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Mitchell v. D. R. Horton-Emerald, Ltd.

Court of Appeals of Texas, First District

May 16, 2019

DANIEL AND TRISHA MITCHELL, Appellants
v.
D. R. HORTON-EMERALD, LTD., Appellee

          On Appeal from the 458th District Court Fort Bend County, Texas Trial Court Case No. 16-DCV-236938

          Panel consists of Justices Keyes, Higley, and Landau.

          OPINION

          Laura Carter Higley Justice

         In this 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.

         Background

         In 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.

         In 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.

         Before 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.

         The 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.

         The Mitchells appeal.

         Recoverability of Fees under the Act

         In a 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.

         A. Standard of review and applicable law

         This 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 ...


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