dtpa claim in Texas

2025DTPA Claim Against Desormeaux The elements of a DTPA claim are: “(1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a producing cause of the consumer’s damages.” Doe, 907 S.W.2d at 478 (citing Tex. Bus. & Com.

2025DTPA Claim Against Desormeaux The elements of a DTPA claim are: “(1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a producing cause of the consumer’s damages.” Doe, 907 S.W.2d at 478 (citing Tex. Bus. & Com.

2018General Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993). 4 See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (breach of fiduciary duty elements); Bradford v. Vento, 48 S.W.3d 749 , 754–55 (Tex. 2001) (fraud by nondisclosure elements); In re First Merit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (common-law fraud elements); Operation Rescue–Nat’l v. Planned Parenthood, 975 S.W.2d 546, 553 (Tex. 1998) (conspiracy to commit fraud elements); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) (DTPA claim elements); Doe v. Boys Clubs of Great

2018Upon further review, we have determined that the Peaces failed to present legally sufficient evidence in response to ITC and the McMahans’ no-evidence summary judgment ground regarding whether they sustained any damages, regardless of causation. 6 See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (breach of fiduciary duty elements); Bradford v. Vento, 48 S.W.3d 749 , 754–55 (Tex. 2001) (fraud by nondisclosure elements); In re First Merit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (common-law fraud elements); Operation Rescue–Nat’l v. Planned Parenthood,

2025Chapa, 212 S.W.3d at 304 ; Crawford v. Ace Sign, 917 S.W.2d 12 , 12–15 (Tex. 1996) (promises to perform did not turn nonperformance of contract into DTPA claim); accord Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 577 (Tex. App.—Texarkana 1997, no writ).

2023As for the DTPA claim, “a mere breach of contract, without more, does not constitute a ‘false, misleading or deceptive act’ in violation of the DTPA.” Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (per curiam) (citation and internal quotation marks omitted); see also Sw.

2025Chapa, 212 S.W.3d at 304 ; Crawford v. Ace Sign, 917 S.W.2d 12 , 12–15 (Tex. 1996) (promises to perform did not turn nonperformance of contract into DTPA claim); accord Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 577 (Tex. App.—Texarkana 1997, no writ).

2024Therefore, we agree with UMB that the same underlying facts applied to all claims alleged by InteliTrac, including the DTPA claim.5 5 We do not consider InteliTrac’s claims for breach of contract or promissory estoppel here because UMB’s expert already removed the percentage of time worked on these claims from its overall amount requested. –38– However, the fact that the claims are “all ‘dependent upon the same set of facts or circumstances,’ . . . does not mean they all required the same research, discovery, proof, or legal expertise.” Chapa, 212 S.W.3d at 313 (quoting Stewart Title Guar.

2024Co., 896 S.W.2d at 160–61 (holding that valid as-is clause negates causation required for DTPA claim); see also TEX.

2018Furthermore, a plaintiff asserting a DTPA claim does not have to meet the higher standard of proximate causation, which includes foreseeability as an element; rather, “only [a] producing cause must be shown.” Prudential Ins., 896 S.W.2d at 161 ; see 10 Bryant v. S.A.S., 416 S.W.3d 52, 65 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

2019On the contrary, the Latham court expressly stated that it is not enough to prove a DTPA violation; that violation “must have been the producing cause of actual damages.” Id.

2019On the contrary, the Latham court expressly stated that it is not enough to prove a DTPA violation; that violation “must have been the producing cause of actual damages.” Id.

2015See Marks, 319 S.W.3d at 658 ; see also Walden v. Jeffery, 907 S.W.2d 446, 447-48 (Tex. 1995) (holding that health care liability claim against dentist for statements regarding fit of dentures could not be recast as DTPA claim); Lopez v. Osuna, 2 The Act defines a health care provider as including any professional association “chartered by the State of Texas to provide health care, including: (ii) a dentist.” See Tex. Civ.

2015Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex. 2005) (patient's clai1n for sexual assault by another patient caused by nursing home's negligence in failing to provide adequate supervision and nursing services was health care liability claim); Murphy v. Russell, 167 S.W.3d 835, 839 (Tex. 2005) (claims doctor sedated patient after expressly representing and warranting he would not, could not be recast as DTPA action); Garland Community Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex. 2004) (negligent credentialing claims centered on the quality of doctor's treat1nent were inextricably intertwined wit

2021Code § 17.45(4) (consumer is individual “who seeks or acquires by purchase or lease any goods or services”); Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 174-75 (Tex. 1980) (obtaining loan or extension of credit does not qualify individual as “consumer” because money is not good or service); see also La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 567 (Tex. 1984) (“Because the loan involves only the extension of credit, La Sara has not shown itself to be a consumer and therefore has no DTPA claim.”).

