November 2022

• Litigation often increases in times of economic uncertainty.
• One potential tool for a plaintiff that has been treated unfairly by a defendant is to sue under the Texas Deceptive Trade Practices Act.
• The DTPA can help real estate owners if they have been harmed by builders, vendors, etc.

We have gotten kind of busy here at Bukowski Law Firm the last month or so with some incoming litigation. I mean, we always have a steady stream of it. It just seems like we have seen an uptick in litigation recently.

This probably is not a surprise. Litigation, unfortunately, always seems to rise when there is uncertainty in the economy. And as we are headed into a more uncertain future, I reckon we may see even more of it in 2023.

This week, therefore, I want to write about a tool you may not know about if you are facing some unwelcome litigation. The Texas Deceptive Trade Practices Act (“DTPA”) can provide Plaintiffs an important tool to use against a disingenuous vendor.

What is the DTPA?

Texas has enacted a consumer protection law called the Deceptive Trade Practices Act. It was set up to protect consumers from unscrupulous businesses that attempt to lie and deceive. And it can be a great tool for plaintiffs in a lawsuit.

At first glance, this may seem like a strange topic for me to write about. We are not, after all, a consumer protection law firm. We are a real estate firm. The key, though, is that the DTPA protects all consumers of goods and services. And real estate companies sometimes fall into these categories.

Specifically, consumers are defined as any individual, partnership, corporation, or governmental entity who seeks to acquire any goods or services. So as long as you are purchasing or leasing goods or services, therefore, you are likely to qualify as a consumer and be able to avail yourself of the DTPA’s protections. It does not matter what the good or service is nor whether you are an entity. You are still a consumer for DTPA purposes.

What do You Need to Show for DTPA?

If you are a consumer, therefore, and you have been deceived when purchasing goods or services, you can potentially sue under the DTPA. Before you file a lawsuit, however, you are required to send to potential defendants a 60 day notice. This gives the parties two months to try to reach a settlement before litigation.

Once you do file a suit, to prevail a plaintiff needs to show that the defendant acted in a false, deceptive, or misleading manner. And the statute gives a lot of examples of what that entails.

For example, false, misleading, or deceptive acts or practices includes but are not limited to:

• Representing that the goods or services are of a particular standard, quality, or grade, or that the goods are of a particular style or model, if they are another;
• Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which is prohibited by law; and
• Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair services.

There are a lot of other examples given in the DTPA – these are just a few examples. And, as a benefit to the bringing the claim, the plaintiff does not normally have to prove intent to deceive, unless the specific clause requires it (as #3 does above). This makes the plaintiff’s hurdle to prove liability much lower.

But if the plaintiff can prove that the defendant knowingly or intentionally was deceptive, the plaintiff can seek additional damages – up to three times the total loss.

DTPA for Real Estate Claims

As I mentioned above, we are not a consumer protection law firm. But we are a real estate litigation firm (among other real estate services). As a result, we are able to use the DTPA on behalf of our clients. In the past we have used it for homeowners against builders, commercial property owners against vendors, etc.

If you are facing the unfortunate prospect of real estate litigation, therefore, the DTPA can be a very effective tool for seeking redress for your loss.