Wilcox v. Hillcrest Mem'l Park of Dallas, 696 S.W.2d 423 (Tex. App. 1985). · Go Syfert
Wilcox v. Hillcrest Mem'l Park of Dallas, 696 S.W.2d 423 (Tex. App. 1985). Cases Citing This Book View Copy Cite
30 citation events (26 in the last 25 years) across 11 distinct courts.
Strongest positive: Elmazouni v. Mylan, Inc. (txnd, 2016-12-01) · Strongest negative: Seaside Resorts, Inc. v. Club Car, Inc. (scctapp, 1992-03-30)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 16 distinct citers.
cited Cited "but see" Seaside Resorts, Inc. v. Club Car, Inc.
S.C. Ct. App. · 1992 · signal: but see · confidence high
But see, contra, Wilcox v. Hillcrest Memorial Park of Dallas, 696 S.W. (2d) 423 (Tex. Civ.
cited Cited as authority (rule) Elmazouni v. Mylan, Inc.
N.D. Tex. · 2016 · confidence medium
Wilcox v. Hillcrest Memorial Park of Dallas, 696 S.W.2d 423, 424 (Tex. App.-Dallas 1985, writ ref d n.r.e.).
discussed Cited as authority (rule) Adams v. Boston Scientific Corp.
S.D.W. Va · 2016 · confidence medium
Code Ann. § 2.607 ; see also Ackermann v. Wyeth Pharm., 471 F.Supp.2d 739, 745 (E.D.Tex.2006), aff'd, 526 F.3d 203 (5th Cir.2008) (“[T]he Court agrees that to maintain the claim for breach of warranty, notice was required.”); Wilcox v. Hillcrest Mem’l Park, 696 S.W.2d 423, 424-25 (Tex.App.1985) (“[Section 2.607(c)(1) requires that a buyer notify any seller ... of' the product’s alleged defect within a reasonable time of discovering the , defect and that failure to do so bars the buyer from any remedy for breach of warranty under the Texas Business & Commerce Code.”).
discussed Cited as authority (rule) Thomas Mckay v. Novartis Pharmaceutical Cor (2×)
5th Cir. · 2014 · confidence medium
Boeran, 110 S.W.3d at 201-02 ; Wilcox v. Hillcrest Memorial Park of Dali., 696 S.W.2d 423, 424-25 (Tex.App.-Dallas 1985, writ refd n.r.e) (“It would be untenable to allow a buyer, such as Wilcox, to recover damages for breach of warranty from a remote seller or manufacturer who was never even made aware that the product in question was defective and who, consequently, never had an opportunity to remedy the defect to the buyer’s satisfaction before litigation was commenced or even to inspect the product to ascertain if indeed a defect existed.”).
cited Cited as authority (rule) In Re Mirapex Products Liability Litigation
D. Minnesota · 2010 · confidence medium
Tex. Bus. & Comm.Code § 2.607(c)(1); see U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 199 (Tex.App.2003); Wilcox v. Hillcrest Mem'l Park of Dallas, 696 S.W.2d 423, 425 (Tex.App.1985).
cited Cited as authority (rule) Gazal v. Boehringer Ingelheim Pharmaceuticals
D. Minnesota · 2010 · confidence medium
Tex. Bus. & Comm.Code § 2.607(c)(1); see U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 199 (Tex.App.2003); Wilcox v. Hillcrest Mem’l Park of Dallas, 696 S.W.2d 423, 425 (Tex.App.1985).
cited Cited as authority (rule) Ketter v. ESC Medical Systems, Inc.
Tex. App. · 2005 · confidence medium
Park, 696 S.W.2d 423, 425 (Tex.App.-Dallas 1985), writ ref'd n.r.e., 701 S.W.2d 842 (Tex. 1986) (per curiam).
cited Cited as authority (rule) Enpro Systems, Ltd. v. Namasco Corp.
S.D. Tex. · 2005 · confidence medium
Wilcox v. Hillcrest Memorial Park of Dallas, 696 S.W.2d 423, 424-25 (Tex.App.—Dallas 1985, writ ref'd n.r.e).
discussed Cited as authority (rule) Compaq Computer Corp. v. Lapray
Tex. · 2004 · confidence medium
