*1 Maida, Houston, respondent. Joe S. for al., Petitioner, et Eusebio ALVARADO ON MOTION FOR OPINION REHEARING BOLTON, Trustee, et
al., Respondent. RAY, Justice. rehearing Petitioner’s motion for granted opinion judg- court's the Supreme Court ment of 1987 are November withdrawn 1988. following the is substituted. Rehearing Denied deeds This suit for reformation of damages Deceptive the
for
under
Trade
Practices
the issue of
Act involves
merger applies
doctrine
in a
on
Act based
breach
trial,
press warranty.
After a
judgment
district court rendered
for Alva-
deeds, awarding
reforming
rado
actual
damages
produc-
of the oil
the value
tion;
damages
trebling
actual
award-
ing attorney’s
the DTPA. The
fees under
reversed the
take-nothing
the trial
and rendered a
holding
doctrine of
applied.
hold
and remand cause to that court. 1973, Bolton, partner in general purchased partnership, limited and others fifty conveying In the deeds acres land. to one-half of Bolton received title Bolton, oil, gas other minerals. trustee, portion then subdivided conveyed tracts and twenty-six land into buy- and other certain tracts to Alvarado money contract involved Each ers. and others conveyances agreed Bolton clause that contained the convey general warranty deed and deliver clear of all encum- property free and named. Some except those brances regarding Bolton’s silent contracts were outstanding interest and one-half conveyance was sub- stated that the mineral interest. ject to Bolton’s one-half by which ti- warranty deeds specifical- conveyed tle the mineral interest ly reserved subject Fisher, Carl, grantor, “made Lee and were H. Fisher & to Robert Coselli, Houston, outstanding mineral petitioner. to all *2 48 County” in Fort jury
record Bend for the other In the found instant of the minerals. money statements in the earnest contracts created a which was oil After discovered later breached when the deeds reserved plaintiffs learned of Bolton’s reservation of merger Bolton’s mineral doc interest. and prevents trine war admission Bolton for the deeds and for reformation of prior money ranties made in the earnest damages under the DTPA. contracts which are contradicted in the found that: David R. operates deed. The Trustee, money by intended Thus, identically. we hold that the doctrine owned; (2) to sell contracts the minerals he merger may not applied to defeat a Bolton, Trustee, breached an of action cause under the for breach warranty press his earnest express warranty made in an deeds; reserving by tracts minerals by contract and deed. breached of minerals and reservation Bolton, Trustee, remaining point error, R. in the deeds to In his complained cause producing appeals was a that “the erred find- plaintiffs. failing economic loss to the These to address fifth counter- [his] ings support for Alvarado point cross-point, and and in to ren- the DTPA. attorney’s der fees in accord- appellees’ pleadings ance with and uncon- merger The doctrine of is stated in Bak evidence.” court of troverted Since the Baker, (Tex.Civ.App. 207 244 er v. S.W.2d disposition based its on the doc- n.r.e.): Antonio 'd —San writ ref merger, it trine failed to address Alvara- When a deed delivered remaining points do’s concern and Bolton’s performance convey, a contract (four, five, seven). We, of error six merged Though contract is deed. therefore, reverse of the may vary the terms of from remand this cause contract, those contained in the still that court for of those consideration deed must be alone to deter- looked to maining points in accord- mine the opinion. ance with this quoting 2 LAW OF DEEDS 850a. WALLACE, J., joined by Dissent hold, however, We that the doctrine of C.J., PHILLIPS, applicable present in the CULVER, JJ. In 1980 we case. stated that “[t]he represent does not codification of the WALLACE, Justice, dissenting. primary purpose law” and a common respectfully I dissent. provide a cause of Act was consumers findings re jury’s support not do deceptive practices trade DTPA or covery for under the the numerous defenses encountered because, theory any other fraud common law or breach not war Bolton did breach an Baldwin, 611 S.W.2d Smith majority acknowledges that the ranty. The (Tex.1980). described as 616 Whether accurately stated or as a substantive de- rule of evidence Baker, case of Baker v. S.W.2d fense, merger was the doctrine of used (Tex.Civ.App. Antonio — San as a substantive defense. it here n.r.e.). lan pertinent I set ref’d forth necessary to that issue as we not resolve full, ap guage from that decision under the previously held that broad emphasis: propriate DTPA, guidelines of contracts, applicable The Rule in all prevent admissibility not of oral rule will stipulations merged in the prior are misrepresentations may also serve which par- by the executed of a DTPA action. and formal contract as the basis Weitzel ties, course, based applies, of to a deed convey. upon allegations that Bolton breached a contract to When a deed upon accepted as Nothing express warranty. is delivered Weitzel convey, the contract is a contract permit- suggests