*1 reasonableness,” ing appeals’ judgment judgment than mere in which and render statutory classification must be ration- for the defendants. ally only legitimate related not to a state participating. Justice HANKINSON not law, required
interest as under federal but very object subject to the the legisla- Bynum,
tion. See v. Whitworth 194, (Tex.1985);
S.W.2d State v. Rich-
ards, 166, 597, 157 Tex. 301 S.W.2d 600-01
(1957). Plaintiffs contend the abor- funding
tion restrictions create a distinc- health-preserving
tion between and life- preserving wholly abortions unre- and Centex Real CENTEX HOMES purpose, pro- lated to TMAP’s which is to Corporation Estate Centex d/b/a tect life and health. both Homes, Petitioners,
We do not read Whitworth and Rich- to exacting ards establish the more stan- BUECHER, A. et Michael plaintiffs suggest. dard the To the extent al., Respondents. standard, they might suggest such a No. 00-0479. recently clarified that the federal an- alytical approach applies equal protec- Supreme of Texas. challenges tion under the Texas Constitu- Hosp., Argued tion. See Rose v. Doctors Nov. 2001. (Tex.1990) (stating “Texas 31, 2002. Decided Dec. cases echo federal standards when deter- Rehearing Denied Feb. 2003. mining equal whether a statute violates protection.”); League Richards v. Unit- Citizens, Am.
ed Latin 310- Moreover, that plaintiffs we believe
oversimplify underlying TMAP’s purposes. discussed, Legislature’s
As we have program’s inception
intent from the has provide indigent
been to health care matching
to the extent that federal funds rig- the more
are available. Even under advocate, plaintiffs
orous standard rationally funding
TMAP restrictions are legislative pur- underlying
related to this Equal
pose and do not violate the Texas
Protection Clause.
V fund-
We hold that the TMAP abortion not violate the Texas
ing restrictions do Amendment, Rights Equal
Constitution’s
Equal right priva- Protection Clause or
cy. the court of Accordingly, we reverse *2 Greenhill, Austin, L. R. Samara
Joe Dallas, Shannon, R. Kline, Joseph E. Bob Botts, Austin, Baker & Warren W. Knight, Harris, Houston, Smith, Annalyn G. performance San quality construction, Cook, Antonio Eugene Houston, A. express agreement may supersede the im- Patterson, Bracewell & plied Ernest R. workmanship. Al- Dallas, Higginbotham, Strasburger though & do not agree respects all with Price, for Petitioners. appeals’ court of reasoning, we affirm *3 its judgment remanding this cause to the Woods, Bryan A. Bryan Law Office of A. trial court. Woods, Antonio, San Longley, Joe K.
Longley Maxwell, Austin, & Barry Snell,
Bayne Krause, Antonio, Snell & San I Respondents. Michael Buecher and other homeowners purchased new homes built Centex Chief Justice PHILLIPS delivered the Homes or Centex Real Estate Corporation opinion Court,1 in which Justice doing business as Centex Homes. Each HANKINSON, O’NEILL, Justice Justice signed homeowner a standard form sales JEFFERSON, and joined. Justice SMITH agreement prepared by Centex. The denyWe Centex Homes’ motion for re- homeowners allege that agreement hearing. opinion We withdraw our of Au- one-year contained a limited gust 2002, and substitute following ranty lieu of waiving place. warranties of habitability and good and workmanlike construction. Specifically, issue this case is whether a hom- provision provided: disclaimer may ebuilder disclaim the ties of habitability and workman- closing At Seller will deliver Purchas- like construction that accompany a new er, Seller’s standard form of home- home sale. The sales contract pro- here owner’s Limited Home Warranty vided that builder’s limited against defects in workmanship and ma- warranty replaced warranties, all other in- terials, a copy of which is available to cluding these two warranties. Purchaser. PURCHASER AGREES TO Holding that the implied warranties of ACCEPT SAID HOMEOWNER’S habitability and workmanlike WARRANTY AT CLOSING IN LIEU waived, construction could not be the court WARRANTIES, OF ALL OTHER appeals reversed the judg- trial court’s WHATSOEVER, EX- WHETHER ment and remanded the homeowners’ LAW, PRESSED OR IMPLIED BY claims for proceedings. further AND INCLUDING BUT NOT LIMIT- 807. ED TO THE IMPLIED WARRAN- agree We with the court appeals TIES OF GOOD WORKMANLIKE cannot CONSTRUCTION AND HABITABIL- except be waived under limited circum- ITY. PURCHASER ACKNOWL- implicated stances not disagree, here. We EDGES AND THAT AGREES SELL- however, warranty of ER IS RELYING ON THIS WAIVER good and workmanlike construction cannot AND THE WOULD NOT SELL parties’ disclaimed. When the agree- PROPERTY TO PURCHASER WITH- sufficiently manner, ment describes the OUT THIS ini- WAIVER. Purchaser’s Rodriguez resigned from the Court. joined Justice Baker and Justice original opinion in the Court's but have since remedy for breach of an additional approv- their vides margin in the indicate tials implied warranties. al of this section 8. open announced The homeowners (Emphasis original.) peti- not amend them could court plaintiffs Buecher and the other After exception. special tion to meet Centex’s homes, they their sued Centex
