CASE NOTES - CONSUMER LAW - TEXAS DECEPTIVE TRADE PRACTICES ACT APPLIES TO PERSONS NOT ENGAGED IN THE BUSINESS OF SELLING - SINGLETON V PENNINGTON - SW2D

• NCJ Number: 54871
• Journal: Texas Tech Law Review Volume: 9 Issue: 3 Dated: (SPRING 1978) Pages: 621-632
• Author(s): R A CAMPBELL
• Date Published: 1978
• Length: 12 pages
• Corporate Author: Texas Tech University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE JUDICIAL INTERPRETATION THAT THE TEXAS DECEPTIVE TRADE PRACTICES ACT APPLIES TO TRANSACTIONS BETWEEN PRIVATE INDIVIDUALS AS WELL AS BETWEEN THE GENERAL PUBLIC AND THOSE IN THE BUSINESS OF SELLING IS CRITICIZED.

Abstract

THE BASIS FOR THE SUIT WAS THE PRIVATE SALE BY OWNER OF A BOAT, MOTOR, AND TRAILER ACQUIRED FOR HIS PERSONAL USE TO A BUYER WITH THE ASSURANCE THAT THE ITEMS PURCHASED WERE IN EXCELLENT WORKING ORDER. WITHIN 2 MONTHS OF THE SALE, THE PURCHASED ENGINE FAILED, AND THE BUYER BROUGHT SUIT AGAINST THE OWNER-SELLER UNDER THE TEXAS DECEPTIVE TRADE PRACTICES ACT (DTPA). THE OWNER'S DEFENSE WAS THAT THE TEXAS DTPA DOES NOT SPECIFICALLY REFER TO TRANSACTIONS BETWEEN PRIVATE INDIVIDUALS, BUT ONLY TO TRANSACTIONS INVOLVING PERSONS ENGAGED IN THE BUSINESS OF SELLING. THE COURT REJECTED DEFENSE ARGUMENTS ON THE BASIS THAT THE ACT PROHIBITS 'FALSE, MISLEADING OR DECEPTIVE ACTS OR PRACTICES IN THE CONDUCT OF ANY TRADE OR COMMERCE.' DEFENSE ARGUMENTS THAT THE FEDERAL TRADE COMMISSION'S INTERPRETATION OF THE FEDERAL DTPA REFERRED TO IN THE TEXAS ACT APPLIES ONLY TO THOSE ENGAGED IN SELLING ENTERPRISES THAT HAVE IMPACT ON THE GENERAL PUBLIC AND THAT COURTS IN OTHER STATES SO INTERPRET THEIR STATE DTPAS WERE REJECTED BY THE TEXAS COURT. THE COURT'S ANALYSIS IS FOUNDED ON THE UNARTICULATED PREMISE THAT, IN THE ABSENCE OF AN EXPRESS LEGISLATIVE INTENT TO RESTRICT ITS SCOPE, THE DTPA MUST BE BROADLY CONSTRUED. SUCH AN ANALYSIS MISINTERPRETS THE HISTORICAL BACKGROUND AND LEGISLATIVE INTENT OF THE DTPA. WITH THE WEIGHT OF COURT INTERPRETATION OF THE DTPAS SIMILAR TO THE TEXAS STATUTE HOLDING THAT SUCH ACTS APPLY ONLY TO THOSE IN THE BUSINESS OF SELLING WHO DEAL WITH THE GENERAL PUBLIC AND IN THE ABSENCE OF CLEAR AND SPECIFIC REFERENCE TO TRANSACTIONS BETWEEN PRIVATE INDIVIDUALS IN THE TEXAS ACT, IT IS THE RESPONSIBILITY OF THE PLAINTIFF TO ESTABLISH THAT THE ACT SO APPLIES. IMPLICATIONS OF THE DECISION ARE DISCUSSED. (RCB)