                    IN THE SUPREME COURT OF TEXAS
                                                      444444444444
                                                         NO . 17-0636
                                                      444444444444


                                         DANIEL NGHIEM, PETITIONER,
                                                              v.


                     RUPOM SAJIB AND GLOBAL AVIATION SERVICE, INC.
                   D /B /A GLOBAL A VIATION SERVICES, AND D/B /A G LOBAL
                            AVIATION SERVICES, INC., RESPONDENTS

              4444444444444444444444444444444444444444444444444444
                                   ON PETITION FOR REVIEW FROM THE
                            COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
              4444444444444444444444444444444444444444444444444444


                                             Argued September 17, 2018


       CHIEF JUSTICE HECHT delivered the opinion of the Court.


       In Melody Home Manufacturing Co. v. Barnes, we held that “an implied warranty to repair

or modify existing tangible goods or property in a good and workmanlike manner is available to

consumers suing under the DTPA”1—the Deceptive Trade Practices–Consumer Protection Act.2 As

we have previously noted, some courts have interpreted that statement to mean that the implied




       1
           741 S.W .2d 349, 354 (Tex. 1987).

       2
           T EX . B U S . & C O M . C O D E §§ 17.41–17.63.
warranty is actionable only under the DTPA, while others have concluded that a claim of breach can

be brought under the common law as well as the DTPA.3 We agree with the latter.

         The claim for breach of implied warranty in this case was not brought under the DTPA and

thus is not covered by that statute’s two-year limitations period.4 We reverse the court of appeals’

judgment5 and remand the case to the trial court for further proceedings.

                                                                       I

         The case comes to us on the pleadings, and our description of it is from the parties’

undisputed allegations.

         Daniel Nghiem and Rupom Sajib were passengers in Nghiem’s small plane when its engine

failed and it crash-landed. Both were injured, and the plane was destroyed. The pilot was an

employee of Global Aviation Services, Inc., which had serviced the plane for its previous owner for

years and made repairs to the plane immediately before the crash. Sajib sued Global for negligence

a few weeks before the two-year statute of limitations would have run.6 After it ran, Nghiem



         3
          See Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W .3d 52, 55 n.9 (Tex. 2013) (noting the court split).
The U.S. Court of Appeals for the Fifth Circuit and one Texas court of appeals have held that the implied warranty of
good and workmanlike repairs is actionable under both the common law and the DTPA. See Walker v. Sears, Roebuck
& Co., 853 F.2d 355, 362–363, 362 n.5 (5th Cir. 1988); Basic Energy Serv., Inc. v. D–S–B Props., Inc., 367 S.W .3d 254,
269 & n.9 (Tex. App.— Tyler 2011, no pet.). Four Texas courts of appeals have held that this implied warranty is only
actionable under the DTPA. See Sw. Olshan Found. Repair Co. v. Gonzales, 345 S.W .3d 431, 437 (Tex. App.— San
Antonio 2011), aff’d on other grounds, 400 S.W .3d 52 (Tex. 2013); Koehler v. Sears, Roebuck & Co., No. 05-98-01325-
CV, 2001 W L 611453, at *5 (Tex. App.— Dallas June 6, 2001, no pet.); Foreman v. Pettit Unlimited, Inc., 886 S.W .2d
409, 412 (Tex. App.— Houston [1st Dist.] 1994, no writ); Darr Equip. Co. v. Allen, 824 S.W .2d 710, 712 (Tex. App.—
Amarillo 1992, writ denied).

         4
             See T EX . B U S . & C O M . C O D E § 17.565.

         5
             559 S.W .3d 188.

         6
             See T EX . C IV . P RAC . & R EM . C O D E § 16.003(a).

                                                                       2
petitioned to intervene as a plaintiff in the suit, first asserting only a claim of negligence, then adding

a claim for breach of the implied warranty of good and workmanlike repair of tangible goods or

property. Nghiem sought damages for injury to his plane as well as for his personal injuries.

         Global moved to strike Nghiem’s petition, asserting that both claims were barred by

limitations. Global argued that Nghiem’s implied warranty claim was actionable only under the

DTPA and that its two-year statute of limitations applied.7 Nghiem agreed that his negligence claim

was barred but argued that his implied warranty claim was under the common law, not the DTPA,

and the residual four-year statute of limitations applied.8 The trial court agreed with Global, struck

Nghiem’s petition, and severed its order, making it final and appealable.9

         The court of appeals affirmed.10 Noting the court split on whether a claim for breach of the

implied warranty of good and workmanlike repairs can be made under the common law or only

under the DTPA, the court followed its prior decision in Foreman v. Pettit Unlimited, Inc. and held

that the implied warranty is actionable only under the DTPA and subject to its statute of limitations.11



         7
              See T EX . B U S . & C O M . C O D E § 17.565.

         8
          See T EX . C IV . P RAC . & R EM . C OD E § 16.051 (“Every action for which there is no express limitations period,
except an action for the recovery of real property, must be brought not later than four years after the day the cause of
action accrues.”).

