Atos IT Solutions & Services, Inc. v. Angiel Electrical Construction Corporation et al
Filing
38
Memorandum Opinion and Order granting in part 12 Motion to Dismiss filed by Angiel Electrical Construction Corporation. The court ORDERS that Angiel's motion to dismiss be, and is hereby, granted in part, and plaintiff's claims aga inst Angiel for breach of implied warranty for particular purpose, express warranty, breach of implied warranty of good and workmanlike services, and negligence be, and are hereby, dismissed. The court further ORDERS that the motion be, and is hereby, otherwise denied. (Ordered by Judge John McBryde on 3/2/2017) (trt)
U.S. DISTRICT COURT
NORTHER.i"l\J DTSTF.TCT OF TEXAS
IN THE UNITED STATES DISTRICT COURT r-NORTHERN DISTRICT OF TEX
, MAR
FORT WORTH DIVISION
ATOS IT SOLUTIONS & SERVICES,
INC.,
vs.
ANGIEL ELECTRICAL CONSTRUCTION
CORPORATION, ET AL.,
Defendants.
- 2 2017
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,
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-~RT
BY--~~~---~~~~~Deputy
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§
I
CLERK, U.S. DL) l., .• ·~
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Plaintiff,
,.-..
NO. 4:16-CV-1155-A
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant Angiel
Electrical Construction Corporation ("Angiel") to dismiss. The
court, having considered the motion, the response of plaintiff,
Atos IT Solutions & Services, Inc., the reply, the record, and
applicable authorities, finds that the motion should be granted
in part.
I.
Plaintiff's Claims
Plaintiff alleges that by purchase order 8164, dated January
5, 2013, plaintiff requested from Angiel a "MSB-A generator main
breaker refurbishment." Doc. 1 1 at 4, , 19 and Ex. A. And, by
letter dated April 16, 2013, Angiel advised plaintiff that Angiel
would pick up the damaged MSB-A generator main breaker to have it
refurbished for $9,496.00. Doc. 1 at 5, , 22 and Ex. D. The
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The "Doc.
"reference is to the number of the item on the docket in this action.
rebuilt generator breaker ultimately failed and plaintiff
suffered damage as a result.
Plaintiff sues Angiel for breach of contract, breach of
implied warranty of fitness for a particular purpose, breach of
written express warranty, breach of implied warranty of good and
workmanlike manner, and negligence.
II.
Grounds of the Motion
Angiel says that each of plaintiff's claims against it
should be dismissed. Angiel first contends that its only
responsibility was to pick up the damaged generator breaker and
ship it to Eaton to be refurbished, then redeliver it back to the
data center. Thus, the breach of contract claim fails. Second,
there was no implied warranty of fitness for particular purpose.
Third, Angiel did not make or breach any express warranty.
Fourth, plaintiff does not allege a breach of implied warranty of
good and workmanlike services by Angiel. And, fifth, plaintiff's
negligence claim is time-barred.
III.
Applicable Legal Principles
The applicable legal principles are set forth in the court's
memorandum opinion and order of February 24, 2017, and need not
be repeated here.
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IV.
Analysis
A.
Breach of Contract
Angiel asserts that it did not breach a contract with
plaintiff, because all it agreed to do was to pick up and ship
the damaged generator main breaker, then return it to plaintiff's
data center. The allegations in the complaint and the documents
attached to it make clear that there was some kind of agreement
between plaintiff and Angiel. At this point, the court cannot
consider facts outside the record to interpret the contract. Nor
can the court resolve any ambiguities as to the terms of the
contract. Moreover, at this point it is not clear whether the
generator was not correctly refurbished or whether subsequent
actions after its return to plaintiff caused the damage to
plaintiff. It may well be that Angiel can establish that it did
not breach its contract with plaintiff, but that is a matter for
trial or summary judgment. Plaintiff has stated a claim for
breach of contract.
B.
Breach of Implied Warranty for Particular Purpose
Angiel maintains that there could have been no implied
warranty of fitness for a particular purpose because the gist of
the agreement was the provision of refurbishment services.
In
other words, the contract was not primarily for the sale of goods
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so the implied warranty does not arise. Alternatively, Angiel
says that plaintiff does not allege that the breaker was to be
used for any particular purpose beyond the ordinary.
In response, plaintiff says that the purchase order
establishes that "a contract for sale was made." Doc. 33 at 7.
However, when all of the attachments to the complaint are
considered, clearly the gist of the assignment was the
refurbishment, i.e., provision of services. Hence, as stated in
the February 24, 2017, memorandum opinion and order, the implied
warranty of fitness for particular purpose does not arise. Doc.
31 at 6-7. And, in fact,
the purchase order itself reflects that
Angiel was not tasked with selecting goods to perform a
particular function. Rather, the item has already been identified
and Angiel is to obtain its refurbishment. 2
C.
Express Warranty
Angiel maintains that the contract between it and plaintiff
does not contain any express warranty. More importantly, the only
express warranties pleaded by plaintiff are an alleged warranty
created by Eaton Corporation's written report titled
2
As Angiel notes in its reply, the papers plaintiff has attached to the complaint indicate that the
purchase order itself is not the contract, but an offer modified at least by the April 16, 2013, letter from
Angie!. At this point, the parties' intent cannot be determined. See BASF Corp. v. Man Diesel & Turbo
N.A., Inc., No. 13-42-JWD-RLB, 2016 WL 5817159, at *12 (M.D. La. Sept. 30, 2016); Operating
Technical Electronics, Inc. v. Generac Power Sys., Inc., No. 4:12-CV-345-Y, 2014 WL 11498165 (N.D.
Tex. Mar. 11, 2014).
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"Reconditioned Low Voltage Breaker," Doc. 1 at 10, ,51, and a
subsequent email by Eaton saying that an issue was resolved. Doc.
1 at 11,
,
52. As the court noted in the February 24 memorandum
opinion and order, the referenced representations merely refer to
events that have taken place and could not have been the basis of
any bargain. Doc. 31 at 7. Plaintiff apparently agrees, as it has
not responded to this ground of the motion.
D.
Breach of Implied Warranty of Good and Workmanlike Services
Angiel says that plaintiff has not pleaded that Angiel
itself breached any implied warranty, but rather that Eaton's
services were not proficient. Doc. 12 at 8 (citing Doc. 1 at 11,
, 56). Plaintiff responds that pursuant to the purchase order,
Angiel was responsible for the refurbishment of the breaker. Doc.
33 at 7. At this point, the court cannot conclude that plaintiff
has failed to state a claim. However, as discussed in the
February 24 memorandum opinion and order, the court is satisfied
that such a claim cannot be pursued if there is another adequate
remedy to redress the wrong. And, because the contract claim or
the negligence claim would provide an adequate remedy, Texas law
would not recognize a cause of action for breach of implied
warranty. Doc. 31 at 8-9. Accordingly, the claim must be
dismissed.
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E.
Negligence
Finally, Angiel says that plaintiff's negligence claim is
barred by limitations. And, plaintiff does not make any different
argument than it made in response to Eaton's motion, addressed in
the February 24 memorandum opinion and order. For the reasons
discussed therein, plaintiff's negligence claim is barred and
must be dismissed. Doc. 31 at 9-10.
v.
Order
The court ORDERS that Angiel's motion to dismiss be, and is
hereby, granted in part, and plaintiff's claims against Angiel
for breach of implied warranty for particular purpose, express
warranty, breach of implied warranty of good and workmanlike
services, and negligence be, and are hereby, dismissed. The court
further ORDERS that the motion be, and is hereby, otherwise
denied.
SIGNED March 2, 2017.
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