In re Custom Home Builders of Cent. Tex. Inc.
| Decision Date | 15 December 2021 |
| Docket Number | 04-21-00255-CV |
| Citation | 647 S.W.3d 419 |
| Parties | IN RE CUSTOM HOME BUILDERS OF CENTRAL TEXAS INC. d/b/a Owner Managed Homes d/b/a Texas Build at Cost, Travis White, and White House Custom Design & Construction of Texas, Inc. d/b/a Forever Custom Homes, Relators |
| Court | Texas Court of Appeals |
APPELLANT ATTORNEY: Dan Pozza, Lorien Whyte, Pozza & Whyte, PLLC, 239 E. Commerce St., San Antonio, TX 78205, Nicholas Tamsma, Johnson, Christopher, Javore & Cochran, Inc., 5802 IH 10 West, San Antonio, TX 78201, Bryan Allen Woods, 1250 N.E. Loop 410, Ste. 725, San Antonio, TX 78209-1535.
APPELLEE ATTORNEY: Gary W. Javore, JOHNSON, CHRISTOPHER, JAVORE & COCHRAN, INC., 5802 N.W. Expressway, San Antonio, TX 78201, J. Bruce Bennett, Cardwell, Hart & Bennett, L.L.P., 807 Brazos, Suite 1001, Austin, TX 78701-2553.
Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Irene Rios, Justice
Opinion by: Irene Rios, Justice
In this original mandamus proceeding, we address whether a construction defect suit primarily seeking monetary compensation based on physical damage or injury to a house is an "[a]ction[ ] ... for recovery of damages to real property," and therefore, falls within the ambit of section 15.011 of the Texas Civil Practice and Remedies Code, a mandatory venue statute.
See TEX. CIV. PRAC. & REM. CODE § 15.011. The trial court concluded section 15.011 does not apply to such suits and denied the relators’ motion to transfer venue. Because we conclude that section 15.011 applies and that the trial court erred by refusing to transfer venue, we conditionally grant mandamus relief.
The relators2 built a custom house for the real parties in interest. The real parties3 sued the relators for construction defects. The real parties alleged negligence, misrepresentation claims under the Texas Deceptive Trade Practice Act (DTPA), and breach of contract, as well as violations of Chapter 162 of the Texas Property Code for failing to keep account records and improperly managing a trust fund. The real parties sought to recover actual damages, including "the cost of repair, reduction in market value after repair/completion, engineering and consultant fees, temporary housing expenses, out of pocket/mitigation expenses and loss of use damages." The suit was filed in district court in Bexar County.
Under section 15.011, the relators filed a motion to transfer venue to Guadalupe County. The relators argued that the real parties’ suit is "for recovery of damages to real property," venue is mandatory in "the county in which all or a part of the property is located," and the house is located in Guadalupe County. See id. The real parties responded that section 15.011 applies only to suits involving title to or possession of land. The trial court heard and denied the relators’ motion, and the relators sought mandamus relief in this court.
Our authority in original writ proceedings is limited to the "restrictions and regulations as may be prescribed by law." TEX. CONST. art. V, § 6. The legislature has provided that a "party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue provisions" in Chapter 15 of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE § 15.0642 ; see TEX. GOV'T CODE § 22.221(b)(1). Under section 15.0642, the "adequacy of an appellate remedy is not a requisite of a mandatory venue mandamus." In re Mo. Pac. R. Co. , 998 S.W.2d 212, 216 (Tex. 1999) (orig. proceeding). "Thus, the focus of a mandamus proceeding under section 15.0642 is whether the trial court abused its discretion." Id. Id. (footnote omitted). We therefore review whether the trial court "failed to analyze or apply the law correctly when [] to transfer the cases to the defendants’ chosen venue." Id.
The law governing venue in Texas is set out in Chapter 15's statutory provisions. In construing statutory provisions, our goal is "to carry out the [l]egislature's intent." Id. "A statute's unambiguous language is the surest guide to the [l]egislature's intent because the [l]egislature expresses its intent by the words it enacts and declares to be the law."
