*1 376 harm we con- conducting analysis,
When (1) charge HOMES, Venture, following sider the factors: PERRY Joint (2) itself; evidence, includ- the state of the Appellant, weight pro- ed issues and the contested v. (3) counsel; evidence; arguments bative Hajer Aziz ALWATTARI (4) any other relevant information re- Alwattari, Appellees. vealed trial as the record State, 42, Bailey whole. v. 43 867 S.W.2d No. 2-98-106-CV. (Tex.Crim.App.1993). Texas, Court Appeals The appellant’s sole defense relied Fort Worth. accidentally
on his that the gun assertion discharged. wit appellant and three Nov. 2000. gun nesses testified the went off when Rehearing Jan. Overruled appellant’s
victim at hand. slapped Additionally, during closing arguments, de did appellant
fense counsel asserted the intentionally pull
not and the trigger
shooting Although was an accident. clearly
evidence raised the issue of volun-
tariness, jury oppor was not given
tunity reach of accidental State,
involuntary shooting. See Butler v. (Tex.App 857 . —Houston (Where ref'd). pet. Dist.] evi [1st clearly guilt
dence under alter supported theories, of a
nate the court held the denial harmless.)
voluntariness instruction was
Here, appel the voluntariness of firing
lant’s was the gun actions defense;
appellant’s he was enti primary jury that de upon
tled have the rule having
fense was harmed
requested instruction submitted State,
jury. See S.W.2d Miller 815 conclude (Tex.Crim.App.1991). We appellant did suffer harm the some proper
trial erroneous denial of his court’s Hill v.
ly requested jury instruction. See
State, (Tex.Crim.App. judgment the trial
We reverse court’s the case to the trial court
and remand
a new trial. *3 L.L.P., Wynne Riggs,
Gardere & Sewell Bracken, Houston, Geoffrey H. & Gardere L.L.P., Obenhaus, Allison Wynne, Stacy R. Dallas, Appellant. Logan, Freeman for Stark, P.C., Law Anne P. Offices of Stark, Dallas, Appellees. Anne P. CAYCE, C.J.; PANEL A: DAY and LIVINGSTON, JJ.
OPINION CAYCE, JOHN Justice. Chief once again In this case we must decide limitations whether the to contrac- liability provided defenses to Liabil- tors in the Residential Construction (RCLA) a homeowner’s ity apply Act1 against suit a contractor defect, caused construction when .a (Vernon Tex.Prop.Code 27.001-.007 §§ Alwattaris, contractor fails to make a reasonable writ- On December ten offer of through lawyer, settlement. We hold that the sent a letter to Per- ry Homes demanding limitations on and defenses to pay engineering report, do not for an such a situation. the cost any necessary repairs, temporary housing We further hold that appellees’ Deceptive (DTPA) for the during repairs, Trade Practices Act2 claim is not value, reduction in the house’s market preempted by the RCLA under the facts attorneys’ Alwattaris’ fees. Less than modify this case. We the trial court’s later, week the Alwattaris sued judgment to appellees delete the award to contract, Homes for breach of violations of for costs of under the DTPA. We DTPA, negligence, *4 the gross negli- and affirm the judgment, remainder of the as 10,1996, gence. January Perry On Homes modified. had a structural Al- engineer inspect the wattaris’ house. Based on engineer’s the I. BACKGROUND FACTS findings, Perry responded Homes to the Appellees Aziz Hajer and Alwattari Alwattaris’ demand letter January bought Texas, a new home in Arlington, following with the written offer of settle- by appellant constructed Perry Homes. ment: signed Alwattaris an money earnest Complaint. Foundation With re- contract in December 1991 buy the gard movement, to the foundation twen- $199,500. house for Prior to in closing (20) ty piers will be installed starting at January the Alwattaris received a the northwest corner of the house con- warranty from Home Owners Warranty tinuing along the east side of the house Corporation. In late the Alwattaris ( n ) way two-thirds along the noticed hairline cracks in the walls and south side of the house. The concrete expansion joints of the house and contact- (12) piers will be in twelve inches diame- ed Perry Perry Homes. Homes sent (24) twenty-four ter with a inch under- David Redd to inspect the property and piers