J. Stiles, Inc. v. Evans , 1984 Tex. App. LEXIS 6918 ( 1984 )

SHUMPERT, Justice,

dissenting.

I respectfully dissent. I write to express my views on the matters addressed by the majority. I do not address the other issues raised by Stiles in points of error not discussed in the majority opinion. The majority holds that the implied warranty of quality that Humber v. Morton, 426 S.W.2d 554 (Tex.1968), extends to the sale of new houses is breached only if the house is neither constructed in a good and workmanlike manner nor is suitable for human habitation. This holding in effect means that in Texas there is no implied warranty of good and workmanlike construction independent of an implied warranty of habitability in sales of new homes.

The majority, in my view, reads far too much into the fact that the Humber court recognized an implied warranty of construction in a good and workmanlike manner and habitability. The use of the term “warranty” in the singular is by no means dispositive of the question of whether there is an implied warranty of habitability distinct from the implied warranty of workmanlike construction. The Colorado Court of Appeals, in Hoagland v. Celebrity Homes, Inc., 40 Colo.App. 215, 572 P.2d 493, 494 (1977), referred to the “implied warranty of habitability and workmanlike construction” but nonetheless affirmed an award for “breach of the builder’s implied warranty of workmanlike construction.” Mississippi has adopted the Humber formulation that there is “an implied warranty that the home was built in a workmanlike manner and is suitable for habitation.” Brown v. Elton Chalk, Inc., 358 So.2d 721, 722 (Miss.1978); Oliver v. City Builders, Inc., 303 So.2d 466, 470 (Miss.1974). Nevertheless, the Mississippi Supreme Court has recognized an independent implied warranty of good and workmanlike construction. Keyes v. Guy Bailey Homes, Inc., 439 So.2d 670, 672 (Miss.1983).¹

In addition, the cases the majority cites do not support its position. Watel v. Richman, 576 S.W.2d 779 (Tex.1978) did involve an apparent breach of the implied warranty of habitability. Thus, as the majority insists, the fact that the supreme court referred to “the implied warranties described in Humber, ...” 576 S.W.2d at 780 (emphasis added), is not decisive. Still, Watel nowhere holds or even states as dictum that there is no independent implied warrant of construction in a good and workmanlike manner when there is a sale of a new home. Nor do Gupta v. Ritter Homes, Inc., 646 S.W.2d 168 (Tex.1983); Turner v. Conrad, 618 S.W.2d 850 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.); or Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167,174 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.) support the majority's holding. Gupta is merely a case like Watel in which the warranty of habitability was the warranty at issue. Turner merely holds that the Humber warranty does not extend to “ancillary construction” such as fences. Turner, 618 S.W.2d at 853.² Anthony Industries cites Turner for this proposition. Anthony Industries and Turner do not, as the majority implies, support the proposition that the implied warranty of good and workmanlike construction of a new house extends only to items of workmanship that affect the habitability of a house.

I would hold that the relevant Texas authority dictates that there is an independent implied warranty of construction in a good and workmanlike manner in a sale of a new house. When one looks at the cases that the supreme court cited in Humber to support its position that there is an implied warranty of quality in new home sales, one finds cases asserting both an implied warranty of habitability, such as Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963) and Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474, 476 (1958), and an implied warranty of construction in a good and workmanlike manner, such as Loma Vista Development Co. v. Johnson, 177 S.W.2d 225 (Tex.Civ.App.—San Antonio 1943) (dictum), rev’d on other grounds, 142 Tex. 686, 180 S.W.2d 922 (1944) and Moore v. Werner, 418 S.W.2d 918 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ).

The dictum from Loma Vista that the supreme court quoted with approval was: “By offering the [new] house for sale as a new and complete structure appellant impliedly warranted that it was properly constructed and of good material and specifically that it had a good foundation_” Moore v. Werner concerned defects in a patio and driveway, defects which in no way could be deemed to constitute a breach of the implied warranty of habitability. See Kamarath v. Bennett, 568 S.W.2d 658, 661 (Tex.1978) (implied warranty of habitability in rental housing breached only if there are defects “in the facilities that are vital to the use of the premises for residential purposes”); also Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493, 496 (Tex.Civ.App.—Dallas 1977), writ ref’d n.r.e. per curiam, 568 S.W.2d 661, 662 (Tex.1978). The Humber court quoted with approval the Moore court’s holding that “It was the seller’s duty to perform the work in a good and workmanlike manner and to furnish adequate materials, and failing to do so, we believe the rule of implied warranty of fitness applies.” Moore v. Werner, 418 S.W.2d at 920, quoted in Humber v. Morton, 426 S.W.2d at 561.