plaintiff should be Though merged in the deed. the terms express warranty in the ted to may vary from those con- fully integrated agreement. face of a contract, still tained fact, plaintiff was because the *3 to alone to determine the looked attempting vary or the con- to contradict rule rights of the No law is of to tract that the court Weitzel refused that where a better settled than rule, apply and held that accepted per- has been executed and proof “laundry rule a would bar of executory contract to of formance at list” violation. Id. this estate, the contract is convey real func- effect, attempting, to use the Alvarado is parties tus and the of offido very warranty upon to DTPA create the in the deed. solely rest thereafter based, warranty is which his DTPA suit a quoting 2 LAW Id. at 249— is four cor- that not contained within the added). (emphasis 850a DEEDS § applica- ners of the deed. Weitzel has no Hence, when tion here. appeals regarded The the doc- tract, any “warranty” contained lat- trine of of evidence rather extinquished. majority The errs in ter was stating “express warranty in than a defense. 714 S.W.2d that substantive an earnest contract” was “breached least in 123. The indicates that at deed,” very since at moment sub- this case the doctrine was used as a there purported breach occurred was no This stantive defense. distinction longer any warranty to Be- be breached. important if important. is is that What any cause the DTPA does not create war- brought indepen- Alvarado had this suit rights, fact ranties or contract that this dently of the DTPA and under the common brought was under the DTPA is action law, prevailed he he not have because could question wholly irrelevant as to ele- established an essential could not have warranty exists. This would have ment the action. result 17.50 the Business and Section Com- good had a obtained not because Bolton catego- merce Code four distinct describes evidentiary ob- defense Bolton’s or because may bring that ries of actions a consumer taken, but jections have been well would (1) order obtain relief under Act: Alvarado, pleading previ- that a because “laundry A list” violation set forth deed, by ous was breached Act; (2) express a breach of an or ac- negated his cause of would own (3) implied warranty; the commission of an By “breach- pleading tion. action; act unconscionable or course the previous ed” (4) of Article 21.21 of the Insur- a violation terms, including inconsistent include it or attempt- is ance Code. When the consumer there have conceded that Alvarado would ing misrepresentation his warranty upon no which to base list”, “laundry then the violation consistently held that the courts have this action was fact that proof. such rule will not bar is of no conse- under the DTPA therefore Weitzel v. (Tex.1985), By quence. cited therein. The DTPA does not define cases alleged analogy, Bol- it create “warranty,” nor does term misrepresentation, then ton had made Na- First La Sara Grain v. warranties. clear the doctrine seems Mercedes, 673 S.W.2d tional Bank of proof misrep- not have barred would upon which Any warranty resentation. therefore is action Act. independently be established Alvardo’s action was 17.50(a)(2),premised brought pursuant to Therefore, hearing 49(a). oral ar- us was tried two The case before Tex.R.App.P. (1) warranty; gument pursuant breach of
theories: of mandamus (2) or course of relator’s for writ unconscionable conditionally granted to establish as follows: attempt was made action. No laundry returned list violation. Appeals The Tenth District Court on the “un- answers adverse to vacate its order hereby ordered found a theory, but conscionable act” 10-88-007-CV dated No. Cause warranty. As a breach of denying relator’s Mo- March Thus, the court warranty existed. no such Bond; Supersedeas to Increase tion finding that Alva- correct in of action. prove a cause rado failed to The Tenth District Court require appel- hereby ordered to should be affirmed. No. 10-88-007-CV to lants Cause supersedeas
file an amended bond *4 PHILLIPS, C.J., the amount of bond de- JJ., $565,391.98 plus interest CULVER, join in this dissent. scribed
accruing thereon at the rate of ten percent per annum from the date until appeal. the cause requested is denied. This relief Other only respondent fails to will issue order. comply with this SWINNEY, Jr., Relator, John O. TENTH COURT DISTRICT
APPEALS, Respondent.
Supreme Court RUTLEDGE, Appellant, Lynn Bader, III, Bader, Dal- T. Cox &
Bertrán las, for relator. Texas, Appellee. The STATE Hummert, & Hum- A. Bracken Michael No. 782-85. Tunks, Dallas, respon- mert, Cowan and Texas, Appeals of of Criminal Court dent. En Banc. PROCEEDING MANDAMUS ORIGINAL 17, 1988. Feb. 27, 1988. Rehearing Denied
ORDER for writ of mandamus Relator’s Supreme Court of
was submitted May, day of eleventh Texas court, through opinion is the
and it members, relator is of its relief.
entitled Tenth District Court
The order to In- Motion denying relator’s in conflict with Tex- Supersedeas is
crease 47(b) and Procedure Appellate Rules of