breach of express warranty claim in Texas

2010Earlier, in National Bugmobiles, Inc. v. Jobi Properties, we concluded that no direct privity was required where an exterminator made a "perpetual, freely transferable express written warranty" knowing that the exterminated house may be sold, thus, extending the warranty to the buyers of the house. 773 S.W.2d 616, 622 (Tex. 48 App.–Corpus Christi 1989, writ denied); see U.S. Tire-Tech, Inc. v. Boeran, 110 S.W.3d 194, 198 (Tex. App.–Houston [1st Dist.] 2003, pet. denied) (op. on rehr'g) (holding in a vertical-privity-DTPA-breach-of-express-warranty case, "that [direct] privity of contract is no

2010Earlier, in National Bugmobiles, Inc. v. Jobi Properties , we concluded that no direct privity was required where an exterminator made a "perpetual, freely transferable express written warranty" knowing that the exterminated house may be sold, thus, extending the warranty to the buyers of the house. 773 S.W.2d 616, 622 (Tex. App.-Corpus Christi 1989, writ denied); see U.S. Tire-Tech, Inc. v. Boeran , 110 S.W.3d 194, 198 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (op. on rehr'g) (holding in a vertical-privity-DTPA-breach-of-express-warranty case, "that [direct] privity of contract is not

2010Earlier, in National Bugmobiles, Inc. v. Jobi Properties, we concluded that no direct privity was required where an exterminator made a "perpetual, freely transferable express written warranty" knowing that the exterminated house may be sold, thus, extending the warranty to the buyers of the house. 773 S.W.2d 616, 622 (Tex. 48 App.–Corpus Christi 1989, writ denied); see U.S. Tire-Tech, Inc. v. Boeran, 110 S.W.3d 194, 198 (Tex. App.–Houston [1st Dist.] 2003, pet. denied) (op. on rehr'g) (holding in a vertical-privity-DTPA-breach-of-express-warranty case, "that [direct] privity of contract is no

2010Earlier, in National Bugmobiles, Inc. v. Jobi Properties , we concluded that no direct privity was required where an exterminator made a "perpetual, freely transferable express written warranty" knowing that the exterminated house may be sold, thus, extending the warranty to the buyers of the house. 773 S.W.2d 616, 622 (Tex. App.-Corpus Christi 1989, writ denied); see U.S. Tire-Tech, Inc. v. Boeran , 110 S.W.3d 194, 198 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) (op. on rehr'g) (holding in a vertical-privity-DTPA-breach-of-express-warranty case, "that [direct] privity of contract is not

2020City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 63 (Tex. 2008) (rejecting the appellee’s argument that the party that prevailed in the suit could not recover on its claim for attorney’s fees when it asserted a breach of express warranty claim since a breach of express warranty claim is a claim for breach of contract). 18 The claim for common law fraud As to Harvey’s fraud claim, Harvey needed to prove that Olshan (1) made a material representation that was false, (2) knew the representation was false, (3) intended to induce Harvey to act on the representation, and that (4) she relied on th

2011We further noted that a breach of express warranty claim, while distinct from a breach of contract claim, is a “creature of contract” and is “contract-based.” Id. at 60-61 .

2006Harris Packaging Corp., 982 S.W.2d at 69 (citing Southwestern Bell Tel.

2002In Southwestern Bell Telephone Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex.1991), the supreme court noted that the “UCC recognizes that breach of contract and breach of warranty are not the same cause of action.” 3 Because Southwestern Bell noted that these two claims are distinct, the First Court of Appeals in Harris Packaging Corp. v. Baker Concrete Construction Co., 982 S.W.2d 62, 69 (Tex. App.-Houston [1st Dist] 1998, pet. denied), observed that a party could not recover attorney’s fees under a breach of express warranty claim.

2018Co. v. Watkins, 47 S.W.3d 486, 505 (Tex. 2001), this theory was not submitted to the jury.

2008See City of Waco, 108 S.W.2d at 434 (holding a manufacturer liable to the City, despite the absence of a contract between them, because a manufacturer securing the benefit of a sale to a third party and inducing purchase through representations as to its fitness and quality should not then be able to avoid the burdens of the transaction).

2004See, e.g., Schein, 102 S.W.3d at 686 (“[rjeliance is ... an element of proof of, plaintiffs’ claims of breach of express warranty (to a certain extent)”); U.S. Tire-Tech, 110 S.W.3d at 200 (collecting cases from multiple jurisdictions holding that notice is a condition precedent to a breach of express warranty claim).

2004See, e.g., Speed Fastners, Inc. v. Newsom, 382 F.2d 395, 397, 399-400 (10th Cir.1967) (sale of stud fasteners; plaintiff not entitled to recover in breach of express warranty where no evidence that plaintiff’s employer relied on statements in seller’s pamphlet before *676 purchase); DiIenno v. Libbey Glass Div., Owens-Ill., Inc., 668 F.Supp. 373, 376 (D.De.1987) (reliance required to assert express warranty claim under Delaware UCC); Global Truck & Equip.

2004Co., 55 Ala.App. 525 , 317 So.2d 493, 497 (1975), cert. denied, 294 Ala. 775 , 317 So.2d 500 (1975) (sale of mobile home; unnecessary to show “any particular reliance” by purchaser even though purchaser did not physically receive written copy of the warranty and was unaware of its existence); Torres v. Northwest Eng’g Co., 86 Hawaii 383 , 949 P.2d 1004, 1013 (Ct.App.1997) (“reliance is not an essential element of a breach of express warranty claim under the UCC”); Hawkins Constr.