ream. The concrete will be install- take elevation measurements. Redd re- (10) approximately ed to ten feet below ported Perry Homes that there had the surface. The total cost piering for been shifting some in the foundation. $7,000.00. approximately will be At the installed, time piers any are hairline Alwattaris replacing were crack in the thirty-sec- foundation one damaged kitchen, flooring their (½2) ond of an inch in they larger when width or will noticed a crack the founda- be epoxy. filled in with Upon tion. further inspection, Redd found additional settlement under the foundation. Perry sixty Homes will pay percent 31, 1994, August On (60%), $4,200.00, Mr. Alwattari sent a i.e. of the total cost of Perry letter to Homes’ warranty depart- installing piers by way joint of a ment and asked what remedial actions payable check to the Alwattaris and the Perry should be taken. Bill Homes sent independent perform contractor hired to Ford the house to investigate the Alwat- the installation. The pay Alwattaris will taris’ concerns. Based on findings, (40%), Ford’s forty percent the other i.e. Perry began $2,800.00, Homes performing cosmetic of the total cost of installing house, repairs which were piers. needed The Alwattaris will submit a foundation, due to the shifting of the proper claim regarding the foundation informed the “process Alwattaris that the repair to Home Warranty Owners Cor- (“HOW”) will take 2-3 months.” The Alwattaris poration in accordance with continued discover cracks their walls the terms of their Home Owners War- and kitchen floor. ranty Program. Perry Homes will re- (Ver- §§ 2. Tex.Bus. & Supp.2000). 17.41-.63 non 1987 & Com.Code Ann. Perry of their claims. of all sent a release Homes copy
ceive documents Al- regarding company from received HOW then hired foundation accepted, $10,000 If wattari’s claim. the claim is worth approximately make of re- will Perry required Holmes not be Perry pairs. paid Homes for entire reimburse repairs. By following cost of the $2,800.00 paid month, them towards installa- completed Homes had all of piers. tion of the It is repairs Alwattaris demanded in understanding paying ... that HOW is with report. accordance McHale’s (40%) accepted forty percent on all sent a July On McHale letter Therefore, provid- coverage claims. stating to the Alwattaris structur- will cover the additional ed HOW had completed al been and that $2,800.00 piers. required to install repairs appear “the foundation to have If, however, rejected, Perry the claim is properly completed.” been Homes will reimburse began making further cosmetic contribution. had September substantially (3) Complaints. Three Cosmetic time of completed them at the trial piers install- months after have been December 1997. *5 ed, pro- or Perry independent Homes an engineer reinspect the fessional will II. THE TRIAL CHARGE COURT’S (1) will, and within month of house one trial, parties the stipulated At the that reinspection, all cosmetic repair the problem was a foundation “construction move- any items related foundation defect,” by as the RCLA.3 The defined repair process. ment or the foundation granted Perry Homes a direct- trial court Attorneys’ was Fees. Because suit gross negli- verdict on Alwattaris’ ed the Perry was sent filed before Homes gence claim and their claim under the on letter, Perry formal demand Homes advantage DTPA that took Perry Homes pay the demanded unwilling experience the lack of Alwattaris’ matter, In by you. order resolve this knowledge degree. to a unfair grossly Perry Homes will the Alwattaris pay challenge The Alwattaris not direct- do attorneys’ fees. $750.00 ed verdict. offer, receiving After the Alwattaris Question charge, Special In court’s Perry negotiations settlement with began asked, later, they hired their Homes. Sometime Perry Did Homes make reasonable McHale, Gary inspect engineer, own the Plain- written offer of settlement to Al- McHale house. determined (45) days of its forty-five tiffs within performing wattaris’ foundation not was of the written receipt December later, year A McHale re- adequately. from [the Alwattaris]? notice foundation turned and determined that the settled unchanged remained