2 Consumer Law Outline - PCH
27 Pages

2 Consumer Law Outline - PCH

Course Number: LAW 1, Spring 2008

College/University: Texas Tech

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Consumer Law Outline Chapter One I. DTPA A. Proper Party Plaintiff Consumer 1. an individual, partnership, corp, this state, or subdivision or agency of this state, who seeks to acquire by purchase or lease any goods or services, except does not include business consumer with assets > $25 million or owned by one who does 17.45(5). 2. Buyer may purchase on behalf of someone else see below B3. B. Seek or...

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Law Consumer Outline Chapter One I. DTPA A. Proper Party Plaintiff Consumer 1. an individual, partnership, corp, this state, or subdivision or agency of this state, who seeks to acquire by purchase or lease any goods or services, except does not include business consumer with assets > $25 million or owned by one who does 17.45(5). 2. Buyer may purchase on behalf of someone else see below B3. B. Seek or Acquire 1. Martin v. Lou Poliquin DTPA does not require transfer of consideration. Only have to seek to purchase with good faith intent and capacity to do so. 2 prong test. 2. Good Faith honesty in fact and reasonable commercial standards both subjective and objective. 3. No requirement of a contractual relationship or payment (but item sought must be the subject of the complaint). 4. For Benefit of Another the good may be acquired by someone else and given to the intended user. Test whether the objective of the transaction was to benefit the individual claiming consumer status ex, father buys bat for son; company buys tool for employee. a. Must show person claiming consumer status is the intended beneficiary. b. Mere incidental beneficiaries dont count. Ex, passenger in car, neighbor who borrows a tool. c. Case law below Wellborn. 5. Holeman v. Landmark Chevrolet reasonableness of buyers intentions go to good faith if seller contests consumer status, buyer must demonstrate good faith intent and capacity. Page 1 of 27 C. Purchase or Lease 1. Kennedy v. Sale privity is not required; establish status in relation to a transaction, not the contractual relation with defendant. 2. Comment no requirement consumer be the person paying. Time share sale pitch offering "free tv" in exchange for sitting through presentation. 3. Wellborn v. Sears for benefit of another garage door purchased to keep family safe, closes on and kills child. The child is a consumer and did "acquire" the door. 4. Exxon v. Dunn good or service sought must form the basis of the complaint sought battery recharge, unconnected air conditioning problem attempted fix for free was not a consumer for air repair did not seek it, sought the battery recharge. 5. Notes agent/employee may make purchase on behalf of company/principal and c/p will be a consumer. 6. Problem 2 buying self-serve gas, attendant offers to check oil part of the purchase therefore, are consumer in relation to oil check. D. Goods or Services 1. Goods 17.45 tangible chattels or real property puchased or leased for use. 2. Services 17.45(2) work, labor, or service purchased or leased for use, including services in connection with the sale or repair of goods. 3. EF Hutton v. Youngblood filed DTPA claim but a more specific statute (TSA) existed and therefore controlled meaning, no DTPA applicability. 4. Notes above is confusing if buy something covered by another statute but also acquire a service in connection with the sale, the DTPA will apply to the service portion. 5. Hennessey v. Skinner "for use" = whatever use was intended to be made of the goods bills of sale for cattle as part of investment into company, cattle purchased are goods for "use". 6. Notes buying a lottery ticket is merely a chance to participate in the game and not a good or service. Page 2 of 27 7. Riverside National Bank v. Lewis bank loan to refinance a car was not a good or service it was only the seeking of money and money is not a good or a service therefore, not a consumer for the DTPA. 8. Notes banks do render services (checking etc) & are DTPA liable. 9. Farmers and Merchants State Bank v. Ferguson wrongful dishonor of checks can be DTPA or UCC Art. 4 violations. Bank charges fees for services and can be sued under DTPA. Check processing is "service". Note make sure account is a personal and not commercial or dual purpose. 10. Flenniken v. Longview Bank goods include "real property purchased..." and services include "services furnished in connection with the sale... of goods" a bank doing direct financing of real estate purchase can be liable provided the good or service forms the basis of the complaint. [wrongful foreclosure of partially built house]. 11. Walker v. FDIC complaint about lending services under construction contract and not the construction itself is not covered by the DTPA. 12. Questions goods sought must form the basis of the complaint but not necessary the complaint be based on defect, condition, or inadequacy of the good itself. 13. Big H Auto v. Saenz purchasing for resale is for "use" under DTPA. E. Business Consumer 1. Definition individuals, partnerships, or corps who seek or acquire for commercial or business use. 2. Eckman v. Centennial Bank assets means "gross" and D has burden to plead and prove $25 million assets exclusion as an affirmative defense. 3. Notes 5th Circuit says this in not binding on us (gross v. net part). Asserting a claim acquired by assignement status of Assignor controls. F. Waiver against public policy but may be done with proper clause in contract. 