                                                                              ACCEPTED
                                                                        03-14-00738-CV
                                                                                4848348
                                                               THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    4/10/2015 3:11:08 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK

                 03-14-00738-CV
                In the Court of Appeals                  FILED IN
                                                  3rd COURT OF APPEALS
        For the Third District of Texas at Austin     AUSTIN, TEXAS
                                                  4/10/2015 3:11:08 PM
                                                    JEFFREY D. KYLE
      Elness, Swenson, Graham Architects,     Inc.,       Clerk

                            Appellant,

                           v.

RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP,
     and RLJ Lodging Fund II Acquisitions, LLC,
                          Appellees.


                  On Appeal from the
  200th Judicial District Court of Travis County, Texas
            Cause Number: D-1-GN-002325
  The Honorable Stephen Yelenosky, Presiding Judge


               APPELLANT’S BRIEF


               Attorneys for Appellant

                                Gregory N. Ziegler
                                Texas Bar No. 00791985
MACDONALD DEVIN, PC             GZiegler@MacdonaldDevin.com
3800 Renaissance Tower          Weston M. Davis
    Dallas, Texas 75270         Texas Bar No. 24065126
 214.744.3300 telephone         WDavis@MacdonaldDevin.com
  214.747.0942 facsimile        Steven R. Baggett
                                Texas Bar No. 01510680
                                SBaggett@MacdonaldDevin.com


                                Oral argument requested
                       IDENTITY OF PARTIES AND COUNSEL

       In accordance with Texas Rule of Appellate Procedure 38.1, and to assist the
members of this Court in determining whether disqualification and recusal under
Texas Rule of Appellate Procedure 16 is necessary, Appellant certifies that the
following is a complete list of the parties, attorneys, and other persons who have an
interest in the outcome of this appeal:

Defendant/Appellant

      Elness, Swenson, Graham Architects, Inc.


Counsel for Defendant/Appellant

      Gregory N. Ziegler
      Texas Bar No. 00791985
      Steven R. Baggett
      Texas Bar No. 01510680
      Weston M. Davis
      Texas Bar No. 24065126
      MACDONALD DEVIN, PC
      1201 Elm Street
      3800 Renaissance Tower
      Dallas, Texas 75270
      214.744.3300 telephone
      214.747.0942 facsimile


Plaintiffs/Appellees

      RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP, and RLJ Lodging
      Fund II Acquisitions, LLC
             represented by
      Michael Huddleston
      Stephen Gibson
      Benton T. Wheatley
      Tracy L. McCreight
      Jessica C. Neufeld

                                          i                          831104.1   402/122
         MUNSCH HARDT KOPF & HARR, P.C.
         401 Congress Ave, Suite 3050
         Austin, Texas 78701
         512.391.6100
         512.391.6149 fax

Trial Court Judge

         The Honorable Stephen Yelenosky
         Travis County Courthouse
         100 Guadalupe, 4th Floor
         Austin, TX 78701
         512.854.9374

                        STATEMENT REGARDING ORAL ARGUMENT

         Appellant respectfully requests the opportunity to present oral argument, and

has so noted on the cover of this Brief.2 Although the facts and legal arguments at

issue are thoroughly represented in this brief and the record, oral argument will

significantly aid the decision in this case because it addresses complex issues of

statutory and contractual construction, as well as evidentiary admissibility issues.




2
    See Tex. R. App. P. 39.7.
                                           ii                          831104.1   402/122
                                            TABLE OF CONTENTS

Identity of Parties and Counsel ..............................................................................i

Statement on Oral Argument ............................................................................... ii

Table of Contents .................................................................................................. iii

Index of Authorities ................................................................................................v

Statement of the Case .............................................................................................1

Statement of Jurisdiction .......................................................................................3

Issues Presented........................................................................................................4

Statement of Facts ...................................................................................................4

Summary of the Argument ..................................................................................12

Argument ...............................................................................................................13

         I.       Standard of Review ............................................................................13

         II.      The trial court erred when it awarded RLJ Chapter 38 attorney’s
                  fees because RLJ did not recover any damages. (Issue No. 1) ...... 13

         III.     The trial court erred in finding that RLJ owned an assigned
                  breach of contract against ESG. (Issue No. 2) ................................17

                  A. South Ausaircourt did not assign any causes of action against
                  ESG to any RLJ entity ......................................................................19

                  B. The anti-assignment provision of the ESG Contract prohibited
                  assignment of the contract itself.......................................................28

         IV.      The trial court abused its discretion when it admitted evidence of
                  the ESG Contract without reference to evidentiary rules and
                  principals. (Issue No. 3).....................................................................31

                                                           iii                                      831104.1     402/122
         V.        The trial court erred in submitting a jury question regarding
                   ESG’s contractual liability for structural engineering services.
                   (Issue No. 4) .......................................................................................33

         VI.       The trial court erred in awarding RLJ diminution in value
                   damages because the evidence was legally insufficient to support
                   such damages. (Issue No. 5) .............................................................36

                   A. Hornsby’s Appraisal Date is inappropriate and makes his
                      testimony speculative, unreliable, irrelevant and
                      inadmissible .................................................................................38

                   B. RLJ and Hornsby failed to provide any evidence linking the
                      alleged diminution in value to ESG’s alleged breach ............. 43

                   C. The “comparable” sales in Hornsby’s comparative sales
                      opinions are not sufficiently similar or comparable ............... 46

                   D. Hornsby’s opinion on future occupancy and income is belied
                      by the Hotel’s actual occupancy and income ..........................50

                   E. RJL improperly sought “stigma” damages through Hornsby’s
                      inadmissible testimony ..............................................................53

                   F. RLJ’s legally insufficient evidence of market value damages
                      requires a take-nothing judgment in favor of ESG ................56

Prayer .....................................................................................................................57

Certificate of Service .............................................................................................58

Certificate of Compliance .....................................................................................59

Appendix Contents ................................................................................................59




                                                             iv                                        831104.1      402/122
                                              INDEX OF AUTHORITIES

Cases

Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp.,
      299 S.W.3d 106 (Tex. 2009) ........................................................................44

Barraza v. Koliba,
     933 S.W.2d 164 (Tex. Civ. App.–San Antonio 1996, writ denied) ............. 43

Barry v. Jackson,
      309 S.W.3d 135 (Tex. App.–Austin 2010, no pet.) ................... 39-40, 43, 48

Battaglia v. Alexander,
      177 S.W.3d 893 (Tex. 2005) ........................................................................17

Bay Area Healthcare Group v. McShane,
     239 S.W.3d 231 (Tex. 2007) ........................................................................33

Blizzard v. Nationwide Mut. Fire Ins. Co.,
      756 S.W.2d 801 (Tex. App—Dallas 1988, no pet.) .....................................15

Bloom v. Burkholder Corp.,
     No. 05-94-01297-CV, 1995 Tex. App. LEXIS 4029 (Tex. App.–Dallas May
     30, 1995) .......................................................................................................56

Boerschig v. Southwestern Holdings, Inc.,
      322 S.W.3d 752 (Tex. App.–El Paso, 2010, no pet.) ...................................22

Brooks v. Chevron USA Inc.,
     No. 13-05-029, 2006 Tex. App. LEXIS 4479 (Tex. App.–Corpus Christi,
     May 25, 2006, pet. denied) ...........................................................................22

Buccaneer Homes of Alabama, Inc. v. Pelis,
     43 S.W.3d 586 (Tex. App.–Houston [1st Dist.] 2001, no pet.) .....................15

Burroughs Wellcome Co. v. Crye,
     907 S.W.2d 497 (Tex. 1995) ........................................................................52


                                                           v                                      831104.1     402/122
C&H Nationwide, Inc. v. Thompson,
    903 S.W.2d 315 (Tex. 1994) ........................................................................17

Cadle Co. v. Henderson,
      982 S.W.2d 543 (Tex. App.–San Antonio 1998, no pet.) ............................28

Ceramic Tile Int’l, Inc. v. Balusek,
     137 S.W.3d 722 (Tex. App.–San Antonio, 2004, no pet.) ...........................22

Chiu Moon Chan v. Montebello Dev. Co.,
     No. 14-06-00936-CV, 2008 Tex. App. LEXIS 5980 (Tex. App.—Houston
     [14th Dist.] July 31, 2008, pet. denied) .........................................................43

Citrin Holdings, LLC v. Minnis,
       No. 14-11-00644-CV 2013 Tex. App. LEXIS 5723 (Tex. App.–Houston
       [14th Dist.] May 9, 2013, pet. filed) ..............................................................53

City of Brownsville, ex rel. Public Utilities Bd. v. AEP Texas Cent. Co.,
       348 S.W.3d 348 (Tex. App.–Dallas 2011, pet. denied) ........................ 23-24

City of Carrollton v. RIHR, Inc.,
       308 S.W.3d 444 (Tex. App–Dallas 2010, pet. denied) ............................... 37

City of Harlingen v. Estate of Sharboneau,
       48 S.W.3d 177 (Tex. 2001) ................................................................... 47-48

Consol. Reinforcement, L.P. v. Carothers Exec. Homes, Ltd.,
     271 S.W.3d 887 (Tex. App.–Austin 2008, no pet.) ......................................14

Cook v. Exxon Corp.,
     145 S.W.3d 776 (Tex. App.–Texarkana, 2004, no pet.) ............................. 22

Downer v. Aquamarine Operators, Inc.,
    701 S.W.2d 238 (Tex. 1985) ........................................................................33

Dukes v. Philip Johnson/Alan Richie Architects, P.C.,
     252 S.W.3d 586 (Tex. App.–Fort Worth 2008, pet. denied) ....................... 34

Ellis County State Bank v. Keever,

                                                     vi                                  831104.1    402/122
        888 S.W.2d 790 (Tex. 1994) ........................................................................17

Emscor Mfg., Inc. v. Alliance Ins. Group,
     879 S.W.2d 894 (Tex. App.–Houston [14th Dist.] 1994, writ denied) ........ 54

Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
     331 S.W.3d 419 (Tex. 2010) ...................................................................... 22

Exxon Corp. v. Pluff,
     94 S.W.3d 22 (Tex. App.–Tyler 2002, pet. denied) .............................. 20-22

Fire Insurance Exchange v. Sullivan,
       192 S.W.3d 99 (Tex. App.–Houston [14th Dist.] 2006, pet. denied) ............15

First Am. Title Ins. Co. v. Combs,
       258 S.W.3d 627 (Tex. 2008) ....................................................................... 13

Goldman v. Olmstead,
     414 S.W.3d 346 (Tex. App.—Dallas 2013, pet. denied) ........................... 41

Green Intern., Inc. v. Solis,
     951 S.W.2d 384 (Tex. 1997) ............................................................14, 16, 18

Hammer v. Wood,
    No. 14,07-01081-CV, 2009 Tex. App. LEXIS 6632 (Tex. App.–Houston
    [14th Dist.] Aug. 25, 2009, no pet.) ...............................................................52

Haubold v. Med Carbon Research Inst., LLC,
     No. 03-11-00115-CV, 2014 Tex. App. LEXIS 2863 (Tex. App.–Austin Mar.
     14, 2014, no pet.) ......................................................................................... 16

Heckman v. Williamson Cnty.,
     369 S.W.3d 137 (Tex. 2012) ....................................................................... 14

Holland v. Wal-Mart Stores, Inc.,
      1 S.W.3d 91 (Tex. 1999) ............................................................................ 14

Houston Unlimited, Inc. v. Mel Acres Ranch,
     443 S.W.3d 820, 824 (Tex. 2014) ........................................ 47-50, 53-54, 56

                                                        vii                                    831104.1    402/122
Imperial Lofts, Ltd. v. Imperial Woodworks, Inc.,
      245 S.W.3d 1 (Tex. App.—Waco 2007, pet. denied) ................................. 15

Indigo Oil v. Wiser Oil Co.,
      No. 05-96-00984-CV, 1998 Tex. App. LEXIS 7550 (Tex. App.–Dallas, Dec.
      7, 1998, pet. denied) .............................................................................. 22-24

Intercontinental Group Partnership v. KB Home Lone Star L.P.,
      295 S.W.3d 650 (Tex. 2009) .......................................................................15

I.O.I. Sys., Inc. v. City of Cleveland,
       615 S.W.2d 786 (Tex. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.) .... 34

Guadalupe-Blanco River Authority v. Kraft,
     77 S.W.3d 805 (Tex. 2002) .......................................................................... 47

Kraft v. Langford,
      565 S.W.2d 223 (Tex. 1978) ....................................................................... 54

Kempner v. Heidenheimer,
    65 Tex. 587 (1886) ...................................................................................... 43

La Teirra de Familia, Ltd. v. Main Event Entertainment, LP,
      No. 03-10-00503-CV, 2012 Tex. App. LEXIS 1928 (Tex. App.–Austin,
      March 9, 12012, pet. denied) ....................................................................... 21

Lay v. Aetna Ins. Co.,
      599 S.W.2d 684 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.) .......20, 22

Lopez v. Munoz, Hockema Reed, L.L.P.,
      22 S.W.3d 857 (Tex. 2000) ......................................................................... 31

MBM Financial Corp. v. Woodlands Operating Co., L.P.,
    292 S.W.3d 660 (Tex. 2009) ................................................................. 15-16

Matheus v. Sasser,
     164 S.W.3d 453 (Tex. App.–Fort Worth 2005, no pet.) ..............................37


                                                     viii                                   831104.1    402/122
McGinty v. Hennen,
     372 S.W.3d 625 (Tex. 2012) ................................................ 40-41, 44-45, 56

Mood v. Kronos Prods., Inc.,
     245 S.W.3d 8 (Tex. App.–Dallas 2007, pet. denied) .................................. 56

Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc.,
     134 S.W.3d 195 (Tex. 2004) ....................................................................... 16

Natividad v. Alexsis, Inc.,
      875 S.W.2d 695 (Tex. 1994) ........................................................................20

Natural Gas Pipeline Co. of Am. v. Justiss,
     397 S.W.3d 150 (Tex. 2012) ........................................................................49

Naylor v. Siegler,
     613 S.W.2d 546 (Tex. Civ. App. – Fort Worth 1981, no writ) ............. 43, 48

Osterberg v. Peca,
      12 S.W.3d 31 (Tex. 2000) ........................................................................... 44

Pape Equip. Co. v. I.C.S., Inc.,
     737 S.W.2d 397 (Tex. App.–Houston [14th Dist.] 1987, writ ref’d n.r.e.) 24, 28

Rancho La Valenica, Inc. v. Aquaplex, Inc.,
     297 S.W.3d 781 (Tex. App.–Amarillo 2008, no pet.) ................................. 28

Reef v. Mills Novelty Co.,
      89 S.W.2d 210 (Tex. 1936) ................................................................... 29-30

Richey v. Stop N Go Markets of Tex.,
      654 S.W.2d 430 (Tex. 1983) ............................................... 20-21, 24, 26, 28

Ryan v. Morgan Spear Associates, Inc.,
      546 S.W.2d 678 (Tex. Civ. App.–Corpus Christi 1977, writ ref. n.r.e.) ......34

Ryan Mortgage Investors v. Fleming-Wood,
     650 S.W.2d 928 (Tex. App.–Fort Worth 1983, writ ref’d n.r.e.) ................ 40


                                                     ix                                  831104.1    402/122
Schneider Nat’l Carriers, Inc. v. Bates,
      147 S.W.3d 264 (Tex. 2004) ....................................................................... 54

Seaview Hospital, Inc. v. Medicenters of America, Inc.,
      570 S.W.2d 35 (Tex. App.–Corpus Christi 1978, no pet.) .................... 35-36

Senn v. Texaco, Inc.,
      55 S.W.3d 222 (Tex. App.–Eastland 2001, pet. denied) ............................. 21

