# City Public Service Board, City of San Antonio, Acting by and Through City Public Service Board v. General Electric Company

> Court of Appeals for the Fifth Circuit · November 12, 1991 · 947 F.2d 747

URL: https://www.frixlaw.com/law-library/cases/570508

## Case

- **Full name:** CITY PUBLIC SERVICE BOARD, Plaintiff, City of San Antonio, Acting by and Through City Public Service Board, Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 12, 1991
- **Citations:** 947 F.2d 747; 1991 U.S. App. LEXIS 26774; 1991 WL 231096
- **Precedential status:** Published
- **Opinion:** Opinion by Jones
- **Judges:** Goldberg, Higginbotham, Jones
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/570508

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/570508. Public record. Not legal advice.