Opinion issued December 6, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00767-CV
                           ———————————
                          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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