Motion Builder · Civil litigation

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app.clearprecedent.com / motion / 04e80f88

F. COUNT VI, VIOLATION OF TEXAS CONSUMER PROTECTION STATUTE (DTPA).

Count VI fails on two independent grounds: Plaintiff did not plead the sixty-day pre-suit notice that the DTPA requires as a condition of suit, and the complaint does not adequately plead consumer status as to the goods or services that form the basis of her complaint.

Because the pre-suit notice requirement is a statutory prerequisite to a suit for damages under Tex. Bus. & Com. Code § 17.50(b)(1), a complaint that omits any allegation of compliance with § 17.505 presents a claim with no basis in law on the face of the pleading under Rule 91a.1.

Independently, the complaint does not adequately plead consumer status. To qualify as a consumer under the DTPA, a plaintiff must (1) seek or acquire goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the complaint. Lukasik, 21 S.W.3d at 401.

Bound passage
Lukasik v. San Antonio Blue Haven Pools, Inc.

21 S.W.3d 394 (Tex. App. 2000), at 401

"To qualify as a consumer, the plaintiff must meet two requirements: (1) the person must seek or acquire goods or services by purchase or lease; (2) the goods or services purchased or leased must form the basis of the complaint."
Binding Texas Court of Appeals
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To qualify as a consumer under the DTPA, a plaintiff must (1) seek or acquire goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the complaint. Lukasik, 21 S.W.3d at 401.
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