and had not Answer ‘Tes” or “No.” further. any Perry over jury The was instructed then not to answer objection Special May Alwattaris demanded Homes’ Questions 3 and Perry Homes the foundation which contained repair recovery under requiring damage to execute elements without any physical may defect” defect” include dam- defines a "construction The RCLA residence, any appurtenance, age as or property concerning design, construc- the real on which residence a matter tion, residence, proximately of a of an appurtenance new are affixed existing of or to an resi- alteration dence, addition by a caused construction defect. appurtenance an a resi- or of 27.001(2) {see note Tex.Prop.Code infra dence, person complaint which a on has "construc- against a contractor. The term RCLA, they Question if Special nothing answered that the Alwattaris should take Thus, 1 “no.” jury was that if charged claim their RCLA because they found that Perry Homes did not rejected unreasonably pre- its offer and offer, make a reasonable settlement they support recovery sented no evidence to any damage were not allowed to answer repairs necessary the reasonable cost of questions relating to the Alwattaris’ RCLA Perry cure the defect. Homes attacks Instead, jury claim. was instructed to parts judgment jury other ver- special answer the questions on the Alwat- dict, including multiple asserting issues taris’ other claims. trial court’s judgment should be jury’s findings reversed DTPA because the
III.THE VERDICT AND supported are not the evidence. JUDGMENT Relying on our decision O’Donnell v. jury found that Perry Homes did Texas, Inc., Roger Bullivant not make a reasonable written offer of 411 (Tex.App. Worth writ de and, therefore, — Fort settlement did not answer nied) (op. reh’g), four amici curiae4 special questions related to the dam- argue applies that the RCLA to the Alwat- age for the elements Alwattaris’ RCLA claims, taris’ even if Homes did not claim. In answering special questions make a reasonable written settlement of claims, on the Alwattaris’ other submitted fer, and that the effect of however, jury found that failure to make a reasonable offer is that negligent and that it had violated the the limitation on the amount of by acting DTPA unconscionably, by 27.004(i) provided for in subsection does breaching the warranty good workman- apply. argue, Id. at 421. Amici how ship, engaging in such conduct *6 ever, controlling precedent that under the knowingly. jury The awarded the Alwat- O’Donnell, of types the limitations on the $1,557.39 $10,000 taris in actual expenses, of damages provided for subsection for the diminution in fair market value of 27.004(h) apply to the Alwattaris’ claims. condition, $5,000 repaired home its Id. conduct, knowing $35,000 in attorneys’ fees. Based on the The Alwattaris also cite O’Donnell as Alwattaris’ election to recover on the authority for opposite proposition that DTPA findings, trial court doubled the preemptive provisions the RCLA’s do not $1,000 first of actual based apply, jury correctly because the found jury’s knowing conduct and ren- Homes failed to make a rea- judgment awarding dered They sonable written settlement offer. total in the amount of jury’s contend that DTPA verdict $35,000 attorneys’ fees. supported by the evidence and that judgment of the trial court should be af-
IV.SUMMARY OF ISSUES firmed. APPEAL ON Perry Homes asserts that the Alwattaris V. THE RCLA precluded are recovery from under DTPA preemptive provision “any because the applies RCLA to action applies the RCLA damages resulting their construction to recover from a con defect, Specifically, defect claim. except person struction a claim for survival, contends that it a injury, wrongful made reasonable written al or death or for Tex.Prop.Code settlement offer as a matter of law and Ann. damage goods.” amicus, 4. The amici are Greater Houston Builders Builders. A fifth Centex Homes and Association, Corporation, The Home Builders Association also filed a Centex Real Estate Dallas, application of Greater The Greater Fort Worth brief but did not address the Association, Builders and Texas Association of the RCLA. (1) nec- 27.002(a).5 RCLA, cost