purchased (1) special ex- granted the The trial court fraud, negli- alleging misrepresentation, (2) action alle- all the class ception; struck gence, and violation of the of the Texas on the contention gations based Pro- Deceptive Trade Practices-Consumer void, illegal, or un- provision is disclaimer (“DTPA”) Act in connection with tection (3) enforceable; from severed those claims of their new the construction and sale (4) claims; and individual the homeowners’ *4 sought The also to homes. homeowners action. The proposed dismissed the class Centex, certify against a class action seek- A divided court of appealed. homeowners (1) injunction prevent an Centex ing banc, the trial appeals, sitting en reversed asserting implied from that the judgment and remanded the cause court’s habitability good of and and workmanlike proceedings. for further 18 S.W.3d provi- construction had been waived that a appeals The court of held (2) contracts; injunc- sions in its sales a may not or cause homebuilder disclaim prohibiting asserting tion Centex from implied homeowner to waive or any subsequent purchaser homeowner habitability good and workman- ties of and liability it had no for construction like construction. Id. at 808. beyond the set forth period defects in gave it in lieu of II (3) warranties; a declaration that the dis- Morton, In v. Humber provision claimer is unenforceable as a (Tex.1968), recognized this Court 555 (4) law; matter of and notification to all impliedly a new home war- a builder of purchasers subsequent purchasers and in a is constructed rants that the residence putative within the class that Centex’s manner and is suit- good and workmanlike waiver of warranties is void and replacing for human habitation. able unenforceable. implied war- emptor caveat with these two ranties, significance of a new we noted the mo- special exception Centex filed buyers for most and the purchase home action. proposed tion to dismiss the class difficulty discovering guarding of or G-W-L, Robichaux, Relying on Inc. v. in latent defects construction: against (Tex.1982), argued that a does not emptor old rule of caveat purchaser of a new home can waive the The in justice of satisfy [the the demands good warranties of and workman- purchase The homes]. if sale of new habitability like construction and everyday transaction for home is not an language waiving those warranties is clear many in instanc- average family, and free from doubt. Centex asserted of a important transaction in es is the most that the waiver at issue this ease was the rule of caveat apply lifetime. To and free from doubt. Centex also clear inexperienced buyer, and emptor to an provision its waiver did argued daily en- who is in favor of a builder provision the DTPA’s anti-waiver violate building and in any gaged the business DTPA does not create because the houses, manifestly a denial selling good and workmanlike justice. habitability, only pro- but construction
Humber, 426 (quoting S.W.2d at 561 Beth Factually, the two cases do not conflict Bechtel, lahmy Melody v. 91 Idaho all. Home apply 415 P.2d does not (1966)). Humber G-W-L, warranties at issue Subsequently, Robichaux. Inc. But the implied warranty good Robichaux, we conflated the Humber workmanlike construction Humber and good warranties of workmanship and hab the implied warranty good and work- itability, concluding that the “Humber repair manlike in Melody services Home warranty” could be disclaimed or waived similar, very are yet the two cases clearly intent were expressed diverge drastically appropriate public on Robichaux, parties’ agreement. policy rejects in this Melody area. Home S.W.2d at 393. Centex argues therefore Robichaux’s notion that the appeals’ that the court of holding that the ranty workmanship may freely warranties of and workman long disclaimed as as that intention is like construction and cannot be clearly expressed. Id. Because the two waived conflicts with Robichaux. factually distinguishable, yet cases are le- respond homeowners that Robi- antithetical, gally other authorities have chaux longer is no law Texas be- determining had trouble much how of Ro- cause it *5 Melody was overruled in Home Melody bichaux survives Home. Barnes, Manufacturing Co. v. 741 S.W.2d Some have concluded that Melody after (Tex.1987). 349, 355 Melody recog- Home Home the Humber warranties could no nized for the first implied time an longer be waived or disclaimed. See Ha- ty good workmanship in repair the or Co., ney 782, v. Purcell 796 S.W.2d 786 n. 3 tangible modification of goods property. (Tex.App.