*1 sembly good” eye for “common is in the In summary, appellant’s points all of are and, being the beholder and overruled differently defined there no reversible error, judgment member of the Klu Klux Klan or the trial court is affirmed. a member Union, of the American Civil Liberties
State, by police рower, the exercise of its which, may prohibit assemblies instead of promoting good right the common or a redress, peaceable clearly solely exist purpose harming disrupting However, good.” right “common to nature, prohibit must be limited in be strict- CATE, Edward Jr. Cate’s d/b/a construеd, ly only and must concern assem- Service, Transmission which, cavil, beyond blies and associations Appellant, public peace threaten the being. and well question The statute in any survives First, CORPORATION,
such scrutiny. purport Appellee. it does not DOVER punish participation in a combination or No. 9707. punishes generally. only combinations It Appeals Court of purpose conspiring for the combinations Texarkana. commit, commit, specified or to certain objectives. and limited criminal Those ob- Aug. 1989. jectives clearly in are delineated the stat- Rehearing Sept. Denied 1989. punishable ute. objectives None of these good could be related to the common
accomplish grievances griev- redress for purview
ances within provisions question. They constitutional clearly criminal nature. State, In McDonald v. (Tex.App. [1st Dist.] — Houston d), pet. ref the comment that the stat represents legislature recognition ute organized activity criminal is more dangerous to the welfare of the state than unorganized activity, and is an obvious at tempt discourage organized and deter state, activity
criminal within the the court persons held the those statute reaches knowingly engage activity. who criminal join in We that observation and conclusion holding with the additional that the crimi activity prohibited nal in the statute under consideration, represents legitimate exer power police
cise of the of the state. Suc stаted, cinctly the statute does not limit assembly pur freedom of for constitutional poses; penalizes for accom associations specified plishment of criminal activities. material; The difference is the statute is permissible. Appellant’s point sixth
overruled.
681 repair vehicles for work underneath the deposition, In vehicle. his Cate stated that he five-year received a warranty written purchased from he Dover when the lifts. occasions, On at least three vehicles fell Although from the lifts. Beech and Dover inspections, made numerous Cate said that properly. the lifts functioned never warranty expressly provided that Dover replace parts would all returned to the factory proved to be defective. Cate lifts, did not return the but sued rather implied warranty Dover for breach of the merchantability оne-half about two and years bought he after the lifts. A summary defendant who moves for judgment demonstrating has the burden law, as a matter of no issue material respect plaintiff’s fact exists to Bowden, cause of action. 654 Griffin (Tex.1983); S.W.2d 435-36 Tex.R. summary Civ.P. 166a. In a judgment pro ceeding, proof the burden of is on the mov- ant, and all doubts as to the existence of a genuine against issue of fact are resolved him. Roskey v. Texas Health Facilities Commission, (Tex. 303 1982). The issue is a whether material regarding issue of fact exists conspic uous nature of the disclaimer contained in wаrranty. conspic If the disclaimer is Peek, Texarkana, Michael appellant. for uous, then Cate is limited to a cause of Tausch, Russell, Louise Atchley, upon express Wal- action warranty based drop Hlavinka, Texarkana, & created, appellee. precluded suing from implied warranty on the of merchantability,
