Thе PARKWAY COMPANY, Parkway Company of Texas, Inc. and Sugar Creek Corporation, Petitioners, v. Ray WOODRUFF and Constance Woodruff Presley, Mickelson & Klein, Inc., and Vansickle, Mickelson & Klein, Inc., Respondents.
No. D-4185.
Supreme Court of Texas.
Argued Sept. 21, 1994. Decided June 15, 1995.
Rehearing Overruled July 21, 1995.
901 S.W.2d 434
The legislature never contemplated a system in which venue is decided in favor of the party who can exert the most legal effort and win the race to the courthouse.1 In this case, the Bigham children legally resided in Harris County when Mr. Bigham convinced the trial court that it should issue “temporary” orders moving the children to Fayette County. After a few months, Mr. Bigham successfully argued that the case should be transferred to Fayette County, because that was where the children resided. This is the very kind of forum shopping the legislature sought to forestall by requiring courts to decide venue on the facts existing at the time of the initiation of suit. The Court rewards this manipulation of venue by holding that a party has the power to terminate jurisdiction in the transferring court before the court can recognize and correct its error.
While many of life‘s rewards go to the swift, a race to the courthouse is not a sensible method of establishing venue in child custody cases. For these reasons, I dissent.
Amy Dunn Taylor, Linda Foreman Clark, Michael T. Powell, Houston, for respondents.
Justice CORNYN delivered the opinion of the Court, joined by Chief Justice PHILLIPS, Justice GONZALEZ, Justice HIGHTOWER, Justice HECHT, Justice ENOCH, Justice SPECTOR and Justice OWEN.
We decide in this case whether a real estate development company violated the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA),
I. Facts
The Sugar Creek Corporation and its successor-in-interest, the Parkway Company (collectively, Parkway), created a real estate development known as Sugar Creek on the south side of Houston. Parkway prepared the land for homebuilding by platting, surveying, regrading, building roads, and dealing with local regulatory and utility authorities. The Sugar Creek community was developed over a period of years, and included plans for retail and recreational areas.
In 1977 Harrington Homes purchased the lot at issue, in section 24 of the development, and built a house on it. After Harrington Homes sold it to the original occupants, the house was resold and occupied by another homeowner before Ray and Constance Woodruff bought it and moved in during April 1981.
In 1983 Parkway began to develop Sugar Creek section 34, which lies immediately to the east of the Woodruffs’ lot and the Kaneb tract, a large commercial tract that lies to the north of the Woodruffs’ lot and the rest of section 24. During the course of its work in early 1983, Parkway began constructing a wall along the line dividing section 34 from the Kaneb tract and section 24.
Ray Woodruff, who holds an engineering degree, advised Parkway by letter on February 3, 1983, that the wall might alter drainage patterns on his lot. Six days later, during a heavy rainstorm, the Woodruffs observed that regrading activities on section 34 had diverted runoff from the Kaneb tract onto their land.
After investigation, Parkway‘s engineers proposed a new drainage system, but Mr. Woodruff objected to the proposal because it called for the construction of an earthen berm across the back of his lot. Instead Woodruff installed another type of drainage system. Parkway offered to pay fоr Mr. Woodruff‘s drainage system on the condition that the Woodruffs release Parkway from any future liability. The Woodruffs objected to the release, however, and covered the construction costs themselves. Parkway finished the wall in July 1983.
When Hurricane Alicia struck the Texas coast on August 18, 1983, run-off from the Kaneb tract flooded the Woodruffs’ sunroom. The house flooded again in 1986, 1987, and 1989. As a result, the house suffered a cracked foundation and other structural damage.
The Woodruffs filed suit in 1984 for negligence, gross negligence, nuisance, trespass, and Water Code violations. They also alleged that Parkway was liable under the DTPA for: (1) unconscionable conduct; (2) false, misleading, or deceptive acts or practices; and (3) the knowing breach of an implied warranty to perform “development services” in “a good and workmanlike manner.” Parkway, in turn, filed third-party claims against its engineers, the owners of the Kaneb tract, and Harrington Homes. The Woodruffs later amended their petition to sue directly these additional parties.
