REVERSED and RENDERED, REMANDED; Opinion Filed March 27, 2013




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-11-01690-CV

    BRENT TIMMERMAN D/B/A TIMMERMAN CUSTOM BUILDERS, Appellant
                               V.
                  RICHARD P. DALE, JR., Appellee

                      On Appeal from the 160th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-09-03283

                                         OPINION
                            Before Justices Francis, Lang, and Evans
                                   Opinion by Justice Francis
       In this breach of contract suit, Brent Timmerman d/b/a Timmerman Custom Builders

appeals the trial court’s order denying his motion for summary judgment and awarding Richard

P. Dale, Jr. damages for lost rental value for failing to proceed with reasonable diligence in

remodeling Dale’s homestead residence.     In a single issue, Timmerman contends Dale’s claim

falls under the Residential Construction Liability Act and the damages awarded are not allowable

under the statute. See TEX. PROP. CODE ANN. § 27.001 et seq. For reasons set out below, we

agree. We reverse the trial court’s order and remand for further proceedings consistent with this

opinion.

       In May 2006, Dale hired Timmerman to remodel his upscale condominium. As part of

the parties’ written contract, Timmerman agreed to begin construction “forthwith and to continue
such construction with reasonable diligence in substantial conformity with the Plans and

Specifications.”   In addition, the contract contained a provision in which both parties

acknowledged that the RCLA “applies to construction defects and any disputes or claims

regarding construction defects in connection with the improvements.”

       In January 2008, Dale terminated the contract and refused to pay Timmerman’s invoices.

Timmerman then filed mechanic’s and materialman’s lien affidavits claiming liens on the

residence. Dale filed suit, which he later amended, alleging claims for poor workmanship,

overpayment of fees, and unreasonable delay in completing the project.                  Timmerman

counterclaimed for unpaid amounts due and owing under the contract.

       After the case was set for trial, the parties settled all issues except for Dale’s delay claim

in which Dale sought the fair market rental value of his homestead after the time remodeling

should have been completed, which Dale estimated was thirteen months. At a hearing, the

parties agreed the trial court would decide by summary judgment “whether or not delay, under a

claim for delay in the construction of a residence, is governed by the RCLA, and whether or not

reasonable rental value can be recovered on an issue of delay under the RCLA.” The parties

further agreed that the trial court would render judgment for Dale for $100,000 unless it granted

Timmerman’s forthcoming motion for summary judgment based on the application of the

RCLA. Finally, the parties agreed that the “winning side” would be entitled to attorney’s fees

beginning from the date of the hearing, September 13, 2011.

       Timmerman filed a motion for summary judgment. In the motion, he asserted Dale’s

claim was governed by the RCLA, and rental value of the home under construction is not

recoverable as damages under the statute.       Dale countered that a “common law claim for

unreasonable delay has long existed” in this state. Relying on Muller v. Light, 538 S.W.2d 487,




                                                 2
488 (Tex. Civ. App.—Austin 1976, writ ref’d n.r.e.); Ryan v. Thurmond, 481 S.W.2d 199, 206

(Tex. Civ. App.—Corpus Christi 1972, writ ref’d n.r.e.); and Hill v. Willett, 281 S.W. 1110, 1111

(Tex. Civ. App.—Texarkana 1926, no writ), Dale contended his damages are the rental value of

his homestead for the period of delay. Dale argued that his claim for lost rental value was not

“preempted” by the RCLA because his claim is not governed by the RCLA. The trial court

ultimately agreed with Dale and awarded him agreed damages of $100,000 for unreasonable

delay and attorney’s fees. 1 Timmerman appealed.

          The summary judgment rule provides a method of summarily ending a case that involves

only a question of law and no fact issue. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Mgmt.

Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Determining the proper construction of a statute and

the propriety of a ruling on a motion for summary judgment are both questions of law. Berry v.

State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 890 (Tex. App.—Austin 2000, no pet.).

