In Re Anderson Construction Co.
338 S.W.3d 190
Tex. App.2011Background
- Anderson Construction Company and Ronnie Anderson petitioned for mandamus relief from a trial court order compelling discovery during an automatic abatement under the Residential Construction Liability Act (RCLA).
- Mainwarings filed a construction defect lawsuit asserting defects in their Anderson-built home, with notices of defects provided on January 13, 2010 for initial issues.
- Anderson offered settlement for the defects identified in the initial notice; Mainwarings later amended their petition adding new defects not included in the initial notice.
- Anderson filed a verified plea in abatement asserting Mainwarings failed to follow RCLA notice/inspection procedures; Mainwarings did not controvert with an affidavit to defeat automatic abatement.
- The trial court granted Mainwarings’ motion to compel discovery despite the abatement, prompting the mandamus petition.
- The Court of Appeals conditionally grants mandamus, holding the trial court had no discretion to compel discovery while abated and that abatement should allow compliance with notice/inspection procedures for newly alleged defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court abuse discretion by compelling discovery during abatement? | Mainwarings failed to controvert abatement; abatement automatic. | Discovery can proceed; settlement offers and notices were in question. | Yes; court abused discretion; abatement precludes discovery. |
| Was automatic abatement properly triggered by lack of controverting affidavit? | Abatement based on failure to controvert; there was no controverting affidavit. | Statute allows abatement when the claimant does not controvert; no affidavit required to trigger automatic abatement. | Yes; automatic abatement triggers without a controverting affidavit. |
| Can amended pleadings add new defects without restarting RCLA notice/inspection procedures? | Amended pleading may add new defects; RCLA allows amendments under Rule 64 and proper notices. | RCLA requires notice prior to inspection; amended defects require new notice/inspection under §27.004. | Amendments may be accompanied by new notice/inspection; abatement preserves opportunity to inspect added defects. |
| Is mandamus an adequate remedy despite the discovery order? | Abating the case operates to enforce statutory procedures; mandamus appropriate to compel adherence. | Adequate remedy typically not mandamus; here, abatement was ignored, causing statutory procedure to be bypassed. | Yes; mandamus appropriate because statutory abatement was mandated and not subject to ordinary appellate review. |
Key Cases Cited
- F & S Const., Inc. v. Saidi, 131 S.W.3d 94 (Tex.App.-San Antonio 2003) (amended counterclaims; notice/inspection sufficient when expanded defects addressed)
- In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522 (Tex.App.-Houston [14th Dist.] 1998) (automatic abatement under RCLA preserved for failure to comply)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (adequacy of appellate remedy in mandamus context)
- In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193 (Tex. 2002) (abate not subject to mandamus ordinarily; exception when statutory procedure at risk)
- National Plan Adm'rs, Inc. v. Nat'l Health Ins. Co., 235 S.W.3d 695 (Tex. 2007) (statutory construction; read in context; avoid expanding statutes by implication)