PJC Business

PJC 102.4

DTPA/I NSURANCE C ODE

PJC 102.4

Misrepresented and Unlawful Agreements (DTPA § 17.46(b)(12))

Representing that an agreement confers or involves rights that it did not have or involve [ or ]

COMMENT When to use. PJC 102.4 should be used with PJC 102.1 to submit a cause of action under Tex. Bus. & Com. Code § 17.46(b)(12) (DTPA). Use of “or.” If used with other instructions (see PJC 102.2–102.3 and 102.5– 102.6), PJC 102.4 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)(12) prohibits “representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.” 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 remedies or obligations may be added to or substituted for the word rights in the above instruction. See DTPA § 17.46(b)(12); 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)). Misrepresentations about the future. A representation need not be untrue when made. Because DTPA § 17.46(b) applies to misrepresentations about the future as well as about the present, misrepresentations of present and future rights are covered by this instruction. See Smith v. Baldwin , 611 S.W.2d 611, 614–16 (Tex. 1980). Unlawful agreement. DTPA §17.46(b)(12) also prohibits representing that an agreement has terms that are “prohibited by law.” Because the Committee believes that the question of what is prohibited by law would be for the court, the jury would be asked only whether the representation occurred. In such a case, the question might include:

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