OPINION
This is аn appeal from a summary judgment granted in favor of the original home-builder, appellee Ritter Homes, Inc., in a suit brought by the second owner of a used home, appеllant Vijai P. Gupta. Appellant brought suit against appellee on three theories: implied warranty under the Deceptive Trade Practices Act, implied warranty under the Texas Business and Commerce Code and negligence. The trial court sustained the appellee’s motion for summary judgment, holding that no implied warranty exists on a used home or in other words, a homebuilder makes no implied warranty to a second owner who purchases a home from the original owner. On appellant’s theory of negligence, the trial court held that ap-pellee owed no duty to appellant since no privity existed between appellant and ap-pellee. We agree that in Texas no implied warranty exists on the sale of a used home, but we reverse and remand on the issue of negligence because privity is not required under the alleged cаuse of action for negligence.
Appellant, Vijai P. Gupta, purchased a home for investment purposes on September 29, 1977, from James Wobig, the original homeowner. Wobig had in turn purchased the home new from the appellant homebuilders three months earlier on June 17, 1977. Appellant had no contact, agreement or dealings with appellee prior to his purchase of the house from Wobig. Shortly after his purchase, appellant noticed cracks *627 appearing in the wall, driveway and garage slab. Appellant came out to the home and made some minor repairs. Thereafter, the cracks increased in severity and the appellants, after inspecting the home, refused to repair the alleged defects.
Appellant then sued appellee seeking economic damages sustained by reason of implied warranty under the Texas Deceptive Trade Practices Act and section 2.314 and 2.315 of the Texas Business and Commerce Code and negligence. Other theories of recovery under the Texas Deceptive Trade Practices Act and express warranty were alleged but they have been either disposed of or severed from this сause in a manner not made entirely clear in the record. In any event, complaint on appeal has been limited to the summary judgment motion and ruling on the issues of impliеd warranty and negligence.
Appellee filed a motion for summary judgment showing the undisputed facts of the purchase of a used home by appellant from Wobig and the laсk of privity between appellant and appellee. Therefore, appellee urged, no cause of action for implied warranty existed in favor of appellant and no duty was owed under the negligence theory by appellee to appellant because privity did not exist between them. The trial court granted the summary judgment on both points and it is from this action of the trial court that appellant perfects this appeal.
In his first point of error, appellant contends that the trial court erred in holding that no cause of action existed for implied warranty. Appellant urges that this case is one of first impression in Texas and that the rule enunciated in twо prior civil appellate cases are inapplicable. We disagree. Two Courts of Civil Appeals have decided cases relating to implied warranty and its application to purchases of used homes. The first of these,
Cheney v. Parks,
“Under Texas law there is no implied warranty that used goods are fit for the purpose for which they were purchased. Chaq Oil Co. v. Gardner Machinery Corp.,500 S.W.2d 877 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). We find that this holding is equally applicable to the purchase of a used dwelling. A buyer of a used house takes the same subject to wear and tear of use just as does the buyer of a used automobile...”
The second case,
Thornton Homes, Inc. v. Greiner,
It is thus well established that appellant has no cause of action against appel-lees under thе Deceptive Trade Practices Act in that no implied warranties flowed to appellant since appellant knowingly purchased a used home. Appellees further rely upon
Turner v. Conrad,
In his second point of error, appellant asserts that the trial court erred in granting appellee’s motion for summary judgment by ruling that, as a mattеr of law, no privity existed between appellant and appellee and therefore, appellee owed no duty to appellant. As a result of the absence of privity, the trial court reasoned that the home buyer, appellant, had no cause of action against the appellee for negligence. We conclude that the trial court erred in this respect.
Appellees cite no authority nor can we locate any for the proposition that privity of contract is a prerequisite to an action for damages based upon a negligence theory. The Texas Supreme Court has held to the contrary in two cases, stating that privity is nоt a requirement to maintain an action for damages based upon a negligence theory of recovery. In
Nobility Homes of Texas, Inc. v. Shivers,
We hold that privity of contract is not a prerequisite for establishing a duty owed to appellant by appellees. Wе believe that a homebuilder contemplates sales of the home beyond the initial purchaser and thusly, a homebuilder owes a duty to exercise ordinary care in thе construction of the home. This duty is not limited to the first purchaser of the home. Since this suit was brought in a timely manner, we do not pass on any question as to the nature of the alleged defects, whether latent or obvious, and the accrual of a cause of action for limitation purposes.
Appellees contend that the summary judgment should be sustаined since appellant failed to bring up the complete record. Appellant submits that the absence of ap-pellees’ request for admissions and appellant’s answer to this request requires us to presume that the absent record supports the summary judgment.
DeBell v. Texas General Realty, Inc.,
The trial court properly granted Summary Judgment on the issue of implied warranty, but the case is reversed and remanded for trial on the issue of negligence.