author: DON H. REAVIS, Justice. BRIAN QUINN, Justice, PHIL JOHNSON, Justice,

text:
    CITY OF LUBBOCK, Appellant, v. Angie LAND, Appellee.
    No. 07-00-0256-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 23, 2000.
    Anita Burgess, City Atty., (Jennifer Bassett, Trial Atty.), Lubbock, for appellant.
    Dunn & Walker (Charles Dunn), Lubbock, for appellee.
    Before QUINN and REAVIS and JOHNSON, JJ.
   DON H. REAVIS, Justice.

By this accelerated appeal, the City of Lubbock challenges the trial court’s order denying its motion to dismiss Angie Land’s action for personal injuries allegedly sustained while she was an inmate participating in a work release program. By its motion and plea to the jurisdiction, and its sole issue presented on appeal, the City contends it has immunity from Land’s action pursuant to Article 42.20 of the Code of Criminal Procedure Annotated (Vernon Supp.2000). Based upon the rationale expressed herein, we reverse and render judgment dismissing Land’s action against the City.

Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); Bush v. Texas Dep’t of Protective and Regulatory Services, 983 S.W.2d 366, 368 (Tex.App.—Fort Worth 1998, pet. denied). When reviewing an interlocutory appeal of a trial court’s denial of a motion to dismiss for lack of jurisdiction and plea to the jurisdiction, we construe the pleadings in favor of the plaintiff and consider only the allegations in the petition. Tex. Ass’n of Business v. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Texas Nat. & Conser. Com’n v. White, 13 S.W.3d 819, 822 (Tex.App.—Fort Worth 2000, no pet. h.).

According to Land’s live pleading, while an inmate in the Lubbock County Jail and pursuant to a court order, she participated in a work release program to pay a fine for public intoxication. After she was transported to a warehouse owned and controlled by the City, she was instructed by a City employee to sweep the warehouse. While doing so, she was injured when metal backstops'being stored in the warehouse fell on her causing injuries that required hospitalization and surgery. Land alleged the City was negligent in (1) failing to provide supervision; (2) failing to warn of a hazardous condition; (3) failing to correct a hazardous condition; (4) failing to act in a manner that a reasonably prudent person would under the same or similar circumstances in allowing her to sweep in an area of the warehouse that was dangerous; and (5) failing to provide a reasonable [sic] safe work environment in stacking the backstops in an unsafe manner.

By its sole issue, the City contends that it has immunity from Land’s action pursuant to Article 42.20 of the Code of Criminal Procedure. Land, however, contends that Article 42.20 does not apply to the City, but only to the entity establishing the program. Thus, in construing Article 42.20, our objective is to give effect to the Legislature’s intent. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). When the Legislature fails to define a word or term, we will apply its ordinary meaning. Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992). Under Article 42.20(a) and (c)(5), employees or officers of political subdivisions other than a county, and the governmental entity they serve, are not liable for damages

arising from an act or failure to act by the individual or governmental entity in connection with a community service program or work program ... if the act or failure to act:
(1) was performed pursuant to a court order or was otherwise performed in an official capacity; and
(2) was not performed with conscious indifference for the safety of others.

(Emphasis added).

Among other matters, as affirmative defenses, the City pled governmental immunity pursuant to sections 101.021,101.0215, 101.023, and 101.056 of the Texas Tort Claims Act. See Tex.Civ.Prac. & Rem.Code Annotated (Vernon 1997 <& Supp.2000). Also, as relevant here, by its pleadings and motion to dismiss and plea to the jurisdiction, the City raised the immunity provisions of Articles 42.20 and 43.09(1!) of the Texas Code of Criminal Procedure Annotated (Vernon Supp.2000).

Because we must accept Land’s pleading as true for purposes of our analysis, we must also accept her allegation that her injuries were sustained while she was “performing work release for the County of Lubbock” while performing “her work at the warehouse” owned by the City. By her petition, she does not contend the City was not a proper entity to participate in a work release program or that it lacked standing to contend it was entitled to immunity under Article 42.20. Nevertheless, Land contends that the City, a mere employer of work release participants, is not sufficiently connected with the Lubbock County Work Release Program to have standing to support its claim of immunity. However, Land’s argument overlooks the fact that in addition to affording immunity to officers or employees of political subdivisions, Article 42.20(a) also grants immunity to governmental entities that employ such officers or employees.

Moreover, Article 42.20 does not contain any provision limiting immunity to particular political subdivisions or otherwise prescribe any requirements or conditions to entitle a political subdivision to coverage. Additionally, Article 43.09(a) recognizes that political subdivisions may participate in inmate work programs as therein provided. The City qualifies as a political subdivision. See Tex.Gov’t.Code Annotated § 418.004(6) (Vernon 1998). Unfortunately, the statute does not define the term official capacity. Because Article 42.20(a)(2) applies to individual employees or officers of political subdivisions as well as political subdivisions, the application of the term official capacity should be uniform when (1) such issue is presented in an action against an employee individually and in his/her official capacity, and (2) when it is presented in an action against a political subdivision. Here, because the City had the inherent right and duty to the public to put the warehouse to whatever use may best serve the public interest, City of Aransas Pass v. Minter, 34 S.W.2d 1113, 1115 (Tex.Civ.App.—San Antonio 1930, writ ref'd), we conclude that the ownership and cleaning of the warehouse was within the official capacity of the City. Because Land’s pleadings acknowledged that her injuries occurred when she was sweeping the City owned warehouse under direction of a City employee while she was an inmate in the Lubbock County Jail and performing work release, her pleading demonstrated that the alleged act or failure to act of her supervisor was in an official capacity. Thus, we conclude that the City falls within the provisions of Article 42.20.

