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Click here for the full text of this decision FACTS:After the suicide death of Rolando Domingo Montez while in custody in the Port Isabel City Jail, appellees, Pearl Iriz Garza, individually and on behalf of the Estate of Rolando Domingo Montez, Deceased, and Belinda Leigh Camacho, individually and as next friend of Rolando Kadric Montez, a minor child, filed suit against JCW Electronics, Inc. (JCW), alleging negligence, breach of express and implied warranties, strict liability and misrepresentation. In accordance with its contract to provide telephone service for the Port Isabel City Jail, JCW had installed a coinless telephone inside each jail cell so inmates could make collect calls. While in custody, Rolando Domingo Montez was found dead, hanging from the cord of the telephone that JCW had installed in Cell No. 1. A jury found in favor of appellees on questions of negligence, misrepresentation and breach of implied warranty of fitness. The jury found damages for Garza and the minor child, but found no damages for Camacho in her individual capacity. Appellees filed a motion for judgment notwithstanding the verdict, asking the trial court to disregard certain inconsistent jury answers and render judgment against JCW for breach of contract and fraud. The trial court granted the motion and rendered judgment as requested by appellees. The trial court also rendered judgment for the damages found by the jury and awarded appellees their attorneys’ fees, guardian ad litem fees and costs. JCW appealed. HOLDING:The court modifies the judgment, and as modified, affirms. JCW asserts that a cause of action for breach of contract was not pleaded, not submitted to the jury and not tried by consent. Therefore, JCW argues, the trial court erred in rendering a judgment for appellees for breach of contract. Because breach of contract and breach of warranty are separate and distinct causes of action, the court rejects appellees’ assertion that the pleading and submission of one constitutes the pleading and submission of the other. The court finds nothing in the pleadings that would indicate to JCW that appellees had an intention to pursue a separate cause of action for breach of contract. Because no element of a cause of action for breach of contract was present, the court holds that JCW was not obligated to file special exceptions. The court also holds that appellees’ failure to request or submit any element of that cause of action to the jury prevents any implication that the issue was tried by consent. JCW also asserts that a cause of action for fraud was not pleaded, not submitted to the jury, and not tried by consent. JCW also asserts that whether or not appellees successfully pleaded fraud, they are nonetheless barred from recovering any damages under the Texas Proportionate Responsibility Statute, Chapter 33 of the Texas Civil Practice and Remedies Code, which provides that “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.” The jury found that 60 percent of the responsibility for the death of Rolando Montez was attributable to him. Neither party challenges this finding. Therefore, the court reasons, even if appellees successfully pleaded fraud as a cause of action, because it is a claim based in tort subject to the statute, appellees are barred from recovering damages based on their fraud claim. But appellees urge that regardless of the validity of the causes of action for breach of contract and fraud, the judgment should be affirmed based on the jury’s finding that JCW breached the implied warranty of fitness for a particular purpose. JCW asserts that appellees’ case sounded in tort because it was based on personal injuries. Thus, JCW argues, recovery is barred by chapter 33 because the jury found that Montez was more than 50 percent responsible for his death. The court notes that chapter 33 does not explicitly address its applicability in Uniform Commercial Code cases. The court finds that, given the nature of UCC Article 2 as a complete, integrated legal framework governing sales of products, and the supreme court’s refusal to apply comparative liability statutes to UCC Article 2, any extension of chapter 33′s proportionate responsibility scheme to UCC Article 2 could potentially disrupt and override “the UCC’s express purpose of furthering uniformity among the states.” Accordingly, the court declines to extend chapter 33 to appellees’ breach of implied warranty claim and the court holds that appellees’ cross-issue is sustained. In conclusion, the court reverses the trial court’s award of attorneys’ fees, award of costs in the amount of $3,175.47 for expert witness travel and per diem expenses, and award of costs in the amount of $2,064.75 for photocopying. The court modifies the judgment of the trial court to reflect that it is being rendered in favor of appellees for their breach of implied warranty of fitness for a particular purpose cause of action and modifies the judgment of the trial court to reflect the award of costs in the proper amount of $14,315.03. As modified, the judgment of the trial court is affirmed. OPINION:Federico G. Hinojosa, J.; Valdez, C.J., Hinojosa and Castillo, JJ.

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