*** Appellants, Womco, Inc. (Womco), C.L. Hall [(Hall)] * * * appeal the trial courts order granting summary judgment in favor of Appellees, Navistar International Corporation (Navistar) * * *. We affirm in part, and reverse and remand in part. Background In 1993, the Womco Appellants purchased thirty 1993 International model 9300 tractor trucks manufactured by Navistar through Price, a
Appellants, Womco, Inc. (‘‘Womco’’), C.L. Hall [(Hall)] * * * appeal the trial court’s order granting summary judgment in favor of Appellees, Navistar International Corporation (‘‘Navistar’’) * * *. We affirm in part, and reverse and remand in part.
In 1993, the Womco Appellants purchased thirty 1993 International model 9300 tractor trucks manufactured by Navistar through Price, a dealer. Also, in 1993, the Hall Appellants purchased sixteen 1994 International model 9300 tractor trucks also manufactured by Navistar through Mahaney, another dealer. Almost immediately after the trucks were put into service, Appellants each had problems with their respective trucks’ engines overheating. As the problems occurred, Appellants took their trucks, which were still covered under warranty, to their respective dealerships for diagnoses and repairs related to the overheating problem. Although repeated attempts were made, the dealership’s mechanics were unable to correct the problem.
In June 1995, Marquess, the president of Womco, had one of the trucks inspected by an independent source, Rodieck Welding & Radiator Service (‘‘Rodieck’’). Rodieck found nothing wrong with the truck’s radiator, but replaced the core of the radiator to be certain. Rodieck also informed Marquess that the truck’s radiator appeared to be unusually small. Despite Rodieck’s efforts, the overheating problem in the Womco Appellants’ trucks continued. Soon thereafter, Marquess contacted Price and spoke to Les Miller (‘‘Miller’’), informing him that he wanted to install larger radiators in his trucks. Miller responded that Price did not make a larger radiator for that particular truck and further, that the hood of the truck would not accommodate a larger radiator. Following this conversation, Marquess had an audit conducted of the cooling system of one of the trucks in July 1995 by the Tyler Truck Center, which revealed that the trucks were overheating due to insufficient radiator capacity.
The Womco Appellants filed suit on April 23, 1997. The Hall Appellants joined the suit on or about May 22, 1997 after learning of the results of the audit. In January 2000, Appellees filed a motion for summary judgment based on their affirmative defenses of * * * disclaimer of warranty. * * * The trial court granted Appellees’ motion * * * for summary judgment. * * *
Disclaimer of Warranty
It is undisputed that Appellants’ breach of implied warranty claims as to nine trucks are not barred by limitations. However, * * * Appellees contend that such implied warranties were disclaimed. The Texas Uniform Commercial Code allows sellers to disclaim both the implied warranty of merchantability as well as the implied warranty of fitness for particular purpose. [UCC] §2.316(b), [citation]. In order to disclaim an implied warranty of merchantability in a sales transaction, the disclaimer must mention the word ‘‘merchantability.’’ The disclaimer may be oral or written, but if in writing, the disclaimer must be conspicuous. [Citation]; [UCC] §2.316(b). To disclaim an implied warranty of fitness for a particular purpose, the disclaimer must be in writing and must be conspicuous. [UCC] §2.316(b); [citation]. Whether a particular disclaimer is conspicuous is a question of law to be determined by the court. [Citation.] A term or clause is conspicuous if it is written so that a reasonable person against whom it is to operate ought to have noticed it. [UCC] §1.201(10) (Vernon Supp. 2002); [citation]. Language is ‘‘conspicuous’’ if it is in larger type or other contrasting font or color. [Citation.] Conspicuousness is not required if the buyer has actual knowledge of the disclaimer. [Citation.]
Appellants, [UCC] section 2.316(a), argue that Appellees are also required to prove the reasonableness of the disclaimers at issue. However, section 2.316(a) concerns the disclaimer of express warranties. In the instant case, Appellants have only pleaded that Appellees breached implied warranties. Thus, section 2.316(a) and its requirement of reasonableness are inapplicable.
Further, Appellants argue that Appellees were required to offer proof of the context of the purported disclaimers, contending that in order for a disclaimer of an implied warranty to be effective, the plaintiffs must have had an opportunity to examine it prior to consummation of the contract for sale. [Citation.] * * * In Dickenson, [citation], the court held that a disclaimer of an express warranty was ineffective where the buyer was not given the opportunity to read the warranty or warranties made until after the contract is signed. Although the instant case concerns a converse situation to Dickenson, the rationale applied by the Dickenson court is helpful. One of the underlying purposes of [UCC] section 2.316 is to protect a buyer from surprise by permitting the exclusion of implied warranties. [UCC] §2.316, comment 1. We fail to see how section [UCC] 2–316 can fulfill such a purpose unless a disclaimer is required to be communicated to the buyer before the contract of sale has been completed, unless the buyer afterward agrees to the disclaimer as a modification of the contract. [Citations.]
In support of their motion for summary judgment, Appellees offered six disclaimers, all of which were deposition exhibits. None of these six disclaimers is probative as to the issue of whether the disclaimer was communicated prior to the completion of the contract of sale. * * * Therefore, we hold that since Appellant failed to conclusively prove that they were entitled to judgment as a matter of law on the disclaimer issue, summary judgment was not appropriate on that issue. * * *
Accordingly, the trial court’s order granting summary judgment is reversed as to Appellants’ claims for breach of warranty * * * and is remanded to the trial court for further proceedings. As to all other claims of Appellants, the trial court’s order granting summary judgment is affirmed.
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Smith and Roberson Business Law
Authors: Richard A. Mann, Barry S. Roberts