In Re Kimball Hill Homes Texas, Inc.
969 S.W.2d 522
Tex. App.
1998
Check Treatment

*2 YATES, FOWLER, Hill’s Before AMIDEI and abate which asserted inapplicable. JJ. re-urging P in turn briefs HL & Following RCLA. OPINION 17,1997, hearing December *3 YATES, Justice. that the concluded homeowners a of action under the RCLA and de- cause proceeding This involves a suit mandamus nied Kimball Hill’s to abate. Jan- motion On damages brought by several hundred 14, 1998, uary Kimball Hill filed this against in the area homeowners Houston for writ of mandamus. Kimball Hill Homes Inc. and Kimball Hill”) Hill, (“Kimball and Houston must We first determine whether (“HL P”). Lighting Power & Kimball and a denial of motion abate under Hill is the It relator. claims appropriate RCLA is for review manda abating abused the case discretion mus. is available Mandamus relief Liability under the Residential Construction duty imposed by trial a law or court violates (“the RCLA”).1 Act See Tex. PROP.Code resolving in is abuses its discretion factual (Vernon § Supp.1998). 27.004 We con- Ann. determining legal principles in when sues or ditionally grant the writ. adequate remedy by no other law. is homeowners, the On October Packer, 833, 839-40 Walker v. interest, their real filed first (Tex.1992). A trial abuses its court discre original petition petition for amended and arbitrary and tion “it reaches a decision so against intervention relators and Houston as to to a clear and unreasonable amount (“HL P”).2 Lighting and Power & prejudicial error of law.” Johnson v. Fourth allege misrep- Hill homeowners Kimball (Tex. Appeals, 700 S.W.2d Court of craftsmanship and quality, resented ener- alleging a court When trial gy efficiency of their and that their homes in its resolution of fac abused its discretion constructed “substandard homes were issues, party tual must show the trial workmanship, poor quality materials and vir- only one reasonably court could have reached craftsmanship.” tually no The homeowners at 918. determination of decision. Id. As to conspiracy, asserted causes of action for com- occurs legal principles, an of discretion abuse fraud, law mon a or clearly analyze if the court fails to trial transaction, estate breach of contract and Walker, apply correctly. the law 26,1997, warranty. On breach November Hill filed a abate Kimball 27.004(c) an ex Mandamus is intended be the case under section remedy, only in limited traordinary available RCLA Kimball Hill answer also urgent “involving manifest and special exceptions “subject to” circumstances may grievances not for be necessity and motion. On December Holloway v. by other hearing on the addressed remedies.” parties appeared for a Appeals, That entry of control order. hear- Court a docket Fifth (Tex.1989). Supreme has The Texas passed after Hill ing was Kimball raised 15,1997, by the rulings incidental trial On abatement issue. by man petition, generally subject to review a are homeowners filed second rulings can ade those be dropping and breach damus because their breach contract appeal. See Abor v. sixty-two quately reviewed on warranty adding claims and ad- Black, 564, They ditional homeowners intervenors. void, is the trial court’s order howev- opposition also filed Kimball Where a brief Builders, party also a in interest and 2. HL & P” is 1. The Association of Greater Texas Association, parties” Houston the Home & Builders "real filed brief. Reference to the a Apartment Metropolitan Builders Association of opinion, means the home- Dallas Greater Worth Builders As- and the Fort owners unless otherwise indicated. briefs sociation have filed amicus curiae ing assert- applicability of the RCLA. er, unnecessary reviewing propri- it is for the relator to show it ball Hill without pursued ety other will available remedies and manda of an abatement under deprive mus will issue. South Bank v. Kimball Hill of the Main homes, (Tex.App.— inspect a Wittig, make reasonable settle- damages orig. proceeding). Houston ment offer defense to Here, Kimball Hill contends abatement was based on an offer. See Tex. PROP.Code such (f). 27.004(a), (b), automatic because its verified motion to Even Abor does not timely abate was review of incidental controverted. foreclose mandamus rulings Because court fails to ob- “when the district PROP.Code Ann. denying signed mandatory statutory provision order its motion to con- abate serve a abatement, during ferring forbidding particular the automatic Kimball Hill contends was void. If 567. An appeal action.” 695 S.W.2d at will *4 correct, unnecessary inadequate remedy party’s it is for it show be an to that where a appeal inadequate. an is ability Even to a at trial defense is vitiated required by Hill is a showing, severely compromised to make such court’s the trial Walker, we conclude does not have an error. 