of the reasonable enacting § essary any cure construction defect specifically provided legislature cure; that the contractor failed the extent prevail “[t]o RCLA would oth chapter any (2) tempo- conflict between expenses the reasonable law, Deceptive Trade including reasonably necessary er dur- rary housing Act.” Id. period; Protection ing Practices-Consumer Thus, a claim that supplied). (emphasis (3) value, if reduction market alleged construc solely by virtue of exists the reduction is due to any, to the extent exclusively within the tion defects falls failure; a structural Tex., Kimball Hill Homes RCLA. In re (4) necessary attor- reasonable and Inc., (Tex.App.— ney’s fees. 1998, orig. proceed [14th Dist.] Houston 27.004(h). § subsection Under Id. allegations (holding applied RCLA ing) 27.004(i), however, the total misrepre builder based on against home against a con- may homeowner recover because promises sentations and false purchase price may tractor not exceed the construc was no claim without there 27.004(f). of the residence. Id. defect). homeowner, however, may A damages and defens- The limitations with that do not conflict bring other claims in section 27.004 provided es to Bruce the RCLA. purpose the remedial to make if contractor fails do not Homes, Inc., 943 S.W.2d Walters Jim offer or written settlement a reasonable Antonio 123-24 — San manner in the cure the defect otherwise denied) does not (holding writ RCLA sub- Specifically, by the RCLA. prescribed claims). law fraud preempt common 27.004(g)provides: section make a reason- RCLA, If fails to a homeowner who a contractor Under section, fails to under this or able offer must of a construction defect complains complete attempt make a reasonable written notice of give the contractor offer 27.004(a). accepted Tex.PROp.Code in an specified claim. section, fails to com- made under this days then has 45 make The contractor man- and workmanlike plete, good Id. to settle the claim. written offer *7 accepted ner, in an specified 27.004(b). unreason- § If a homeowner section, limi- offer made under of rejects a contractor’s written offer ably defenses tations on permit the con- settlement or refuses provided this section liability for in opportunity tractor reasonable apply. shall not defect, recovery total the homeowner’s cost of is limited to reasonable supplied). § 27.004(g)(emphases Id. con- necessary to cure the repairs that are PERRY SETTLEMENT HOMES’ YI. defect, rea- the amount of plus struction OFFER attorneys’ fees and necessary sonable reject- conten- the offer costs incurred before We first address 27.004(f). § offer rejected. Id. a reasonable written or considered tion that it made ed as a matter Otherwise, to the Alwattaris limits home- settlement the RCLA of receiving the days after within 45 following damages law recovery to owner’s of 7, written notice 1995 de- December by caused the construction proximately above, if As noted complaints. Alwattaris’ fect: 3166, 3166-69, by Act amended Tex.Gen.Laws suit in Decem- the Alwattaris filed 5. Because R.S., 414, 1995, 19, Leg., ch. 1995, May 74th RCLA con- 1995 version of the ber 2996-97, 2988, 10, opin- Tex.Gen.Laws 1995 the RCLAin this All references to trols. 1999, 8, Leg., May 76th by Act of amended designations of the 1995 the letter ion use 663, 189, R.S., 664- version, Tex.Gen.Laws ch. 1999 Act of 1999 version. not the current version, R.S., 797, (for supra note see current 67 Leg., ch. 1993 May 73rd
383
by
war-
paid
Homes made a reasonable settle-
claim was
their homeowner’s
law,
its
ranty. Perry
ment offer as a matter of
it is entitled
Homes also conditioned
executing
a full
the benefit
the limitations on dam- offer on the Alwattaris’
ages
provided
and defenses to
of their claims. We hold this is
release
27.004.
jury’s finding
section
support
some evidence to
offer was
that
Homes’ settlement
A
point
“matter-of-law”
is used
unreasonable. We must now determine
when
is an
on an
finding
there
adverse
Alwattaris’
finding
the effect of this
on the
appellant
issue that the
had the burden of
action.
RCLA
proving
conclusively
and the issue is
estab
lished
the evidence.
v. Mara
Sterner
VII. O’DONNELL V. ROGER
Co.,
(Tex.