Regarding the element of conscious indifference of Article 42.20(a)(2), in Gill v. TDCJ, 3 S.W.3d 576, 581 (Tex.App.—Houston [1st Dist.] 1999, no pet.), TDCJ contended that it had immunity under section 101.021(2) of the Texas Government Code, which extends immunity if the act or failure to act was not intentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. (Emphasis in original). As in Gill, Land’s pleading does not allege gross negligence or that her injuries resulted from an act of conscious indifference by the City or its employees or officers. Accordingly, we conclude that the City is entitled to assert immunity under Article 42.20, and that because Land does not allege that her injuries were proximately caused by conscious indifference, the trial court erred in denying the City’s motion to dismiss and plea to jurisdiction.

Accordingly, pursuant to Rule 43.2(c) of the Texas Rules of Appellate Procedure, we render the judgment the trial court should have rendered and reverse the judgment of the trial court and dismiss Angie Land’s action against the City of Lubbock.

QUINN, J., concurring.

JOHNSON, J., concurring.

BRIAN QUINN, Justice,

concurring.

I concur in the majority’s opinion but write separately to highlight that merely illustrating that a work release program is somehow involved in the mix does not per se entitle a defendant to immunity. And, I highlight this because the City of Lubbock so intimated in its plea to the jurisdiction of the trial.

Article 42.20 of the Texas Code of Criminal Procedure states:

(a)An individual listed in Subsection (c) of this article and the governmental entity that the individual serves as an officer or employee are not liable for damages arising from an act or failure to act by the individual or governmental entity in connection with a community service program or work program established under this chapter or in connection with an inmate, offender, or releasee programmatic or nonprogrammatic activity, including work, .educational, and treatment activities, if the act or failure to act:
(1) was performed pursuant to a court order or was otherwise performed in an official capacity; and
(2) was not performed with conscious indifference for the safety of others.
(b) Chapter 101, Civil Practice and Remedies Code, does not apply to a claim based on an act or a failure to act of an individual listed in Subsection (c) of this article or a governmental entity the officer serves as an officer or employee if the act or failure to act is in connection with a program described by Subsection (a) of this article.
(c) This article applies to:
(1) a director or employee of a community supervision and corrections department or a community corrections facility;
(2) a sheriff or employee of a sheriffs department;
(3) a county judge, county commissioner, or county employee;
(4) an officer or employee of a state agency; or
(5) an officer or employee of a political subdivision other than a county.

Tex.Code CRIm.Proc.Ann. art. 42.20 (Vernon’s Supp.2000). As illustrated by its terms, the statute affords immunity to those governmental entities and its employees which satisfy each of its conditions. Furthermore, to extract these conditions one needs only to dissect the statute into its various parts. Upon dissecting it, I find approximately five. First, there must be damage suffered by someone. Id. at art. 42.20(a). Second, the damage must arise “from an act or failure to act” by an individual or entity described in subpara-graph (c) of the statute. Id. Third, the same act or failure to act must also be in connection with a) a community service program or work program established under chapter 42 of the Code of Criminal Procedure or b) an inmate, offender, or releasee programmatic or nonprogrammatic activity, including work, educational, and treatment activities. Id. Fourth, the same act or failure to act by the individual or entity within subparagraph (e) must be performed “pursuant to a court order or ... in an official capacity.” Id. at 42.20(a)(1). “[A]nd”, fifth, the same act or failure to act by the individual or entity within subparagraph (c) must “not [be] performed with conscious indifference for the safety of others.” Id. at 42.20(a)(2). There being five conditions, only upon satisfaction of each does the hole created in the general governmental immunity statute (found in chapter 101 of the Texas Civil Practice and Remedies Code) close. Id. at art. 42.20(b).

In other words, one is not entitled to immunity simply by showing that the act or omission was in connection with a community service, work release, or other like program available to those accused and or convicted of criminal activity. And, to the extent that the City founded its argument solely upon that element of art. 42.20 in contending that it was entitled to immunity, it erred. Nonetheless, the issue before us is of jurisdictional aspect, and being so, we have the obligation to sua sponte determine it presence. Thus, while the City failed to address them in either its motion below or its appellate brief at bar, our obligation included the duty to consider whether the other four elements of art. 42.20 appeared of record. And, upon review of the live pleading of Land in a light most favorable to land, I to conclude that they did. See Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.1989) (holding that the plaintiffs petition must be liberally construed in determining the existence of subject matter jurisdiction); Texas Nat. Resource & Conservation Comm. v. White, 13 S.W.3d 819, 822 (Tex.App.—Fort Worth 2000, pet. filed) (stating that we generally look to the allegations contained in the plaintiffs petition in determining the presence of subject matter jurisdiction).

PHIL JOHNSON, Justice,

concurring.

In the trial court appellee responded to the City’s plea to the jurisdiction by urging that the City and its actions “had no connection with the program” within the meaning of Article 42.20. Appellee requested the trial court to deny the City’s plea to the jurisdiction only because the City had no “connection” with the work release program as contemplated by Article 42.20.

Appellant and appellee frame the issue before this court similarly. Appellee’s statement of the ISSUE PRESENTED in her brief is: “Does Article 42.20 of the Code of Criminal Procedure provide immunity for a political subdivision other than a county where the political subdivision had no connection with the work release program established and administered by the county?”

