McCrea v. Cubilla Condominium Corp. N.V.

• Decision Date: 24 January 1985
• Docket Number: No. 01-84-0250-CV,01-84-0250-CV
• Citation: 685 S.W.2d 755
• Parties: David Wilson McCREA, Appellant, v. CUBILLA CONDOMINIUM CORPORATION N.V. and Fidinam (U.S.A.), Inc., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 755

685 S.W.2d 755

David Wilson McCREA, Appellant, v. CUBILLA CONDOMINIUM CORPORATION N.V. and Fidinam (U.S.A.) Inc., Appellees.

No. 01-84-0250-CV.

Court of Appeals of Texas Houston (1st Dist.).

Jan. 24, 1985.

Rehearing Denied Feb. 21, 1985.

Karen A. Lerner, Michael R. Charlton, Houston, for appellant.

Jim Flegle, Barbara E. Gardner, Bracewell & Patterson, Houston, for appellees.

Before JACK SMITH, BASS and LEVY, JJ.

OPINION

BASS, Justice.

The appellant, David McCrea, brought suit against appellees, Cubilla Condominium Corporation and Fidinam (U.S.A.) Inc., under the Texas Deceptive Trade Practices Act (DTPA) and under contract law for alleged defects in a condominium. The original trial court entered a partial summary judgment on claims arising from the contract and as to express and implied warranties, and ordered a trial on all claims arising under the DTPA. The suit was later transferred to another court which held a non-jury trial on the misrepresentation claims brought under the DTPA. That court found that there were no material misrepresentations by the seller and entered a take nothing judgment.

We affirm in part and reverse and remand in part.

The appellant, McCrea, claims that the original court erred in granting a summary judgment on the issues of express and implied warranties. He also claims that the court erred in holding that a misrepresentation, under the DTPA, had to be material. Further, he claims that if, in the alternative, the misrepresentations are required to be of a material fact, then the court's holding that there were no material misrepresentations is against the great weight and preponderance of the evidence or is established by the evidence as a matter of law.

McCrea entered into an earnest money contract with the appellee, Cubilla, to purchase a condominium that had been converted from an apartment. The contract contained a disclaimer of all warranties, express or implied, and further provided that no representations, claims, or statements made by the seller would be binding unless they were set forth in the purchase agreement or in a subsequent written agreement executed by the seller. Two months after the parties entered into the contract, Cubilla sent a letter to McCrea stating that it would correct all defects in the unit caused by defective materials or faulty workmanship on items defined in "Schedule A" (i.e., washer, dryer, and fireplace) of the contract.

After McCrea moved into his condominium, his roof began to leak. He notified the resident manager, who in turn notified Fidinam, Cubilla's authorized representative. In the conversion of the apartments, Fidinam had served as the construction manager and agent in fact. It was Fidinam that authorized the repairing of McCrea's roof. However, the roof continued to leak, and when the limited warranty on the "Schedule A" items was about to expire, Fidinam's general manager sent a letter stating that it would continue to work on the roof until it was repaired.

The first issue is whether the trial court properly entered a summary judgment on "all claims arising from the contract as to express and implied warranties between the parties." The seller contended it was entitled to a judgment, as a matter of law, because of the following arguments:

The condominium unit was a used good, [sic] without an implied warranty of habitability.

Assuming that the implied warranties existed, they were expressly waived by the Appellant by language in his Contract of Sale wherein the Appellant agreed to take the unit "without warranty from Seller, express or implied."

That the Appellee Fidinam had made no representations of the warranty alleged in the Petition and was not the seller.

When a summary judgment order does not state the grounds upon which it is granted, a party appealing from the order must show that each of the independent arguments alleged in the motion are insufficient to support the order. Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.--El Paso 1983, no writ).

In reviewing these arguments, we look to the agreement of the parties. If the contract is unambiguous, then its construction becomes a question of law for the trial court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). The pertinent sections of the contract are as follows:

(g) Purchaser understands that the unit has been converted from a rental unit. That purchaser has made a physical inspection of the unit and, thus is taking the unit, all appliances and utility fixtures and equipment without warranty from seller, express or implied; or in the event purchaser has specified improvements to be made as per schedule A. Then seller shall, at closing, assign to purchaser any and all manufacturers warranties which he may have to said appliances, fixtures or equipment.

This agreement (including the instruments and documents referred to in subparagraph (d) of paragraph 10 and all exhibits hereto) constitutes the final and complete agreement between the parties. No representations, claims, statements, advertising or promotional activities made or conducted by seller or seller's agents or representatives shall be binding upon seller unless the same are expressly set forth in this agreement or in a subsequent written agreement executed by seller.

(emphasis added). Cubilla, on June 27, 1981, sent a subsequent written agreement to McCrea, which reads as follows:

Cubilla Condominium Corporation, N.V., as seller, warrants that the above condominium unit has been completed as of date hereof, and that for a period of one (1) year hereafter, provided said unit is owned by addressee, Seller will, at its own expense, repair or otherwise correct any defects (other than those being excluded) in said unit caused by defective materials or faulty workmanship incorporated into the construction of said condominium unit, and defined in Schedule A of your Earnest Money Contract.

(emphasis added). Under the terms of these documents, McCrea purchased the condominium without any type of warranty, except those listed in "Schedule A" and any express warranties given by a "subsequent written agreement."

An express warranty is created when a seller makes an affirmation of fact or a promise to the purchaser, which relates to the sale and warrants a conformity to the affirmation as promised. See Bormaster v. Henderson, 624 S.W.2d 655, 660 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). Cubilla and Fidinam, in support of the summary judgment, contend that no other express warranties were made at the time McCrea purchased the condominium.

However, McCrea makes three arguments which he contends raise a fact issue that precludes a summary judgment. First, he submits that even if the contract states that he disclaimed all express and implied warranties, the provision is void under section 17.42 of the DTPA. Second, he claims that he purchased a new condominium to which an implied warranty of habitability applied. Finally, he claims that the letter he received from Fidinam raised a fact issue as to the existence of an express warranty for the roof.

We disagree with McCrea's argument that the disclaimer in the contract is rendered unenforceable by section 17.42 of the Texas Deceptive Trade Practices Act. McCrea was free to contract with Cubilla, and took the condominium "without warranty from seller [Cubilla], express or implied." This language is sufficiently clear and free from doubt so as to constitute an agreement that McCrea waived the implied warranty of fitness created by Humber v. Morton, 426 S.W.2d 554 (Tex.1968), and also waived all express warranties. McCrea is bound by his agreement. See G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982). McCrea contends that Robichaux authorizes only the disclaimer of warranties under a contract cause of action. However, Robichaux was brought under the Texas Deceptive Trade Practices Act, and the Texas Supreme Court gave effect to the disclaimer. See also Ellmer v. Delaware Mini-Computer Systems, Inc., 665 S.W.2d 158 (Tex.App.--Dallas 1983, no writ). We hold that when a contract specifically states that no express or implied warranties are made, a cause of action for breach of express or implied warranties under either the DTPA or contract law has been waived, unless such provision is against public policy or some other statutory provision.

Because McCrea disclaimed his implied warranties, there is no issue as to whether such implied warranties existed for the purchase of a condominium converted from a used apartment, and thus, we need not consider appellant's second argument.

In appellant's third argument, he claims that a letter he received from Fidinam superseded the disclaimer of expressed warranties and showed that the...