concurring.
I reluctantly concur in the result reached by the majority. The decision in this case is, unfortunately, dictated by the holdings in Weitzel v. Barnes, 691 S.W.2d 598 (Tex.1985), and United Postage Corp. v. Kammeyer, 581 S.W.2d 716 (Tex.Civ.App. — Dallas 1979, no writ). This is unfortunate because, in my view, the courts in those two cases incorrectly extended the applicability of the DTPA far beyond its intended scope. Although I recognize that in enacting the DTPA the legislature created a new statutory cause of action, I find it absurd to suggest that in doing so the legislature intended to do away with well-settled doctrines of contract and tort law.
In Kammeyer, a panel of this court held, in effect, that by alleging a cause of action under the DTPA a plaintiff can avoid the effect of the common law doctrine of merger. In that case, the plaintiff signed a written contract with the defendant. The contract, which plaintiff testified that he had read and fully understood, contained certain express provisions and further provided that plaintiff was not relying on any oral or written representations, promises, or warranties other than those contained in the written contract. Plaintiff later sued defendant, asserting that certain oral representations allegedly made by defendant violated the DTPA. Some of these oral representations were the exact converse of express provisions in the written contract. A trial court judgment in plaintiff’s favor was affirmed on appeal, despite the provisions in the written agreement.
The supreme court carried Kammeyer’s departure from common law principles one step further in Weitzel v. Barnes. The Weitzel court, which cited Kammeyer with approval, held that even where a written contract drafted by the plaintiff exists, oral representations made prior to the execution of the written contract and not integrated into the contract “are not only admissible but can serve as the basis of a DTPA action.” Weitzel, 691 S.W.2d at 600. In so holding, the court somewhat cryptically stated that “traditional contractual notions do not apply.” Id.
Furthermore, the Weitzel court was not satisfied to lay waste only to “traditional contractual notions.” In effect, the court also eliminated the concept, common to both tort and contract law, that a defendant’s actions must be an actual cause of plaintiff’s damages in order for a plaintiff to recover. The supreme court accomplished this by holding that a plaintiff need not rely on the representations which form the basis of his DTPA claim in order to recover on that claim. Instead, a plaintiff need only persuade the trier of fact that the representations were a “producing cause” of his damages. However, I am in accord with Justice Gonzalez, who dissented in Weitzel, in questioning how a representation that was not relied upon can ever be an actual cause of a plaintiff’s damages.
It is apparent to me that the Weitzel and Kammeyer decisions have inserted much unnecessary uncertainty into an important area of the law. A written contract, no *355matter how carefully negotiated and drafted by the parties, is subject to being brushed aside if a party brings a DTPA action alleging that contradictory oral representations were made and obtains a finding of fact in his favor. This situation is untenable and should not be the law.
In this respect, I agree with the position of Justice Gonzalez as expressed in his dissenting opinion in Weitzel:
This case demonstrates how far we have strayed from the Legislature’s intent of protecting the uneducated, the unsophisticated and the poor against false, misleading and deceptive practices. I cannot believe that the Legislature ever intended for the Deceptive Trade Practices Act to be used to bail out an attorney who does not inspect the used house he purchases even though he had actual notice, prior to closing, that the city had condemned the property.
* * * * * *
It should not be that any misrepresentation made in a vacuum, or made under circumstances that clearly showed its falsity and prevented reliance thereupon, would support a cause of action under the Act. This is necessarily true because the Legislature drew a statute requiring some type of causal connection between the deceptive act or practice and the actual damages suffered.
Yet, the court’s opinion offers no guidance as to what is required to prove producing cause. In this case, and in other cases involving misrepresentations, what other proof could there be except reliance? Indeed, the court ignores this facet of the question presented on appeal, and allows an attorney cognizant of all facts at the time of closing to lure his vendors into a snare, swiftly draw it tight around them, and recover treble damages.
In summary, it is absurd to allow a consumer to recover treble damages for a misrepresentation if that misrepresentation did not induce the consumer to enter into the contract.
Weitzel, 691 S.W.2d at 601, 603 (emphasis in original).
In the case at bar, the plaintiff was an engineer whose job entailed the reading of complex contracts. Plaintiff admitted that he purchased the house at a price approximately 25% lower than prices of comparable homes in the neighborhood and that he was aware at the time of purchase that its foundation was faulty. Plaintiff had solicited several bids before retaining Brown to perform the repairs.
Plaintiff was obviously not one of the unsophisticated, uneducated, or unwary consumers whom the DTPA was intended to protect. Rather, plaintiff has used the DTPA not as a shield against a seller’s unconscionable conduct, but as a sword with which to extort treble damages from a firm that did more than was required by the written contract in an effort to satisfy its customer.
I reluctantly concur.