Smith v. Herco, Inc.,
      900 S.W.2d 852 (Tex. App.–Corpus Christi 1991, writ denied) ..................40

State Farm Life Ins. Co. v. Beaston,
       907 S.W.2d 430 (Tex. 1995) ....................................................................... 15

Stine v. Stewart,
       80 S.W.3d 586 (Tex. 2002) ..........................................................................19

Stonehill-PRM WC I, L.P. v. Chasco Construction Ltd.,
      No. 03-08-00494-CV, 2009 Tex. App. LEXIS 1019 (Tex. App.–Austin, Feb.
      11, 2009, no writ) .................................................................................... 55-56

Texas Development Co. v. Exxon Mobil Corp.,
      119 S.W.3d 875 (Tex. App.–Eastland 2003, no writ) ........................... 28-29

Texas Farmers Ins. Co. v. Gerdes,
      880 S.W.2d 215 (Tex. App.–Fort Worth 1994, writ denied) .......................28

Texas Pacific Indem. Co. v. Atlantic Richfield Co.,
      846 S.W.2d 580 (Tex. App.–Houston [14th Dist.] 1993, writ denied) ........ 29

T.F.W. Mgmt. Inc. v. Westwood Shores Prop. Owners Ass’n.,
     79 S.W.3d 712 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) ........... 53

Thweatt v. Jackson,
     838 S.W.2d 725 (Tex. App.–Austin 1992) .................................................. 55

Turner, Collie & Braden, Inc. v. Brookhollow, Inc.,
     642 S.W.2d 160 (Tex. 1982) ....................................................................... 40

                                                        x                                     831104.1    402/122
United States v. Downing,
      753 F.2d 1224 (3d Cir. 1985) ...................................................................... 46

U.S. Rest. Props. Operating L.P. v. Motel Enters., Inc.,
      104 S.W.3d 284 (Tex. App.–Beaumont 2003, pet. denied) ........................ 46

Vann v. Bowie Sewerage Co.,
     90 S.W.2d 561 (Tex. 1936) ......................................................................... 20

Westminster Falcon/Trinity L.L.P. v. Shin,
     No. 07-11-0033-CV, 2012 Tex. App. LEXIS 8833 (Tex. App.—Amarillo
     Oct. 23, 2012, no pet.) ................................................................................. 39

Whirlpool Corp.,
      298 S.W.3d 637 (Tex. 2009) ............................................................ 47, 51-52


Statutes

Tex. Civ. Prac. & Rem. Code § 51.012 .....................................................................3

Tex. Civ. Practice & Remedies Code § 38.001 ............................... 3, 11, 13-15, 17

Rules

Tex. R. App. P. 9.4 ................................................................................................. 59

Tex. R. App. P. 38.1 .................................................................................................. i

Tex. R. App. P. 39.7 ................................................................................................ ii

Tex. R. App. P. 44.1 ................................................................................................32

Tex. R. Civ. P. 279 ..................................................................................................55

Tex. R. Evid. 803 ....................................................................................................32

Tex. R. Evid. 901 ....................................................................................................32

                                                           xi                                      831104.1     402/122
Other Sources

7 Tex. Jur. Assignments § 2 .................................................................................. 27




                                                      xii                                   831104.1     402/122
                              03-14-00738-CV

                             In the Court of Appeals
                     For the Third District of Texas at Austin


                   Elness, Swenson, Graham Architects, Inc.,

                                         Appellant,

                                        v.

            RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP,
                 and RLJ Lodging Fund II Acquisitions, LLC,

                                        Appellees.


                              On Appeal from the
              200th Judicial District Court of Travis County, Texas
                        Cause Number: D-1-GN-002325
              The Honorable Stephen Yelenosky, Presiding Judge


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Appellant Elness, Swenson, Graham Architects, Inc. (“ESG”) complains of

the trial court’s Final Judgment in the above-referenced cause, and shows:

                            STATEMENT OF THE CASE

      Appellees RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP, and

RLJ Lodging Fund II Acquisitions, LLC (collectively, “RLJ”) filed the underlying

lawsuit in July 2010, alleging damage related to design and construction defects at

a Courtyard Austin Airport Hotel located at 7809 East Ben White Boulevard,

                                         1                            831104.1   402/122
Austin, Texas (the “Hotel”). CR 1:9. RLJ purchased the Hotel after its construction

in December 2007. CR:10. Among other claims, RLJ alleged a breach of contract

claim against ESG based on an agreement for architectural services that ESG

entered with a non-party, White Lodging Services Corporation, Inc. (“White

Lodging”). CR:9; 59-79.

       White Lodging, with ESG’s consent, later assigned ESG’s contract to

another entity, South Ausaircourt, L.P. (“South Ausaircourt”), who ultimately sold

the Hotel to RLJ. CR:9; 174. RLJ asserted its breach of contract claim against

ESG via assignment, stating that RLJ was “assigned all rights of the referenced

contracts by White or Ausaircourt.” CR:11.

       ESG challenged this alleged assignment in the underlying action via

summary judgment, and RLJ filed a reciprocal motion, seeking a pre-trial order

establishing the validity of the assignment of the breach of contract claim against

ESG. CR:80-98; 260-77; 383-402. The trial court denied ESG’s motions and

granted RLJ’s motion, finding as a matter of law that the breach of contract claim

against ESG was assigned to RLJ. CR:1063-64; 1083-84.

       ESG and RLJ proceeded to trial, after which the jury found that ESG

breached the contract and awarded $700,000 for loss of market value of the Hotel

and $85,000 for repair and remediation costs. CR:1127. After trial ESG moved

1
 “CR” refers to the Clerk’s Record and Supplemental Clerk’s Record filed with this Court on
December 15, 16, and 17, 2014.
                                              2                                831104.2   402/122
for application of $1.17 million in settlement credits for settlements entered

between RLJ and other defendants in the case. CR:1173-79. The trial court

applied the full amount of the settlement credits, extinguishing RLJ’s full damage

award. CR:1437-41. Despite the lack of damages, the trial court awarded RLJ

$901,650.96 in attorney’s fees pursuant to Texas Civil Practice and Remedies

Code Section 38.001. CR:1708-12.

      The trial court issued its Final Judgment on August 14, 2014, including the

$785,000 jury verdict, plus $901,650.96 in Chapter 38 attorney’s fees, minus the

$1.17 million settlement credit, for a total of $516,650.96. CR:1708-12. RLJ

moved for a new trial and to modify the judgment on September 12, 2014, both of

which were denied on September 19, 2014. CR:1713-1906. ESG timely filed its

notice of appeal on November 12, 2014. CR:1907-13.

                         STATEMENT OF JURISDICTION

      This court has jurisdiction over this appeal because Appellant is appealing a

Final Judgment from the 200th Judicial District Court of Travis County. Tex. Civ.

Prac. & Rem. Code §51.012.




                                        3                            831104.2   402/122
                                    ISSUES PRESENTED

              1.     Did the trial court err when it awarded RLJ
                     Chapter 38 attorney’s fees, despite RLJ’s failure to
                     recover any damages?

              2.     Did the trial court err in finding that the breach of
                     contract claim against ESG and/or ESG Contract
                     itself were assigned to RLJ?

              3.     Did the trial court abuse its discretion in admitting
                     the ESG Contract into evidence at trial?

              4.     Did the trial court err in submitting a jury question
                     regarding ESG’s contractual liability for
                     structural engineering services?

              5.     Did the trial court err in awarding diminution in
                     value damages?

                                  STATEMENT OF FACTS

       This case concerns alleged design and construction defects in a hotel RLJ

purchased in December 2007. CR:9-10. In 2010, RLJ filed the underlying lawsuit

alleging, among other things, that ESG breached its agreement to provide

architectural services prior to RLJ’s purchase of the Hotel. CR:5-16; 184-95.

       None of the RLJ entities contracted with ESG for any services related to the

Hotel. CR:59-79 2; 385. White Lodging originally owned the Hotel and entered

into contracts for architectural, engineering, design, and construction services for


2
  ESG objects herein to the admissibility of the ESG Contract. ESG’s citations to and arguments
regarding the ESG Contract are made for the purpose of the issues on this appeal and are not
intended to waive ESG’s objection to the admissibility of the contract.
                                              4                                831104.2   402/122
the Hotel.   CR 9.   ESG agreed to provide architectural services with White

Lodging in March 2005 (the “ESG Contract”).         CR 59-79.    ESG issued its

architectural plans and drawings for construction of the Hotel on August 3, 2005,

with revisions dated October 19, 2005. CR 91; 123-168.

       RLJ’s breach of contract claim relies on an alleged assignment of the ESG

Contract and/or breach of contract cause of action. CR:190. The ESG Contract

includes an anti-assignment clause requiring ESG’s consent to any assignment.

CR:107 (§1.3.7.9). White Lodging, with ESG’s consent, assigned its interest in

the ESG Contract to South Ausaircourt on September 19, 2005. CR:174. On

September 21, 2005, South Ausaircourt assigned the ESG Contract (also with

ESG’s consent) to Integra Bank National Association (“Integra”) as security for a

loan from Integra to South Ausaircourt. CR:175-76. The assignment to Integra

gave the lender certain rights under the ESG Contract in the event South

Ausaircourt defaulted on its obligations to Integra. CR:175. ESG did not consent

to any subsequent assignments of the ESG Contract. CR:179.

       On March 16, 2006, RLJ entered a preliminary agreement to purchase the

Hotel, called the “New Hotels Purchase and Sale Agreement” (“PSA”). CR:191.

The PSA included the purchase of 99 other properties in addition to the Hotel. CR

191.    On March 9, 2007, Terracon Consultants, Inc. (“Terracon”), White

Lodging’s geotechnical engineer, notified White Lodging that it had identified


                                        5                           831104.2   402/122
cracks and other foundation issues at the Hotel. RR3:V.8, 25:5-15; V.17, EBCO

Ex. 105. To resolve the alleged foundation issues and finalize the Hotel’s sale,

RLJ accepted a discount of $50,000 on the Hotel’s price. CR:692. RLJ purchased

the Hotel on December 20, 2007. CR:191; 691-94; RR:V.4, 12:24-13:1.

       In July 2010 RLJ filed the underlying lawsuit against Terracon, ESG,

EBCO General Contractor, Ltd., EBCO Advanced Building Systems, Ltd., and

EBCO Warrior Management LLC (collectively “EBCO”), among other parties.

CR:5-7.      RLJ alleged breach of the contracts White Lodging entered for

geotechnical engineering (Terracon), architectural plans (ESG), and construction

(EBCO) of the Hotel. CR:10-12. RLJ alleged that they were “assigned all rights

of the referenced contracts by White or Ausaircourt.” CR:11. RLJ requested

damages for these breaches “jointly and severally” against Terracon, ESG, and

EBCO. CR:16. RLJ’s live petition at the time of the time of trial was their

Seventh Amended Original Petition, which contains the same breach of contract

claims against Terracon, ESG, and EBCO. CR:184-85; 192-95; 202.4




3
  ESG refers to the Reporter’s Record with the following abbreviation: Reporter’s Record
(“RR”):Volume (“V”).
4
  RLJ alleged various other claims against Terracon, ESG, and EBCO, as well as claims against
other parties throughout the underlying litigation. The only claims at the time of trial were RLJ’s
alleged assigned breach of contract claims against ESG and EBCO, as well as a breach of
fiduciary duty claim against EBCO.

                                                6                                  831104.2   402/122
      The ESG Contract required ESG to retain a sub-consultant to provide

structural engineering services, specified in the contract as Marlin, Bridges, and

Associates, Inc. (“MBA”). CR:61. The ESG Contract further required that ESG’s

design services “include” structural engineering services. CR:72 (§2.4.1). ESG

entered a contract with MBA for structural engineering services (the “MBA

Contract”). RR:V.12, Plaintiff’s Ex. 13. The MBA Contract states that MBA was

an independent contractor, “responsible for methods and means used in

performance of” MBA’s services and “is not an employee, agent, or partner of”

ESG. Id. (§2.3). RLJ did not plead that ESG was vicariously liable for MBA’s

actions, but contended that the contractual language stating that ESG’s services

would “include” structural engineering services made ESG responsible for alleged

deficiencies in MBA’s structural engineering services. CR:193-95; 784-85.

      ESG filed no-evidence and traditional summary judgment motions

challenging the validity and existence of assignments of the ESG Contract and/or

breach of contract claim to RLJ. CR:80-98; 260-277. ESG also filed a verified

denial of RLJ’s legal capacity to file suit based on the lack of any valid

assignment.   CR:44-58.    RLJ filed their own traditional motion for partial

summary judgment, seeking an order holding that the ESG Contract and breach of

contract claim were validly assigned to RLJ. CR:383-401.




                                        7                            831104.2   402/122
      The ESG Contract’s anti-assignment provision states that “neither [White

Lodging] nor [ESG] shall assign this [Contract] without the written consent of the

other, except that [White Lodging] may assign this [Contract] to an institutional

lender providing financing for the Project.” CR:107 (§1.3.7.9). ESG argued that

the PSA did not assign the ESG Contract from South Ausaircourt to RLJ and, even

if it did, the anti-assignment clause voided such assignment. CR:93-95. Although

the anti-assignment clause would not preclude assignment of a pre-existing breach

of contract claim against ESG, the PSA did not contain any such assignment.

CR:268-71.

      RLJ’s motion argued that the PSA transferred both the ESG Contract and the

pre-existing breach of contract claim from South Ausaircourt to RLJ. CR:386-92.

RLJ contended that the anti-assignment clause did not prevent assignment of the

ESG Contract and that the PSA’s general transfer of “Contracts,” “Assets,” and

“Property” associated with the Hotel transferred the ESG Contract and pre-existing

cause of action. CR:395-400.

      The trial court denied ESG’s motions and granted RLJ’s motion. CR:1063-

64; 1083-84. The court issued a letter ruling in which it explained that it granted

RLJ’s motion and denied ESG’s because (1) the anti-assignment clause was

ineffective to preclude assignment of the ESG Contract “under these facts,” (2) the




                                         8                            831104.2   402/122
PSA assigned the ESG Contract, and (3) assignment of the ESG Contract also

included the breach of contract claim. CR:1057-60.

        After the summary judgment rulings, RLJ settled its claim against Terracon

for $70,000 and proceeded to trial on its claims against ESG and EBCO. CR:1080-

81; 1476-88. Trial began on May 5, 2014. RR:V.2, 6. During trial, on May 12,

2014, RLJ announced a settlement of their claims against EBCO for $1.1 million.

CR:1460-75.      At trial, RLJ requested approximately $5.1 million in damages

against ESG for diminution in value of the Hotel, $500,000 for “barrier

remediation fees,” and $350,000 for repairs to the Hotel. RR:V.10, 21:19-31:25.

RLJ and ESG completed the trial and obtained a jury verdict on RLJ’s allegedly

assigned breach of contract claim against ESG. CR:1121-29.

        The trial court issued two breach of contract questions in its charge to the

jury:

   1. Did ESG fail to comply with the Architectural Contract by failing to
      coordinate as required by the contract?

   2. Did ESG fail to comply with the Architectural Contract regarding the
      structural engineering services required by the contract?

CR:1125-26. The jury answered “no” to the first question and “yes” to the second.

Id. The jury awarded (1) $700,000 to RLJ for the difference in value of the Hotel

as constructed and the value of the Hotel had ESG complied with the ESG




                                          9                            831104.2   402/122
Contract; (2) $70,000 for barrier remediation; and (3) $15,000 for cost of repairs to

the Hotel made through August 31, 2010. CR:1127.