17.42. Requirements in writing, similar bargaining power, and consumer Page 3 of 27 represented by independent (and independently chosen) attorney. Size/print requirements in sub c. II. Statutory Exemptions to the DTPA A. 95 Amendments changed damages to "economic damages" pecuniary loss including repair or replacement. B. Excludes physical pain, loss of sex, disfigurement, handicap, or loss of companionship and society. C. Exempts cause of action for personal injury but subject to 17.50(b) & (h) mental anguish and tie-in references and the trebling provisions. D. Tie-In Statutes 1. DTPA 17.50(h) if have a right to bring suit under DTPA granted by another law, then may recover "actual damages" w/o regard to intentional act by D. 2. Ex sue under Health Spa Act (has provision allowing DTPA claim) injured in the gym, you can sue for personal injuries under the DTPA. HSA allows pain and suffering and disfigurement so now can get those under the DTPA. 3. Brings in attorney fees too. III. Whom May I Sue? A. Cameron v. Terrell & Garrett real estate agent incorrectly listed house footage. Liable. No privity required to hold agent liable an agent for a company that provides the false information is personally liable (can get indemnification later in outline). B. Note no privity requirement between consumer and defendant. C. Amstadt v. US Brass sort of creates vertical privity requirement. Cannot sue remote manufacturer of product included in the product you bought (here, a house and plumbing) unless an actionable act was in connection with the purchase. Ds conduct must somehow be connected to the consumers transaction. US Brass marketing efforts were not intended to be, nor were they, incorporated into marketing of homes to the plaintiffs. Page 4 of 27 D. PPG v. JMB DTPA claims may not be assigned by an aggrieved consumer to someone else. Warranties, do however, pass from seller to buyer. E. Problem 5 if your seller goes bankrupt, must make claim to the trustee. F. Agency and Company Liability 1. Miller v. Keyser misrepresentations passed on to buyer through agent that originated with seller (principal) create liability on part of both the principal and the agent and are actionable independently (J&S liability). No requirement P show agent acted knowingly or intentionally. 2. If agent was truly only passing along false information (unknowingly) he has a right to indemnification from the company 17.555. G. Notes Laxon v. Giddens 2 or more people may be held liable for conspiracy to violate the DTPA. IV. Class Actions A. Class action portion repealed from DTPA but can still bring one under TX Rules Civ. Pro. B. Fail Safe Class class determined after the merits of the case are adjudiated, are not allowed. C. Class Definition based on Ultimate Liability Issue invalid court has no way of ascertaining whether a given person is a member until a determination of ultimate liability as to that person is made. D. 17.501 Notice to D allows D 60 days to inspect, make any mediation demands, and make any offers of settlement more on this later. E. Choice of Laws across multiple states, class action may be impossible. Have to do a choice of laws determination. May have to do it state by state. If cannot pick best one, cannot have a class. V. Violations of the Act 17.50 A. Laundry List 17.46 1. Pennington v. Singleton oral statements of fact (even if do not know are misrepresentations) that boat and motor were "perfect, like new, or excellent condition" are actionable if relied upon by consumer. Page 5 of 27 17.50(b)(5). A private cause of action against non-merchants is available. [Distinguish fact from opinion statements.] 2. Notes such statements can become express warranty. Opinion statements are generally insufficient (including general representation by lawyer that agreement will adequately represent your interests.) 17.50(a)(1) reliance on the statement by consumer is required. 3. First Title v. Garrett clause purporting to waive DTPA rights against affirmative misrepresentation is invalid. Law imposes duty to know whether a statement is true (seller or title company, as here). 4. Notes only the consumer protection division may bring action against an FTC listed violation. A court may limit liability if a Ds interpretation of a contract is reasonable even though wrong. Class notes have tenant car towing example page 25. 5. DTPA covers oral statements, implied representations, "deceptive silence". 6. Disclosure requirements under 17.46(b)(23) apply to everyone no need to show fiduciary duty. B. Unconscionability - 17.50(a)(3); defined 17.45(5) includes "grossly unfair". 1. Bennett v. Bailey old lady at dance study calculated acts preying on her old age and vulnerability. 2. Chastain v. Koonce not enough to be unfair, must be "grossly" unfair. Unconscionable act must occur before you buy the item (here, land lot and rubber burning plant and threats to kick his ass up to his shoulders). 3. Latham v. Castillo attorney liable where he lied and said he was prosecuting a claim even when the SOL had passed. Was an affirmative assertion of fact so not covered by professional exemption. 4. MMB&L v. FE Appling a law firm may be liable to a non-client for negligent misrepresentation but liability is limited to actual loss suffered. Limited to situations where attorney is aware of non-client and intends Page 6 of 27 the non-client to rely on the information. Can limit liability with proper disclaimers and limits of intented use written into document. C. Assignee Liability HDC issues. 1. Home Savings v.Guerra FTC act abrogates the HDC status in consumer credit transactions. Therefore, if seller has buyer execute an installment contract and then sells it to someone else, the contract must contain a notice to the holder that he is liable to the obligor for all claims or defenses up to the amount paid under the contract. 2. Notes you cannot recover in excess of what you have paid under an installment contract you only get your money back, not extra. Can claim all payments made against current holder even if he bought after payments started. 3. If you can show the assignee of the contract has committed an independently violative act, you can recover for that too and not be limited as above (you still have cap on the installment claim but this is a separate claim). 4. Quantel v. Custom Controls if a financing bank and a car dealer are so connected as to be "inextricably intertwined", then can hold them both responsible for each others actions. Derivative liability only comes from tightly intrtwned actions of both parties, not from mere connection. 