-Houston 1990, [1st Dist.] writ Id. at 354. The Court further announced denied) (Melody Home overruled Robi- public as a matter of policy that this im- chaux regard “with to the issue of waiver plied warranty repair services could III, of warranty”); 18 William Dorsaneo not be waived or disclaimed. Id. at 355. Litigation 270.121[l][b], § at Texas Guide Robichaux, Referencing the dissent in the (2002) (Humber 270-113 may Court incongruity noted the of requiring disclaimed, not be citing waived or Melody implied the creation of an warranty and Home); 20 HERBERT S. Kendrick and John yet permitting its “by pre- elimination Kendrick, Jr., J. Texas Transaction Guide printed standard form disclaimer or an (2002) (same). § at 83A:21[3] 83A-18 But unintelligible merger clause.” Id. The Melody because Home and in- Robichaux Court suggested that such disclaimers warranties, implied volve different an ar- should not be allowed because en- gument can opinions be made that the two couraged shoddy conflict, workmanship, actually thus cir- do not and thus Robi- cumventing the chaux’s waiver of the Humber warranties consumer’s reasonable ex- Melody survives. Because Home has cast pectations job performed that the would be validity doubt on the of Robichaux’s waiv- with reasonable skill. Id. At the end of holding, er we re-examine our holding discussion, purported this the Court that case. overrule Robichaux the that it “[t]o extent opinion.” conflicts with Id. The mean- Ill
ing scope and of this statement prov- en elusive it is Robichaux, because unclear to what alleged defect the Melody extent Robichaux and Home actu- buyers’ sagging new home was a roof. ally conflict. The trial court judgment rendered for the
271 31, Co., 27 Ill. 76 Ill.2d Constr. that the builder schman buyers jury findings on (1979); 1154, 746, 1159 good roof in a N.E.2d “had failed to construct the Dec. 389 Co., manner the house & workmanlike v. Wheeler-Leonard Griffin (1976); of com- 557, not merchantable at the time was Ca 225 S.E.2d N.C. Robichaux, at 392. pletion.” 643 S.W.2d 114 R.I. Campopiano, savant appeals affirmed. The court of (1974). cases, howev These A.2d er, between generally fail to differentiate judgment and rendei'ed disagreed We workmanship warranty good Id. held that for the builder. We habitability. warranty of and the merchantability” was “warranty of of Ten Supreme Courts example, For warranty under the Texas Uniform sales hold that North Carolina nessee and Code, apply did not Commercial which workmanship warranty good Then, the sale of a house. Id. at 394. disclaimed, but never mention can be the roof reviewing jury finding warranty habitability. Dixon good in a was not constructed work- manner, 541; Griffin, conflated the 225 S.E.2d at manlike at good workmanship Humber warranties of habitability, referring warranty to the men Supreme Court of Arkansas warranty of “implied at issue as both the habitability implied warranty tions as hab- “implied fitness” and the waived, part may but includes fact, itability.” Id. 393. In workmanship warranty. See of its was not at issue O’Mara, war (implied at 859 jury the case because the had found a “habitability, workmanship, sound ranty of breach of the waived). construction” can be proper *6 performance. and workmanlike id. at See recognizes apparently The Arkansas court 392. The Court nevertheless concluded of a remedy tort for the sale alternative that language that the sales documents (suggesting Id. at 858 strict unsafe house. “warranties, im-
there were no
or
is “in
liability may apply
house
products
plied, in addition to said written instru-
unreasonably danger
a defective condition
sufficiently
effectively
ments” was
clear to
ous”).
also do
Illinois and Rhode Island
implied warranty
disclaim the
of habitabili-
sepa
not
the
warranties
view
ty.
at
Id.
393.
Petersen,
31,
76 Ill.2d
27 Ill.Dec.
rate. See
Casavant,
1158-59;
746,
327
at
389 N.E.2d
A
Supreme
at 833-34. The Illinois
A.2d
argues
Centex
that we should adhere
Court,
the im
observes that
example,
because it is consistent with
Robichaux
habitability is unfortu
warranty of
plied
allowing par
decisions from other states
nately
it does
mean
named because
disclaim the
war
expressly
ties to
literally
uninhabitable.
the house
ordinarily
arise with new
ranties
746,
Petersen,
31, 27 Ill.Dec.
389
76 Ill.2d
See, e.g.
v. Rosen
home sales.
Greeves
contrast,
In
de
N.E.2d
baum,
669,
(Wyo.1998);
965 P.2d
673
warranty in
of this
fined a breach
310,
Dykema,
Ark.
942
O’M ara v.
328
“of a nature which
Texas to be a defect
854,
(1997);
Sunny
Frickel v.
S.W.2d
859
unsafe,
unsani
premises
will render the
Enters., Inc.,
714,
side
106 Wash.2d
725
living
unfit for
therein.”
(1986) (en
tary, or otherwise
banc); Dixon v.
P.2d
426
Bennett,
658, 661
Co.,
568 S.W.2d
Kamarath v.
City
Mountain
Constr.
(Tex.1978).
(Tenn.1982); Petersen v. Hub
Centex,
Another case cited
ty
Frickel v.
alleged
and also
breach of
the
Enters., Inc.,
Sunnyside
714, warranty
106 Wash.2d
of habitability. The Wyoming
(1986).(en banc),
As Washington courts have not de-
implied warranty claim
involving
as one
validity
termined the
of disclaimers of
habitability,
it was in fact a claim for
implied warranty
habitability.