2021Compass Bank v. Collier, No. 09-19-00112-CV, 2020 WL 6494213 , at *12 (Tex. App.—Beaumont Nov. 5, 2020, no pet.) (mem. op.) (citing Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex. 1983) (purchaser could sue bank under DTPA for unconscionable course of conduct in foreclosing on partially constructed home because purchaser did not seek to borrow money; they sought to acquire a house); Ebrahimi v. Caliber Home Loans, Inc., No. 05-18-00456-CV, 2019 WL 1615356 , at *8 (Tex. App.—Dallas Apr. 15, 2019, pet. denied) (mem. op.)); see La Sara Grain Co. v. First Nat’l Bank of Mercedes,

2026Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992) (orig. proceeding) (concluding that DTPA claim was factually intertwined with contract claim and thus subject to arbitration clause).

2015Anglin Co. v. Tipps, 842 S.W.2d 266, 271 , 36 Tex. Sup. Ct. J. 205 (Tex. 1992) (holding DTPA claim was factually intertwined with contract claim and thus subject to arbitration clause). 26 Bocanegra v. Aetna Life Ins.

1999Co., 843 S.W.2d 480, 485 (Tex.1992) (Hecht, J., concurring, joined by four justices), citing Phipps v. Fuqua, 32 S.W.2d 660, 663 (Tex.Civ.App.-Amarillo 1930, writ ref'd) (discussing that subrogation is for indemnity and nothing more); Trimble v. Itz, 898 S.W.2d 370, 371-72 (Tex.App.-San Antonio), writ denied per curiam, 906 S.W.2d 481 (Tex.1995) (discussing why an insurer cannot assert a DTPA claim in a subrogation matter).

1999Co., 843 S.W.2d 480, 485 (Tex.1992) (Hecht, J., concurring, joined by four justices), citing Phipps v. Fuqua, 32 S.W.2d 660, 663 (Tex.Civ.App.-Amarillo 1930, writ ref'd) (discussing that subrogation is for indemnity and nothing more); Trimble v. Itz, 898 S.W.2d 370, 371-72 (Tex.App.-San Antonio), writ denied per curiam, 906 S.W.2d 481 (Tex.1995) (discussing why an insurer cannot assert a DTPA claim in a subrogation matter).

2015Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 367 (Tex.1987). 4 Neeley v. Bankers Trust Co. of Texas, 757 F.2d 621 (5th Cir.1985), relied on by the court of appeals, is distinguishable because the question submitted in that case at least included the necessary elements of false representation, materiality, and reliance, and did not appear to be submitted as part of some other theory of recovery, whereas Kenneco's question was submitted as part of its Insurance Code/DTPA claim. 5 “Unfair or deceptive act or practice” means any of the following: (1) Making or causing to be made any sta

1998Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 367 (Tex.1987). [4] Neeley v. Bankers Trust Co. of Texas, 757 F.2d 621 (5th Cir.1985), relied on by the court of appeals, is distinguishable because the question submitted in that case at least included the necessary elements of false representation, materiality, and reliance, and did not appear to be submitted as part of some other theory of recovery, whereas Kenneco's question was submitted as part of its Insurance Code/DTPA claim. [5] "Unfair or deceptive act or practice" means any of the following: (1) Making or causing to be made any

2005The motion for summary judgment also argued, Dr. Ketter cannot base his DTPA claim on an alleged gross disparity between the value received and the consideration paid because to be actionable under DTPA § 17.45(5)(A), the resulting unfairness must be “glaringly noticeable, flagrant, complete and unmitigated.” Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.1985) (defining the term “grossly unfair”).

2000See Chastain v. Koonce, 700 S.W.2d 579, 581 (Tex.1985) (purchasers of lots, who complained of misrepresentations relating to other nearby lots, were “consumers” even though they complained about lots other than the lots purchased); Sanchez v. Guerrero, 885 S.W.2d 487, 490 (Tex.App.-E1 Paso 1994, no writ) (broker’s failure to mention that home’s previous owner was child molester supports finding of DTPA violation).

2006Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 744 (Tex.App.-Fort Worth 2005, no pet.); Century 21 Real Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 126 (Tex.App.-Texarkana 1994, writ denied).

2006Head v. U.S. Inspect DFW, Inc. , 159 S.W.3d 731, 744 (Tex. App.—Fort Worth 2005, no pet.); Century 21 Real Estate Corp. v. Hometown Real Estate Co. , 890 S.W.2d 118, 126 (Tex. App.—Texarkana 1994, writ denied).