         9
           The trial court later rendered judgment on a verdict for Sajib against Global for about $1.5 million. Sajib v.
Global Aviation Servs., Inc., No. 2015-27690-7 (61st Dist. Ct., Harris Cty., Tex. June 30, 2016). Global appealed, and
the case settled. Global Aviation Servs., Inc. v. Sajib, No. 01-16-00771-CV, 2017 W L 2545108 (Tex. App.— Houston
[1st Dist.] June 13, 2017, no pet.) (mem. op.). The parties have not argued, and we do not consider, whether the
resolution of Sajib’s claim moots Nghiem’s contention that he should have been permitted to intervene.

         10
              559 S.W .3d 188.

         11
           Id. at 191–192 (relying on Foreman v. Pettit Unlimited, Inc., 886 S.W .2d 409, 412 (Tex. App.— Houston [1st
Dist.] 1994, no writ)).

                                                               3
         We granted Nghiem’s petition for review.12

                                                              II

         Rule 60 of the Texas Rules of Civil Procedure states that “[a]ny party may intervene by filing

a pleading, subject to being stricken out by the court for sufficient cause on the motion of any

party.”13 “The rule authorizes a party with a justiciable interest in a pending suit to intervene in the

suit as a matter of right.”14 “An intervenor is not required to secure the court’s permission to

intervene; the party who opposed the intervention has the burden to challenge it by a motion to

strike.”15 “If any party to the pending suit moves to strike the intervention, the intervenor[] ha[s] the

burden to show a justiciable interest in the pending suit.”16 Because intervention is a matter of right

subject to a motion to strike, it follows that the intervenor need only respond to the grounds stated

in the motion.17



         12
              61 Tex. Sup. Ct. J. 1405 (June 15, 2018).

         13
              T EX . R. C IV . P. 60.

         14
              In re Union Carbide Corp., 273 S.W .3d 152, 154 (Tex. 2008) (per curiam) (orig. proceeding).

         15
              Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W .2d 652, 657 (Tex. 1990).

         16
             Union Carbide, 273 S.W .3d at 155. “To constitute a justiciable interest, the intervenor’s interest must be such
that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been
entitled to recover in his own name to the extent at least of a part of the relief sought in the original suit. In other words,
a party may intervene if the intervenor could have brought the pending action, or any part thereof, in his own name.” Id.
(internal quotation marks, brackets, and citations omitted). Global’s only argument that Nghiem lacks a justiciable
interest in Sajib’s lawsuit is that the breach of implied warranty claim is barred by the DTPA limitations period. The
confinement of our opinion to that argument should not be read to imply that Nghiem otherwise has the justiciable
interest required for intervention.

         17
            The court may also consider whether “the intervention will . . . complicate the case by an excessive
multiplication of the issues” and how important it is “to effectively protect the intervenor’s interest.” Guar. Fed. Sav.
Bank, 793 S.W .2d at 657. Such considerations do not appear to have been involved in the trial court’s decision to strike
Nghiem’s intervention.

                                                              4
          Global moved to strike Nghiem’s petition “due to his failure to bring his causes of

action . . . within the two-year statute of limitations for both of his claims.” Global asserted that

Nghiem’s negligence claim was governed by the statute generally applicable to tort claims18 and his

breach of implied warranty claim by the DTPA.19 In response, Nghiem did not contest that

limitations barred his negligence claim but argued that the applicable limitations period for his

breach of warranty claim was not two years under the DTPA but four years under the residual statute

of limitations.20 Thus, we consider only whether the DTPA’s or residual statute’s limitations apply

to Nghiem’s breach of implied warranty claim.




         18
             T EX . C IV . P RAC . & R EM . C O D E § 16.003(a). The statute does not expressly cover all torts. It provides that “a
person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property,
taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer
not later than two years after the day the cause of action accrues.” Id. But we have explained: “In general, torts developed
from the common law action for ‘trespass,’ and a tort not expressly covered by a limitation provision nor expressly held
by this court to be governed by a different provision would presumptively be a ‘trespass’ for limitations purposes.”
Williams v. Khalaf, 802 S.W .2d 651, 654 (Tex. 1990).

