*1 Petitioner, INDUSTRIES, INC., PART CENTERS JMB/HOUSTON LIMITED PARTNER
NERS
SHIP, Respondent. 01-0346.
No. of Texas.
Supreme Court
Argued Nov. July 9,
Decided
Rehearing Denied Nov.
for deceptive acts and breaches that a found jury had been committed Industries, Inc. But the two cor- porations dealings, had direct business none of the claims stemmed from transac- Instead, tions them. between JMB’s suit relied on and DTPA claims re- by assignment predecessor ceived its from in interest. *4 appeals
The court of affirmed the judg- ment, joining several other courts that Dunn, Moore, Charles R. Frances W. have held or DTPA assumed claims are Adams, Dunn Cassidy, Kacal A. Helen Sto- assignable;1 opinions a few other suggest rey P.C., Moore McCally, & David M. they granted petition are not.2 We in Gunn, Beck, Secrest, L.L.P., Redden & this case to decide the matter. Holman, David W. Keeling Holman & York, P.C., Houston, for Petitioner. We hold that DTPA assigning claims Alderman, Richard Crump, M. David Al- purpose would the primary defeat of the Liberato, Lynne eñe Ross Levy, Haynes & encourage statute —to individual consum- Boone, Golden, Owens, H. Bruce Golden & ers to such bring claims themselves. Ad- L.L.P., Houston, for Respondent. ditionally, find the personal puni- tive of aspects DTPA claims cannot be opinion Justice BRISTER delivered squared a allowing with rule them to be Court, in which Chief Justice assigned property. were mere PHILLIPS, HECHT, Justice Justice OWEN and Justice WAINWRIGHT We also court in conclude the trial erred joined. holding five-year-warranty JMB’s limitations, claim by was not barred Centers Partners ob-
JMB/Houston judgment tained a twenty-year-warranty more than million that its claim was a $17 270, 276-77; (plaintiff-assignee 1. 41 Gregorcyk recovery S.W.3d see also denied DTPA be- Builder, Inc., consumer). 523, assignor Hogan v. Al cause was not DTPA S.W.2d 884 1994, (Tex.App.-Corpus Christi writ Booth, City 2. See Garland v. 971 S.W.2d denied) (holding assignment homeowners' 631, 1998, denied) (Tex.App.-Dallas pet. 634 "all their claims” to insurer included DTPA (holding unassignable DTPA claims when Arnold, builder); v. Luker 843 legal malpractice); based on Vinson & Elkins 108, 1992, (Tex.App.-Fort S.W.2d 120 Worth Moran, 381, (Tex.App.- 946 S.W.2d 396 writ) (holding assignment no of DTPA claims 1997, by Houston writ [14th Dist.] dism'd despite acknowledgment, valid absence of de- Itz, (same); agr.) see also Trimble 898 livery assignees' bankruptcy, after and limita- 370, 1995) 372 (Tex.App.-San S.W.2d Antonio tions); Bugmobiles, Props., Nat’l Inc. v. Jobi (holding bring insurer could not DTPAclaims 616, (Tex.App.-Corpus 622 Christi denied, name), in insured’s writ 1989, denied) (holding subsequent writ home- 1995) curiam); (Tex. (per 481 Hart v. First bring owner could DTPA claim for breach of Assn, Fed. S.W.2d Sav. & Loan warranty); Kelly, termite Allstate Ins. Co. v. writ) (Tex.App.-Austin (reserving no (Tex.App.-Tyler 680 question assigna whether DTPA claims n.r.e.) (assignment writ ref'd extended to ac- ble). We reserved related but dis DTPA); brought tions under Rosell v. Farmers question tinct whether claims survive a County Ins. Mut. Chapman, Co. v. consumer’s death. Shell Oil writ) (Tex.App.-Texarkana all war- assigned purchase. a HCC parties’ bargain as matter basis of and JMB relating building, judg- ranties Accordingly, we reverse the law. against HCC. trial all DTPA claims ment, remand for a new waived latter claim alone. problems ap- extensive Twindows When in for violat- JMB sued PPG peared Background I. breaching DTPA and warranties ing the Center, forty-six-story Houston One juryA found for JMB on issued HCC. Houston, downtown skyscraper claims, replace the cost to assessing all in April originally 1978 and completed compa- building every with Twindow by Corporation Houston Center owned units at but nondefective window rable (HCC). than The exterior included more $4,745,037. The trial court trebled 12,000 Twindows, glass dual-pane win- mandatory provisions of award under installed dow unit manufactured and DTPA,3 trial and after bench were chosen for their PPG. Twindows $1,716,181 attorney awarded another color, insulating ability and which blended fees. buildings with the Houston Center other *5 complex. Assignment DTPA II. of Claims July of a number of the By large A and fogging Twindows showed discolora- award, as- attacks the DTPA PPG first request, tion. At PPG manufac- HCC’s cannot be as- serting that DTPA claims replacements one- tured and installed DTPA determine whether signed. To building’s pursuant fourth of windows look to the assignable, claims are we first The warranty. replace- to a contractual of the statute. words years. ment took more than two project later, years nego- entered Several HCC of a sale of The sale Twindows was to tiations to sell One Houston Center warranty subject thus goods, and its due During diligence, JMB. JMB Chapter 2 of Texas Busi provisions of problems, learned of the earlier window (the UCC).4 Code ness Commerce they to a and that limited extent contin- (the DTPA) the same Code Chapter 17 of any inquired ued. When JMB whether bring to breach of war allows consumers replied applied, warranties still chapter under that as well.5 ranty claims expired. all had Thus, may bring a to consumer choose warranty chapter, either bought building “as is” in De- claims under million as JMB did here. part cember 1989 as of both $375 Tubelite, sale); 21, 1973, May Leg., of see ch. movable at time also 3. Act of 63rd R.S. Inc., Sons, § of Indal, 1973 Tex. Gen. Laws & Div. Inc. Risica (amended 1977, 1995) (cur- (Tex.1991) (concluding fabri 17.50). § rent version at & general sold to contractor for cated materials Bus. Com.Code "goods”). project were use in construction § (provid 2.102 Tex. Bus. & Com.Code See goods); ing chapter applies to transactions in 17.50(a) (provid- 5. See Tex. Bus. & Com.Code 2.105(a) things (defining "goods” as id. "all "may an action ing maintain consumers are time identifi ... which movable of pro- following constitute where sale”); Ridge Crest cation to contract for damages ducing or dam- cause of economic Inc., Group, F.3d Inc. v. Newcourt Constr. (2) anguish: ... of an ages breach for mental (5th Cir.1996) (holding panels wall warranty”). implied express or "goods” were under Texas law purposes provisions The guidance.10 UCC to Accordingly, we next look are, course, and the DTPA not the purposes DTPA to determine otherwise, same; there would have been assignment whether is consistent no need for The primary both. difference goals. with its expressly relevant here is that the UCC goal DTPA’s primary protect was to provides assigna- claims are bring consumers ble,6 encouraging them to says nothing while about assignment. complaints: consumer
A signific silence statute’s can be subchapter liberally This shall be con- ant.7 Legislature When the includes a applied promote strued and to its under- right or remedy one code of a but lying purposes, protect which to con- another, omits that may precisely false, sumers misleading, and so, what the Legislature intended.8 If deceptive business practices, unconscion- must honor that difference.9 actions, able and breaches of course, Of legislatures always do not provide to efficient and economical mean say something by to Legis- silence. to such procedures protection.11 secure mistake, lative silence be due to over- consensus, sight, lack of While implied delegation the DTPA allows the attor agencies, courts or or an intent avoid ney general bring protection consumer unnecessary repetition. But we must at actions,12one of primary pur the statute’s begin analysis by least noting our that the poses is to encourage consumers them Legislature clearly knew how to indicate complaints: file their selves own *6 assignable, claims were but Legislature] for provided [The the re- did not do so in the DTPA. covery of attorney’s fees under the De-
B Act, ceptive Trade Practices as encour- silence, agement by to those of abused certain statutory’ some cases we have looked to the statute’s for purpose proscribed conduct avail to themselves 2.210(b) (“Unless Abatement, Survival, agreed 6. See id. otherwise 9. See Am.Jur.2d & Re- rights all buyer (1994) of either seller or can be § 62 (stating statutory vival a cause of assigned except assignment where the would generally action survive "does not unless its materially change duty party, the of the other specifically provided survival is for in the materially or increase the risk burden or im- statute”). statute itself or in another contract, posed by impair on him his mate- rially obtaining perform- his chance of return See, Hash, e.g., 10. Hines v. right damages ance. A to for breach silent, (Tex.1992) ("When the statute is right arising whole a contract or out of the purpose guidance.”); looked have to its for assignor’s performance due of obli- his entire Ass’n, Reciprocal v. Moore Lumbermen’s gation assigned despite agreement can be oth- (Tex. App.1924, S.W. Comm'n erwise.”). (looking judgm't adopted) object pur- See, Quick Austin, e.g., City pose regarding 7. of statute that was silent ("[T]he (Tex.1998) compensation statute is silent as benefits whether survived to program pending heirs). to whether effective approval. significant We find this silence be- cause, sections, Leg- Water Code other 17.44(a). See Tex. Bus. & Com.Code specifically islature act has stated that an approved not effective until Commission 17.46(a), §§ 12. Id. 17.47. it”). 8.Id. at 122-23. party excluded assigned, can of the Act.13 claims be