      ESG moved for directed verdict, objected to the jury charge, and moved for

judgment notwithstanding the verdict based on (1) lack of evidence supporting any

breach of the ESG Contract, (2) lack of assignment to RLJ of the ESG Contract or

the breach of contract claim against ESG, and (3) lack of sufficient evidence of

diminution in value damages.       RR:V.9, 139:9-140:14; 142:18-147:19; 152:3-

153:11; 154:11-19; CR:1130-37; 1252-57.       ESG sought dismissal and objected to

the jury charge on lack of assignment for the same reasons addressed in ESG’s and

RLJ’s summary judgment motions. RR:V.9, 139:23-140:22; 152:3-10.

      ESG also sought dismissal and objected to the jury charge because RLJ

sought to hold ESG responsible for the performance of its structural engineering

consultant, MBA. RR:V.9, 142:18-143:5; 152:17-23; CR:1252-57. RLJ did not

plead or present evidence of ESG’s vicarious liability for MBA’s conduct and ESG

is not strictly liable for MBA’s conduct under Texas law. Id. ESG also argued that

RLJ’s diminution in value evidence was insufficient to support any verdict because

RLJ’s valuation expert, Paul Hornsby, provided speculative, unreliable, and

inadmissible testimony. RR:V.9, 143:14-145:19; 153:6-11; CR:1130-37. The trial

court denied ESG’s motion for directed verdict, overruled ESG’s objections to the




                                         10                            831104.2   402/122
jury charge, and denied ESG’s JNOV motion.                     RR:V.9, 151:3-6; 153:12-13;

154:19; CR:1436.

         After the jury’s verdict and prior to the Final Judgment, ESG moved to apply

credits for Terracon’s and EBCO’s settlements with RLJ via the one-satisfaction of

judgment rule. CR:1173-79. ESG requested credits for the full amount of both

settlements ($1.17 million) to the jury’s $785,000 verdict because RLJ sought

common damages from ESG, Terracon, and EBCO and did not allocate damages

specific to each defendant in its complaint or settlement agreements. Id. RLJ’s

position that the damages were “indivisible” supported ESG’s argument. CR:1266.

Because the settlement credits entirely subsumed the jury’s verdict, ESG argued

that it was the prevailing party and RLJ was not entitled to attorney’s fees pursuant

to Civil Practice and Remedies Code § 38.001. CR:1173-78.

         The trial court issued a letter with its ruling on June 13, 2014. CR:1437-41.

The trial court granted the motion to apply the full settlement credits, but

determined that, despite RLJ’s lack of recoverable damages, RLJ was the

prevailing party and entitled to attorney’s fees pursuant to Chapter 38.001. Id. The

trial court issued its Final Judgment on August 14, 2014, including the $785,000

jury verdict, plus $901,650.965 in Chapter 38 attorney’s fees, minus the $1.17

million settlement credit, for a total of $516,650.96. CR:1708-12.


5
    The parties stipulated that the court would determine the amount of attorney’s fees. CR:1524.
                                                 11                                831104.2   402/122
      RLJ moved for a new trial and to modify the judgment on September 12,

2014, both of which were denied on September 19, 2014. CR:1713-1906. ESG

timely filed its notice of appeal on November 12, 2014. CR:1907-1913.

                           SUMMARY OF THE ARGUMENT

       The judgment in this case erroneously finds breach of contract without

privity or assignment or admissible evidence of a contract; awards lost profits

disguised as diminution-in-value damages for a profitable Hotel, based on a

dubious appraisal date and when consequential damages were waived; and awards

attorney’s fees without recovery of actual damages. RLJ did not recover any

actual damages—they received compensation for their alleged damage prior to the

jury’s verdict. Contrary to Texas law, the trial court improperly awarded Chapter

38 attorney’s fees despite the fact that RLJ did not actually recover any damages.

Even ignoring RLJ’s lack of damages, RLJ had no right to maintain its breach of

contract claim against ESG because they were neither parties to that contract nor

assigned any cause of action. Further, at trial RLJ failed to prove necessary

elements of their claim, failing to (1) properly introduce the ESG Contract into

evidence, (2) plead or prove ESG’s liability for an independent contractor’s

conduct, or (3) introduce admissible evidence of market value damages. The trial

court’s failure to enter a take-nothing judgment on RLJ’s claims and declare ESG

the prevailing party in the face of these deficiencies was clear error.


                                          12                              831104.2   402/122
                                         ARGUMENT

I.      Standard of review

       To the extent resolution of the issues before the trial court requires

interpretation of a statute, a de novo standard is applicable. First Am. Title Ins. Co.

v. Combs, 258 S.W.3d 627, 631 (Tex. 2008). An abuse of discretion standard of

review is applicable where statutory interpretation is settled.                   See Consol.

Reinforcement, L.P. v. Carothers Exec. Homes, Ltd., 271 S.W.3d 887, 891 (Tex.

App.–Austin 2008, no pet.). The applicable standard of review for each issue

presented is identified in the corresponding section below.

II.    The trial court erred when it awarded RLJ Chapter 38 attorney’s fees
       because RLJ did not recover any damages. (Issue No. 1)

       The trial court correctly ruled that RLJ’s settlements with EBCO and

Terracon applied as credits against the jury’s verdict against ESG. CR:1437-41;

1708-12. The trial court erred 6 in deciding that, despite failing to recover any

damages from ESG, RLJ were prevailing parties entitled to attorney’s fees

pursuant to Tex. Civ. Prac. & Rem Code §38.001. 7 Id. The trial court incorrectly

ruled that, because the EBCO settlement occurred during the trial and not pre-trial,

6
 Whether Texas law recognizes a particular basis for the recovery of attorney's fees is a question
of law that is reviewed de novo. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.
1999) (per curiam) (availability of attorney's fees under particular statute is question of law);
Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012).
7
  ESG presents this argument first because a ruling in ESG’s favor would result in ESG being the
prevailing party in the underlying case, requiring a take nothing judgment for ESG and
eliminating the need to address ESG’s remaining appellate issues.
                                               13                                 831104.2   402/122
Texas Supreme Court precedent on the application of settlement credits did not

apply. CR:1437-41.

      “To recover attorney's fees under Section 38.001, a party must (1) prevail on

a cause of action for which attorney's fees are recoverable, and (2) recover

damages.”     Green Intern., Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997)

(emphasis added). The Texas Supreme Court later summarized this ruling by

stating that “suits cannot be maintained solely for the attorney's fees; a client must

gain something before attorney's fees can be awarded.” MBM Financial Corp. v.

Woodlands Operating Co., L.P., 292 S.W.3d 660, 662 (Tex. 2009) (emphasis

added).

      Texas appellate courts have long held that a plaintiff is not a prevailing party

and not entitled to Chapter 38 attorney’s fees where its damages are fully

encompassed by settlement credits:

   • Imperial Lofts, Ltd. v. Imperial Woodworks, Inc., 245 S.W.3d 1, 7 (Tex.
     App.—Waco 2007, pet. denied) (“Because the settlement credits and
     insurance payment exceeded the jury's damage award, we hold that Lofts
     was not the prevailing party and was not entitled to recover its attorney's
     fees.”);

   • Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806-07 (Tex.
     App.—Dallas 1988, no pet.) (“Blizzard was not awarded any recovery on
     her claim, not because Nationwide was entitled to an offset, but because
     Nationwide had already paid Blizzard all the damages she was able to prove.
     In these circumstances, we conclude that Blizzard is not entitled to recover
     attorney fees.”);



                                         14                             831104.2   402/122
   • Buccaneer Homes of Ala., Inc. v. Pelis, 43 S.W.3d 586, 591 (Tex. App.—
     Houston [1st Dist.] 2001, no pet.) (“Although appellees won a jury verdict in
     the trial court, the One Satisfaction Rule bars them from recovering
     economic damages, and thus, they cannot recover attorney's fees.”);

   • Fire Ins. Exch. v. Sullivan, 192 S.W.3d 99, 109 (Tex. App.—Houston [14th
     Dist.] 2006, pet. denied) (“Because the [Plaintiffs] should have recovered no
     actual damages under their DTPA and contract claims, they cannot recover
     attorney's fees as to these claims.”).
      The trial court did not dispute the holdings above. Instead, it created its own

rule of law, premised on the timing of the parties’ settlements. CR:1439-41. The

trial court reasoned that, because the majority of the settlement credit (the $1.1

million settlement with EBCO) occurred during trial, denying RLJ attorney’s fees

was a “disincentive to settle.” CR:1440. There is no precedent to support this

ruling and it is contrary to the clear and consistent holdings of the Texas Supreme

Court. See Green Intern., 951 S.W.2d at 390; MBM Financial, 292 S.W.3d at 662;

Intercontinental Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 650,

653 (Tex. 2009); Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134

S.W.3d 195, 201 (Tex. 2004); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d

430, 437 (Tex. 1995) (all holding that, absent recovery of damages, attorney’s fees

are not recoverable under Chapter 38).

      Section 38.001 provides that a successful party in an action for breach of

contract may recover reasonable attorney's fees in addition to the amount of a

valid claim and costs. Tex. Civ. Prac. & Rem. Code § 38.001. The phrase “a


                                         15                            831104.2   402/122
valid claim” means that a party must first receive damages before being awarded

attorney's fees. See Green Int'l, 951 S.W.2d at 390; Haubold v. Med. Carbon

Research Inst., LLC, No. 03-11-00115-CV, 2014 Tex. App. LEXIS 2863, at *20

(Tex. App.—Austin Mar. 14, 2014, no pet.) (“[T]here must be a recovery of

money, or at least something of value; otherwise, the attorney's fee award cannot

be described as an ‘addition’ to the claimant's relief”) (citations omitted). RLJ did

not recover damages.      Consequently, the trial court’s award of Chapter 38

attorney’s fees violates Texas Supreme Court precedent.

      The trial court’s reasoning is flawed in two respects. First, it states that RLJ

is not “made whole” absent recovery of their attorney’s fees, implying that the

attorney’s fees are actual damages. CR:1440. They are not. RLJ did not seek

attorney’s fees as actual damages, but as a statutory recovery under Chapter 38.

Attorney’s fees under Chapter 38 “cannot fairly be considered a part of the amount

of the judgment.” See C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 325-

26 (Tex. 1994) (citations omitted) (modified on other grounds by Battaglia v.

Alexander, 177 S.W.3d 893, 909 (Tex. 2005)); Ellis County State Bank v. Keever,

888 S.W.2d 790, 797, n.13 (Tex. 1994). No one is “made whole” through a

recovery of attorney’s fees under Chapter 38 because they are not actual damages.

      Second, the trial court reasoned that precluding Chapter 38 attorney’s fees

where settlement credits subsume an entire damages award would “greatly


                                         16                             831104.2   402/122
discourage parties from settling.”8 CR:1441. This argument does not comport

with the trial court’s reasoning for applying settlement credits in the immediately

preceding section. The trial court stated “[t]he source of RLJ's disappointment

regarding damages is the jury verdict, not the application of settlement credits to

it.”   CR:1439 (emphasis added).              The same analysis applies to Chapter 38

attorney’s fees. RLJ sought almost six million dollars in damages against ESG.

RR:V.10, 21:19-31:25. ESG believed (and the jury found) that those damages

were greatly exaggerated. The settlement credits did not preclude a settlement—

ESG’s and RLJ’s disagreement over the value of the claim precluded settlement.

Because of that disagreement, the parties tried the case. RLJ tried and failed to

prove damages in excess of its settlement credits and as a result cannot be

awarded Chapter 38 attorney’s fees.

       If a party recovers damages, it may receive attorney’s fees under Chapter 38.

Tex. Civ. Prac. & Rem. Code §38.001; Green Int’l, 951 S.W.2d at 390. This

statutory remedy requires, as a condition precedent, a recovery of damages.

Because RLJ did not recover any damages, the trial court erred by awarding

Chapter 38 attorney’s fees.



8
  The trial court’s new rule also does not account for the Terracon settlement that occurred
before trial. The trial court did not even address this issue, but it appears from the court’s letter
that RLJ would not be entitled to attorney’s fees related to Terracon’s settlement. CR:1441.
This inconsistency highlights the inconsistency and unworkable nature of the trial court’s
decision.
                                                 17                                 831104.2   402/122
III.   The trial court erred in finding that RLJ owned an assigned
       breach of contract claim against ESG. (Issue No. 2)
       ESG did not enter into a contract with any of the RLJ entities. CR:59-79;

385. ESG contracted with the former property owner, White Lodging. CR:59-79.

RLJ’s claims rely on alleged assignments of the ESG Contract and/or breach of

contract claim against ESG when RLJ purchased the Hotel. 9                   The following

timeline illustrates the timing and parties involved in these transactions:

    • March 30, 2005:               ESG and White Lodging enter the ESG Contract
                                    (CR:59-79);

    • August 3, 2005:               ESG issues its architectural plans and drawings for
                                    construction of the Hotel (CR:91; 123-168);

    • September 19, 2005:           White Lodging assigns (with ESG’s consent) the
                                    ESG Contract to South Ausaircourt (CR:174);

    • September 21, 2005:           South Ausaircourt assigns (with ESG’s consent)
                                    the rights under the ESG Contract to Integra Bank
                                    contingent on South Ausaircourt’s loan (CR:175-
                                    76);

    • October 19, 2005:             ESG issues revisions to its architectural plans and
                                    drawings (CR:162-68);

    • March 16, 2006:               RLJ Acquisitions enters the PSA, agreeing in
                                    principle to the purchase price of the Hotel, subject
                                    to an inspection period and subsequent closing
                                    (CR:191);


9
  RLJ admitted in the underlying proceedings that they allege only an assigned cause of action
against ESG, rather than assignment of the ESG Contract itself. CR:222; 392. Accordingly, RLJ
may not argue that they have capacity or standing to sue based on an assignment of the ESG
Contract itself. In an abundance of caution, ESG addresses arguments related to assignment of
the ESG Contract itself herein. In any event, no valid assignment of the ESG Contract or any
cause of action against ESG occurred.
                                             18                                831104.2   402/122
     • November 21, 2006:            EBCO issues the final application for payment for
                                     construction of the Hotel (CR:583-92);

     • March 9, 2007:                Notice from Terracon regarding foundation cracks
                                     at the Hotel (RR:V.8, 25:5-15; V.17, EBCO Ex.
                                     105);

     • December 20, 2007:            RLJ Acquisitions executes the Ninth Amendment
                                     to the PSA, closing the sale of the Hotel and
                                     transferring the Hotel to RLJ Acquisitions
                                     (CR:389; 707-09).

       A cause of action for breach of contract accrues at the time of breach, and

remains with the owner at the time of the breach even after sale of the property,

absent an assignment. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002); Richey v.

Stop N Go Markets of Tex., 654 S.W.2d 430, 432 (Tex. 1983). Any breach in this

case occurred, at the latest, when the Hotel was completed. Accordingly, South

Ausaircourt owned the breach of contract claim against ESG when RLJ purchased

the Hotel. CR:693. RLJ’s purchase did not include the breach of claim against

ESG unless it was expressly assigned from South Ausaircourt to RLJ. Richey, 654

S.W.2d at 432. It was not.

       A.     South Ausaircourt did not assign any causes of action against
              ESG to any RLJ entity.
       RLJ argued to the trial court that the PSA included a transfer of a “basket of

rights” from South Ausaircourt to RLJ. CR:238; 394. The trial court erred10 in

accepting this argument because a plain reading of the PSA reveals that this

10
  Because rendition of summary judgment involves a question of law, the trial court's decision is
reviewed de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
                                               19                                831104.2   402/122
“basket of rights” does not include any causes of action. As applied to transfers

of property, such as this case, a cause of action is personal to the owner at the time

of the breach or damage (in this case, South Ausaircourt).           Vann v. Bowie

Sewerage Co., 90 S.W.2d 561, 562 (Tex. 1936); Exxon Corp. v. Pluff, 94 S.W.3d

22, 27 (Tex. App. Tyler 2002, pet. denied); Lay v. Aetna Ins. Co., 599 S.W.2d 684,

686 (Tex. Civ. App—Austin 1980, writ ref'd n.r.e.) (“A cause of action for injury

to real property accrues when the injury is committed.”). A subsequent owner who

did not own the property at the time of the injury may only bring suit where the

subsequent owner receives an express assignment of the cause of action. See

Richey, 654 S.W.2d at 432.