          Our review of the summary judgment here turns on the construction of the RCLA. Our

primary objective in construing a statute is to give effect to the legislature’s intent. State v.

Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We seek that intent “first and foremost” in the

statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We rely on the

plain meaning of the text, unless a different meaning is supplied by legislative definition or is

apparent from the context, or unless such a construction leads to absurd results. City of Rockwall

v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008); see TEX. GOV’T CODE ANN. § 311.011 (West

2005). We read every word, phrase, and expression in a statute as if it were deliberately chosen.




     1
       We recognize the parties agreed to the procedure in the trial court. Nevertheless, the trial court did not have competing motions for
summary judgment before it because Dale did not move for summary judgment. Because of our disposition of this appeal, we need not decide
the propriety of the trial court awarding damages and attorney’s fees to a party who has not moved for summary judgment.




                                                                     3
Cordillera Ranch, Ltd. V. Kendall County Appraisal Dist., 136 S.W.3d 249, 254 (Tex. App.—

San Antonio 2004, no pet.).

       If the meaning of the statutory language is unambiguous, we adopt, with few exceptions,

the interpretation supported by the plain meaning of the provision’s words and terms. Fitzgerald

v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 865 (Tex. 1999). Further, if a statute

is unambiguous, rules of construction or other extrinsic aids cannot be used to create an

ambiguity. Id.

       The Texas Legislature enacted Chapter 27 of the Texas Property Code, known as the

RCLA, in 1989 as a reaction to construction industry claims that the Deceptive Trade Practices

Act was “used as a sword to litigate against builders.” Justin Jackson, Unlicensed to Drill

Proposed Renovations to the Texas Residential Construction Commission Act, 36 ST. MARY’S L.

J. 753, 754 (2005). Its intent was to “provide an ‘appropriate balance’ between the residential

contractor and owner, with respect to the resolution of construction disputes.” Id. at 761.

       The RCLA modifies causes of action for damages resulting from construction defects in

residences by limiting and controlling causes of action that otherwise exist. Gentry v. Squires

Constr., Inc., 188 S.W.3d 396, 404 (Tex. App.—Dallas 2006 no pet.). It provides defenses,

limitations on damages, and determines the standard of causation. See TEX. PROP. CODE ANN. §

27.003, 27.004, 27.006 (West 2000 & Supp. 2013); Gentry, 188 S.W.3d at 404. It also sets out

notice provisions and encourages settlement through its procedures. See TEX. PROP. CODE ANN.

§ 27.004; Gentry, 188 S.W.3d at 404. The RCLA does not create a cause of action or derivative

liability. TEX. PROP. CODE ANN. § 27.005. It does, however, prevail over any conflict between it

and any other law, including the DTPA or a common law cause of action, except in

circumstances that do not apply here. Id. at § 27.002(b).




                                                 4
       The RCLA applies to “any action to recover damages or other relief arising from a

construction defect, except a claim for personal injury, survival, or wrongful death or for damage

to goods[.]” TEX. PROP. CODE ANN. § 27.002(a)(1) (West Supp. 2012). A “construction defect”

means “a matter concerning the design, construction, or repair of a new residence, of an

alteration of or repair or addition to an existing residence, or of an appurtenance to a residence,

on which a person has a complaint against a contractor.” Id. at § 27.001(4). Thus, the question

here is whether a claim for damages based on Timmerman’s unreasonable delay in completing

the construction of Dale’s residence is an action arising from a matter concerning the

construction of Dale’s residence and, thus, is governed by the RCLA. We conclude it is.

       Initially, we note the statute is broadly written to encompass “any action” that arises from

a construction defect. See In re NEXT Fin. Group, Inc., 271 S.W.3d 263, 268 (Tex. 2008, orig.

proceeding) (per curiam) (recognizing when construing contracts generally, “‘arising out of’ are

words of . . . broad[] significance. . . .”). Similarly, “construction defect” is broadly defined.

