Perry Homes v. Alwattari

33 S.W.3d 376, 2000 WL 1641086
CourtCourt of Appeals of Texas
DecidedJanuary 4, 2001
Docket2-98-106-CV
StatusPublished
Cited by31 cases

This text of 33 S.W.3d 376 (Perry Homes v. Alwattari) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry Homes v. Alwattari, 33 S.W.3d 376, 2000 WL 1641086 (Tex. Ct. App. 2001).

Opinions

OPINION

JOHN CAYCE, Chief Justice.

In this case we must decide once again whether the limitations on damages and defenses to liability provided to contractors in the Residential Construction Liability Act1 (RCLA) apply to a homeowner’s suit against a contractor for damages caused by .a construction defect, when the [379]*379contractor fails to make a reasonable written offer of settlement. We hold that the limitations on damages and defenses to liability do not apply in such a situation. We further hold that appellees’ Deceptive Trade Practices Act2 (DTPA) claim is not preempted by the RCLA under the facts of this case. We modify the trial court’s judgment to delete the award to appellees for costs of repairs under the DTPA. We affirm the remainder of the judgment, as modified.

I. BACKGROUND FACTS

Appellees Aziz and Hajer Alwattari bought a new home in Arlington, Texas, constructed by appellant Perry Homes. The Alwattaris signed an earnest money contract in December 1991 to buy the house for $199,500. Prior to closing in January 1992, the Alwattaris received a warranty from Home Owners Warranty Corporation. In late 1992, the Alwattaris noticed hairline cracks in the walls and expansion joints of the house and contacted Perry Homes. Perry Homes sent David Redd to inspect the property and take elevation measurements. Redd reported to Perry Homes that there had been some shifting in the foundation.

In 1994, the Alwattaris were replacing the damaged flooring in their kitchen, when they noticed a crack in the foundation. Upon further inspection, Redd found additional settlement under the foundation. On August 31, 1994, Mr. Alwattari sent a letter to Perry Homes’ warranty department and asked what remedial actions should be taken. Perry Homes sent Bill Ford to the house to investigate the Alwat-taris’ concerns. Based on Ford’s findings, Perry Homes began performing cosmetic repairs to the house, which were needed due to the shifting of the foundation, and informed the Alwattaris that the “process will take 2-3 months.” The Alwattaris continued to discover cracks in their walls and kitchen floor.

On December 7, 1995, the Alwattaris, through their lawyer, sent a letter to Perry Homes demanding that Perry Homes pay for an engineering report, the cost of any necessary repairs, temporary housing for the Alwattaris during the repairs, the reduction in the house’s market value, and the Alwattaris’ attorneys’ fees. Less than a week later, the Alwattaris sued Perry Homes for breach of contract, violations of the DTPA, negligence, and gross negligence. On January 10,1996, Perry Homes had a structural engineer inspect the Al-wattaris’ house. Based on the engineer’s findings, Perry Homes responded to the Alwattaris’ demand letter on January 23 with the following written offer of settlement:

