It has been more than nine months since the Texas Supreme Court held that although parties cannot disclaim the Melody Home implied warranty of good and workmanlike repair of tangible goods or property, an express warranty in their contract can supersede the implied warranty if the express warranty specifically describes the manner, performance, or quality of the services. Nonetheless, contractors performing repairs in Texas are still being sued for breaching implied warranties. Some of these claims are being pursued against contractors that failed to include express warranties in their agreements, and other lawsuits have been brought against contractors that provided insufficient detail concerning the express warranties. In Gonzales v. Southwest Olshan Foundation Repair Co., LLC, 400 S.W.3d 52 (Tex. 2013), Olshan contracted with the Plaintiff homeowner for the repair of the foundation. The foundation repair contract included a lifetime, transferrable warranty and further provided that Olshan would “perform all the necessary work in connection with this job …in a good and workmanlike manner.” Gonzales brought suit as to Olshan for, among other things, breach of an express warranty, breach of the implied warranty of good and workmanlike repairs, and DTPA violations. The jury concluded that Olshan had not breached an express warranty, but found in favor of Plaintiff on the breach of implied warranty and DTPA claims. The trial court entered judgment in favor of Gonzales for $101,000, as well as $10,127 in engineering fees and $80,000 in attorney’s fees. Olshan appealed and the court of appeals reversed, concluding that the implied warranty of good and workmanlike repairs is actionable only under the DTPA and that Gonzales’s implied warranty and DTPA claims were barred by limitations. The court of appeals did not reach Olshan’s remaining argument concerning the superseding of an implied warranty. The Supreme Court granted Gonzales’s petition for review and in doing so addressed Olshan’s previously unaddressed argument.
The Texas Supreme Court had previously addressed the implied warranty of good workmanship in new home construction in Centex Homes v. Buecher, 95 S.W.3d 266 (Tex. 2002). The Centex Court held that the implied warranty of good workmanship that attaches to a new home sale is superseded when “the parties’ agreement sufficiently describes the manner, performance or quality of construction.” Applying this standard to the Gonzales/Olshan agreement, the Court held that the implied warranty of good and workmanlike repair was superseded since “the warranty provisions specified the work Olshan was to provide (Cable Lock system foundation repair), the manner in which it was to perform (a good and workmanlike manner), and how the service would perform (no necessary adjustments for life, or, if it did, adjustment without cost to the owner).” Concluding that Plaintiff had no claim for breach of an implied warranty, and affirming the lower court decisions that denied relief for Breach of Express Warranty and DTPA violations, the Supreme Court affirmed a take nothing judgment for Plaintiff.
The Gonzalez case provides yet another example of a contractor benefitting from an agreement that was drafted with care and that was drafted for a specific contractor’s purpose. For this reason we continue to recommend that a requisite level of care be devoted to the creation and execution of all agreements for the provision of professional services.