Soil-Structure Interaction Seminar - Foundation Performance ...

3. Lapse of statute of limitations
a. Lawsuit brought more than 2 years after consumer discovered or
should have discovered deceptive act or practice or breach of
warranty is barred.
4. Defendant was merely "puffing"
a. Mere expressions of opinion by a seller not made as a
representation of fact are not actionable under the DTPA.
Dowling v. NADW Marketing, Inc., 631 S.W.2d 726 (Tex. 1982).
b. A court of appeals has recognized puffery as a defense to the
DTP A; though the Texas Supreme Court denied the writ -of--etror,
they did not agree or disagree with the defense. Prudential Ins.
Co. v. Jefferson Associates, 839 S.W.2d 822, (Tex. App.--Austin),
writ denied per curiam, 843 S. W.2d 476 (Tex. 1992).
5. An offer to settle in full was made by the Defendant and refused by the
Plaintiff. DTPA § 17.506(d)
6. The Defendant gave reasonable and timely written notice of his reliance
on information from the government or another source, and he did not
know, nor could have known, of the falsity or inaccuracy of the
information. DTPA § 17.506.
7. Note: If the court finds that Plaintiffs action is groundless, or was
brought in bad faith or for the purpose of harassment, Defendant may
recover its attorneys' fees and court costs as a counterclaim. DTPA
§ 17.50(c).
IV. Residential Construction Liability Act (RCLA) --Tex. Prop. Code Ann. §§ 27.001 et
seq. (Vernon Supp. 1994) [Added by Acts 1989, 71st Leg., ch. 1072, § 1, eff. Sept. 1,
1989; Amended by Acts 1993, 73rd Leg., ch. 797, §§ 1, 2 eff. Aug. 30, 1993].
A. Applicability
1. Applies only to residential construction: Single-family, duplexes,
triplexes, quadruplexes, and condominium and cooperative apartment
units. RCLA § 27.001.
2. Applies only to "construction defects" --but does not include claims for
damages for personal injury (including mental anguish) or death, or for
damages to goods. RCLA § 27.002.
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