Appeal from the 458th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-236938
consists of Justices Keyes, Higley, and Landau.
Carter Higley Justice
construction-defect case, homeowners Daniel and Trisha
Mitchell appeal from the trial court's judgment, which
holds that they are not entitled to recover attorney and
expert fees against contractor D.R. Horton-Emerald, Ltd. The
Mitchells contend that their fees are recoverable as damages
under the Residential Construction Liability Act.
See Tex. Prop. Code § 27.004(g)(3), (6). The
Act, however, "does not create a cause of action"
for damages. Id. § 27.005. It simply limits the
types of damages recoverable under causes of action that
already exist. And here, the Mitchells have failed to assert
a cause of action allowing for the recovery of attorney or
expert fees. Therefore, we affirm.
2014, the Mitchells purchased a home built by the home
construction company D.R. Horton. Shortly after purchasing
the home, the Mitchells discovered defects with the
home's foundation. The Mitchells provided D.R. Horton
with written notice of the defects. See id. §
27.004(a). D.R. Horton did not respond to the notice, and the
Mitchells filed suit.
their amended petition, the Mitchells asserted claims for
breach of implied warranties and negligent construction. They
sought eight categories of damages, including reasonable and
necessary engineering and consulting fees. They also sought
reasonable and necessary attorney fees.
the case went to trial, the parties entered into a partial
settlement agreement. Under the agreement, D.R. Horton
stipulated that its negligence proximately caused a
construction defect in the Mitchells' home and that the
defect, in turn, caused the Mitchells to incur $60, 000 in
damages, not including their attorney and expert fees. The
parties agreed that D.R. Horton would pay the Mitchells $60,
000 as partial settlement and that they would try the issue
of fees to the bench. D.R. Horton expressly preserved the
right to assert that the Mitchells were not entitled to
recover attorney and expert fees as damages under the Act.
case then went to trial. The issues were whether the
Mitchells were entitled to recover their attorney and expert
fees and, if so, in what amount. At the close of evidence,
the Mitchells conceded that their sole basis for recovering
their fees was Section 27.004(g) of the Act. The trial court
ruled that the Mitchells were not entitled to recover
attorney and expert fees as a matter of law because the Act
is not an independent basis for the recovery of such fees.
The trial court ordered that the Mitchells take nothing on
their claim for attorney and expert fees.
of Fees under the Act
single issue, the Mitchells contend that the trial court
erred in ruling that they are not entitled to recover
attorney and expert fees as damages under the Act. The
Mitchells contend that they are entitled to recover their
attorney and expert fees as damages under Section 27.004(g).
According to the Mitchells, Section 27.004(g) allows a
plaintiff to recover attorney and expert fees as damages in
an action arising from a construction defect regardless of
whether the underlying cause of action allows recovery of
such fees. D.R. Horton responds that Section 27.004(g) is not
an independent basis for the recovery of attorney and expert
fees (or any other form of relief) but simply limits the
relief available under existing causes of action. And,
because the Mitchells failed to prove a cause of action
allowing the recovery of attorney and expert fees, the trial
court did not err in ruling that they are not entitled to
recover either type of fee.
Standard of review and applicable law
appeal presents an issue of statutory interpretation, which
we review de novo. See Compass Bank v.
Calleja-Ahedo, 569 S.W.3d 104, 108 (Tex. 2018). The
statute at ...