In
breach of
area,
the landlord-tenant
this court held
workmanship.
that such disclaimers contravene public
policy. Foisy Wyman,
83 Wash.2d
All of these cases either ignore the im-
22, 28,
(1973).
ty, acknowledging inspected had property taking the and were it “as good is” The of except year for a express warranty. one workmanship focuses on the builder’s con They duct, later sued under the while the implied warranty of habita- considerations. public policy completed specific of the bility focuses on the state Note, shifting of Clarkson, propriety include the Implied These structure. See from construction Quality Home the costs of defective Warranties in Texas of pre- who are Many Keep?, consumers to builders How Promises to Sales: (1987). costs; 605, to absorb such Through sumed better able Hous. L.Rev. 617-18 in- the transaction which warranty good workman- the nature of the of a manufactured recognizes purchase that a ship, the common law volves house; buyer’s inferior a perform product, should with new home builder the foreseeable bargaining position; least a minimal standard of care. See Jones, resulting harm from defects by Caused Con- risk of Economic Losses consumers; difficulty as- Competing The Re- consumer struction Deficiencies: conditions; jus- Tort, and gimes certaining 59 U. Cm. defective Contract (1991); Block, on a 1051, by reliance consumers 1059-60 tifiable L.Rev. As repre- expertise Tumbling Came Down: Architects’ builder’s Walls Design- Expanded Liability Under sentations. Contracting, 17 J.
Build/Construction (footnotes Davis, 72 Neb. L.Rev. at 1019 1,18 (1984); n. Green- L.Rev. MáRshall omitted). warranty more This field, Consumer Protection in Service protecting purchaser scope, limited Implied Warmnties Transactions — defects that undermine only from those Tort, Liability Strict L.Rev. Utah very bargain. Id. at 1015. basis implied warranty requires 666. This a provide It the builder to house requires to construct the home in the builder safe, fit sanitary, and otherwise for that is generally profi- same manner as would a Kamarath, human habitation. engaged cient builder similar work and words, at 660. other performing under similar circumstances. ranty only protects buyers new home from Barnes, Melody Mfg. See Home Co. v. that are so defective conditions (Tex.1987). im- 354-55 intended use property is unsuitable workmanship plied compared to the as a home. As a “gap-filler” serves as or “default warran- warranty of workmanship, “the ty”; it applies parties unless and until the a of strict lia- habitability represents form Davis, contrary intention. See completed bility adequacy since Warranty The Illusive Workmanlike perfor- and not the manner of structure Constructing Conceptual Performance: liability.” governs the builder mance Framework, 72 Neb. L.Rev. 999-1009 (1993) (foot- Davis, 72 Neb. L.Rev. at 1015 (1993) (historical purpose intended omitted). *8 gap-filler). implied a the warran- another, may overlap. For they and one ty good workmanship attaches to a new workmanship example, a builder’s inferior parties’ agreement home sale the does the structure and cause compromise could or the struc- provide not how the builder a to be unsafe. But builder’s the home perform. ture is to workmanship is perform good to failure warranty of habita implied The outcome does not actionable even when the hand, only to the bility, on the other looks Evans, at habitability. 689 S.W.2d impair product: finished well con- Similarly, a home could be human habi- yet unfit for habitability is structed and implied warranty of [T]he if, construct- example, a builder upon tation for concept a result oriented based 274 (Mo.1978) dendeale, 564 881 workmanship but on S.W.2d good a home with
ed (en banc). Crowder, many the builder is Unfortunately, Under a toxic waste site. courts, one, buyer actually not consis- that the including required prove this waiving: was tently recognized these distinctions. what he she understood seeking the of such a dis- benefit [0]ne C only conspicu- show a claimer must Robichaux, distinguish we failed fully discloses the provision ous which workman- between inclusion but also consequences of its conflating the two warranties ship, agreement the was in such fact concluding could be dis- placed thus heavy The burden reached. Robichaux, language. claimed with clear justified, completely upon the builder is habita- although 643 at 393. And S.W.2d the disclaimer he assertion of for his issue, indiscriminately bility was not at buyer that the has to show seeking analysis. analysis it into our That swept him by afforded relinquished protection any pub- discussion of the further omitted knowing waiver of A public policy. prompted the policy lic considerations implied.” readily not be protection will in the creation of the Humber warranties the Missouri agree with Id. at n. 4. We Humber, place. first See habit- warranty of Supreme Court (rejecting emptor rule of caveat new the extent only to ability can waived be LORD, sales); A. see also 17 RichaRD home disclosed. adequately that defects are 50:30(4th § On CONTRACTS Williston circumstances, such as unique Thus ed.2000) the modern trend (noting that house buys problem a a purchaser when rejects emptor new home rule caveat knowledge full express and with sales). habitability, should a that affect its defects Humber created the We recognized. waiver of this buyer average home protect ties to The ability expertise to dis- who lacks the however, the level of workmanship, defines Humber, house. defects in a new cover parties expected when performance buyer generally at 561. Such S.W.2d in their express provision to make fail a house that is structur- expects to receive gap-filler It functions as contract. sound, and free of hidden ally habitable that are supply terms purpose whose is to defects, these to the con necessary from but omitted buyer’s reasonable protect serve to See Restatement performance. tract’s are free to parties While the expectations. (198T)(Supply- § (Second) Contracts of work- quality for themselves define Term). As a ing an Omitted Essential generally no substitute manship, there is may su parties’ agreement gap-filler, warranty of habitability. The work standard for persede part an essential habitability is thus simply cannot agreement manship, but new home sale. Lenape Res. generally it. See disclaim Co., 925 Corp. Pipeline v. Tenn. Gas of Missouri Supreme (Tex.1996) (interpreting “reject it does not that while has stated gap-filler). UCC of a valid disclaim outright possibility *9 warranty implied the [of er or modification IV facts,” of habitability] any under set