2004Co., 55 Ala.App. 525 , 317 So.2d 493, 497 (1975), cert. denied, 294 Ala. 775 , 317 So.2d 500 (1975) (sale of mobile home; unnecessary to show “any particular reliance” by purchaser even though purchaser did not physically receive written copy of the warranty and was unaware of its existence); Torres v. Northwest Eng’g Co., 86 Hawaii 383 , 949 P.2d 1004, 1013 (Ct.App.1997) (“reliance is not an essential element of a breach of express warranty claim under the UCC”); Hawkins Constr.

2004Co. v. Matthews Co., 190 Neb. 546 , 209 N.W.2d 643, 654-55 (1973) (sale of scaffolding; express warranty created even if buyer did not rely on statements in seller’s brochure), overruled on other grounds by Nat’l Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782 , 332 N.W.2d 39 (1983); Daughtrey v. Ashe, 243 Va. 73 , 413 S.E.2d 336, 338-39 (1992) (“basis of the bargain” does not establish “a buyer’s reliance requirement”; “We conclude from the language used in Code § 8.2-313 and the Official Comment thereto that the drafters of the Uniform Commercial Code intended to modify the traditional requ

2004Co. v. Matthews Co., 190 Neb. 546 , 209 N.W.2d 643, 654-55 (1973) (sale of scaffolding; express warranty created even if buyer did not rely on statements in seller’s brochure), overruled on other grounds by Nat’l Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782 , 332 N.W.2d 39 (1983); Daughtrey v. Ashe, 243 Va. 73 , 413 S.E.2d 336, 338-39 (1992) (“basis of the bargain” does not establish “a buyer’s reliance requirement”; “We conclude from the language used in Code § 8.2-313 and the Official Comment thereto that the drafters of the Uniform Commercial Code intended to modify the traditional requ

2004Co., 55 Ala.App. 525 , 317 So.2d 493, 497 (1975), cert. denied, 294 Ala. 775 , 317 So.2d 500 (1975) (sale of mobile home; unnecessary to show “any particular reliance” by purchaser even though purchaser did not physically receive written copy of the warranty and was unaware of its existence); Torres v. Northwest Eng’g Co., 86 Hawaii 383 , 949 P.2d 1004, 1013 (Ct.App.1997) (“reliance is not an essential element of a breach of express warranty claim under the UCC”); Hawkins Constr.

2004Co., 55 Ala.App. 525 , 317 So.2d 493, 497 (1975), cert. denied, 294 Ala. 775 , 317 So.2d 500 (1975) (sale of mobile home; unnecessary to show “any particular reliance” by purchaser even though purchaser did not physically receive written copy of the warranty and was unaware of its existence); Torres v. Northwest Eng’g Co., 86 Hawaii 383 , 949 P.2d 1004, 1013 (Ct.App.1997) (“reliance is not an essential element of a breach of express warranty claim under the UCC”); Hawkins Constr.

2004See, e.g., Speed Fastners, Inc. v. Newsom, 382 F.2d 395, 397, 399-400 (10th Cir.1967) (sale of stud fasteners; plaintiff not entitled to recover in breach of express warranty where no evidence that plaintiff’s employer relied on statements in seller’s pamphlet before *676 purchase); DiIenno v. Libbey Glass Div., Owens-Ill., Inc., 668 F.Supp. 373, 376 (D.De.1987) (reliance required to assert express warranty claim under Delaware UCC); Global Truck & Equip.

2004Co. v. Matthews Co., 190 Neb. 546 , 209 N.W.2d 643, 654-55 (1973) (sale of scaffolding; express warranty created even if buyer did not rely on statements in seller’s brochure), overruled on other grounds by Nat’l Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782 , 332 N.W.2d 39 (1983); Daughtrey v. Ashe, 243 Va. 73 , 413 S.E.2d 336, 338-39 (1992) (“basis of the bargain” does not establish “a buyer’s reliance requirement”; “We conclude from the language used in Code § 8.2-313 and the Official Comment thereto that the drafters of the Uniform Commercial Code intended to modify the traditional requ

2004Co. v. Matthews Co., 190 Neb. 546 , 209 N.W.2d 643, 654-55 (1973) (sale of scaffolding; express warranty created even if buyer did not rely on statements in seller’s brochure), overruled on other grounds by Nat’l Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782 , 332 N.W.2d 39 (1983); Daughtrey v. Ashe, 243 Va. 73 , 413 S.E.2d 336, 338-39 (1992) (“basis of the bargain” does not establish “a buyer’s reliance requirement”; “We conclude from the language used in Code § 8.2-313 and the Official Comment thereto that the drafters of the Uniform Commercial Code intended to modify the traditional requ

2002See also Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 897 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

2002In Southwestern Bell Telephone Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex.1991), the supreme court noted that the “UCC recognizes that breach of contract and breach of warranty are not the same cause of action.” 3 Because Southwestern Bell noted that these two claims are distinct, the First Court of Appeals in Harris Packaging Corp. v. Baker Concrete Construction Co., 982 S.W.2d 62, 69 (Tex. App.-Houston [1st Dist] 1998, pet. denied), observed that a party could not recover attorney’s fees under a breach of express warranty claim.