2015Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex. 2005) (holding patient’s claim based on sexual assault by another patient caused by nursing home’s negligence in failing to provide adequate supervision was health care liability claim); Murphy v. Russell, 167 S.W.3d 835, 839 (Tex. 2005) (holding claims doctor sedated patient after expressly representing and warranting he would not, could not be recast as DTPA claim); Osuna, 453 S.W.3d at 69 (holding claimant’s assertion that midwife violated DTPA and engaged in fraud and misrepresentation was in actuality health care liability claim); but see

2014Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex.2005) (holding patient’s claim based on sexual assault by another patient caused by nursing home’s negligence in failing to provide adequate supervision was health care liability claim); Murphy v. Russell, 167 S.W.8d 835, 839 (Tex.2005) (holding claims doctor sedated patient after expressly representing and warranting he would not, could not be recast as DTPA claim); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 542 (Tex.2004) (holding negligent credentialing claims centered on quality of doctor’s treatment and were inextricably intertwined with

1995Id. (citing Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 55 (Tex.App. — Houston [1st Dist.] 1990), aff'd, 836 S.W.2d 160 (Tex.1992)); see also Cameron v. Terrell & Garrett, Inc., 599 S.W.2d 680, 682-83 (Tex.Civ.App. — Fort Worth 1980), rev’d, 618 S.W.2d 535 (Tex.1981) (defendants listed home for sale stating it had 2400 square feet of heated and air conditioned space, jury determined that defendants misrepresented the square footage; trial and appellate courts held no DTPA violation because no evidence putting them on notice that information supplied by seller was false or that they undertook

1994See, e.g., Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 368 (Tex.1987) (holding that newborn baby was consumer of hospital’s services); Chastain v. Koonce, 700 S.W.2d 579, 582-83 (Tex.1985) (refusing to require intent or knowledge for defendant to be liable for unconscionable conduct); Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex.1985) (holding that “consumer” can be anyone who acquires goods that provide basis for DTPA complaint even if goods were paid for by someone other than plaintiff); Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983) (refusing to require that

2010See Perry v. Del Rio , 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding) (explaining that appellate remedy is inadequate, justifying mandamus relief, when parties stand to lose their substantial rights); Hines , 843 S.W.2d at 468 (stating that, if trial court denies timely plea in abatement by DTPA defendant complaining of plaintiff’s failure to give required notice, defendant is entitled to seek mandamus relief); Williams , 958 S.W.2d at 271 (same as Hines ); In re Hodge , 2006 WL 137428 , at *2 (granting mandamus relief as to trial court’s denial of plea in abatement where plaintiff failed t

2003See, e.g., Hines, 843 S.W.2d at 469 (failure of plaintiff to give mandatory 30 day notice of DTPA claim to defendant best cured by abatement).

2015Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex. 1995); see also Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex. 1985) [**33] (admitting parol evidence to establish misrepresentation in DTPA claim); Restatement (Second) of Contracts, § 214 cmt. c (″What appears to be a complete and binding integrated agreement may be a forgery, a joke, a sham, or an agreement without consideration, or it may be voidable for fraud, duress, mistake, or the like, or it may be illegal.

2013See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 824 (Tex. 2012) (noting reliance is an element of a section 17.50(a)(1) DTPA claim); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2003) (same); Spector v. Norwegian Cruise Line, Ltd., No. 01-02-00017-CV, 2004 WL 637894 , at *7 n.16 (Tex. App.—Houston [1st Dist.] March 30, 2004, no pet.) (noting Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex. 1985), which held reliance was not an element of recovery for a DTPA claim, was decided before the statute was amended in 1995 to require detrimental reliance).

2017Corp., 945 S.W.2d 812, 815 (Tex. 1997)). 1 Section 17.50(b)(3) allows a consumer who prevails on a DTPA claim to obtain “orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter.” TEX.

2017Corp., 945 S.W.2d 812, 815 (Tex. 1997)). 1 Section 17.50(b)(3) allows a consumer who prevails on a DTPA claim to obtain “orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter.” TEX.

2018See also Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 862 (Tex. 1999) (holding plaintiff must elect recovery under either DTPA or fraud after remand); Holland v. Hayden, 901 S.W.2d 763 , 767 n.8 (Tex. App.— Houston [14th Dist.] 1995, writ denied) (holding that when defendant’s negligent act and DTPA violation are both the proximate cause of the same damages, an award of both exemplary damages and statutory treble DTPA damages amounts to a double recovery of punitive damages).

2016In Gunn Infiniti Inc. v. O’Byrne, a jury awarded the plaintiff mental anguish damages for fraud and a DTPA violation after a used car salesman misrepresented the condition of an Infiniti. 996 S.W.2d 854, 855-56 (Tex.1999).

2024See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 825 (Tex. 2012) (instructing that DTPA restoration is available to prevailing consumer); Leifester v. Dodge Country, Ltd., No. 03-06-00044-CV, 2007 WL 283019 , at *3 (Tex. App.—Austin Feb. 1, 2007, no pet.) (mem. op.) (noting that rescission is remedy available under DTPA claim and not independent action).

