X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The Thomases sued Carpet Mills of America when the hardwood floor they bought was scratched by their dog, even though Carpet Mills had claimed that it would resist scratches. Carpet Mills refused to pay for the repair, so the Thomases sued. The Thomases brought claims of breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, breach of an express warranty, and violations of the Texas Deceptive Trade Practices Act. Carpet Mills filed a combined traditional and no-evidence motion for summary judgment. The motion asserted that the Thomases could not establish any of their warranty claims because of a disclaimer contained on the sales invoice. Carpet Mills submitted a sales invoice for the flooring, two affidavits, a “completion of work” certificate and the summary judgment motion itself. The Thomases responded, and on Oct. 22, 2002, the trial court granted summary judgment for Carpet Mills. On Nov. 18, the trial court signed an order striking all of Carpet Mills’ summary judgment evidence, saying it was not proper summary judgment evidence. The Thomases filed a motion for new trial on Dec. 18, but this motion was denied on Feb. 13, 2003. HOLDING:Reversed and remanded. The court issues this nunc pro tunc opinion, vacating its March 9, 2004, opinion, to correct a clerical error. When the trial court struck Carpet Mills’ summary judgment evidence, all that remained was the summary judgment motion itself. As a result, there was no evidence left to establish as a matter of law the affirmative defense of disclaimer. The trial court’s grant of summary judgment on traditional grounds, then, was improper. Furthermore, because Carpet Mills failed to specifically allege which elements of the Thomases’ claims lacked supporting evidence, summary judgment on no-evidence grounds was improper, too. OPINION:Lang-Miers, J.; Bridges, FitzGerald, and Lang-Miers, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.