HOVNANIAN DEVELOPMENTS OF TEXAS INC v. GATES (2025)

OPINION

Appellant K. Hovnanian Developments of Texas, Inc. (“KHD”) appeals a judgment in favor of appellees Gary Gates and Susan Gates following a jury trial. Appellees sued KHD for construction defects they contend were caused by KHD during construction of the appellees’ home. In six issues, KHD argues the trial court erred by: (1) refusing to allow KHD to exercise its repurchase right of the property as stated in the parties’ sales agreement and as provided by Property Code § 27.0042; (2) limiting the application of the jury's finding of appellees’ proportional responsibility to appellees’ negligence cause of action only, thereby ignoring Property Code § 27.003; (3) disregarding the jury's finding of twenty-five percent responsibility attributable to appellees; (4) refusing to admit evidence of an express limited-warranty agreement between the parties, which hindered KHD's presentation of defenses; (5) submitting a comingled jury-charge question regarding the implied warranties of habitability and good and workman-like conduct; and (6) awarding appellees’ expert fees and unconditional appellate attorney's fees. We reverse the part of the trial court's judgment awarding appellees expert fees and unconditional appellate attorney's fees and affirm the remainder of the judgment. We remand the case to the trial court solely for a redetermination of the award of appellate attorney's fees.

I. Background

On March 1, 2019, appellees filed suit against KHD, alleging that KHD built their home with “multiple construction defects [that] have caused significant mold growth in [the] home,” and claiming that “[t]he mold infestation will require extensive remediation as well as the replacement and cleaning of [appellees’] contents.” Appellees asserted claims for breach of contract, breach of the implied warranties of habitability and good and workmanlike performance, and negligent construction. Appellees sought economic damages for the cost of repairs necessary to cure the construction defect, the cost to remediate the mold presence and subsequent needed rebuild, the costs for replacing or repairing any damaged goods in the residence, engineering and consulting fees, and attorney's fees. KHD filed an answer and asserted multiple affirmative defenses, including mitigation, negligence on the part of appellees, and “all available and applicable limitations on the recovery of damages as provided under Chapter 27 of the Texas Property Code, including but not limited to, §§ 27.001, 27.002, 27.003, 27.004, 27.005, and 27.006.”

The lawsuit was tried before a jury. The jury found that KHD failed to comply with the sales contract with appellees, KHD breached the implied warranty of habitability “or” the implied warranty of a good and workmanlike performance, the negligence of both KHD and appellees proximately caused the damages in question, and appellees caused twenty-five percent of the damages. The jury further found that appellees would be fairly and reasonably compensated for the economic damages caused by KHD through awards of $76,300.00 for mold remediation, $68,274.00 for rebuilding the structure after remediation, $113,450.00 for remedial repairs for water/moisture source, $8,400.00 for alternate living expenses, and $41,441.09 for expert consulting fees. The jury further awarded appellees $184,496.25 in reasonable and necessary attorney's fees, as well as $25,000.00 for appeals to the intermediary court of appeals and $10,000.00 for an appeal to the Supreme Court of Texas.

KHD filed a motion for judgment notwithstanding the verdict, arguing that there was no evidence that it breached the sales contract, that the implied warranties of workmanship and habitability were superseded by an express warranty included in the parties’ original transaction, and that there was insufficient evidence supporting the jury's findings. Specifically, KHD argued that there was no evidence “to establish that a construction defect existed or the alleged defects were the proximate cause of [appellees’] injuries.” KHD further argued that it is not liable for any percentage of damages caused by the negligence of another person pursuant to the Residential Construction Liability ACT (“RCLA”) because the claim is based on a construction defect. Finally, KHD asserted that the trial court must enter a judgment allowing it to repurchase the property based on a clause in the sales contract between the parties and “the Conditional Sale to Builder provision in the RCLA.”

