DTPA Notice, Deadlines, and Damages

Two things with nothing to do with the merits decide how a good DTPA claim goes: the notice that never went out, which stalls the suit until the letter is finally served, and the date nobody watched, which can end the claim outright. Both live in the chapter that creates the claim. This guide assumes the claim exists. What the act covers, who qualifies as a consumer, and which exemptions apply belong to the companion guide to what the Texas DTPA covers.

Written notice, 60 days ahead of the courthouse

Section 17.505(a) of the Business and Commerce Code makes written notice a prerequisite to filing a suit seeking damages under section 17.50(b)(1). It goes to the person at least 60 days before the suit is filed, counted backward from the filing date. The prerequisite is written against a damages suit under subdivision (b)(1), not against the injunction and restoration orders section 17.50(b) also lists.

The notice advises the person, in reasonable detail, of the consumer's specific complaint and of the amount of economic damages, damages for mental anguish, and expenses, including attorney's fees, if any, reasonably incurred in asserting the claim. The fee figure is required contents, not an optional extra.

The inspection right the 60 days carry

During that period a written request to inspect the goods that are the subject of the consumer's action or claim may be presented to the consumer, in a reasonable manner and at a reasonable time and place. It covers goods, not services.

The sequence chapter 17 builds around the notice

1. Notice is given

   Section 17.505(a) sets the contents and starts the count. Under section 17.5052(a) the recipient may tender a statutory settlement offer from the date of receipt through the 60th day after it.

2. Day 30 after receipt closes one exit

   Section 17.506(d) gives the defendant a defense to the cause of action if it tendered the claimed economic and mental anguish damages plus the reasonably incurred expenses, attorney's fees included, within 30 days after the day it received the notice.

3. The 60 days expire

   The prerequisite is met and a damages suit may be filed. The section asks for no second letter.

4. Deadlines inside the lawsuit begin

   A motion to compel mediation under section 17.5051(a) is due no later than the 90th day after service of a pleading seeking relief under the subchapter.

Skipping notice abates the suit rather than killing it

This is the point most often stated backwards. Filing without notice does not forfeit the claim. Section 17.505(c) lets a person sued who did not receive the required written notice file a plea in abatement no later than the 30th day after the date that person files an original answer.

Section 17.505(d) supplies two routes to abatement. The court shall abate the suit if, after a hearing, it finds the person entitled to abatement because notice was not provided as the section requires. Separately, and with no order of the court at all, the suit is automatically abated beginning on the 11th day after the date the plea in abatement is filed, provided both of two conditions hold: the plea is verified and alleges that the person did not receive the written notice required by subsection (a), and it is not controverted by an affidavit filed by the consumer before that same 11th day.

The pause has an end date. Section 17.505(e) runs the abatement until the 60th day after the date written notice is served in compliance with subsection (a). Two months are gone. The cause of action is not.

Two situations where the 60 days are not required

Section 17.505(b) names both: where 60 days of written notice is rendered impracticable by the necessity of filing suit in order to prevent the expiration of the statute of limitations, and where the claim is asserted by way of counterclaim. Notice is then not required, and the section 17.506(d) tender may be made within 60 days after service of the suit or counterclaim. Subsection (c) adds that the plea in abatement route does not apply where subsection (b) does.

Settlement offers, and the price of rejecting a good one

Section 17.5052 sets three windows for a statutory offer: from receipt of the notice through the 60th day after receipt; from the filing of an original answer through the 90th day after that filing where no mediation is conducted; and, where a mediation is conducted, from the day after it ends through the 20th day after that. The offer states two amounts separately, one settling the damages claim and one covering reasonable and necessary attorney's fees incurred as of the offer date. It is rejected unless the consumer accepts both parts by the 30th day after it was made.

