Opinion issued December 6, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00767-CV
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DEWEY CLARK, Appellant
V.
MUSTANG MACHINERY COMPANY, LTD.
D/B/A MUSTANG CAT, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1061481-002
O P I N I O N
This is a dispute over a defective bulldozer purchased by appellant Dewey
Clark. He challenges a summary judgment rendered in favor of the seller, appellee
See TEX. R. APP. P. 47.4 (“An opinion may not be designated a memorandum
opinion if the author of a concurrence or dissent opposes that designation.”).
Mustang Machinery Company, Ltd. (doing business as Mustang Cat). On appeal,
the disputed claims involve breach of contract and breach of warranty. Clark
contends that his claims are not barred by limitations, nor was the alleged warranty
validly disclaimed. We conclude that the parties’ agreement unambiguously
disclaimed all warranties, and accordingly we affirm.
Background
Clark purchased a bulldozer from Mustang Cat in July 2011. The parties to
the sales transaction signed two documents on the same date: an “Installment Sale
Contract” and a “Purchasers Order and Security Agreement for Used Product.” The
installment contract contained a “disclaimer of warranties” provision as well as a
clause that stated that “[t]his Contract, each Schedule, any riders or addends hereto
completely states the rights of Seller and Purchaser and supersedes all prior
agreements with respect to a Unit.” On a contemporaneously signed purchasers
order, the bulldozer was described in printed language as including a “1 year / 1000
Hour Powertrain + Hydraulics Warranty,” and in handwriting as being sold “AS IS
WHERE IS.” Mustang Cat assigned the installment contract to Caterpillar Financial
Services Corporation.
Immediately, there were problems with the bulldozer, causing it to be
inoperable for extended periods of time. Between July 2011 and February 2012,
Clark returned the bulldozer for repairs on several occasions, all unsuccessful. In
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February 2013, Caterpillar Financial repossessed the bulldozer. Then in April 2015,
it sued Clark for the amount still owing. Clark, in turn, asserted third-party claims
against Mustang Cat in August 2015.
Mustang Cat moved for summary judgment on limitations grounds.
Alternatively, it also argued that there was no express warranty, the bulldozer was
sold “as is,” and the installment contract expressly disclaimed all warranties. The
trial court granted summary judgment in favor of Mustang Cat. An agreed judgment
resolved Caterpillar Financial’s claim against Clark, and this appeal ensued.
Analysis
We review the trial court’s summary judgment de novo. Mustang Cat’s
motion for summary judgment argued that Clark’s contract and warranty claims are
barred because of the disclaimer of warranties in the installment contract. The
disclaimer stated:
3. DISCLAIMER OF WARRANTIES: Purchaser has selected each
Unit based upon its own judgment. Purchaser acknowledges that each
Unit is of a size, design and type selected by Purchaser and that Seller
is not a manufacturer of the Units. SELLER MAKES NO
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THIS CONTRACT OR TO ANY UNIT. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, EACH
UNIT IS SOLD “AS IS, WHERE IS,” AND SELLER
SPECIFICALLY MAKES NO WARRANTIES AS TO THE
QUALITY OF MATERIALS OR WORKMANSHIP OR THE
CONFORMITY THEREOF TO THE PROVISIONS AND
SPECIFICATIONS OF ANY PURCHASE ORDER OR
AGREEMENT RELATING THERETO. SELLER HEREBY
EXPRESSLY DISCLAIMS, AND PURCHASER HEREBY
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WAIVES, RELEASES AND RENOUNCES, ALL OTHER
WARRANTIES AND CLAIMS EXPRESS OR IMPLIED, ARISING
BY LAW OR OTHERWISE, WITH RESPECT TO ANY UNIT OR
TO THIS CONTRACT, INCLUDING WITHOUT LIMITATION,
(A) ANY IMPLIED WARRANTY THAT ANY UNIT IS
MERCHANTABLE; (B) ANY IMPLIED WARRANTY THAT ANY
UNIT IS FIT FOR A PARTICULAR USE OR PURPOSE; (C) ANY
IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY IN TORT; (E) ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY
UNIT, FOR LOSS OF USE, REVENUE OR PROFIT WITH
RESPECT TO ANY UNIT, FOR ANY LIABILITY OF SELLER TO
ANY THIRD PARTY, OR FOR ANY OTHER DIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING
STRICT OR ABSOLUTE LIABILITY IN TORT. Seller assigns to
Purchaser its interest in any of the manufacturer’s warranties on the
Unit(s) and nothing contained herein shall be construed to deprive
Purchaser of whatever rights Purchaser may have against parties other
than Seller (such as the manufacturer of any Unit) and Purchaser agrees
to look solely to such parties with respect to any and all claims
concerning any Unit except as to ownership and title.
In response, Clark argued that the contemporaneously signed purchasers order
described the bulldozer as including a “1 year / 1000 Hour Powertrain + Hydraulics
Warranty.” On appeal, he further argues that the installment contract is not a fully
integrated agreement that effectively disclaimed the warranty expressly described in
the separate purchasers order. The integration language in the installment contract
stated: “This Contract, each Schedule, any riders or addenda hereto completely states
the rights of Seller and Purchaser and supersedes all prior agreements with respect
to a Unit.”
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On the face of these documents, there is no ambiguity. Mustang Cat
disclaimed all warranties, express or implied. The disclaimer language
acknowledged the possibility that manufacturer’s warranties may exist, so the mere
reference on the purchasers order to “1 year / 1000 Hour Powertrain + Hydraulics
Warranty,” without more, does not indicate that any such warranty was being
extended by Mustang Cat as the seller.
To the extent Clark argues for the first time on appeal that Mustang Cat
“ratified, substantiated and partly performed the warranty agreement,” these
arguments were not included in the summary-judgment response and, accordingly,
have been waived. TEX. R. CIV. P. 166a(c); TEX. R. APP. P. 33.1(a).
Conclusion
We affirm the judgment of the trial court.
PER CURIAM
Panel consists of Justices Jennings, Massengale, and Caughey.
Justice Jennings, concurring.
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