Moore is not the only Texas decision finding an implied warranty of construction in a good and workmanlike manner in new home sales. Certain-Teed Products Corp. v. Bell, 411 S.W.2d 596, 599 (Tex.Civ.App.—Amarillo 1966), aff'd on other grounds, 422 S.W.2d 719 (Tex.1968), which concerned the sale of a new house, held that there was a “principle of implied warranty for good and workmanlike construction required of the builder regardless of whether there are written specifications....” Gibson v. John D. Campbell and Co., 624 S.W.2d 728, 733 (Tex.App.—Fort Worth 1981, no writ) (builder-vendor under duty to construct house in a good workmanlike manner, citing Humber); New Home Construction Corp. v. O’Neill, 373 S.W.2d 798, 799-800 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.) (recovery allowed for defects in material and workmanship even in absence of express warranty); Lincoln v. Pohly, 325 S.W.2d 170, 172-73 (Tex.Civ.App.—Texarkana 1959, writ ref’d n.r.e.) (failure to construct and finish house with good workmanship and good materials renders contractor liable for resulting damages). Certain-Teed has not lost its vitality in the wake of Humber. Thomas v. Atlas Foundation Co., Inc., 609 S.W.2d 302, 303-04 (Tex.Civ.App.—Fort Worth 1980, writ ref’d n.r.e.) cites Certain-Teed for the general proposition that in construction contracts there is an implied warranty of construction in a good and workmanlike manner running from the sub-contractor to the consumer.

Thomas is, unfortunately, not dispositive of the present case since the construction contract in Thomas did not involve the sale of a new house, but rather addition of a porch to a house previously constructed and bought. However, Thomas does highlight the fact that the majority opinion of the instant case would exempt builder-vendors of new homes from the general rule that construction contractors are subject to an independent implied warranty of construction in a good and workmanlike manner. Rowson v. Fuller, 230 S.W.2d 355, 357 (Tex.Civ.App.—Dallas 1950, writ ref’d n.r.e.); Metropolitan Casualty Co. of New York v. Medina Rural High School District No. 5, 53 S.W.2d 1026, 1028 (Tex.Civ. App. — San Antonio 1932, writ dism’d). I see no warrant for such an exemption.

Even before Humber, the Texas Courts of Civil Appeals had recognized an independent implied warranty of construction in a good and workmanlike manner in new home sales. The thrust of Humber was to expand the buyer’s remedies in new home sales. At best, it is implausible that Hum-ber overruled the decisions recognizing an independent implied warranty of construction in a good and workmanlike manner and placed on homebuyers the greater burden of proving breach of both the warranty of good and workmanlike construction and the warranty of habitability in order to recover. I regard Humber as an approval of those Texas cases finding an independent implied warranty of good and workmanlike construction and additionally as an adoption of the implied warranty of habitability recognized in some of the cases from other jurisdictions which the Humber court cited. I would therefore hold that a buyer of a new home may recover either for breach of the warranty of habitability or for breach of the warranty of construction in a good and workmanlike manner. I would overrule Stiles in his point of error that the majority sustains in their determination to reverse and render a take-nothing judgment against Evans.

AKIN, ROWE, SPARLING, STEWART and WHITHAM, JJ., join in the dissent.

