"It is not essential that the buyer's notification of a defective product specifically set forth in detail every objection the buyer has to the fitness of the product; it is only necessary that the seller be informed that there is a claimed breach of the warranty of fitness." Lochinvar, 930 S.W.2d at 189-90 (citing Carroll Instrument Co. v. B.W.B. Controls Inc., 677 S.W.2d 654, 657 (Tex. App. - Houston [1st Dist.] 1984, no writ)); see also Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 976 (5th Cir. 1976). Pursuant to Comment 4 to § 2.607, "the notification must 'be sufficient to let the seller know that the transaction is still troublesome and must be watched' and, at the same time, 'be such as informs the seller that the transaction is claimed to involve a breach'" and thereby allow for "settlement through negotiation."
Moreover, statements of counsel in a hearing can constitute judicial admissions. See Carroll Instr. Co. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 659 (Tex.App. — Houston [1st Dist.] 1984, no writ) (counsel's statement constituted judicial admission); see also Int'lPiping Sys., Ltd v. M.M. White Assocs., Inc., 831 S.W.2d 444, 449 (Tex.App. — Houston [14th Dist.] 1992, writ denied) (party may not challenge sufficiency of evidence on issue which counsel informed the jury was not disputed). Judicial admissions conclusively establish the facts stated and thus relieve the opposing party of the necessity of proving the admitted facts.
It is not essential that the buyer's notification of a defective product specifically set forth in detail every objection the buyer has to the fitness of the product; it is only necessary that the seller be informed that there is a claimed breach of the warranty of fitness. Carroll Instrument Co. v. B.W.B. Controls Inc., 677 S.W.2d 654, 657 (Tex.App.-Houston [1st Dist.] 1984, no writ). A general expression of the buyer's dissatisfaction may be sufficient to comply with section 2.607. See Melody Home Mfg. Co. v. Morrison, 502 S.W.2d 196, 203 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref'd n.r.e.). Ordinarily, notice is a question of fact to be determined by the trier of fact. It becomes a question of law only where there is no room for ordinary minds to differ about the proper conclusion to be drawn from the evidence.
Where the evidence is conflicting, it is the function of the fact finder to weigh that evidence and determine the truth. Carroll Instrument Co. v. B.W.B. Controls, 677 S.W.2d 654, 657 (Tex.App. — Houston [1st Dist.] 1984, no writ). The reviewing court is bound by those findings.
Notice is ordinarily a question of fact and becomes a question of law "only where there is no room for ordinary minds to differ about the proper conclusion to be drawn from the evidence." Palmco Corp. v. American Airlines, Inc., 983 F.2d 681, 685 (5th Cir. 1993) (citing Carroll Instrument Co. v. B.W.B. Controls, 677 S.W.2d 654, 657 (Tex.App.-Houston [1st Dist.] 1984) no writ). In the instant case, the district court held that, due to Signal's alleged attempts to disguise the liners as GE products, Ameristar's notice was timely as a matter of law.
We decide, rather than remand, the issue of whether American gave proper notice to Palmco, because the issue is a matter of law based upon the undisputed facts of this case. See Carroll Instrument Co. v. B.W.B. Controls, 677 S.W.2d 654, 657 (Tex.App. — Houston [1st Dist.] 1984, no writ) (providing notice may become a question of law, "where there is no room for ordinary minds to differ as to the proper conclusions to be drawn from the evidence"). Palmco argues that American's notice of Palmco's breach of contract for late deliveries was inadequate.
Notice need not "set forth in detail every objection the buyer has to the fitness of the product." Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 189 (Tex. App. 1996) (citing Carroll Instrument Co. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 657 (Tex. App. 1984)). Rather, the manufacturer need only "be made aware of a problem with a particular product purchased by a particular buyer."
Consequently, little more is required than for the claimant to indicate that there is a problem with the warranted product that is severe enough to potentially constitute a breach. See, e.g., Carroll InstrumentCo., Inc. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 657-58 (Tex. Ct. App. 1984) (holding that where claimant complained of a "problem," and showed Defendant a rusty part, the requirement of notice was satisfied for a claim of breach of the warranty of fitness). In this case, Plaintiff identified the specific way in which Lamisil allegedly harmed her, sent over voluminous documentation of her injury, and explicitly threatened suit over the allegedly defective nature of the product.
Where, as here, "there is no room for ordinary minds to differ as to the proper conclusions to be drawn from the evidence" on notice, the issue of notice is a question of law properly resolved in the context of a motion to dismiss. Carroll Instrum. Co. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 657 (Tex.App. 1984). Plaintiffs' implicit argument that the filing of this lawsuit constituted notice does not satisfy the statutory standard, and precludes plaintiffs, recovery on their implied warranty claims.
PPG inspected the units and saw the problems first-hand. See Carroll Instrument Co. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 657-58 (Tex.App.-Houston [1st Dist.] 1984, no writ) (buyer gave adequate notice by showing defective part to seller). PPG received notification of problems with additional units in July 1989.