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49 Cards in this Set
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Peggy, Real Estate Agent sold B's house in listing she put 3000 sq ft although house was smaller, R bought house from B in part because of sq footage, when discovered Peggy's error, sued under DTPA. Peggy's response, you didnt buy that house from me. Consumer Standing |
Seek or acquire by purchase or lease good or services must form basis of complaint. Yes, consumer standing because he was "seeking" to purchase house and house is good. |
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P searched online for wedding gift for son Gary ordered washing and dryer for G, shipped directly to G washer breaks, G contacts appliance store who refused to do anything. G sues appliance under DTPA. Consumer Standing? |
Yes, because Gary is the intended beneficiary of the washing machine, P purchased it for a specific person, Gary. An intended beneficiary must be concerned for specific person. (Gift) |
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Dale dies. His widow contracts with mortuary for funeral. Including the provision that theres open casket, and its not an open casket, it allowed the body to decompose, family sues under DTPA. |
Sought and bought mortuary services - mortuary services form basis of complaint. |
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John got a job at a loading dock at chemical plant. While lifting with defective forklift, forklift knocked over. |
John's forklift is a general machine for business. "They didn't actually buy that thing for you" Not totally beneficiary because its not specifically for him. |
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John has job at dusty plant. Worried that chemical may be carcinogenic, he asks for masks. Guy told him to pick out respirator from catalog, get company check and pick it up. Respirator defective. John was injured, suffered eco loss and defective. |
John sought and acquired the respirator and it was intended solely for him |
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Leonard leased garage apt to T, because of concern about crime, L contacted quality security systems for apt, L bought security system. Terry's apt was burglarized and security system didn't work |
No, T was not the intended beneficiary of the alarm. Goods must be intended for a specific person, not general equipment that will stay when he moves out. |
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After passing bar, student buys car for steiner, car blew up, professor sues manufacture for breach of warranty - consumer standing? |
Yes, because he was the intended beneficiary of the car. It was purchased "concerned for specific person". |
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After passing bar, student buys Wii, Page is hurt. Page sues for breach of warranty. Standing? |
No, Page is not the intended beneficiary. |
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Visiting professor hurt by DDR, visiting professor hurt. |
No, visiting professor is not intended beneficiary. |
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S Propane wanted to buy Fuels, as condition of sale, P wanted audit of F statements, Fuel said not necessary because AA did statements 3 mo. earlier, P said ok. Audit favorably authored, Propane relied on statements, and after found out they were bad, P sued AA over disposition. |
No, P did not seek or acquire a good/service from AA. It was a separate transaction, and they were not the intended beneficiary of the original transaction. |
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P buys F, except Fuel obtains the new audit, and audit favorably reported....same as above. |
Good was acquired for a specific [person] - |
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Premie was given supplemental bad oxygen, was injured. Premie didn't contract the services. Standing? |
Yes. Baby is intended beneficiary of hospital services. |
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E'r provides health insurance and pays whole cost, at benefits mtg asks is preexisting and is assured they are. Conn elects to have employer insurance, foregoing Spouse insurance. Subsequent claims denied for preexisting. Conn sues Insurance. Standing? |
Yes, standing. Employee health insurance - "intended beneficiary" because employer pays specific amount for individuals |
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Snake's lawyer, paid by state, Snake doesn't pay for lawyer services, snake writ was denied - he sues lawyer for DTPA. Standing? |
No standing, paid for by state and purchased by someone else. |
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Same snake facts continuing except lawyer decides - lawyer sees in prison and says writ is filed and not true, does Snake have standing to sue? |
No, if it was given without purchase, no standing. Gratuitous act does not constitute consumer because he didn't pay for it.
