City Public Service Bd. v. General Elec. Co., 90-5615
| Decision Date | 12 November 1991 |
| Docket Number | No. 90-5615,90-5615 |
| Citation | 947 F.2d 747 |
| Parties | CITY PUBLIC SERVICE BOARD, Plaintiff, City of San Antonio, Acting By and Through City Public Service Board, Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas.
ON PETITION FOR REHEARING
(Opinion July 9, 1991, 5th Cir.1991, 935 F.2d 78)
Before GOLDBERG, HIGGINBOTHAM, and JONES, Circuit Judges.
In its petition for rehearing, the City of San Antonio points out that the Texas Supreme Court recently withdrew its opinion in Southwestern Bell Telephone Co. v. FDP Corp., 811 S.W.2d 572 (Tex.1991), upon which we relied in the prior panel opinion. See City of San Antonio v. General Electric Co., 935 F.2d 78, 81-82 (5th Cir.1991). We take note of the Supreme Court's action and, accordingly, substitute the following in place of the last paragraph in Part II of our prior opinion:
The Melody Home II warranty does not require repairmen to "guarantee the results of their work;" it only requires those who actually repair goods or property to perform those services in a good and workmanlike manner. Melody Home II, 741 S.W.2d at 354-55. Claims of failure to warn or failure to advise therefore fall outside the warranty's purview, and it is not for this court--Erie-bound to apply state law as state courts would do--to incorporate such innovative theories of recovery into Texas law. See Mayo v. Hyatt Corp., 898 F.2d 47, 49 (5th Cir.1990). Because the City offered no evidence that the repairs actually undertaken by GE were in any way defective, we conclude that the Melody Home II warranty is inapplicable to the case at bar. 1
With the exception of the above changes, the panel adheres to its prior opinion and denies the petition for rehearing.
1 Because we hold that GE did not breach the implied warranty, we need not consider the alternative argument, which the district court never addressed, that GE was entitled to summary judgment because the Melody Home II warranty does not extend to "professional services." See Melody Home II, 741 S.W.2d at 354 (...
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