5. Inextricably intertwined will not be used to sue creditor #2 for the actions of #1 or the contractor (seller) unless they also did some deceptive act or was somehow involved in the original transaction. Chapter Two I. Warranty A. The DTPA does not create any warranties; they must be created elsewhere and brought under the DTPA for action. B. La Sara Grain v. First National Bank mere breach of contract is not a violation of DTPA bank failed to enforce dual signature on check. La Sara also had the canceled checks back in the statements. Page 7 of 27 II. UCC A. Warranties 1. Warranty of Good Title UCC 2.312 anytime sell a good. 2. Warranty of Quiet Enjoyment 2A.211 leased items have the right to lease it out to you. a. Both of these apply even if a 3rd party cannot take it away from you. Ex, buy gun from pawn shop, police think it is stolen, later turns out not, warranty has been breached because you have to defend your claim. b. Disclaimer you can disclaim both of these but must be specific selling only your interest in the item and not granting title. 3. Limitation of Remedy 2.719 & 2A. 503 may limit remedies by contract clause and avoid liability for consequential damages. This will limit DTPA remedies too because the warranty and the contract are created out of the DTPA and brought under later. 4. Privity expressly left to the courts by 2.318 & 2A.209. 5. Notice 2.607(c)(1) & 2A.516(c)(1). Failure to provide notice of breach bars recovery. Give notice to every person in the distribution chain. 6. Express Warranties 2.313 & 2A.210 Creation; anyone can create; watch SOL times, they are different under UCC and under DTPA. a. Express warranties survive over contractual disclaimers. b. "as is" is better disclaimer. Then, as seller, shut up. c. Parol Evidence does not preclude introduction of express warranty statements in DTPA action. d. Limitation of Remedy 2.719 says may be exceeded if it "fails of its essential purpose". 7. Magnuson Moss Act see class notes. 8. Fitness for Particular Purpose buyer tells seller what he needs and relies on seller to provide appropriate product. 9. Just because warranty is disclaimed, do not overlook potential of laundry list violation action instead. Skin that damn cat. Page 8 of 27 10. Leased Goods Hell or High Water clause you will pay the leasing company regardless of any warranty claims/actions against seller. The leasor does not take on any liability for warranty actions. Any claim must be directly to manufacturer. 11. Implied Warranty of Merchantability only applies if seller is a merchant. Says goods must pass w/o objection under contract description; and are of fair and average quality w/i the description; are fit for the ordinary purpose for which they are used; adequately packaged, etc... B. Willoughby v. Ciba-Geigy disclaimer is ineffective if it never comes to attention of consumer. Product package never reached consumer. C. Plas-Tex v. US Steel Corp action for breach of merchantability requires proof defect existed at time product left manufacturer. 2.314(b)(3). Prima facie case prove P handled and applied product properly but it still failed. D. "Defect" condition of good that renders it unfit for the ordinary purpose for which it is used because of lack of something necessary for adequacy. E. Indust-Ri-Chem v. Par-Pak privity with remote manufacturer is NOT required where he supplies a sample to middleman and intends or has knowledge it will be submitted to the ultimate buyer. But, if buyers conduct is the cause of the damage, he cannot sue the manufacturer test is reasonable use under the circumstances (proximate cause) for UCC; DTPA requires producing cause. F. Chrysler v.Guerrero Dealer talk of "perfect condition" created express warranty in excess of written limited warranty. G. Vintage Homes v. Coldiron breach of warranty was not waived by buyers acceptance and use of the goods. UCC 2.714. Not providing manufacturer notice might be waiver. H. Hobbs v. General Motors AL filing a suit is not sufficient notice of breach. III. Common Law A. Real Estate 1. Humber v. Morton when you buy a new house from the contractor, you automatically get an implied warranty of habitability and workmanlike quality, suitable for human habitation. [2 are separate.] Page 9 of 27 2. Notes property owner may not recover under implied warranty theory from subcontractor w/ whom the owner has no direct contract. 3. GWL v. Robichaux court says may, with clear language, free from doubt, disclaim warranty of habitability (maybe merchantability too). Later overruled to a point by Melody Homes. 4. Davidow v. Inwood North Professional Group exists an implied warranty of suitability by the landlord in a commercial lease that premises are suitable for intended commercial purpose and will remain so. Is disclaimable the provisions of the lease control. B. Services 1. Generally, law imposes an implied warranty that services will be performed in a good and workmanlike manner. Perform the work with care, skill, reasonable expedience, and in a good and workmanlike manner. 2. Melody Homes v. Barnes do not lose consumer status by allowing attempts at repair and deferring lawsuit. An implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner is available to DTPA claimants. May not be waived or disclaimed. Shifts burden to D to show he complied. Applies to repairs, not new construction. 3. Notes Centex, next, discusses what of Robichaux is really overruled. 4. Centex v. Buecher habitability may be disclaimed only to extent the defects are adequately disclosed at time of sale [may not be generally disclaimed extending only to latent defects (not known or expressly disclosed) that render the property so defective that it is unsuitable for its intended purposes as a home]. Good workmanship may be disclaimed by the parties when the agreement provides for the manner, performance, or quality of the desired construction. The agreement must have some standard articulated. 5. Notes RCLA and RCCA statutes page 198. 6. Archibald v. Act III Arabians warranty of good workmanlike performance applies to horse training services [falls within scope of Melody Homes]. 