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 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’ judgment[5] and remand the case to the trial court for further proceedings.IThe 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 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]We granted Nghiem’s petition for review.[12]IIRule 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]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 claims[18] 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.AThe 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 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.BNghiem 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 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 torts[31] 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 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]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 i s 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 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 JusticeOpinion delivered: February 1, 2019