Appellees filed a combined response and motion for judgment notwithstanding the verdict, arguing that proportionate responsibility did not apply to breach-of-contract claims and that there was no evidence that appellees caused part of their damages. The trial court denied appellant's motion for JNOV and ruled that it would disregard the jury's finding of appellees’ contributory negligence because it was not supported by the evidence.

On August 23, 2022, the trial court signed a final judgment in favor of appellees, noting they had elected to recover on their breach-of-contract claim and awarding the total damages awarded by the jury ($492,362.04), as well as pre-judgment and post-judgment interest, and court costs. KHD filed a motion for new trial, rearguing that KHD was entitled to repurchase the property, that the trial court failed to apply the contributory negligence finding to the damages award, and that the trial court erred in awarding appellees expert fees and unconditional appellate attorney fees. KHD also argued there was legally insufficient evidence supporting the jury's finding of a breach of the contract or of the implied warranties, and that the trial court erred by excluding from evidence the limited warranty included in the sales agreement between the parties. This appeal followed.

II. RCLA

Codified as Chapter 27 of the Texas Property Code, the RCLA was enacted to establish an “appropriate balance” between the interests of residential contractors and homeowners in the resolution of construction disputes.¹ Mitchell v. D. R. Horton-Emerald, Ltd., 579 S.W.3d 135, 137 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). The RCLA “applies to: (1) 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; and (2) any subsequent purchaser of a residence who files a claim against a contractor.” Tex. Prop. Code Ann. § 27.002(a). However, the RCLA “does not create a cause of action or derivative liability.” Id. § 27.005. Instead, courts have construed it as modifying causes of action that already exist by providing defenses and limiting damages. Mitchell, 579 S.W.3d at 137; see Vision 20/20, Ltd. v. Cameron Builders, Inc., 525 S.W.3d 854, 856 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“The RCLA does not create a cause of action but provides defenses and limitations on damages.”); D.R. Horton-Emerald, Ltd. v. Mitchell, No. 01-17-00426-CV, 2018 WL 542403, at *7 (Tex. App.—Houston [1st Dist.] Jan. 25, 2018, no pet.) (mem. op.) (“[T]he RCLA does not create a cause of action; rather, it limits and controls existing causes of action for damages resulting from construction defects in residences.”).

III. Right to Repurchase

In its first issue, KHD argues the trial court erred by refusing to allow it to repurchase the home after the jury made its findings, relying on Texas Property Code § 27.0042 and a provision in the sales contract.

Section 27.0042 provides:

(a) A written agreement between a contractor and a homeowner may provide that ․ if the reasonable cost of repairs necessary to repair a construction defect that is the responsibility of the contractor exceeds an agreed percentage of the current fair market value of the residence, as determined without reference to the construction defects, then, in an action subject to this chapter, the contractor may elect as an alternative to the damages specified in Section 27.004(g) that the contractor who sold the residence to the homeowner purchase it.

Tex. Prop. Code Ann. § 27.004(a) (emphasis added). As provided by the statute, the sales contract between the parties here contained a provision allowing for KHD to repurchase the home “if the reasonable cost of repairs necessary to repair a construction defect ․ that is the responsibility of [KHD] exceeds thirty (30) percent of the current fair market value of the residence as determined without reference to the construction defects ․” (emphasis added).

Here, the jury found that the cost of necessary to repair the construction defect was $258,024.00 and that appellees purchased the home for $275,990.00 in July of 2016. See id. However, contrary to KHD's argument, there is no evidence in the record of the current fair market value of the home at the time of trial in April 2022. See id. Therefore, we cannot conclude the trial court erred when it denied KHD's request to ignore the jury's findings as to damages and did not enter judgment allowing for KHD to repurchase the home. See id.

We overrule KHD's first issue.