For example, in Wilcox v. Hillcrest Memorial Park of Dallas, the court held that section 2.607(c)(1) “requires that a buyer notify any seller, including a remote seller such as the manufacturer, of the product’s alleged defect within a reasonable time of discovering the defect and that failure to do so bars the buyer from any remedy for breach of warranty under the Texas Business & Commerce Code.” 14 Wilcox, 696 S.W.2d 423, 424-25 (Tex.App.-Dallas 1985, writ ref'd n.r.e.); accord U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 199 (TexApp.-Houston [1st Dist.] 2003, pet. denied) (re…
examined Cited as authority (rule) U.S. Tire-Tech, Inc./Custom Blending International v. Boeran, B v. (3×) also: Cited "see"
Tex. App. · 2003 · confidence medium
Wilcox v. Hillcrest Mem’l Park of Dallas , 696 S.W.2d 423, 424-25 (Tex. App.—Dallas 1985), writ ref’d n.r.e. per curiam , 701 S.W.2d 842 (Tex. 1986).
discussed Cited as authority (rule) In Re Air Bag Products Liability Litigation
E.D. La. · 1998 · confidence medium
Park of Dallas, 696 S.W.2d 423, 425 (Tex.App.1985) ("Because [plaintiff] failed to notify [defendant manufacturer] of the alleged defect in the casket within a reasonable time after it was discovered, ... [plaintiff's] breach of warranty action against [manufacturer] was barred as a matter of law."), aff'd, 701 S.W.2d 842 (Tex.1986).
cited Cited as authority (rule) Miller v. Spencer
Tex. App. · 1987 · confidence medium
Wilcox v. Hillcrest Memorial Park of Dallas, 696 S.W.2d 423, 424 (Tex.App. — Dallas 1985), writ ref'd n.r.e. per curiam, 701 S.W.2d 842 (Tex.1986).
discussed Cited "see" Gabriel Barocio and Elisabeth Barocio v. General Electric Company and Randy Britt, D/B/A Britt Heating & Air
Tex. App. · 2014 · signal: see · confidence high
See U.S. Tire-Tech, Inc. v. Boeran, 110 S.W.3d 194, 198 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (section 2.607(c)(1) requires a buyer 8 to notify a remote manufacturer or be barred from recovery) (citing Wilcox v. Hillcrest Mem’l Park of Dallas, 696 S.W.2d 423, 424-25 (Tex. App.—Dallas 1985), writ ref’d n.r.e., 701 S.W.2d 842 (Tex. 1996) (per curiam)).
discussed Cited "see" McKay v. Novartis Pharmaceuticals Corp. (2×)
W.D. Tex. · 2013 · signal: see · confidence high
See Wilcox v. Hillcrest Mem’l Park of Dallas, 696 S.W.2d 423, 424-25 (Tex.App.-Dallas 1985), writ ref’d per curiam, 701 S.W.2d 842 (Tex. 1986); see also U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 199 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Bailey v. Smith, No. 13-05-085-CV, 2006 WL 1360846 , at *4-5 (Tex.App.-Corpus Christi 2006); cf. Vintage Homes, Inc. v. Coldiron, 585 S.W.2d 886, 888 (Tex.App.-El Paso 1979, no writ) (holding the notice requirement applies only between buyer and immediate seller). .
cited Cited "see" Martha Ibarra v. F.A. Nunnelly Company and National Construction Rentals, Inc. A/K/A National Rent-A-Fence
Tex. App. · 2006 · signal: see · confidence high
See Wilcox v. Hillcrest Memorial Park of Dallas , 696 S.W.2d 423, 424-25 (Tex. 1985) (holding that the failure to provide notice under Section 2.607 bars any remedy).
cited Cited "see" Ibarra v. National Construction Rentals, Inc.
Tex. App. · 2006 · signal: see · confidence high
See Wilcox v. Hillcrest Memorial Park of Dallas, 696 S.W.2d 423, 424-25 (Tex.1985) (holding that the failure to provide notice under Section 2.607 bars any remedy).
Jack B. WILCOX, Appellant,
v.
HILLCREST MEMORIAL PARK OF DALLAS, Service Corporation International, Inc., D/B/A Sparkman-Hillcrest Funeral Home, and Batesville Casket Company, Inc., Appellees
05-84-00492-CV.
Court of Appeals of Texas.
Jul 8, 1985.
696 S.W.2d 423
William Clifford Couch, Dallas, for appellant., Sidney H. Davis, Jr., Dallas, for Bates-ville., Gerald R. Powell and Lyle H. Jeanes, II, Dallas, for Hillcrest Memorial Park., Stephen C. Schoettmer, Dallas, for Service Corp.
Akin, Whitham, McClung.
Cited by 22 opinions  |  Published
AKIN, Justice.