The parties conducted discovery before the City’s plea to the jurisdiction was heard, and apparently resolved to their own satisfaction the issues involved in whether Article 42.20 applies to the City under the facts of their case, except the issue of whether the City’s alleged negligence was “in connection” with the county’s work-release program. The majority opinion correctly resolves the issue presented by the parties to the trial court and to this court. We need go no further in resolving this appeal. See Texas Indus. Traffic League v. Railroad Comm’n, 633 S.W.2d 821, 823 (Tex.1982).

      . See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(8) (Vernon Supp.2000).

      . Although Article 42.20 was added by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 5.03, 1993 Tex.Gen.Laws 3745, 3755, amended, by Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 3.13, 1995 Tex.Gen.Laws 466, we found no appellate decisions regarding its construction and application.

      . See generally City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.—Houston [1st Dist.] 1995, no writ) (holding that when the trial court granted the City’s motion based on governmental immunity, the court should have also granted the Police Chief's motion for summary judgment based on his official capacity).


source: Caselaw Access Project

author: Justice GRANT.

license: Public Domain

text:
    ARAMCO ASSOCIATED COMPANY, Appellant, v. HARRIS COUNTY APPRAISAL DISTRICT and Harris County Appraisal Review Board, Appellees.
    No. 06-99-00102-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 7, 2000.
    Decided Oct. 24, 2000.

      Daniel R. Smith, William F. Ikard, Popp & Ikard, LLP, Austin, for appellant.
    Kenneth Wall, Olson & Olson, Houston, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Justice GRANT.

Aramco Associated Company appeals from a judgment in favor of the Harris County Appraisal District (HCAD) and Harris County Appraisal Review Board in which Aramco was denied a tax refund based on an allocation formula for the tax years 1991 through 1995. The HCAD and the Appraisal Review Board appealed the award of attorney’s fees to Aramco for the portion of the judgment involving ad valo-rem taxes for 1997 in which Aramco prevailed on the allocation issue. These cases were consolidated at the trial court level.

The taxation was an ad valorem tax on a 1969 DC-8-72 aircraft belonging to Aramco. Aramco contended that, because the aircraft was an instrument of foreign and interstate commerce, its value was required to be allocated and apportioned among the taxing authorities in which the aircraft had a taxable situs, but that HCAD had taxed the aircraft on its full market value without apportioning the taxes among the various taxing entities. Aramco contends that it filed a motion to correct the appraisal pursuant to Tex. Tax Code Ann. § 25.25(c) (Vernon Supp.2000), which the Appraisal Review Board wrongfully denied.

The case was tried on a stipulation of facts including the following: Houston was Aramco’s principal place of business in Texas; Aramco is the owner of the 1969 DC-8-72 aircraft in issue; the plane was usually returned to Aramco’s facility between uses for repair, storage, inspection, maintenance, and service; the plane had a taxable situs in Texas; the plane also had a taxable situs in Saudi Arabia; Aramco rendered the subject property for taxation to the district for tax years 1991 through 1997; and the plane was used for business purposes, and was thus a commercial instrument and an instrumentality of interstate and foreign commerce.

Aramco points out that the trial court granted the relief sought on the 1997 taxes and reduced the value of Aramco’s aircraft for tax purposes for that year. However, Aramco prevailed on the 1997 tax issue under a protest brought under Chapters 41 and 42 of the Tax Code as it applied to the application of the allocation formula, but sought relief under the limited provision of Section 25.25 of the Tax Code for the other year in question. There are significant differences in the relief available under these two sections of the Tax Code.

Under the principles set forth in the case of Appraisal Review Bd. of Galveston County, Texas v. Tex-Air Helicopters, Inc., 970 S.W.2d 530, 533-34 (Tex.1998), and under the stipulation of sitases, some outside of the United States, Aramco has a constitutional right not to have the property taxed on the full appraised value, but Aramco could have had the property appropriately apportioned in accordance with the sitases if it had properly sought this benefit. But even constitutional entitlement can be waived when a party fails to follow the implementing legislation. Texas had provided the opportunity to obtain these taxing benefits and protections through the statutory remedies.

Section 41.44 of the Tax Code entitles the property owner to file a written protest with the Appraisal Review Board before June 1 of the taxing year or not later than thirty days after the date that notice was delivered to the property owner. Tex. Tax Code Ann. § 41.44 (Vernon Supp. 2000). A property owner who disputes the Appraisal Review Board’s determination may appeal by filing a petition for review with the district court within forty-five days of receiving notice of the final order. Failure to timely file a petition bars any appeal under that chapter of the Tax Code. See Tex. Tax Code Ann. §§ 41.44, 42.01 (Vernon Supp.2000).

The record indicates that Aramco filed its protests in 1991 and 1992 in accordance with the statutory review procedure, but failed to appear at the hearing, and its appeals were dismissed. As a prerequisite to appeal to the district court, a taxpayer contesting property evaluation is required to appear at the protest hearing either personally, by representative, or by affidavit. Webb County Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952, 954-55 (Tex.1990).

The stipulations also show that Aramco filed protests for tax years 1994 and 1995, but then entered into a written settlement agreement with the Appraisal District. Once a case is finally settled, it cannot be later appealed unless the settlement agreement is set aside for some legal cause. See Tex. Tax Code Ann. § 25.25(d) (Vernon Supp.2000). There is no showing that Aramco filed any protest for tax year 1993.

