dissenting.
I respectfully dissent. The majority reverses the trial court’s judgment in favor of appellee, Raul Aguilar, in his Deceptive Trade Practices-Consumer Protection Act1 (“DTPA”) action and renders judgment in favor of appellant, Autohaus, Inc., holding that there is “no evidence” to show that Autohaus represented to Aguilar that the Mercedes automobile which he leased had certain characteristics, ingredients, uses, and benefits which it did not have, Tex.Bus. & Com.Code Ann. § 17.46(b)(5) (Vernon 1987), or that the Mercedes automobile was of a particular standard, quality, or grade which it was not. Tex.Bus. & Com.Code Ann. § 17.46(b)(7) (Vernon 1987). The majority reaches its holding by concluding that misrepresentations which are merely “puffing” or opinion are not actionable under the DTPA. I disagree that “puffing” and opinion defenses should apply to suits pursuant to sections 17.46(b)(5) and (7) of the DTPA.
No exception or mention of “puffing” or opinion is made in section 17.46 or in any other provision of the DTPA. Compare Tex.Bus. & Com.Code Ann. §§ 17.41-17.63 with Tex.Bus. & Com.Code Ann. § 2.313(b) (Tex. UCC) (Vernon 1968). The majority analyzes common law fraud and breach of warranty cases in which courts have held that “puffing” and opinion operate as defenses. However, concerning the DTPA, the Texas Supreme Court has stated:
The DTPA does not represent a codification of the common law. A primary purpose of the enactment of the DTPA was to provide consumers a cause of action for deceptive trade practices without the burden of proof and numerous defenses encountered in common law fraud or breach of warranty.
Smith v. Baldwin, 611 S.W.2d 611, 614 (Tex.1980). It would nullify this legislative purpose to impose on the DTPA the puffing defense, one of the “numerous defenses encountered in a common law fraud [and] breach of warranty suit.” See id. Although Texas courts have mentioned “puffing” and opinion in DTPA cases, none has gone so far as to hold that the “puffing” rule enunciated in common law fraud and breach of warranty cases should be recognized in cases pursuant to sections 17.46(b)(5) and (7) of the DTPA. See Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex.1980); Burnett v. James, 564 S.W.2d 407, 408-09 (Tex.Civ.App.—Dallas 1978, no writ). This Court has stated that DTPA claims are not subject to common law defenses. Shenandoah Assoc. v. J & K Properties, 741 S.W.2d 470, 496 (Tex.App.—Dallas 1987, no writ) (opinion on reh’g) (citing Smith, 611 S.W.2d at 616). Texas courts have rejected the application of a number of common law defenses to DTPA suits. See, e.g., Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988) (doctrine of merger); Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex.1985) (lack of intent, lack of knowledge); Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex.1985) (lack of intent, lack of reliance by the plaintiff); Kennedy v. Sale, 689 S.W.2d 890, 892-93 (Tex.1985) (lack of consideration by the plaintiff, lack of privity). The only common law defense to a DTPA claim that has been allowed so far is the requirement that a DTPA claimant mitigate his or her damages. Town East Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 806 (Tex.App.—Dallas 1987, no writ); Hycel, Inc. v. Wittstruck, 690 S.W.2d 914, 924 (Tex.App.—Waco 1985, writ dism’d). Furthermore, several commentators who have considered whether representations which constitute “puffing” or opinion should be a defense under the DTPA have concluded *466that it would be inappropriate to recognize such defenses. See, e.g., P. Kens & S. CoChran, Consumer Rights and Remedies §§ 8, 32 (Texas Practice 1983); D. Bragg, P. Maxwell, & J. Longley, Texas Consumer Litigation § 502 n. 17 (2d ed. 1983); Texas Consumer Law Reporter, February 1990, p. 33.
Although a panel of the fifth circuit court in Presidio Enterprises, Inc. v. Warner Bros., Distributing Corp., 784 F.2d 674, 686 (5th Cir.1986), cited by the majority, recognized the arguments set forth above, it nevertheless held that the representations made by Warner, e.g., that its film would be a “blockbuster,” were mere “puffing” or opinion and, therefore, not actionable under sections 17.46(b)(5) and (7) of the DTPA. However, Presidio is distinguishable from the present case because it involved “subjective opinions on aesthetic matters.” Id. Also, the Presidio court stated that it was employing common law principles in that case because the legislature had not acted and had “declined several pointed invitations to regulate film distribution or otherwise bring motion picture licensing explicitly within the terms of the DTPA.” Id. at 687.
The DTPA does not provide that its coverage is limited to representations of fact. While sections 17.46(b)(5) and (7) of the DTPA do not specify whether they relate to representations of fact or opinion, sections 17.46(b)(8), (11), and (13) are expressly limited to representations of “fact.” Tex. Bus. & Com.Code Ann. § 17.46(b)(5), (7), (8), (11) & (13) (Vernon 1987). Where the legislature has employed certain terms in one section of a statute and has excluded it in others, it should not be implied where excluded. Smith, 611 S.W.2d at 616. The majority, by recognizing “puffing” and opinion as defenses to causes of action brought pursuant to sections 17.46(b)(5) and (7), in effect, allows recovery only where false representations of fact are made.
