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Residential Construction Defect Case Law Update: Homeowners Not Entitled to Attorney and Expert Fees

Last year, the First Court of Appeals serving the Houston, Texas area held that the Texas Residential Construction Liability Act (RCLA) “does not permit a plaintiff to recover attorney or expert fees in the absence of an underlying cause of action providing for the recovery of such fees.” (Mitchell v. D. R. Horton-Emerald, Ltd., 579 S.W.3d 135, 140 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). The homeowners in the case appealed that decision to the Texas Supreme Court by filing a petition for review.  The Texas Supreme Court denied the homeowners’ petition for review back in April 2020 and recently ended the appeal by denying the homeowners’ request for a rehearing of that decision.

By denying the petition for review, the Texas Supreme Court determined that the homeowners’ issues with the appellate court’s decision did not present any error that required reversal or was not significant enough to Texas jurisprudence to require correction, even though the Texas Supreme Court is not satisfied that the court of appeals correctly declared the law in all respects. (Tex. R. App. P. 56.1(b)(1).) Simply put, the denial of the petition for review does not give any indication of the Texas Supreme Court’s decision on the merits of the issue. (See Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006).)

For now, in light of the opinion from the First Court of Appeals and the Texas Supreme Court’s denial of the petition for review, homeowners in construction defect cases subject to the RCLA will have a more difficult time recovering attorney’s fees and engineering and consulting fees.  As noted in the opinion from the First Court of Appeals, some claims subject to the RCLA, such as breach of contract claims, may allow for the recovery of attorney’s fees and expert fees.  However, if the homeowner is a subsequent purchaser of the home with no contract with the builder, then the homeowner may not be permitted to recover attorney’s fees or engineering and consulting fees from the builder.