conclusion, that the we hold In than clear and requires more valid waiver workmanship good warranty of implied v. Van unambiguous language. Crowder dissent. notes his by when Justice ENOCH may parties be disclaimed manner, provides for the agreement their not did Justice SCHNEIDER con- performance quality or of the desired participate. further hold that the war- struction. We HECHT, dissenting from the Justice habitability may not disclaimed ranty of rehearing. for of the motion denial warranty, generally. implied This latter now, Here, example appellate for is an however, only that ren- extends defects moving for rehear- lawyers perils property der the so defective that unlikely you things do that ing: it is when unsuitable for its intended use as a home. better, they can certain- get much will Further, warranty of habitabil- ly get worse. It ity extends to latent defects. does defects, ones, not include even substantial opinion, the Court stated its first by expressly that are known disclosed agreements between the homeowners buyer. to the one-year “contained a limited and Centex waiving in lieu of and homeowners, court, In the trial who habitability warranties purchased had homes from Centex under construction.”1 good and workmanlike im- disclaiming standardized contracts (1) The held that “the im- plied and the habitability may not be disclaimed ranty of plied warranty and workmanlike “only to defects generally” but extends construction, sought judicial declaration for its property that render the unsuitable as a class the disclaimer was unen- for a home because it endan- intended use forceable. The trial court concluded life, safety of resi- gers the health or provision validly the disclaimer waived (2) dent,” implied warranty of “the both warranties and dismissed the workmanship may by be disclaimed deciding class claims. Without whether a agreement provides their parties when case, appropriate class action is on the manner and for sufficient detail remand the class claims for consideration quality of the desired construction.”3 in light of our clarification of the purpose Centex’s opinion did discuss Court’s protection afforded these on the dis- argument any limitations warranties. claimers of these only.4 apply prospectively should appeals’ judgment The court of is af- firmed. rehearing, supported Centex moved representing amici curiae
by twenty-three virtually building entire Texas home a dissenting Justice HECHT filed among counts its ranks industry, which opinion. businesses as well as thousands of small biggest of the five home builders dissenting Justice filed a four OWEN argue amici and the opinion. America.5 Centex Sup.Ct. (Aug. are Home Builders Association 1. Tex. J. 5. Amici Dallas; Builders Greater Fort Worth Greater 2002). Association; Builders Asso- Greater Houston ciation; Antonio Builders Associ- Greater San 2. Id. at 1221. ation; Capitol Area Builders Associa- Texas Builders, Inc.; tion; Texas Association Id. Builders; Home; Homes; Village Lennar U.S. Horton, KBHome; J., (Hecht, Design; D.R. dissenting). NuHome 4. Ante at 1224 *10 that the only Court has misunderstood their in a begrudging way corrected that doubt, industry they say, because of misleading. remains Reading argu- the —no spare the factual record in this case—and rehearing ments on changes and then the that likely its decision is to cause unin- opinion, the Court has made in its one is (1) They urge things: tended harm. four given impression the distinct that the Jus- that the respond argument Court to their in today’s majority share no funda- tices that its apply decision should not retroac- agreement mental on the law in this what (2) tively; clarify that the Court whether (or they explain case is else would them- the workmanship selves) yet say are determined to what industry most common the can displace is before the membership Court’s (3) implied warranty; the that the Court (tomorrow), changes again resulting in an general reconsider its prohibition of dis- opinion legislation that more resembles claimers the of habita- judicial decision-making: compromise than (4) bility; and that the Court correct its together remotely responding cobbled factual misstatement the parties’ arguments providing but as ranty provided Centex was for one guidance possible. hoping little as Parties year. ordinarily Since most courts are for a reasoned decision so can decisions, disinclined to reconsider their order their affairs accordance with the (3) expect one would not to have much litigation law and avoid are ill-treated might chance of success. But one reason- that fol- opinion. the Court’s For reasons (1), ably expect that: respect as to out of low, I grant would the motion for rehear- case, for parties to a would ing. at least mention all of dispositive argu-
ments; (2), as to out of for respect consumers, industry and its the Court I would make the law clear possible; as argue Centex and the amici (4), itself, respect as to out of prospective Court should make its decision Court would correct its own factual mis- only and should not void disclaimers statements. workmanship warranties of ruling: Here is the pros- Court’s re habitability retroactively. In Elbaor silence, pectivity, meaning that Centex and Smith,6 the Court refused to retroactive the amici still do not deserve to have their ly Mary past void hundreds of Carter all; argument addressed re workman- agreements though even it was convinced ship, a few changed words are three agreements trials those had all caused sentences, parenthetical and three expla- case, present to be unfair. In the (as nations cited authorities are deleted Court voids hundreds thousands deleting the explanation deletes the au- agreements on of im based disclaimers confusion; thority), dispelling none of the plied warranties without evidence of sin habitability, scope re gle injustice, ever. A applica retroactive warranty is at no changed request one’s deliberation, simply tion of the decision in generating and without this case new confusion; error, squared re the factual it is cannot be with Elbaor. Inc.; Homes, Ltd.; Homes; Texas, L.P.; Highland Huntington Pulte Home of Residen- Homes, Ltd.; L.P.; Warranty Corp.; Leg- tial and HOME of Texas. Beazer Homes Texas Homes; Homes; acy Perry Hammonds
Homes; Inc.; (Tex.1992). Ryland Group, Sotherby 6. 845 S.W.2d
277
Speaks
and Justice
rule,
agreements,
apply
court decisions
retro- Carter
As a
exceptions, which
The
spectively,7
but there are
were void.13
argued
had
following
by balancing the
are determined
in
Home Manu
Melody
decision
Court’s
factors:
three
have, in the
may
v. Barnes14
facturing Co.