          19
               See T EX . B U S . & C O M . C O D E § 17.565.

          20
             See T EX . C IV . P RAC . & R EM . C O D E § 16.051 (“Every action for which there is no express limitations period,
except an action for the recovery of real property, must be brought not later than four years after the day the cause of
action accrues.”). Nghiem has never asserted the other four-year statute of limitations, Section 16.004(a), that we have
sometimes applied to breach of contract claims. That statute expressly covers certain contract claims and the torts of
fraud and breach of fiduciary duty. It provides: “A person must bring suit on the following actions not later than four
years after the day the cause of action accrues: (1) specific performance of a contract for the conveyance of real property;
(2) penalty or damages on the penal clause of a bond to convey real property; (3) debt; (4) fraud; or (5) breach of
fiduciary duty.” T EX . C IV . P RAC . & R EM . C OD E § 16.004(a). W e have explained that “[t]he most logical reading . . . is
to treat ‘debt’ actions under section 16.004 as breach-of-contract actions”. Elledge v. Friberg-Cooper Water Supply
Corp., 240 S.W .3d 869, 870 (Tex. 2007) (per curiam). But we have also indicated, without analysis, that claims for
breach of contract are covered by the residual statute. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W .3d 194, 203
(Tex. 2011) (stating that “fraud and breach of contract [claims] have four-year statutes of limitations” (citing T EX . C IV .
P RAC . & R EM . C O D E §§ 16.004, 16.051)); Stine v. Stewart, 80 S.W .3d 586, 592 (Tex. 2002) (stating that “the general
four-year statute of limitations for breach of contract applies” (citing T EX . C IV . P RAC . & R EM . C O D E § 16.051)).

                                                                 5
                                                                A

         The DTPA provides that “[a] consumer may maintain an action where any of the following

constitute a producing cause of economic damages or damages for mental anguish: . . . breach of an

express or implied warranty”.21 In La Sara Grain Co. v. First National Bank of Mercedes, we

observed that generally, “[i]mplied warranties are derived primarily from statute, although some have

their origin at common law.”22 We added: “The DTPA does not . . . create any warranties; therefore

any warranty must be established independently of the act.”23 The DTPA is not the exclusive remedy

for a breach of warranty but provides a new cause of action separate and apart from a cause of action

under the common law, with different damages and remedies.24 Its remedies “are in addition to any

other procedures or remedies provided for in any other law”.25

         Three years after we decided La Sara Grain, we held in Melody Home that “an implied

warranty to repair or modify existing tangible goods or property in a good and workmanlike manner

is available to consumers suing under the DTPA.”26 Citing La Sara Grain, we stated that “[a]n

implied warranty arises by operation of law when public policy so mandates”.27 Our holding cannot

         21
              T EX . B U S . & C O M . C O D E § 17.50(a)(2).

         22
              673 S.W .2d 558, 565 (Tex. 1984).

         23
              Id.

         24
             T EX . B U S . & C O M . C OD E § 17.50(b) (allowing economic, mental anguish, and additional damages; injunctive
relief; restitution; a receivership; and “any other relief which the court deems proper”); id. § 17.50(d) (allowing attorney
fees).

         25
              Id. § 17.43 (“The provisions of this subchapter are not exclusive.”).

         26
              Melody Home Mfg. Co. v. Barnes, 741 S.W .2d 349, 354 (Tex. 1987).

         27
              Id. at 353.

                                                                6
reasonably be read to directly contradict authority on which we expressly relied. The court of appeals

in Foreman summarily concluded that a breach of the Melody Home implied warranty is actionable

only under the DTPA, pointing to another statement in that opinion that consumers of services do

“not have the protection of a statutory or common law implied warranty scheme.”28 But that

statement described the state of the law before Melody Home; it says nothing about whether the

implied warranty we recognized is actionable apart from the DTPA.

         The implied warranty of workmanlike repairs is a creature of the common law. A breach of

the warranty can be asserted in an action for violations of the DTPA, but it can also be asserted in

a common-law action. We disapprove of the cases that have reached a contrary conclusion.29 Nghiem

sued under the common law, not the DTPA. His common-law action for breach of the implied

warranty is not barred by the DTPA’s inapplicable two-year statute of limitations.