2013See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 824 (Tex. 2012) (noting reliance is an element of a section 17.50(a)(1) DTPA claim); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2003) (same); Spector v. Norwegian Cruise Line, Ltd., No. 01-02-00017-CV, 2004 WL 637894 , at *7 n.16 (Tex. App.—Houston [1st Dist.] March 30, 2004, no pet.) (noting Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex. 1985), which held reliance was not an element of recovery for a DTPA claim, was decided before the statute was amended in 1995 to require detrimental reliance).

2014Continental Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d at 389-90 (stating that there was no evidence to support the DTPA claim because the representation simply concerned the failure to dredge the area to the depth required by the contract).

2014Continental Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d at 389-90 (stating that there was no evidence to support the DTPA claim because the representation simply concerned the failure to dredge the area to the depth required by the contract).

2025(Ted) Terry, Jr., P.C., 284 S.W.3d 416, 439 (Tex. App.—Austin 2009, no pet.) (holding the appellants’ complaint that their attorney had undisclosed alcohol and substance abuse addictions sounded in negligence rather than DTPA because the allegation went to the attorney’s competence and the adequacy of the legal services provided); Greathouse, 982 S.W.2d at 172 - 11 - 04-24-00599-CV (holding a complaint that a lawyer misrepresented legal services would be of competent quality constituted a negligence claim, not a DTPA claim). 4 The DTPA damages pled by the Martinez family are for the lost reven

2025(Ted) Terry, Jr., P.C., 284 S.W.3d 416, 439 (Tex. App.—Austin 2009, no pet.) (holding the appellants’ complaint that their attorney had undisclosed alcohol and substance abuse addictions sounded in negligence rather than DTPA because the allegation went to the attorney’s competence and the adequacy of the legal services provided); Greathouse, 982 S.W.2d at 172 - 11 - 04-24-00599-CV (holding a complaint that a lawyer misrepresented legal services would be of competent quality constituted a negligence claim, not a DTPA claim). 4 The DTPA damages pled by the Martinez family are for the lost reven

2023See Alexander, 146 S.W.3d at 117 .

2018Alexander v. Turtur & Assocs., 146 S.W.3d 113, 117 (Tex. 2004); Brown v. Bank of Galveston, 963 S.W.2d 511, 514 (Tex. 1998).

2025As such, Continental’s misrepresentations gave rise only to a breach of contract, not a DTPA violation . . . .”); Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 , 742–43 (Tex. App.—Fort Worth 2005, no pet.); Prudential Ins.

2025As such, Continental’s misrepresentations gave rise only to a breach of contract, not a DTPA violation . . . .”); Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 , 742–43 (Tex. App.—Fort Worth 2005, no pet.); Prudential Ins.

2025(Ted) Terry, Jr., P.C., 284 S.W.3d 416, 439 (Tex. App.—Austin 2009, no pet.) (holding the appellants’ complaint that their attorney had undisclosed alcohol and substance abuse addictions sounded in negligence rather than DTPA because the allegation went to the attorney’s competence and the adequacy of the legal services provided); Greathouse, 982 S.W.2d at 172 - 11 - 04-24-00599-CV (holding a complaint that a lawyer misrepresented legal services would be of competent quality constituted a negligence claim, not a DTPA claim). 4 The DTPA damages pled by the Martinez family are for the lost reven

2025(Ted) Terry, Jr., P.C., 284 S.W.3d 416, 439 (Tex. App.—Austin 2009, no pet.) (holding the appellants’ complaint that their attorney had undisclosed alcohol and substance abuse addictions sounded in negligence rather than DTPA because the allegation went to the attorney’s competence and the adequacy of the legal services provided); Greathouse, 982 S.W.2d at 172 - 11 - 04-24-00599-CV (holding a complaint that a lawyer misrepresented legal services would be of competent quality constituted a negligence claim, not a DTPA claim). 4 The DTPA damages pled by the Martinez family are for the lost reven

2013See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 824 (Tex. 2012) (noting reliance is an element of a section 17.50(a)(1) DTPA claim); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2003) (same); Spector v. Norwegian Cruise Line, Ltd., No. 01-02-00017-CV, 2004 WL 637894 , at *7 n.16 (Tex. App.—Houston [1st Dist.] March 30, 2004, no pet.) (noting Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex. 1985), which held reliance was not an element of recovery for a DTPA claim, was decided before the statute was amended in 1995 to require detrimental reliance).

2013See Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 824 (Tex. 2012) (noting reliance is an element of a section 17.50(a)(1) DTPA claim); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2003) (same); Spector v. Norwegian Cruise Line, Ltd., No. 01-02-00017-CV, 2004 WL 637894 , at *7 n.16 (Tex. App.—Houston [1st Dist.] March 30, 2004, no pet.) (noting Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex. 1985), which held reliance was not an element of recovery for a DTPA claim, was decided before the statute was amended in 1995 to require detrimental reliance).