827 See S.W.2d adequate remedy by appeal. Here, suit Kimball Hill’s defense to the is compromised if the trial court to ob- failed Johnson, In Permanente Medical Ass’n v. mandatory provision serve the notice under 917 (Tex.App. S.W.2d 517 Worth —Ft. Therefore, appeal the an inade- RCLA is 1996, orig. proceeding), granted the court quate by appropri- and review mandamus is mandamus relief to the defendant when the application ate. of We now address the the trial court failed to abate the case under the Liability Improve- Medical and Insurance ment Act. See Tex.Rev.Civ. applies “any Ann. Stat Aet. The RCLA action to recov- (Vernon § Supp 4590i 4.01 Stating er damages resulting from a construction that “issuance of writs mandamus is limit- 27.002(a). § defect.” Tex. ed to those adequate instances which no “A construction defect” means “a matter con- by exists,” remedy appeal the court held that cerning design, repair of the construction or plaintiff give “when a fails to the a person new ... on which a has a residence prerequisite filing notice that is a suit and complaint against “may a contractor” and timely request defendant’s for abate- physical damage include to the residence ... denied, ment is that defendant is entitled to proximately by caused a construction defect.” seek review of the court’s denial manda- 27.001(2). seeking § Id. at A claimant dam- Hash, (citing mus.” See id. Hines v. 843 ages from a arising construction defect must (Tex.1992)). S.W.2d This re- give the the contractor written notice of de- cently followed Hines and Permanente in sixty days filing fect before suit. See Online, Williams, America 27.004(a). If claimant PROP.Code Ann. S.W.2d 271-72 [14 notice, give fails the trial —Houston 1997, writ), th where Dist] we court, a hearing, after must abate the suit. erroneously trial court certified a class dur- See id. at The suit is automati- ing mandatory period abatement cally without court order on elev- abated the DTPA. day plea enth after the date filed, the claimant does 4590i, Like the DTPA and article controverting file a affidavit before the elev- provision the RCLA has a notice is a day. enth id. mandatory prerequisite filing suit. See Hines, argues at applies S.W.2d see also Trimble Kimball Hill be- Itz, (Tex.App.— cause real first and second Antonio), denied, petitions allege San writ de- S.W.2d construction hand, parties, purpose The of the notice re fects. real on the other quirement encourage pre-suit negotia argue apply is to the RCLA does not because expense litigation. allege only pre-construction tions to avoid the fraud based Trimble, Forcing misrepresentations Kim- Kimball Hill and made denied) th quality [14 Dist.] HL & P about the of their homes. Houston writ (same); They pleadings Rogg, not even see also Marks-Brown v. note their Nevertheless, (Tex.App. mention we con- the RCLA. - Houston denied) (plaintiff writ pleadings trigger clude their are sufficient to could claim). by pleading the RCLA. avoid 4590i Like wise, suit, underlying in the Roger In Bullivant O’Donnell requisites cannot avoid Texas, Inc., (Tex.App.— pleading. artful first Similar their amend denied), plaintiffs Ft. Worth petition, parties allege in ed their faulty sued their contractor for foundation their second amended homes repairs plaintiffs home. assert published “did ... ‘Good meet Cents negligence, gross neg ed causes of action for and “were built with sub Home’ standards” ligence, liability, warranty, product breach of workmanship, ... inferior materi standard violation the DTPA. breach of contract and als, wholly lacking craftsmanship.” ... plaintiffs Id. As in this allegations the context of these con While RCLA, declaratory judg sought but purported misrepresen cerns Kimball Hill’s ment did not limit their promises, tations and false without the al court in claims. 413-14. defects, leged is no construction claim summary granted judgment stead *5 petition. under the first or seeond amended plaintiffs’ contractor and denied the counter- Furthermore, parties damages seek the partial summary judgment, motion for find value, specifi are for which reduced market ing plaintiffs’ governed by suit that the cally recognized by the RCLA. Thus, plaintiffs the RCLA. while the nev 27.004(h)(3).3 A claim RCLA, pled appeals er the the of held alleged solely by con that exists virtue of Trimble, Likewise, applied. in clearly falls within the struction defects company insurance asserted causes action say par the real RCLA. This is not to that contract, warranty, for breach of breach of bringing other claims ties are barred from DTPA. and violation the pur that not conflict with the remedial do pled, Although.the RCLA was never Jim pose the RCLA. See Bruce v. Wal the the trial court sanctioned insurance com Homes, ters S.W.2d —San give pany part failing for to notice under denied) 1997, (holding the Antonio that reversing the RCLA. Id. In the sanctions claims). preempt not fraud does order, appeals applied the court of also the here, issue is not whether proper remedy RCLA and held that the preempts parties’ the real give under failure to notice the statute claim, parties but the real state whether abatement, not sanctions. Id. at 373-74. they claim We hold that under RCLA. Thus, parties of the real to the failure have abated and that the trial court should application preclude does the case. appropriate. where undisputed Supreme It is that Kimball Additionally, following the Texas lead, on consistently filed a to abate November Court’s this verified motion parties not the real did underlying nature of claim con and that pursuant pleading timely controvert plaintiff trols cannot artful parties The real contend recast the adverse section a claim order avoid only to notice under the Beverly provision v. relates Mulligan effect of a statute. See required 881, not Enterprises-Texas, statute and that were they did (Tex.App. controvert the notice issue because - Houston writ) 1997, We dis (plaintiff relief the statute. could not avoid article seek no claim); parties’ is that agree. If the real contention by pleading 4590i DTPA Viviano v. Moore, 326, the statute required because (Tex.App.