Common Law Defenses to Claims DTPA
By: Richard M. Hunt Over the last several years, Texas courts, and especially the Texas Supreme Court, have consistently narrowed the common law defenses that may be asserted in an action under the Deceptive Trade Practices Act (DTPA).1 Today, only one such defense has practical effectiveness. This article reviews what has been destroyed, and what remains, in order to assist practicing lawyers as they prosecute or defend claims under the DTPA, and to assist the courts in developing a coherent scheme for the continued development of this area of the law. 1. Estoppel as a Defense One of the most remarkable assertions of the death of a defense is found in Home Savings Association v. Guerra.2 Without any discussion or argument the court asserted that “[t]he common law defense of estoppel is not available in a DTPA action.”3 Under Texas law, proof of estoppel requires proof of a representation that is at least constructively known to be false.4 The Supreme Court has said that the purpose of the doctrine is to prevent “fraud resulting in injustice.”5 Guerra, if taken literally, would permit a consumer to defraud the defendant and avoid a defense based on that fraud. 2. Contractual Requirements of Notice of a Claim A single case disposes of contractual notice requirements in a DTPA case. In NL Well Service/NL Industries, Inc. v. Flake Industrial Services, Inc.,6 Flake rented industrial uniforms to NL Well Service. Under their agreement, NL Well Service was obligated to give written notice of any breach in writing within 10 days of the date of that breach or waive every claim for that breach.7 The court held that the notice requirement was void under the anti-waiver provisions in Section 17.42 of the DTPA.8 TO READ MORE, CLICK THE PDF ICON BELOW: View as PDF |