of the remedies here) (such as JMB could by the statute by step- DTPA claims nevertheless assert DTPA’s treble purpose of the [0]ne qualifying assign- into the shoes of ping provisions encourage pri- damages This the clear intent or. would frustrate litigation, re- vately initiated consumer Legislature. for ducing public need enforce- that as- appeals reasoned The court ment.14 with one signment would accord purposes discouraging DTPA’s other — legislative intent to encour- [T]he [was] proves fraud.19 But this too consumer re- age aggrieved to seek consumers much; trading in almost commercial unscrupulous and to sellers dress deter likely encourage its kind of claim would deceptive prac- engage who trade of other but raises host proliferation, tices.15 concerns.20 Making assignable DTPA claims would First, provi- treble-damage the DTPA’s just instead of opposite effect: to motivate affected sions were intended bringing consumers own swindled their consumers;21 they may provide a different claims, they by will brought DTPA traffic in might motivation for those who someone else. thing place It is such claims. one did Legislature intend damages the hands of power treble everybody. limited DTPA It attorney general; aggrieved parties or the complaints “consumers,”16 and excluded it in the hands quite place it is another to parties a number of from transactions litigation for commer- considering of those DTPA, including by businesses profit. cial assets,17 with more than million in $25 Second, the value of a chose appraising certain claims in which consumers represented easy, DTPA in due to the absence legal counsel.18 If action is never Thornes, Branch, 277; City 761 S.W.2d at First Bank-Farmers *7 25, Guex, (em 595; (Tex.1984) phas Corp., 677 30 see v. U.S. 919 S.W.2d also Amstadt Brass added). 644, (Tex.1996) ("The purpose is 649 of S.W.2d ..., part, ... to deter the the DTPA is in forbids.”). 682, DTPA Pennington Singleton, conduct the 14. 606 v. S.W.2d 1980) (Tex. added). (emphasis 690 Hebdon, Groce, Zuniga Locke 878 20. v. & Littleton, 1994, (Tex.App.-San 15. v. 554 S.W.2d 669 S.W.2d 316 Antonio Woods (Tex. 1977) added) ref’d) ("We thought (emphasis (quoting McDan relish the of writ do not Dulworth, (Tex.Civ. rights entrepreneurs purchasing legal iel v. 550 S.W.2d of 1977, writ)). App.-Dallas attorneys ordinary no an clients their as pursuit profit.”); of business transaction in Baker, 17.45(4) (defining § & also 11 S.W.3d 16. Tex. Bus. see Mallios Com.Code J., (Tex.2000) (Hecht, (noting by concurring) acquires "who "consumer” one seeks or lease, services”); prohibit any goods purchase or most American courts one reason Perry Corp., legal malpractice Equip. assignments Co. v. of voluntary Arthur Andersen & 1997) (Tex. (holding marketing of claims claims is "commercial beneficiary resulting of litigation, "consumer” includes intended in in- and increased services). goods or malpractice insurance and creased costs (footnotes services”) legal costs in increased omitted). 17.45(4). 17. Tex. Bus. & Com.Code 17.49(f). at Pennington, 690. 18. 21. Id. objective it; measures or Con- in ceivmg anythmg markets.22 for million $10 sumers likely negoti- be at a damages every severe incentive over left after ating disadvantage with is replaced pure the kinds entre- Twindow will serve as a preneurs Every willing buy windfall for JMB. pur- DTPA claims conceivable cheap pose of the statute and settle them dear. result of is defeated consum- may by ers lose making DTPA their claims accident. assignable likely claims to be that some consumers will be deceived attempt JMB makes no to defend com- twice. claims, marketing mercial of DTPA argu- only in ing assignment for cases like this—
Third, many may cases consumers bought underlying building which it even they know have DTPA when claims bear repairing will the costs of it. But they sign a general assignment included allowing DTPA those pur- claims who boilerplate.23 contractual If assign- such chase defective from a goods consumer valid, ments are to pro- claims meant shifts focus of DTPA decep- from tect quite literally gone consumers will be tive practices products.26 to defective If before it. know this case for DTPA assigned claims to subse- example, both JMB and HCC were JMB, quent buyers damages like treble wealthy sophisticated yet corporations, go wealthy entrepreneurs will often both denied knowledge potential of a than the rather consumers who were actu- DTPA claim against PPG at time of ally defrauded. building the 1989 sale.24 was no There assignment Moreover, generally, of claims only JMB’s claim here specifically mention assignment. DTPA claims on the based written instead, against PPG; solely JMB relies on no DTPA acquired merely by claims be- a general assignment building’s war- coming subsequent owner One Hous- If Center,27 ranties.25 this is enough, then HCC ton asserts none its own assigned away its DTPA rights against As right. JMB’s basis for DTPA knowing PPG without assignment, and without re- is the written it is hard Amstadt, Gandy, ("We 22. State Farm & Cas. Fire Co. v. 26. at 650 find no (Tex. 1996). authority shifting focus of a claim from whether defendant committed Kelley Creek Oil 158 Tex. Cf. Bluff deceptive product act to whether that was (1958) (noting gen- injury.”). sold caused an assignment, only assignee eral rule that after claim). may bring ("[W]e persuaded Id. are not Legislature that the intended the DTPA to Indeed, discovery *8 JMB’s rule defense to upstream suppliers reach and manufacturers required proof limitations that it nor neither misrepresentations when their are not com- HCC knew or should have of known to the [T]he municated consumer.... defen- potential against time claim PPG at the the deceptive practice dant’s trade act or is not being negoti- sale of One Center Houston actionable under the unless it DTPA was com- ated. plaintiff's mitted in the connection with trans- services.”) goods in (emphasis action in assigning tangi- 25. In addition to to JMB all contracts, original). While Amstadt involved property, permits, ble DTPA service trade leases, claims, names, laundry-list unconscionability and assigned our and HCC to all holding “intangible personal property every distinguishing leaves no for basis of kind breach-of-warranty According- and claims. "[t]he character” and benefit of all as- DTPA warranties, signable guaranties, ly, appears Gupta representa- Amstadt to overrule v. Ritter Homes, Inc., given implied tions or we covenants to or made favor in which held an of the [HCC]." asserted under DTPA could be
87 claims, the recognized we have its from ment of to how claims are different see gen- arbitrag- collapse of the common-law rule might by obtained those that be But assignments.29 such erally prohibited eurs. of does not assignability most claims the sum, In of allowing assignment DTPA assignable;30 exceptions all are mean con- aggrieved claims would ensure that poli- equity public to required be due them, do not file that some con- sumers cy.31 nothing compensation, sumers receive a time. others are deceived second have addressing assignability of- Courts All very purposes would defeat claims that are distinguished between ten which the DTPA was enacted. and remedial and claims property-based punitive, holding
that are
personal
C
assignable and the
the former are
silence,
statutory
of
claims here
some cases
latter
not.32
(unlike
claims under
we
also
to related common-law
looked
UCC)
assign-
clearly
category.
fall in the
principles.28
respect
latter
With
subsequent
equity,
a
roots
brought
purchaser.
646
choses in action "has its
not
168,
Gandy,
at
S.W.2d
169
law.”
Unlike most other
Texas
adopted
express
pass
warranties
context —
with the goods.36
any
the UCC without
of
choosing
its three
options concerning
may
who
sue on war-
But in Amstadt v.
Brass Corp.,
U.S.
we
33
ranties;
instead,
Legislature
purchasers
held downstream
of
the
ex-
non-mobile
could not
bring
homes
DTPA claims
pressly
delegated
choice to the
against
suppli-
remote
manufacturers
mandate,
courts.34 Pursuant
to that
plumbing system,
ers of a defective
be-
Texas,
Shivers,
Nobility Homes
Inc. v.
of
deceptive
alleged
cause the
acts
were not
purchaser
held a downstream
of a mo-
committed
or communicated to
implied
bile
bring
home could
them in connection
their own pur-
with
directly against
claims
a remote manufac-
Recognizing
similarity
chases.37
the
turer,
though
privity
even
there was no
of
case,
asserted
DTPA
no
contract
them.35 While it appears
between
right,
in its own
as it had no connection
we have never
addressed
same issue
sale,
with
original
PPG’s
Twindows
warranties,
regarding express
several low-
any
never
saw
PPG advertisements
or
er
applied
courts have
the same
bought
rule
warranties
the building.38
before
an, B.V.,
194,
alty generally
(Tex.App.
does not survive the death
S.W.3d
198
110
2003,
denied);
party
penal
personal
either
if it is
pet.
or
rather
Houston [1st Dist.]
Ed
nature.”).
Schuh,
829,
than contractual in
(Tex.App.
wards v.
5 S.W.3d
833
1999,
Lab.,
pet.);
no
Austin
Indust-Ri-Chem
Inc. v.
602
provide
Par-Pak
S.W.2d
287-88
The three alternatives
that a sell
1980, writ).
(Tex.Civ.App.-Dallas
express
implied
er’s
or
But
warranties extend
no
see
Plastics,
(A)
Enters.,
family
guest
Gray
Tex.
member or
Processed
Inc. v.
household
Inc.,
(B)
buyer,
any person
(Tex.Civ.App.-Tyler
who
415
reason
use, consume,
1979, writ).
Nelson,
ably
expected to
See
be
or be af
also D. Brit
Com
ment,
goods
by
personal
Privity
fected
Required
and suffers a
Is
Still
in a Breach of
(C)
injury,
any person
may reasonably
Express Warranty
or
who
Cause Action
Personal
use, consume,
expected
Injury Damages?,
or be affected
Baylor
L.Rev.
571-
goods
any type
(1991)
injury.
and who suffers
(arguing
privity
for retention of
(1966);
limits).
§UCC 2-318
see
v. Tex.
Garcia
In
struments, Inc.,
(Tex.
464-65
1980)
alternatives).
(noting three
Amstadt,
("[W]e
S.W.2d at
persuaded
Legislature
intended
(“This chapter
34. &Bus. Com.Code
2.318
upstream
the DTPA to reach
manufacturers
anyone
provide
does not
whether
other than a
misrepresentations
suppliers
when their
buyer may
advantage
express
take
of an
or
are not communicated to the consumer....
implied warranty
quality
buyer
made to the
deceptive
prac-
act
[T]he defendant's
trade
or
buyer
anyone
or
whether
or
entitled to
tice is not actionable under
DTPA
unless it
advantage
take
of a
made to the
plain-
was committed in
with the
connection
buyer may
party
sue a
services.”) (em-
third
other than the
goods
tiff’s transaction in
or
quality
seller
immediate
for deficiencies
phasis
original).
