“[I]t is not for this court — Frie-bound to apply state law as state courts would do- — to incorporate ... innovative theories of recovery into Texas law.” (citing Mayo v. Hyatt Corp., 898 F.2d 47, 49 (5th Cir.1990))
How later courts described this case
- “[I]t is not for this court — Frie-bound to apply state law as state courts would do- — to incorporate ... innovative theories of recovery into Texas law.” (citing Mayo v. Hyatt Corp., 898 F.2d 47, 49 (5th Cir.1990))
- "[I]t is not for this court--Erie-bound to apply state law as state courts would do--to incorporate ... innovative theories of recovery into Texas law." (citing Mayo v. Hyatt Corp., 898 F.2d 47, 49 (5th Cir.1990))
- it is not for court, fine-bound to apply state law as state courts would do, to incorporate innovative theories of recovery into Texas law
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING
Before GOLDBERG, HIGGINBOTHAM, and JONES, Circuit Judges.
*748
EDITH H. JONES, Circuit Judge:
In its petition for rehearing, the City of San Antonio points out that the Texas Supreme Court recently withdrew its opinion in
Southwestern Bell Telephone Co. v. FDP Corp.,
811 S.W.2d 572 (Tex.1991), upon which we relied in the prior panel opinion.
See City of San Antonio v. General Electric Co.,
935 F.2d 78, 81-82 (5th Cir.1991). We take note of the Supreme Court’s action and, accordingly, substitute the following in place of the last paragraph in Part II of our prior opinion:
The
Melody Home II
warranty does not require repairmen to “guarantee the results of their work;” it only requires those who actually repair goods or property to perform
those services
in a good and workmanlike manner.
Melody Home II,
741 S.W.2d at 354-55. Claims of failure to warn or failure to advise therefore fall outside the warranty’s purview, and it is not for this court — Erie-bound to apply state law as state courts would do — to incorporate such innovative theories of recovery into Texas law.
See Mayo v. Hyatt Corp.,
898 F.2d 47, 49 (5th Cir.1990). Because the City offered no evidence that the repairs actually undertaken by GE were in any way defective, we conclude that the
Melody Home II
warranty is inapplicable to the case at bar.
1
With the exception of the above changes, the panel adheres to its prior opinion and denies the petition for rehearing.
1
. Because we hold that GE did not breach the implied warranty, we need not consider the alternative argument, which the district court never addressed, that GE was entitled to summary judgment because the
Melody Home II
warranty does not extend to “professional services.”
See Melody Home II,
741 S.W.2d at 354 (declining to answer “[t]he question whether an implied warranty applies to services in which the essence of the transaction is the exercise of professional judgment by the service provider”). Nevertheless, we note that while at least one Texas appellate court has extended the implied warranty to professional services,
White Budd Van Ness v. Major-Gladys Drive Joint Venture,
798 S.W.2d 805, 813 (Tex.App. — Beaumont 1990),
error dismissed,
811 S.W.2d 541 (Tex. 1991), the Texas Supreme Court has yet to adopt this position.
See Willis v. Maverick,
760 S.W.2d 642, 647-48 (Tex.1988).