Prerequisites for Breach of Warranty Claim

   
BREACH OF WARRANTY CLAIM - NOTICE AND OPPORTUNITY TO CURE

To maintain an action for a breach of warranty, a buyer must notify the seller that a breach occurred within a reasonable time after he discovers or should have discovered any breach. See Tex. Bus. & Com. Code Ann. § 2.607(c)(1) (West 2009).

The burden of alleging and proving proper notice is on the buyer. Tex. Bus. & Com. Code Ann. § 2.607(c)(1); U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 200 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that notice requirement is better described as condition precedent for buyer’s cause of action than affirmative defense).
 
Failure to notify the seller of the breach, thereby allowing the seller an opportunity to cure, bars recovery on the basis of breach of warranty. See Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 189 (Tex. App.—Dallas 1996, no writ). A general expression of the buyer’s dissatisfaction, however, may be sufficient to comply with section 2.607. U.S. Tire-Tech, Inc., 110 S.W.3d at 201. And, ordinarily, notice is a question of fact to be determined by the trier of fact; it becomes a question of law only if no room for ordinary minds to differ exists. Carrol Instr. Co. v. B.W.B. Controls Inc., 677 S.W.2d 654, 657 (Tex. App.—Houston [1st Dist.] 1984, no writ). In addition, courts have applied the section 2.607 bar only to UCC breach of warranty claims. See Lochinvar Corp., 930 S.W.2d at 189 (holding that failure to notify the seller under 2.607(c)(1) of a breach, thereby allowing the seller an opportunity to cure, bars recovery on the basis of breach of warranty). Compare Sw. Lincoln-Mercury, Inc. v. Ross, 580 S.W.2d 2, 4 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (holding that where breach of warranty is foundation of claim for treble damages under DTPA, buyer must notify seller that breach of warranty has occurred, in accordance with section 2.607(c)(1)) with Mobil Min. & Minerals Co. v. Texas Auto Pool, Inc., 01-91-00093-CV, 1992 WL 211503, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31, 1992, writ denied) (mem. op., not designated for publication) (holding that section 2.607(c)(1) does not bar non-breach of DTPA warranty claims).

Section 2.607, therefore, would not be a bar to Hull’s fraud, negligence, negligent misrepresentation, breach of contract, and non-breach of DTPA warranty claims. We conclude that the trial court erred in granting the defendants’ traditional summary judgment motion.

 SOURCE: Houston Court of Appeals for the First District - 01-10-00724-CV - 5/12/11