While Amstadt involved
goods.
These
are left
matters
laundry-list
unconscionability
Garcia,
determination.”);
claims,
their
courts for
see
holding
our
leaves no basis for distin-
uniqueness
(noting
at 464
of this
guishing breach-of-warranty DTPA claims.
provision).
Accordingly,
appears
Amstadt
to overrule
Homes, Inc.,
Gupta v. Ritter
in which we held
(Tex. 1977).
implied warranty
pre
an
asserted
the DTPA
35. 557 S.W.2d
This
under
brought by subsequent purchaser.
valid
could be
sumes no
disclaimer
modification.
&
See Tex. Bus. Com.Code
2.316.
See,
Inman,
Corp.
property manager
38. A
removed
e.g., DaimlerChrysler
former
all
original
proper-
(Tex.App.-Corpus
materials when it left
Christi
Tire-Tech,
filed);
pet.
ty
years
U.S.
Inc. v.
several
before JMB became the own-
Boer
*10
DTPA
warranty long before the
was
Thus,
clear dis-
have established a
we
anguish
warranty
DTPA
tinction between
The DTPA adds mental
passed.
buyer can sue a
claims: a downstream
damages
damages that
and punitive
41—
implied
for
of an
remote seller
breach
personal.
hardly
could
be more
under
the
warranty, but cannot
sue
mental
a claim for
JMB never asserted
if
are as-
Clearly,
DTPA.
claims
DTPA
do and
anguish,
many
claimants
but
they
“property-
signable because
are
DTPA
their
assign
will. If consumers can
based,”
something
DTPA claims must be
testify at
claims, they may still have to
else;
aspect in
“personal”
there must be a
duration,
nature,
and sever-
trial
the
about
not
being “duped”
pass
that does
subse-
ity
anguish,42
mental
but someone
their
way warranty
quent buyers the
does.
money.
keep
else
the
will
generally
punitive
DTPA claims
are also
respect,
In
it
rather than remedial.
this
the DTPA’s treble
argues
JMB
DTPA
important
to remember
punitive
rather than
damages are remedial
many
of ac-
overlaps
common-law causes
they
individual rather
because
address
tion,
contract,
including
warran-
breach
dissenting
injuries. Our
col
public
than
fraud,
ty,
negli-
misrepresentation,
damages
find DTPA
leagues would also
Frequently,
pleaded
the DTPA is
gence.39
remedial,
twenty
but overlook
fact
only remedy,
not
it
because
but
In
exactly
opposite.
years ago we held
remedy.
it is
most
because
favorable
State,
Pace
held DTPA treble-
v.
we
case,
example,
pleaded
In
for
this
JMB
award could
be recovered
damage
factual allegations
one set of
that was then
(a
Recovery
from
Fund
the Real Estate
incorporated wholesale into claims for
aggrieved
up
“reimbursing
fund
for
set
contract, warranty,
breach of
and the
damages
“treble
under
persons”) because
DTPA. The contract
punitive damages.”43
the DTPA are
remedy,
offered a
but
of-
fered
damages.
treble
in which
points to cases
JMB also
statutory
been
penalties
federal
have
held
cases,
most important
such
role of
remedy
assignable. Statutes
create
adds,
the DTPA is the remedies it
not the
re
previously
none
existed
be
where
duplicates.40
damages
ones it
Economic
medial;
remedy
there
remedial,
example,
for
and attorney’s
certainly
fees are
out
being
at common law for
driven
but
were recoverable in contract and
17.50(b)(1).
§
er.
did ask
41.
id.
JMB
PPG whether
Twindows
See
warranty;
replied
were
under
in the
still
Parkway
Woodruff,
Co.
See
negative.
logic, if
As a
of law and
matter
price
paid
for Houston Center was based
existed,
on
the belief that no warranties
(Tex. 1983) (emphasis
would be benefited rather than harmed
original);
see also
Tex
& Com.Code
Bus.
proved
facts
otherwise.
("[N]o recovery
permitted
17.43
shall
subchapter
this
and another law
under both
Amstadt,
(noting
at 649
S.W.2d
damages
penalties for the same
of both
“broad, overlapping prohibitions”
in the
argues the
practice.”).
act
JMB also
treble
DTPA).
personal”
damages here are "less
because
Woods,
mandatory.
they See
(“The
damages
17.43
40. See & CoM.ConE
at 669. But as treble
Bus.
provisions
subchapter
years,
mandatory
twenty-five
are not exclu-
see
not been
Valencia,
Homes,
subchap-
Inc.
provided
sive.
remedies
in this
Jim Walter
(Tex.1985),
why
any
procedures or
it is unclear
ter
in addition to
other
law.”).
assignable
make
now.
provided
for in
other
should
DTPAclaims
remedies
*11
by monopolist.44
business
But
party.
Legislature
that can-
is not a
intended
be said
of JMB’s
claims here. DTPA lawsuits to be “efficient and eco-
nomical”;51 assessing personal
puni-
and
course,
Of
repre-
manufacturers make
tive damages in these
circumstances
directly
sentations or warranties
to con-
likely
goal
to
that
difficult.
make
sumers,
(de-
may
directly
latter
sue
spite
privity)
absence of
for breach of
But
important,
more
there
ais
serious
express
or
warranty45
violation of the
skewing
risk
pro-
here of
the adversarial
DTPA.46
alleged
But JMB neither
nor
goods
cess. When A
to B
sells
sells
who
proved that was the case here.
DTPA
As
C,
them to
goods prove
if the
defective
“personal”
“punitive”
claims are too
to
there
dealings
were no
between A
Cand
pass
goods
with
one
from
owner to the
(as is often the case in the
stream
next,
why
it is
pass
hard to see
should
commerce),
naturally look B for a
C will
to
goods by assignment.47
with
same
remedy.
breach-of-contract
But if DTPA
B
assignable,
claims are
both
C
D
strong
to direct
else-
incentive
the suit
Finally, we must consider whether as-
where for
If B
relief.
settles with
for a
C
signment
may
of DTPA claims
increase or
small
assigns
amount and
DTPA
any
litigation.
distort
have never upheld
“We
A,
against
claims it may have
C
has a
now
assignments
face of
those con-
punitive
case with potential
damages, and
cerns.”
prohibited assignments
We have
B has
potential liability.
avoided
Thus the
may
process,
that
skew the trial
confuse or
litigation will
parties
continue with the
mislead the jury, promote collusion among
different
precisely the results
roles—
adversaries,
nominal
misdirect damages
or
prohibit
have led us to
assignments
more culpable
culpable
from
to less
defen-
other contexts.
dants.49
First,
above,
this case
made no complaints
JMB
noted
claims are
HCC,
though
unlike
even
the window
most
claims in pro-
contract-related
problems
viding
JMB
anguish
very
for mental
discovered were
simi-
punitive
lar
damages.
HCC
experience
Jurors are bound to
ones
encountered a few
years
Further,
assessing
some confusion in
before.52
to
dis-
mental an-
avoid
consumer,
guish
punitive
covery
of a
damages
problems,
joined
rule
HCC
on
based
“the situation and
downplaying
problems
sensibilities of
the earlier
parties,”50
the affected
when
consumer must have
seemed disastrous to HCC
See,
Elbaor,
e.g.,
Liquor,
Copper
44.
Inc.
Adolph
49.
at 250.
(5th
Coors
506 F.2d
949-50
Cir.
1975).
Moriel,
Transp.
Ins. Co.
(Tex. 1994).
Pipe
Foundry
See
City
U.S.
&
Co. v.
Waco,
130 Tex.
17.44(a).
51. Tex. Bus. & Com.Code
(1937).
Amstadt,
46. See
at 652.
Corp.,
52. See Int’l
Proteins
S.W.2d at
(noting
generally "a
cause of action
Trevino,
(holding
the time. We cast no
since).
here;
assigna-
litigants
only
ty years
we
note that
bility
may encourage
of DTPA
some
claims
colleagues suggest
in a
dissenting
Our
buyers
cooperate
not collude—with
to
—if
today,
our
hypothetical that under
decision
may have
the one that
a seller who
been
car’s
before
tampers
if A
with a
odometer
actually misled them.
C,
it
B
sells
C has
selling it to who
course,
A.
that
remedy against
DTPA
Of
E
if
under Amstadt
there
already
is
the case
primarily
DTPA is
con
Moreover,
can also
assignment.
is no
C
people
the deceivers
cerned with
—both
for
(perhaps
repre-
B
the DTPA
sue
under
gives
the
This
the entire
deceived.53
mileage
the car had lower
than
senting
a
cannot
personal aspect
act
be
had),55
indemnity
really
bring
B can
an
assignment
a
squared with rule that allows
DTPA
claim under the
and contribution
merely
if
of DTPA claims as
were
(as
If
hypo-
A.56
assume
their
we
piece
property.
another
of
does)
tampering,
that A did the
thetical
dissenting colleagues assert
Our
likely
pays
to be the same—A
effect
question
over the
of DTPA
skip
should
damages,
DTPA
and C receives them.
(which
assignability
they proceed to ad-
(and given the
tampering
But B did the
if
detail) to
dress in
address the “threshold”
penalties,57
likely
federal
no one
severe
DTPA
question whether HOC had a valid
it),
assignment of DTPA
admit
assign.
reviewing
claim to
this
process
litigation
skews the normal
judgment
assignee,
appel-
in favor
an
an
of
B
by encouraging
to combine with
C
late
could
ask
court
first
whether
as-
against A.
a
signment,
proper, concerned
valid
us,
assignment is before
(as
Because
an
do),
DTPA claim
our
colleagues
whether DTPA claims
we do not decide
claim, if proper,
whether the DTPA
could
heirs,
(as
a related but
we).
survive to consumer’s
Clearly,
do
assigned
be
more
For
inquiry.58
sometimes distinct
important question to the
of
jurisprudence
reason,
for
same
we also reserve
another
is whether DTPA claims can
state54
be
(a
day
assignment of claims
transferred
matter of conflict
brought
within
could not be
appeals),
courts
not
created
pre-1983
whether
DTPA,
going-out-
without the
such
false
DTPA claims survived the 1983 amend-
(a
during
price-gouging
ments
matter
sales59 or
as to which there has
of-business
Gandy,
(noting
53. See
58.
