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St. Mary's Law Journal

Mark L. Kincaid

Abstract

Although the Court received a deluge of amicus curiae briefs after its initial ruling in Melody Home ushering the Court to reevaluate the consequences of its decision, there is no sound basis for excluding professional services from the implied warranty recognized by the Texas Supreme Court that services will be performed in a good and workmanlike manner. The issue of what is properly considered a “professional” service or what definition is to be applied to distinguish “non-professional” and “professional” services if the latter were to be excluded from the implied warranty. Instead of differentiating between “non-professional” and “professional” services in Archibald v. Act III Arabians and Melody Home, the Court relied on whether there was a modification of an existing tangible good. Using other Texas Supreme Court precedent on who may be considered a “professional” as to be excluded from the implied warranty of good and workmanlike performance would also create an illogical disparity and appear to favor already privileged groups. One of the greatest points of debate is the question of what standard professionals will be judged by if their services are held to carry an implied guarantee of good workmanship. A result-based standard would make all service providers guarantors of good results even though the nature of some professions makes such a burden inappropriate. However, it is clear Melody Home adopted a performance-based standard for non-professionals. Thus, the strongest argument for shielding a professional from liability turns out to be a false one. Professionals will not be held strictly liable, nor will they be required to guarantee results that are beyond their control. Consumers are no less deserving of protection when they are harmed by substandard professional services than when they are harmed by substandard non-professional services.

Publisher

St. Mary's University School of Law

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