J. Stiles, Inc. v. Evans
| Decision Date | 31 October 1984 |
| Docket Number | No. 05-83-00490-CV,05-83-00490-CV |
| Citation | 683 S.W.2d 481 |
| Parties | J. STILES, INC., Appellant, v. Jack EVANS and Mary Kay Evans, Appellee. |
| Court | Texas Court of Appeals |
C. Thomas Wesner, Jr., Wesner, Coke, Boyd & Clymer, Dallas, for appellant.
Royal Brin, Jr., Strasburger & Price, Boyd Waggoner, Dallas, for appellee.
Before the court en banc.
Jack and Mary Evans filed suit against J. Stiles, Inc., for breach of express and implied warranties and for damages under the Deceptive Trade Practices Act resulting from the use of faulty brick on the home that they bought from Stiles. Judgment, with trebled damages, was rendered against Stiles in the amount of one hundred fifty-five thousand, five hundred eighty-two dollars ($155,582) plus attorney's fees. From this judgment Stiles appeals, asserting sixty points of error. We address only those facts and issues relevant to the disposition of the case. For the reasons stated below, we reverse and render a take nothing judgment against Evans.
Prior to purchasing the house in question, Jack and Mary Evans observed that certain brick were cracked or broken, including some brick that were crumbling, with some parts fallen away and some faces popped off. Consequently, Evans negotiated an additional paragraph in the contract for the sale which stated: "Cracked and broken brick to be replaced by Seller to Buyer's satisfaction." Stiles replaced the cracked or broken brick, and the sale was consummated on or about February 9, 1979. At the closing, Evans received an express home owner's warranty which contained approved standards from the Home Owner's Warranty Council of Metropolitan Dallas, Inc. (HOW).
In a letter dated March 9, 1979, Evans complained that the brick continued to disintegrate in many areas and requested assurance in writing from Stiles that Stiles would continue to replace cracked or broken brick and pay for damage to plants resulting from the brick replacement as long as the brick continued to deteriorate. In response to the letter, Stiles replaced the additional cracked or broken brick, but he refused Evans' demand for an extended warranty of replacement of deteriorated brick.
Evans made no further demand for replacement of cracked and broken brick. However, on June 4, 1980, Evans wrote to the HOW counsel to institute arbitration in which he sought to have Stiles replace all the brick on the house with a different type of brick. The HOW arbitrator awarded Evans replacement of cracked and broken brick on the house, denied repair of decorative walls, and required Stiles to apply a penetrating type of moisture barrier on the house brick.
On July 1, 1980, Evans wrote a letter notifying Stiles that he intended to file suit under the Deceptive Trade Practices Act because the HOW warranty was essentially worthless. On July 17, 1980, Evans again wrote to Stiles explaining that all the brick needed replacement because the problem was a continuing one and could not be remedied in any other way. On January 12, 1981, Evans agreed to accept the HOW arbitration award if Stiles would give a ten year additional warranty on the brick and agree to pay certain other expenses. Stiles agreed to comply with the arbitration award but refused to pay additional costs or give an additional warranty, contending that his compliance with the HOW arbitration award fulfilled his warranty obligations. Thereafter, Evans refused to accept Stiles' offer to replace the cracked and broken brick under the HOW warranty and filed suit on March 18, 1981.
The jury found that Stiles had made an express warranty to replace cracked and broken brick to Evans' satisfaction. Evans contends that this warranty was created by the additional paragraph he negotiated in the contract for sale which ultimately merged with his deed at closing. Stiles maintains that the HOW warranty was the only express warranty that survived closing. In either case, Evans cannot recover for the breach of an express warranty to replace the cracked or broken brick because he failed to meet his burden of proving damages. The damages issue answered by the jury concerned the replacement of all the brick on the house. While this may be supportive of damages for breach of an implied warranty, it is not supportive of damages for breach of an express warranty to replace cracked or broken brick. The issue supporting damages for breach of an express warranty to replace cracked or broken brick was not answered because it was made contingent upon the jury's finding that Evans was unreasonable in asking Stiles to replace all the brick and the jury found that his request was reasonable. Because Evans neither objected to the issues as they were presented to the jury nor complained that the issue of damages for replacement of cracked or broken brick remained unanswered, he cannot now complain that no damages were found for breach of an express warranty.