III. The Five-Year
A
Although JMB cannot
treble
recover
requires
UCC generally
suit on
damages
assignment
the DTPA (by
under
of warranty
breach
claims within four
otherwise),
or
jury’s
to
answers
two years of delivery, regardless of when the
warranty questions would support JMB’s buyer discovers
in the goods.65
defects
recovery of
damages
attorney’s
actual
period
This absolute limitation
was intend-
fees. JMB can assert
warranty
breach of
provide
ed to
a uniform date of accrual
because,
against
claims
PPG
unlike DTPA beyond which
not worry
sellers need
about
claims, warranty
pass
claims
the un-
with
warranty claims,
stale
or retain
records
derlying goods62
assignable
and are
to a
against
provi-
defend
them.66 Under that
subsequent purchaser.63
sion,
limitations on PPG’s
would
One
substantially
Houston Center was
1,1982.
April
run on
completed April
Upon comple-
1978.
But accrual is extended for warran
tion,
five-year
PPG
a
limited war-
issued
explicitly guarantee
per
ties that
future
ranty of its materials and work:
formance:
Industries,
PPG
Inc. warrants all mate-
rial
and work
is in
A
occurs
performed
furnished
breach
when ten-
plans
made,
specifications
delivery
except
accordance with
der of
is
17.46(b)(27).
§
requested
jury finding
damage
Id.
a
or
issue re-
alone, any
to these
lated
Twindows
claim for
See,
Krause,
e.g.,
Bayne,
Levine v.
Snell &
recovery
theory has
on such a
been waived.
Ltd.,
(Tex.App.-San
Antonio
Ass'n,
See Brown v. Bank Galveston Nat'l
1999),
grounds,
rev’d on other
B (cid:127) injury;73 specific cause 27,1982, By July had discov HOC (cid:127) it;74 Twindows, for problems party responsible ered serious with the 2.725(b) County (emphasis & 72. Peat Marwick v. Harrison 67. Tex. Bus. KPMG Com.Code added). (Tex. Corp., Fin. 749 Hous. Inc., 1999); Drug, Sterling 787 Moreno v. Safeway, (indicating at 68. See 548 (Tex.1990). S.W.2d 351 express warranty per- would extend to future if construed to mean roof would formance Marwick, S.W.2d at 749. 73. Peat KPMG twenty years). last Vanasek, Haussecker, S.W.3d 69. See v. Childs Underkofler (Tex.2001). (Tex.1998); Ingersoll-Rand Russell n. 3 at 71.Id.
(cid:127) it;75 the full extent or when an knows of enough owner leaks to problem indicate the is-not isolated.78 (cid:127) avoiding the chances of it.76 It true that not spot law, even could As a matter of problems every isolated, 3,000 defect Twindow this time. But here were not defective at trial JMB a design asserted defect af- windows is not a few. It undisputed fecting every Twindow from inception, experienced that PPG had never a failure not; 3,000 yet scale, whether noticeable when on this either before or since. While failed, Twindows as a matter of law discovery normally HCC the end of the rule should known of this claim. fact question jury,79 for the there can be opinion difference of under the circum reason, For reject the same we must Indeed, presented stances here. argument unit each window was a extraordinary number of failures is separate product separately warrant- enough to claimant put a on notice that ed, and thus separately should be treated law, “something is amiss” as matter of discovery If purposes. rule that were then discovery rule has no boundaries rule, limitations never begin would juror other than those each set. cares to until run a defect in every was discovered *15 single window. Texas limitations law is C that patient. not of appeals disregarded The court This is not say to either HCC JMB what surely HCC knew about defects required every to file suit time it by pointing Twindows to PPG’s efforts noticed a scratch. The evidence was un- to repair them. But once HCC discovered disputed that a few defective window units defects, widespread PPG’s efforts to com project are inevitable a construction of ply warranty obligations, with its without size; a few isolated defects would not more, discovery did not “re-start” the rule. discovery establish matter of law. Thus, the federal Circuit Eighth begins by held 23 asserting JMB a project defective windows on involving discovery admitted the rule limita tolled 2,004 did not as a warranty establish matter of tions on law all claims until 1989 buyer should have known the when it repair any windows refused to or replace defective.77 Similarly, the court more Twindows. The trial court instruct has appeals repeatedly held ed jury warranty context that PPG’s breach of underground discovery leaks could not have been discovered until “PPG rule does not end when the first leak refused perform obligations to its under discovered; (i.e., nor does it continue until warranty” duty repair). all its instead, leaks object are known C it ends PPG did not to this of the Childs, 42; Co., Sterling Plumbing 974 S.W.2d at see also owich v. Velsicol 712 S.W.2d 529, Corp. Winograd, Chem. v. 956 S.W.2d (Tex.App.-Houston Dist.] 189-90 [14th (Tex. 1997). writ); Bayou also Bend see Towers Council Co-Owners Manhattan Constr. Murphy Campbell, 964 S.W.2d Co., (Tex.App.-Hous 742-43 denied) (holding ton writ [14th Dist.] respect leaking same with windows and Murray Shatterproof R.W. Co. v. Glass roof). (8th Cir.1985). Corp., 758 F.2d 273-74 78. See Cornerstones Mun. Util. Dist. v. Mon 79.Childs, at 44. (Tex.App. santo denied); Houston writ [14th Dist.] Ten repair efforts do a seller’s ago, at we held it did assert in motions charge, though period for breach the limitations case, extend at the conclusion the end of JMB’s Texas courts warranty claims.81 evidence, and after the verdict all the since,82as do ever that rule applying been discovery rule JMB’s barred states.83 of most other the courts claims as a matter of law. if the rule would arise object problems failure to Serious disagree that PPG’s We if the stat- example, For were otherwise. jury an admission. to the instruction was every time a clear, tolled ute of limitations was judicial must delib- A admission warranty peri- statement;80 during a repairs car erate, par- needed unequivocal (and not), what car does object at trial constitute od ty’s failure to and deal- perpetual, waiver, judicial period would become is no admission. but any. to make We loath a waiver. ers would be implies further this was re- attempt encourage sellers that a claim or de- should party asserting But a every time limitations pairs; tolling does as a matter of law fense is established discourage doing them from so might object to the form in which the do not have to all. jury; a mat- question is submitted complaint objects sub-
ter-of-law little in give consumers And it would mission, proper form or not. false assurances Faulty repairs or return. already action- independently Next, repair if PPG did of JMB asserts even law—either for breach matter, jury able under current not admit the was entitled to re- warranty applicable implied repair to find that PPG’s efforts extended services,84 laundry-list or as DTPA years pair limitations. But almost one hundred *16 Underwriters, Auld, law); v. Triangle Inc. Corp. 34 Florida Healthcare v. Horizon/CMS 737, 887, Inc., (2d Cir. Honeywell, S.W.3d 905 604 F.2d 743 law); Binkley 1979) Co. (applying York New Co., Fairbanks, v. Morse & 101 Tex. Smith 1183, F.Supp. Teledyne Corp., 333 v. Mid-Am. 24, 908, (1907). 908-09 102 S.W. (8th (E.D.Mo.1971), aff'd, 276 460 F.2d 1187 Co., Cir.1972); Page Eng'g 285 Bobo v. Chems., Equistar 82. See L.P. v. Dresser-Rand 664, (W.D.Pa.1967), aff'd, 395 F.Supp. 667 Co., 584, (Tex.App.-Houston 123 S.W.3d 590 Homes, 1968); (3d Cir. Jim Walter 2003, F.2d 991 filed); pet. Corp. v. Pako [14th Dist.] 645, Kendrick, (Ala. Thomas, 215, So.2d 651 Inc. v. 810 (Tex.App.-Tyler 855 S.W.2d 219 Int'l, 1993, writ); 2001); Wansbrough, Simplot Co. v. Chemetics no Lambert v. 783 J.R. 5, 1989, 1039, 532, (Tex.App.-Dallas Inc., de 6 writ 1042 887 P.2d 126 Idaho Am., Inc., nied); 936, Patton, v. N. Muss (1994); Mercedes-Benz 790 S.W.2d 940 Grus v. 155, (Tex.App.-Dallas 159-60 Chrysler Corp., 60 (Mo.Ct.App.1990); Tomes 1987, n.r.e.); writ Richker v. United refused 71, 707, 377 N.E.2d Ill.App.3d 18 Ill.Dec. 215, (Tex.Civ. Corp., Gas 218-19 224, (1978); Supply Steel 227 Zahler v. Star 1968, n.r.e.); Bishop- App.-Houston writ ref'd 386, 269, Co., 270 Mich.App. 213 N.W.2d 50 104, Jennings, 245 S.W. Babcock-Becker Co. v. Labs., (1973); Corp., 163 Inc. v. USM Biocraft 1922, writ); (Tex.Civ.App.-Austin 104-05 (1978); N.J.Super. A.2d 522 395 Sears, Co.,& see also Walker v. Roebuck Homes, City Div. Popperiheimer v. Motor Bluff (5th Cir.1988) (surveying F.2d 364-65 111- City Buick of Bluff point). But see Trunkline Texas law on this Gaffney v. Unit Crane (Tenn.Ct.App.1983); Co., 722 S.W.2d LNG Co. v. Trane Thermal 237, 239-40 Corp., A.2d & Shovel (Tex.App.-Houston [14th Dist.] 1955). (Del.Super.Ct. n.r.e.) (noting in third alternative writ refused "may” holding have been ex that limitations Barnes, 84.Melody Mfg. Home Co. obligation repair defective tended (Tex.1987) (creating im- goods). regarding repair for warranty services plied Inc., Indus., See, e.g., County Dade v. Rohr DTPA). suing under the consumers Cir.1987) (11th (applying F.2d Accordingly, keep manufacturing sending replace- violations.85 consumers who and repair discover defects and ask a seller to problem. ments with the same them do not to toll limitations on the need If a product defective is sold claim, warranty initial have a new repairs defectively, buyer seller it loses period relating repairs. limitations nothing by suing on the latter defect in- claims, JMB chose not to assert such but important, stead of the former. More is not a good reason to extend the repairs properly, buyer the seller period limitations on warranties all oth- working product has a instead of a lawsuit. beyond er cases the normal term. Accordingly, long-standing reaffirm our asserts) (as did not hold We JMB repair rule that a seller’s efforts are not Vaughn Building Corp.86 Austin Co. v. enough pe- alone to extend the limitations limitations was tolled until a seller warranty riod for breach of claims. instead, stops making repairs; we held warranty repair for services was D repairs
breached until further
ref
A warranty
repairs
used.87
to make
is a
appeals
court of
pointed
also
services,
goods,
not of
misrepresentations
to assurances and
thus falls
long ago
outside
UCC.88 We
allegedly
repairs.90 Even if
made about its
held that
upon
limitations accrues
breach
limitations,
false assurances can toll
nei
repair warranty only
of a
if that was the
nor
appeals
point
ther the court of
suit; if
basis of the
instead the basis was a
establishing
a shred of evidence
themselves,
goods
as to the
limi
here.