At trial, the district court granted a directed verdict in favor of Harrington Homes and Parkway‘s engineers. On the remaining claims, a jury found that Parkway was negligent but that the owners of the Kaneb tract were not. The jury also found that Parkway violated the Water Code, that it knowingly breached an implied warranty, and that it acted unconscionably. The jury declined, however, to find that Parkway was grossly negligent, that it engaged in any false, misleading, or deceptive acts or practices, or that it intentionally caused a trespass of the Woodruffs’ property. The court rendered
The court of appeals affirmed most of the trial court‘s judgment, but deleted any damages for mental anguish, and added $14,000 in out-of-pocket expenses claimed by the Woodruffs. 857 S.W.2d 903.
II. DTPA Violations
The Woodruffs allege that Parkway violated the DTPA by breaching an implied warranty to perform future development services in a good and workmanlike manner, or alternatively, by committing an unconscionable act. Assuming that the Woodruffs are consumers under the DTPA,1 we analyze each basis for DTPA recovery.
A. Implied Warranty
The DTPA prohibits the breach of an express or implied warranty, see
The judicial recognition of implied warranties in service transactions in Texas has had a short and somewhat uneven history.4 Until 1987 this Court had never recognized a cause of action for breach of an implied warranty relating to services. In Dennis v. Allison, 698 S.W.2d 94 (Tex.1985), we declined to recognize an implied warranty in connection with medical services when a patient was sexually assaulted and beaten by her psychiatrist. The Court considered whethеr judicial recognition of an implied warranty was justified in light of existing remedies available to the patient. In denying recovery under an implied warranty theory, the Court concluded: “It is not necessary to impose an implied warranty theory as a matter of public policy because the plaintiff patient has adequate remedies to redress wrongs committed during treatment.” Id. at 96.
At least two principles from Dennis and Melody Home apply in this case. First, an implied warranty will not be judicially imposed unless there is a demonstrated need for it. Second, the Melody Home implied warranty extends only to services provided to remedy defects existing at the time of the relevant consumer transaction.5
These preliminary issues aside, we view the issue presented here to be whether consumers who are injured by substandard services can recover under an implied warranty theory when they neither sought nor acquired the services about which they complain. The requirement that a consumer urging an implied warranty for services seek or acquire that specific service flows from the historical definition of a warranty:
A warranty is an express or implied statement of something with respect to the article sold, which the seller undertakes shall be part of a contract of sale; and though part of the contract, yet collateral to the express object of it.
ARTHUR BIDDLE, A TREATISE ON THE LAW OF WARRANTIES IN THE SALE OF CHATTELS 1 (Philadelphia, Kay & Brother 1884) (emphasis added).6 Therefore, to determine whether an implied warranty to provide future development services should be extended to the Woodruffs, we must first identify an underlying transaction upоn which an implied warranty might be imposed. The parties identify three possible underlying transactions: the sale of the lot from Parkway to the homebuilder, the purchase of the home by the Woodruffs, and the regrading and drainage work performed by Parkway in 1983.
Of these three options, we find the last one the least persuasive. In the 1983 negotiations, no contract was formed, and no goods or services were sold. The second alternative, the Woodruffs’ purchase of the home in 1981, is also problematic. Parkway was not involved at all in this transaction and did not sell any goods or offer or agree to perform any particular services in connection with the sale. That leaves the initial sale of the lot by Parkway to the homebuilder as the only remaining transaction upon which a servicerelated implied warranty could be imposed. The Woodruffs’ clаim hinges on whether any services were conveyed or promised as a part of this transaction. The sale clearly conveyed goods,7 but our focus is on whether the sale had a service element as well.
We find no reasonable basis under these facts for concluding that Parkway impliedly agreed to perform future development services for the Woodruffs’ benefit. The court of appeals pointed to Parkway‘s claim that Sugar Creek was a “master planned community” as evidence of an implied promise to provide these services. The court reasoned that this term
certainly suggests to a potential purchaser that each aspect of the development would be undertaken with concern for the rest of the development, that the subdivision would not be built piecemeal, and that the construction of one section would not, as happened here, be allowed to adversely affect another section. The concept of “master planning” also implies provision of continued competent development including flood control, drainage, management, and maintenance services.
In reaching this conclusion, the court of appeals equated the use of the term “master
The only other evidence relied on by the Woodruffs to support their implied warranty claim is a scale model of the development displayed in Parkway‘s information center. We recognize that models can create express warranties about the qualities of goods sold: when a model is displayed prior to sale, thе goods delivered must conform to the model.
