subject: Texas Deceptive Trade Practices Act [print this page] Craig Seldin is a lawyer in the Houston, Texas area and winner of the 2011 Houston W.O.W Attorney of the Year. He has had a practice in Houston since 1998, and has had winning way ever since. He graduated from UT Austin in the early seventies, but pursued other careers before returning to doing what he always wanted to do. Below is a description of the knowledge that has made him so effective in defending clients.
The Texas Legislature's stated public policy in enacting the DTPA is to "protect consumers against false, misleading, and deceptive business practices [and] unconscionable actions." Tex. Bus. & Com. Ann. Code 17.44 (Vernon 2000) To achieve that goal, the Legislature has mandated that the Act shall be "liberally construed and applied." Id.
The term "knowingly" as used in the DTPA means "actual awareness of the act or practice giving rise to the consumer's claim ... but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness." Tex. Bus. & Com. Code Ann. 17.45(9) (Vernon 2000). Where the fact-finder must assess the credibility of witnesses on actual awareness, an appellate court can certainly find more than a scintilla and should not disturb the judgment. Gillman Imports v. Castillo, 1996 Tex. App. LEXIS 2797. In Gillman, the defendant knowingly prepared the car contract order containing terms differing from the retail installment contract. The trial judge was called upon to assess the credibility of the witnesses. Id.
Unconscionability under the DTPA requires a finding that the actor took advantage of the consumer's lack of knowledge or capacity to a gross degree. Tex. Bus. & Com. Code Ann. 17.45(5) (Vernon Supp. 1997). In Church & Dwight Co. v. Huey, 961 S.W.2d 560, 570 (Tex. App.-San Antonio 1997), the Court found unconscionability based on losses causes by defective machinery. There was a gross disparity between what the plaintiff paid for machinery and what he paid to cover his losses. Id. Evidence on the disparity between what the Plaintiff paid for the good and the losses he incurred on his job due to the defective good suggested and the fact-finder could easily have found, that the product as sold was worth less than nothing. Id. The Plaintiff lost money trying to repair the damage done by the product. Id. This supported a finding of gross disparity. Id.