Obtaining no relief under Chapters 41 and 42 for the reason set out previously, Aramco seeks to bring its complaint under Section 25 .25 of the Tax Code. Matters under Section 25.25 are not limited by the time constraint of Chapters 41 and 42, but can be brought anytime before the end of a five-year period after January 1 of the tax year. These legislative remedies are more narrowly drawn than those in Chapters 41 and 42. Section 25.25 provides for a correction of the appraisal roll under some circumstances.

Aramco could not qualify under Section 25.25 for the years 1994 and 1995 because it entered into a written agreement with the Appraisal District. Furthermore, the tax roll may not be changed under Section 25.25 for tax years 1994 and 1995 because it was the subject of a protest brought by the property owner under Chapter 41. See Tex. Tax Code Ann. § 25.25(d). Thus, 1993 is the only year in which no written settlement agreement was executed and no protest was filed. We must determine if the relief sought would qualify under Section 25.25(d), and because the relief for all years involves the same principle, this determination would also apply to 1994 and 1995 if they were not eliminated on other grounds.

This brings us to the permissible changes to correct the appraisal roll set forth in Section 25.25(c). Subsection (c)(1) allows correction for clerical errors that affect a property owner’s liability for the tax imposed. Subsection (2) deals with multiple appraisals within the tax year. Neither of these apply to the present case. Section 25.25(c)(3) remains as the only possible option for Aramco under this section. Subsection (3) allows the appraisal review board to order changes in the appraisal roll to correct the inclusion of property that does not exist in the form or at the location described in the appraisal roll. Tex. Tax Code Ann. § 25.25(c)(3).

In Himont U.S.A., Inc. v. Harris County Appraisal Dist., 904 S.W.2d 740 (Tex.App.—Houston [1st Dist.] 1995, no writ), the Houston Court of Appeals determined that the term “location” as used in this subsection of the statute meant the taxable situs of the property, rather than its physical location. The Houston court said, “[l]oeation or situs for ad valorem tax purposes is determined by whether the taxing state has a sufficient nexus with the personal property sought to be taxed to justify the tax.” Id. at 743. However, we do not agree with the conclusion in Himont that this definition permits the courts, under Section 25.25(c)(3), to review the appraised value on the tax rolls for purposes of allocation unless the property did not exist at the location described in the tax roll. In the present case, the aircraft in question did exist at the location, which was a legal situs for tax purposes. Personal property can have more than one situs.

The court in Titanium Metals Corp. v. Dallas County Appraisal Dist. held that the form in Section 25.25(c)(3) applies only when no property exists in the form or at the location described in the appraisal roll. 3 S.W.3d 63, 66 (Tex.App.—Dallas 1999, no pet. h.); see also Dallas Cent. Appraisal Dist. v. G.T.E. Directories Corp., 905 S.W.2d 318, 321 (Tex.App.—Dallas 1995, writ denied).

In the present case, there has been a showing, by stipulation, that there was an appropriate taxable situs within the jurisdiction of the taxing entity and the property did exist in the form, being a 1969 DC-8-72 aircraft, described in the appraisal. Thus, Section 25.25(c)(3) was not a proper remedy for Aramco’s protest.

It is the duty of the appellate court to sustain the judgment of the trial court if it is correct on any theory of the law applicable to the case. Commerce Sav. Assoc, v. Welch, 783 S.W.2d 668, 671 (Tex.App.—San Antonio 1989, no writ). Although not set forth in the judgment, the trial court indicated in the court reporter’s record that the court’s ruling was based on Aramco’s failure to provide information to show that it was entitled to an allegation pursuant to Administrative Rule 9.4022(a). We recognize the taxing entity does not have available to it the information needed to formulate an allocation. Nor can it be expected to know that a taxpayer is entitled to an allocation unless the taxpayer provides this information. Aramco did not provide that information to the taxing entities for the years in question. We do not reach the question of Aramco’s failure to provide the taxing entity with the appropriate information; however, as a practical matter, it is difficult to see how Aramco can complain about the tax when it did not protest the appraised amount for the vehicle and did not ask for or provide a showing that it was entitled to the allocation. These points are overruled.

With respect to HCAD’s appeal of attorney’s fees, Aramco conceded at oral argument that it was not entitled to attorney’s fees on its recovery for the 1997 taxes; therefore, it is not necessary that we address this matter. HCAD’s point of error concerning attorney’s fees is sustained.

The judgment is reformed to delete the award of attorney’s fees awarded to Aramco; as reformed, the judgment is affirmed.

      . Included in the language of the settlement agreement is the following statement: "I ACCEPT AND AGREE TO THE ACTION RECOMMENDED ABOVE. I HEREBY WITHDRAW THE PROTEST FOR THE ABOVE PROPERTY WHICH HAS BEEN FILED WITH THE APPRAISAL REVIEW BOARD CONTINGENT UPON THE CHIEF APPRAISAL'S APPROVAL OF THIS AGREEMENT. I UNDERSTAND THAT THIS AGREEMENT WILL BE FINAL IF THE CHIEF APPRAISER APPROVES IT.”

      . The Legislature has indicated its awareness of a need for a taxing entity to establish a final tax roll to be aware of the income from taxes for purposes of making its budget. Thus, the Legislature has built in these time frames within which protests are required to be filed.

