explaining that out-of-pocket and benefit-of-the-bargain are two measures of damages under the DTPA, and noting that a plaintiff may recover the greater of the two measures
How later courts described this case
- explaining that out-of-pocket and benefit-of-the-bargain are two measures of damages under the DTPA, and noting that a plaintiff may recover the greater of the two measures
- holding failure to request jury questions on the proper measure of damages resulted in failure of cause of action
- “Walters' burden of proof in this case was to show either the difference between the fair market value of the pickup as delivered and the value of the truck as it was represented; or the difference in value between that with which he parted and that which he received. He did neither. Walters had the burden of requesting jury issues on the proper measure of damages. Having failed to do so, his cause of action must fail.”
- defining out-of-pocket and benefit-of-the-bargain damages
Written by the judges who cited it.
The opinion
MAUZY, Justice,
concurring on Motion For Rehearing.
I concur in the result reached by the majority. I would however like to add that in cases brought under the Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com.Code Ann. § 17.41 et seq. (Vernon 1987), damages are recoverable “to compensate for the actual loss sustained as a result of the defendant’s conduct.” Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985). I would further note that under the facts of this case, either an “out of pocket” or “benefit of the bargain” measure of damages was appropriate. Nevertheless, as this court held in Kish , the “out of pocket” and “benefit of the bargain” rules are not the exclusive means of measuring damages in a DTPA action. 692 S.W.2d at 466 . The allowable measure of damages may appropriately include related and necessary expenses that are incurred after the deceptive act or practice has become appar *129 ent, and the measure of damages under either the “out of pocket” or “benefit of the bargain” theory should in no way be read as exclusive.
Chief Justice Phillips joins in this Concurring Opinion on Rehearing.