Gilbert Kouba, Individually and as Representative of the Estate of Audrey Kouba, Karen Williams and Curtis Kouba v. Northland Industries, Inc. D/B/A Magnum Fitness , JHTNA Manufacturing, L.L.C., and Johsnon Health Tech North America, Inc.

• Court: Court of Appeals of Texas
• Decided: January 29, 2019
• Docket: 01-18-00252-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Gilbert Kouba, individually and as representative of the Estate of Audrey Kouba; Karen Williams; and Curtis Kouba v. Northland Industries, Inc. d/b/a Magnum Fitness; JHTNA Manufacturing, L.L.C.; and Johnson Health Tech North America, Inc.

Appellate case number: 01-18-00252-CV

Trial court case number: 241329-A

Trial court: 25th District Court of Colorado County

The Court requests supplemental briefing addressing:

(i) whether the language of exclusion of warranties in the Commercial Treadmill Warranty in Schedule 3.1.17(a)(i) of the Asset Purchase Agreement is effective to exclude the implied warranty of merchantability under applicable law;

(ii) whether and, if so, how the applicable enactment of either section 2-316(2) or section 2-316(3) of the Uniform Commercial Code controls this question; and

(iii) under what jurisdiction’s enactment of the Uniform Commercial Code— Wisconsin’s, Texas’s, or another’s—these questions should be answered.

The parties’ briefing, if any, is due by Friday, February 15, 2019. The previously noticed submission date of February 5, 2019, is withdrawn. The appeal will be reset for submission at a later date. See TEX. R. APP. P. 38.7, 38.9(b).

It is so ordered.

Justice’s signature: /s/ Gordon Goodman Acting individually

Date: January 29, 2019