Accordingly, we hold that no implied warranty to perform future development services should be imposed in this case. Because no services were included in the transaction, no service-related warranty was breached. Moreover, the Woodruffs have not met their burden under Dennis v. Allison to show why damages for negligence do not provide an “adequate remed[y] to redress wrongs cоmmitted,” see 698 S.W.2d at 96, and thus have not demonstrated a compelling case for recognition of an implied warranty under these circumstances. To the extent the judgment relied on this breach of warranty theory, it cannot stand.
B. Unconscionability
The Woodruffs also contend that Parkway violated the DTPA by acting unconscionably. The DTPA defines an “unconscionable action or course of action” as one which:
- takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
- results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.
Under Part A, the Woodruffs argue that Parkway‘s exclusive control over the
Under Part B, the Woodruffs argue that the flooding created a gross disparity between the value of their home and what they paid for it. Again, the time for evaluating the disparity in value is the time of sale. Diminution in value caused by later events cannot support a claim of unconscionability. As there is no evidence that Parkway did anything to cause a gross disparity in value at the time of sale, the Woodruffs’ claim under this definition of unconscionability also fails.
C.
Because we conclude that the Woodruffs cannot recover under the DTPA, we reform the judgment to delete any remedy predicated on the DTPA. This includes the discretionary award of damagеs for a knowing violation of the DTPA and the award of attorney‘s fees. In the absence of recovery under the DTPA, there is no basis for the recovery of attorney‘s fees in this case. See First City Bank v. Guex, 677 S.W.2d 25, 30 (Tex.1984).
III. Double Recovery
Parkway also alleges that the judgment gives the Woodruffs a double recovery for the damages to their home. Parkway claims that the court of appeals erred by allowing an award of both the cost of repairs and the diminution in the value of the home, because the diminution was calculated assuming that no repairs had been made. We agree.
Texas law does not permit double recovery. Southern Co. Mut. Ins. Co. v. First Bank & Trust, 750 S.W.2d 170, 173-74 (Tex.1988). When the prevailing party fails to elect between alternative measures of damages, the court should render the judgment affording the greatest recovery. See, e.g., Kish v. Van Note, 692 S.W.2d 463, 468 (Tex.1985) (rendering judgment for each separate element of damages in order to give the plaintiffs complete compensatiоn for their losses).
Damages for diminution in value and damages for cost of repairs are not always duplicative. Diminution in value does not duplicate the cost of repairs if the diminution is calculated based on a comparison of the original value of the property and the value after repairs are made. See Ludt v. McCollum, 762 S.W.2d 575, 576 (Tex.1988). As the court of appeals recounted, however, the Woodruffs’ appraiser calculated the diminution in value by comparing the original value of the house to the value of the unrepaired house:
The Woodruffs’ expert appraiser testified that he had done two appraisals of market value as of September 19, 1983, one assuming the flooding, and attendant damages of a cracked slab, had occurred and one assuming it had not. The house was worth $240,000 before it flooded and without being subject tо flooding. After it flooded and with the damages cause[d] by the flooding, it was worth $120,000.
857 S.W.2d at 913 (emphasis added). The Woodruffs also sought, and the jury awarded, $100,000 for the cost to repair the slab of the house. The Woodruffs were required to choose between the diminution in market value of the house and the cost of repair; they cannot recover both. Accordingly, we reduce the judgment for actual damages by $100,000.
The Woodruffs challenge the court of appeals’ deletion of their award for mental anguish based on legal insufficiency. The court of appeals concluded that “the evidence simply does not demonstrate mental anguish as that term is defined by law.” 857 S.W.2d at 916. We agree with the court of appeals.
At the outset, we emphasize the limited nature of our present inquiry: we are focusing only on the type of evidence required to support an award of mental anguish damages in cases in which recovery is allowed. Nonetheless, we find it helpful to begin with a historical overview of mental anguish damages before addressing the legal sufficiency of the Woodruffs’ evidence of their mental anguish.
The history of mental anguish damages in Anglo-American jurisprudence is convoluted and complex. Mental anguish claims have long been distrusted by the common law, and an early general rule developed that mental anguish damages were not recoverable. See Lynch v. Knight, 11 Eng.Rep. 854, 863 (H.L. 1861). The inherently subjective nature of mental anguish and the concomitant potential for false claims were two of the most commonly cited reasons for skepticism about such claims. See, e.g., Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 37-39, 176 N.E.2d 729, 731-32 (1961); Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646, 647 (1966). Exceptions to the general rule gradually emerged, falling into roughly two categories. Recovery for mental anguish was permitted when the mental suffering was: (1) accompаnied by a physical injury resulting from a physical impact, or (2) produced by a particularly upsetting or disturbing event.