IV. Limitation on Damages & Jury Instructions

In its second issue, KHD argues the trial court erred by limiting appellees’ proportionate responsibility to appellees’ negligence cause of action, not submitting a jury charge instruction concerning appellees’ failure to mitigate their damages, and ignoring Property Code § 27.003. In its third issue, KHD argues the trial court erred by disregarding the jury's finding of twenty-five percent responsibility attributable to appellees. In essence, KHD argues the trial court erred by ignoring the jury's proportionate liability finding as to appellees’ breach-of-contract claim and failing to instruct the jury on appellees’ failure to mitigate their damages under § 27.003 of the RCLA. See id. § 27.003(a).

A. Applicable Law

Section 27.003, titled “Liability,” provides that in an action to recover damages or other relief arising from a construction defect, a contractor is not liable for any percentage of damages caused by the homeowner's own negligence. See id. Thus, the RCLA reduces any damage award by the homeowner's own negligence. See id. § 27.003(a)(1)(A); Vision 20/20, Ltd., 525 S.W.3d at 856. The RCLA further provides that a contractor is not liable for any percentage of damages caused by the failure of the homeowner to (1) take reasonable action to mitigate the damages, or (2) take reasonable action to maintain the residence. Tex. Prop. Code Ann. § 27.003(a)(1)(B).

B. Standard of Review

A trial court is required to give “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855–56 (Tex. 2009). A trial court has “great latitude and considerable discretion” to determine necessary and proper jury instructions. La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per curiam). When a trial court refuses to submit a requested instruction, the issue on appeal is whether the instruction was reasonably necessary to enable the jury to render a proper verdict. Werner Enters., Inc. v. Blake, 672 S.W.3d 554, 585 (Tex. App.—Houston [14th Dist.] 2023, pet. filed) (en banc); Oldham v. Thomas, 864 S.W.2d 121, 126 (Tex. App.—Houston [14th Dist.] 1993), rev'd in part on other grounds, 895 S.W.2d 352 (Tex. 1995). A trial court may refuse to submit an instruction only if no evidence exists to warrant its submission. Elbaor v. Smith, 845 S.W.2d 240, 240 (Tex. 1992); see also Tex. R. Civ. P. 277, 278.

Appellate courts review rulings about charge error for an abuse of discretion. See Hawley, 284 S.W.3d at 856. A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)); see also Hawley, 284 S.W.3d at 856.

C. Analysis

We first address KHD's argument that the trial court erred by not submitting a question to the jury on the issue of appellees’ failure to mitigate their damages. KHD submitted to the trial court an instruction on failure to mitigate, but the trial court refused that instruction.

The burden of proving a failure to mitigate is upon the party who caused the loss and the standard is one of ordinary care. See Moulton v. Alamo Ambulance Serv., 414 S.W.2d 444, 447 (Tex. 1967). If raised by the pleadings and evidence, and if the complaining party submitted an instruction in substantially correct form, then failure to submit an instruction on the duty to mitigate is reversible error. Tex. R. Civ. P. 278; Alexander & Alexander, 754 S.W.2d 252, 253 (Tex. App.—El Paso 1988, writ denied) (citing Alamo Ambulance Serv., 414 S.W.2d at 447). However, a failure-to-mitigate instruction requires evidence of the amount of the damages that were increased by the failure to mitigate. Rauscher Pierce Refsnes, Inc. v. Great Sw. Sav., F.A., 923 S.W.2d 112, 117 (Tex. App.—Houston [14th Dist.] 1996, no writ) (“Appellant also had the burden of proving the amount of damages increased by the failure to mitigate, which it did not meet.”).

