dissenting.
My main concern with the Court’s opinion is that the Court comes very close to making a simple breach of contract action into a treble damage deceptive trade practice action.
The question, as I understand it, is not whether the builder breached his contract. Though the house was ninety-eight percent completed, and there was substantial compliance, I can see an action for actual damages for breach of the contract. The plaintiff did not seek recovery for common law fraud or fraudulent misrepresentations; i. e., fraud in making a representation which the defendant did not intend to perform or keep when he made it.
As set out below, as I read the Deceptive Trade Practices Act,1 it states that where there is a present representation that goods and services are of a particular type or *619quality, and they are not, then there is a statutory violation. The Court’s opinion, in my view, enlarges the word “are” contained in section 17.46(b)(7) to “are, or will be in the future.”
The “misrepresentation” relied upon by the Court is that Baldwin would obtain a V.A. inspection compliance report. This representation was not of the existing nature or quality of the house. There is no finding of fact or conclusion of law that Baldwin ever misrepresented the existing or present state of affairs. The representation relied on by the Court was made by Baldwin at the time that the parties entered into the contract and concerns the future nature or quality of Baldwin’s work. The representation may constitute a warranty provision of the contract. However, Smith has waived2 the breach of warranty provision of the Deceptive Trade Practices Act, section 17.50(a)(2).
Smith relies entirely on misrepresentations under section 17.46(b)(7). This section of the act is concerned with present representations of the existing nature or quality of goods or services. One argument which Smith makes is that Baldwin did not intend to comply with the contract and thus misrepresented his intent with respect to the nature and quality of the house to be built. Section 17.46(b)(7) speaks of “representing that goods or services are of a particular standard” [emphasis added] and does not address representations of intent about goods or services. The Court’s opinion states that intent is not relevant, as does Pennington v. Singleton, 606 S.W.2d 682 (Tex.1980).
The interpretation given to section 17.-46(b)(7) by the Court rewrites the statute to state: representing that goods or services are — or will be — of a particular standard or that goods are — or will be — of a particular style or model. The Court’s rationalizations for this interpretation are the legislative directive to construe the act liberally and the entirety of the legislative scheme.
This reasoning ignores at least two important factors in the legislative scheme. First, the Legislature indicated that there are some acts or practices which might give the consumer a cause of action for damages but which would not be violations of the DTPA. Section 17.48 provides in pertinent part:
A violation of a provision of law other than this subchapter is not in and of itself a violation of this subchapter. An act or practice that is a violation of a provision of law other than this subchapter may be made the basis of an action under this subchapter if the act or practice is proscribed by a provision of this subchapter or is declared by such other law to be actionable under this subchapter....
I do not believe that a breach of a contract specification is a violation of the DTPA. There is nothing either in the DTPA itself or the Texas Business and Commerce Code, article 2, which so provides. Every breach of contract is not or should not constitute a misrepresentation, so as to bring it under section 17.46(b)(7). For example, a consumer contract with a department store to deliver a white refrigerator has been breached when a yellow refrigerator is delivered. That breach is neither a breach of warranty nor a deceptive trade practice. Or, “A” borrows $5,000 and represents that he will pay it back with interest. He repays only $4,000. Is the representation or promise to repay, when breached, a deceptive trade practice?
Second, the Legislature clearly distinguishes between a breach of warranty and other acts such as misrepresentations in sec*620tions 17.443 and 17.50(a).4 The courts should not now disregard the distinctions between breach of contract or breach of warranty and misrepresentation.
The purpose of the DTPA was to cut across many areas of the common law to make it easier for consumers to recover in specified instances. However, in my opinion, a breach of contract specifications was not intended by the Legislature to be a violation of the DTPA. That, as I construe it, is what this opinion holds; and I dissent from the holding.
POPE and McGEE, JJ., join in this dissent.
. Texas Deceptive Trade Practices — Consumer Protection Act, Texas Business and Commerce Code § 17.41 et seq., hereinafter referred to as the DTPA.
. Smith makes no argument and has no points of error in this Court on breach of warranty. He mentions this theory only once in his application for writ of error. That reference is in one sentence in the summary of his argument on another point. Smith also never specifically pleaded breach of warranty as a violation of the Deceptive Trade Practices Act. His fourth amended pleading specifically alleges breaches of the contracts between the parties and that such breaches constitute a deceptive trade practice under section 17.46, plus alternative allegations of common law misrepresentation and “contractural [sic] damages.”
. Section 17.44 provides:
This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.
. Section 17.50(a) provides:
(a) A consumer may maintain an action if he has been adversely affected by any of the following:
(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter;
(2) a failure by any person to comply with an express or implied warranty;
(3) any unconscionable action or course of action by any person; ....