The charge to the jury included two issues on implied warranties which asked, first, whether the house was constructed in a good workmanlike manner, and second, whether it was habitable. Stiles objected to these issues at trial and now contends that, by separating "good workmanlike manner" and "habitability" into two issues, the court erroneously bifurcated the implied warranty recognized in Humber v. Morton, 426 S.W.2d 554 (Tex.1968). Further, he contends that, because the jury found that the house was habitable, as a matter of law he did not breach the Humber implied warranty. We agree.
The Texas Supreme Court first extended implied warranties to the sale of real estate in Humber, 426 S.W.2d 554. The Humber decision emerged from a situation in which a widow purchased a house from a builder, and the house was constructed with such poor workmanship that it caught on fire the first time a fire was lighted in the fireplace. With these facts before it, the court in Humber rejected the doctrine of caveat emptor and "held that a builder-vendor who built and conveyed a house impliedly warranted that the house was constructed in a good workmanlike manner and was suitable for human habitation." G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982).
Evans maintains that Humber provides for two separate warranties. He relies upon the use of the plural form "warranties" in Watel v. Richman, 576 S.W.2d 779 (Tex.1978), in which the supreme court referred to "the implied warranties described in Humber...." Id. at 780. We disagree. The court in Watel affirmed Richman v. Watel, 565 S.W.2d 101 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.), in which the appellate court had reversed a summary judgment because disputed facts existed. The supreme court had before it the appellate holding that the wording of an express written warranty did not limit "such implied warranty of fitness." Richman, 565 S.W.2d at 102. In Watel, 576 S.W.2d 779, the supreme court specifically reserved this question which it later addressed in G-W-L, 643 S.W.2d 392, stating that "the implied warranty of fitness" could be excluded by express language in a contract. Thus, we do not construe the use of the plural form "warranties" in Watel as intending to bifurcate the Humber warranty that a house will be constructed in good workmanlike manner and suitable for human habitation.
In Gupta v. Ritter Homes, Inc., 646 S.W.2d 168, 169 (Tex.1983), the court extended liability of the builder for this "implied warranty of habitability" to subsequent purchasers of a house where latent defects manifested themselves after the purchase. In Gupta, the first purchaser sold his new house after living in it only three months. Subsequently, because of a defect in the slab foundation, the house settled excessively "causing the walls to crack, the roof to leak, and the patio to pull away from the rest of the house." Id. at 169. Thus, the house became unsuitable for human habitation.
There are no Texas cases extending the Humber warranty to items of workmanship that do not affect the habitability of a house. Rather, in Turner v. Conrad, 618 S.W.2d 850 (Tex.Civ.App.--Ft. Worth 1981, writ ref'd n.r.e.), the court of appeals stated: "Even in cases where implied warranties were deemed existent as applied thereto, it has never been extended to fences, dwellings, and ancillary construction in and of themselves, whether erected to be sold at the same time as the principal structure or not." Id. at 853; see also Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167, 174 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.).
We hold that, in Humber, the court created a single implied warranty that a house would be constructed in good workmanlike manner and suitable for human habitation. The jury finding, that the Evans' house was habitable, is a finding that Stiles did not breach the Humber implied warranty. Thus, we sustain Stiles' points of error.
Accordingly, we reverse and render a take-nothing judgment against Evans.
I write to express my views on the matters addressed by the majority. I do not address the other issues raised by Stiles in points of error not discussed in the majority opinion. The majority holds that the implied warranty of quality that Humber v. Morton, 426 S.W.2d 554 (Tex.1968), extends to the sale of new houses is breached only if the house is neither constructed in a good and workmanlike manner nor is suitable for human habitation. This holding in effect means that in Texas there is no implied warranty of good and workmanlike construction independent of an implied warranty of habitability in sales of new homes.
The majority, in my view, reads far too much into the fact that the Humber court recognized an implied...
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Evans v. J. Stiles, Inc.
...the court of appeals 1 reversed the judgment of the trial court and rendered a take-nothing judgment against the Evanses. 683 S.W.2d 481. We reverse the judgment of the court of appeals and affirm that of the trial In Humber v. Morton, 426 S.W.2d 554 (Tex.1968), this Court held that a build......