Question

Max joined Workout Health Club ("Workout") and signed a one-year membership contract with an annual fee of $1,200. Under the terms of the contract, Max was responsible for payment of the entire fee, even if he stopped going to Workout. However, Allison, Workout's employee, verbally told Max that there was a "three-day free trial period," and he would not owe anything if he quit within three days. Based on Allison's comment, Max signed the contract. The contract did not include a "trial period” provision.Two days later, Max decided to cancel his membership and sent an email to Allison advising of his decision. One month later, Max received a telephone from Dan, the owner of Workout, who said Max was late in paying his membership fee. When Max explained what Allison had told him about the "three-day free trial," Dan said Allison had been fired weeks earlier, and there was no "Free trial" under the contract. Dan then began shouting and accused Max of being a "fraud" and a "crook.” He told him that, unless he paid the fee "immediately," Workout would sue him for the entire amount of the contract, plus "massive additional fines." The contract did not provide for any fines. Distraught, Max tracked down Allison. Allison said she left Workout because of its "shady business practices" and that Dan knew that Allison had offered Max the three-day trial period. Max sent Dan a letter denying that he owed anything. Dan continued to make phone calls to Max on a daily basis and at all hours. Dan also sent him numerous emails demanding payment, including one that said Workout was preparing to file a lawsuit against Max that could result in him going to jail. In one voicemail, Dan said he was going to call Max's employer about the "outstanding debt clearly owed by you." As a result of Dan's conduct, Max became extremely distraught and suffered a panic attack, which required medical attention and kept Max home from work for several weeks, causing him to lose pay for that time. Max consulted an attorney regarding his legal rights.

What Texas consumer laws can Max invoke, and what violations, if any, can he assert against Dan and Workout and what remedies, if any, are available to Max for any such violations?

Answer 1

Max can file a case against Dan and Workout under the Deceptive Trade Practices Act (DTPA). The DTPA was developed with an objective of saving consumer rights and protecting them from any kind of misleading or false business or warranty breaches. DTPA has a laundry list which highlights the specific practices which are invalid under DTPA.

The laundry list which qualifies in case of Max are as follows:

• Causing confusion about the service to the consumer: While Allison stated that Max had a 3 day free trial period, Alan denied having any such clause
• Disparaging services by misrepresentation of facts: The 3 day free trial period claimed by Allison seems to be a false claim
• Failure to disclose information regarding service, which may have discouraged the consumer from inducing a transaction: If Max knew that there was no free trial period, he may not have opted for the membership.

As Max suffered a panic attack and had lost lots of time and effort due to the constant harassment caused by Dan, Max can claim for mental as well as physical harassment charges against Dan and workout. He can also charge the company for violating the terms and conditions stated under DTPA.