826 F.2d 391 (5th Cir. 1987), 86-1044, MBank Fort Worth, N.A. v. Trans Meridian, Inc.
|Citation:||826 F.2d 391|
|Party Name:||Blue Sky MBANK FORT WORTH, N.A. (formerly Continental National Bank of Fort Worth), Plaintiff-Appellant, Cross-Appellee, v. TRANS MERIDIAN, INC., Defendant-Appellee, Cross-Appellant. TRANS MERIDIAN, INC., Robert G. Tunnell, Gale Tunnell, Itaf Daod, Ghaleb A. Hamadeh, Mary Hamadeh, Charles R. Ward, Barbara Ward, H.J. Van Praag, and Laiping F. Van Pr|
|Case Date:||September 10, 1987|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Sam J. Day, John H. Cayce, Jr., Constance R. Heiland, Fort Worth, Tex., for Mbank Fort Worth, N.A.
David F. Chappell, Kathleen J. Miller, Chappell & Handy, Fort Worth, Tex., for Trans Meridian, Inc., et al.
Appeals from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, BROWN and JOLLY, Circuit Judges:
ON PETITIONS FOR REHEARING
(Opinion July 2, 5th Cir.1987, 820 F.2d 716)
In the course of their petitions for rehearing raising numerous issues, the parties on both sides of this controversy have called the court's attention to two Texas Supreme Court cases decided shortly before our opinion was issued in this case, which were not included in the briefs and were not considered by the court.
TMI asserts that the case of Melody Home Manufacturing Co. v. Barnes, 30 Tex.Sup.Ct.J. 489 (June 17, 1987), affects our holding that a party's conduct may constitute a waiver of its right to assert the Texas Deceptive Trade Practices Act (DTPA) as a defense. We disagree. In Melody Home, the Texas Supreme Court did not address the issue of waiver by conduct subsequent to formation of a contract. Rather, Melody Home held an implied warranty that repairs would be made in a good and workmanlike manner could not be waived "merely by a pre-printed standard form disclaimer or an unintelligible merger clause." The court expressly limited its overruling of the prior holding in G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982) only to the extent that Robichaux was in conflict with Melody Home. There...
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