Under the DTPA, a consumer may recover “economic” or “mental anguish” damages for acts that meet the definition of “deceptive trade practices”. Additional damages of up to two times the plaintiff’s economic damages may be awarded if the defendant’s conduct was committed knowingly.
With the current statute, if the defendant acted knowingly the trier of fact may award an additional amount of up to two times the plaintiff economic damages. If the defendant acted intentionally, the trier of fact may award an additional amount of up to two time the sum of the plaintiff’s economic and mental anguish damages. Additional DTPA damages and attorneys’ fee require an award of actual economic damages. In computing additional DTPA damages, attorneys’ fee, cost, and pre-judgment interest may not be considered.
For claims accruing on or after September 1, 1995, or suits filed on or after September 1, 1996, “economic” damages are recoverable. “Economic” damages are compensatory damages for pecuniary loss. “Economic” damages do not include exemplary damages or damages for physical impairment, or loss of companionship or society. Mental anguish damages are allowed only if the defendant acted intentionally or knowingly. Pre-judgment interest awards are limited.
With these damage principles, bringing a suit under the DTPA can be strategic in many situations, consider if a real estate agent misrepresents a house to you and sells you a house that was supposed to be 2400 square feet for $52957.04 ($22.06 per square foot) and the house is actually 2245. In this exact case, the Supreme Court granted treble of actual damages $3,419.30 (155 square feet * $22.06) plus attorney’s fees and court costs. Cameron v. Terrell & Garrett, 618 S.W.2d 535 (Tex. 1981)
- Attorneys’ fees
An award of court costs and attorneys’ fees in mandatory for prevailing DTPA plaintiffs. Attorneys’ fees and court costs may also be awarded against a party whose DTPA claim is groundless, brought in bad faith, or brought for the purpose of harassment. However, attorneys’ fees under the DTPA must be awarded as a specific dollar amount and not as a percentage of the judgment.
- Comparative Responsibility
The Comparative responsibility statute applies to DTPA suits. The DTPA provides for contribution and indemnity rights to the extent provided by common law or statute.
Joint and several liability
A defendant is always liable for the percentage of actual damages equal to its own percentage of responsibility. A defendant is only jointly and severally liable if its share of responsibility is greater than 50 % or it is responsible for certain criminal acts.
DTPA Damages and Mental State
|Innocent||Actual damages or rescission|
|Negligent||Rescission or up to 3x Out of Pocket or Benefit of the Bargain damages, but no mental anguish|
|Consumer can recover not more than 3x actual economic damages, plusMental anguish
(3 X actual economic damages ) + mental anguish = damages
|Consumer can recover not more than 3x theamountofeconomicdamagesandmentalanguish, together
3 X (economic damages + mental anguish)= Damages
Common law v. DTPA
Can you claim multiple enhancements? Can you claim exemplary damages and recover under the DTPA? Claimant must choose one or the other, can’t recover both§41.004. This can be an important difference because unlike common law punitive damages; statutes usually impose fixed ceilings on liability.