      The express assignment requirement is longstanding blackletter law

enforced by appellate courts around the state:

   • Vann v. Bowie Sewerage Co., Inc., 90 S.W.2d 561, 562-63 (Tex. 1936)
     (“Where injury to land results . . . the right of action for all the damages
     resulting from the injury accrues to the owner of the land at the time the
     thing that causes the injury commences to affect the land.”);

   • Richey v. Stop N Go Markets of Tex., 654 S.W.2d 430, 432 (Tex. 1983)
     (“Because there was no express assignment here of his cause of action to
     Depew, Richey retained his right to pursue the case following transfer of the
     property”);

   • Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 424 (Tex.
     2010) (“For more than 100 years, this Court has recognized that a cause of
     action for injury to real property accrues when the injury is committed. The
     right to sue is a personal right that belongs to the person who owns the
     property at the time of the injury, and the right to sue does not pass to a

                                         20                             831104.2   402/122
   subsequent purchaser of the property unless there is an express assignment
   of the cause of action.”);

• La Teirra de Familia, Ltd. v. Main Event Entertainment, LP., No. 03-10-
  00503-CV, 2012 Tex. App. LEXIS 1928, at *16 (Tex. App.—Austin, March
  9, 2012, pet. denied) (“a mere subsequent purchaser cannot recover for an
  injury committed before his or her purchase”);

• Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex. App.—Austin 1980, writ
  ref’d n.r.e.) (“a mere subsequent purchaser cannot recover for an injury
  committed before his purchase”);

• Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex. App.—San
  Antonio 2004, no pet.) (“A subsequent purchaser cannot recover for an
  injury committed before his purchase absent an express provision in the
  deed, or as here an assignment, granting him that power”);

• Brooks v. Chevron USA Inc., No. 13-05-029, 2006 Tex. App. LEXIS 4479
  (Tex. App.—Corpus Christi May 25, 2006, pet. denied) (mem. op.) (“A
  purchaser of real property cannot recover for injury to the property
  committed before his purchase absent an express provision in a deed or an
  assignment granting him that power.”);

• Cook v. Exxon Corp., 145 S.W.3d 776, 781 (Tex. App.—Texarkana 2004,
  no pet.) (“Without express provision, the cause of action does not pass to a
  subsequent purchaser of the property . . . Without such an express
  provision, a subsequent purchaser cannot recover for an injury committed
  before his or her purchase.”);

• Senn v. Texaco, Inc., 55 S.W.3d 222, 226 (Tex. App.—Eastland 2001, pet.
  denied) (“Without the breach of a legal right belonging to the plaintiff, no
  cause of action can accrue to his benefit.”);

• Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d 752, 767 (Tex.
  App.—El Paso 2010, no pet.) (“Absent any evidence showing Boerschig
  bargained for an assignment of the prior owner's possible causes of action
  for injuries to the land that occurred before his purchase, he cannot rely on
  the discovery rule to defeat his lack of standing.”);




                                    21                           831104.2   402/122
     • Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex. App.—Tyler 2002, pet.
       denied) (“a mere subsequent purchaser cannot recover for an injury
       committed before his purchase.”);

     • Indigo Oil v. Wiser Oil Co., No. 05-96-00984-CV, 1998 Tex. App. LEXIS
       7550, at *32 (Tex. App.—Dallas Dec. 7, 1998, pet. denied) (“A subsequent
       conveyance of property does not extinguish an accrued cause of action for
       damages.”).

There is no dispute that the breach of contract cause of action accrued prior to

RLJ’s purchase of the Hotel. CR:236; 239. Accordingly, Texas law required RLJ

to obtain an express assignment from the claim’s owner in order to bring the claim

against ESG. No such assignment occurred.

       The trial court’s letter ruling commingled the separate issues of assignment

of contract and causes of action.            CR:1059.      The trial court reasoned that

assignment of the ESG Contract11 included an express assignment of the causes of

action associated with that contract. Id. The court distinguished the cases above

because they generally addressed assignment of pre-existing tort claims (or lack

thereof), rather than contract claims. CR:1058-59. The court reasoned (without

authority) that a general warranty deed including “all torts” might suffice to

convey pre-existing torts and that the cases did not hold “that an express transfer of

a contract need also expressly assign the cause of action under that contract.” Id.

The court’s ruling is wrong for two reasons—(1) Texas law holds that assignment


11
   This argument fails for the simple reason, as addressed in the next section, that RLJ did not
receive a valid assignment of the ESG Contract from South Ausaircourt.
                                              22                                831104.2   402/122
of a contract does not include pre-existing causes of action and (2) no assignment

of any cause of action occurred in this case.

      Texas law distinguishes between assignment of rights under a contract and

assignment of causes of action based on the contract—assignment of one does not

necessarily affect the other. See e.g., City of Brownsville ex rel. Public Utilities

Bd. v. AEP Texas Cent. Co., 348 S.W.3d 348, 358 (Tex. App.—Dallas 2011, pet.

denied); Indigo Oil, 1998 Tex. App. LEXIS 7550 at *32 (assignment of contract

did not include assignment of pre-existing causes of action based on the contract).

An assignment is a manifestation by the owner of a right of his intention to transfer

the right to an assignee. Pape Equip. Co. v. I.C.S., Inc., 737 S.W.2d 397, 399

(Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.). “To recover on an assigned

cause of action, one must plead and prove that a cause of action capable of being

assigned existed and was assigned to the party alleging the theory of

assignment.” Id. (emphasis added). An express assignment is one that is directly

and distinctly stated. See Richey, 654 S.W.2d at 431; Black’s Law Dictionary,

Definition of “Express,” 580 (6th Edition 1990).

      The PSA is 69 pages long and contains 89 subsections delineating the terms

of the agreement—not one of those sections includes the assignment of any causes

of action to RLJ. CR:606-76. South Ausaircourt conveyed the Hotel to RLJ

acquisitions, including the defined terms “Assets,” “Contract,” and “Property.”


                                         23                            831104.2   402/122
CR:613-19. RLJ argued that these defined terms included an assignment of the

breach of contract claim against ESG. CR:388-89. They do not. The definitions

are as follows:

             “Assets” shall mean, with respect to each Property, all of
             the Personal Property, Supply Inventories, Consumable
             Inventories, Contracts, and Licenses and Permits, now
             owned or hereafter acquired by each Seller in connection
             with or relating to its Property, other than any Excluded
             Assets with respect to such Property. CR:613.
             “Contracts” shall mean, with respect to each Property, (i)
             all conference, convention and banquet room contracts,
             guest room reservations, (ii) all leases, concessions and
             other occupancy agreements, if any, with tenants of the
             Property, (iii) all leases covering the equipment
             necessary to operate the Property, if any, and (iv) all
             contract, agreements (other than subcontracts) and
             warranties covering the design, development,
             construction, operations, maintenance and repair of the
             Property and/or equipment located in the Property.
             CR:615.

             “Property” shall mean the fee simple interest or leasehold
             interest, as applicable, in a particular parcel of real estate
             identified by address on Schedule B, and by legal
             description on Schedule B-1, together with (i) the
             Improvements constructed on, or to be constructed on,
             such real estate; and (ii) the Assets. CR:619.

      In the “Recitals” section of the PSA, RLJ Acquisitions stated its “desire to

purchase all of the Properties and thereby acquire all of Sellers’ respective right,

title and interest in and to the Properties upon the terms and conditions

hereinafter set forth.” CR:612 (emphasis added). RLJ further relied on clauses

stating that Ausaircourt would “assign and deliver to Purchaser . . . true and
                                          24                              831104.2   402/122
complete originals or copies of architects agreements and general contracts for the

Property” (CR:624 (§3.1(a)) and “Seller and White Lodging shall . . . cooperate

with Purchaser in the enforcement of any rights under the architectural,

construction, or other similar contracts respecting the design, development and

construction of the Hotel” (CR:643 (§8.1(m)).

      RLJ argued that the clause above regarding cooperation in enforcement of

rights under the contracts “contemplated” that all pre-existing causes of action

were assigned. CR:394. According to RLJ, this agreement to cooperate resulted in

two assignment documents, executed in December 2007 that included assignments

of the pre-existing ESG breach of contract claim. CR:389. They do not. The first

is an “Assignment and Assumption of Contracts and Leases” (the “Lease

Assignment”), which assigns seven contracts related to operation of the Hotel to

RLJ II-C Austin Air Lessee, LP. CR:695-700. The Lease Assignment is limited to

the seven contracts identified therein (which does not include the ESG Contract)

and does not assign any pre-existing causes of action to anyone. Id.; CR:877-79.

      RLJ also cited to the “Assignment and Assumption of Licenses, Permits and

Intangibles” (the “License Assignment”), which provided that Ausaircourt “hereby

sells, transfers, conveys and assigns to [RLJ Lessee] all of [Ausaircourt’s] right,

title and interest in and to all licenses, permits and all other intangible assets

relating to the Property.” CR:701-05. RLJ contended that the undefined term


                                        25                           831104.2   402/122
“intangible assets” includes South Ausaircourt’s breach of contract claim against

ESG and satisfied the express assignment requirement. CR:389. It does not.

      An express assignment is one that is directly and distinctly stated. See

Richey, 654 S.W.2d at 431; Black’s Law Dictionary, Definition of “Express,” 580

(6th Edition 1990). The phrase “intangible assets” is not defined to include any

cause of action, much less to expressly include the breach of contract claim against

ESG. There is no authority or evidence to support RLJ’s claim that the phrase

“intangible assets” actually included causes of action against ESG.

      Black’s Law Dictionary defines “intangible asset” as “assets lacking

physical existence,” such as “patents, trademarks, organization costs, goodwill.”

Black’s Law Dictionary, 118 (6th Edition 1990). Although intangible asset does

not include causes of action, the definition of “nominal asset,” directly below,

includes “assets whose value is difficult to determine; e.g. a judgment or claim.”

Id. (emphasis added). Further, the definition of “right” includes that it is a “legally

enforceable claim of one person against another.” Id. at 1324. No authority

supports the proposition that causes of action are included within “intangible

assets” and no evidence shows that Plaintiffs were assigned any intangible

“rights.”

      Finally, RLJ attempted to introduce extrinsic evidence regarding the intent

of the PSA. CR:386-87; 596-97; 602-04; 691-93. RLJ needed this extrinsic


                                          26                             831104.2   402/122
evidence because, as clearly explained above, none of the contract documents

actually assign the pre-existing breach of contract claim from South Ausaircourt to

RLJ. ESG objected to this extrinsic evidence, which the trial court sustained,

finding that the contractual documents are not ambiguous and excluding the

extrinsic evidence. CR:1058; 1063-64; 1083-84.

      Construction of an assignment is governed by the same rules of construction

as any contract. See Rancho La Valencia, Inc. v. Aquaplex, Inc., 297 S.W.3d 781,

783 (Tex. App.—Amarillo 2008, no pet.); Cadle Co. v. Henderson, 982 S.W.2d

543, 546 (Tex.App.—San Antonio 1998, no pet.) (citation omitted). Not every

contract involving a transfer of interests is an assignment—there must be a

manifestation of intent to transfer the right being assigned (in this case, the cause

of action). Id.; see also 7 Tex. Jur. Assignments § 23.

      There is no language in the PSA or any ancillary agreements indicating that

South Ausaircourt intended to assign RLJ the pre-existing breach of contract claim

against ESG. The plain and unambiguous language of the PSA shows that no such

assignment ever occurred. The contractual provisions RLJ relied on simply do not

assign any existing causes of action under Texas law. Richey, 654 S.W.2d at 431;

see also Pape, 737 S.W.2d at 400 (finding that authorization of appellee to bring

suit on appellant’s behalf was not a valid assignment of a cause of action). The




                                         27                            831104.2   402/122
trial court erred in finding that RLJ received a valid assignment of the pre-existing

breach of contract claim against ESG.

      B.     The anti-assignment provision of the ESG Contract prohibited
             assignment of the contract itself.
      Assignment of a contract and assignment of an accrued breach of contract

claim are two separate issues. RLJ did not receive an assignment of any breach of

contract claim against ESG.       Although assignment of the contract itself is

irrelevant to assignment of the pre-existing cause of action, ESG addresses

assignment of the contract in an abundance of caution. Because the ESG Contract

contained an anti-assignment provision and South Ausaircourt did not obtain

ESG’s consent to assign the ESG Contract, RLJ never received a valid assignment

of that contract.

      It is undisputed that the ESG Contract with White Lodging contained an

anti-assignment clause requiring ESG’s consent for assignment and ESG did not

consent to an assignment of the ESG Contract to any of the RLJ entities. CR:385.

RLJ argued that it nonetheless received an assignment of the ESG Contract

because (1) the anti-assignment clause did not apply to South Ausaircourt and (2)

even if the clause applied, it would not invalidate the assignment, but would

require ESG to bring a claim against South Ausaircourt. CR:228-30; 238-44.

      Anti-assignment clauses are enforceable in Texas. Reef v. Mills Novelty Co.,

89 S.W.2d 210, 211 (Tex. 1936); see also Texas Development Co. v. Exxon Mobil

                                         28                            831104.2   402/122
Corp., 119 S.W.3d 875, 879 (Tex. App.—Eastland 2003, no writ); Texas Farmers

Ins. Co. v. Gerdes, 880 S.W.2d 215, 218 (Tex. App.—Fort Worth 1994, writ

denied); Texas Pac. Indem. Co. v. Atlantic Richfield Co., 846 S.W.2d 580, 583

(Tex. App.—Houston [14th Dist.] 1993, writ denied). In the absence of a

successful attack upon an anti-assignment clause, a party is entitled to have the

trial court enforce it. Texas Pac. Indem. Co., 846 S.W.2d at 583.

       RLJ argued that ESG’s previous consent to assign the ESG Contract to

South Ausaircourt extinguished South Ausaircourt’s obligation to obtain ESG’s

consent for any further assignments of the ESG Contract.12 CR:240-41. Neither

the ESG Contract nor Texas law provides any such release. The anti-assignment

clause in the ESG Contract states the following:

             [White Lodging] and [ESG], respectively, bind
             themselves, their partners, successors, assigns and legal
             representatives to the other party to this Agreement and
             to the partners, successors, assigns and legal
             representatives of such other party with respect to all
             covenants of this Agreement. Neither [White Lodging]
             nor [ESG] shall assign this Agreement without the
             written consent of the other, except that [White Lodging]
             may assign this Agreement to an institutional lender
             providing financing for the Project. In such event, the
             lender shall assume [White Lodging’s] rights and
             obligations under this Agreement.



12
  RLJ’s argument is belied by the fact that South Ausaircourt did obtain ESG’s consent to a
subsequent assignment to its lender, Integra Bank. CR:175-76. South Ausaircourt clearly
understood that ESG’s consent was necessary for any assignment of the ESG Contract.
                                            29                              831104.2   402/122
CR:66 (§1.3.7.9). South Ausaircourt, as White Lodging’s assignee, was bound to

all covenants of the ESG Contract, including the anti-assignment provision. The

ESG Contract further states: “Nothing contained in this Agreement shall create a

contractual relationship with or a cause of action in favor of a third party against

either [White Lodging] or [ESG].” Id. (§1.3.7.5).

