BEAUMONT — A couple has lost its appeal against a homebuilding company, alleging the trial court erred in its decision.
Roland Keller and Deborah Keller had filed an appeal in the Beaumont Court of Appeals Ninth District of Texas against Legend Home Corporation, Legend Classic Homes Ltd., and WUIC Insurance Agency Inc., doing business as Home of Texas, alleging that the trial court erred in granting judgment notwithstanding the jury’s verdict on the homebuilder’s counterclaim for attorney fees.
The appeals court overruled the plaintiffs' allegations with the exception of the challenging the defendant’s motion for judgment notwithstanding judgment, which is reversed. The appeals court favored Legend Home and its counterclaim through an award of $60,000 for fees.
The case was heard by Justice Hollis Horton.
According to the complaint, the Kellers had purchased a new home from Legend Home in August 2004 and the home came a 10-year limited warranty. The plaintiffs said they began to notice defects in their home in October 2005 and sent a letter to the defendant and underwriters about the issues.
The defendants sent a letter stating that they were at an impasse and that the Kellers could submit their claims to arbitration. The plaintiffs retained an attorney in May 2010 regarding their claim of foundation damage, who wrote a letter stating that the defendants had violated the Texas Residential Construction Liability Act and the Deceptive Trade Practices and Consumer Act. The underwrites denied warranty coverage on the foundation damage claim in June 2011.
The Kellers entered into an agreement with the Legend Home in December 2011 to fix drainage problems and the defendant agreed to install a French drain and pay the plaintiff’s attorneys’ fees and expert fees.
The agreement stated that if the drainage system was working in six months, the defendant would also repair the damages to the foundation, stating that the plaintiffs had the right to sue the defendant.
In February 2012, Legend installed the French drain and in December 2012, Legend’s attorney sent the plaintiffs a letter claiming that the foundation of the house was working properly. The letter alleged the plaintiffs had made changes to their landscaping, which the warranty did not cover but Legend Home agreed to correct the problems linked to the alleged landscape changes. The plaintiffs never replied.
In September 2014, the plaintiffs retained another attorney who sent Legend Home a letter demanding $189,950 for damages, defects and attorney fees. The plaintiffs then sued the defendants Jan. 26, 2015, alleging violation of DPTA, breach of warranties, failure to exercise reasonable care, fraud and misrepresentation.
The defendants filed a counterclaim against the plaintiff. In May 2016, the defendants filed traditional motions for summary judgment covering all Legend Home's plaintiff’s allegations except fraud, alleging that the Kellers could not prove fraud.
Beaumont Court of Appeals Ninth District of Texas case number 09-17-00199-CV