686,
thon Oil
767 S.W.2d
690
TEXAS,
BULLIVANT OF
Fenwal,
Sec., Inc.,
1989);
Inc. v. Mencio
INC.
660,
665 n. 1 (Tex.App. — San
resulting
We first addressed the
effect
n.r.e.);
Antonio
writ ref'd
W. Wen
Texas, of a contractor’s failure to make a reason-
Hall,
dell
Review in
Standards of
(1998).
able settlement offer on a homeowner’s
29 St.
L.J.
481-82
MaRy’s
case,
RCLA action O’Donnell. In that
reviewing a
point,
matter-of-law
we first
sued their contractor for
examine the record for
homeowners
sup
evidence
ports
faulty
the adverse
to their
ignoring
while
all
foundation
home.
contrary.
evidence to the
Victoria Bank The O’Donnells asserted causes of action
Brady,
& Trust Co. v.
negligence, gross negligence, product
S.W.2d
940 for
(Tex.1991).
If no
supports
liability,
warranty,
evidence
con-
breach
breach of
finding,
tract,
adverse
we then examine the en
and violations of the DTPA. The
contractor, Bullivant,
tire record to determine whether the evi
summary
moved for
conclusively
dence
establishes all vital
judgment, asserting
gov-
that the suit was
in support
facts
proposition
as a
erned
the RCLA and that under
matter of law.
Id. If the issue is estab RCLA, the
O’Donnells were entitled
evidence,
lished conclusively by the
price
recover no more than the
purchase
point
Meyerland
must be sustained.
their home.
O’Donnells filed
coun-
Cmty. Improvement
Temple,
Ass’n v.
partial summary judgment,
termotion for
[1st
asserting
the RCLA did not
— Houston
n.r.e.).
Dist.]
wilt ref'd
because Bullivant failed to make a reason-
able
Finding
written settlement offer.
The evidence
shows
the Alwat-
suit,
that the
trial
applied
RCLA
purchased
taris
house
1992. Less
summary judg-
granted
court
Bullivant’s
later,
year
than one
began
house
judg-
ment motion and rendered a final
signs
show
of structural damage due to
*8
ment for the
in the amount of
O’Donnells
in
shifting
the foundation. The damage,
$44,500,
purchase price
the
of their home.
foundation,
which included
in
cracks
the
O’Donnell,
385 10, 1977, R.S., testimony, May Act of ch. matter what.” Based on Leg., 65th 216, 1, 600, 600, § 1977 Tex.Gen.Laws evi- legally we conclude there is sufficient May Act 74th amended at the gross disparity dence to establish R.S., 2, 414, § Leg., ch. 1995 Tex.Gen. purchased time the Alwattaris the house (current 2988, Laws 2989 version at two. Tex. 1992.8 We overrule issue (Vernon 17.45(5) Bus. & Com.Code Supp.2000)). Disparity in value must be Damages B. DTPA sale; at the determined time of diminution in value cannot caused later events Repairs 1. Reasonable Costs unconscionability an Park support claim. 434, way Woodruff, Co. v. 901 441 S.W.2d there Perry Homes asserts that (Tex.1995). jury’s finding support no evidence to Alwattaris that the amount the In determining whether there is paid for to the house is reasonable. legally support sufficient evidence to or costs out-of-pocket expenses To recover jury’s unconscionability finding, must we the Alwattaris were re paid repairs, for light consider all of the evidence in the quired prove paid the amounts were most favorable to the Alwattaris and to necessary. Ebby both reasonable and every indulge reasonable inference from Estate, Murnan, Halliday Real Inc. v. 916 the evidence the Alwattaris’ favor. For 585, S.W.2d 589 Worth mosa Corp. Eng’rs Plastics v. Presidio & — Fort denied). 1996, necessary writ is not “[I]t (Tex. Contractors, Inc., 41, 960 S.W.2d 48 a claimant to use the ‘reason for words 1998) Pharm., (op. reh’g); Merrell Dow ‘necessary’; only able’ and a claimant need Havner, (Tex. 706, Inc. v. 953 711 S.W.2d cert, denied, present justify sufficient evidence to 1997), 1119,118 523 U.S. S.Ct. 1799,140 (1998); jury’s finding that the costs were reason L.Ed.2d King’s 939 In re Id, Estate, 662, 660, repairs necessary.” 150 Tex. 244 able and the 661 (1951). son, Omar, The Alwattaris’ testi The evidence shows that following expenses: fied $57.39 purchased their house in 1992 window, the master bathroom repair $750 $200,335. Johnson, realtor, Cheryl for engineering report, for McHale’s $325 $161,000 testified that the house was worth appraisal, gutter, Johnson’s $50 30, May state; unrepaired an to remove the kitchen floor and $375 that the value of repaired the house in its paint the slab. No other evidence $196,000 1996; state would be in May support offered in of the Alwattaris’ claim 1996, May that its if value it had never expenses. for these While evidence problems had foundation or related dam may necessary show the were $211,000. Thus, age, according would be defect, the direct result of the foundation Johnson, $15,000 “buy the house had a support jury’s there is no evidence to stigma.” Adding er this amount expenses that the were reasonable.
