PJC Business

PJC 102.5

DTPA/I NSURANCE C ODE

PJC 102.5 Failure to Disclose Information (DTPA § 17.46(b)(24)) Failing to disclose information about goods [ or services ] that was known at the time of the transaction with the intention to induce Paul Payne into a trans action he otherwise would not have entered into if the information had been disclosed [ or ] COMMENT When to use. PJC 102.5 should be used with PJC 102.1 to submit a cause of action under Tex. Bus. & Com. Code § 17.46(b)(24) (DTPA). Use of “or.” If used with other instructions (see PJC 102.2–102.4 and 102.6), PJC 102.5 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)(24) makes it a deceptive trade practice to fail “to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.” 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). 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 102.5 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 .

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