Rejection has a price the merits cannot undo. Where the court finds the damages tendered were the same as, substantially the same as, or more than the damages the trier of fact found, subsection (g) caps recovery at the lesser of the amount tendered or the amount found, and subsection (h) caps fees at those incurred before the rejected offer, and at no more than the fee amount tendered where that amount matched or exceeded reasonable and necessary fees to that date. Subsection (i) switches both caps off where the offering party could not perform the offer or substantially misrepresented its cash value.

Section 17.5051(f) bars a party from compelling mediation where the economic damages claimed are less than $15,000, unless that party agrees to pay the mediation costs. Where a dispute is small enough for justice court, that procedure is described separately in the guide to how small claims cases work in Texas.

Two years, running from one of two dates

Section 17.565 sets the outer boundary. An action under the subchapter must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred, or within two years after the consumer discovered, or in the exercise of reasonable diligence should have discovered, the occurrence of that act or practice. The discovery alternative sits in the statute itself.

One extension exists and it is narrow: 180 days, available only if the plaintiff proves the failure to timely commence the action was caused by the defendant knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone commencing it. The notice period runs inside those two years, which is why section 17.505(b) drops the notice requirement when suit has to be filed to keep limitations from expiring.

What a prevailing consumer can recover

The floor in section 17.50(b)(1) is the amount of economic damages found by the trier of fact. Section 17.45(11) defines those as compensatory damages for pecuniary loss, including costs of repair and replacement, and excludes exemplary damages and damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, and loss of companionship and society.

Mental anguish is not part of that floor. Section 17.50(b)(1) makes it recoverable, as found by the trier of fact, on a finding that the conduct was committed knowingly, and equally on a finding that it was committed intentionally. Knowingly, under section 17.45(9), is actual awareness of the falsity, deception, or unfairness at the time of the act. Intentionally, under section 17.45(13), adds the specific intent that the consumer act in detrimental reliance on the falsity or deception, or in detrimental ignorance of the unfairness. Actual awareness may be inferred from objective manifestations, and intent may also be inferred from flagrant disregard of prudent and fair business practices.

The two multipliers run on different bases

Section 17.50(b)(1) holds two of them and they are not interchangeable. On a knowingly finding, the trier of fact may award not more than three times the amount of economic damages. On an intentionally finding, the trier of fact may award not more than three times the amount of damages for mental anguish and economic damages. One reaches economic damages alone. The other reaches the mental anguish figure and the economic figure together.

Both are permissions carrying a ceiling. The words are may award not more than three times, so trebling is the top of a range a fact finder is allowed to reach, never a consequence of the finding. Section 17.50(e) narrows the base: in computing additional damages under subsection (b), attorney's fees, costs, and prejudgment interest may not be considered.

Fees both directions, and relief that is not money

Section 17.50(d) says each consumer who prevails shall be awarded court costs and reasonable and necessary attorney's fees. That is a command. Section 17.50(c) runs the other way: on a finding that the action was groundless in fact or law, brought in bad faith, or brought for the purpose of harassment, the court shall award the defendant fees and costs.

Money is not the whole menu. Section 17.50(b)(2) allows an order enjoining the acts or the failure to act, subdivision (3) allows orders necessary to restore to any party money or property, real or personal, acquired in violation of the subchapter, and subdivision (4) permits any other relief the court deems proper, naming a receiver and revocation of a license to do business in this state where a judgment has gone unsatisfied within three months of the final judgment. The same subdivision then takes both of those back in one case. The court may not revoke or suspend a license to do business in this state, and may not appoint a receiver to take over the affairs of a person who has failed to satisfy a judgment, if that person is a licensee of or regulated by a state agency which has statutory authority to revoke or suspend a license or to appoint a receiver or trustee.

Read the chapter, including the part that appears twice

Section 17.56, the venue provision, is printed twice in chapter 17, in two separately enacted 1995 versions stating different rules, so neither is given here as the answer. Going to the source is the habit this subject rewards, and it is the standard behind the full guide library and behind the Texas consumer protection guides.