what occurred
upon delivery.89
tations accrues
brief,
In its
JMB assures us PPG affir-
case,
In this
JMB asserted no claim for
matively represented
completely
“it had
repair warranty.
breach of a
The basis of
any problem,”
problem
remedied
“the
ex-
complaint
JMB’s
was not
PPG re-
units,”
only in
could
isted
certain
“PPG
Twindows;
supply
fused to
according
more
completely remedy
prob-
would
everything pleaded
proved,
more
lem,”
fixed,”
problem
“the
and “there
thing
Twindows was the last
JMB wanted.
*17
was no reason for concern.” But a careful
complaints
JMB’s
arose from defects in
every
review of
record reference JMB
underlying goods,
and thus accrued
failed,
they
nothing
when
not when
to
cites
PPG refused
discloses
kind.
Muss,
17.46(b)(13), (22)
goods);
85. Tex. Bus. & Com.Code
rather
than
see also
“false,
(defining
misleading,
deceptive
or
acts
(holding warranty
repair
S.W.2d at 158
to
practices”
"knowingly making
or
to include
guarantee
did not
it to be free of
automobile
misleading
false or
statements of fact con-
defects,
anticipated
but instead
defects would
cerning
parts, replacement,
the need for
or
they
promised
repair
occur
to
them when
service,”
repair
"representing
work
that
did).
proposed
The drafters of the UCC have
on,
performed
parts
or services have been
or
goods
defining promise
repair
replace
or
to
in,
replaced
goods when the work or services
promise"
that
as a "remedial
to make clear
it
performed
parts replaced”).
were not
or the
2-102(35)
not a
UCC
"is
at all.”
(Nov.
Draft), preliminary
cmt.
86.
Instead, testimony satisfies are directed to assurances,91 approximately ended Activities date. asked for such that HCC finally received a them,92 get it would March 1985. We get to assumed tried Unrath, quality from Bill them,93 gotten it had call and was satisfied return Pittsburgh also evidence PPG engineer them.94 There was control with fixed,95 for the thought problems were He cited causes HCC on March 20th. fixed,96 could rea- they were fol- believed deterioration coating lites’ they fixed.97 sonably have believed were say that there .... Bill on to lows went ever said nobody agents swore PPG’s But if will predict more lites way is no in the placed The statement so. that PPG He also said become affected. they agents was that mouths of PPG’s their to stand behind continue would by they problem could solve” the “thought any have more defec- and we product, This is a the defective windows. replacing call him. please lites to tive not an affirmative opinion, statement of causes cited my opinion, the above representation. However, I logical. somewhat sound Further, it to believe that the tolerances undisputed it that after all find hard made, coating regard temperature unequivo- PPG replacements were Rather, may suspect I cally quashed any hopes false HCC are so critical. memo, coating application In an internal entertained. formulation of the Property Manager of Hous- glass the Assistant was substandard. ac- management company attempting provide
ton Center’s a scien- simply be knowledged gave guarantees that PPG apology when an explanation tific repairs: about the or assurances more workmanship may ap- be sloppy case, they pick- In either propriate. of defective lites replacement ing up the tab. completed. completion PPG is now This Q: Q: you they you told you 94. Were satisfied did ask for assurances 91. And by replac- problem correct the they would be able to fix the could from PPG that replacement Twin- using ing unit with problem replacement Twindows 435s? the defective 485? dow Absolutely. A: We wanted to make sure Absolutely. A: they pursued, that whatever course that it problem going a solution to the to be —all Q: understanding your that as was it And problems would fixed. every single defective unit of March replaced by had been in One Houston Center Q: Now, meeting at the time this oc- PPG? curred, 3rd, 1983, trying you on June Yes, was. A: get scope of answers from PPG about the big problem problem; how was? Q: Greer, at the that Mr. McMul- Mr. time *18 Yes, letter, We wanted to make A: we were. Hous- behalf of One [o]n wrote this len PPG, discussions that all of the defec- you sure in our that PPG did believe ton Center completely replaced prob- units were and completely tive and fixed the corrected had problem we were fin- solved the whenever Center. lems at One Houston ished. Yes, we did. A: Q: you when PPG asked Did assume Q: fair you it have been Do think would building pulled and the units from have building owner to have for the and reasonable testing laboratory to find out to their for sent you your work in 1985 when finished believed was, you problem did assume that what the with problem been corrected that the had you problem going to tell what the PPG was replacement of Twindow units? those was? Yes, A: sir. A: We sure did. Instead, regarding replacement following
Future action lite relies on the state- may necessary appearing as more defects are ment in a advertisement in PPG Guide, publi- discovered. PPG will be notified should Architectural a trade Sweets’ this occur. by cation often relied on architects: If representatives Houston Center’s be- twenty Twindow units are warranted for just lieved opposite of what the record (20) ... years from the date of manufac- told,98 shows as a matter of law ture failure of hermetic seal they should have known better. faulty manufacturing due to of the unit by PPG. Pursuant to this limited war-
It is true there was evidence PPG knew unit, ranty, only supply PPG will a new telling anyone far more than it was about labor, special and no installation or the Twindows’ defects. But mere silence consequential damages are included. duty is not fraudulent unless there is a This if limited effective disclose;99 duty no such existed between installed, properly the unit is is not contracting these corporations.100 sloped effective the unit is installed in sum, repair PPG’s efforts glazing. warranty. PPG makes no other explanations been futile and its much less forthcoming, than but JMB points to no argues provision ap- does not by evidence either owner was misled (1) ply to it One Houston Center because PPG’s false assurances rather than its own was not included in the contract docu- hopes. hopes false False not enough (2) ments, and it had been shortened be- Accordingly, extend limitations. JMB’s signed. fore contract here was The five-year warranty claims were barred as a trial request court refused PPG’s to sub- matter of law. jury, mit question finding to the as a matter of law statement Sweets Twenty-Year Warranty The
IV. warranty applicable constituted a to Hous- jury also found PPG breached a ton Center. twenty-year warranty, limited which the The contract documents—the docu- bid trial court found was established as a mat- ments, contract, general con- argues ter of law. PPG the trial court num- signed by tract PPG —all contained a by refusing erred to submit this warranties, provisions regarding ber of but jury, by failing to find was approaching twenty years: none barred limitations.