7. Notes if malpractice claims or something like that will adequately cover your damages, the court will not impose an implied warranty on your case. Page 10 of 27 8. Rocky Mtn. Helicopter v. Lubbock County Hospital the implied warranties do not extend to peripheral services provided as part of a contract. Especially so where a negligence action adequately addresses the issue. 9. Notes implied warranties created via a subcontractor do not extend to the home owner. C. Establishing a Warranty 1. BTGD&K v. US Fire mere breach of contract does not violate the DTPA insurance contract to defend any claim whether groundless, false or fraudulent or not. Breach of it was a breach action only, not DTPA. Breach of warranty does not occur where the seller completely fails to deliver. The policy was not a good. Buyers remedy is limited to actions under 17.50 where complaint is focused on quality of the goods received rather than the fat that no goods were delivered. Applies to service contracts too. Would need some other promise regarding performance to maybe reach DTPA. 2. Southwestern Bell v. FDP Corp. whether sellers partial failure to perform under sales agreement may be DTPA claim for breach of warranty? Failure to print display ad was breach of their warranty to publish correctly. Made express warranty they would publish it correctly. 3. On Motion for rehearing clause limiting liability would be invalid under DTPA 17.42 insofar as it purports to waive liability for an act defined as deceptive under 17.46(b) but if it is a term of a contract and if is part of basis of the bargain, it is enforceable. Attorney fees would still be recoverable under CPRC regardless of clause. Warranty is created outside DTPA and may be disclaimed/limited appropriately in the contract. 17.42 applies to other 3 actions under DTPA. 4. Notes breach of warranty and breach of contract claims are mutually exclusive but you can plead both and see which succeeds. Chapter Three I. DTPA Remedies A. Notice - 17.505 prerequisite to filing suit. Page 11 of 27 1. Hines v. Nash if P files w/o giving notice, D may request 60 day abatement. Burden on P to prove notice given, burden on D to raise the issue. Notice must include basis of complaint, any economic damage, any mental anguish, attorney fees to date. Raise notice issue or waive. 2. Notes - 17.5052 procedure where D may propose settlement and limit damages in event refused. 17.506(d) provides defense when D proves he has tendered a settlement in full. 17.5051 motion to compel mediation. CPRC 42.002 page 229 book, creates 2nd round of negotiations. 3. Silva v. Porowski notice and settlement offer sent to D, never responded. Attorney fees were included. Damages by jury affirmed. 4. Questions damages in complaint may be amended if increase over time. B. Damages 1. Actual Damages a. Woo v. Great SW Acceptance 4 rules of damages - common law fraud and deceit Comment page 240. Loss of bargain - difference between value goods would have if had been as promised and their value as delivered. So, if you made a really good buy and should have made a profit, you can recover the lost profit potential. Difficult to show amount of true damage - how do you prove the potential value? Experts. Out of pocket - difference of what item actually worth and what supposed to be worth. Cost of repairs - allows recovery of amount paid to have the goods placed into the promised condition. Repair bill is documentation of costs. Might be better alternative (easier) than loss of bargain. Equitable - tailors damages in a proper case to reach the fair and equitable result of properly compensating the defrauded party and avoiding injustice. General common law rule - damages recoverable by defrauded purchaser is the difference between the value of that which he parted with, and the value of that which he got. Additionally, if there is evidence of pecuniary loss directly traceable to the wrongful act, such loss can be recovered. b. Comment to support punitive, the act must be wanton and malicious, not merely unlawful or wrongful. c. Note in fraud cases, it is also a general rule that exemplary damages may be awarded when P has suffered actual damage as result of fraud intentionally committed for purpose of injuring him. Page 12 of 27 d. Luna v. North Star Dodge P was entitled to recover reasonable rental value of replacement vehicle after rightfully rejecting a defective car. No requirement she actually rent one. See also 2.711 UCC, can reject but retain a defective product and get a security interest in it. 2. Mental Anguish a. Parkway Co. v. Woodruff mental anguish evidence implies high degree of mental pain and suffering, not merely consternation and anger although it may include these as well. Must introduce evidence of nature, duration, severity of anguish, establishing a substantial disruption in daily routine. b. Requirements physical manifestations not required but help demonstrate. 3. Economic Damages and Mental Anguish a. Question do you have to establish economic damage before you can plead mental anguish? No, Latham v. Castillo as example. DTPA 17.50 says may maintain an action for economic OR mental damage. b. Latham v. Castillo do not have to establish economic damage in order to seek mental anguish. c. Notes if economic damages are sufficient recovery, mental anguish wont be allowed. Requires high degree of mental pain and distress. Typically not a recoverable damage for legal malpractice. C. Tie-In Statutes DTPA 17.50(h) if a claimant is granted the right to bring a cause of action under this subchapter by another law, the claimant is not limited to recovery of economic damages only, but may recover any actual damages incurred, w/o regard to whether the D acted knowingly or intentionally. 1. Proving Damages in order for a property owner to qualify as a witness to the damages to his own property, his testimony must show that it refers to market, rather than intrinsic or some other value. May testify to market value even w/o declaration that he knew or was familiar with market value. 2. Notes opinion testimony does not establish a material fact as a matter of law even from an expert. Jury is free to disregard it. Page 264 sample testimony, hint from Krahmer. D. Attorney 13 Fees Page of 27 1. McKinely v. Drozd attorney fees are recoverable regardless of any net offset from successful counterclaims. 