— notice was ment, parties 27.004(h)(3) there were nu- permits recovery for the real conceded 3. Section extent the re- problems reduction in market value homes. merous structural argu- oral failure. At duction is due structural Gallardo, apply, obligation 327, it was their to assert (Tex.App.— writ). position 1995, timely response. in a Because San Antonio no parties failed to do so and their suit The trial court in this case used its discre- statute, fell within the their suit should have sought tion to determine that the abatement automatically been on abated December applicable was not at the time under the point, 1997. At that both the trial court and presented. unique facts The trial court or- parties precluded were going from for denying der abatement on December ward on the case. An abatement is a Although, assuming 1997 was not void. suspension proceedings of all in a suit.4 See paragraph 4 of Original Plaintiff’s Petition Permanente, 917 (emphasis S.W.2d at 517 “Breach of Warranty” entitled Contract and added). Abatement of an action not may have constituted cause of action under precludes the trial court from going forward RCLA that an automatic abatement was prohibits on a parties pro from effected because no ceeding any manner until the case has controverting plea was filed been reinstated. Lumbermens Mut. Cas. Co. (the homeowners) pursuant Garza, (Tex.App.— (d)(2) RCLA, Section 27.004 of the 1989, writ). Fort Worth Unless otherwise trial court was to allow the real specified order, any the abatement action parties a reasonable to amend to taken the court or during Bryce Corpus remove the abatement. legal nullity. is a See id. Ac Christi Area Convention and Tourist Bu cordingly, we hold reau, abused (Tex.Civ.App.— its discretion in abating the ease under n.r.e.); Corpus Christi writ ref'd Atkin Thus, the RCLA. Reid, second son v. (Tex.App.— filed on writ); December 15th and Antonio San Bluebonnet Farms, court’s December 17th denying order Savings Gibraltar Associa *6 tion, motion to 81, abate are void. (Tex.Civ.App. 618 S.W.2d 83 —Hous 1981, n.r.e.); ton st [1 Dist.] writ ref'd M & Relator’s for writ of mandamus is Ins., M Const. Co. v. Great American 747 hereby conditionally granted. The trial 552, (Tex.App. Corpus 554 Christi — court should vacate its December 17th order writ). 1988,no It would have been error had and abate the case in accordance with the the trial court parties refused the real procedures mandated the RCLA. Should they to amend as did to delete said comply, fail to the writ will paragraph 4. parties The the real amend issue. already ment had been filed at the time of hearing on the Motion to Abate. It AMIDEI, Justice, dissenting. would have been absurd require the real respectfully I dissent. parties to refile their Second Amended Peti generally Abatement is ruling an incidental immediately tion hearing. after that susceptible to mandamus. Trial majority opinion courts errs because it holds the generally have discretion in abatement deci nullity Second Amended Petition to be a and sions. Dolenz v. Continental Nat’l Bank it doesn’t necessary set forth information Worth, 572, (Tex.1981); Fort 620 S.W.2d 575 guide parties procedure the real to a correct Black, (Tex. 564, Abor v. 695 S.W.2d 567 to correct the defect which can M be cured. 1985); Pope 950, Ferguson, Ins., v. 445 S.W.2d & M Const. Co. v. Great American 747 (Tex.1969), denied, 997, 954 cert. 554; 397 Bryce Corpus U.S. 90 S.W.2d at v. Christi Area (1970). 1138, S.Ct. Bureau, L.Ed.2d 405 The trial Convention and Tourist 569 S.W.2d effect, courts any, 499; Reid, should consider what Atkinson v. 625 S.W.2d at 67. abatement ability will have on Plaintiffs parties to The real given should have been prosecute remaining claims. Gebhardt v. pos- reasonable to amend as was interpret 4. We this partially to mean that an abatement sense to abate this case because all of applies parties. to all claims and all alleged the real claims arise out of con- 27.004(d) (referring to abate- struction defects. suit”). Indeed, ment of "a it would make no proceed sible in this case to remove the obstacle dismiss and would be A against created the automatic abatement. case under the their wishes. Not RCLA upon of the preempt revived removal obstacle which does prevented prosecution parties its further in the first causes of action does not fraud v. appellants proceed instance. M & M Const. Co. Great Ameri require and un- Ins., can Texas and the act if not so desire. der Jarrell, Highway Dept. v. The trial abuse its court did not discretion automatic abatement deciding longer there was permanent pre case is not deny cause of case. I would action prosecution alleged venting the other mandamus. parties. action fact causes of parties filed their Second omitting paragraph Petition said Amended operates would a as

