Soil-Structure Interaction Seminar - Foundation Performance ...

(3) Includes any diminution in market value of the property
after repairs are made. Ludt v. McCullom, 762 S.W.2d
575 (Tex. 1988).
(4) Includes damages for mental anguish ("soft" damages).
J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38
(Tex. App.--Houston [1st Dist.] 1990, no writ); HOW Ins.
Co. v. Patriot Fin. Servs. of Texas, Inc., 786 S.W.2d 533
(Tex. App.--Austin 1990, writ denied).
3. Automatic doubling of any actual damages of $1,000 or less.
4. "Additional damages:" up to 3 times the amount of actuals in excess of
$1,000 may be awarded if Plaintiff shows that the Defendant committed
the deceptive acts or practices "knowingly." See March v. Thiery, 729
S.W.2d 889 (Tex. App.--Corpus Christi 1987, no writ) ("knowingly"
means actual awareness of defects in construction of house); Jim Walter
Homes, Inc. v. Valencia, 690 S.W.2d 239 (Tex. 1985).
a. Treble damages may not be recovered from the Real Estate
Recovery Fund, which was established in order to pay back
monetary damages suffered by victims of unscrupulous real estate
agents. Pace v. Texas, 650 S.W.2d 64 (Tex. 1983).
5. Court costs and reasonable and necessary attorneys' fees are recoverable.
F. Remedies Provided by DTPA Are Not Exclusive-- DTPA § 17.53
1. However, a Plaintiff may not obtain double recovery of actual or punitive
damages where the same acts comprise the DTP A violation and the basis
for the other cause of action.
G. Defenses to Liability under the DTP A
1. Plaintiff is not a "consumer"
a. Burden of proof is upon claimant to establish his status as a
consumer. Farmers & Merchants Bank v. Ferguson, 617 S.W.2d
918 (Tex. 1981).
2. Plaintiff has more than $25 million in assets, or is owned or controlled by
an entity with $25 million or more in assets, and thus does not qualify as
a "business consumer." Eckman v. Centennial Savings Bank, 784 S.W.2d
672 (Tex. 1990).
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