BLEIL, Justice. express since disclaimed the implied warranty. express warranty An appeals Edward Cate an unfavorable specifically disclaims an war summary judgment against in his suit ranty controls. See Emmons v. Durable Corporation alleging Dover breach of the Inc., Homes, Mobile (Tex. S.W.2d implied warranty of merchantability in a Civ.App.-Dallas n.r.e.); writ ref’d sale of vehicle lifts. The issue before us is Tex.Bus. & Com.Code Ann. 2.314 § whether granting the trial court erred in (Ver 1968). non Dover’s motion for summary judgment be- ^ cause a disclaimer сontained Dover’s A of merchantability is was not required as goods in a contract for the sale of by Tex.Bus. & Com.Code Ann. 2.316 § is ex- n by a merchant unless the (Vernon 1968 Supp.1989). We determine eluded or modified in accordance with stat conspicuous. the disclaimer is utory requirements. Clark v. DeLaval. September 1984, In Separator bought Cate Corp., 639 F.2d (5th three Rotary brand Cir.1981); vehicle lifts from Beech Tire Tex.Bus. & Com.Code Ann.' Corporation Mart. 2.314(a). Dover manufactured An of mer lifts, designed which were to chantability arising elevate under Section 2.314
may operate ought be disclaimed the seller under Sec- to have noticed it. A (as: printed heading capitals tion 2.316 of the Texas Business & Com- NON-NE- LADING) long conspic- merce so GOTIABLE BILL OF Code disclaimer is conspicuous. provides Language body uous. in the of a form is Section 2.316 larger if it is or of other con- following: trasting type telegram, But in or color. (b) (c), Subject ex- Subsection conspicuous. stated term is Whether *3 modify implied warranty clude or the of conspicuous or is for term or clause is not merchantability any part or of it the lan- by Tex.Bus. Com. decision the court. guage merchantability must mention and 1.201(10) (Vernon 1968). Ann. Code in writing conspicuous, case of a must be implied modify any and to exclude or The trial court found that the dis warranty warranty of in fitness the exclusion must claimer contained Dover’s com by writing conspicuous. plied accordingly be a and Lan- with Sеction 2.316 and guage implied granted summary judg to exclude Dover’s motion for all warranties states, page if warranty of fitness is sufficient for ment. The itself is headed sentence, example, in one- by that “There are no warranties the written solid blue beyond description type, which extend on half inch block CAN TAKE the “YOU the face hereof.” ROTARY’S NEW 5-YEAR WARRANTY TEAR IT APART.” Then the war AND (c) Notwithstanding (b) Subsection ranty by itself is set out framed below (1) unless the circumstances indicate double blue lines entitled “WARRANTY” otherwise, implied all warranties are three-eighths high. in inch solid blue letters is”, by expressions excluded like “as warranty type. The of the is in text black “with all faults” or other portion, sepa in The disclaimer contained a understanding in common calls which paragraph warranty, pro rate within the buyer’s the attention to the exclusion following: vides the “This is ex plain that of warranties аnd makes in of all other clusive and is lieu warranties implied warranty;
there is no
and
including
implied
expressed
implied
any
or
(2)
buyer
entering
when the
before
implied
merchantability
or
into the contract has examined the
particular pur
for a
of fitness
goods
sample
fully
or
or model as
the
hereby
pose,
warranties are
as he desired or has refused to exam-
expressly excluded.”
goods
ine
there is no
war-
the
written,
regard
marked and
a
ranty with
to defects which an
Thus
operate ought
ought
person against
in
whom it is to
examination
the circumstanc-
him;
warranty issued to
to have noticed it. The
es to have revealed
and
implied war-
effectively disclaims the
Cate
(3)
implied warranty
an
can also be
conspic-
merchantability
since it is
ranty
excluded or modified
course of deal-
1.201(10).
required by
Section
uous
usage
ing
performance
or course of
of trade.