       RLJ’s summary judgment arguments mixed the issues of assignment of the

contract itself with assignment of the breach of contract cause of action. CR:238-

44. While the anti-assignment clause did not preclude assignment of the breach of

contract claim against ESG (although no such assignment occurred), Texas law

and the plain language of the clause itself clearly precluded assignment of the

contract without ESG’s consent. Reef, 89 S.W.2d at 211. Accordingly, any

assignment of the ESG Contract from South Ausaircourt to RLJ was void. 13 To the

extent the trial court’s summary judgment rulings relied on assignment of the ESG

Contract itself, the trial court committed error.




13
   RLJ also argued at one point that a “constructive assignment” of the ESG Contract occurred
when ESG’s designated representative for the Hotel project signed and sealed the architectural
plans, estopping ESG from enforcing the anti-assignment clause. CR:245-47. This argument is
nonsensical, as the parties to the contract agreed to the scope of the representative’s duties,
which he did not exceed. CR:61, 63 (§§ 1.1.3.4; 1.2.3.3). It does not appear that the trial court
relied on this argument in reaching its ruling, but it is meritless nonetheless. See e.g., See Lopez
v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000); CR:886.
                                                30                                  831104.2   402/122
IV.   The trial court abused its discretion when it admitted evidence of the
      ESG Contract without reference to evidentiary rules and principles.
      (Issue No. 3)

      RLJ’s claim against ESG was based on breach of the ESG Contract, which

necessarily required evidence regarding, and admission of, the contract itself. At

trial, RLJ attempted to admit the ESG Contract through the testimony of Carl

Mayfield, an RLJ employee. RR:V.3, 94:13-14, 96:4-8, 109:5-110:23. ESG

objected to admission of the ESG Contract based on RLJ’s failure to lay an

adequate foundation, hearsay, lack of authenticity, and lack of personal knowledge.

RR:V.3, 110:15-18. The trial court deferred ruling on the admissibility of the ESG

Contract and counsel for RLJ did not ask Mr. Mayfield any additional foundational

questions. RR:V.3, 112:13-113:3.

      The next day, the trial court addressed its deferred ruling on the admissibility

of the ESG Contract and overruled ESG’s objections, admitting the contract into

evidence. RR:V.4, 8:11-9:22. RLJ’s counsel, however, never elicited testimony

from Mr. Mayfield or any other witness sufficient to admit the ESG Contract into

evidence. Mr. Mayfield’s testimony regarding the ESG Contract consisted of three

statements—(1) the agreement was for the “Courtyard Austin Airport,” (2) RLJ

received the agreement from White Lodging at the time of their purchase of the

Hotel, and (3) Mr. Mayfield is the custodian of records for RLJ. RR:V.3, 109:11-

110:11.


                                         31                             831104.2   402/122
      The ESG Contract itself is hearsay.       RLJ was not a party to the ESG

Contract and Mr. Mayfield, as its representative, has no personal knowledge

regarding the terms of the ESG Contract. CR:59-79. RLJ’s counsel did not

establish the requisites for any exception to the hearsay rule, such as the business

records exception, via Mr. Mayfield’s (or any other witness’s) testimony. Tex. R.

Evid. 803. RLJ also failed to properly authenticate the ESG Contract. Tex. R.

Evid. 901.

      The trial court abused its discretion in admitting the ESG Contract because,

regardless of the parties’ off-the-record conversations, RLJ failed to lay the proper

foundation to establish (1) that Mr. Mayfield has personal knowledge of the

contents of the ESG Contract, (2) the application of any hearsay exception to the

ESG Contract, or (3) the authenticity of the ESG Contract. A trial court abuses its

discretion in admitting evidence when it acts without reference to any guiding rules

and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). The trial court’s error in admitting the ESG Contract warrants reversal

because the jury could not have returned a verdict for RLJ absent evidence of the

ESG Contract’s terms. See Tex. R. App. P. 44.1; Bay Area Healthcare Group, Ltd.

v. McShane, 239 S.W.3d 231, 234 (Tex. 2007).




                                         32                            831104.2   402/122
V.    The trial court erred in submitting a jury question regarding ESG’s
      contractual liability for structural engineering services. (Issue No. 4)
      At trial RLJ alleged that ESG was responsible for MBA’s structural

engineering services. See e.g., RR:V.10, 11:7-13; 12:8-12. The trial court erred in

submitting a question to the jury on this issue because RLJ did not plead or prove

any theory of respondeat superior or vicarious liability against ESG for MBA’s

structural engineering services. CR:193-95; 784-85. MBA’s contract with ESG

stated that MBA was an independent contractor, “responsible for methods and

means used in performance of” MBA’s services and “is not an employee, agent, or

partner of” ESG. RR:V.12, Plaintiff’s Ex. 13 (§2.3).

      RLJ contended that the provision in the ESG Contract stating that ESG’s

services would “include” structural engineering services required ESG to warrant

the quality of MBA’s work. CR:72 (§2.4.1); RR:V.10, 11:7-13; 12:8-12. ESG’s

contract does not contain any warranty or guarantee regarding the quality of the

structural engineering services. CR:59-79. The trial court erred in submitting the

second question to the jury because, absent such a warranty or guarantee, an

architect can only be held liable for its own failure to exercise reasonable care.

CR:1126.

      In contracting for services, an architect's duty depends on the particular

agreement entered into with its employer. Dukes v. Philip Johnson/Alan Ritchie

Architects, P.C., 252 S.W.3d 586, 594 (Tex. App.—Fort Worth 2008, pet. denied);

                                        33                           831104.2   402/122
I.O.I. Sys., Inc. v. City of Cleveland, 615 S.W.2d 786, 790 (Tex. App.—Houston

[1st Dist.] 1980, writ. ref'd n.r.e.). An engineer or an architect must use the skill

and care in the performance of his duties commensurate with the requirements of

its profession and is only liable for a failure to exercise reasonable care and skill

commensurate with those requirements. Dukes, 252 S.W.3d at 594.

      In the absence of a special agreement, an architect is not liable for faults in

construction resulting from defects in the plans. The architect does not imply or

guarantee a perfect plan or a satisfactory result, but only that the architect is not the

cause of any failure. Ryan v. Morgan Spear Assocs., Inc., 546 S.W.2d 678, 681

(Tex. App.—Corpus Christi 1977, writ ref. n.r.e.). “There is no implied promise

that miscalculations may not occur.” Id. (also holding that “[a] warranty by an

architect will not be implied unless there is the clearest reason for it, and the

burden of showing such reason rests on the one seeking to establish the warranty”).

Here, the ESG Contract simply states that structural engineering services are

included within the price of the contract, not that ESG will guarantee or warrant

the quality of that work. RR:V.12, Plaintiff’s Ex. 13 (§2.3).

      The Morgan Spear case is directly analogous and holds that an architect

does not certify that its consultant’s work is free from defect. Id. There, owners of

an animal hospital sued the architect for defects allegedly created by the architect’s




                                           34                             831104.2   402/122
consultants.    Id.   The architectural contract provided that the architect would

provide the following services:

               [t]he preparation of preliminary studies, working
               drawings, specifications, large scale and full size detail
               drawings, for architectural, structural, plumbing, heating,
               electrical, and other mechanical work; assistance in the
               drafting of forms of proposals and contracts; and the
               general supervision through construction of the project.

Id. at 680. After completion, the building began to deteriorate and the owners filed

a breach of contract claim against the architect, alleging that the architect failed to

properly test soil, resulting in the damaged property. Id. After a jury issued a take

nothing verdict, plaintiffs appealed the trial court’s jury question regarding the

architect’s professional negligence. Id. The question simply asked whether the

architect “was negligent in the performance of its professional services.”             Id.

Plaintiffs contended that the question should have asked whether the architect

breached its contractual duty to prepare plans and specifications free from defect.

Id.

      The appellate court upheld the question as submitted, finding that the

“architect is not liable for faults in construction resulting from defects in the plans,

as his undertaking does not imply or guarantee a perfect plan or a satisfactory

result” and that “an architect is only liable for a failure to exercise reasonable care

and skill.” Id. at 681. Here, ESG agreed to arrange for structural engineering

services, but nothing in the agreement requires that ESG guarantee that work or

                                           35                            831104.2   402/122
indemnify Plaintiffs for any defects arising from the work. RR:V.12, Plaintiff’s

Ex. 13. Such an interpretation is consistent with Texas law, under which ESG,

who is not a licensed engineer, literally cannot agree to provide structural

engineering services. Seaview Hosp., Inc. v. Medicenters of Am., Inc., 570 S.W.2d

35, 39 (Tex. App.–Corpus Christi 1978, no pet.) (“a contract for engineering

services to be performed by a person who is prohibited from practicing engineering

in Texas is void and unenforceable”). ESG may only be liable for its own alleged

failure to exercise reasonable care and skill, not that of MBA. The trial court erred

in submitting a question to the jury that included ESG’s responsibility for MBA.

VI.    The trial court erred in awarding RLJ diminution in value damages
       because the evidence was legally insufficient to support such damages.
       (Issue No. 5)
       The evidence at trial was legally insufficient to support the jury’s $700,000

award of market value damages.14 RLJ’s only evidence of market value damages

is the testimony of Paul Hornsby (“Hornsby”). Hornsby is an appraiser who

offered expert testimony as to the market value of the Hotel as of August 31, 2010

(the “Appraisal Date”). According to Hornsby, the market value of the Hotel on

the Appraisal Date in an unimpaired state would have been $13,650,000 and the

market value as actually constructed was $7,220,000. RR:V.7, 143-44; 148. Thus,


14
  Whether the trial court erred by applying an improper measure of damages is a question of law
that is subject to de novo review. City of Carrollton v. RIHR Inc., 308 S.W.3d 444, 452 (Tex.
App.- Dallas 2010, pet. denied); Matheus v. Sasser, 164 S.W.3d 453, 458 (Tex. App.- Fort
Worth 2005, no pet.).
                                              36                               831104.2   402/122
Hornsby offered the opinion that the “loss” in market value of the Hotel as of the

Appraisal Date was $6,430,000—the difference between the impaired and

unimpaired values. Id.

         Hornsby’s opinions on market value were based on an “income” approach.15

Hornsby calculated the anticipated net income after the Appraisal Date based on

the anticipated occupancy rate, rental rate, and expenses of the Hotel. RR:V.7,

129-30. He then used a factor (a divisor) known as a capitalization rate, which

when applied to the anticipated net income expands the numbers to reach an

estimated value. RR:V.7, 130-31.

         Hornsby alternatively used a “sales comparison” approach in connection

with the value of the Hotel in an unimpaired state.                    RR:V.7, 142.    Hornsby

compared two other hotels in the Austin area that were sold one-to-four years

before the Appraisal Date, and used those alleged “comparable” sales to come up

with a value of $13.8 million for the Hotel in an unimpaired state as of the

Appraisal Date. CR:974-81; RR:V.7, 142-43. Hornsby did not use the sales

comparison approach to set a value of the Hotel in its “impaired state” (i.e., the

Hotel as it actually exists), claiming he could not find any comparable sales.

RR:V.7, 145.




15
     As opposed to a “cost” approach or “sales comparison” approach.
                                                37                               831104.2   402/122
      Hornsby’s testimony is irrelevant because the Appraisal Date is not a proper

date from which to measure market value damages.           His testimony is also

irrelevant because the “impaired state” he used to determine market value of the

Hotel included all alleged impairments due to the work of several contractors and

subcontractors instead of being limited to impairments allegedly caused by ESG.

Additionally, Hornsby’s testimony fails to satisfy the reliability requirements

imposed on expert testimony under Texas law because (1) the “comparable” sales

he used for the sales comparison approach were not truly comparable, (2) his

predictions and assumptions used to value the Hotel under the income approach

were not reliable, and (3) to the extent it is legally possible for RLJ to recover

market value damages, Hornsby’s conclusory testimony cannot establish the

amount of any such damages.       Hornsby’s testimony is legally insufficient to

support any award of market value damages.

      A.    Hornsby’s Appraisal Date is inappropriate and makes his
            testimony speculative, unreliable, irrelevant, and inadmissible.

       The jury found ESG breached its contract by failing to properly provide the

structural engineering services required under that contract.     CR:1126.       The

undisputed trial testimony in this case established that the Hotel was completed in

October 2006 and later sold to Appellees in December 2007. RR:V.4, 12-13, 45;

P. Ex. 132; P. Ex. 193; RR:V.5, 116. If, in fact, ESG breached its contract, that



                                        38                           831104.2   402/122
breach occurred, at the latest, when the Hotel was completed. 16 Barry, 309 S.W.3d

at 141; see also Westminster Falcon/Trinity L.L.P. v. Shin, No. 07-11-0033-CV,

2012 Tex. App. LEXIS 8833, at *2, 8-9 (Tex. App.—Amarillo Oct. 23, 2012, no

pet.) (mem. op.) (holding that market value damages were required to be measured

as of date of substantial completion of home under residential construction

contract).

       The relevant date for any appraisal of the market value of the Hotel in

determining difference-in-value damages would have been in 2006. Hornsby’s

opinions, however, are based on the Appraisal Date of August 31, 2010, which is

almost four years later. RR:V.7, 124. The Appraisal Date has absolutely nothing

to do with any relevant date related to RLJ’s claims. Instead, it is an arbitrary date,

chosen primarily because it coincides with the first date Hornsby happened to

inspect the Hotel.        RR:V.7, 124-25.         Hornsby acknowledged he could have

appraised the Hotel as of its completion date in 2006, but chose not to do so.

RR:V.7, 125.

       “Evidence that has no relationship to any issue in the case does not satisfy

rule 702 and is thus inadmissible under rule 702, as well as rules 401 and 402.”


16
  Even if the relevant date were the later date when Appellees purchased the Hotel in December,
2007 (which it is not), that date is still almost three years before the Appraisal Date. RR:V.4, 12-
13. Moreover, there was damage to the Hotel due to movement in the foundation in the spring of
2007—prior to RLJ’s purchase—and RLJ was aware of this damage, as they used this
knowledge to negotiate a discount in their purchase price. RR:V.3, 122, 124-25, 141-43, 187-88.


                                                39                                  831104.2   402/122
Exxon Pipeline, 88 S.W.3d at 629 (quoting Robinson, 923 S.W.2d at 556); see Tex.

R. Evid. 402. “There are two measures of damages for breach of a construction

contract: (1) remedial damages, which is the cost to complete or repair less the

unpaid balance of the contract price, and (2) difference-in-value damages, which is

the difference between the value of the building as constructed and its value had it

been constructed according to the contract.” McGinty v. Hennen, 372 S.W.3d 625,

627 (Tex. 2012) (citing Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642

S.W.2d 160, 164 (Tex. 1982)).

      As this Court has observed, “the measure of damages is the difference

between the contract price and the property’s market value at the time of the

breach.” Barry v. Jackson, 309 S.W.3d 135, 140 (Tex. App.—Austin 2010, no

pet.) (emphasis added). This rule is well-supported by the Texas Supreme Court

and other Texas appellate courts. See McGinty, 372 S.W.3d at 628 (applying

difference-in-value damages for damages caused by mold in a house “as of the date

of the closing”); Goldman v. Olmstead, 414 S.W.3d 346, 361 (Tex. App.—Dallas

2013, pet. denied) (stating that measure of damages for breach of real estate

contract is “the difference between the price the seller was to receive and the

market value of the property at the date of the breach”); Smith v. Herco, Inc., 900

S.W.2d 852, 861 (Tex. App.—Corpus Christi 1995, writ denied); Ryan Mortgage




                                        40                            831104.2   402/122
Investors v. Fleming-Wood, 650 S.W.2d 928, 935 (Tex. App.—Fort Worth 1983,

writ ref’d n.r.e.).