KHD fails to substantiate in its brief by argument or by reference to the record any proof of the amount of damages that were increased by appellees’ alleged failure to mitigate. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authority and to the record.”). Without evidence and argument concerning the amount of damages increased by the alleged failure to mitigate, we cannot conclude that the trial court abused its discretion when it refused to submit an instruction on appellees’ failure to mitigate. See Cole Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 688 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“[W]here a defendant proves failure to mitigate but not the amount of damages that could have been avoided, it is not entitled to any reduction in damages.”); see, e.g., Jallan v. PNA Invests., LLC, No. 14-21-00460-CV, 2023 WL 5316877, at *9 (Tex. App.—Houston [14th Dist.] Aug. 18, 2023, no pet.) (mem. op.) (“[E]ven if PNA failed to mitigate its damages, Jallan failed to prove the amount by which PNA could have reduced its damages and failed to cite any evidence or provide any argument in support of the amount by which PNA could have reduced its damages.”); see also Arthur v. Blackburne & Brown Mortg. Fund, No. 14-21-00396-CV, 2023 WL 2711376, at *6 (Tex. App.—Houston [14th Dist.] Mar. 30, 2023, no pet.) (mem. op.) (“[T]his court has no duty to search a voluminous record without guidance from appellant to determine whether an assertion of reversible error is valid.”).

Next, we address KHD's argument that the trial court erred by limiting appellees’ percentage of responsibility to their negligence cause of action, ignoring Property Code § 27.003(a)(1)(A). The jury found that both KHD and appellees were negligent in proximately causing the damages in question, that appellees caused twenty-five percent of the damages, and that the total amount of damages caused by KHD was $266,424.00. The trial court informed the parties when it ruled on KHD and appellees’ post-trial motions motion that it disregarded the jury's finding of contributory negligence because there was no evidence supporting the finding.

Property Code § 27.003(a)(1)(A) provides that a contractor is not liable for the portion of the damages caused by the homeowner's own negligence. See Tex. Prop. Code Ann. § 27.003(a)(1)(A). A trial court may disregard a jury's finding if the evidence is legally insufficient when the record shows (1) a complete lack ofevidence of a vital fact, (2) the trial court is barred by the rules of law or evidence from giving weight to the only evidence to prove a vital fact, (3) the evidence offered to prove a vital fact is not more than a scintilla, and (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810–11 (Tex. 2005).

However, contrary to KHD's argument, the damages question in the jury charge asked the jury to determine the amount of damages caused by KHD, not the total amount of damages suffered by appellees. Thus, even if the trial court erred in disregarding the jury's contributory-negligence finding, we conclude there is no error in the judgment because the amount of damages awarded consisted of the damages caused solely by KHD.

We overrule KHD's second and third issues.

V. Express Warranty

In its fourth issue, KHD argues the trial court erred by excluding evidence of an express warranty included in the sales contract and that this exclusion hindered KHD's presentation of defenses.

We review the trial court's decision to admit or exclude evidence for an abuse of discretion. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); D & M Marine, Inc. v. Turner, 409 S.W.3d 693, 699 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. See Tex. R. App. P. 33.1(a); Groves v. 2011 Homes, LLC, No. 01-22-00356-CV, 2024 WL 849800, at *3 (Tex. App.—Houston [1st Dist.] Feb. 29, 2024, pet. denied) (mem. op.) (“To challenge the exclusion of evidence on appeal, the complaining party must present the excluded evidence to the trial court by an offer of proof or formal bill of exception and obtain a ruling.”).

When KHD first offered the warranty into evidence as exhibit 38, appellees objected on the basis that it was irrelevant because they had not based any of their claims on the express warranty. The trial court requested case law from both parties so it could make a ruling the following morning. The next day, the trial court began proceedings by stating “We'll continue the examination of Mr. Gates. And then y'all can hand me your case law and I can look at it and I'll hear what you have to say.” At the end of that day, KHD's counsel asked the trial court for extra time until the following morning to provide a trial brief, and the trial court agreed. The warranty and Exhibit 38 were not mentioned in the next day of trial.

The trial court later admitted into evidence, as exhibit 40, a page signed by appellees acknowledging receipt of the limited warranty. After presenting its witnesses, KHD informed the court it wanted to make “some offers of proof on a couple of exhibits that I'd like to offer ․” During the discussion, the following colloquy occurred:

[Trial Court]: Okay. And then Defendant's Exhibit 40, I show that was admitted as a Court exhibit only.

[Appellees]: Yes. That was the warranty. Right? Did you make a ruling on that?