words,
on Robi-
“cast doubt”
Court’s
(1)
a
whether
the decision establishes
chaux,15
not involve
Melody Home did
but
overruling
principle
by
of law either
new
was,
the Court
the same warranties
past precedent
litigants
clear
on which
concedes,
“factually
distinguishable”.16
may
by deciding
have relied or
an issue
now,
modifies Robi-
Even
impression
of first
whose resolution was
it. So even
chaux and does not overrule
(2)
foreshadowed;
clearly
whether
fore
Melody Home could be said
have
prospective
application
or retroactive
in this case fifteen
shadowed
decision
rule
further or retard
particular
will
later, surely home builders were
years
operation through an
examination
history, purpose,
justified
relying
and effect of the
in
on the ex
nevertheless
(3)
rule;
appli-
Robichaux,
whether retroactive
in
re
press language
which
produce
cation of the rule could
substan-
in
vitality after the decision
tains some
inequitable
tial
results.8
case,
Melody
in
hint
instead
veiled
Elbaor,
the Court’s decision
Home.
As for whether the decision in this case
Mary
agreements,
invalidate
Carter
principle:
invalidity
establishes
new
impression,
was consis
though one
first
disclaimers of the
tent
the law
Texas and other
with
good workmanship
has
case,
states;
present
the Court’s
commentators,9
argued by
just
been
as the
disclaimers of im
decision to invalidate
invalidity
Mary
agreements
Carter
directly contrary to its
plied warranties is
Mary
has.10
agreements,
Unlike
Carter
in other
prior decision and the law
own
however, such disclaimers have been ex
single
supported
states and is not
pressly permitted in other states11 and
anywhere
country.
in the
The first
case
expressly approved by
were
this Court
withholding
ret
G-W-L,
weighed
factor
favor of
Inc. v.
Before Elb
Robichaux.12
Elbaor,
aor,
to our decision in
approved Mary
this Court had never
roactive effect
J.,
(Hecht,
(citing
dissent-
7. Id. at 250
Duncan v.
11. Ante at 1223 n. 14 & 15
Cessna Aircraft
authorities).
Co.,
414,
(Tex.1984)).
ing) (citing
665 S.W.2d
434
(Tex.1982).
392
12. 643 S.W.2d
(citing
Indep.
8. Id.
Carrollton-Farmers Branch
Dist.,
Edgewood Indep.
Sch. Dist. v.
Sch.
826
Smithwick,
v.
724 S.W.2d
13. Scurlock Oil Co.
489,
1992),
(Tex.
and Chevron
S.W.2d
518-519
J.,
1,
(Tex.1986)
concurring);
(Spears,
8-12
106-107,
Huson,
97,
404 U.S.
92
Oil Co.
Simmons,
Corp. v.
558
see General Motors
(1971)).
As for desired In rare, though certainly not were not rou- retroactively Elbaor we concluded that in- may of tine. There have been scores Mary validating agreements Carter would them, case, In prevent present unfair trials but that that consid- even hundreds. outweighed by eration was the other two invalidating amici tell us that disclaimers case, present factors.17 In it is unclear workman- warranties retroactively invalidating what effect dis- ship habitability just affect not will claimers of warranties will have. hundreds but hundreds thousands of We have no evidence that the disclaimers agreements between home builders and operating unjustly, have been like the evi- buyers. Warranty home Residential Cor- regarding Mary agreements dence Carter poration say they and HOME of Texas contrary, in Elbaor. amici On tell us 429,000 in have about force that regulations that federal long required provided were builders new home that FHA buyers given and VA home be in buyers Texas. The same concerns we specified warranty and that protections,18 only present in in had Elbaor are not this protections these have come to be an in- case, they multiplied by are an order of dustry standard for other homes. The magnitude. regu- Court does not mention these federal indeed, before the motion for re- lations— in apply To the decision this case retro- it hearing was filed did not know actively upset bargains is to thousands of impact existed-—or discuss their on in reached over decades reliance on ex- Moreover, warranties. we are told that press language opinion this Court’s disclaimers of warranties are the disruptive Robichaux. However this turns warranties, given consideration for be, hardly expect out to one can it to be an express warranty so that is tied to the retroactively voiding Mary than less so implied warranty. waiver If that agreements Carter would have been. Fol- void, so and the disclaimers are then con- Elbaor, lowing give the Court should failed, sideration has prospective only. decision effect enforced, buyers cannot ties and home warranty are an implied left with of habit-
ability
may
may
provide
or
II
protection
express warranty
much
as the
holding
In
that an
Again,
would have.