       In McGinty, a home buyer sued the builder for breach of contract based on

alleged construction defects that resulted in mold damage to the home. McGinty,

372 S.W.3d at 626. In assessing damages for breach of contract, the jury was

asked to determine the difference, “as of the date of the closing,” in the value of

the home as it was received and the value if it had been built as represented. Id. at

628. Among other issues, the Texas Supreme Court considered whether the home

buyer’s testimony concerning the value of the home as of the time of trial could

support an award of damages in favor of the home buyer. Id. at 626-27. In no

uncertain terms, the court held it could not:

              The [home buyer] . . . testified to the value of his house
              at the time of trial, which was six years after the closing
              date.. In response to a question asking if he knew what
              his property was worth, [the home buyer] stated, “In my
              layman’s ability to do so, I have an idea of what I think
              it’s worth today.” He then proceeded to testify that his
              house was worth $450,000 to $475,000 and that “without
              all these problems” it would be worth $875,000. This
              testimony is no evidence of the difference in value at the
              time of closing.

Id. at 628 (emphasis added). Based on this holding, the Texas Supreme Court

reversed a judgment in favor of the home buyer and rendered a take-nothing

judgment in favor of the builder. Id. at 629.



                                          41                            831104.2   402/122
      Like the home buyer’s testimony in McGinty, Hornsby’s testimony is

irrelevant to the determination of the market value of the Hotel as of the date of

any breach. If there were any breach in this case, it occurred when the Hotel was

completed or, at the very least, when RLJ purchased the Hotel. The Appraisal

Date is almost four years after the completion date and almost three years after

RLJ’s purchase of the Hotel. Hornsby’s testimony concerning the market value of

the Hotel as of the Appraisal Date is no evidence of the Hotel’s market value as of

the date of any breach.

      In fact, using the Appraisal Date to determine the value of the Hotel in this

case makes even less sense than the date chosen in McGinty. At least the home

buyer in McGinty chose a date that had something to do with the disposition of the

claim. In this case, the Appraisal Date is one of more than 2,700 days between the

completion of the Hotel and the time of trial and appears to have been arbitrarily

chosen. The standards for recovering damages do not permit RLJ to pull a date out

of a hat that is hundreds or even thousands of days away from any alleged breach

and recover difference-in-value damages as of that date.

      As this Court and others have recognized, the fluctuating nature of real

estate values dictates that any difference-in-value damages awarded be based on

value as of the pertinent date. See Barry, 309 S.W.3d at 141 (stating that “[r]ecent

events in the nationwide real estate market show without a doubt that one year can


                                        42                            831104.2   402/122
make an enormous difference in the value of real estate”); Kempner v.

Heidenheimer, 65 Tex. 587, 591 (1886); Chiu Moon Chan v. Montebello Dev. Co.,

No. 14-06-00936-CV, 2008 Tex. App. LEXIS 5980, at *11 (Tex. App.- Houston

[14th Dist.] July 31, 2008, pet. denied) (mem. op.) (stating that “[r]eal property has

a fluctuating value’ and ‘[t]here is no way to ascertain at any given time what the

value of a particular tract of real property might be in the future’”) (quoting Naylor

v. Siegler, 613 S.W.2d 546, 547 (Tex. Civ. App.—Fort Worth 1981, no writ)).

      In his testimony, Hornsby acknowledged the market value of the Hotel on

the Appraisal Date would be different from its market value when the Hotel was

completed, and, in fact, admitted he has no idea what the Hotel’s market value

would have been at any time other than the Appraisal Date. RR:V.7, 158-59.

Hornsby’s testimony cannot support any market value damages. See Barry, 309

S.W.3d at 142; Barraza v. Koliba, 933 S.W.2d 164, 170 (Tex. App.—San Antonio

1996, writ denied).

      B.     RLJ and Hornsby failed to provide any evidence linking the alleged
             diminution in value to ESG’s alleged breach.

      Even if the Appraisal Date were proper for determining the market value of

the Hotel (which it is not), Hornsby’s opinion on the market value of the Hotel in

an “impaired state” (which he compared with the alleged value of the Hotel in an

“unimpaired state” to determine difference-in-value damages) is not relevant to the



                                         43                             831104.2   402/122
difference-in-value damage question presented to the jury in the Charge because it

was not based on and limited to alleged defects caused by ESG.

      The Charge asked the jury to determine “[t]he difference, if any, between the

value of the [H]otel as constructed and the value of the [H]otel had [Appellant]

complied with the Architectural Contract.”      CR:1127.     The predicate liability

question, answered in the affirmative, asked the jury to determine whether “ESG

fail[ed] to comply with the Architectural Contract regarding the structural

engineering services required by the contract.” CR:1126.

      The Texas Supreme Court has made it very clear in several recent opinions

that, in determining whether there is any evidence to support a jury verdict, the

court must “measure the evidence by the charge as given.” McGinty, 372 S.W.3d

at 628. See also Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. &

Research Corp., 299 S.W.3d 106, 112 (Tex. 2009); Osterberg v. Peca, 12 S.W.3d

31, 55 (Tex. 2000). Any expert opinion based on a different standard than the

standard presented to the jury is “no evidence” and cannot support any jury

findings. See McGinty, 372 S.W.3d at 628 (holding that opinion of property’s

value at date of trial was “no evidence” to support jury’s finding as to value “as of

the date of the closing”).

      Appellant did not perform actual construction work on the Hotel and there

were several other contractors and sub-contractors tasked with performing various


                                         44                            831104.2   402/122
jobs in connection with the Hotel project. CR:188-89. Several of these other

contractors and sub-contractors, including EBCO, were defendants in this lawsuit,

and RLJ alleged those parties failed to perform their work properly and were

responsible for the alleged defects in the Hotel. CR:187-89. RLJ offered evidence

at trial that EBCO failed in several respects to build the Hotel in accordance with

the plans and specifications. RR:V.7, 43, 48, 51-62, 85. There was also evidence

that the geotechnical engineer, Terracon, failed to perform its services in

accordance with its agreement. RR:V.4, 42, 49-50.

       Hornsby failed to base his opinions on any alleged failure of ESG to comply

with its contract. Instead, Hornsby’s opinions regarding loss in market value are

based on all alleged defects with the Hotel—regardless of whether they have

anything to do with ESG’s alleged breach.                RR:V.7, 159.       Hornsby freely

acknowledged that his opinions do not distinguish between any alleged impairment

due to ESG and any other contractors or sub-contractors on the Hotel project.

RR:V.7, 159:8–160:12. 17

       Because Hornsby did nothing to tie his opinion on “impaired value” to any

alleged defective performance of ESG, his opinion does not provide any

17
  Based on the report Hornsby submitted in this case, it appears his opinions regarding alleged
impaired value primarily involved alleged construction defects that would be attributable to
EBCO rather than ESG. In his report, he repeatedly characterized the market value losses he
came up with as the difference between the Hotel “as constructed” and the Hotel “as if
constructed in accordance with the Construction Contract.” RR:V.7, 155-56; CR:938; 942-44;
974; 994-96. Although the term “construction contract” is not defined in the report, ESG’s
contract was for architectural services rather than construction. See generally CR:59-79.
                                              45                               831104.2   402/122
meaningful guidance in assessing any damages against ESG. It is analogous to

describing a particular basketball player’s scoring total by providing the team’s

total score.    Hornsby’s testimony is not relevant to the amount of damages

allegedly caused by ESG, and cannot support a jury verdict or judgment for

damages against ESG. See Robinson, 923 S.W.2d at 556 (“To be relevant, the

proposed testimony must be ‘sufficiently tied to the facts of the case that it will aid

the jury in resolving a factual dispute.’”) (quoting United States v. Downing, 753

F.2d 1224, 1242 (3d Cir. 1985)); U.S. Rest. Props. Operating L.P. v. Motel Enters.,

Inc., 104 S.W.3d 284, 292 (Tex. App.—Beaumont 2003, pet. denied).

      C.       The “comparable” sales in Hornsby’s comparative sales opinions
               are not sufficiently similar or comparable.

      Even if Hornsby’s opinions regarding the alleged impaired and unimpaired

value of the Hotel as of the Appraisal Date were relevant (which they are not),

those opinions are also unreliable because they are based on faulty data and

assumptions, and are conclusory. Accordingly, they cannot support any judgment

for difference-in-value damages in this case.

      Hornsby attempted to bolster his opinions regarding market value of the

Hotel by using the sales comparison approach.          Under the sales comparison

approach, the appraiser finds data for sales of similar property that are “voluntary,”

“near in time,” “in the vicinity,” and “involve land with similar characteristics.”

City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). “The
                                          46                             831104.2   402/122
appraiser then uses the prices from the comparison sales, which establish the

market value of the similar properties, to determine the market value of the subject

property, by adjusting the price upward or downward to account for differences

between the properties.” Houston Unlimited, Inc. v. Mel Acres Ranch, 443 S.W.3d

820, 829-30 (Tex. 2014). In using this approach, “it is incumbent upon [Hornsby]

to connect the data relied on and his . . . opinion and to show how that data is valid

support for the opinion reached.” Whirlpool Corp., 298 S.W.3d at 642.

      Before Hornsby can properly offer a market value opinion based on

comparable sales, he must show that the other sales are actually “comparable” to

the value of the Hotel as of the Appraisal Date. See Houston Unlimited, Inc., 443

S.W.3d at 836 (stating that “[t]he comparative sales method fails when the

comparison is made to sales that are not, in fact, comparable to the land

condemned”) (quoting Guadalupe-Blanco River Authority v. Kraft, 77 S.W.3d 805,

808 (Tex. 2002)). Among other things, Hornsby failed to establish that the so-

called “comparable” sales in this case were “near in time” to the Appraisal Date.

Estate of Sharboneau, 48 S.W.3d at 182.

      The dates of sale for the three “comparable” sales Hornsby used were (1)

March 7, 2007, (2) March 6, 2009 and (3) November 30, 2007. The sales in 2007

predated the Appraisal Date by almost three years, and the 2009 sale predated the

Appraisal Date by approximately a year and a half. As discussed previously, this


                                         47                             831104.2   402/122
Court has recognized that “one year can make an enormous difference in the value

of real estate.” Barry, 309 S.W.3d at 141; see also Naylor, 613 S.W.2d at 547.

None of these other sales could properly be considered “near in time” to the

Appraisal Date, and Hornsby never offered any evidence other than his conclusory

assumptions to establish that the market conditions for the sale of commercial real

estate remained the same during the entire three-year span encompassing the other

sales and the Appraisal Date. See Houston Unlimited, Inc., 443 S.W.3d at 835. As

a consequence, Hornsby’s attempt to use the so-called “comparable” sales to

establish the market value of the Hotel as of the Appraisal Date lacks the reliable

foundation necessary give it any evidentiary value. See Havner, 953 S.W.2d at

714.

       In addition, Hornsby failed to establish the other hotels had “similar

characteristics” to the Hotel in this case. The primary “similarities” Hornsby noted

between the Hotel and the comparison properties were that they were “limited

service hotels in Austin” that “were built relatively recently.”     RR:V.7, 142.

Although Hornsby acknowledged the time difference between the Appraisal Date

and completion of the other hotels, he attempted to justify this significant

distinction by explaining that, “[u]nlike houses, we don’t have hundreds of comps

to choose from.” RR:V.7, 142-43. Difficulty in finding comparable properties is

not an excuse to use properties that are not truly comparable in attempting to


                                        48                            831104.2   402/122
determine market value. See Kraft, 77 S.W.3d at 809 (stating that difficulty in

finding comparable properties does not justify appraisal based on properties that

are not truly comparable). Moreover, Hornsby made various “adjustments” to

supposedly account for various differences in location, physical characteristics, age

and condition of the other hotel properties, but did not provide any information or

analysis to support his determinations as to how the adjustments were made.

CR:982-83; see Houston Unlimited, Inc., 443 S.W.3d at 837. The conclusory

nature of Hornsby’s testimony makes it unreliable and incapable of supporting a

judgment. See Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 161

(Tex. 2012).

      Finally, Hornsby did not use the sales comparison approach to attempt to

determine the market value of the Hotel “as constructed.”               Instead, he

acknowledged “[w]e couldn’t find any sales in Austin of hotels that had had

similar problems and then sold.” RR:V.7, 145. To the extent Hornsby sought to

use the sales comparison approach to determine the market value of the Hotel in an

unimpaired state and the income approach to determine the market value of the

Hotel as constructed, he did not explain how or why an appraiser could properly

determine difference-in-value damages when the impaired and unimpaired values

that are compared are based on different valuation methods. If Hornsby was not

comparing apples to apples, then he should have explained why comparing apples


                                         49                            831104.2   402/122
to something else would result in the same conclusion. His failure to do so makes

any valuation opinion based on the sales comparison approach unreliable and

inadmissible in evidence. See Houston Unlimited, Inc., 443 S.W.3d at 829.

      D.    Hornsby’s opinion on future occupancy and income is belied by the
            Hotel’s actual occupancy and income.

      In applying the income approach, Hornsby used a series of assumptions and

predictions regarding future occupancy and income related to the Hotel.             In

general, Hornsby predicted the Hotel’s annual net operating income would have

been approximately $1,330,644 if the Hotel had been constructed without defects

and approximately $866,107 as actually constructed. RR:V.7, 141, 147; CR:993;

996. Hornsby then used these figures in a formula to conclude the difference-in-

value damages for the alleged defects in the Hotel as of the Appraisal Date were in

the amount of $6,430,000. RR:V.7, 148; CR:996.

      Hornsby acknowledged in his trial testimony that one of the ways to assess

the reliability of his income predictions is to look at actual income for the Hotel

after the Appraisal Date and see how it varied from what was predicted. RR:V.7,

170-71. Because the trial of this case was almost four years after the Appraisal

Date, the actual income figures for the Hotel after the Appraisal Date were

available at the time of trial. The actual income data shows that the Hotel, as

constructed, made more money than Hornsby predicted it would have made in an

“unimpaired” condition, with actual annual net operating income of $1,001,000 in
                                        50                           831104.2   402/122
2012 and $1,770,000 in 2013.       RR:V.7, 172-73.    In other words, based on

Hornsby’s opinion regarding the value of the Hotel as it allegedly “should have

been constructed,” RLJ actually suffered no loss of income because of the way it

was actually constructed. RR:V.7, 172-74.

      Hornsby also acknowledged that the actual occupancy rate and rental rate for

the Hotel in the time between the Appraisal Date and the time of trial was

substantially higher than he had predicted. RR:V.7, 180-83. In fact, Hornsby

admitted he is not aware of any situation in which RLJ was required to turn away a

single Hotel guest because of any defects or related repair work at the Hotel.

RR:V.7, 164.

      There is no dispute Hornsby’s predictions regarding income, occupancy rate

and rental rate for the Hotel were not anywhere close to the actual numbers. The

Texas Supreme Court has recognized time and again that an expert’s opinion is

unreliable and inadmissible “if it is based on assumed facts that vary from the

actual facts.” Whirlpool Corp., 298 S.W.3d at 637 (citing Burroughs Wellcome

Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Further, by his own standards, the

predictions Hornsby used to attempt to quantify Appellees’ purported difference-

in-value damages were not reliable. RR:V.7, 170-71.

      Despite the substantial gap between Hornsby’s predictions and reality,

Hornsby nevertheless asserted that he could not properly consider future events in


                                       51                           831104.2   402/122
valuing the Hotel as of the Appraisal Date. RR:V.7, 149-50. The problem with

this position is that the jury and the Court have to determine what damages, if any,

were actually incurred. It is absurd to advocate for a recovery of damages based

on speculative “losses” that do not actually exist. 18 See, e.g., Hammer v. Wood,

No. 14-07-01081-CV, 2009 Tex. App. LEXIS 6632, at *7-8 (Tex. App.- Houston

[14th Dist.] Aug. 25, 2009, no pet.) (mem. op.).

       Interestingly, Hornsby himself recognized the problem with exalting

speculation over reality in explaining why he did not conduct his appraisal of the

Hotel based on the date the Hotel was completed. According to Hornsby, an

appraisal of the Hotel in its “impaired state” as of the completion date would have

been “problematic, because the problems were not yet known.” RR:V.7, 125-26.