                                                                 B

         Nghiem argues that his action sounds in contract and should be governed by the generally

applicable, residual statute of limitations, which is four years.30 Nghiem does not dispute Global’s

assertion that the two had no written contract, but argues that evidence not yet developed will show



        28
          Foreman v. Pettit Unlimited, Inc., 886 S.W .2d 409, 412 (Tex. App.— Houston [1st Dist.] 1994, no writ)
(quoting Melody Home, 741 S.W .2d at 353).

        29
           See id.; Sw. Olshan Found. Repair Co., LLC v. Gonzales, 345 S.W .3d 431, 437 (Tex. App.— San Antonio
2011), aff’d on other grounds, 400 S.W .3d 52 (Tex. 2013); Koehler v. Sears, Roebuck & Co., No. 05-98-01325-CV,
2001 W L 611453, at *5 (Tex. App.— Dallas June 6, 2001, no pet.); Darr Equip. Co. v. Allen, 824 S.W .2d 710, 712 (Tex.
App.— Amarillo 1992, writ denied); Irwin v. Country Coach Inc., No. 4:05-CV-145, 2006 W L 278267, at *6 (E.D. Tex.
Feb. 3, 2006); Lowe v. Burlington Stores, Inc., No. 3:16-CV-03068-B (BF), 2017 W L 1185285, at *3 (N.D. Tex. Mar. 7,
2017), report and recommendation adopted, No. 3:16-CV-03068-B-BF, 2017 W L 1165560 (N.D. Tex. Mar. 29, 2017).

         30
              T EX . C IV . P RAC . & R EM . C O D E § 16.051.

                                                                 7
that the parties had an oral contract. Global argues on appeal that Nghiem’s breach of implied

warranty claim “is rooted in tort”, but it makes that argument only in support of its contention that

the DTPA statute of limitations applies. Global has never cited the generally applicable two-year

statute of limitations for torts31 or argued for its application to Nghiem’s implied warranty claim in

this case.

         No statute of limitations expressly refers to an action for breach of implied warranty, so in

determining the limitations period, “courts look to analogous causes of action for which an express

limitations period is available either by statute or by case law.”32 Causes of action for breach of

implied warranties defy simple categorization because an implied warranty is “a freak hybrid born

of the illicit intercourse of tort and contract.”33 Generally, breach of a duty created by contract gives

rise to a contract claim, whereas breach of a duty imposed by operation of law gives rise to a tort




         31
              Id. § 16.003(a).

         32
              Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W .2d 507, 518 (Tex. 1998).

         33
              JCW Elecs., Inc. v. Garza, 257 S.W .3d 701, 705 (Tex. 2008) (quoting W illiam L. Prosser, The Assault Upon
the Citadel (Strict Liability to the Consumer), 69 Y ALE L.J. 1099, 1126 (1960)). The implied warranties recognized in
Texas are: (1) the implied warranty of habitability for new homes, recognized in Humber v. Morton, 426 S.W .2d 554,
555 (Tex. 1968); (2) the implied warranty of good and workmanlike construction, also recognized in Humber, id.; (3)
the implied warranty of merchantability, created by the Uniform Commercial Code, codified in T EX . B U S . & C O M . C O DE
§ 2.314; (4) the implied warranty of fitness for a particular purpose, also created by the UCC, codified in T EX . B U S . &
C O M . C O D E § 2.315; (5) the implied warranty of workmanlike repairs of tangible goods or property (at issue in the
present case), created in Melody Home M anufacturing Co. v. Barnes, 741 S.W .2d 349, 353 (Tex. 1987); and (6) the
implied warranty that leased premises are suitable for their intended commercial purpose, recognized in Davidow v.
Inwood North Professional Group, 747 S.W .2d 373, 377 (Tex. 1988). W e have recognized additional implied warranties
that have since been superseded by other law. See Jacob E. Decker & Sons v. Capps, 164 S.W .2d 828, 829 (1942)
(implied warranty of the fitness of food for human consumption), superseded by McKisson v. Sales Affiliates, Inc., 416
S.W .2d 787, 789 (Tex. 1967) (adopting the Restatement (Second) of Torts § 402A to govern strict liability tort claims
for defective products that cause physical harm); Kamarath v. Bennett, 568 S.W .2d 658, 661 (Tex. 1978) (implied
warranty of habitability for residential leases), superseded by statute, Act of M ay 28, 1979, 66th Leg., R.S. ch. 780, §§
1–18, 1979 Tex. Gen. Laws 1978.