without a factual rec-
generally
cannot
be dis-
ord the Court cannot know what will be
claimed,
opin-
stated
its first
Court
impact
giving
its decision retroactive
ion that this
event,
In any
effect.
this second factor
certainly weighs no more
favor of retro-
requires
provide
the builder to
a house
activity
might
than it
did
Elbaor and
safe, sanitary,
fit
that is
and otherwise
contrary.
even be to the
words,
human
In other
habitation.
implied warranty only protects
this
new
inequitable
As for the likelihood of
re-
buyers
from conditions that are
sults:
Elbaor we were concerned
home
Elbaor,
19. Elbaor,
at 251.
dangerous, or detrimental to broader life, at all? change is no intended safety.20 their health or explanation The Court reiterated that lack of for this The Court’s “only change opinion extends to defects that render the in its will doubtless leave more confused property industry unsuitable for its intended use as and consumers life, if the could define endangers a home than ever. Even because warranty, it could safety very health or limited the resident.”21 On *13 every in prevent virtually motion for the assertion rehearing, Centex and the amici been argue that the case has breached. Court should reconsider its of action When this Court created cause prohibition warranty, of disclaimers of the of intentional infliction of emotional dis- plaintiffs respond and the that the Court’s 1993, culpable in it con- tress defined the decision is correct. No one has asked that “ character, being outrageous in duct as ‘so wai’ranty be redefined. degree, go beyond in as to so extreme own-, says On its the Court now decency, all and to be possible bounds warranty applies a home whenever is atrocious, regarded utterly intoler- “so defective that it is unsuitable its ” 25 community.’ in able a civilized Since Now, “safe, intended use as a home.”22 then, dis- intentional infliction of emotional sanitary, and otherwise fit for human alleged every tress has been context are “other habitation” words” for “unsui- imaginable and considered hundreds table for its intended use as a home.” reported prophet cases. It takes no to What does “unsuitable” mean? The dic- new, predict that the Court’s undisclaima- tionary definition “inappropriate”.23 is ble, limited, warranty of habitabili- job? Does it mean a paint bad A crack ty alleged virtually every will be case An leaky the wall? unlevel floor? A involving defects in a residence. The roof? people actually Few would want to litiga- Court thrusts this burden of endless live in a new home with such defects or industry tion on an and its consumers with it find “suitable”. The Court to seems be no evidence whatever that an war- thinking very of a limited tied ranty necessary protect to homeowners not to safety, esthetics but to sanitari- injustice, authority against and with no ness, danger to life and But health. jurisdiction any from American that has so, how express does “unsuitable” found disclaimers intolerable. suitability limitation when as a standard for defining of fit- Ill particular purpose ness for a under the fairly concept.24 UCC is a broad How is express holds that an “danger- this new standard from ty regarding workmanship can'displace different ous, hazardous, life, an implied warranty. or detrimental to As for what such cover, health, safety”? express warranty should the Court contemplate Does 29, Sup.Ct. (Aug. Tex. J. Tex. Bus. & Com.Code See § 20. 24. 2.315. 2002) (citation omitted) added). (emphasis Twyman Twyman, 25. Id. at 1221. 21. (Tex. 1993) (Second) (quoting Restatement 22. Ante at § 46, cmt. d (1965)). Torts 23. Webster’s Third New International Dictio- (1981). nary opinion simply
in its first assumed that it wide. The Court refuses to admit that manner, ordinarily regulations acknowledge would such exist or to “describe[] quality and details of construction”.26 The that similar standards could substitute for nothing support assump- implied warranty. Court had an The Court’s inten- tion, appears accept industry’s and Centex and the amici now tell us tion to be to typically guaran- already criticism and hold that warranties result, tee a not the manner construc- commonly industry super- used in the can words, tion: other that the roof won’t an implied warranty. Again, sede howev- leak, not that the roof will be built of such- er, obscurity the Court’s can inscrutable nails, and-such wood with such-and-such expected generate more dis- amici etc. Centex and have asked for putes litigation, and more not settle the type whether the clarification law.