(cid:127) Specifica- the General Documents and A (dated tions issued for bids March 1976) (1) twenty-year warranty There was no re- required general guarantee garding years of the One Houston contract the curtain Center wall five documents, though they accepted, even included from the date the work was (2) pages detailing every aspect specific warranty regarding glass hundreds of work; building project. years of this multi-million-dollar for five from completion 98.Q: fact, Morris, you, Now did believe when Mr. 99. See Ins. Co. N. Am. v. (Tex. 1998). Unrath finished his work and when PPG told *19 work, you they you ... had finished their did problem had believe that been corrected? 100. See Crim Truck & Tractor Co. v. Navistar Transp. Corp., Absolutely. Int’l 593-95 A: I mean that’s what was re- (Tex. 1992). ported by to us PPG. cu- as overlapping warranties (cid:127) construing Houston contract between general conflicting.102 than rather mulative Corpora- and Bellows Construction Center (dated 26,1976) incorporated the April tion these facts can we hold on But neither them and declared contract bid documents law, a twen- that there was matter of as a understanding of the complete to be “the any extra-con- warranty. Before ty-year here- to the matters with reference parties warranty, a becomes tractual statement and there are in and therein set forth “part of the basis must become ex- commitments not understandings nor Thus, example, a state- for bargain.”103 therein”; herein or pressly stated bargain if a of the basis ment cannot (cid:127) contract know about glass curtain wall and does not parties one of the Di- Products Cupples Bellows and between it.104 1976) (dated for April provided
vision to a UCC appeals pointed The court of (1) in the General Contract the warranties that for extraneous explaining comment (2) one-year warranty for defects a warranty par- a “no to become statements workmanship; materials or need be on such statements ticular rebanee (cid:127) Cupples between the subcontract “particular” rebanee While shown.”105 (dated signed by August 1976 and held sever- may necessary, we have not be (1) 28,1976) for a provided PPG December it is. something rather bke al times that period for re- guarantee of all work requirement basis-of-the-bargain The quired general in the contract bid express the common-law “loosely reflects (2) five-year warranty re- specifications, rebanee,”106 and warranty requirement (3) defects, one-year garding all to, “[rjebance but relevant is also warranty breakage from thermal condi- of, claims of proof plaintiffs’ an element tions. (to a certain express breach of extent).”107 twenty-year of a war
The absence Further, quotation appeals’ the court of ranty any the contract documents the com- comment off before as a matter of law that from the does not establish left “Rather, continues, does, that ex ment which provides none existed. UCC affirmations, to take such than fact which is press warranties arise other made, requires agreement of the in a and favors once out those stated contract101 during bargain 2.313(a)(1) goods by § the seller about 101. See Tex. Bus. & Com.Code promise description ("Any regarded part of fact or made of the affirmation buyer which relates to the the seller to the goods; particular reliance on hence no those goods basis of the and becomes in order to need be shown such statements bargain express warranty creates an agree- the fabric of weave them into goods conform to the affirmation or shall ment.”). promise.”). Grinnell, Co., Inc. v. 106. Am. Tobacco 102. See id. 2.317. (Tex.1997) (affirming 2.313(a). express Id. summary judgment on plaintiff ever no evidence claim as there was Inst., Inc., Hughes v. Tobacco 104. See containing alleged warran- advertisement saw Cir.2001); (5th Harris see also F.3d omitted). (footnote ty) Corp. Constr. Packaging v. Baker Concrete (Tex.App.-Houston [1st Stromboe, Schein, Henry Inc. v. denied). pet. Dist.] § 2.313 UCC cmt.'3 105. Tex Bus. & Com.Code ("In practice fact made affirmations of actual *20 proof. clear affirmative The issue though they normal- even never discussed it and ly is one omitted it from the extensive contract doc- offact.”108 to; they they uments. But not have would
Here, conflicting there was evidence might parties’ bargain also find the was no a twenty-year warranty whether was a result, they than more what stated. As a parties’ bargain. basis There was in taking question the trial court erred this contracting no evidence the parties ever jury. from the mentioned in negotia- the Sweets ad their tions, documents, bid or contracts. There anyone
is no evidence than other Houston B (who Center’s lead architect for an worked that, if PPG also asserts even firm) outside ever saw it. archi- While the twenty-year warranty, there was a it ex tect testified he relied on the Sweets war- pired along five-year warranty with the on ranty, jurors required would not have been years a date four after extensive defects testimony, credit his as he did not ex- agree were discovered.110 We with JMB’s plain why up he omitted it when he drew that, counter-argument unlike the five- specifications the bid that included numer- year warranty, warranty twenty-year ous shorter warranties. PPG’s witnesses (assuming parties’ testified it was bar parties’ bargain was what documents, gain) included in their until contract did not accrue the failure not the unmentioned advertisement. each Twindow seal was or should have been discovered.
Further, conflicting there was evidence warranty whether the Sweets had been five-year As warranty, with the undisput- withdrawn amended. It was twenty-year warranty explicitly extended warranty ed that no for ap- Twindows performance. to future But breach of the (when peared in Sweets most two warranties did not occur at the same installed), them were constructed and time. appear Twindows did not all (when publication project in 1978 five-year warranty guaranteed was accepted five-year warranty defects,” and the is- Twindows were “free of and thus sued). noted, appeals (al- As the court of upon delivery was in 1977 breached PPG’s business records included a 1976 though discovery it did not accrue until letter addressed to “the trade” and dated years) within those five because the Twin- purported before PPG’s contract that dows were not free of defects at that time. warranty shorten the years.109 to ten twenty-year guaranteed But the affirmatively While PPG witness could “against them failure of the hermetic seal” sent, recall or if this letter when twenty years. According plain jury might attribute some blame for that language, every even Twindow contained fact eigh- to JMB’s failure to file suit until manufacturing delivery, defect at there years teen later. twenty-year was no breach of the Further, until a hermetic seal failed. jury might parties’ bargain
A
find the
twenty-year warranty
here
in there was no breach at all for seals
included a
years.
an
magazine,
twenty
advertisement
a trade
failed after
108.Tex. Bus. &Com.Code 2.313 UCC cmt. 3
109.
V. Conclusion protections. not entitled to invoke its itself, reasons, foregoing Having For the we reverse no DTPA claim HCC cer- appeal’s judgment tainly assign the court of and remand not could one. For this rea- son, for trial JMB’s claim that judgment PPG breached I would reverse and render twenty-year warranty part seal that was a against JMB on its DTPA claim without bargain, basis their and reaching assignability ques- the broader damages related thereto. if I question, tion. But did reach that I case; uphold in this assignment would
Justice O’NEILL an opinion filed con- it is consistent with the purpose DTPA’s in curring part dissenting part, and in public policy. and does not violate which Justice SCHNEIDER and Justice today decision Court’s inconsistent with joined. SMITH jurisprudence legislative our own and the Justice partici- JEFFERSON did not underlying Accordingly, intent DTPA. pate in the decision. judgment I concur in the Court’s insofar right as it relates to JMB’s to recover O’NEILL, joined by Justice Justice DTPA, although under the for different SMITH, SCHNEIDER and Justice Further, agree reasons. I with the Court concurring dissenting part. and. that not claim limitations does bar JMB’s S, dealer, a car turns the odometer back regarding twenty-year breach of the seal B, on a clearly vehicle that sells to warranty, disagree I the trial but false and deceptive practice trade that the court erred in finding designed remedy. DTPA was Unaware applied as a matter of law. For reasons with, tampered that the odometer has been appeals expressed, the court of B sells the car to C a week later and 270, 284, judgment I S.W.3d would render assigns all warranties associated with it. breach-of-warranty on JMB’s favor down, immediately The car breaks and C respectfully claim from the and dissent 100,000 discovers that the vehicle has more judgment remanding that claim for Court’s miles on it than the represents. odometer a new trial. today, remedy against After has no C S deceptive practices trade because the Deceptive I. Trade Practices Act indiscriminately assign-
Court outlaws the claims, ment of all DTPA even those that A. Consumer Status policy do not raise the concerns the Court fears. In PPG contracted with HCC agree provide glass glazing
I with the Court that DTPA as- and for One Houston signments potential pub- buyer goods have the raise Center. As PPG’s concerns, services, policy qualified lic do we HCC as a consumer un- when should But the DTPA in at the time. In proceed- address them. before der effect abolish, wholesale, from ing assignment Legislature excluded protections all DTPA claims—even those that DTPA’s consumer entities like would million. purposes further the DTPA’s would HCC whose assets exceeded $25 —I 1989, JMB, DTPA In first decide whether HCC had a whose assets also exceeded million, assign. skips purchased building claim to The Court over this $25 all and claims as- legal question assigned threshold to make a broader was warranties or many rights with it. after win- that have become vested sociated discolored, Quick judgment. final fogged had been reduced to dows sued (Tex. Austin, City PPG for breach of 384; 1999); Knight, 627 violations. see also Corp. Phoenix-El Carloading Nat’l Assuming decep committed Inc., 141, 176 Express, Paso practices in tive acts or connection with (1943); Navar Dickson v. *23 windows, selling servicing its as the 3, Improvement Dist. No. County ro Levee found, only jury a “consumer” has stand (1940). 95, 257, Tex. 259 135 ing recovery against to seek it the under Thus, the statute “suits filed reliance on Knight DTPA. See v. Int’l Harvester repeal must the effec cease when becomes (Tex. 382, 388 Corp., Credit tive; granted if has final relief not been 1982). The 1973 that version Act effect, goes final repeal before the into when the applied purchased HCC windows thereafter, granted relief cannot be even broadly “consumer” to a defined include Quick, 7 pending appeal.” the on cause is who “corporation acquires by pur seeks or 128; Knight, at S.W.3d at see lease, or or any goods chase services.” 259). Dickson, 139 at (citing 384 S.W.2d 10, 1975, R.S., Apr. Leg., Act of 64th ch. 1, 62, 149, may § A savings modify gener- 1975 Tex. Laws 149 clause Gen. 1983) (amended (current Quick, version al rule of 7 at at abatement. S.W.3d Tex. 17.45(4)). clearly general § Bus. & Com.Code HCC clause is savings 128-29. Texas’s qualified as a “consumer” under found in this defi section 311.031 the Government Code, building provides repeal nition. HCC still owned the which that the or the Legislature 1983 when the of a statute not affect the amended amendment does statutory prior operation any rights pre- definition to exclude business statute’s or viously it. exceeding acquired consumers with assets mil under Tex. Code Gov’t $25 311.031(a). 