Once the threshold requirements of physical injury and impact or of particularly disturbing events were met, recovery of mental anguish damages was not hard to justify. Mental suffering could be inferred from the fact of physical injury. The Missouri Supreme Court, for example, justified this inference by reasoning that “the mind is as much a part of the body as the bones and muscles, and an injury to the body included the whole, and its effects were not separable.” Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S.W. 345, 349 (1893).
Similarly, once particularly disturbing events were proved by reference to objective phenomena or conditions, the law generally allowed the claimant‘s mental suffering to be presumed to flow from such events. See Nancy Levit, Ethereal Torts,
Although limiting mental anguish damages to cases with either physical impact or disturbing events avoided many evidentiary problems, the limitations were admittedly arbitrary: some claimants with relatively minor mental anguish recovered, while others who might have suffered significant anguish were precluded from any recovery. As a result, many of these limitations were first relaxed and later abandoned. The requirement of a physical impact was relaxed, and recovery for mental anguish was permitted so long as the anguish manifested itself physically. See Jamеs G. Curenton, The Twilight Zone of Danger: Negligent Infliction of Emotional Distress as an Actionable Tort,
Over time, the disturbing events exception also yielded to pressure to provide compensation in more routine cases. Courts took cognizance of mental anguish injuries not only in cases of malicious intentional wrongs, but also in cases involving violations of statutes. See, e.g., Johnson v. Alaska State Dep‘t of Fish & Game, 836 P.2d 896, 915 (Alaska 1991) (allowing recovery of mental anguish damages caused by violation of a discrimination statute). But cf. Gallagher v. Bituminous Fire & Marine Ins. Co., 303 Md. 201, 492 A.2d 1280, 1284 (1985) (refusing to permit recovery of mental anguish damages caused by the intentional violation of a statute when the statute merely required the payment of money). Some jurisdictions came to recognize a distinct legal duty to avoid even the negligent infliction of emotional harm itself. See, e.g., Taylor v. Baptist Med. Ctr., Inc., 400 So.2d 369 (Ala.1981); Montinieri v. Southern New Eng. Tel. Co., 175 Conn. 337, 398 A.2d 1180 (1978); Rodrigues v. State, 52 Haw. 283, 472 P.2d 509 (1970); Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282 (Me.1987); Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209 (1984); Bass v. Nooney Co., 646 S.W.2d 765 (Mo.1983); Johnson v. Ruark Obstetrics & Gyn. Assocs., 327 N.C. 283, 395 S.E.2d 85 (1990); Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109 (1983).
Texas law has generally followed the same ad hoc pattern of development. We initially allowed mental anguish damages only in cases in which there was a physical injury. See Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 59 (1890) (“Probably an action will not lie when there is no injury except the suffering of the fright itself....“). At the turn of the century, we allowed recovery for mental anguish unaccompanied by physical impact injury, provided the mental anguish had a physical manifestation. See Hill, 13 S.W. at 59; Gulf, C. & S.F. Ry. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 945 (1900). We eased the physical impact rule even further when we adopted the bystander rule from Dillon v. Legg in Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex.1988).
Texas courts have also struggled to distinguish between the disturbing events that justify mental anguish damages and those that do not. Unwilling to confine mental anguish damages to intentional torts, our courts have allowed mental anguish damages for such things as failing to deliver a telegraph relating to death or last illness, see Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351, 353 (1885); sending a passenger to the wrong destination, see Texas & Pac. Ry. Co. v. Armstrong, 93 Tex. 31, 51 S.W. 835, 836 (1899); and mishandling a corpse. See Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 907 (Tex. Civ.App.-Hоuston [14th Dist.] 1969, writ ref‘d n.r.e.).
The physical manifestation requirement was first excused under exceptional circumstances, and then abandoned completely in 1987. See St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 654 (Tex.1987), overruled on other grounds, Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993). Similarly, the types of culpable conduct for which mental anguish damages were allowed expanded to include more commonplace misconduct, such as knowing misrepresentations in a consumer transaction. See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex.1984).
