PPG Industries, Inc. v. JMB/Houston Centers Partners Ltd. Partnership

146 S.W.3d 79, 47 Tex. Sup. Ct. J. 822, 54 U.C.C. Rep. Serv. 2d (West) 166, 2004 Tex. LEXIS 658, 2004 WL 1533274
CourtTexas Supreme Court
DecidedJuly 9, 2004
Docket01-0346
StatusPublished
Cited by327 cases

This text of 146 S.W.3d 79 (PPG Industries, Inc. v. JMB/Houston Centers Partners Ltd. Partnership) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PPG Industries, Inc. v. JMB/Houston Centers Partners Ltd. Partnership, 146 S.W.3d 79, 47 Tex. Sup. Ct. J. 822, 54 U.C.C. Rep. Serv. 2d (West) 166, 2004 Tex. LEXIS 658, 2004 WL 1533274 (Tex. 2004).

Opinions

Justice BRISTER

delivered the opinion of the Court,

in which Chief Justice PHILLIPS, Justice HECHT, Justice OWEN and Justice WAINWRIGHT joined.

JMB/Houston Centers Partners obtained a judgment of more than $17 million for deceptive acts and warranty breaches that a jury found had been committed by PPG Industries, Inc. But as the two corporations had no direct business dealings, none of the claims stemmed from transactions between them. Instead, JMB’s suit relied on warranty and DTPA claims received by assignment from its predecessor in interest.

The court of appeals affirmed the judgment, joining several other courts that have held or assumed DTPA claims are assignable;1 a few other opinions suggest they are not.2 We granted the petition in this case to decide the matter.

We hold that assigning DTPA claims would defeat the primary purpose of the statute — to encourage individual consumers to bring such claims themselves. Additionally, we find the personal and punitive aspects of DTPA claims cannot be squared with a rule allowing them to be assigned as if they were mere property.

We also conclude the trial court erred in holding that JMB’s five-year-warranty claim was not barred by limitations, and that its twenty-year-warranty claim was a [83]*83basis of the parties’ bargain as a matter of law. Accordingly, we reverse the judgment, and remand for a new trial of the latter claim alone.

I. Background

One Houston Center, a forty-six-story skyscraper in downtown Houston, was completed in April 1978 and originally owned by Houston Center Corporation (HCC). The exterior included more than 12,000 Twindows, a dual-pane glass window unit manufactured and installed by PPG. Twindows were chosen for their insulating ability and color, which blended with other buildings in the Houston Center complex.

By July of 1982, a large number of the Twindows showed fogging and discoloration. At HCC’s request, PPG manufactured and installed replacements for one-fourth of the building’s windows pursuant to a contractual warranty. The replacement project took more than two years.

Several years later, HCC entered negotiations to sell One Houston Center to JMB. During its due diligence, JMB learned of the earlier window problems, and that to a limited extent they continued. When JMB inquired whether any warranties still applied, PPG replied that all had expired.

JMB bought the building “as is” in December 1989 as part of a $375 million purchase. HCC assigned to JMB all warranties relating to the building, and JMB waived all DTPA claims against HCC.

When extensive Twindows problems appeared in 1991, JMB sued PPG for violating the DTPA and breaching warranties issued to HCC. A jury found for JMB on all claims, assessing the cost to replace every Twindow in the building with comparable but nondefective window units at $4,745,037. The trial court trebled the award under the mandatory provisions of the 1973 DTPA,3 and after a bench trial awarded another $1,716,181 in attorney fees.

II. Assignment of DTPA Claims

A

PPG first attacks the DTPA award, asserting that DTPA claims cannot be assigned. To determine whether DTPA claims are assignable, we look first to the words of the statute.

The sale of Twindows was a sale of goods, and thus subject to the warranty provisions of Chapter 2 of the Texas Business and Commerce Code (the UCC).4 Chapter 17 of the same Code (the DTPA) allows consumers to bring breach of warranty claims under that chapter as well.5 Thus, a consumer may choose to bring warranty claims under either chapter, or both as JMB did here.

[84]*84The purposes and provisions of the UCC and the DTPA are, of course, not the same; otherwise, there would have been no need for both. The primary difference relevant here is that the UCC expressly provides that warranty claims are assignable,6 while the DTPA says nothing about assignment.

A statute’s silence can be significant.7 When the Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended.8 If so, we must honor that difference.9

Of course, legislatures do not always mean to say something by silence. Legislative silence may be due to mistake, oversight, lack of consensus, implied delegation to courts or agencies, or an intent to avoid unnecessary repetition. But we must at least begin our analysis by noting that the Legislature clearly knew how to indicate that warranty claims were assignable, but did not do so in the DTPA.

B

In some cases of statutory’ silence, we have looked to the statute’s purpose for guidance.10 Accordingly, we next look to the purposes of the DTPA to determine whether assignment of claims is consistent with its goals.

The DTPA’s primary goal was to protect consumers by encouraging them to bring consumer complaints:

This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.11

While the DTPA allows the attorney general to bring consumer protection actions,12 one of the statute’s primary purposes is to encourage consumers themselves to file their own complaints:

[The Legislature] provided for the recovery of attorney’s fees under the Deceptive Trade Practices Act, as encouragement to those abused by certain proscribed conduct to avail themselves [85]*85of the remedies of the Act.13
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[0]ne purpose of the DTPA’s treble damages provisions is to encourage privately initiated consumer litigation, reducing the need for public enforcement.14
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[T]he legislative intent [was] to encourage aggrieved consumers to seek redress and to deter unscrupulous sellers who engage in deceptive trade practices.15

Making DTPA claims assignable would have just the opposite effect: instead of swindled consumers bringing their own DTPA claims, they will be brought by someone else.

The Legislature did not intend the DTPA for everybody. It limited DTPA complaints to “consumers,”16 and excluded a number of parties and transactions from the DTPA, including claims by businesses with more than $25 million in assets,17 and certain claims in which consumers were represented by legal counsel.18 If DTPA claims can be assigned, a party excluded by the statute (such as JMB here) could nevertheless assert DTPA claims by stepping into the shoes of a qualifying assign- or.

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146 S.W.3d 79, 47 Tex. Sup. Ct. J. 822, 54 U.C.C. Rep. Serv. 2d (West) 166, 2004 Tex. LEXIS 658, 2004 WL 1533274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ppg-industries-inc-v-jmbhouston-centers-partners-ltd-partnership-tex-2004.