## Facts

- Barry Keyser worked as a sales agent for D.B. Interests, Inc., doing business as “The Homemaker,” selling homes in the Oakbrook subdivision in Pearland, Texas.
- Each lot included a drainage easement held by the Brazoria County Drainage District on the back twenty feet, and buyers were aware of the easement’s existence.
- Homeowners sought larger backyards and alleged Keyser represented (1) that The Homemaker lots were oversized compared to a competing builder’s lots and (2) that fencing could be placed along the back property line despite the easement.
- The homeowners alleged they paid a premium for the “oversized” lots based on these representations.
- After construction, homeowners received notice from the drainage district requiring removal of fences within the easement at the owners’ expense.
- Homeowners sued Keyser and others for common-law fraud and DTPA violations, seeking repair costs and return of alleged overcharges for the lots.

## Issues

1. Whether an agent for a disclosed principal may be personally liable under the Texas Deceptive Trade Practices–Consumer Protection Act for misrepresentations the agent makes to consumers within the scope of employment.

## Decision

- The Supreme Court of Texas reversed the court of appeals.
- The court held that the DTPA allows suit against “any person,” which includes an agent who personally makes actionable misrepresentations while acting for a disclosed principal.
- The court remanded to the court of appeals for further proceedings consistent with its opinion.

## Legal Principles

- Under Tex. Bus. & Com. Code § 17.50(a)(1), a consumer may sue “any person” whose false, misleading, or deceptive acts are a producing cause of damages; this statutory language can include individual agents.
- An agent is not liable under the DTPA based solely on agency status, but may be liable when the agent personally participates in the deceptive act (e.g., by making the representation).
- Basic DTPA liability for listed deceptive acts does not require proof that the defendant knew the representation was false or intended to deceive (distinct from standards for enhanced damages).
- Disclosure of the principal does not, by itself, bar DTPA liability for an agent who personally makes the misrepresentation.
- The DTPA’s indemnity mechanism supports the statutory scheme’s contemplation that employees may face liability for passing along company information while preserving recourse against the employer in appropriate cases.

## Conclusion

The Texas Supreme Court held that a sales agent who personally makes misrepresentations to consumers may be individually liable under the DTPA even when acting within the course and scope of employment for a disclosed corporate principal, and it reversed the appellate decision that had barred such liability as a matter of law.


Miller v. Keyser, 90 S.W.3d 712 (Tex. 2002)