W. O. Bankston Nissan v. Kelly Joe Walters Book Reviews

W. O. Bankston Nissan v. Kelly Joe Walters by Supreme Court of Texas No. C-6531 Book Summary

CONCURRING OPINION ON MOTION FOR REHEARING I concur in the result reached by the majority. I would however like to add that in cases brought under the Deceptive Trade
Practices -Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.01 et seq. (Vernon 1987), damages are recoverable
"to compensate for the actual loss sustained as a result of the defendant's conduct." Kish v. Van Note, 692 S.W.2d 463, 466
(Tex. 1985). I would further note that under the facts of this case, either an "out of pocket" or "benefit of the bargain"
measure of damages was appropriate. Nevertheless, as this court held in Kish, the "out of pocket" and "benefit of the bargain"
rules are not the exclusive means of measuring damages in a DTPA action. 692 S.W.2d at 466. The allowable measure of damages
may appropriately include related and necessary expenses that are incurred after the deceptive act or practice has become
apparent, and the measure of damages under either the "out of pocket" or "benefit of the bargain" theory should in no way
be read as exclusive.

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