of this subchapter...."

Q: 17.49(e) & economic damages

QUESTION

I just want to be sure I understand the 17.49 personal injury exemption properly.

17.49(e) exempts bodily injury, death and infliction of mental anguish damages with the exception of 17.50(b), which in turn begins by stating that "in a suit filed under this section, each consumer who prevails may obtain the amount of economic damages found by the trier of fact."

Does it mean that the economic damages, as they are defined by 17.45(11), would always be recoverable by a consumer regardless of whether they flow out of personal injury or death cause of action? For example, would I be able to bring a DTPA claim seeking to recover lost wages which resulted from a physical injury recovery?

RESPONSE
Keep in mind what 17.49(e) actually says:
"Except as specifically provided by Subsections (b) & (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish."

Seems to me the most likely reading of this is:
A) If the case is really a personal injury action, then you can't bring it under the DTPA.
B) Given the cross reference to 17.50(b) & (h) , you can always bring a DTPA case and seek mental anguish damages for what is a straight up DTPA claim.

I do not think you can read 17.49(e) authority to seek economic damages (only) in what would fairly be characterized as a "cause of action for bodily injury or death." But - there is no caselaw on this and could be argued both ways.

Suppose Honest John's Used Cars lies to your client about the used car she b0ught. The car dies on the freeway and never runs again, resulting in loss of use of the vehicle, as well as precipitating a wreck. Your client's personal injury claim may not be brought via DTPA, while the related claim of misrepresentations about the vehicle's condition should be available under the DTPA.

Q: Notice of UCC breach of warranty claims?

QUESTION
W/regards to the notice req't under 2.607, Vintage homes says no need to notice give to mnfg. The Alabama case afterwards (Hobbs) says need to give notice. It seems like these cases contradict. You said that the AL case only shows that you have to look to state law, but maybe they don't contradict. Vintage there was no privity so I see it this way: No privity = No notice

Hobbs: there was Privity = Notice (although it was a remote mnfg). The UCC comment that Vintage cited to also alluded to the fact that privity was important in the determination of whether there was notice. What do you think? I'm only asking b/c this distinction may have to be made if notice should be given. For example, if it's a remote mnfg I would argue that according to Vintage you don't give notice where there's no privity, however if there's privity as in Hobbs notice should be given. My problem is that Hobbs is an AL case and if I don't take it into account, then I'm effectively making a statement that a remote mnfg never gets UCC notice. Is that statement completely right?

ANSWER
2.607(c) (1) requires that "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy."

In 2003, the Houston Court of Appeals held that 2.607(c)(1) does require giving notice to remote manufacturers. US Tire Tech v. Boeran, 110 S..3d 194 (Tex.App.--Houston [1st Dist.] 2003, pet. denied).

In 2003, the Texas Supreme Court decided Compaq Computer Corp v. Hal Lapray, in which it noted that the states are all over the map on the question of whether notice must be given to a remote manufacturer, and if so what timelines or specificity requirements. The Texas cases cited by the Court all seem to be along the lines that Texas does require notice to a remote mangufacturer.

Q; Transactional Size Limits

Q: What would happen if plaintiff bought a $500,001+ piece of land, then later built a house on it? Would this be covered?


I'd look at it this way.

What does the statute say about the transactional size limits - something roughly like "a transaction" or "series of transactions."

Seems to me the most likely approach would be to ask:

How many "transactions" were there? Was the purchase of the raw land and the construction of the house really a single transaction? Or, were there really two transactions?

Sounds rather fact specific to me, leaving plenty of room for argument based on the facts.

Q: Does Amstadt only apply to written representations?

I don't see anything in Amstadt that would limit its application to cases in which the alleged misrepresentation was made in writing.

Ask yourself the question of whether a DTPA consumer must (generally) prove that the bad actor made the misrepresentation in writing in order to have a good DTPA claim?

Seems to me that Amstadt is a case about WHETHER the misrepresentation reached the consumer, rather than about the format of the misrepresentation.

Q: Prize winners as consumers?

Following up on the question posed to me last week:

I was thinking about giveaway promotional deals - put your name in the hat for the free drawing kind of prize. The cases do suggest that if you pay to participate in a competition or contest, then you might well be a consumer.


Consider these:

Rutherford v. Whataburger, Inc.
601 S.W.2d 441
Tex.Civ.App., 1980.
Winner of prize in promotional contest sued when the prize was not delivered. The 191st District Court, Dallas County, Joan Winn, J., rendered a partial summary judgment holding that the winner had no cause of action under the Deceptive Trade Practices Act and that he was not entitled to attorney's fees. Winner appealed. The Court of Civil Appeals, Akin, J., held that: (1) where the motion for summary judgment did not contain a specific ground relating to recovery of attorney's fees, summary judgment could not be rendered denying the winner attorney's fees, and (2) because the winner neither purchased nor leased goods from the seller and was not required to make a purchase to enter the contest, he was not a "consumer" under the Deceptive Trade Practices Act and was not entitled to recover under the Act.
Affirmed in part, reversed in part.

Hall v. Bean
582 S.W.2d 263
Tex.Civ.App., 1979.
Participant in a boat race was not a consumer. Claim that they won, and should have gotten the prize.

Plaintiffs did not "purchase" prize which they sought within common and ordinary meaning of such term, since no valuable consideration passed between plaintiffs and defendant; thus, plaintiffs were not "consumers" under Deceptive Trade Practices-Consumer Protection Act, defining "consumer" as "[a]n individual who seeks or acquires by purchase or lease, any goods or services," and requiring that one must be a "consumer" in order to bring suit under the Act; thus, plaintiffs could not recover treble damages and attorney fees under the Act


Compare these two with the following two. What is different in the fact situation?



Galveston County Fair and Rodeo, Inc. v. Kauffman
910 S.W.2d 129
Tex.App.-El Paso,1995.
Contestant at county fair was "consumer" for purposes of Deceptive Trade Practices - Consumer Protection Act (DTPA), and could bring action under DTPA against fair based on allegedly improper disqualification of contestant from participating in next year's fair due to allegations that he had "aired" steer; contestant paid to enter contest at fair and as result "purchased" chance to win prize, and contestant's steer after being named champion of class was auctioned for sale, from which county fair was to receive commission.


Houston Livestock Show and Rodeo, Inc. v. Hamrick
125 S.W.3d 555
Tex.App.-Austin,2003.
For purposes of determining whether livestock show's actions towards participants violated the Deceptive Trade Practices Act (DTPA), the transaction between participants was not completed when participants paid their entry fees, but rather, the transaction was ongoing and included payment of the fees, the competition, judging, prizes, auction, auction proceeds, and animal drug testing; therefore, livestock show's conduct in disqualifying participants after animals tested positive for unauthorized drugs was within the scope of the DTPA.