The rationale for allowing puffery as a defense at common law was that buyers could not reasonably be expected to rely on such statements of opinion. However, reliance is not a prerequisite to recovery under the DTPA. Weitzel, 691 S.W.2d at 600. The supreme court has ruled that a representation is false, misleading, or deceptive under the DTPA if it has the capacity or the tendency to deceive even an ignorant, unthinking, credulous person. Spradling v. Williams, 566 S.W.2d 561, 562 (Tex.1978). This “capacity or tendency to deceive” test reduces the effectiveness of a dealer’s defense that a misrepresentation was mere “puffing.” Consumer Rights and Remedies § 8. The Pennington court in dealing with sections 17.47(b)(5) and (7) stated:
A broad interpretation is warranted, however, due to human inventiveness in engaging in deceptive or misleading conduct. The legislature did not intend its express purpose of protecting consumers from false trade practices to be circumvented by those who would seek out loopholes in the [DTPA’s] provisions.
Pennington, 606 S.W.2d at 688.
Sections 17.46(b)(5) and (7) are broad prohibitions against inaccurate descriptions of goods and services. Pennington, 606 S.W.2d at 687. Nearly any representation about a good or service can be said to relate to its characteristics, uses, benefits, or quantities. Texas Consumer Litigation § 3.05 (discussing section 17.46(b)(5)).
A good may lack its claimed characteristics or fail to bring about its claimed uses or benefits because it is not in good mechanical condition, or for reasons such as its design or manufacture ... when a good does not have the characteristics it is represented to have, or perform as represented, the injury is the same. There is no justification for excluding some misrepresentations and including others on the basis of the reason for their falsity.
Pennington, 606 S.W.2d at 687. The DTPA prohibits both false general descriptions and false specific information about a good; sometimes language only generally related to a product or its attributes will convey a definite impression. Id.
The majority distinguishes Pennington from this case by pointing out that the *467misrepresentation in Pennington concerned the present condition of a boat motor and arguably the alleged misrepresentation in this case concerns future performance of an automobile. However, in Smith, the court held that it would be contrary to legislative intent expressed in section 17.442 of the DTPA to hold that consumers who have been misled by misrepresentations on future quality are not entitled to protection from the specific provisions on goods and services found in section 17.46(b). Smith, 611 S.W.2d at 614. Therefore, the distinction made by the majority is meaningless.
Mail Box, Inc. v. Communicators, Inc., 703 S.W.2d 783, 785 (Tex.App. —Corpus Christi 1985, no writ), is similar to the present case. There, the appellant purchased a telephone system from the appel-lee, who represented that “[the system] should require virtually no maintenance due to its simplicity” and that “[the appel-lee] average[d] less than two calls per year for all the systems in Dallas.” (emphasis added) Id. The appellant introduced ninety-four service orders covering a two and one-half year period. The court of appeals reversed the trial court’s judgment and rendered judgment for the appellant, holding that there was sufficient evidence to support the jury’s special answer that prior to the sale at issue, the appellee made a representation to the appellant that its equipment had characteristics, uses, or benefits which it did not have. Id. “Virtually” is defined as “in effect although not in fact; for all practical purposes.” Webster’s New World Dictionary 1630 (1954). This “virtually no maintenance” representation, like the use of “probably” in the present case, qualifies the salesman’s statement. Although the majority concludes that “probably” made the Autohaus salesman’s statement too indefinite to be actionable, the court in Mailbox, Inc. allowed the consumer to recover.
In Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634 (Tex.1989), the car salesman represented that there was nothing wrong with the brakes in a particular automobile. Donwerth introduced evidence that the brakes began “groaning” after a few months and that, within five months, Preston’s own service report showed that the brakes in Donwerth's car had worn out, making the car dangerous. Also, the odometer had been rolled back. The Texas Supreme Court held that this was somé evidence that the brakes were worn and defective at the time of the sale, thus supporting the jury finding that Preston represented the car was of a particular standard, quality, or grade when it was of another. Id. at 636.
In this case, Aguilar testified that Auto-haus’s salesman told him that “Mercedes is the best engineered car in the world ... [Aguilar] probably would not find that [he] would ever encounter any mechanical difficulties ... and [Autohaus’s salesman] joked about the fact that [Aguilar’s] only time loss would probably be when [Aguilar] would bring the car in to the agency for an oil and filter change every 7,500 miles.” These statements, as testified to by Aguilar, represented that the automobile had certain characteristics, ingredients, uses, and benefits, Tex.Bus. & Com.Code Ann. § 17.46(b)(5), and that the automobile was of a particular standard, quality, or grade. Tex.Bus. & Com.Code Ann. § 17.46(b)(7). The record reflects that Aguilar took the automobile to Autohaus for service nineteen times over the three-year period from the time that he first took possession of the automobile until the time of trial. Although Autohaus repaired most of the problems at some point, the hesitation problem never was repaired to Aguilar’s satisfaction. This constitutes some evidence that Aguilar’s Mercedes automobile neither had the characteristics, ingredients, uses, and benefits represented nor was of the particular standard, quality, or grade represented. I would conclude that there is some evidence to support the trial court’s judgment.
. TexJBus. & Com.Code Ann. §§ 17.41-17.63 (Vernon 1987 & Vernon Supp.1990).
. "This subchapter shall be liberally construed to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices_” Tex.Bus. & Com.Code Ann. § 17.44 (Vernon 1987).