As mental anguish damages have become more readily available, members of this Court have voiced concerns about the potential for over-compensation and even double recovery. See Moore v. Lillebo, 722 S.W.2d 683, 688-692 (Tex.1986) (Spears, J., joined by Gonzalez, J., dissenting) (arguing that elimination of physical manifestation requirement for recovery of mental anguish damages would allow damages for non-compensable sorrow, anger, worry, and fear, and in a wrongful death case, would duplicate those damages already allowed for loss of companionship and society); see also Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 368-69 (Tex.1987) (disallowing recovery for “shock and emotional trauma” as duplicative
The erosion of these proxies as a substitute for proof of mental anguish has created a vacuum of sorts, in which the only guidance given by trial courts to juriеs is a confounding definition of mental anguish, of which the following is typical:
The term “mental anguish” implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.
Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 584 (Tex.Civ.App.-Corpus Christi 1979, no writ). This definition requires a jury to distinguish between disappointment and severe disappointment, between embarrassment and wounded pride, between anger and indignation. It is little wonder that courts and juries have found this and similar definitions of mental anguish “somewhat unwieldy.” Sanchez v. Guerrero, 885 S.W.2d 487, 494 (Tex.Civ.App.-El Paso 1994, no writ).
When a challenge is made to the sufficiency of the evidence to go to the jury or to support the jury‘s finding, the same type of problem persists. The reviewing court must distinguish between shades and degrees of emotion. These distinctions are critical under our substantive law because evidence of lesser reactions cannot support an award of mental anguish damages.
Under this admittedly nebulous definition and the traditional standard of review, it is nevertheless clear that an award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine. Such evidence, whether in the form of the claimants’ own testimony, that of third parties, or that of experts, is more likely to provide the fact finder with adequate details to assess mental anguish claims. Although we stop short of requiring this type of evidence in all cases in which mental anguish damages are sought, the absence of this type of evidence, particularly when it can be readily supplied or procured by the plaintiff, justifies close judicial scrutiny of other evidence offered on this element of damages.
When claimants fail to present direct evidence of the nature, duration, or severity of their anguish, we apply traditional “no evidence” standards to determine whether the record reveals any evidence of “a high degree of mental pain and distress” that is “more than mere worry, anxiety, vexation, embarrassment, or anger” to support any award of damages. See J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex. App.-Houston [1st Dist.] 1990, no writ). In applying this standard to the record before us, we conclude that the jurors here were left to speculate about the existence of compensable mentаl anguish in this case.
I was hot. I was very disturbed about that, and called him and said, “I would like to sell you a house. I think you have just flooded my property, I think you have messed up my house.” I begged the guy not to.
Constance Woodruff made the following statements in one passage of her testimony (which is reprinted in full in the court of appeals’ opinion):
[I]t‘s just not pleasant walking around on cement floors.
. . . .
Well, [our life] changed. It just—I don‘t know, it‘s a hard feeling to describe, unless you go through it. It was just upsetting, Ray would come home and he would become very quiet. He was—I guess we both were. It caused some friction between us because I wanted to just get it done and get over with and things couldn‘t move as quickly as I wanted them to.
. . . .
Afraid? I wasn‘t afraid. I guess I was—I was just upset that it changed our life style. We were all very happy, and since I lived at home quite well, most of the time, it meant a lot to me. I‘m a very private person, and I really maybe depended upon my house a little more than other people.
These statements show that the Woodruffs felt anger, frustration, or vexation, but they do not support the conclusion that these emotions rose to a compensable level. For the most part, the quoted testimony does nothing but cite the existence of “mere emotions“: “I was hot,” “It was just upsetting,” and “I was just upset.” It does not support the conclusion that the Woodruffs suffered compensable mental anguish.
Not only is the record devoid of direct evidence of the nature, duration, or severity of the Woodruffs’ mental anguish, there is also no circumstantial evidence other than the fact of the flooding itself to support any award of mental anguish. As we have noted, historically, some types of disturbing or shoсking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish. As a general matter, though, qualifying events have demonstrated a threat to one‘s physical safety or reputation or involved the death of, or serious injury to, a family member. While the flooding of the Woodruffs’ home certainly disrupted their lives temporarily, under our substantive law this type of disruption will not support an inference that compensable mental anguish occurred.10 Evidence of Parkway‘s negligence and the resulting property damage cannot alone support the mental anguish damages.
We therefore affirm the court of appeals’ holding that the evidence of mental anguish damages was legally insufficient.