voluntary alleged dismissal action, longer pleading is no

cause of and parties retains real common

law causes action. Co., Equipment Leasing Wu v. Walnut JORDY, Appellant, Raymond John (Tex.App . -Houston v. grounds, appeal on other rev’d (Tex.1996)); w.o.j., 920 dism’d Texas, STATE of State. (Tex. Shoults, Harris v. No. 2-97-076-CR. 1994, writ); App. Gage Worth - Fort (Tex.Civ Langford, 615 S.W.2d Appeals of Court of n.r.e.). .App ref 'd Tex . -Eastland Fort Worth. (Tex. Tamminga, May App. It is no different than - Waco voluntary took a non-suit as paragraph. to the Real re causes of

tained the viable fraud action which by RCLA. preempted

were not Bruce v. Jim *7 Homes, Inc.,

Walters denied). Antonio —San to the Contrary majority the trial court could notwithstanding causes abate the fraud automatic abatement RCLA cause. Thompson,

Atkinson (T ex.Civ.App. writ refd - Houston n.r.e.). Therefore, the automatic abatement only eight days,

was in effect from-December (11

8,1997 filing days after the the motion abate) until December the date

appellants’ their Second Amended Peti prevent is no rule to

tion. There dismissal, voluntary filing from ei through peti

ther a non-suit or an amended

tion, having prove to avoid a cause of The RCLA cause of

action under RCLA.

action, longer any, was no before the trial filed.

court once the Amended Petition was P. 65. The effect of the

Tex.R. Civ.

majority opinion is that could