# W.O. Bankston Nissan, Inc. v. Walters

> Texas Supreme Court · May 11, 1988 · 31 Tex. Sup. Ct. J. 406

URL: https://www.frixlaw.com/law-library/cases/9682113

## Case

- **Full name:** W.O. BANKSTON NISSAN, INC., Petitioner, v. Kelly Joe WALTERS, Respondent
- **Court:** Texas Supreme Court
- **Decided:** May 11, 1988
- **Citations:** 31 Tex. Sup. Ct. J. 406; 754 S.W.2d 127; 1988 Tex. LEXIS 49; 1988 WL 45193
- **Precedential status:** Published
- **Opinion:** Concurrence by Mauzy
- **Judges:** Wallace, Mauzy, Robertson, Phillips
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682113

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682113. Public record. Not legal advice.