2. Arthur Anderson v. Perry Equip. reasonable fees are based on an hourly calculation. You can have contingency fee as long as you can show the hourly conversion. Factors on page 276. 3. Keeton v. Wal-Mart Texas 17.50(d) has mechanism to cap Ds liability for attorney fees where a settlement offer was rejected. P must submit specific dollar amount. If damages offered in settlement exceed or meet actual damages awarded, fees are limited to that amount reasonable as of time of rejection. May not recover more fees than in a reasonable pre-trial settlement offer. 4. Zak v. Parks P is liable for Ds attorney fees if his case is found to be groundless. Groundless means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. 5. Notes attorney may testify as an expert regarding the reasonableness of his fees but must include himself on the witness list or be barred from testifying. 6. Donwerth v. Preston II Dodge D may recover fees when court finds DTPA action was groundless, brought in bad faith, OR for purpose of harrassment. Matter for the court to decide, not jury. E. Cumulative Recovery 1. Mayo v. John Hancock DTPA allows multiple recovery for related but separate acts. 17.43 merely limits a P from recovering actual and punitive damages for a specific act under one law and then recovering actual and punitive damages for the very same act under the DTPA. If you can establish independent acts that add up to the harm caused, you can recover for each act independently. 2. Berry Property Mgmt v. Bliskey apartment refused keyless deadbolt even though in the lease. Got raped. Sued for knowingly refusing. May be inferred from the circumstances. Even if the D committed two acts, if there is only one injury as result of both acts, may only recover once and not for each Page 14 of 27 act separately. P must make an election of which act gives the greater recovery. 3. Notes attorney must segregate fees among the causes of action plead. Can only recover fees associated with the DTPA claim (or if another claim allows fees too, you must show what portion goes to that claim). Break your fees up among the causes plead. If the causes are so intertwined as to be impossible to prosecute one without the other, you may get an exception to having to split them. Chapter Four I. Statutory DTPA Defenses A. DTPA can defend by asserting absence of reliance by consumer; failures of proper notice or rejection of settlement offers; mediation may be compelled. B. Limitations 1. UCC article 2 cause, SOL starts at time of delivery of a product and runs for 4 years. a. If discover a laundry list violation even after expiration of the 4 years under UCC, you have 2 new years beginning at time of discovery. Can overlap or be completely separate. b. Same for unconscionability. 2. SOL is tolled during time between discovery and duration of repair efforts. 3. UCC 2.608 discusses difficulty of discovery of defect or actions by seller trying to hinder your actions "well take care of it" when they wont. C. Other Statutory Defenses 1. Sanders v. Construction Equity RCLA creates procedures required between consumer and (home) builder notice, inspection, and opportunity to fix. Common law and DTPA claims survive the RCLA does not preempt unless conflict arises. a. Negligence RCLA has limitations but not total bar. b. Fraud does govern any conflict w/ RCLA. c. Warranty/Contract authorized once statutory requirements are first met. Page 15 of 27 2. Notes a. RCLA is for recovery of damage type claims. If homeowner seeks equitable remedy (rescission) and not money, the RCLA does not preempt. b. RCLA is for only those construction defects that can be repaired in a good and workmanlike manner. c. If the house is rendered uninhabitable, the RCLA does not apply. II. Common Law Defenses A. Smith v. Baldwin Substantial compliance is NOT a DTPA defense (still is under contracts but not here). B. Weitzel v. Barnes purchasing remodeled home oral representations home would comply with code (induced not to inspect first). 1. Parol evidence rule does not preclude introduction of evidence of the oral statements. 2. DTPA requires proof of consumer reliance on the misrepresentations (or laundry list act). C. Notes DTPA does not require written contract for an action (statute of frauds) unless the tie in statute you are using has such a requirement. D. Prudential v. Jefferson "As is" clause, entered into freely, without inducement, conclusively negates reliance. Also excludes any implied warranties under the UCC. E. Notes buyer will not be bound by "as is" if he does not inspect because of seller preventing him. 1. Seller has no duty to disclose what he does not know. 2. Statements are not fraudulent unless the maker knew it was false when he made it or made it recklessly w/o knowledge of the truth. 3. "as is" does not violate the DTPA 17.42 prohibition on waiver. 4. Seller language must rise to assertion of fact, not mere puffing. F. Schlumberger v. Swanson waiver disclaiming reliance on other partys information is valid. Determined by facts and circumstances attorney representation, party sophistication, etc. Are avoidable on grounds of fraud but fraud still requires reliance. Non-disclosure is a sub-category of fraud. Page 16 of 27 G. Erwin v. Smiley proof that complained of action is "producing cause" is essential to DTPA claim. Producing cause is cause in fact. Substantial factor in bringing about an injury which would not otherwise have occurred. Prudential decision above applies to residential property too. Validity of "as is" clause is determined in light of sophistication of parties, arms length, freely negotiated, and whether there was a knowing misrepresentation/concealment of known fact. H. Pairett v. Gutierrez buyer is not bound by ,,as is clause if can show proof of fraudulent concealment or misrepresentation of information by seller. Must still show reliance. I. Larsen v. Carlene Langford to defeat "as is" through fraudulent inducement, buyer must present some evidence that "but for" the representations of the seller, the buyer would not have assented to an ,,as is clause. Proximate cause/cause in fact. J. Note get the highlighted part from the bottom of page 81 of class notes. K. Ojeda de TOCA v. Wise recording of stuff under real property recording statutes does not constitute notice of defects to buyers. Did not operate as a disclosure. L. Notes no "constructive" notice. M. Kennemore v. Bennett remedies under the act are not waived through settlement of related contract claims or acceptance of the allegedly defective product. In absence of express settlement or other express waiver, P has every right to proceed with DTPA actions. N. Notes claimant has duty to mitigate damages. O. Gunn Infiniti v. O'Byrne mitigation is an affirmative defense and is valid as a common law defense. Recovery of damages may be limited by showing Ps failure to reasonably mitigate his damages. P. Jack B. Anglin v. Tipps if contract contains clear statement of arbitration, it is binding. 