29,1983, R.S., case, Aug. Leg., § lion. Act of In this court of 68th the § appeals general savings ch. Tex. the clause applied Gen. Laws (current at Tex. and held the 1983 did version amendments Bus. & 17.45(4)). § to quali immediately apply HCC did not alter the consum- Com.Code ex- fy corporations as a consumer under the er status whose assets amended defi follow, cap. nition. For I the million reasons believe ceed $25 so, the court doing though, that the amended definition became effec 278-79. immediately amen- operated ignored specific tive 1983 Act’s more extin the any datory true guish might language. may claims that HCC While it be savings a not nec- specific have had. clause does essarily negate general section 311.031’s a statutory The DTPA is cause of action does not the more application, that mean Legislature protect the created If specific language disregarded. damaged by deceptive consumers trade contrary intent legislative can be found the practices. Having created cause amendatory language, general sav- action, Legislature is free to or repeal Quick, 7 ings apply. does not clause Knight, amend it at time. See begin by Accordingly, I S.W.3d at party’s right at 384. or When amendatory analyzing the 1983 Act’s statute, remedy dependent upon terms. savings of that repeal statute without DTPA ef- amendments to the limiting repeal’s operates clause effect First, as immediately separate changes. deprive party of all fected three said, 21, 1973, already May R.S., Leg., amendments excluded of 63rd ch. (current 1,1973 from the protections Act’s consumer busi- Tex. Gen. Laws 17.45(4)). nesses exceeding with assets million. version at Tex. Bus. & Com.Code $25 Second, Thus, legislation allowed smaller “consumers” do not need a written contract; businesses with assets of million or Act encompasses those with $5 (i.e., protections by more to waive the Act’s oral contracts or no contract at all Finally, written contract. shoppers). Legislature truly the Act added a mere If the definition of “business consumer.” Act of meant the asset cap apply only to “con- 29, 1983, R.S., Aug. Leg., 68th ch. tracts executed” after then has 1, 2, §§ 1983 Tex. Gen. operative Laws 4943- never become for oral contracts (current shoppers. version at Bus. & Com.Code reading Such a would con- 17.45(4)). 17.42, §§ that, Legislature’s Section then con- travene the directive statutes, tains following provision: construing presume we should *24 that “the entire statute is intended to be only This Act applies to a contract exe- 311.021(2). § effective.” Tex. Gov’t Code cuted on or after the effective date of this Act. A contract executed before the Moreover, Legislature knows how to date Act governed by effective of this is broadly preserve more its is the law in effect when the contract was Legislature clearly intent. The expressed executed. arising its intent to “save” all claims in 29, 1983, R.S., Aug. Act of Leg., 68th ch. part whole or in before its 1979 and 1981 883, 4, 4943, 1983 Tex. Gen. Laws 4944 DTPA amendments became effective. As added). then, (emphasis question, amendments, is to the Legislature whether this savings provision applies only stated that Act applied “[t]his shall be portion amending govern- of the act prospectively only. in Nothing this Act waivers, ing pre- contractual or if it also affects procedurally substantively either serves the consumer corporations status of a cause of action that arose either in whole exceeding with assets million or in prior $25 the effective date of this occurring 10, 1979, transactions Apr. before the amend- Act.” Act Leg., 66th R.S., 603, 9, ment’s effective date. I conclude that ch. 1979 Tex. Gen. Laws specific amendatory language 1327, indicates the amendatory 1332. The 1981 lan- Legislature did not intend to leave the in guage similarly “Nothing broad: this consumer corporations exceeding status of procedurally Act shall affect or substan- cap pre-amendment the asset intact as to in tively arising a cause of action whole or transactions. part prior in to the effective date of this 30, 1981, Leg., Act.” Act of March 67th 4 of specifically Section the 1983 Act R.S., 2,§ ch. Tex. Laws Gen. provides applies only that the Act to “con- contrast, By Legislature’s executed” on or after the amend- tract[s] carefully provision 1983 effective-date date, ments’ effective indicating contracts, limited to executed which can must to preserve have intended from the only provi- refer to the contractual waiver amendments’ immediate effects contracts sion. As some commentators have noted: that were executed before. Id. The protections, though, savings DTPA’s extend be- There is no clause in the 1983 yond upon transactions based written con- amendments to the DTPA which would inception, tracts. From its the DTPA pending has save a business consumer’s anyone savings defined “consumer” as “who cause of action. The clause of acquires” goods applicable seeks or or services. Act the 1983 amendments is policy and public effec- violate particularly, to contracts executed before the (i.e., Legislature’s purpose. While waivers thwart tive date of amendment case, I true in other fail some of DTPA claims contracts executed valid.) JMB owns the defective to see it here. before effective date are not “Twindows” allegedly misrepresented legislature clearly The Texas distin- harm. has suffered real economic guishes express regarding its intent is, breach-of-warranty claim DTPA JMB’s 1979 and application immediate claim, essence, property-damage to a cause of pending amendments freely assigna long claims have been such action from the 1988 amendments. See, R.R. v. e.g., G.H. S.A. Free ble. & legislature expressly chose man, (Tex.1882); Allstate 57 Tex. (i.e., only existing no “save” contracts Kelly, Ins. Co. v. in con- rights valid disclaimer DTPA n.r.e.); (Tex.App.-Tyler writ ref'd date) tracts executed before effective County v. Farmers Mut. Ins. Rosell applica- from immediate or retroactive (Tex.App.-Texar tion, and did not to “save” the intend 1982, writ); no Thomes kana see also of action of a cause business consumer Porter, (Tex.App.-Fort (with assets) than more million $25 1988, writ) (holding claim Worth or in arising part prior whole pur owner’s death and could be survived of such effective date amendment. estate). Moreover, *25 sued common-law II, Andy al., Tschoepe Aspects A. et of in principles support assignment the this Defending Deceptive a Texas Prac- Trade Thornes, at 594 (ap case. See 761 S.W.2d Claim, tices B Act Consumer Protection plying common-law rules because the (1989). 527, 20 Mary’s St. L.J. 555-56 expressly provide DTPA not for sur does specific amendatory Because the 1988 action). a cause of vival of indicates the not language Legislature did Casualty In Farm Co. v. State Fire & a preserve intend to business consumer’s history of Gandy, assign we examined the date, claim before that arose effective the policy ments and the considerations under general savings the clause found in section (Tex. 696, lying them. 925 705-11 S.W.2d 311.031(a) Thus, application. has no the 1996). law, early At common a chose in 1983 amendment mil- establishing the $25 generally assigned. action could not be Id. lion cap asset became immediate- effective assignments at 705. This aversion to ly extinguished consumer sta- HCC’s upon in part based courts’ reluctance to nonconsumer, then, tus. a no As HCC had litigation. increase or distort See id. at cause of action under DTPA when it the Assignments also disfavored were 1989; building sold to JMB in law, because, chose under the common a in acquired in purchase claims JMB presupposed personal relationship action potential breach-of-warranty claims. parties could not between the which be reason, agree may For I this that JMB id.; transferred. See see also James B. the DTPA. did recover under But HCC Ames, in Inalienability The Choses Ac consumer, I qualify uphold as would History Legal tion, in LectüRes assignment of its DTPA to JMB claim (1913). 211-212 building. when it sold the time, the of commerce Over demands Assignability B. assign- status of eroded disfavored ments, personal assign- although uniquely concludes certain The Court case which their owner’s general, ments in and the one tort actions affected 106 4,1895, R.S.,
person, personal feelings,
May
Leg.,
or character— See Act of
24th
ch.
(amend
slander,
libel, battery,
such
and false
143
1895 Tex. Gen. Laws
1985) (current
imprisonment
unassignable un
at Tex.
ed
version
—remained
Civ. Prac.
Gandy,
der the common law.
925
71.021);
See
Gandy,
925
S.W.2d
& Rem.Code
706-07;
Cook,
(“On
at
S.W.2d
Walter W.
theory
assignability
at 707
Action,
Alienability
Choses in
29 HaRV.
depended
a chose
action
on whether
(1916).
The continued
death, personal inju
survived
owner’s
L.Rev.
nonassignability
justi
of such claims was
ry
assignable
claims thus became
in Tex
by the
fied
concern that the factors deter
as.”);
III,
Corp.
Beech
v. Jinkins
Aircraft
mining liability
damages
were so
(Tex.1987) (“We
19, 22
closely
particular
associated with the
ac
general
mindful of
rule that a cause
alleged wrongdoing
tors involved
damages
personal injuries
action for
fairly
could not be
assessed when
(citations
may
assigned.”)
be sold or
omit
replaced.
one of the actors was
See Gan
ted). Thus, while some of the common
Freeman,
706-07;
dy, 925
at
S.W.2d
remain,
law’s reservations still
choses in
157;
Baker,
Tex. at
see also Mallios v.
generally
freely
action are now
considered
(Tex.2000)
(Hecht, J.,
con
707;
Gandy,
alienable. See
curring).
injury
But “when the
affect[ed]
(Tex.Civ.
Caldwell,
Doty v.
We have also held
Carter
the notion
*27
agreements,
recovery
a
assign
plaintiffs
permits
which
DTPA
the
enhanced
nonsettling
damages,
punitive
a
a
in na-
against
defendant to
DTPA claims are
defendant,
assignable.
settling
against
are void as
ture and
not be
pub-
thus should
Smith,
question
damages, by
lic policy. Elbaor v.
845 S.W.2d Without
enhanced
(Tex.1992).
definition, produce
These
an award that exceeds
arrangements
“nearly
underlying damage
always
against
ensure a trial
the
the amount of
and
“grant
effect. But the
non-settling
punitive
defendant” and
the set-
therefore have a
enhanced-damages provision
DTPA’s
also
tling
power
any pro-
veto
over
defendant
that
the Court
posed
plaintiff
purpose
between the
and has
remedial
settlement
entirely ignores.
aspect
The remedial
is
remaining defendant.”
Id. at 248.
statutory language,
which
They
jury by
expressed
confuse the
presenting
also
underlying purpose
that
is
adversity”
plaintiff
“a sham
between the
states
the Act’s
false,
mis-
protect
Id.
249. We
“to
consumers
settling defendant.
practices,
public policy
sup-
leading,
deceptive
that
did not
business
concluded
actions,
personal
ordinary punitive
unconscionable
and breaches of
less
than
dam
provide
ages
underscoring
trebling provi
and to
efficient
eco
procedures
protec
purpose.
May
nomical
sion’s remedial
See Act of
secure such
21,
R.S.,
143, 1,1973
21, 1973,
1973,
§
May
Leg.,
Leg.,
tion.” Act of
63rd
63rd
ch.
R.S.,
322, 327;
§
ch.
1973 Tex. Gen. Laws Tex.
Laws
v. Little
Gen.
Woods
(amended 1995) (current
ton,
(Tex.1977);
322-23
ver
Pen
17.44(a));
§
nington,
(noting
sion at
Bus. & Comm.Code
109
Atlanta,
390,
v.
203 U.S.
ry
Pipe
Sherman Anti
&
Works
closely analogous
(1906));
397,
65,
L.Ed. 241
see
useful
27 S.Ct.
51
provides
comparison.
Trust Act
a
also,
Picture
e.g.,
v. Motion
Sampliner
of the DTPA
Similar
version
234,
79,
Co.,
233,
41 S.Ct.
here,
of
Patents
254 U.S.
question
a violation
the antitrust
(1920);
III
240
As
gives
mandatory
a claim for
65 L.Ed.
act
rise to
Gulfstream
15(a).
socs.,
Aerospace Corp.,
v.
