Carroll Instrument Co. v. B.W.B. Controls, Inc.

22 Citing cases

  1. Integrated Marine Servs., L.L.C. v. Hoist Liftruck Mfg., Inc.

    CIVIL ACTION NO. H-12-1379 (S.D. Tex. Nov. 21, 2012)

    "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."

  2. McLendon v. Texas Department of Public Safety

    985 S.W.2d 571 (Tex. App. 1998)   Cited 14 times
    Holding that unless licensing statute defines "conviction" to include set-aside conviction, then set-aside conviction is not "conviction" for purposes of licensing statute

    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.

  3. Lochinvar Corp. v. Meyers

    930 S.W.2d 182 (Tex. App. 1996)   Cited 52 times
    Holding complaint about trial court's failure to award attorney's fees must be brought to trial court's attention and cannot be raised for first time on appeal

    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.

  4. Liquid Enrgy v. Trans-Pan Gathering

    758 S.W.2d 645 (Tex. App. 1988)   Cited 2 times
    In Liquid Energy v. Trans-Pan Gathering, 758 S.W.2d 645 (Tex.App. — Amarillo 1988, case later settled), the Amarillo Court acknowledged that it had held that Cavnar's rationale, [ see Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985) ], to allow recovery for equitable prejudgment interest had been extended to include breach of contract actions even for unascertainable damages.

    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.

  5. Ameristar Jet Charter v. Signal Composites

    271 F.3d 624 (5th Cir. 2001)   Cited 170 times
    Reversing a determination that notice was timely as a matter of law because that "question[] should have been left to the trier of fact"

    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.

  6. Palmco Corp. v. American Airlines, Inc.

    983 F.2d 681 (5th Cir. 1993)   Cited 17 times
    Reviewing award of attorneys' fees for abuse of discretion

    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.

  7. Ardoin v. Stryker Corp.

    CIVIL ACTION NO. 4:18-CV-2192 (S.D. Tex. Oct. 7, 2019)   Cited 11 times
    Finding validly pleaded design defect where complaint alleged bone screws were designed with defects in their metallurgical integrity

    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."

  8. Yocham v. Novartis Pharmaceuticals Corp.

    736 F. Supp. 2d 875 (D.N.J. 2010)   Cited 40 times
    Holding that §82.007(b) not preempted by federal law

    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.

  9. In re Air Bag Products Liability Litig.

    7 F. Supp. 2d 792 (E.D. La. 1998)   Cited 34 times
    Holding that "allegation of manifest injury or defect" is a "central tenet " of an implied warranty claim

    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.

  10. PPG Industries, Inc. v. JMB/Houston Centers Partners Ltd. Partnership

    146 S.W.3d 79 (Tex. 2004)   Cited 284 times
    Holding in a case where an exclusive remedy provision also contained a waiver of consequential damages that where the remedy fails of its essential purpose “all damages provided by the UCC [become] available,” without conducting a separate analysis of unconscionability on the limitation of consequential damages

    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.