1. The federal arbitration act will preempt state law in some situations. 2. Whether claims arising from construction contracts are arbitrable yes. 3. Whether DTPA claims are subject to fed act yes. Page 17 of 27 4. Fed law preempts application of non-waiver provision of the DTPA to prevent or restrict enforcement of an arbitration agreement. 5. Do not foreclose possibility of DTPA relief (from agreement) by a party establishing an agreement to arbitrate was unconscionable and unenforeceable as matter of law. Q. Notes DTPA allows anyone against whom a DTPA action has been brought to seek indemnity from one who, under the statute law or at common law, may have liability for the damaging event of which the consumer complains. An agent is entitled to indemnity when its liability arises from cnduct performed for the benefit and under direction of the principal as a good faith execution of the agency relationship. III. Disclaimers and Limitation of Damages A. Alvarado v. Bolton doctrine of merger (when a deed is delivered and accepted, the contract leading to it is merged into the deed. The deed must be looked to alone to determine the rights of the parties. Does not operate in DTPA claims to prevent admission of any warranties made in the prior earnest money contract that are contradicted in the deed. This is as between the original parties to the purchase, not subsequent purchaser. B. Southwestern Bell v. FDP a contract liability limitation clause would be invalid under 17.42 insofar as it purported to waive liability for an act defined as deceptive under 17.46(b). But, as for a warranty action, because warranties arise outside the DTPA, the clause, as part of the contract, may stand. This is not disclaiming warranties, merely limiting the sellers liability under a warranty action. C. Notes 1. TCPRC will allow crecovery of attorney fees regardless of any limitation of liability clause to the contrary. 2. Waiver required by 17.42 is for the 3 causes of action under the DTPA other than warranty actions. Page 18 of 27 3. A misrepresentation might create a warranty claim but might also be a laundry list violation may get entangled in contract language (limitations) but the laundry list claim wont be so limited. D. Notes 1. Bringing an action as a DTPA claim does not affect validity of limitation on damages or disclaimer of warranty. 2. UCC 2.316 is to protect the consumer from unexpected and unbargained for language of disclaimer by denying effect to such language when inconsistent with express warranties made. 3. A proper disclaimer waives the breach of warranty action under the DTPA but does not waive a cuase of action for misrepresentation under the DTPA. IV. Forum Selection A. Considered prima facie valid and enforceable. But, cannot contractually waive applicability of the DTPA. B. Effron v. Sun Line Cruises legal effect of FSC depends first upon whether its existence was reasonably communicated to the plaintiff. Must be clear and unambiguous and made known before committing to the contract. C. Stobaugh v. Norwegian Lines 1. Factors to determine fundamental fairness of clause a. Indication forum was selected to discourage claims; b. Accession to the clause obtained through fraud or overreaching; c. Adequate notice; and d. Whether there is option of rejecting without penalty. 2. In Texas, must give notice of clauses existence in effective manner and at a time that affords the opportunity to reject without penalty. Chapter Five Products Liability and the DTPA I. Warranty, Negligence, and 402A A. 402A Special Liability of Product Seller for Physical Harm To User/Consumer 1. 402A Comments Page 19 of 27 a. This rule is applicable to sellers of products and is strict liability. b. Business of Selling applies to any manufacturer, to any wholesale or retail dealer or distributor, and to the operator of a restaurant. c. Rule does not apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business. d. The ordinary individual who makes the isolated sale, and he is not liable to a 3rd person, or even to his buyer, in the absence of negligence. e. Limits the implied warranty of merchantable quality to sellers who deal UCC 2.314 does the same for "merchants". f. Defective condition rule stated in this section applies only where the product is, when it leaves the sellers hands, in a condition not contemplated by the ultimate consumer making it unreasonably dangerous to him. g. Seller is not liable when the product leaves safe but becomes dangerous because of subsequent mishandling. h. Where the seller has reason to anticipate the danger may result from a particular use, he may be required to give adeqaute warning of the danger without it, it may be unreasonably dangerous. i. No reason is apparent for distinguishing the product and the container. j. Where the container is dangerous, the product is sold in a defective condition. k. See pages 400 402. 2. Review hypos in class notes page 93. 