Based on this same reasoning, Hornsby cannot properly disregard what actually

happened, and use inaccurate and unreliable estimates to support RLJ’s claim for

difference-in-value damages. See Whirlpool Corp., 298 S.W.3d at 640; Citrin

Holdings, LLC v. Minnis, No. 14-11-00644-CV, 2013 Tex. App. LEXIS 5723, at

*40 (Tex. App.—Houston [14th Dist.] May 9, 2013, pet. filed).




18
  Hornsby’s assertion that his clearly-inaccurate estimates of lost income should be exalted over
the actual income figures is like asserting that a plaintiff in a serious car accident who actually
suffered no injuries should somehow collect damages as if serious injuries had occurred because
those types of injuries would typically be expected from an accident of that nature. No Texas
court has ever awarded, or would ever award, damages on that basis.
                                                52                                 831104.2   402/122
      E.    RLJ improperly sought “stigma” damages through Hornsby’s
            inadmissible testimony.

      In forming his opinion on the market value of the Hotel, Hornsby assumed

that all of the remedial work that could be done had already been completed by the

Appraisal Date. RR:V.7, 123-24. There is no evidence the Hotel was permanently

damaged, or that it could not be completely restored through repair work. As a

consequence, it appears Hornsby’s appraisal opinion is based on so-called “stigma”

damages.

      Stigma damages are based on “damage to the reputation of the realty.”

Houston Unlimited, Inc., 443 S.W.3d at 824 (quoting Smith v. Carbide & Chems.

Corp., 226 S.W.3d 52, 55 (Ky. 2007)). They “represent[] the market’s perception

of the decrease in property value caused by the injury to the property.” Houston

Unlimited, Inc., 443 S.W.3d at 824 (quoting Jennifer L. Young, Stigma Damages:

Defining the Appropriate Balance Between Full Compensation and Reasonable

Certainty, 52 S.C. L. Rev. 409, 424 (2001)).

      The Texas Supreme Court has never directly addressed the issue of whether

stigma damages can be properly recovered under Texas law. Houston Unlimited,

Inc., 443 S.W.3d at 825. As a general rule, it is not within the province of this

Court or the trial court to create new legal duties or claims that have not been

recognized by the Texas Legislature or the Texas Supreme Court. See T.F.W.

Mgmt, Inc. v. Westwood Shores Prop. Owners Ass’n, 79 S.W.3d 712, 720 (Tex.
                                        53                          831104.2   402/122
App.—Houston [14th Dist.] 2002, pet. denied); Emscor Mfg., Inc. v. Alliance Ins.

Group, 879 S.W.2d 894, 910 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

Moreover, the Texas Supreme Court has, on at least two occasions, held that a

plaintiff cannot recover both repair costs and difference-in-value damages, as RLJ

has done in this case. 19 Houston Unlimited, Inc., 443 S.W.3d at 825-26. See

Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 276 (Tex. 2004)

(“Because the one claim is included in the other, the two claims are mutually

exclusive; a landowner cannot recover both in the same action.”); Kraft v.

Langford, 565 S.W.2d 223, 227 (Tex. 1978).

      In addition to the issue of whether stigma damages can even be recovered

under Texas law, the circumstances in this case do not warrant a recovery of such

damages. ESG did not sell the Hotel to RLJ or their predecessors, and did not

construct the Hotel. ESG performed architectural services. Any stigma damages

based on alleged lost market value might make some sense if this were a

transaction in which ESG sold the Hotel to RLJ or their predecessor and the Hotel

was not worth what it should have been because of defects. That is not the case

here. There is not a single Texas case in which a court has even suggested

imposing stigma damages on an architect that neither sold the property in question

nor constructed the improvements on the property.

19
  The Final Judgment includes both $700,000 in market value damages and $15,000 in costs of
repair. CR:1127; 1711.
                                            54                              831104.2   402/122
       Further, from the standpoint of RLJ’s actual “losses,” RLJ never attempted

to sell the Hotel and there is no evidence of any intent to do so at any time in the

foreseeable future. RR:V.7, 184-85. Aside from repair costs, the only types of

“losses” RLJ could have conceivably experienced resulting from alleged defects in

the Hotel would be lost profits. There is no evidence of any actual lost profits

associated with ESG’s work on the Hotel project. To the contrary, the Hotel

performed better than expected even with the alleged defects. RR:V.7, 172-74. In

any event, RLJ did not request any jury question on the amount of lost profits

attributable to ESG, and did not object to the trial court’s failure to submit such a

question.   Without a jury finding on these alleged damages, there can be no

recovery. See Tex. R. Civ. P. 279.

       Finally, lost profits are not recoverable in this case because they were

contractually waived. The contract between White Lodging and ESG provided

that White Lodging (RLJ’s predecessor-in-interest)20 “waive(s) consequential

damages for claims, disputes or other matters in question arising out of or relating

to this Agreement.” CR:66 (§1.3.6). Consequential damages include lost profits.

See Mood v. Kronos Prods., Inc., 245 S.W.3d 8, 12 (Tex. App.—Dallas 2007, pet.

denied). Thus, RLJ cannot recover any alleged lost profits based on their breach of
20
   As an alleged assignee of White Lodging’s rights, RLJ would stand in the shoes of White
Lodging and be subject to the same contractual limitations and defenses. Thweatt v. Jackson,
838 S.W.2d 725, 727-28 (Tex. App.—Austin 1992), aff’d, 883 S.W.2d 171 (Tex. 1994); Bloom
v. Burkholder Corp., No. 05-94-01297-CV, 1995 Tex. App. LEXIS 4029, at *6-7 (Tex. App.—
Dallas May 30, 1995).
                                            55                               831104.2   402/122
contract claim. See Stonehill-PRM WC I, L.P. v. Chasco Constructors, Ltd., No.

03-08-00494-CV, 2009 Tex. App. LEXIS 1019, at *23-24 (Tex. App.—Austin

Feb. 11, 2009, no pet.) (mem. op.) (upholding contractual waiver of consequential

damages, including lost profits).

      F.     RLJ’s legally insufficient evidence of market value damages
             requires a take-nothing judgment in favor of ESG.
      The Texas Supreme Court has repeatedly held that rendition of judgment in

favor of the defendant is the proper relief when a plaintiff fails to offer legally

sufficient evidence of market value damages. See Houston Unlimited, Inc., 443

S.W.3d at 838; McGinty, 372 S.W.3d at 629 (“[The plaintiff] cannot opt for the

difference-in-value damages awarded by the jury because he offered no evidence

of the value of his house at the time of closing. Accordingly, without hearing oral

argument, we grant [the defendant’s] petition for review, reverse the court of

appeals’ judgment, and render judgment that [the plaintiff] take nothing.”).

Because there is no evidence supporting the $700,000 in market value damages in

the Final Judgment, this Court should render a take-nothing judgment in favor of

ESG on that claim.

      In assessing judgment against ESG, the trial court added the following

damages found by the jury: (1) $700,000 in Market Value Damages; (2) $70,000

for “barrier remediation” costs; (3) $15,000 for the “reasonable and necessary cost

of repairs to the [H]otel;” and (4) an attorneys’ fee award of $901,650.96.

                                        56                           831104.2   402/122
CR:1127; 1711.         The trial court then subtracted credits from the previous

settlements of other settling parties totaling $1,170,000 to reach the final amount of

$516,650.96. CR:1711.

          As ESG previously explained, the award of attorneys’ fees was erroneous.

Even if appropriate, however, the absence of the market value damages from the

calculation of damages means the settlement credit of $1,170,000 would exceed

the $986,650.96 total of attorneys’ fees and the other remaining damages. 21 As a

consequence, this Court should reverse the Final Judgment issued by the trial court

and render a take-nothing judgment in favor of ESG on all claims in this case.

                                            PRAYER

          WHEREFORE, PREMISES CONSIDERED, Appellant Elness, Swenson,

Graham Architects, Inc. prays that this Court reverse the Final Judgment of the

trial court and render a take-nothing judgment in favor of ESG; and for general

relief.




21
  This figure is the total of the $901,650.96 in attorneys’ fees, $70,000 in “barrier remediation”
costs, and $15,000 in “repair” costs. CR:1127; 1711.

                                               57                                 831104.2   402/122
                                            Respectfttlly submitted,

                                                /sI Weston M. Davis
                                            Gregory N. Ziegler
                                            Texas Bar No. 00791985
                                            GZiegler~flacdonaldDevin.com
                                            Weston M. Davis
                                            Texas Bar No. 24065126
                                            WDavis@~Macdona1dDevin.com
                                            Steven R. Baggett
                                            Texas Bar No. 01510680
                                            SBaggett~~acdonaldDevin.corn
                                            MACDONALD DEvIN, PC
                                            1201 Elm Street
                                            3800 Renaissance Tower
                                            Dallas, Texas 75270
                                            214.744.3300 telephone
                                            214.747.0942 facsimile

                                            Attorneys for Appellant
                                            Elness, Swenson, Graham
                                            Architects, Inc.

                           CERTIFICATE OF SERviCE

      The undersigned attorney certifies that a true and correct copy of the

foregoing Appellant ‘.v Brief and attached Appendix was served on all counsel of

records in accordance with the Texas Rules of Appellate Procedure via eFiling, on

April 10, 2015:

      Michael Huddleston
      Stephen Gibson
      Benton T. Wheatley
      Tracy L. McCreight
      Jessica C. Neufeld

                                       58                              831104.2   402/122
      MuNscH HARDT K0PF & HARR, P.C.
      401 Congress Aye, Suite 3050
      Austin, Texas 78701
      512.391.6100
      512.391.6149 fax

                                                Is! Weston M. Davis
                                              Weston M. Davis


                         CERTIFICATE OF CoJIPLIAI’CE

      Pursuant to Tex. R. App. P. 9.4, I hereby certi& that this petition contains

13,851 words. This is a computer-generated document created in Microsoft Word,

using 14-point typeface for all text, except for footnotes which are in 12-point

typeface. In making this certificate of compliance, I am relying upon the word

count provided by the software used to prepare the document.

                                                /slWeston M. Davis
                                              Weston M. Davis




                            APPENDIX CONTENTS


      A.    CR:l708-1712: Final Judgment.

     B.     CR:1121-1129: Jury Charge.

      C.    Tex. Civ. Prac. & Rem. Code § 38.001.




                                         59                           831104.2   402/122
Notice sent:            In~erIoCUtOrY   None           DC         8K14239 ~

Disp Parties:
Dtsp code:~~ CIS                 ‘4


                                               CAUSE NO. D-1-GN-1O-002325
                RU Il-C AUSTIN AIR, LP; RU Il-C AUSTIN             §          IN THE DISTRICT COURT OF
                AIR LESSEE, LP; and RU LODGING FUND                §
                II ACQUISITIONS, LLC,                              §
                                                                   §
                         Plaintiffs,                               §
                                                                   §
                vs.                                                §
                                                                   §
                EBCO GENERAL CONTRACTOR, LTD;                      §
                EBCO/WARRIOR MANAGEMENT LEC;                       §
                ELNESS, SWENSON, GRAHAM                            §           TRAVIS COUNTY, TEXAS
                ARCHITECTS, INC.; MARK SWENSON,                    §
                Individually; ThRRACON CONSULTANTS,                §
                INC.; TODD E. SWOBODA, P.E.,                       §
                Individually; and ALCADIO CHAPA, JR.               §
                formerly D/B/A JR’S CONCRETE                       §
                CONSTRUCTION,                                      §
                                                                   §
                         Defendants and Third-Party Defendants.    §           2OO~ JUDICIAL DISTRICT

                                                     FINAL JUDGMENT

                         On May 5, 2014, this case was called for trial. Plaintiffs RU Il-C AUSTIN AIR, LP;

                RU Il-C AUSTIN AIR LESSEE, LP; and RU LODGING FUND II ACQUISITIONS, LLC

                (“Plaintiffs”) appeared through a representative and announced ready for trial.      Defendants

                ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. (“ESG”) and EBCO GENERAL

                CONTRACTOR, LTD and EBCO/WARRIOR MANAGEMENT LLC (collectively, “EBCO”)

                each appeared through a representative and announced ready for trial.
                       Before trial, Plaintiffs asserted claims pursuant to the doctrine of equitable subrogation

                against defendants EBCO, ESG, and Terracon Consultants, Inc. (“Terracon”), which were

                disposed of on partial summary judgment that Plaintiffs take nothing on these claims against

                EBCO, ESG, and Terracon.


                FINAL JUDGMENT                                                                             Page I
                819658 402.122


                                                   APPENDIX A
                                                                              1708
                                          DC         BK14239PG59




          Plaintiffs also asserted claims against defendants MBA Structural Engineers, Inc.

 (“MBA”), Mark Swenson, and Todd Swoboda, which were disposed of before trial by partial

 summary judgment that Plaintiffs take nothing against MBA, Swenson, and Swoboda.

          Before trial, Plaintiffs also non-suited all their claims against the following defendants:

Andrew Marlin, Davinci Pools, LLC (“Davinci”), Bridgeview Plumbing, Inc. (“Bridgeview”),

and Champion Site Prep, LP (“Champion”).

          Plaintiffs also asserted claims against EBCO Advanced Building Systems, Ltd. (“EBCO

Systems”) ,which were disposed of before trial by partial summary judgment that Plaintiffs take

nothing against EBCO Systems.

         EBCO asserted third-party claims against third-party defendants Davinici, Bridgeview,

and Champion, which were disposed of before trial by partial summary judgment that EBCO

take nothing against Davinci, Bridgeview, and Champion.

         Before trial, EBCO also non-suited all its claims against third-party defendants, White
Lodging Services Corporation.

         Before trial, EBCO also non-suited all its claims against third-party defendant Alacadio

Chapa,.Jr. formerly dfb/a JR’s Concrete Construction.
       EBCO also asserted claims against Andrew Marlin and MBA, which were disposed of

before trial by summary judgment that EBCO take nothing against Marlin and MBA.

         Before trial, ESG non-suited all its claims against third-party defendants Griffin

Engineering and Gregory Griffin.

         ESG also asserted claims against Andrew Marlin and MBA, which were disposed of

before trial by summary judgment that ESG take nothing against Marlin and MBA.


FINAL JUDGMENT                                                                                Page 2
8(9658 402.122




                                                                   709
                                         DC        5K14239 P060




         Before trial, the Court dismissed Plaintiffs’ claim against Terracon for breach of the

Materials Testing Contract pursuant to Texas Civil Pradtice & Remedies Code section

150.002(e).

          Before trial, Plaintiffs non-suited all their claims against Terracon and all remaining

claims against Todd Swoboda.

         Before trial, the Court rendered partial summary judgment that Plaintiffs take nothing on

their tort claims against Defendants and thereby rendered moot all defendants’ and third-party

defendants’ cross-claims for contribution.

         During trial, Plaintiffs voluntarily dismissed all remaining claims that it had against

EBCO pursuant to the agreement of the parties.

         The remaining issues in the case proceeded to trial to the jury.       After a jury was

impaneled and sworn, it heard evidence and arguments of counsel. In response to the jury

charge, the jury made findings that the Court received, file~, and entered of record. The
                                                                at rttota
questions submitted to the jury and the jury’s findings are attached aa Exhibit-A and incorporated

by reference.

         After a post-verdict hearing, the Court granted the motion of ESG for the application of
the one-satisfaction rule to apply the sum of the amount of the settlements between Plaintiffs and

EBCO and Plaintiffs and Terracon as credits (“the Settlement Credit”) against the amount

awarded by the jury to Plaintiffs as damages for ESG’s failure to comply with the Architectural

Contract. Accordingly, pursuant to the “one-satisfaction rule,” the Court applies the Settlement

Credit of $1,170,000 against the sum of the jury award of damages and the attorney’s fees award.

