PJC Business

DTPA/I NSURANCE C ODE

PJC 102.3

PJC 102.3 Quality of Goods or Services (DTPA § 17.46(b)(7)) Representing that goods [ or services ] are or will be of a particular quality if they were of another [ or ] COMMENT When to use. PJC 102.3 should be used with PJC 102.1 to submit a cause of action under Tex. Bus. & Com. Code § 17.46(b)(7) (DTPA). Use of “or.” If used with other instructions (see PJC 102.2 and 102.4–102.6), PJC 102.3 must be followed by the word or , because a finding of any one of the acts or practices defined in the instructions would support recovery under the DTPA. Source of instruction. DTPA § 17.46(b)(7) prohibits “representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.” Use of statutory language. The supreme court has held that jury submissions of section 17.46(b) cases should follow the language of the statute as closely as possible but may be altered somewhat to conform to the evidence of the case. Spencer v. Eagle Star Insurance Co. of America , 876 S.W.2d 154, 157 (Tex. 1994); Brown v. American Transfer & Storage Co. , 601 S.W.2d 931, 937 (Tex. 1980); accord Regal Finance Co., Ltd. v. Tex Star Motors, Inc. , 355 S.W.3d 595, 601 (Tex. 2010) (adopting Spencer and Brown in a UCC article 9 case). Thus, if appropriate, the word quality may be replaced with the word standard or grade , and, if only goods and not services are involved, the word style or model may replace the word quality . See DTPA §17.46(b)(7); Brown , 601 S.W.2d at 937. Material terms, however, should not be omitted or substituted. See Transport Insurance Co. v. Faircloth , 898 S.W.2d 269, 273 (Tex. 1995) (construing DTPA section 17.46(b)(23), renumbered in 2001 as DTPA § 17.46(b)(24)). “Goods” includes real estate. The use of the word goods in PJC 102.3 is intended to cover real property. See DTPA § 17.45(1). If real estate is involved, how ever, it may be advisable either to include the statutory definition in the charge or to substitute a reference to the real estate in question for the word goods . Misrepresentations about future quality. Although not appearing in the statute, the words “will be” are used in PJC 102.3. The Committee believes this use to be appropriate under Brown , 601 S.W.2d at 937, and Smith v. Baldwin , 611 S.W.2d 611, 614–16 (Tex. 1980) (representation need not be untrue when made: DTPA § 17.46(b) applies to misrepresentations concerning both present and future quality of goods or services).

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