IN RE: CLASSIC OPENINGS (2010)

OPINION

Opinion by Justice Myers

Relator filed this mandamus proceeding after the trial court entered an order denying its motion to abate under the Residential Construction Liability Act, Tex. Prop.Code Ann. § 27.001, et seq. (the “RCLA”).   We conclude the trial court abused its discretion in denying the motion to abate and relator has no adequate remedy by appeal.   We therefore conditionally grant the writ of mandamus.

Real party in interest argues that the RCLA does not apply to his claims because he is not seeking damages under that act.   However, the RCLA applies to “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.”  Tex. Prop.Code Ann. § 27.001(2) (Vernon 2000).   The second amended petition includes allegations regarding overcharges for improper windows being delivered and incorrect configuration of three doors that would not swing correctly.   These allegations fall squarely within the boundaries of the RCLA. Moreover, real party in interest's DTPA letter does not suffice to provide relator with the specific notice required under the RCLA.

“[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.”  Walker, 827 S.W.2d at 840.   Relator has thus met the first requirement necessary for mandamus relief.   Further, relator has no adequate remedy at law if the case goes forward now without the abatement to which it is entitled.   Relator has therefore met the second requirement to obtain mandamus relief.

Accordingly, we conditionally grant the relator's petition for writ of mandamus.   A writ will issue only in the event the trial court fails to vacate its April 7, 2010, “Order Denying Motion to Dismiss/Motion to Abate” and to enter an order granting relator's motion to abate.

100421F.P05

LANA MYERS JUSTICE