Tex. Health Presbyterian Hosp. of Denton v. D.A. , 569 S.W.3d 126, 136 (Tex. 2018) (quotation marks and citations omitted). "[W]e construe the statute by applying the terms’ common, ordinary meaning unless the text supplies a different meaning or the common meaning leads to absurd results." Id. at 131. We may consider legislative history "to give context to our construction," but not to contradict the plain meaning of an unambiguous statute. See Fort Worth Transp. Auth. v. Rodriguez , 547 S.W.3d 830, 844 n.6 (Tex. 2018). Finally, we review issues of statutory construction de novo. See id. at 837.
The parties dispute the proper construction of section 15.011 of the Texas Civil Practice and Remedies Code. Section 15.011 provides as follows:
Sec. 15.011 LAND. Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.
TEX. CIV. PRAC. & REM. CODE § 15.011. The parties’ arguments more specifically focus on the proper construction of the phrase "damages to real property." Id. The relators argue "damages to real property" means monetary compensation for physical injury or damage to any type of real property. The real parties argue that "damages to real property" refers to suits involving disputes about title to or possession of land, specifically.
"Damages" means "[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury." Damages , BLACK'S LAW DICTIONARY (11th ed. 2019). "Real property" means "[l]and and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land." Real property , BLACK'S LAW DICTIONARY (11th ed. 2019). "To" is "used as a function word to indicate the application of an adjective or a noun." To , MERRIAM-WEBSTER'S ONLINE DICTIONARY , https://www.merriam-webster.com/dictionary/to. Thus, the common and ordinary meaning of the phrase "damages to real property" is money claimed as compensation for loss or injury to land or anything attached to land. Because Chapter 15 of the Civil Practice and Remedies Code and Code Construction Act do not supply a different meaning, and the ordinary and common meanings of the terms in section 15.011 are not absurd in the context of determining mandatory venue, we must construe the statute in accordance with the common, ordinary meaning of the unambiguous terms the legislature used. See Tex. Health Presbyterian Hosp. , 569 S.W.3d at 131.
Analyzing the parties’ arguments and authorities requires discussing the statutes that preceded the current version of section 15.011. An early predecessor statute, enacted in 1846, provided, "In cases where the recovery of land or damages thereto is the object of the suit ... suit must be instituted where the land or a part thereof is situated." Finch's Heirs v. Edmonson , 9 Tex. 504, 509-10 (1853). In 1886, this provision stated that "suits for the recovery of land, or damages thereto, suits to remove incumbrances upon the title to land, suits to quiet title to land and suits to prevent or stay waste on lands must be brought in the county in which the land, or a part thereof, may lie."
In re Stroud Oil Props., Inc. , 110 S.W.3d 18, 24 n.4 (Tex. App.—Waco 2002, orig. proceeding) ; see also Stiba v. Bowers , 756 S.W.2d 835, 839 (Tex. App.—Corpus Christi-Edinburg 1988, no writ) (identifying a Revised Civil Statute provision containing a substantively similar version).
In 1983, the legislature amended the mandatory venue provision for suits involving land to provide as follows:
Lands. Actions for recovery of real property or an estate or interest in real property, or for partition of real property, or to remove encumbrances from the title to real property, or to quiet title to real property shall be brought in the county in which the property or a part of the property is located.
Scarth v. First Bank & Tr. Co. , 711 S.W.2d 140, 141 (Tex. App.—Amarillo 1986, no writ). In the 1983 predecessor statute, the legislature substituted the term "real property" for "land," and removed the phrase "or damages thereto." See id. In 1985, the legislature recodified this provision as section 15.011 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.011. In 1995, the legislature amended section 15.011 to add "for recovery of damages to real property":
LAND. Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property , or to quiet title to real property shall be brought in the county in which all or a part of the property is located.
See id. (emphasis added). Thus, the provision at issue in this proceeding—"damages to real property"—resembles the language in the early predecessor statutes which was removed in 1983, but was added back to section 15.011 in 1995.
In the present case, the real parties argue that the phrase "damages to real property," added by the 1995 amendments to section 15.011, must be given the same meaning as "damages thereto" in the 1846 version of the...
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