$35,000
required repairs,
testi
Johnson
P’ship
Fort
Hotel Ltd.
v. Enserch
Worth
fied that the
actual value was at
house’s
(Tex.App.—
762-63
Corp., 977 S.W.2d
$50,000
than what
least
less
pet.); Ebby Halliday
Fort
no
Worth
it
paid for
as a result of the foundation
Estate,
Real
2. Diminution Fair Value in the fair market value of diminution repairs.9 after house Perry complains that Homes also recover the Alwattaris are not entitled to Knowing Conduct C. $10,000 damages for diminution in fair market value because diminution fair Perry argues Homes that the evi improper value an measure of market is legally support dence is insufficient According DTPA. damages under the Perry Homes’ conduct jury’s Homes, Perry proper measure of dam “knowingly,” committed because there ages unconscionability is either benefit- Perry no evidence that Homes sold the dis of-the-bargain out-of-pocket. or We knowledge of the Alwattaris the home with agree. problem.10 foundation Out-of-pocket loss and benefit-of- applicable version of the Under the-bargain are not the exclusive measures DTPA, a is entitled to recover plaintiff recoverable under the DTPA. damages” “additional when the conduct is Henry Bynum, Miller v. 836 S.W.2d S. Co. 29, May Act of “knowingly.” committed (Tex.1992); Note, 160, 162 Kish v. 692 Van 1989, means with “ac- swpra. Knowingly (Tex.1985) 463, reh’g). 466 (op. S.W.2d on falsity, decep- ... of the tual awareness DTPA in at Under the effect the time tion, practice.” act or or unfairness of the suit, prevailing Alwattaris filed consumer 10, 1977, R.S., ch. May Leg., 65th Act damages” could recover all “actual for eco- 600, 601, 216, 1,§ Tex.Gen.Laws 1977 by loss the consumer as a nomic sustained 1995, 19, 74th by May Act of amended Act deceptive practice. result of the trade 414, 2, R.S., § 1995 Tex.Gen. Leg., ch. 1989, R.S., 380, 29, May Leg;, 71st ch. (current 2988, version at Tex. Laws 2989 1490, 1491, 2,§ 1989 Tex.Gen.Laws (Vernon 17.45(9) § & Bus. Ann. Com.Code May 74th amended Act of Supp.2000)). 414, 5, R.S., § Leg., ch. 1995 Tex.Gen. (current in this case shows 2988, The evidence at Laws 2992 version Tex. 17.50(b)(1)(Vernon Al- began before construction on the & Bus. Com.Code home, Kish, Perry wattaris’ Homes ordered at Supp.2000)); see also 692 S.W.2d Test, 466; Baldwin, founda by Alpha predict Inc. to Smith v. 611 test (Tex.1980). (Alpha Report). include movement Test 617 Such predicted foundation occurring Alpha Report diminution in market value after Test McCollum, upof inches.11 addi repairs. Ludt v. 762 S.W.2d movement 21/4 McHale, (Tex.1988). Thus, tion, engineer, the Alwattaris’ we overrule construction, gen it is part challenging of issue three testified that new erally duty of the contractor to investi- damages awarded to the Alwattaris for the Perry awarding prepared by Homes. judgment because it was not 9. Because we affirm McHale, engineer, Perry However the Alwattaris’ Alwattaris DTPA conduct, report we need not also testified as to content Homes’ unconscionable any objection Perry Homes. Perry complaint in without from address Homes’ issue one previ report contents of the were regarding jury's findings of a breach of Because the DTPA, testimony through Perry ously admitted McHale’s warranty under the Homes’ Perry waived negligence findings objection, without Homes has challenges jury's report’s admissibility. any argument