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A plaintiff is entitled to attorney’s fees under the Texas Deceptive Trade Practices Act where she is able to prove: 1) consumer status, 2) existence of the warranty, 3) breach of the warranty, and 4) that the breach was a producing cause of damages. Elliott v. Kraft Foods North America, Inc., No. 14-02-00243-CV, Ct.App.Tex., 14th District, Houston, July 24, 2003.

Joyce Elliott sued Kraft Foods after she bit into a rock in cereal manufactured by Kraft. Elliott claimed, inter alia, violations of the Texas Deceptive Trade Practices Act (DTPA). Elliott also sought attorney’s fees under the DTPA. The trial court awarded Elliott damages in the sum of $5,000, but did not award attorney’s fees. After the trial, Elliott and Kraft each filed a request for the trial court’s findings of fact and conclusions of law. Elliot then appealed, arguing that: 1) the trial court abused its discretion by failing to award Elliott attorney’s fees for breach of an implied warranty under the DTPA because Elliott presented evidence that Kraft breached an implied warranty of merchantability and 2) harmful error resulted from the trial court’s failure to file proper findings of fact and conclusions of law. Despite many efforts from the appellate court, the trial court failed to file findings of fact and conclusions of law. The appellate court proceeded to consider Elliott’s appeal without the trial court’s findings of fact and conclusions of law. The appellate court first held that Elliott did not suffer harm from the trial court’s failure to file its findings of fact and conclusions of law. It considered that Elliott was able to present her issues on appeal properly without the findings of fact and conclusions of law, and the appellate court determined it was able to decide the attorney’s fee issue without them. With respect to that issue, the appellate court held that Elliott could recover attorney’s fees only if she prevailed under the DTPA. To recover under the DTPA on a breach of warranty, Elliott was required to prove: 1) consumer status, 2) existence of the warranty, 3) breach of the warranty, and 4) that the breach was a producing cause of damages. Without the findings of fact and conclusions of law, the appellate court surmised that the trial court concluded there was a rock in the cereal found by Elliott; that the rock was in the cereal due to no fault of Elliott; and that the rock caused injury to Elliott. The appellate court concluded that an implied warranty of merchantability existed and Kraft breached that warranty. Furthermore, it concluded that Elliott was entitled to recover attorney’s fees under the DTPA because she was able to show that she was a consumer and the breach caused her damages. The court remanded the matter to determine the amount of attorney’s fees.

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