      . This rule was originally promulgated by the State Property Tax Board, but now is an administrative rule of the Texas Comptroller.
      Sec. 9.4022. Application for Allocation of Value.
      (a) A property owner who is entitled to an allocation of property must file a rendition form that provides enough information necessary to prove the entitlement to allocation and permit the chief appraiser to apply an allocation formula appropriate to the subject property.
      (b) An appraisal district may use a rendition form that substantially complies with the appropriate [Comptroller of Public Accounts] allocation-rendition form. Each form shall require the property owner to identify the property that is the subject of the rendition and provide information measuring the use of the property within Texas and within other states or nations. The form must permit the property owner to state an opinion of the total market value of the property and the amount of value that should be allocated to each taxing unit in which the property has situs.
      (c) Model Rendition Form 21.03, as amended December 13, 1989, is adopted by reference.
      It was originally contained in 34 Tex. Admin. Code § 9.4022(a) and is currently contained in 34 Tex. Admin. Code § 9.4033(e).


author: HOLMAN, Justice. RICHARDS, Justice,

text:
    Jose Z. CEDILLO, Appellant, V. The STATE of Texas, State.
    No. 2-99-264-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 26, 2000.
    Publication Ordered Jan. 11, 2001.
    Rehearing Overruled Jan. 11, 2001.
    Dissenting and Concurring Opinion On Rehearing Jan. 11, 2001.

      Kearney & Westfall, Greg Westfall, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, Curtis Jenkins, Amy Collum, Michael G. Meyer, Asst. Crim. Dist. Attys., Fort Worth, for Appel-lee.
    Panel A: CAYCE, C.J.; RICHARDS and HOLMAN, JJ.
   OPINION

HOLMAN, Justice.

This is a drug case in which Appellant Jose Z. Cedillo does not challenge the sufficiency of the evidence. He was indicted for the offense of possession of a controlled substance with intent to deliver. In his first four points, Appellant contends that the trial court’s jury instruction that “a person’s mental state may be inferred from words spoken and acts done” and the instruction that refers to simple possession as a “lesser included offense” of intent to deliver are both impermissible comments on the weight of the evidence in violation of the Fourteenth Amendment to the United States Constitution and article 36.14 of the Texas Code of Criminal Procedure. U.S. Const. Amend. XIV; Tex.Code Crim. ,Proc.Ann. art. 36.14 (Vernon Supp.2000). Appellant contends in points five and six that the trial court abused its discretion by excluding from evidence Appellant’s jail medical records that showed he has high blood pressure, chest pain, and angina. We will affirm.

Jury Charge

A jury charge must set out the law without commenting on the weight of the evidence in the case. See Tex.Code CRImPROcAnn. art. 36.14. The charge did not highlight any specific set of facts in evidence. Appellant rested and closed and then told the court that, except for the lack of a lesser-included-offense instruction, he had no objection to the charge. The trial court granted Appellant’s request for a lesser-included-offense charge and recessed overnight. The next morning, Appellant reviewed the revised charge and answered, “None by the Defense,” when asked for his objections. The State argues that Appellant thereby waived any objection to the charge and, thus, presents nothing for review. We agree. See Ly v. State, 943 S.W.2d 218, 221 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd); Reyes v. State, 934 S.W.2d 819, 820 (Tex.App.—Houston [1st Dist.] 1996, pet. ref'd). Moreover, intent may be inferred by the trier of fact from an accused’s acts, words, and conduct. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991), cert. denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992).

The charge instructed the jury that “you are not to allow yourselves to be influenced in any degree whatsoever by what you may think or surmise the opinion of the Court to be.... The Court has not intended to express any opinion upon any matter of fact, and if you have observed anything which you may have interpreted as the Court’s opinion as to any matter of fact, you must wholly disregard it.” A jury is presumed to follow a court’s instructions. See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996). We find no evidence that the jury did otherwise.

Under points two and four, Appellant argues that the alleged impermissible comment on the weight of the evidence violated his right to due process under the Fourteenth Amendment to the United States Constitution. The jury was also instructed that if it did not find Appellant guilty of the offense of possession of a controlled substance with intent to deliver, then the jury was “next [to] consider whether he is guilty of the lesser included offense of possession of a controlled substance.” [Emphasis added.] Because the jury convicted Appellant of possession with intent to deliver, we must presume the jury never reached the issue of the lesser offense of simple possession. Given all of the instructions contained in the charge, we perceive no constitutional lack of due process. Points one through four are overruled.

Exclusion of the Medical Record

The standard of review of a trial court’s evidentiary rulings is abuse of discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). A trial court abuses its discretion when its ruling on the admissibility of evidence falls outside the zone within which reasonable persons might disagree. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). A ruling that is supported under any theory of law will be upheld. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

Appellant had more than one opportunity, both before and during the trial, to obtain medical records he thought were admissible. Two pieces of paper entitled “acute chest pain protocol” are dated December 1998, a month following the offense for which Appellant was indicted. The two are within a packet of over 70 pages. The trial judge was not required to investigate all of the pages to hunt for the two. See Jones v. State, 843 S.W.2d 487, 492 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Additionally, a heart condition does not authorize Appellant to drive about the county carrying illegal drugs. We overrule points five and six.

Conclusion

After carefully considering all six points, we have overruled each one. The trial court’s judgment is affirmed.

RICHARDS, Justice,

dissenting and concurring on rehearing.