Jack B. Wilcox appeals from a take-nothing judgment rendered after a jury trial in his suit against Batesville Casket Company, Inc. [1] Wilcox sued Batesville alleging a breach of warranty in connection with the sale of a certain “sealer”-type casket purchased from Sparkman-Hillcrest Funeral Home (“Sparkman”) by Wilcox and manufactured by Batesville. The question presented is whether TEX.BUS. & COM. CODE ANN. § 2.607(c)(1) (Vernon 1968) requires that a buyer notify a remote seller of an alleged breach of warranty or be barred from any remedy for breach of warranty under the Code. We hold that it does and, accordingly, affirm the judgment of the trial court as to Batesville.

The jury, by its answers to special issues, found that the casket manufactured by Batesville was unfit for ordinary purposes and that the casket’s unfit condition was a proximate cause of the occurrence in question. The jury also found, however, that Wilcox failed to notify Batesville of the casket’s unfit condition within a reasonable time. The trial court expressly noted in its judgment that Wilcox’s failure to give notice to Batesville barred Wilcox’s breach of warranty claim against Batesville. Accordingly, the trial court rendered judgment that Wilcox take nothing against Bates-ville.

Wilcox contends on appeal that the trial court erred in overruling his objection to the submission of the special issue inquiring whether Wilcox notified Batesville of the alleged defect in the casket within a reasonable time after discovering the defect. Wilcox asserts that the court erred in

submitting this issue because notice to Batesville, the manufacturer of the allegedly defective casket, was not required as a matter of law. We disagree. Section 2.607(c)(1) of the Texas Business and Commerce Code provides:

Where a tender has been accepted
(1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy[.]

Wilcox argues that section 2.607(c)(1) requires that Wilcox give notice only to his immediate seller, Sparkman, and not to the remote manufacturer, Batesville.

We cannot agree with Wilcox’s contention. To hold as he would have us do would frustrate the purpose underlying the notice requirement of section 2.607. The buyer is required to notify the seller that a breach of warranty has occurred in order to give the seller an opportunity to inspect the product to determine whether it was defective and to allow the seller an opportunity to cure the breach, if any. See City of Marshall, Texas v. Bryant Air Conditioning, 650 F.2d 724, 727 (5th Cir. 1981); Southwest Lincoln-Mercury, Inc. v. Ross, 580 S.W.2d 2, 5 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.); Import Motors, Inc. v. Matthews, 557 S.W.2d 807, 809 (Tex.Civ.App. —Austin 1977, writ ref’d n.r.e.). It would be untenable to allow a buyer, such as Wilcox, to recover damages for breach of warranty from a remote seller or manufacturer who was never even made aware that the product in question was defective and who, consequently, never had an opportunity to remedy the defect to the buyer’s satisfaction before litigation was commenced or even to inspect the product to ascertain if indeed a defect existed. We hold, therefore, that section 2.607(e)(1) requires that a buyer notify any seller, including a remote seller such as the manufacturer, of the product’s alleged defect within a reasonable time of discovering the defect and that failure to[*425] do so bars the buyer from any remedy for breach of warranty under the Texas Business & Commerce Code.

Wilcox argues, however, that Vintage Homes, Inc. v. Coldiron, 585 S.W.2d 886 (Tex.Civ.App.—El Paso 1979, no writ), supports his position. That court stated that “the notice requirement of section 2.607 applies only as between a buyer and his immediate seller.” Vintage Homes, 585 S.W.2d at 888. We expressly disagree with the El Paso court’s interpretation of section 2.607. We note that that court’s conclusion was based on a commentary which discussed a version of section 2.607 that differed in an important respect from the version enacted into Texas law as TEX. BUS. & COM.CODE § 2.607(c)(1). The version discussed by that commentary required that the buyer give note to “his” seller, while the Texas version of section 2.607(c)(1) requires that notice be given to “the” seller. We further note that at least one Texas court has viewed section 2.607 as requiring that a buyer notify a remote seller, such as the manufacturer of the product, prior to suing that seller for breach of warranty. See Melody Home Manufacturing Co. v. Morrison, 502 S.W.2d 196 (Tex.Civ.App.— Houston [1st Dist.] 1973, writ ref’d n.r.e.). Moreover, courts in other jurisdictions have held that the notice requirement of section 2.607 applies to a buyer’s remote seller as well as to his immediate seller. See Cotner v. International Harvester Co., 260 Ark. 885, 545 S.W.2d 627 (1977); Branden v. Gerbie, 62 Ill.App.3d 138, 379 N.E.2d 7 (1978); Parrillo v. Giroux Co., Inc., 426 A.2d 1313 (R.I.1981); Western Equipment Co., Inc. v. Sheridan Iron Works, Inc., 605 P.2d 806 (Wyo.1980).

We conclude that, in the instant case, the trial court properly submitted to the jury the special issue which inquired whether Wilcox notified Batesville of the alleged defect in the casket within a reasonable time after discovering the defect. The jury found that Wilcox did not so notify Batesville. Accordingly, we hold that because Wilcox failed to notify Batesville of the alleged defect in the casket within a reasonable time after it was discovered, as required by TEX.BUS. & COM.CODE § 2.607(c)(1), Wilcox’s breach of warranty action against Batesville was barred as a matter of law. Consequently, we affirm the trial court's judgment as to Batesville.

Affirmed.

1

. We have disposed of Wilcox’s points with respect to the other appellees in a separate unpublished opinion.