as to the under issues six seven. Green, 677 S.W.2d Richardson v. Co., (Tex. 1984); part argument, Perry Grocery of this Homes H.E. Butt 10. As Ramirez testing report prepared by contends that a soil — Waco denied). expert by Perry not admis- an hired Homes is writ and, opponent party sible as a statement of therefore, report prove knowledge was relied be used to 11.The cannot trial, Illingsworth, pre- engineer, Don part Homes. At structural on the proposed report paring plan in its settle- objected it to admission of the January hearsay the Alwattaris in grounds ment offer to that it was inadmissible *11 before only question testified this was or test the soil. McHale gate not decide whether near or did there was a creek court. O’Donnell that because 27.004(h)’s house, on the limitation Perry subsection behind the Alwattaris’ when a con- types damages removed or recom- is also lost Homes should have of soils, pre- offer. piers or installed tractor makes an unreasonable pacted Perry foundation defect. vent the contractor, Bullivant, impled the had Alpha Report Test and the knew of the home purchase price O’Donnells’ was near a fact that the Alwattaris’ house re- summary judgment and moved for legal- that this evidence is creek. We hold trial court to award questing the jury’s finding of ly support sufficient to Id. at purchase price. O’Donnells DTPA. under the We knowing conduct court to never asked the 414. Bullivant overrule issues four and five. 27.004(h) types of apply the subsection opinion damages. Id. While the O’Donnell IX. CONCLUSION of the other acknowledges the existence hold that because Homes’ set- We types damages set of limitations on unreasonable, limita- offer was tlement 27.004(h), holding of forth in subsection of types tions on the amounts of not reach the issue opinion does and the defenses to that are avail- con- an unreasonable offer whether to a contractor under section 27.004 of able types on the tractor waives the limitations thus, not the Alwat- apply; the RCLA do 27.004(h). The in subsection DTPA of action under the is taris’ cause the mone- only issue was whether preempted by not the RCLA. of- where no reasonable tary damage cap further hold that there is sufficient We Any had been made. broader fer to the Alwattaris’ recov- support evidence is tied to dicta interpretation of O’Donnell ery the DTPA for under require overruling. only and thus does that diminu- unconscionable conduct and in fair market value after is a proper measure of under However, judgment we modify
DTPA. $1,557.39 award of for costs
to delete the repairs, plus prejudgment interest amount, on that because there is
awarded that the amount of is no evidence AFFILI AMALGAMATED ACME judg- reasonable. The remainder of the University Sports ATES, INC. affirmed, as modified. ment Tex. Co., Inc., Appellants, Publications R.App.P. 43.2(b). LIVINGSTON, concurring J. filed a Dean Allen MINTON and opinion. Ltd., Associates, Appellees. Justice, LIVINGSTON, TERRIE No. 03-00-00181-CV. concurring. Texas, Appeals Court majority wholeheartedly join I in the Austin. aspects except in all as opinion necessity overruling portion of O’Don Nov. Texas, Inc., 940 Roger nell v. Bullivant of Worth — Fort denied) (op. reh’g). O’Donnell writ monetary loses the
only held a contractor 27.004(1) it when
damage cap of subsection because make a reasonable offer
fails to