On reflection, I believe the majority opinion is incorrect in holding that jury instruction error is waived when defense counsel states he or she has “no objection” to the charge. Almanza requires a defendant to climb the high hurdle of “egregious harm” in such cases, but the error itself is not considered waived. The court of criminal appeals has continued to use the Al-manza test for unobjected-to error without ever stating that waiver by affirmative approval of the jury charge negates the need for egregious harm analysis on appeal. See, e.g., Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (“Because appellant did not preserve the jury charge error, resolution of the instant case requires an egregious harm analysis”). The purpose of the egregious harm test for unob-jected-to error is to ensure review of jury instruction errors not caught by defense counsel or the trial court at the time of trial. As a near-universal rule, the trial court always inquires whether the defense has any objections to the charge. Alman-za’s egregious harm test is used in those instances where counsel did not recognize the error and therefore failed to make an appropriate objection.

If the majority opinion stands, it is likely there will never again be a case decided in the Court of Appeals for the Second District of Texas in which Almanza’s test for unobjected-to error is applied. Instead, those cases will simply be disposed of on grounds that “nothing is presented for review” because defense counsel either: (1) acquiesced to the error by responding “no objection” to the proposed instructions; or (2) lodged an objection to an unrelated portion of the instruction and then responded “no other objections.” In essence, the Almanza test for unobjected-to error will be completely swallowed up by the rule announced in the majority decision.

To be clear, I do not disagree with the result the majority reaches — appellant’s conviction and sentence, in my view, should be affirmed. I merely believe that we are required to consider the merits of appellant’s claim of jury charge error under the simple and straight-forward standard set forth in Almanza. I therefore dissent to the majority’s denial of appellant’s motion for rehearing.

      . Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.1985) (op. on reh'g).


author: DIXON W. HOLMAN, Justice.

text:
    Thomas CARTER, Mary Carter, and Ed Carter, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 2-00-100-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 2, 2000.
    Rehearing Overruled Dec. 14, 2000.

      Paxton, Beal, L.L.P., Eric D. Beal, Arlington, for Appellant.
    Colaneri, Massad & Reilly, P.C., Bobbi Reilly and Janet K. Colaneri, Arlington, for Appellee.
    Panel A: CAYCE, C.J.; DAUPHINOT and HOLMAN, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellants Thomas Carter, Mary Carter, and Ed Carter appeal from a take nothing summary judgment. In five points, the Carters argue that the trial court erred in granting State Farm’s summary judgment motion because (1) it lacked specificity; (2) it was based upon an incorrect legal premise; (3) State Farm did not conclusively establish the necessary factual predicate; (4) State Farm mischaracterized the Carters’ insurance code claims and failed to establish any basis for summary judgment on the claims actually pled by the Carters; and (5) the motion was granted as to Ed Carter and Mary Carter’s claims even though State Farm did not address their claims in its motion for summary judgment. We will affirm.

Factual and ProceduRal Background

On April 25, 1997, Thomas Carter, Kari Brunson, Jeff Goodman, Michelle Keeffe, and Craig Derrick were traveling west on 1-30 in an Isuzu Amigo. At the same time, Jennifer Puterbaugh was traveling west on 1-30 at a high rate of speed weaving through traffic and struck the Isuzu from behind. The collision caused the death of Kari Brunson and injured the four other occupants of the Isuzu. State Farm insured Michelle Keeffe, the Isuzu’s owner, against loss caused by bodily injury and property damage under a $50,000 per person up to $100,000 per incident uninsured/underinsured (UM/UIM) policy.

On May 15, 1997, State Farm sent a letter to Thomas Carter’s attorney suggesting that the potential claimants to the Keeffe policy meet for a settlement conference. The attorney replied that a settlement conference was premature because Thomas Carter and Jeff Goodman were still receiving medical treatment for the injuries they sustained and they did not yet know the extent of their damages. State Farm notified Carter’s attorney on June 9,1997, that State Farm had received a demand for $50,000 from Kari Brunson’s estate and that they had to decide that day whether or not to pay the demand. State Farm accepted the demand of Brunson’s estate and paid out policy limits of $50,000, leaving only $50,000 available for any remaining claims. State Farm notified the potential claimants of that settlement by letter.

Carter and Goodman then demanded $50,000 each to settle their claims. State Farm replied that it stood by its decision to pay Brunson’s estate $50,000 and again encouraged Carter and Goodman to participate in the settlement conference scheduled for August 29, 1997. At the conference, the attorney representing Carter refused to consider settling his claim for less than $50,000, and Goodman said he wanted no settlement on Keeffe’s policy, at that time, because he had uninsured motorist coverage under his own policy. State Farm settled Keeffe’s and Derrick’s claims by paying $35,000 to Keeffe and $10,000 to Derrick. State Farm then unconditionally tendered a check for $4,000 to Carter and a check for $1,000 to Goodman.

On May 1, 1999, the Carters filed suit alleging State Farm had breached the duty of good faith and fair dealing; violated insurance code article 21.21 and the Deceptive Trade Practices Act (DTPA); and breached the contract of insurance to which they were third party beneficiaries. State Farm filed a motion for summary judgment claiming it was entitled to judgment as a matter of law on each of the claims because State Farm had not violated any of its contractual, statutory, or common-law duties toward Carter.

Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex.1996); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmov-ant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

The summary judgment will be affirmed only if the record establishes that the mov-ant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law. City of Houston, 589 S.W.2d at 678. A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). To accomplish this, the defendant-movant must present summary judgment evidence that negates an element of the plaintiffs claim. Once this evidence is presented, the burden shifts to the plaintiff to put on competent controverting evidence that proves the existence of a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

The Evidence

In their first point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment because it lacked specificity. Nevertheless, State Farm’s motion specifically set out the grounds for which it is entitled to summary judgment. State Farm contended that there was no breach of contract; that there was no breach of the duty of good faith and fair dealing; and were no statutory violations. State Farm asserted that there was no breach of contract because State Farm’s settlement of the claims presented by Keeffe, Derrick, and Brunson’s estate were reasonable, even though the settlements depleted most of the uninsured motorist coverage available under Keeffe’s policy. The Carters urge us to consider only whether State Farm’s actions were reasonable as to the Carters’ claims, not whether State Farm reasonably settled the other claims. We cannot do that. An insurance company does not breach its contract by settling with covered persons, even when the settlement depletes or exhausts the policy proceeds. Lane v. State Farm Mut. Auto. Ins. Co., 992 S.W.2d 545, 552 (Tex.App.—Texarkana 1999, pet. denied). The evidence demonstrates that State Farm did not breach its contract.

Moreover, State Farm asserted that there was no breach of the duty of good faith and fair dealing because State Farm’s settlement of the Keeffe, Derrick, and Brunson’s estate claims was reasonable. In response to State Farm’s motion for summary judgment, the Carters did not produce evidence that State Farm breached the duty of good faith and fair dealing. In order to establish liability for breach of the duty of good faith and fair dealing Thomas Carter must show that State Farm denied or delayed payment of his claim when liability to pay was reasonably clear, and that State Farm knew or should have known it was reasonably clear. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex.1997). The facts before the court did not present evidence that State Farm delayed paying Thomas Carter’s claim. To the contrary, the evidence is clear that State Farm did not deny or delay payment, but rather requested that the parties come together for a settlement conference to determine a fair division of the policy proceeds. It was Thomas Carter’s attorney who insisted that it would be premature to settle the claim because Carter was still being treated for injuries. Furthermore, the Carters’ attorney refused to accept settlement of any amount less than the remaining policy limits at the settlement conference, which would have' exhausted all of the remaining funds available under Keeffe’s policy. Therefore, State Farm did not act unreasonably in settling with the two remaining claimants who were still willing to negotiate the settlement of their claims. An insurer will not be liable in bad faith claims for settling reasonable claims with one of several claimants even if such settlement exhausts or diminishes the proceeds, when faced with settlement demands arising out of multiple claims and inadequate proceeds. Tex. Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 315 (Tex.1994). The evidence demonstrates that State Farm did not breach the duty of good faith and fair dealing.

Finally, State Farm also presented evidence that negates the Carters’ extra-contractual claims. State Farm’s summary judgment motion asserted that its actions did not constitute violations of article 21.21 of the insurance code and the DTPA because the factual basis for the Carters’ statutory claims was the same as that used for the common law bad faith claim and should fail as a matter of law. See Lane, 992 S.W.2d at 554. When extra-contractual causes of action (e.g., deceptive trade practices and insurance code claims) do nothing more than recharacterize the plaintiffs bad faith claim, a defense to a bad faith claim serves to defeat the extra-contractual causes of action. Id. The Carters failed to present evidence or brief the manner in which they believe that State Farm’s motion for summary judgment was not specific enough on this claim, so we will not address it. We hold that State Farm was entitled to summary judgment as a matter of law because the evidence does not demonstrate a dispute of the material facts upon which State Farm moved for summary judgment. We overrule point one.

The Legal PREMISE

In their second point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment because it was based on an incorrect legal premise. The Carters assert that State Farm was relying on one of three alternative theories in its assertion that it breached no duty owed the Carters: the “we’ve fully performed” defense; the “we’re excused” defense; and the “we don’t have that duty” defense. The Carters contend that State Farm should have investigated their claim because investigation would have shown that State Farm’s settlements were not reasonable. However, settlements that result in the exhaustion of policy limits excuse further performance by the insurer on behalf of the other insureds. See Am. States Ins. Co. of Tex. v. Arnold, 930 S.W.2d 196, 201 (Tex.App.—Dallas 1996, writ denied). There is no evidence to demonstrate that State Farm relied on an incorrect legal premise in its motion for summary judgment. We overrule point two.

Factual PRedicate

In their third point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment because State Farm did not meet its burden of conclusively establishing the necessary factual predicate. The Carters contend that even if the court finds that State Farm was excused from acting reasonably or did in fact act reasonably towards the Carters, State Farm still failed to conclusively establish that it acted reasonably towards the other claimants. It is clear that when an insurer can demonstrate that its settlements in one of several competing claims was reasonable, there is no violation even if the settlement exhausts the policy proceeds available for the other insureds. Soriano, 881 S.W.2d at 315; Lane, 992 S.W.2d at 552. In their response to State Farm’s motion for summary judgment, the Carters conceded that $50,000 was a reasonable amount of compensation for Brunson’s death. The amount of the settlement bétween State Farm and Brunson’s estate was $50,000. Therefore, the material facts are not in dispute and State Farm conclusively established the settlement with a competing claimant in this case was reasonable. We overrule point three.

Claim Characterization

In their fourth point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment on the insurance code claims because State Farm mischaracterized the Carters’ claims and thereafter failed to establish any basis for summary judgment on the claims actually pled by the Carters. The Carters state that State Farm mischarac-terized their insurance code claims as based solely on common law duties. The Carters assert that State Farm “refused, failed or unreasonably delayed an offer of settlement under applicable first-party coverage on the basis that other coverage may be available,” and that State Farm did not establish a basis for summary judgment on this ground. See Tex. Ins .Code Ann. art. 21.21, § 4(10)(a)(vi) (Vernon Supp.2000).