Inc.
damages.
treble
15 U.S.C.
As
Gulfstream
(3rd Cir.1993);
DTPA,
425,
Chiro
damages
under
a
995 F.2d
431
these
have
Am.
effect,
practic Coop.
Mich. v.
Med.
punitive
but
were also “de
Ass’n of
(6th Cir.1989);
Ass’n,
270, 272
signed
future antitrust
867 F.2d
to deter
violations”
Comm.
primarily
remedy.”
Equalization
Health Care
were “created
a
of
Iowa
Chiropractic Soc’y
Iowa
v.
Med.
Soc’y
Eng’rs,
Hydro
Am.
Mech
Inc. v.
of
(8th
1020,
Cir.1988);
556, 575,
1022
Soc’y,
level
851 F.2d
Corp., 456 U.S.
102 S.Ct.
1935,
(1982); see,
v.
Pharm. Ass’n
Klamath
e.g.,
110
Finally, vastly directly the Court overstates our made to the consumer—in this holding in Amstadt v. United States Brass case HCC. 644, Corp., 919 647 sum, none of the theories that have There, Legisla- we addressed “whether the applied assign- been to determine a claim’s upstream suppliers ture intended that ability supports striking assign- down the component parts raw materials and be lia- Liability predicated ment in this case. under ble when none their upon breach-of-warranty property-dam- misrepresentations reached the consum- claim, age long which has been held as- added). (emphasis ers.” Id. at 662 Our signable Recognizing at common law. deceptive prac- concern was that the act or validity assignment of such an is consistent touch tice the consumer transaction: “[the underlying purposes with the DTPA’s actions were not connected defendants’] give policy does not rise to the concerns transactions, is, plaintiffs’
with the assignment that led us to invalidate homes, way justifies sale in a Gandy. Just as C should be able to assert liability (emphasis under the DTPA.” Id. against turning a DTPA claim forS back added). nothing in our There is Amstadt sale, his vehicle’s odometer before JMB that, opinion to suggest had the defen- step should be into shoes able HCC’s misrepresentations directly dants’ been and, consumer, were HCC a assert a sale, connected with the homes’ subse- against DTPA claim PPG. quent buyers of the homes could not assert by assignment. DTPA claims en- This is Warranty II. Breach of tirely consistent in Gupta with our decision additionally asserts based Homes, Inc., 168, v. Ritter 646 169 upon alleged PPG’s breach of five- and (Tex.1983), which involved a homeowner’s I twenty-year agree warranties. with the warranty-based against DTPA claim not Court limitations does bar JMB’s builder, where we said: twenty-year claims that are based on the owner, As between the builder and it contends, warranty. though, seal matters not whether there has been an that JMB cannot recover under war- intervening The effect of the owner. ranty jury because failed to obtain find- subsequent latent defect on the owner is ings that the formed the “basis just great buyer original as on the bargain” and that JMB notified PPG justify and the builder is no more able to of the defect within reasonable time. improper subsequent his as to a work 2.313(a)(1), §§ See Bus. & Com.Code original buyer. owner than to the 2.607(c)(1). agrees, holding The Court simply Id. in finding Amstadt did concern war- that the trial court erred these ranty-based prod- DTPA claims a matter of law rather than elements as supplier representations jury. disagree. uct whose I submitting them mo, Inc., (8th Cir.1965), Corp., Household Fin. 46 Ohio Misc. 348 F.2d 740-41 (1974); F.Supp. Murphy Corp., F.Supp. v. House Derdiarian v. Futterman (S.D.N.Y.1963); (6th Corp., hold Fin. 560 F.2d Cir. 270-71 Int’l Ladies’ 1977); but v. Shields & see Johnson v. Household Fin. Garment Workers' Union (S.D.Ill.1978) (S.D.N.Y.1962); Corp., F.Supp. F.Supp. 149-50 Mills v. (holding damages Sarjem F.Supp. Corp., that because “actual are (D.NJ.1955) (all necessary allegation” complaint holding not a of a that securities fraud Act, claims, recovery Truth-in-Lending statutory to actual dam under the which limit survive). ages, assignable penalty award is a civil and does not since are neither personal). Supply Gamble-Skog penal nor See also W. Auto Co. v.
HI it file. We read Architectural conclusively established Sweet’s An issue that is upon closely. dependent were very matter of law should not be submitted We as a jury. Stanley Boot about printed to the See T.O. information that was the Paso, Inc. v. Bank El in the index. glass the Sweet’s (re (Tex.1992); P. 222-23 Tex.R. Civ. that he relied specifically testified Gatton jury quiring the court submit product the warranty, along with on the by plead the only questions those raised Sweet’s, in in se- provided specifications evidence). Thus, if trial ings and the Houston for One lecting the “Twindows” correctly that these elements court found that PPG of- only evidence Center. established, it not conclusively did that to controvert HCC’s contention fered in failing err to submit them. See Green based on the it selected the “Twindows” Int'l, Solis, Inc. v. warranty testi- twenty-year was Gatton’s (Tex.1997) (holding proper that trial court only warranty not the mony that the was ly question unsupport to submit a refused But it “Twindows” were chosen. is reason by jury). evidence to ed warranty necessary not to a breach actionable, representation relat- To be warranty was the prove action to that the ing express warranty must form a an product only upon particular basis which bargain.” “basis of the See Tex. Bus. & of the chosen. To become a “basis was 3; Sweco, cmt. Inc. v. 2.313 Com.Code shown that the bargain,” it need Chem., & Cont’l Sulfur promise fact or made to affirmation of denied). (Tex.App.-El Paso writ bargain, of the buyer part was of the basis argues warranty that the could not PPG not the sole See Tex. Bus. & Com. basis. bargain have formed a of the because basis 2.313(a)(1). Code there was no evidence relied on it. PPG that the trial court The Court concludes JMB, hand, relying on the other on a determining in as a matter of law erred 2.313, partic- comment to section claims no warranty twenty-year was a basis that ular repre- reliance need be shown for a because bargain, part, of the Gatton sentation to an become actionable why he omitted it when he explain “did not agreement. reliance Whether included up specification the bid drew an essential element of a breaeh-of-war- numerous other shorter warranties.” ranty claim a question recently noted But testified re- at 100. Gatton Compaq Lapray is undecided in Tex- was considered peatedly that as. 135 But of the equivalent specifications of other question we do not need to answer that “Twindows,” shading such as U-value and because, specific here or not reli- whether coefficient, expressly that also were not element, necessary ance is was shown explained in the contract. He stated undisputed published here. It is that PPG twenty-year warranty “part twenty-year warranty in Sweet’s Ar- they provide PPG that would statement accepted chitectural Guide before HOC its along with the shad- along glass, with the bid for the “Twindows” order to induce coefficient, stated with the U-value ing purchase product. customers to its Jim Gatton, architect, everything else said about HCC’s lead testified with previously testified depended upon glass.” he the information Gatton had provided upon Sweet’s Guide: “Twindows” based that HCC chose coefficient, U-value, shading their very It their important present- It was to us. [PPG], specifica- because these Pittsburgh Plate ed the Glass building’s fit the needs. glass products within the tions best well as other *31 sum, trial court did not abuse its argues PPG also that it had revised the the in refusing discretion to submit the “basis warranty ten-year warranty to a limited bargain” of the or reasonable notice issues signed supply before it the contract to jury. legally to Because sufficient evi- windows, support and offered in HCC supports jury’s finding that dence 1, 1976, July a letter from PPG’s senior neither discovered nor should have JMB president informing vice the trade twenty- discovered PPG’s breach ten-year warranty, offering PPG was year warranty, I would affirm the court of But September effective PPG in on appeals judgment JMB’s favor presented no evidence that this letter was claim. published. ever disseminated or More- over, accepted May on HCC PPG’s bid warranty, con- five-year PPG As pur- over three months before the by claims are barred tends JMB’s ported warranty’s revised effective date. alleged But the same limitations. JMB warranty, testimony lay injuries twenty-year The of PPG’s witnesses that under the jury and the awarded the same amount ten-year warranty operative was the damages for each breach that it found. conclusory opinions not legal one are bind- judgment can on Because the be sustained Snider, court. ing on the See Anderson jury’s findings regarding JMB’s twen- pre- PPG claim, I would not reach ty-year sented no evidence of rescission or modifi- recovery un- arguments challenging PPG’s Thus, twenty-year warranty. cation of the warranty. five-year der the in failing the trial court did not err bargain” submit the “basis of the issue III. Conclusion jury. may not invoke I would hold that JMB also contends that the trial court PPG protections, and the DTPA’s consumer in failing erred to submit the issue judgment therefore concur the Court’s reasonable notice of breach of judgment against it to the extent renders I jury. Again, disagree. question agree I JMB on that claim. also with may be decided as a of reasonable notice Court that limitations does bar JMB’s Coolidge, matter of law. See O’Ferral v. twenty-year on claims based breach (1950). 146, 148 149 Tex. warranty. disagree, though, I with seal Here, the uncontroverted evidence shows sweeping conclusion that no the Court’s first of a “halo HCC notified PPG its con- assignable DTPA claims are units in PPG in- effect” some its dis- clusion that the trial court abused spected problems the units and saw it cretion in the manner which submit- Instrument Co. v. first-hand. See Carroll breach-of-warranty claim to the ted the Controls, Inc., B.W.B. appeals’ court of jury. I would affirm the (Tex.App.-Houston [1st Dist.] claim. breach-of-warranty on judgment writ) (buyer gave adequate notice that claim for Because the Court remands seller). showing defective trial, respectfully I dissent. new problems notification of with addi- received July
tional units in 1989. PPG’s notice to it 1989 that would no October replace suggests failed units also
longer continuing prob- notice of the had
lems.