[Trial Court]: Well, [KHD's counsel] had promised me that he was going to respond to that, and I haven't heard that response yet.

[KHD's counsel]: I'm sorry?

[Trial Court]: About whether they've waived a warranty of habitability and workmanship.

[KHD's counsel]: I did say I was going to do a brief, but I'm the only lawyer in my office. So, I did not have a moment to do it. But I have argument and case law that discusses it.

[Trial Court]: Okay. Well, I'm going to have to hear that at some point and --

․

[KHD's counsel]: Okay. Would you like to hear the warranty or the attorney's fees part, Judge?

[Trial Court]: Let's talk about warranty.

[KHD's counsel]: Okay. The -- hold on, Judge, on that.

The parties then argued their positions for admission and exclusion to the court, eventually breaking for lunch with plans to discuss the issues further. The trial court further stated that it was “likely to side with [appellees] on the issue of the warranty.” KHD did not make an offer of proof for exhibit 38 or obtain a ruling from the trial court on the exhibit.

The parties then discussed the jury charge before the court, and the case was submitted to the jury without further mention of exhibit 38 or the warranty. Because KHD failed to obtain a ruling from the trial court denying the admissibility of the warranty, we conclude that KHD failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); Groves, 2024 WL 849800, at *3.

We overrule KHD's fourth issue.

VI. Implied Warranties

In its fifth issue, KHD argues the trial court erred in its jury charge because it conflated into one question the implied warranties of (1) good and workmanlike performance and (2) habitability.

Here, KHD's arguments are based on its assertion that the implied warranties were waived pursuant to the express warranty, which we have previously noted was not admitted into evidence. Furthermore, appellees chose to recover damages pursuant to their breach-of-contract claim, and the trial court entered a judgment accordingly. Because appellees elected to recover under their breach of contract claim and KHD does not challenge on appeal the sufficiency of the evidence supporting the jury's finding that KHD failed to comply with the sales contract, there is an independent basis for affirming the trial court's judgment in favor of appellees. See Tex. R. App. P. 47.1; Hagberg v. City of Pasadena, 224 S.W.3d 477, 481 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“[W]hen a judgment or order may have been based upon grounds not challenged on appeal, a court of appeals must normally affirm.”); Hellmund v. Castello, No. 14-19-00689-CV, 2020 WL 4760292, at *5 (Tex. App.—Houston [14th Dist.] Aug. 18, 2020, no pet.) (mem. op.) (“Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment.”).

We overrule KHD's fifth issue.

VII. Appellate Attorney's Fees & Expert Fees

In its sixth issue, KHD argues the trial court erred in awarding appellees expert fees and unconditional appellate attorney's fees.

The RCLA provides that a claimant may recover only the following economic damages proximately caused by a construction defect: (1) reasonable costs of repairs necessary to cure the construction defect; (2) reasonable and necessary costs of replacement or repair of any damaged goods in the residence; (3) reasonable and necessary engineering and consulting fees; (4) reasonable expenses for temporary housing reasonably necessary during the repair period; (5) the amount of the reduction in current market value after the construction defect is repaired, if the construction defect is a structural failure; and (6) reasonable and necessary attorney fees. Tex. Prop. Code Ann. § 27.004(g); see Mitchell, 579 S.W.3d at 138.

Here, appellees elected to recover under their breach-of-contract claim and argued that they were entitled to recover expert fees pursuant to the RCLA. However, § 27.004(g) of the RCLA does not provide an independent basis for the recovery of the damages or fees listed; instead, a claimant may recover the listed types of damages and fees only if those damages and fees are also authorized by an underlying cause of action or contract provision. E.g., Mitchell, 579 S.W.3d at 140 (concluding that plaintiff was not entitled to recovery of expert fees or attorney fees under § 27.004(g) when underlying claims of breach of implied warranties and negligent construction did not authorize their recovery). The contract here does not provide that appellees can recover expert fees, and such fees are otherwise not recoverable in a breach-of-contract claim. We conclude that the trial court erred when it entered judgment for appellees awarding $41,441.09 in expert fees.² See Tex. Civ. Prac. & Rem. Code Ann. § 38.001.

