Know your rights: Texas Deceptive Trade Practices Act may get you three times your damages
Jan. 7, 2012 at midnight
Updated Jan. 6, 2012 at 7:07 p.m.
By Richard Alderman
I bought a used car from a small used car dealer. I asked whether the car had ever been in a wreck and was expressly told, "I have personal knowledge of this car since it was new, and it has never had an accident." This statement closed the deal, and I paid cash for the car. When I brought the car in to the dealership for its 15,000 mile check up, I was told it had some serious frame damage from an earlier accident. In fact, the same dealership had repaired the car. What are my rights?
The Texas Deceptive Trade Practices Act is our state's consumer protection law. Its most powerful provision makes a seller liable for any statement about goods or services that is false, deceptive or misleading. The law applies to all sellers, regardless of whether they are in business, and whether the seller knew that the statement was untrue. The law allows you to collect your economic damages, usually the difference between what you paid and what it was worth or the cost of repairs, as well as your attorney's fees. If you can show the seller knew or should have known what he said was false, deceptive or misleading, you can recover up to three times your damages.
In your case, the seller clearly violated this law by stating that the car was never in an accident, a statement that was false. He also appears to have known or should have known that what he said was false. If he had personal knowledge of the car, he would have known it had a serious accident. I suggest you talk with the seller and let him know you know about this law. In my opinion, a fair settlement at this point would be the return of your money in exchange for the car. If he refuses to settle with you, consider speaking with a consumer law attorney. Remember, your attorney can recover his or her fees from the seller if you win in court.
I was divorced in October. Can I still file a joint return for 2011?
Your filing status is based on whether you were married on Dec. 31. In other words, you cannot file a joint return.
I was hired three months ago for an annual salary of $52,000. Right after Christmas, I was told I was being laid-off. Is this a breach of contract?
Whether there is a breach of contract depends on the terms of your agreement with your employer. Unless you have a contract to work for a specific period of time, your agreement will be considered "at will" and you can be fired at any time.
The mere fact you have a yearly salary does not necessarily mean the contract is for a year. You must show that your employer hired you to start work on one day and end at some specific date in the future. The agreement could be for a year, or any other period of time. On the other hand, if you simply were hired given a yearly salary and nothing was said about the length of the contract, the agreement probably will be considered "employment-at-will" and you could be fired at almost anytime, with little or no notice. If your agreement is in writing, it is also important to review all the other terms. For example, read any provisions dealing with when you can be fired or what notice you are entitled to before you are fired because those provisions control. Bottom line - to establish a breach of contract you must prove that you were hired for a specific period of time, and fired before that time expired.
I sent a check to a local charity before Christmas. They didn't cash the check until 2012. Can I still take a deduction on my 2011 income taxes?
You may take a charitable deduction in the year you made the payment (2011), not the year it is received or cashed.
I have a durable power of attorney given to me by my recently deceased mother. Can I still use this to wind up her affairs?
The authority granted by a power of attorney ends upon the death or incompetence of the grantor. Because this power of attorney was "durable" it would continue even if the mother became incompetent. But even a durable power of attorney terminates at death. Your mother's will now controls the distribution of her property, and the executor manages her estate.
Do you want to know more about your legal rights? Check out my website, www.peopleslawyer.net
Richard Alderman, a consumer advocate popularly known as "the People's Lawyer," is a professor at the University of Houston Law School in Houston. His column appears weekly in the Victoria Advocate. Write to him at UH Law Center, Houston, Texas 77204-6391. He also maintains a Web page at www.peopleslawyer.net.