Foundation Complaint. With regard to the foundation movement, twenty (20) piers will be installed starting at the northwest corner of the house continuing along the east side of the house and two-thirds (⅜) of the way along the south side of the house. The concrete piers will be twelve (12) inches in diameter with a twenty-four (24) inch under-ream. The concrete piers will be installed to approximately ten (10) feet below the surface. The total cost for piering approximately will be $7,000.00. At the time the piers are installed, any hairline crack in the foundation one thirty-second (½2) of an inch in width or larger will be filled in with epoxy.
Perry Homes will pay sixty percent (60%), i.e. $4,200.00, of the total cost of installing the piers by way of a joint check payable to the Alwattaris and the independent contractor hired to perform the installation. The Alwattaris will pay the other forty percent (40%), i.e. $2,800.00, of the total cost of installing the piers. The Alwattaris will submit a proper claim regarding the foundation repair to Home Owners Warranty Corporation (“HOW”) in accordance with the terms of their Home Owners Warranty Program. Perry Homes will re[380]*380ceive a copy of all documents sent to and received from HOW regarding the Al-wattari’s claim. If the claim is accepted, Perry Holmes will not be required to reimburse the Alwattaris for the $2,800.00 paid by them towards installation of the piers. It is Perry Homes’ ... understanding that HOW is paying forty percent (40%) on all accepted claims. Therefore, the coverage provided by HOW will cover the additional $2,800.00 required to install the piers. If, however, the claim is rejected, Perry Homes will reimburse the Alwattaris for their $2,800.00 contribution.
Cosmetic Complaints. Three (3) months after the piers have been installed, Perry Homes or an independent professional engineer will reinspect the house and will, within one (1) month of the reinspection, repair all cosmetic items related to any foundation movement or the foundation repair process.
Attorneys’ Fees. Because suit was filed before Perry Homes was sent a formal demand letter, Perry Homes is unwilling to pay the $1,500.00 demanded by you. In order to resolve this matter, Perry Homes will pay the Alwattaris $750.00 for attorneys’ fees.

After receiving this offer, the Alwattaris began settlement negotiations with Perry Homes. Sometime later, they hired their own engineer, Gary McHale, to inspect the house. McHale determined that the Al-wattaris’ foundation was not performing adequately. A year later, McHale returned and determined that the foundation remained unchanged and had not settled any further.

In May 1997, the Alwattaris demanded that Perry Homes repair the foundation without requiring the Alwattaris to execute a release of their claims. Perry Homes then hired a foundation repair company to make approximately $10,000 worth of repairs. Perry Homes paid for the entire cost of the repairs. By the following month, Perry Homes had completed all of the repairs the Alwattaris demanded in accordance with McHale’s report.

On July 21, 1997, McHale sent a letter to the Alwattaris stating that the structural repairs had been completed and that “the foundation repairs appear to have been properly completed.” Perry Homes began making further cosmetic repairs in September 1997 and had substantially completed them at the time of trial in December 1997.

II. THE TRIAL COURT’S CHARGE

At trial, the parties stipulated that the foundation problem was a “construction defect,” as defined by the RCLA.3 The trial court granted Perry Homes a directed verdict on the Alwattaris’ gross negligence claim and on their claim under the DTPA that Perry Homes took advantage of the Alwattaris’ lack of experience and knowledge to a grossly unfair degree. The Alwattaris do not challenge the directed verdict.

In the court’s charge, Special Question 1 asked,

Did Perry Homes make a reasonable written offer of settlement to the Plaintiffs within forty-five (45) days of its receipt of the December 7, 1995, written notice from [the Alwattaris]?
Answer ‘Tes” or “No.”

The jury was then instructed over Perry Homes’ objection not to answer Special Questions 3 and 4, which contained the elements of damage for recovery under the [381]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

The City of Springtown v. Kalie Ashenfelter
Court of Appeals of Texas, 2024
BNM Ventures, LLC v. Shannon Green
Court of Appeals of Texas, 2023
L.H. v. N.H.
Court of Appeals of Texas, 2015
Mario Santacruz v. Allstate Texas Lloyd's, Inc.
590 F. App'x 384 (Fifth Circuit, 2014)
Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch
443 S.W.3d 820 (Texas Supreme Court, 2014)
Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch
389 S.W.3d 583 (Court of Appeals of Texas, 2012)
Royce Homes, L.P. v. Humphrey
244 S.W.3d 570 (Court of Appeals of Texas, 2008)
Royce Homes, L.P. v. Mitch Humphrey
Court of Appeals of Texas, 2008
Country Village Homes, Inc. v. Patterson
236 S.W.3d 413 (Court of Appeals of Texas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
33 S.W.3d 376, 2000 WL 1641086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-homes-v-alwattari-texapp-2001.