Under the statute’s express definition of construction defect, the complaint against the contractor

must merely arise from a matter that concerns the construction of a new or existing residence. In

re Wells, 252 S.W.3d 439, 448 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). It need

not necessarily involve defective construction or repair. Id.

       While “construction defect” is defined in the statute, the term “construction” is not. To

properly construe an undefined statutory term, we begin with the plain meaning of the word. In

common parlance, construction means “the act of putting parts together to form a complete

integrated object.”   WEBSTER’S THIRD NEW INT’L DICTIONARY 489 (1981).               Dale alleges

Timmerman failed to use reasonable diligence in completing the remodeling of his

condominium. Giving the statute its plain meaning, we conclude a claim regarding delay in




                                                 5
constructing a residence is an action arising from a matter concerning its construction, that is, the

act of putting the parts together to form a complete object. In other words, while Dale’s

complaint may not go to the quality of construction, it clearly concerns the manner in which

Timmerman performed the construction and is thus governed by the RCLA.

       In reaching this conclusion, we have considered Dale’s argument that his claim is not

amenable to the provisions of the RCLA. Dale accepts the “basic premise” that a construction

defect “does not always involve defective work under the RCLA.” According to Dale, the

statute’s “fundamental tenets” are its notice, inspection, and repair provisions found in section

27.004. He argues the RCLA provides no procedure for resolving a delay dispute nor does the

statute provide any compensation for damages for unreasonable delay. We do not agree.

       The purpose of the RCLA’s notice requirements “is to encourage pre-suit negotiations to

avoid the expense of litigation.” In re Wells, 252 S.W.3d at 448. A dissatisfied owner can just

as easily give notice of unreasonable delay as he can of an item of defective work so that the

builder has an opportunity to cure. As Timmerman asserts, if such notice is given, a builder can

offer to pay for replacement housing, double the crew to finish more quickly, provide a rebate on

the contract, or any combination of these measures.

       Dale also asserts that if the RCLA applies, he is left without any measure of damage.

Except in circumstances not applicable here, the RCLA limits a claimant’s recovery to

specifically prescribed economic damages proximately caused by the construction defect. See

TEX. PROP. CODE ANN. § 27.004(g). One such damage is “the reasonable expenses of temporary

housing reasonably necessary during the repair period[.]” Id. at § 27.004(g)(4). So while a

claimant seeking damages for unreasonable delay is not entitled to recover lost rental value of




                                                 6
the property under the statute, he may be entitled to the reasonable expenses of temporary

housing. In this case, Dale did not seek those damages.

       We conclude the RCLA applies to Dale’s claim for delay damages. Further, we conclude

the statute does not provide for the measure of damages sought by Dale and awarded by the trial

court. We therefore sustain Timmerman’s sole issue.

       We reverse the trial court’s judgment and render judgment that Dale take nothing on his

claim. The parties previously agreed that the “winning side” would be entitled to attorney’s fees

beginning from the date of the stipulation hearing, September 13, 2011. We therefore remand

this cause to the trial court to determine the amount of attorney’s fees to be awarded to

Timmerman.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE



111690F.P05




                                               7
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

BRENT TIMMERMAN D/B/A                              On Appeal from the 160th Judicial District
TIMMERMAN CUSTOM BUILDERS,                         Court, Dallas County, Texas
Appellant                                          Trial Court Cause No. DC-09-03283.
                                                   Opinion delivered by Justice Francis;
No. 05-11-01690-CV         V.                      Justices Lang and Evans participating.

RICHARD DALE, JR., Appellee


                In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that RICHARD P. DALE, JR. take nothing
on his claim for unreasonable delay. We REMAND this cause to the trial court to determine the
amount of attorney’s fees to be awarded to appellant BRENT TIMMERMAN D/B/A
TIMMERMAN CUSTOM BUILDERS.
        It is ORDERED that appellant BRENT TIMMERMAN D/B/A TIMMERMAN
CUSTOM BUILDERS recover his costs of this appeal from appellee RICHARD P. DALE, JR.


Judgment entered March 27, 2013.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




                                               8