V. Conclusion
The judgment of the court of appeals is hereby modified to delete any recovery under the DTPA, for attorney‘s fees, and for the double recovery of damages, and as reformed the court of appeals’ judgment is affirmed. Regarding Parkway‘s point of error challenging the directed verdict on its claims against the engineers, we agree with the court of appeals’ that there was no expert testimony of the applicable standard of care or any basis for finding a breach of that standard. 857 S.W.2d at 919. Accordingly, we affirm the court of appeals’ judgment for the engineers.
Justice GAMMAGE, dissenting.
I dissent to that part of the majority opinion which refuses to recognize an implied
The majority maintains that the Woodruffs do not have a cause of action under the DTPA based upon either implied warranty or unconscionability theories. I believe the Woodruffs do present facts giving rise to a cause of action for Parkway‘s breach of an implied service warranty.
As the majority notes, this Court has recognized an implied warranty “to repair or modify existing tangible goods or property in a good and workmanlike manner” in Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex.1987) (emphasis added). The court of appeals correctly held that the applicability of an implied warranty is not negated because the Woodruffs did not purchase their home from thе builder. An implied warranty of good and workmanlike construction from a builder/vendor extends to the remote purchaser. Gupta v. Ritter Homes, Inc., 646 S.W.2d 168 (Tex.1983); see also Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77, 78 (Tex.1977).
The majority concludes, however, that Parkway did not impliedly agree to perform future development services “for the Woodruffs’ benefit.” But the issue is not whether Parkway agreed to provide development services for the Woodruffs’ benefit; it is whether Parkway impliedly agreed to conduct its future development in a manner not detrimental to the Woodruffs and consistent with the scheme of the master-planned community. When the Woodruffs purchased their house, they contracted not only for a house but also for a master-planned community—a developed neighborhood. They were forced to rely on Parkway for its expertise on the technical aspects of building a housing developmеnt, including its skills in providing adequate drainage for all lots, because the Woodruffs lacked the knowledge and ability to do so themselves.
As the court of appeals notes, “a homebuyer/consumer cannot, by reasonable examination, discern or anticipate irresponsible or defective subdivision development activities.” 857 S.W.2d 903, 911. It is reasonable for a consumer to expect that when he or she buys into a housing community under development the developer will conduct its future development activities without affirmatively damaging their property. Certainly no reasonable homebuyer would purchase a house with the expectation that the neighborhood‘s developer would take affirmative action to damage the buyer‘s property. A developer or builder selling property in a development community may not be impliеdly warranting for future development services, but equity demands that he does warrant to not in the future violate the development‘s master plan in such a way as to interfere with purchasers’ reasonably anticipated use and enjoyment of their property.
Service provided in a good and workmanlike manner means “that quality of work performed by one who has the knowledge, training, or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work.” Melody Home, 741 S.W.2d at 354. As this Court pointed out in Melody Home, “a service provider is in a much better position to prevent loss than is the consumer of the service. . . . [A] consumer should be able to rely upon the expertise of the service provider.” Id. at 353. In this case, Parkway, as the developer, was in the better position to ensure that its construction on lots adjoining the Woodruffs’ would not result in property damage to other lots and homes in the area. As a professional developer, Parkway impliedly warranted that it would competently furnish development services. By intentionally flooding developed lots and homes, Parkway breached the implied warranty to repair or modify existing property in a good or workmanlike manner.
I would find Parkway liable under the DTPA for breach of the implied warranty to repair or modify existing property in a good
Austin David BARBER et al., Petitioners, v. COLORADO INDEPENDENT SCHOOL DISTRICT, Respondent.
No. 94-0054.
Supreme Court of Texas.
Argued Nov. 16, 1994. Decided June 22, 1995.
Pat Barber, Colorado City, James C. Harrington, Austin, for petitioners.
T.L. Rees, C. Michael Ratliff, Colorado City, for respondent.
GONZALEZ, Justice delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, HECHT, CORNYN, ENOCH and OWEN, Justices, join.
This is a class action challenging the legality under the state constitution of hair length and earrings restrictions imposed by Colorado Independent School District (CISD) upon its male high school students. The trial court held that CISD‘s grooming code violated the Texas Constitution and granted a permanent injunction against the school district, prohibiting enforcement of the regulations. The court of appeals reversed the judgment of the trial court, holding that judicial intervention was inappropriate in this case. 864 S.W.2d 806. We refuse to use the Texas Constitution to micro-manage Texas high schools. Therefore, we affirm the judgment of the court of appeals.
In 1992, Austin Barber was an eighteen-year-old high school senior in Colorado City, Texas. CISD‘s school rules included the following regulation: