Form 8:7 DTPA – Petition
{STYLE OF THE CASE - FORM 1:3}
PLAINTIFF’S ORIGINAL PETITION & REQUEST FOR DISCLOSURE
A. Discovery-Control Plan
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1. Plaintiff intends to conduct discovery under Level 1 of Texas Rule of Civil Procedure 190.2 because this suit involves only monetary relief totaling $50,000 or less, excluding court costs, prejudgment interest, and attorney fees. {See O’Connor’s Texas Rules, “Discovery-Control Plans,” ch. 2-B, §2, p. 77.}
1. Plaintiff intends to conduct discovery under Level {2/3} of Texas Rule of Civil Procedure {190.3/190.4} because {explain}. {See O’Connor’s Texas Rules, “Discovery-Control Plans,” ch. 2-B, §2, p. 77.}
B. Parties
2. {For plaintiff designation, see FORM 1:4, supra; O’Connor’s Texas Rules, “Plaintiff,” ch. 2-B, §3.4, p. 81.}
3. {For defendant designation, see FORMS 1:5 through 1:12, supra; O’Connor’s Texas Rules, “Defendant,” ch. 2-B, §3.5, p. 82.}
C. Jurisdiction
4. {For jurisdiction allegations, see FORM 1:15, supra. It is not necessary to plead jurisdiction for most suits. See O’Connor’s Texas Rules, “Jurisdiction,” ch. 2B, §4, p. 83.}
D. Venue
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5. Venue for this suit under the Deceptive Trade Practices Act (DTPA) is proper in {______} County under Texas Business & Commerce Code section 17.56 and Texas Civil Practice & Remedies Code section {identify section in Chapter 15}. {Elaborate.} {See O’Connor’s COA, “Venue,” ch. 8, §6.3, p. 219.}
5. Venue for this suit under the Texas Deceptive Trade Practices Act (DTPA) is proper in {______} County under Texas Business & Commerce Code section 17.56 because this suit is filed in the county where {defendant/defendant’s authorized agent} solicited the transaction underlying this suit. {Elaborate.} {See O’Connor’s COA, “Venue,” ch. 8, §6.3, p. 219.}
5. {For other venue allegations, see FORM 1:16, supra. It is not necessary to plead venue, but pleading sufficient venue facts could avoid a motion to transfer venue. See O’Connor’s Texas Rules, “Venue,” ch. 2-B, §5, p. 85.}
E. Facts
6. On {date}, at {identify location}, {______} County, Texas, {describe events that resulted in lawsuit}.
7. {State other relevant facts in separately numbered paragraphs.} {See O’Connor’s Texas Rules, “Pleading a Cause of Action,” ch. 2-B, §6, p. 85.}
F. Count 1 – DTPA Claim
8. Plaintiff is a consumer under the DTPA because plaintiff is {an individual/a partnership/a corporation/the State of Texas/a subdivision or agency of the State of Texas} who {sought/acquired} {goods/services} by {purchase/lease}. {See O’Connor’s COA, “Plaintiff = consumer,” ch. 8, §2.1, p. 182; “Consumer Status Under DTPA,” chart 8-1, p. 186.}
9. Defendant is {identify status, e.g., an individual, a corporation, an association} that can be sued under the DTPA. {See O’Connor’s COA, “DTPA defendant,” ch. 8, §2.2, p. 197.}
10. Defendant violated the DTPA when defendant
{CHOOSE ONE OR MORE OF THE FOLLOWING}
(A) engaged in false, misleading, or deceptive acts or practices that plaintiff relied on to plaintiff’s detriment. Specifically, defendant {identify the deceptive acts and practices from the DTPA “laundry list,” located in Tex. Bus. & Com. Code §17.46(b)}. {Elaborate.} {See O’Connor’s COA, “False, misleading, or deceptive act or practice,” ch. 8, §2.3.1, p. 199.}
(B) breached an {express/implied} warranty. Specifically, defendant breached {identify warranty that defendant breached}. {Elaborate.} {See O’Connor’s COA, “Breach of warranty,” ch. 8, §2.3.2, p. 204.}
(C) engaged in an unconscionable action or course of action that, to plaintiff’s detriment, took advantage of plaintiff’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree. Specifically, defendant {identify the unconscionable course of action}. {Elaborate.} {See O’Connor’s COA, “Unconscionable act,” ch. 8, §2.3.3, p. 204.}
(D) used or employed an act or practice in violation of Texas Insurance Code chapter 541. Specifically, defendant {identify act or practice that violated chapter 541}. {Elaborate.} {See O’Connor’s COA, “Violation of Chapter 541,” ch. 8, §2.3.4, p. 206; “Deceptive Insurance Practices,” ch. 13-B, p. 291.}
(E) engaged in false, misleading, or deceptive acts or practices that violated a “tie-in” consumer statute. Specifically, defendant {identify the tie-in statute and the deceptive acts}. {Elaborate.} {See O’Connor’s COA, “Violation of tie-in statute,” ch. 8, §2.3.5, p. 206; “DTPA Tie-in Statutes,” chart 8-2, p. 207.}
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11. Plaintiff gave defendant notice as required by Texas Business & Commerce Code section 17.505(a). {See FORM 8:1, supra; O’Connor’s COA, “Presuit notice of claim,” ch. 8, §6.1, p. 217.} Attached as Exhibit {letter} is a copy of the notice letter sent to defendant, which is incorporated by reference.
11. It was impracticable for plaintiff to give defendant written notice under Texas Business & Commerce Code section 17.505(a) because plaintiff needed to file this suit to prevent the expiration of the statute of limitations. Therefore, written notice was not required. {Elaborate.} {See O’Connor’s COA, “Presuit notice of claim,” ch. 8, §6.1, p. 217.}
12. Defendant’s wrongful conduct was a producing cause of plaintiff’s injury, which resulted in the following damages: {identify damages}. {See O’Connor’s COA, “Producing cause of damages,” ch. 8, §2.4, p. 208; “DTPA damages,” ch. 8, §3.1, p. 209; “Damages That Must Be Specifically Pleaded,” chart 45-1, p. 1148.}
13. Plaintiff seeks recovery of unliquidated damages that are within the jurisdictional limits of this court. {See O’Connor’s Texas Rules, “Unliquidated damages,” ch. 2-B, §8.2, p. 88.}
{ADD PARAGRAPH 14 IF APPLICABLE}
14. Additional damages. Defendant acted {knowingly/intentionally}, which entitles plaintiff to recover treble damages under Texas Business & Commerce Code section 17.50(b)(1). {Elaborate.} {See O’Connor’s COA, “Additional damages,” ch. 8, §3.2, p. 211.}
15. Attorney fees. Plaintiff is entitled to recover reasonable and necessary attorney fees for prosecuting this suit under Texas Business & Commerce Code section 17.50(d). {Elaborate.} {See O’Connor’s COA, “Attorney fees,” ch. 8, §3.7, p. 212.}
{ADD SECTIONS G-K AS APPROPRIATE}
G. Count 2 – {Name of another cause of action}
16. In {the alternative/addition} to other counts, { identify another cause of action}. { In separately numbered paragraphs, identify elements and facts supporting the cause of action.} {For related claims, see O’Connor’s COA, “Related Causes of Action,” ch. 8, §7, p. 219.}
H. Equitable Relief
17. Plaintiff seeks {identify equitable relief sought}. {State facts supporting equitable relief.} {See O’Connor’s COA, “Equitable relief,” ch. 8, §3.4, p. 211; O’Connor’s Texas Rules, “Injunctive Relief,” ch. 2-C, p. 91; O’Connor’s Texas Civil Forms, FORM 2C:1.}
I. Jury Demand
18. Plaintiff demands a jury trial and tenders the appropriate fee with this petition. {See O’Connor’s Texas Rules, “Jury Demand,” ch. 2-B, §12, p. 90.}
J. Conditions Precedent
19. All conditions precedent to plaintiff’s claim for relief have been performed or have occurred. {See O’Connor’s Texas Rules, “Conditions Precedent,” ch. 2-B, §11, p. 89.}
K. Request for Disclosure
20. Under Texas Rule of Civil Procedure 194, plaintiff requests that defendant disclose, within 50 days of the service of this request, the information or material described in Rule 194.2. {See O’Connor’s Texas Rules, “Content of request,” ch. 6-D, §3.2, p. 413.}
L. Prayer
21. For these reasons, plaintiff asks that the court issue citation for defendant to appear and answer, and that plaintiff be awarded a judgment against defendant for the following:
{CHOOSE RELIEF SOUGHT}
a. Actual damages. {See O’Connor’s COA, “Pleading actual damages,” ch. 45-A, §3.2, p. 1146.}
b. Treble damages. {See O’Connor’s COA, “Additional damages,” ch. 8, §3.2, p. 211.}
c. {Describe equitable relief.}
d. Prejudgment and postjudgment interest. {See O’Connor’s COA, “Interest,” ch. 47, p. 1233.}
e. Court costs. {See O’Connor’s COA, “Court Costs,” ch. 48, p. 1239.}
f. Attorney fees. {See O’Connor’s COA, “Attorney Fees,” ch. 49, p. 1247.}
g. All other relief to which plaintiff is entitled. {See O’Connor’s Texas Rules, “Prayer,” ch. 2-B, §14, p. 90.}