LaCoure,
small regarding rial fact existed the disclaimer on the invoice was er than disclaimer form nature of the because the concerning text additional interest conspicuous as and text of the is attorneys fees. ... This disclaimer was 1.201(10). in that term is defined Section contrasting large type. printed not judgment. the trial court’s We affirm distinguishing factor the dis- capital beginning claimer was letters Important which stated: No- disclaimer Justice, GRANT, dissenting. Purchaser. tice To directly point there no case While Here, however, print the dis- used in courts in other have many states print is the same size as used in claimer upon to *4 if been called determine disclaim- than larger of the text. It is
the rest conspicuous under sim- ers were statutes typewriter print. standard as ilar to or the same Tex.Bus. & Com.Code 1.201(10), proper Pursuant Section it (Vernon Supp.1989). 1968 & Ann. 2.316 judge question for the trial to decide the on following Do- is the disclaimer which summary judgment. motion Ellmer part Corporation ver made a of its contract Mini-Computer, S.W.2d Delaware Cate, ad- writ). with Jr. and which was (Tex.App. 1983, no Edward —Dallas apply appeal, On we the standard set forth mitted as Exhibit A. into evidence Sjj0 And, mumbo-jumbo, in all hidden yоu may find out —too late —that their beautifully "warranty" even worded doesn’t major And, components... power when cover like units. JfW just ^ you’re through, you really great warranty Is it’ll So what have nothing. No. as the that covers almost solid Rotary. proud company Rotary lift America. Not so with We at of the surface lift companies. may products They offer we And we don't have some of the other manufacture. warranty, you’re "play guaranteeing you multi-year it safe” too. But comes to parts only. 5-year warranty says: likely to it's limited them. Here’s what our new discovеr
uirrrrrtv Rotary All Surface or malfunction by Mounted Lifts are caused im- installation, abuse, guaranteed original proper handling, misuse, to the owner for years Rotary negligence Lift five from invoice date. carelessness operation. after is "The Division here known as of Comрany”. Company replace is in The shall This is exclusive and years parts expressed for the full five those lieu of all other warranties factory prove implied including any war- to the which returned upon by Company ranty merchantability inspection of the be pay particular Company of for fitness for a defective. The shall transportation purpose, are costs of warranties hereby expressly replacement parts and excluded. labor for of said only. for 12 The described ex- first months Purchaser remedies transportation will аnd and in no event shall the bear costs of clusive Company special, parts first for con- labor for after the liable returned year sequential damages of this war- or incidental and the remainder ranty. apply delay performance breach of or shall not This installed, warranty. product used of unless the governed with This shall be and in accordance maintained Indiana, specifications Company’s and be sub- as set the State shall installation, jurisdiction op- ject Company’s to the forth exclusive in the of the State of Indiana instructions. thе Court eration and maintenance County This does not cover Jefferson. normal maintenance or ad' justments, damage
BLUE
685 2.316, in Massey-Ferguson, The court Inc. case v. Com.Code Ann. and this § (Ken.Ct.App.1969), 439 Utley, S.W.2d 57 should be and remanded for reversed trial. (1980), cited in U.C.C. 12-5 lan- used
guage that well describes the disclaimer present case: heading large,
It is true was in bold- nothing type, sug- face but there gest being made; an exclusion was contrary, on the the words of the head- ing indicated a making of warranties SAXTON, Appellant, Jessie Lee than rather a disclaimer. cleverly has Dover buried the disclaimer
provision language strongly within Texas, Appellee. STATE suggests warranty greatly benefits No. C14-87-441-CR. print the consumer. The bold suggests that warranties were included Appeals Court Mallory rather than excluded. See v. Co- (14th Dist.). Houston Warehouses, 825, nida 350 134 N.W.2d Aug. (1984). 1989. Mich.App. 28 In the casе of Blankenship v. North- Ford,
town 420 N.E.2d 50 Ill.Dec. (1981), Ill.App.3d said that court heading “Factory Warranty” was mis leading that a disclaimer which follows misleading heading cannot be deemed
comply the Uniform Commercial Code.
In the case of Richards v. Boat Goerg Motors, Ind.App. N.E.2d
(1979), the Indiana court that dis found *6 language
claimer included in the context of not was In the cаse effective.* Layne Bowler, Seibel & 641 P.2d Or.App. rev. P.2d denied 648 (1982), Oregon Or. found court that a disclaimer was not paragraph heading “Warranty” suggested making stood out of the warranties, not their In the exclusion. Jensen’s, Inc.,
case of Hartman v. (1982), S.E.2d S.C. 501 South court placing Carolina held that the of a of mer disclaimer chantability heading under the “Terms bold Warranty” ambiguity created an likely to fail to alert the consumer that of warranty
an exclusion was intended. present The exclusion in the case not required Tex.Bus. * Indiana_ "This states governed by shall be State of