General Practice, Solo and Small Firm Section of the State Bar of Texas

                                                                                                                          CONSUMER LAW

                                                                                                                                    SPRING 2020



Connor v. Hill Country Animal Hosp., 2019 Tex. App. W.L. 5251142; Tex. App. LEXIS 9133;(Tex. App.—Austin 2019) (mem. op.)


DTPA Claim Against Veterinarian Barred By Veterinary Licensing Act:  Plaintiff Conner took her dog to Dr. Holcomb and Hill Country Animal Hospital for an ear infection.  Dr. Holcomb prescribed (and Hill Country Animal Hospital sold) a topical medicine which, by the plaintiff’s account, led to a painful yeast infection in the dog’s ear.  Connor sued both defendants for veterinary negligence/malpractice and for misrepresentations of the medicine under the DTPA.  The trial court granted summary judgment to the defendants and Connor appealed.  Held:  Affirmed.  As to Connor’s DTPA claim, the Texas Veterinary Licensing Act, Texas Occupations Code § 801.507, barred Connor’s claims under the DTPA resulting “from veterinary malpractice or negligence.”  Her claims that Dr. Holcomb deliberately prescribed the wrong medicine and made misrepresentations to her about its effectiveness were insufficient to get around this statutory bar to her DTPA claim. 



Grove v. Franke, 2019 Tex. App. W.L.5243152; Tex. App. LEXIS 9165 (Tex. App.—Beaumont 2019) (mem. op.)


“Present Condition” Clause in Standard TREC Contract Bars Claims Against Sellers’ Real Estate Agents for Statutory Fraud in a Real Estate Transaction; Agents Entitled to Recover Attorney’s Fees as “Prevailing Party.”:  Plaintiff Grove purchased a log home in a transaction where the defendants acted as the sellers’ agents.  The parties used the standard TREC re-sale contract form and checked to “present condition” box disclaiming any warranties or representations. After closing, Grove discovered wood rot and termite damage (requiring the replacement of several logs) which was known by the seller and not disclosed on the Seller’s Disclosure Notice.  Grove sued the real estate agents for statutory fraud in a real estate transaction.  The trial granted the real estate agent defendants summary judgment and awarded them attorney’s fees pursuant to a “prevailing party” provision in the TREC contract.  Grove appealed.  Held:  Affirmed.  The court held that the “present condition” clause in the standard TREC contract negated the reliance element of Grove’s statutory fraud claim against the real estate agent defendants as a matter of law.  There was no evidence the agents knew about the existing damage.  The “prevailing party” clause in the TREC contract allowed the agents to recover their attorney’s fees in obtaining summary judgment.  That relief was not barred by the doctrine of merger. 









Millhollon v. Douglas, 2019 Tex. App. W.L. 6334695; LEXIS 10334 (Tex. App.—Ft. Worth  2019) (mem. op.)


Home Buyer’s DTPA Misrepresentation and Statutory Fraud Claims Not Barred by Independent Investigations.  The Millhollons sold their home to the Douglases in April 2014.  While they owned the home, the Millhollons had numerous problems with the plumbing, rain water drainage and the septic system.  They failed to disclose these problems on their Seller’s Disclosure Notice.  While the Douglases had the house inspected by a real estate inspector and a septic system inspector before closing, neither inspection revealed the undisclosed conditions.  Soon after closing, significant rains fell on the house and the undisclosed conditions were discovered. The jury found in favor of the Douglases on several theories, including DTPA misrepresentations, unconscionable action and statutory fraud in a real estate transaction.  The Millhollons appealed, complaining that the real estate and septic system inspections negated the Douglases’ reliance on any non-disclosures in the Seller’s Disclosure Notice.  Held:  Affirmed, with slight modification as to damages.  While an independent investigation through real estate inspections can defeat the “reliance” elements of the DTPA and statutory fraud, the investigations here did not result in a break in the chain of causation.  The inspections here were not directed to the property’s drainage, the sewer line’s slope or any of the other problems specific to the septic system at this house.



Sadeghian v. Jaco, 2020 Tex. App. W.L. 400172; LEXIS 670 (Tex. App.—Dallas 2020) (mem. op.)


DTPA Allows Debt Cancellation in addition to Money Damages:  Khosrow Sadeghian rented and then sold a house worth approximately $30,000.00 to David Jaco.  In exchange, he took a $10,000 down payment and a real estate lien note, deed of trust and vendor’s lien for $159,900, obligating Jaco to pay interest at 8.2% and 18% on matured but unpaid amounts.  Sadeghian told Jaco he would have the special warranty deed with vendor’s lien recorded at “the title office” and then send it to him later.  Sadeghian did not record the deed nor return it to Jaco. Instead, he executed another deed, conveying the house to  his personal real estate trust.  That deed was not recorded until three years later, one day after the receipt of the DTPA notice letter from Jaco’s counsel. The jury found that Sadeghian engaged in an unconscionable course of action under the DTPA and awarded Jaco $60,000.00 in economic damages and $500,000.00 in additional damages for knowing and intentional conduct.  The trial court entered judgment for Jaco awarding him treble damages of $181,800.00, attorneys’ fees and prejudgment interest.  The trial court also voided the promissory note, deed of trust and vendor’s lien.  Sadeghian appealed, claiming that the DTPA did not allow declaratory relief in addition to an award of damages.  Held:  Affirmed.  The DTPA expressly provides a number of remedies, including “any other relief which the court deems proper.”  Sadeghian’s argument to the contrary simply ignores this express language of DTPA § 17.50(b)(4).  Jaco was not required to elect between those remedies. 



Website designed and developed by Daniel Hofheinz