3. Murray v. Ford cannot use damage to "other property" as a hook to pull in economic damage to the defective product itself into a tort and sue under 402A. Can maintain the tort claim for damage to "other property" but not for the damage to the defective product itself. Page 20 of 27 4. Darryl v. Ford Motor a product that leaves the manufacturer in a defective condition (provable by circumstantial evidence) creates liability on part of manufacturer even to people who are not users or consumers of the product if they are injured by it. 5. Nobility Homes v. Shivers strict liability does not apply to economic harm (requires physical harm to the user or other property limits under Ford still apply). The UCC implied warranty of merchantability runs to the consumer even absent privity the manufacturer is liable for econmic loss suffered as result of breach of merchantability even w/o privity. Can run to 3rd parties too for personal or economic damages. 6. Notes consumer may recover economic damages from maker (regardless of privity) under negligence theory. 7. Garcia v. TI privity is not required for UCC implied warranty action for personal injuries. Products liability exists for personal injuries resulting from breach of implied warranty under the UCC. 8. TX Processed Plastics v. Gray rule has evolved in situations involving solely economic loss based on breach of express warranty, privity is required. 9. Notes Chapter 82 CPRC 82.003 applies to ,,products liability action a seller has no liability based on sale of defective product manufactured by another, unless the seller participated in the manufacture, design, or made a factual misrepresentation regarding the product or had knowledge of the defect. Liability solely as result of the sale will not fly. BUT, if manufacturer is insolvent, seller gets stuck. B. Damages 1. Mid Continent Aircraft v. Curry County Spraying "as is" clause in commercial sale and sellers disclaimer of liability is good under the UCC (for damages to the plane itself). Economic loss resulting from a product w/ defective workmanship and materials is not recoverable in strict liability that loss is merely loss of value due to failure of the product to Page 21 of 27 perform according to the contractual bargain not tort. governed by the UCC and 2. Signal Oil & Gas v. Universal Oil Products improper part used, explosion Negligence, proximate cause, allowable COA; Strict liability, (changed later to) cannot recover economic damage caused to product by its own failure under tort must be breach of warranty but damage to other property may be recovered under tort; Implied Warranty, can be reduced by contributory negligence, governed by UCC. 3. East River Steamship v. Transamerica Delaval failure of a product to function properly is the essence of a warranty claim, through which a contracting party can seek to recoup the benefit of the bargain. Expectation damages available in warranty for purely economic loss gives a plaintiff the full benefit of its bargain by compensating for forgone business opportunity. 4. Comment if a contract contains a valid limitation on damages or disclaimer of warranty, no cause of action would exist for purely economic loss because this is only recoverable under UCC contract actions. 5. US Tire-Tech v. Boeran breach of warranty against remote maker 2.607 requires notice or bars action but speaks of seller. Split authority in TX as to requiring to remote manufacturer even if associating breach with negligence or any other cause. 6. Neal v. SMC Corp. UCC 2.608 buyer who accepts good but later discovers defect may reject, return, and demand $ back. Equiv of rescission. Here may only exercise this as against the immediate seller but not remote maker. 7. Ellis v. Precision Engine Builders after acceptance of goods (and retained) must plead cause as breach of warranty, not breach of contract. 8. SWBell Telephone v. DeLanney negligent performance of a contract is only available for a breach of some duty not created by the contract breaching a duty created by the contract does not support NP. Ex failing Page 22 of 27 to publish an ad correctly is not NP; burning down a house you are working on is. Duty not to burn it down arose from somewhere outside the contract. 9. Notes punitive damages for breach of contract are not allowed in TX no matter how malicious the breach. 10. Formosa Plastics v. Presidio Engineers if you were induced into a contract, you can maintain a fraudulent inducement claim and recover more than economic even though you cannot maintain a Neg Perf claim. Need really good inducement evidence, not just "you lied to me". Delanney analysis does not apply to fraud claims. Duty not to defraud is independent from any duty created by the contract itself. Can recover even if only have economic damages. 11. Could use fraudulent inducement to argue against an arbitration clause "yes we have one but never enforce it". C. Causation 1. Notes a. Alternative Liability cannot determine which of 2 offenders committed act but can show one or other did. Hit both, let them split it up. b. Market Share four requirements i. Injury occassioned by fungible products made by all defendants; ii. Injury due to fault design, w/ each D having sold it in the faulty condition making it unreasonably dangerous. iii. Individually responsible maker cannot be identified. iv. Have joined enough of the manufacturers to represent a substantial portion of the market. c. TX prod liab need producing cause "an efficient, exciting, or contributing cause, which, in a natural sequence, produced the occurrence". Less than proximate; no foreseeability requirement but the damages that occur must be of a likely type. Page 23 of 27 d. Type of cause required: i. Breach of warranty proximate?? ii. Negligence proximate. iii. DTPA & Strict Liability producing. 2. Otis Spankmeyer v. Blakely conflict in jury findings defect in product = unfit for ordinary purpose may be because it lacked something necessary for adequacy. An act of defect that is not a producing cause cannot constitute a proximate cause. If you present multiple causes to the jury, make sure the instructions clearly indicate what facts and causations they are expected to find. D. Comparative Liability 1. Allocating responsibility among the Ds and P if necessary CPRC 33, if P is >50% responsible, no recovery. 2. 