397 S.W.3d 327
Tex. App.2013Background
- Dale hired Timmerman in 2006 to remodel a condo; contract required construction to proceed forthwith with reasonable diligence.
- Contract acknowledged RCLA applies to construction defects and related disputes.
- In 2008 Dale terminated; Timmerman filed liens; Dale sued for poor workmanship, overcharges, and unreasonable delay.
- After partial trial, the parties settled all issues except Dale’s delay claim seeking fair market rental value for the period of delay (about 13 months).
- At a hearing, it was agreed the court would decide by summary judgment whether delay claims fall under the RCLA and whether permanent rental value is recoverable; judgment would be $100,000 unless Timmerman prevailed on the RCLA issue; attorney’s fees to the prevailing party from Sep 13, 2011.
- The trial court granted summary judgment for Dale on the delay claim, awarding $100,000 and fees; Timmerman appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the RCLA govern delay damages? | Timmerman argues the RCLA applies to delay damages arising from construction. | Dale argues common-law delay damages exist and are not preempted by the RCLA. | RCLA applies to Dale's delay damages. |
| Whether RCLA permits recovery of lost rental value for delay. | Timmerman contends RCLA precludes lost rental value damages; not recoverable under statute. | Dale argues lost rental value is recoverable as part of delay damages under common law or RCLA. | RCLA does not authorize lost rental value damages; not recoverable. |
| What is the proper remedy on the delay claim when RCLA applies? | Timmerman contends the trial court erred in applying RCLA and awarding damages. | Dale contends damages consistent with RCLA are proper as converted by the court. | Dale takes nothing on the delay claim; judgment reversed and remanded to determine attorney’s fees. |
Key Cases Cited
- Muller v. Light, 538 S.W.2d 487 (Tex. Civ. App.—Austin 1976) (common-law delay claims discussed)
- Ryan v. Thurmond, 481 S.W.2d 199 (Tex. Civ. App.—Corpus Christi 1972) (delay damages referenced)
- Hill v. Willett, 281 S.W. 1110 (Tex. Civ. App.—Texarkana 1926) (early delay/damages discussion)
- In re Wells, 252 S.W.3d 439 (Tex. App.—Houston (14th Dist.) 2008) (notice and pre-suit considerations in construction disputes)
- In re NEXT Financial Group, Inc., 271 S.W.3d 263 (Tex. 2008) (contracts/arising from construction disputes; broad 'arising out of' language)
- Gentry v. Squires Constr., Inc., 188 S.W.3d 396 (Tex. App.—Dallas 2006) (RCLA framework and damages limitations)
- Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864 (Tex. 1999) (plain meaning rule; statutory construction)