Appellants argue next that the trial court erred when it awarded appellees unconditional appellate attorney's fees. A trial court must condition an award of appellate attorney's fees upon the appellant's unsuccessful appeal, as an appellant should not be penalized for pursuing a meritorious appeal. See Sky View at Las Palmas v. Mendez, 555 S.W.3d 101, 115–16 (Tex. 2018). Unless the court of appeals resolves the appellant's appeal in favor of the appellee to whom the trial court conditionally awarded appellate attorney's fees, the appellee cannot recover its appellate attorney's fees. Id. at 116; Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex. 2015). The trial court abuses its discretion when it awards appellate attorney's fees to the appellee without conditioning the award on the appeal's outcome. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding).

If the trial court errs by awarding unconditional appellate attorney's fees, then we modify the trial court's judgment to condition receipt of these fees on the ultimate outcome of appellate proceedings. Ansell Healthcare Prods. v. United Med., 355 S.W.3d 736, 745 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). However, because KHD was partially successful in this appeal, we reverse the award of attorney's fees for appeal and remand to the trial court solely for a determination of the reasonable amount of appellate attorney's fees to be awarded to appellees. See Zheng v. Vacation Network, Inc., 486 S.W.3d 180, 188 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see, e.g., Siana Oil & Gas Co. v. White Oak Operating Co., No. 01-21-00721-CV, 2022 WL 17981572, at *15 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet.) (mem. op.) (“[W]e remand the issue of the amount of appellate attorney's fees for the trial court to determine the reasonable amount of appellate attorney's fees to be awarded to [the appellee] in light of [the appellant's] partial success in this appeal.”).

Finally, KHD argues that the allocation of attorney's fees, court costs, pre-judgment, and post-judgment interest must also be retried if this Court reduces the award of damages to appellees. We disagree that the attorney's fee award for the work performed at the trial court needs to be modified based on the jury's finding of appellees’ proportionate responsibility because the jury awarded the fees while making that finding, and attorney's fees are not damages. See In re Nalle Plastics Fam. Ltd., 406 S.W.3d 168, 172 (Tex. 2013) (orig. proceeding). Furthermore, appellant is not entitled to a redetermination of court costs, see Tex. R. Civ. P. 139, or post-judgment interest, see Tex. Fin. Code Ann. § 304.005(a); Hot-Hed, Inc. v. Safehouse Habitats (Scot.), Ltd., 333 S.W.3d 719, 734 (Tex. App.—Houston [1st Dist.] 2010, pet. denied), nor does KHD argue that the trial court abused its discretion in awarding pre-judgment interest. See Tex. R. App. P. 38.1(i); Perry Roofing Co. v. Olcott, 744 S.W.2d 929, 930–31 (Tex. 1988) (“This court has also awarded prejudgment interest based on equity.”); Trevino v. City of Pearland, 531 S.W.3d 290, 297 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“Because the Trevinos’ breach-of-contract claim does not fall within any enabling statute, equitable principles govern the award of prejudgment interest.”).

We sustain KHD's sixth issue in part and overrule it in part.

VIII. Conclusion

We reverse the part of the trial court's judgment awarding appellees with expert fees and unconditional appellate attorney's fees and affirm the remainder of the judgment. We remand the case to the trial court solely for a redetermination of the award of appellate attorney's fees.

FOOTNOTES

1.   The RCLA was amended effective September 1, 2023. See Acts of 2023, 88th Leg., R.S., ch. 291, § 2, ch. 441, § 2 (eff. Sept. 1, 2023). All of the citations in this opinion refer to the prior version of the statute.

2.   Appellees concede in their brief that “[t]here are no causes of action available to homeowners that allow the recovery of expert fees.”

Brad Hart, Justice