warranty workmanship that is common- ly given will displace also *14 IV
ranty. surely yes. The answer must Finally, there a factual error in the was parties The Court’s basic rationale is that opinion: warranty Court’s first Centex’s agree spe- should be allowed to to a more one-year period, a as warranty cific in was not for the Court express workmanship vaguer implied warranty. plaintiffs’ pleading alleged lieu of a This stated.28 The was, opinion rationale does not turn on whether that it as the Court’s new now states,29 specificity warranty in in express nothing of the but there is the record they manner of construction rather than the support allegation, to do not result to be achieved. claim here that the was for so period. plaintiffs a Both and Centex short response The Court’s is not to acknowl- moved, times, supple- at have different edge express warranties like those copy a of the ment the record with by the amici are described Centex and ty, which would establish that the warran- they common or that exist at all. even ty a It longer period. was for was well Rather, changes the Court three sentences deny within the Court’s discretion to these opinion its to delete “detail” and “de- motions, but it is unfair to refuse to consid- “performance”,27 tails” and add and then an repeat allegation er evidence and then parenthetical explanations deletes three everyone admits was incorrect. Presumably, eliminating cited authorities. parenthetical’s did not alter the au- significant The issue is for two reasons. themselves, wonders thorities so one period, shorter the anything accomplished whether has been appears for builders the more abusive invisibility a other than the illusion of child press buyers it on lieu of by over pulling thinks he creates a blanket But more warranty that is not so limited. his head. a refusal even to correct importantly, the noted, opinion so already plain I the amici tell factual misstatement its
As not to mislead the reader does not regulations govern federal as us process on this or on the many newly constructed homes reflect well quality a in this industry- employed followed it has to reach decision and have come to be Sup.Ct. (Aug. 28. 45 Tex. J. 26. Ante at 1216. 2002). 268, 273, and 275. Ante 29. Ante at 268. rehearing and exposes granting to the criti- would benefit from case. The Court itself argument. another This case may scheduling cism that its be as flawed as its law absolutely with no factual facts. Its silence is assent. comes to us trial court dismissed the record. The on the class action claims based plaintiffs’ No evidence was offered pleadings. arguments The Court should heed the not even have the ex- any party. We do Centex and the amici to reconsider us. press warranty that is at issue before altogether. decision The Court’s misstate- did Yet this Court was asked to decide and fact, ment assumption its mistaken implied warranties of decide whether the about the nature of workmanship can used, workmanship actually are home, ever be waived the sale of new misunderstanding and its serious so, and if what such a waiver must contain nature operation of the home con- what the to be effective. We have no idea industry explained by
struction can all be practical impact holding of our will be on fully developed the absence of factual consumers. record that would indicate whether dis- helpful claimers of warranties are say I think it is fair to that the Court’s or hurtful to buyers builders and overall. original opinion this case reflected our dissent, I my As wrote in first this issue knowledge homebuilding lack of about the cannot be factual infor- resolved without industry, regulations govern federal *15 mation that simply Court does not it, large segments types and the of have. What we do know that no other widely today. warranties that are used
jurisdiction in country has found it any Nor is evidence in the record there necessary appropriate prohibit or to dis- of implied tells us whether waivers claimers of warranties of in express given warranties or warranties workmanship and habitability, and that lieu of warranties have detrimen- jurisdictions some have approved such dis- so, if tally impacted consumers and what claimers. in Nothing the record before us aspects proven warranties have in any research available to us demon- Yet, in to be deficient. the face of our strates such disclaimers should be knowledge, opine dearth of we ventured to forbidden in the State Texas. in amorphous required terms what was Mauzy famously ascribed the de- industry public an entire as a matter of Justice in Melody cision to the personal Home by policy. policy, That once announced views of the MembeRS Court, Court.30 this is immutable unless the Court Ironically, subject im- revisiting the mind,1 again changes Legis- once its or the plied case, warranties this the Court has lature acts. I now believe that it is unwise little more on which to base decision. make sweep- for this Court to the kind of ing policy decision that it has made previ- For all these reasons and those adequate case without an record or at least ously expressed, I continue to dissent. briefing argument. further OWEN, dissenting Justice from the Legislature regulatory Unlike the or a rehearing. denial of motion for agency, hearings to this Court cannot hold regulation I have of an indus- become convinced amicus determine whether so, try precise in this case that and if briefs filed the Court is needed what Robichaux, Barnes, G-W-L, Melody Mfg. Home Co. v. 1. See Inc. v. J., (Tex. 1982). (Mauzy, concurring). regulation contours of that should be. We generated to the in a
are limited record
case, courts, precedent from other noted,
scholarly already ruminations. As And, prece-
we have no record here. weighs heavily from other courts
dent allowing
favor of waivers of Before this
ranties new home sales. potentially voids hundreds and their
thousands
accompanying waivers
ties, far than we should know more today. restoring rights
know Are we voiding pur- potentially
consumers or
chase of for failure of consider- homes assuring protec- ation? Are we needed needlessly adding
tions for consumers or purchasing
to the cost of a home? Be-
cause we do not know the answers to these many questions, other we should not a definitive decision
undertake issue until
unless and we have more information.
Accordingly, grant rehearing I would not, I
this case. Because the Court does
dissent. *16 Eagle” OTTO,
Robert Richard “White McLaren, Appellants,
Lance of Texas. STATE 1801-99,
Nos. 1802-99. Texas, Appeals
Court of Criminal
En Banc.
Jan. AGREES THAT SELLER IS RELYING ON waiver of warranties that is in 2. The says, large specifically before us NOT SELL the record THIS WAIVER AND WOULD accepting express type, purchaser that the WITH- THE PROPERTY TO PURCHASER in lieu of warranties WAIVER.” OUT THIS AND that “PURCHASER ACKNOWLEDGES notes good workmanship warranty was to serve parallel These two Thus,