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After seeing ad in commercial, you drive 5 hours to buy tv, store is sold out and new tv is $1500 more. Standing to sue for misrepresentation? |
Yes, standing because there doesn't have to be a purchase, because SOUGHT. (Bait & Switch) |
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Snake's uncle hires attorney, lawyer sees snake and assures him its being taken care of. Does snake have standing to sue for unconscionability? |
Yes, although the services were purchased by the Uncle, Snake was the intended beneficiary. |
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Hank takes truck to brake shop for problems, owner provides free estimate and drives truck in brick wall - does estimate and gives truck back. Hank sues for breach of warranty under DTPA. Standing? |
No, no consumer standing because he did not seek or acquire a good/service that forms the basis of his complaint. Brake estimate was no the complaint. |
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Gratuitous Act |
There is no standing because there is no purchased good or service under the DTPA |
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Jones v Star - |
One does not have to pay for goods/services under the act |
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Is money a good/service? |
No, money is not a service. |
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Extensions of Credit |
A person who seeks "only extension of credit and nothing more is NOT a consumer. Refinancing is just money, No standing. Seeking to acquire a loan - NO standing. Repoing a car is service sometimes, may be standing. |
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B buys Dodge after financing loan from Arlen bank, Arlen demands he refinance from another bank - other bank says they will at first, but does not give loan. B sues both banks under DTPA. Consumer standing? |
A person who seeks "only extension of credit and nothing more" is NOT a consumer. Refinancing is just money and money is not good/service. |
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Dale orders 1000 cookies, sign agreement and gives lien on house if he doesn't pay. Unable to pay, cookies delivered - GS moves to foreclose. He asks and is assured for 5000. Doesn't and loses house. Standing? |
No, he is only seeking to acquire money. |
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Builder and B.JR. sign docs at bank and thinks theyre getting construction loan. Bank seeks to recover on loan. Builder sues under DTPA, Bank sues for summary judgment claiming no standing - builders state bank provided services when discussed length and APR of loans. |
Seeking to acquire $ - no standing. Financial advise is objective, independent of loan, in this case, the meeting was separate. The advice served no purpose to facilitating construction. |
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Man walks into bank, I need loan for small business. I need help with my small business. |
Maybe, because signifies that services may be rendered besides money |
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Chevy advertises new truck for 2995 in houston chron, Dale goes to buy truck, its misprint - should have been 29,950. Dale offers to buy truck for 2995 and is rejected. Ad doesn't say chevy isn't liable. DTPA LL violation? |
No, however if there was intent - yes. It depends on if Chevy intended to not sell as advertised. MUST SHOW INTENT NOT TO SELL AS ADVERTISED, (with advertising, must show intent) |
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Hurricane F buys beer for 2.40 case, after stolen, sues under DTPA laundry list? |
Yes, LL #27 selling after emergency - price gouging |
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4 Big Laundry List Violations |
Character, Quality, Agmt involves right/remedies or obligations that it doesn't, and Failure to disclose info about goods and services |
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Dale buys Hank's grill at garage sale - H told D, grill in perfect condition "like new" grill explodes and destroys house and vehicle. Dale responds "sales talk" Is this puffery? |
No, not an opinion - statement of material fact that it is in good working order - NOT PUFFERY. YES VIOLATION. |
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Dale said can't be liable for "garage-sale" exception |
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B bought a Dodge from Buck who said it had all parts, but he was just repeating what previous owner said. It didnt have parts - its clear buyer couldn't prove buck knowingly misrepresented characteristics. |
KNOWINGLY predicate NOT required |
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seeking to buy car, seller fails to mention car wrecked 6 times. when buyer finds out about wrecks, he wants to sue for failure to disclose about wrecks. Buyer can't prove intent, for failure to disclose, must prove knowing and intent. |
LL #24 failure to disclose info about good/services must |
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is "kickbutt" house - is that puffing? |
Yes, that is an opinion, which is puffery. |
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"one of the finest homes" puffing? |
Yes, that is an opinion, which is puffery |
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"excellent condition, like-new" puffing? |
No, that is a statement of material fact |
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Color blind guy buying car |
Misrepresentation of characteristic |
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Brakes are "completely fixed" |
Statement of material fact - NOT puffery |
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"everything is working fine" |
NOT puffery - factual statement |
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"good working order" |
factual statment - yes, misrepresentation |
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"The next blockbuster" |
future condition, sales talk - NO misrepresentation |
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"a lot of experience" 90% winning |
Puffery - NOT a statement of material fact |
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"slam dunk, he will do his best" |
Puffery, means nothing, no guarantee, not definite enough |
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Lease gives power to tow, lease says nothing about towing cars - but must park in your own spot |
Yes, misrepresentation |
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Leasing office says they wont tow |
You can sue on DTPA even when contract wording is clear because you relied on advice - misrepresentation because untrue |
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Unconscionability |
Taking advantage of a persons lack of ability, experience, |
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Dale falls behind on mortgage and bank goes after him - bank office replies "tough luck" |
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Zach buyers car - they knock off $100 sticker price. Uncon? |
No, not grossly unfair. |
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Excessive flattery |
Depends on sliding scale on if it takes grossly advantage |