1 . Other jurisdictions which have formulated the warranty of quality in essentially the same way as Humber but have acknowledged an independent implied warranty of construction in a good and workmanlike manner include: Connecticut, Cobum v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599, 601 (1977) (uses Humber-like language), Vemali v. Centrella, 28 Conn.Sup. 476, 266 A.2d 200, 201-04 (1970) (recognizes independent implied warranty of good and workmanlike construction); New Jersey, Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788, 789-91 (1979) (applies warranty of good and workmanlike construction), McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283, 1292 (1979) (uses Humber -like language); New York, DeRoche v. Dame, 75 A.D.2d 384, 430 N.Y.S.2d 390, 392 (1980), app. dism’d 51 N.Y.2d 821, 433 N.Y. S.2d 427, 413 N.E.2d 366 (1980) (uses Texas language), Centrella v. Holland Construction Corp., 82 Misc.2d 537, 370 N.Y.S.2d 832, 834-35 (1975) (recognizes warranty of good and workmanlike construction); Oklahoma, Jones v. Gatewood, 381 P.2d 158, 159 (Okla.1963) (uses Humber-like language); Elden v. Simmons, 631 P.2d 739 (refers to "warranties” of habitability and workmanlike construction, allows recovery for crumbling brick); Oregon, Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019, 1022 (1974) (uses Humber -like language); Beveridge v. King, 50 Or.App. 585, 623 P.2d 1132, 1133 (recognizes warranty of good and workmanlike construction); South Dakota, Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 154 N.W.2d 803, 809 (1967) (uses Humber-like language); Scott v. Wagner, 274 N.W.2d 266, 267 (S.D.1979) (allows recovery for breach of implied warranty of construction in a good and workmanlike manner). Courts in Arizona, Columbia Western Corp. v. Vela, 122 Ariz. 28, 592 P.2d 1294, 1299 (1979), and Rhode Island, Casavant v. Campopiano, 114 R.I. 24, 327 A.2d 831, 833 (1974) have referred to the implied “warranties" of habitability and workmanship. In addition, courts in a number of jurisdictions which have formulated the implied warranty of quality somewhat differently from Humber seem to have recognized an independent implied warranty of construction in a good and workmanlike manner in new home sales. These include courts in California, Pollard v. Saxe & Yolles Development Co., 12 Cal.3d 374, 15 Cal.Rptr. 648, 525 P.2d 88, 91 (1974); Florida, Schmeck v. Sea Oats Condominium Association, Inc., 441 So.2d 1092, 1097 (Dist.Ct.App. 1983); Illinois, Petersen v. Hubschman Construction Co., Inc., Ill IH.Dec. 746, 389 N.E.2d 1154, 1159-1160 (1979) (warranty of habitability construed broadly to include warranty against "defects in substance in construction”); Kentucky, Crawley v. Terhune, 437 S.W.2d 743, 745 (Ky.1969); Maine, Wimmer v. Down East Properties, Inc., 406 A.2d 88, 93 (Me.1979); Missouri, Steffens v. Paramount Properties, Inc., 667 S.W.2d 725, 111 (Mo.App.1984), Ribando v. Sullivan, 588 S.W.2d 120, 122-23 (Mo.App.1979); but see Crowder v. Vandendeale, 564 S.W.2d 879, 882 (Mo.1978) (no tort recovery for lack of ordinary care in construction by homebuilder), Lieber v. Bridges, 650 S.W.2d 688, 690 (Mo.App.1983) (evidence of unworkmanlike conduct irrelevant in implied warranty case), also Clark v. Landelco, Inc., 657 S.W.2d 634, 635-36 (Mo.App.1983); Nebraska, Henggeler v. Jindra, 191 Neb. 317, 214 N.W.2d 925, 926 (1974); North Carolina, Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776, 783 (1974), George v. Veach, 313 S.E.2d 920, 922 (Ct.App.1984); North Dakota, Carbon Homes, Inc. v. Messmer, 307 N.W.2d 564, 567 (N.D.1981); Ohio, Vanderschrier v. Aaron, 103 Ohio App. 340, 140 N.E.2d 819, 821 (1957), but see Mitchem v. Johnson, 7 Ohio St.2d 66, 218 N.E.2d 594, 598-99 (1966) (perhaps abandoning the implied warranty theory altogether); Tennessee, Dixon v. Mountain City Construction Co., 632 S.W.2d 538, 541-542 (Tenn. 1982); West Virginia, Gamble v. Main, 300 S.E.2d 110, 113, 116 n. 9 (W.Va.1983). The following states, however, seem to find habitability, in the Texas sense, an essential element of the implied warranty: Alabama, Sims v. Lewb, 374 So.2d 298, 303 (Ala.1979); but see B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671-72, 674 (1979); Idaho, Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698, 711 (1966); Indiana, Theb v. Heuer, 264 Ind. 1, 280 N.E.2d 300, 303 (1972); Michigan, Weeks v. Slavick Builders, 24 Mich.App. 621, 180 N.W.2d 503, 507 (1970), aff’d on other grounds, 384 Mich. 257, 181 N.W.2d 271 (1970) (warranty called "warranty of fitness for purpose intended”), Ramos v. Holmberg, 67 Mich.App. 470, 241 N.W.2d 253, 255 (1976) (warranty simply called "warranty of habitability”); Montana, Chandler v. Madsen, 642 P.2d 1028, 1032 (Mont.1982); Washington, House v. Thornton, 76 Wash.2d 428, 457 P.2d 199, 203 (1969).

2 . Turner also grounded its decision in the case on the fact that the “principal structure” was used and not new and on the fact that the buyers had agreed to take the property "in its present condition." Id. at 852-53.