                                                             8
claim.34 Implied warranties, however, can have feet in both camps, created by operation of law in

connection with a contract.35 In addition, different implied warranties behave differently.36

         In Melody Home, we noted that “[i]mplied warranties are created by operation of law and are

grounded more in tort than in contract”, citing La Sara Grain and Humber v. Morton.37 Years earlier,

in Humber, we had recognized the implied warranties that a new home was constructed in a good

and workmanlike manner and is suitable for human habitation.38 In doing so we “pointed out that

generally in Texas, the notion of implied warranty arising from sales is considered to be a tort rather

than a contract concept.”39 We cited our decision in Jacob E. Decker & Sons v. Capps, which created

an implied warranty that food is fit for human consumption,40 a precursor to strict liability in tort.41




         34
          Sw. Bell Tel. Co. v. DeLanney, 809 S.W .2d 493, 494 (Tex. 1991); see also Int’l Printing Pressmen Assistants’
Union v. Smith, 145 Tex. 399, 409 (1946).

        35
            JCW Elecs., 257 S.W .3d at 704 (“Conceptually, the breach of an implied warranty can either be in contract
or in tort depending on the circumstances.”)

         36
           See, e.g., Centex Homes v. Buecher, 95 S.W .3d 266, 272–274 (Tex. 2002) (explaining the differences
between the implied warranty of habitability and the implied warranty of workmanlike construction).

         37
           See Melody Home Mfg. Co. v. Barnes, 741 S.W .2d 349, 352 (Tex. 1987) (citing La Sara Grain Co. v. First
Nat’l Bank, 673 S.W .2d 558, 565 (Tex. 1984); Humber v. Morton, 426 S.W .2d 554, 555 (Tex. 1968)); see also JCW
Elecs., 257 S.W .3d at 704; Rocky Mountain Helicopters, Inc. v. Lubbock Cty. Hosp. Dist., 987 S.W .2d 50, 52 (Tex.
1998); Garcia v. Tex. Instruments, Inc., 610 S.W .2d 456, 462–463 (Tex. 1980).

         38
              426 S.W .2d at 555.

         39
              Id. at 556.

         40
              Id. (citing Jacob E. Decker & Sons v. Capps, 164 S.W .2d 828, 829 (Tex. 1942)).

        41
            See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W .2d 77, 78 (Tex. 1977) (explaining that “[s]ince the
Decker decision, Texas has adopted section 402A of the Restatement (Second) of Torts”, which “furnish[es] the user
of defective products [a] remed[y] [for physical injuries] [that was] unavailable at the time of Decker’s writing”).

                                                           9
         But only three months before we decided Humber, in Certain-Teed Products Corp. v. Bell,

we said that the implied warranty of workmanlike construction grows out of the home construction

contract.42 Since “a warranty which the law implies from the existence of a written contract is as

much a part of the writing as the express terms of the contract,” we held that “the action to enforce

such a warranty is governed by the [four-year] statute [of limitations] pertaining to written

contracts.”43 Even though the implied warranty of workmanlike construction is imposed by operation

of law, the obligation still arises from the contract and becomes part of the contract. Absent a

contract, the warranty would not arise. Relying on Certain-Teed’s reasoning, the U.S. Court of

Appeals for the Fifth Circuit in Walker v. Sears, Roebuck & Co. applied the four-year statute of

limitations to a claim for breach of the Melody Home implied warranty of workmanlike repairs.44 The

court held that the defendant’s “implied warranty obligations . . . arose from the contract” and

existed apart from the DTPA.45

         Nghiem and Global have focused their arguments on the applicability of the DTPA’s two-

year limitations period.46 We need not decide Nghiem’s contention that the residual statute of

limitations applies to his claim. Global’s only objection to his intervention was that the claim was


         42
              422 S.W .2d 719, 720 (Tex. 1968).

         43
              Id. at 721.

         44
              853 F.2d 355, 363 (5th Cir. 1988).

         45
              Id. at 361.

         46
           They have not even addressed whether an implied warranty exists in the circumstances described in the sparse
record before us. See Rocky Mountain Helicopters, Inc. v. Lubbock Cty. Hosp. Dist., 987 S.W .2d 50, 53 (Tex. 1998)
(holding “that Texas law does not recognize an implied warranty that services incidental to helicopter maintenance will
be performed in a good and workmanlike manner”).

                                                          10
barred by the DTPA limitations period, and we have held that it is not. The trial court thus abused

its discretion in striking Nghiem’s plea in intervention.

                                  *       *       *         *   *

       The judgment of the court of appeals is reversed, and the case is remanded to the trial court

for further proceedings.




                                              Nathan L. Hecht
                                              Chief Justice

Opinion delivered: February 1, 2019




                                                 11
