Michael M. Buecher, Micaela T. Buecher, Harvey Duncan, Cathy Duncan, Major Donald D. Tolbert, Jr., Tammy Tolbert, Kelley Freeman and Julie Freeman v. Centex Homes, a Nevada Partnership and Centex Real Estate Corporation D/B/A Centex Homes

• Court: Court of Appeals of Texas
• Decided: March 31, 2000
• Docket: 04-99-00337-CV
• Status: Published

Opinion

DISSENTING OPINION No. 04-99-00337-CV Michael M. BUECHER, et al., Appellants v. CENTEX HOMES, et al., Appellees From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 97-CI-12270 Honorable Carol R. Haberman, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Concurring opinion by: Paul W. Green, Justice

Dissenting opinion by: Sarah B. Duncan, Justice (joined by Justice Karen Angelini)

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. López, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 31, 2000

I respectfully dissent. In the context of the implied warranties involved in this case, Robichaux survives Melody Home and remains the law that binds this court. I would therefore follow Robichaux. If Melody Home is to be extended, it is the prerogative of the Supreme Court of Texas, not this court.

"[A]n action for breach of warranty is not a creation of the [Texas Deceptive Trade Practices] Act." Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex. 1991). Therefore, to determine the nature and extent of the warranty at issue, we must refer to the source by which the warranty was created. Id. at 576-77. The warranty of habitability is a creature of the common law, created by the Texas Supreme Court in Humber v. Morton, 426 S.W.2d 554 (Tex. 1968), and, under the common law, it may be waived. G-W-L, Inc. v. Robichaux, 643 S.W.2d 392, 393 (Tex. 1982) (holding warranty was waived because disclaimer was "clear and free from doubt"); see also id. at 394-95 (Spears, J., dissenting) (advocating that the better rule would require the waiver to be in "clear and unequivocal language specifically naming the warranty that is being disclaimed").

The majority holds the implied warranty may not be waived, relying upon the reasoning in Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex. 1987). But, as the concurrence points out, Melody Home did not involve the implied warranties involved in this case. Id. (holding the implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner may not be waived and overruling Robichaux "[t]o the extent that it conflicts with this opinion"). And, unlike my colleagues, I believe we are bound by Robichaux unless and until it is overruled in material part.

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