33.004 D may designate other parties responsible and P gets 60 days to join them and amend the pleadings. E. Exemplary Damages 3. BMW v. Gore a. 3 guideposts to determine adequacy of notice of potential for punitive damages: i. Degree of Reprehensibility the enormity of the Ds offense. ii. Ratio of punitive to compensatory damages exemplary must bear a reasonable relationship to compensatory. iii. Other sanctions for comparable conduct any basis to assume a lesser sanction would motivate compliance with a given regulation or duty? Chapter Six Wrongful Debt Collection I. Common Law wrongful collection is still a common law tort and gives rise to mental anguish. Page 24 of 27 II. Statutory Regulation these cover personal debts, not commercial. A. Miller v. a large law firm [for the Fed act] a debt, and its characterization (commercial v. consumer debt), arises when created, not when collection efforts arise. Conclusive presumption a person buying for personal use is unsophisticated person but for business person not. B. Notes 3rd party collectors are subject to the act, attorneys seeking to collect on behalf of client for fed act but state code 392.001(7) provides attorney exemption. C. Heinz v. Jenkins [fed act] filing suit is considered the initial contact (assuming you have not otherwise contacted debtor) with debtor and now subject to the fed act. Fed act covers anyone who "regularly collects or attempts to collect" debts. D. Notes state and fed acts have list of prohibited acts. Involved attorney (or "author" of letter) must make a meaningful review of the file. Sending letter from an attorney who has not made a meaningful review is a violation. E. Romine v. Diversified Collection going beyond mere communication efforts and entering areas of collection assistance will make you a 3rd party collector Western Union system. F. Zimmerman v. HBO 3rd Circuit - What is a "debt"? requires an extension of credit between 2 parties. Not a well accepted holding. G. Bass v. Company 7th Circuit this is the standard interpretation of the FDCPA does a dishonored check constitute a check? Yes. No requirement the debt arise from any extension of credit. "Debt" under the act, = any obligation or alleged obligation of a consumer to pay $ arising out of a transaction... primarily for personal, family, or household purposes. H. Notes notice requirements are a significant difference between the state and fed acts. Under fed, no offer or extension of credit is required for a payment obligation to constitute a debt. I. Swanson v. S. Oregon Credit Svc. 9th Circuit 1692g(a) requires written notice containing information regarding the debt and necessary/available actions on part of debtor and time frames. Oral or written response from debtor is enough (under Page 25 of 27 statute). Language of notice must be clear and reviewed by "least sophisticated consumer" standard and may not be "grossly overshadowed or inconspicuous". J. Notes may continue with filing of suit within the 30 days provided you provide notice properly. FDCPA has a 2 part requirement: 1) disclosure the collector is attempting to collect a debt, and 2) the information received will be for that purpose. K. Blum v. Fisher2 1692f has prohibited acts. Test is the unsophisticated consumer: whose reasonable perceptions will be used to determine if the collection messages are deceptive or misleading. L. Notes safe harbor form in the 7th circuit page 518. M. Jenkins v. Union Corp. must evaluate the actual words used to see if conflicting or confusing message given. Not just a matter of physical setting of the letters on the page. N. Note each act lists prohibited acts ie, 3rd party disclosure, etc... III. Prohibited Conduct A. Problem 25 review class notes p 117. B. Brown v. Oaklawn Bank may not threaten criminal action from either creditor or collector. C. Romea v. Heiberger back rent is a debt and subject to fed Act. Fed laws may require more than state be sure to follow the fed preemptions. D. Notes ex, TX foreclosure law only requires 20 day notice, better give 30 as per fed. TX eviction is separate from action for back rent. Evict then give notice for debt on back rent. E. Notes Shimek GA law may file lien at same time send notice and no obligation to remove lien if debt is contested. Filing lien is not a notification. F. Notes you may file suit at same time send notification but must abate during the 30 days if debt contested. G. Shorty v. Capital One debtor filed bankruptcy before collector sent notification letter. Collector did not know knowledge of the creditor is not imputed to the collector. If collector is not negligently unaware of bankruptcy, then not liable for violation. Applies only to initial contact letter. Page 26 of 27 IV. Penalties A. Fed Act basic recovery actual damages plus any additional as court may allow. Court may award "additional damages" of up to $1000 where actual damages do not meet or exceed that. [actual=$100 so additional=$900]. If actual > $1000, then no additional. Court looks at history of acts by defendant. B. State Act - $100 minimum so if consumer only shows $1 actual, gets $100 plus attorney fees. If cannot prove at least $1, then no recovery. Can be a tie-in allowing mental anguish. Can bring under DTPA and recover treble mental even with no economic damages. C. Elston v. Resolution Services Can recover for only mental damages provided you show they rise to appropriate level. Page 27 of 27

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Texas Tech - LAW - 1
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Texas Tech - LAW - 1
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Texas Tech - LAW - 1
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Indiana State - ACC - 313
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Jones - PHI - 111
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Western Michigan - PSYCH - 1000
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Western Michigan - PSYCH - 1000
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Western Michigan - PSYCH - 1000
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Western Michigan - PSYCH - 1000
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Jones - PHI - 111
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Jones - PHI - 111
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