         By agreement of the parties, the matter of attorney’s fees was submitted to the Court for

determination. After considering the Plaintiffs’ Amended Motion for Attorney’s Fees and ESG’s


FINAL JUDGMENT                                                                              Page 3
819658 402.122




                                                                  710
                                           DC        61<14239 PG6I




 Response to Plaintiffs’ Amended Motion and the arguments of counsel, the Court overruled

 ESG’s objections to Plaintiffs’ Amended Motion for Attorney’s fees and finds that $901,650.96

 was a reasonable and necessary attorney’s fee for the presentation of Plaintiffs’ claims for breach

 of contract claim against ESO.

          The Court also considered by submission only the issue of Plaintiffs’ entitlement to

attorney’s fees despite the application of the Settlement Credit. The Court overruled ESO’s

objection to Plaintiffs’ entitlement to attorney’s fees despite the application of the Settlement

Credit and found that Plaintiffs were entitled to attorney’s fees and to present evidence of

attorney’s fees.

         The Court hereby RENDERS judgment as follows:

          I.       The Court ORDERS that Plaintiffs collectively recover the following from ESO:

                 a. The amount of $5164650.96, being the sum of the jury’s award of $785,000 as

                      actual damages and the attorney’s fee award of $901,650.96, less the
                      Settlements Credit of$l,l70,000;

                 b. Court costs; and

                 c. Post-judgment interest on all of the above at the rate of 5% compounded
                      annually from the date this judgment is signed until all amounts are paid in

                      full.

         2.      The Court further ORDERS that if this judgment is appealed to an intermediate

court of appeal and modified or reversed in favor of Plaintiffs, Plaintiffs will additionally recover

from ESO the amount of $125,000, representing the anticipated reasonably and necessary fees

and expenses that would be incurred by Plaintiffs.


FJNAL JUDGMENT                                                                                 Page 4
819658 402.122




                                                                     1711
                                         DC         BK14239 PGS2




         3.      The Court further ORDERS that if this judgment is appealed to the Texas

Supreme Court and modified or reversed in favor of Plaintiffs, Plaintiffs will additionally recover

from ESG the amount of $50,000, representing the anticipated reasonable and necessary fees and

expenses that would be incurred by Plaintiffs.

         4.      This judgment is intended to be an appealable judgment that fully and finally

disposes of all claims between and among all parties to this proceeding and hereby finally

disposes of all claims and all parties to this proceeding.

         5.      All relief requested by any party to this proceeding not expressly granted in this

judgment is hereby denied. Such denial includes but is not limited to all declaratory relief sought

by ESG pursuant to chapter 37 of the Texas Civil Practice and Remedies Code against Plaintiffs.

         6.      The Court ORDERS execution to issue for this judgment.

SIGNEDon ______________,2014.




FINAL JUDGMENT                                                                               PageS
819658 402.122




                                                                   712
‘I.’
7      •                                                  DC            BK14139PS262




                                                CAUSE NO. D-1-GN-1O-002325

             RU Il-C AUSTIN AIR, LP; RU Il-C AUSTIN                       §             IN THE DISTRICT COURT OF
             AIR LESSEE, LP; and RU LODGING FUND                          §
             II ACQUISITIONS, LLC,                                        §
                                                                          §
                    Plaintiffs,                                           §
                                                                          §
            vs.                                                           §
                                                                          §
            EBCO GENERAL CONTRACTOR, LTD;                                 §
            EBCO ADVANCED BUILDING SYSTEMS,                               §
            LTD; EBCO/WARRIOR MANAGEMENT                                  §               TRAVIS COUNTY, TEXAS
            LLC; ELNESS, SWENSON, GRAHAM                                  §
            ARCHITECTS, NC.                                               §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
                    Defendants and Third-Party Defendants.                §               200TH   JUDICIAL DISTRICT


                                                  CHARGE OF THE COURT

           Members of the Jury:

                  After the closing arguments, you will go to the jury room to decide the case, answer the
           questions that are attached, and reach a verdict. You may discuss the case with other jurors only
           when you are all together in the jury room.

                    Remember my previous instructions: Do not discuss the case with anyone else, either in
           person or by any other means. Do not do any independent investigation about the case or conduct
            any research. Do not look up any words in dictionaries or on the Internet. Do not post information
            about the case on the Internet. Do not share any special knowledge or experiences with the other
           jurors. Do not use your phone or any other electronic device during your deliberations for any
           reason. Rely on the Court Operations Officer to notif~’ you if she receives a call for you on the
           emergency number she gave you.

                   Any notes you have taken are for your own personal use. You may take your notes back
           into the jury room and consult them during deliberations, but do not show or read your notes to
           your fellow jurors during your deliberations. Your notes are not evidence. Each of you should

                                                                    1
                                  Filed in The District Court                                          Filed In The District Court
           May 14,2014             of Travis County, Texas               APPENDIX B                     of Travis County, Texas
                                        MAY 152014 BH                                                        MAY 162014 RH
                                  At.~
                                   Amaha Rodriguez.MendOZa, Clerk
                                                                                                      At       St4       M,    F’
                                                                                                       Arnaile Rodriguez-MendQza, Clerk
                                                                                       I 2!
                                        DC           8K14139 PG2BS




 rely on your independent recollection of the evidence and not be influenced by the fact that another
juror has or has not taken notes.

       Here are the instructions for answering the questions.

        I. Do not let bias, prejudice, or sympathy play any part in your decision.

        2. Base your answers only on the evidence admitted in court and on the law that is in these
instructions and questions. Do not consider or discuss any evidence that was not admitted in the
courtroom.

        3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law, you
must follow all of my instructions.

       4. If my instructions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.

       5. All the questions and answers are important. No one should say that any question or
answer is not important.

        6. Unless the instruction for a particular question tells you otherwise, a “yes” answer must
be based on a preponderance of the evidence.          If you do not find that a preponderance of the
evidence supports a “yes” answer, then answer “no.” When you answer a question that requires
an answer other than “yes” or “no,” your answer must be based on a preponderance ofthe evidence,
unless the instruction for that particular question tells you otherwise.

       The term “preponderance of the evidence” means the greater weight of credible evidence
presented in this case. A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.

         7. A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses who
saw the act done or heard the words spoken. A fact is established by circumstantial evidence when
it may be fairly and reasonably inferred from other facts proved.

       8. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without considering
who will win. Do not discuss or consider the effect your answers will have.

       9. Do not answer questions by drawing straws or by any method of chance.

       10. Some questions might ask you for a dollar amount. Do not agree in advance to decide
on a dollar amount by adding up each juror’s amount and then figuring the average.
                                                 2

May 14,2014



                                                                     122
                                        DC         8K14139PG264




        11. Do not trade your answers. For example, do not say, “I will answer this question your
way if you answer another question my way.”

        12. To return a verdict, the same group of at least 10 of you must agree on each and every
answer. You may not have one group of 10 jurors agree on one answer and a different group of
10 jurors agree on another answer.

       As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties’ money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.




                                               3

May 14,2014



                                                                  1123
                                      DC        5K14139 PC265




                                 Instructions and Definitions

Assignment. White Lodging Services Corporation, Inc. (White Lodging) assigned the contracts
and causes of action in this lawsuit to the RU Plaintiffs in this case. Therefore RU “steps into
the shoes” of White Lodging and RU and White Lodging should be considered one and the same
for the purposes of answering the questions below.

 “Architectural Contract” means the AlA B 141 1997 Standard Form of Agreement Between
                                                   —


Owner and Architect entered into between White Lodging Services Corporation, Inc. and Elness
Swenson Graham Architects, Inc. dated January 1, 2005, and all incorporated exhibits and
attachments.




                                               4

May 14,2014



                                                                1124
                                       DC           81<14139 P8266




                                            OUESTION 1

       Did ESG fail to comply with the Architectural Contract by failing to coordinate as
required by the contract?

       Answer “Yes” or “No.”

       Answer:       IV 0




                                                5

May 14,2014



                                                                     1125
                                      DC           5K14139PS267




                                           OUESTION 2

       Did ESG fail to comply with the Architectural Contract regarding the strucftral
engineering services required by the conifact?

       Answer “Yes” or “No.”

       Answer:   ___________




                                               6

May 14,2014



                                                                  1126
                                       DC           8K14139 PG268




       If you answered “Yes” to Questions 1 and/or 2, then answer the following question.
Otherwise, do not answer the following question.

                                            OUESTION 3

       What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
White Lodging for its damages, if any, that resulted from ESG’s failure to comply with the
Architectural Contract that you found in answer to Questions 1 and/or 2?

        In answering questions about damages, answer each question separately. Do not increase
or reduce the amount in one answer because of your answer to any other question about damages.
Do not speculate about what any party’s ultimate recovery may or may not be. Any recovery will
be determined by the court when it applies the law to your answers at the time ofjudgment.

       Consider only the following elements of damages, if any, and none other.          Answer
separately in dollars and cents for damages, if any:

       a)     The difference, if any, between the value of the hotel as constructed and the value
              of the hotel had ESG complied with the Architectural Contract. The difference in
              value, if any, shall be determined as of August 31, 2010.

              Answer$ 700,        O&. 00
      b)      The reasonable and necessary cost, if any, for barrier remediation that you find is
              due to ESG’s failure to comply.

              Answer:   $70, Ott’. cO
      c)      The reasonable and necessary cost of repairs to the hotel, if any, made through
              August 31, 2010 that you find is due to ESG’s failure to comply.

              Answer    $i5i O&,a2




                                                7

May 14,2014



                                                                    127
                                        CC          0K14139 P0269




        When you go into the jury room to answer the questions, the first thing you will need to do
is choose a presiding juror.

       The presiding juror has these duties:

       1) preside over your deliberations, meaning manage the discussions, and see that you
          follow these instructions
       2) write down the answers you agree on;
       3) write down and give to the Court Operations Officer any questions you have for the
            judge without revealing any answers you have agreed on and without revealing any
            vote(s) taken in the jury room;
       4) get the signatures for the verdict certificate; and
       5) notify the Court Operations Officer that you have reached a verdict.


       Do you understand the duties of the presiding juror? If you do not, please tell me now.

   Instructions for Deliberating, Reaching a Verdict, & Signing the Verdict Certificate:

       1) All jurors should participate in the jury’s deliberation on every question.
       2) To return a verdict, the same group of at least 10 of you must agree on each and every
          answer. You may not have one group of 10 jurors agree on one answer and a different
          group of 10 jurors agree on another answer.
       3) Only those who agree on each and every answer should sign the verdict. A juror who
          agrees with the answer to some questions, but not all, should not sign the verdict.


       Do you understand these instructions? If you do not, please tell me now,




                                                8

May 14, 2014



                                                                    128
                                      00         BK14139 P6270




                                     Verdict Certificate



Those of us who have signed below agree to each and every answer.



                                                 ~aeJAij
          ~rley



  ~ie


    ~
~Mai~lyn R4ed-Bridges                                     olzer



Michael


a
William Molloy


     ~                      ‘—

Cwthia Collier




                                             9

May 14, 2014



                                                                 I 229
                                                                                                                 Page 1




                    LexisNexis                          •0



1 of I DOCUMENT

                                            LexisNexis (R) Texas Annotated Statutes
                                     Copyright © 2014 by Matthew Bender & Company, Inc.
                                               a member of the LexisNexis Group
                                                      All rights reserved.

                             ***   This document is current through the 2013 3rd Called Session   ‘~“




                                          CIVIL PRACTICE AND REMEDIES CODE
                                        TITLE 2. TRIAL, JUDGMENT, AND APPEAL
                                                SUBTITLE C. JUDGMENTS
                                             CHAPTER 38. ATTORNEYS FEES

                                        GO TO TEXAS CODE ARCHIVE DIRECTORY

                                            Ta Civ. Frac. & Rem. Code § 38.001 (2014)

§   38.001. Recovery of Attorney’s Fees

  A person may recover reasonable attorneys fees from an individual or corporation, in addition to the amount of a
valid claim and costs, if the claim is for;

         (1) rendered services;

         (2) performed labor;

         (3) furnished material;

         (4) freight or express overcharges;

         (5) lost or damaged freight or express;

         (6) killed or injured stock;

         (7) a sworn account; or

         (8) an oral or written contract.

HISTORY: Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797),          §   I, effective September 1, 1985.

NOTES:

    Legislative Note. --

    * See Texas Litigation Guide, Ch. 22, Attorne/s Fees; Texas Toils and Remedies, Ch. 105, Attorne/s Fees and




                                                      APPENDIX C
                                                                                                                      Page 2
                                          Tex. Civ. Prac. & Rem. Code    § 38.001


Costs.

LexisNexis (R) Notes:



CASE NOTES




1. Subcontractor was not entitled to attorneys’ fees in its maritime contract dispute because the general rule of maritime
law that parties bear their own costs, coupled with the need for uniformity in federal maritime law, precludes the
application of state attorneys’ fee statutes, such as Tex. Civ. Prac. & Rein. Code Ann. § 38.001, to maritime contract
disputes. Viking Prospector, Inc. v. Xtreme Indus., L.L.C. (In re Viking Offshore (USA) Inc.), 2009 Bank,. LEXIS 2276
(Bank,. S.D. TeL July31 200Q).



2. Assuming, without deciding, that Tex. Civ. Prac. & Rem. Code Ann. § 38.0001 applied in the case, the defendant
failed to show that it was entitled to attorneys’ fees as the prevailing party on its counterclaim in admiralty proceedings
where the billing records submitted by the defendant did not segregate the time spent and the fees incurred for work on
the counterclaims on which it prevailed from the time and fees relating to counterclaims that were unsuccessful nor
from the time and fees relating to its defense. Tucker Energy Servs. v. Noble Den/on & Assocs., 2003 U.S. Dist LEXIS
25593 (‘S.D. Tex. June 3 2003,).



3. Evidence of attorney fees was sufficient to support an award in favor of an orthodontic patient and her mother under
the Texas Deceptive Trade Practices Act where they made a proper claim for attorney fees, the proceeding was before
the court, and the reviewing court presumed the trial court took judicial notice of the usual and customary attorney fees.
Froernining v. Perez, 2006 Tex. App. LEXIS 2154 (rex. App. San Antonio Mar. 22 2006,).

4. Where minivan buyers moved for summary judgment on all their claims against a seller, including their request for
attorney fees under Tex. Bus. & Corn. Code Ann. § 1750(d); Tex. Civ. Proc. & Rein. Code Ann. § 38.001, which was
denied, the issue of attorney fees proceeded to trial along with the buyers’ other affirmative claims for relief.
Accordingly, because the buyers failed to make any reference to the affidavit provided with their summary judgment
motion, did not have their attorney testi& about the reasonableness of the requested attorney fees, and did not introduce
any evidence of attorney fees at trial, the trial court did not err in instructing a verdict against them on the issue of
attorney fees. Manon v. Tejas Toyota, Inc., 162 5. W3d 743, 2005 Tex. App. LEXIS 2663 (rex. App. Houston 14th Dist.
2005).

5. In a home builder’s action to recover on a construction contract, a homeowner was entitled to recover attorney fees
for successful prosecution of claims; a consumer could recover attorney fees incurred in the successful prosecution of a
claim under the Texas Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Coin. Code Ann. §~
17.41-17 63, even though the amount of damages awarded to the consumer was entirely offset by the amount awarded
to an opposing party; the same rule applied for recovery of attorney fees under former Tex. Rev. Civ. Stat. Ann. art.
2226. Matthews v. ~‘andlewoodBldiw., Inc., 685S. W.2d 649, 1985 Tex. LEXIS 750, 28 Tex. Sup. Ct. J 284 (rex. 1985,).