The evidence establishes that State Farm offered to settle with Thomas Carter and that his attorney stated it was too early to settle. In addition, the uncontro-verted evidence establishes that, at the settlement conference, the Carters’ attorney refused to settle Thomas Carter’s claims for less than $50,000, the remainder of the policy limits, which would leave State Farm with no funds from Keeffe’s policy with which to settle with the remaining two claimants. We hold that State Farm did not violate article 21.21 section 4(10)(a)(vi) because it has established that it did not refuse or delay an offer of settlement. We overrule point four.

Ed and MaRY CarteR

In their final point, the Carters argue that the trial court erroneously granted State Farm’s motion for summary judgment as to Ed and Mary Carters’ claims against State Farm because State Farm did not address those claims in their motion. In their original petition, Ed, Mary, and Thomas Carter were all listed as the plaintiffs. Ed and Mary Carters’ claims, like Thomas Carter’s claims, arise out of the manner that State Farm settled the claims under Keeffe’s UM/UIM policy. The policy clearly stated that State Farm would “pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person.” (Emphasis omitted). However, Ed and Mary Carter listed their damages solely as the loss of consortium of their son, Thomas, due to the injuries he suffered in the accident. They could not list any bodily injuries that they sustained as a result of the accident and subsequent settlements because they were not involved in the accident. Their claims arise solely out of the bodily injuries sustained by Thomas Carter. Loss of consortium damages are not bodily injuries, and declaratory or summary judgments for insurers have been upheld in similar cases. See McGovern v. Williams, 741 S.W.2d 373, 374-75 (Tex.1987); Miller v. Windsor Ins. Co., 923 S.W.2d 91, 97 (Tex.App.—Fort Worth 1996, writ denied); Eshtary v. Allstate Ins. Co., 767 S.W.2d 291, 293 (Tex.App.—Fort Worth 1989, writ denied). We overrule point five.

Conclusion

Having carefully considered all of Appellants’ points, we have overruled each. We affirm the trial court’s judgment.


author: MICHOL O’CONNOR, Justice.

text:
    Stanley PAYNE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-97-01048-CR.
    Court of Appeals of Texas, Houston (1st Dist.)
    Nov. 2, 2000.
    Rehearing Overruled Dec. 22, 2000.

      Troy J. Wilson, Houston, for Appellant.
    John B. Holmes, Robert F. McStay, Houston, Jeffrey L. Van Horn, Austin, for State.
    Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

      . The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS

MICHOL O’CONNOR, Justice.

A jury found Stanley Payne, the appellant, guilty of murder and assessed punishment at five years confinement. In the original appeal, we reversed the appellant’s conviction and remanded the case for a new trial, holding that the lower court erroneously denied the appellant’s request for a jury instruction on the voluntariness of his conduct. Payne v. State, 985 S.W.2d 682, 683 (Tex.App.—Houston [1st. Dist.] 1999), vacated, 11 S.W.3d 231 (Tex.Crim.App.2000). The State filed a petition for discretionary review, arguing we erred by reversing the conviction without conducting a harm analysis. The Court of Criminal Appeals vacated and remanded to this Court, holding we erred in reversing the conviction without first applying the factors set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985). Payne, 11 S.W.3d at 232.

Harm Analysis

We have already determined the trial court erred by denying the appellant’s request for a jury instruction on the volun-tariness of his conduct. Payne, 985 S.W.2d at 683. Next, we must determine whether sufficient harm was caused by the error to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986). Because the appellant properly preserved error with an objection to the charge, we will reverse only “as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The presence of any harm, regardless of degree, that results from preserved error is sufficient to require reversal of the conviction. Arline, 721 S.W.2d at 351. When conducting a harm analysis, we consider the following factors: (1) the charge itself; (2) the state of the evidence, included contested issues and the weight of probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App.1993).

The appellant’s sole defense relied on his assertion that the gun accidentally discharged. The appellant and three witnesses testified the gun went off when the victim slapped at the appellant’s hand. Additionally, during closing arguments, defense counsel asserted the appellant did not intentionally pull the trigger and the shooting was an accident. Although the evidence clearly raised the issue of volun-tariness, the jury was not given the opportunity to reach a finding of accidental or involuntary shooting. See Butler v. State, 981 S.W.2d 849, 857 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd). (Where evidence clearly supported guilt under alternate theories, the court held the denial of a voluntariness instruction was harmless.)

Here, the voluntariness of the appellant’s actions in firing the gun was the appellant’s primary defense; he was entitled to have the jury rule upon that defense and was harmed in not having the requested instruction submitted to the jury. See Miller v. State, 815 S.W.2d 582, 586 (Tex.Crim.App.1991). We conclude the appellant did suffer some harm by the trial court’s erroneous denial of his properly requested jury instruction. See Hill v. State, 765 S.W.2d 794 (Tex.Crim.App.1989).

We reverse the trial court’s judgment and remand the case to the trial court for a new trial.


author: JOHN CAYCE, Chief Justice. TERRIE LIVINGSTON, Justice,

text:
    PERRY HOMES, Joint Venture, Appellant, v. Aziz ALWATTARI and Hajer Alwattari, Appellees.
    No. 2-98-106-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 2, 2000.
    Rehearing Overruled Jan. 4, 2001.

      Gardere Wynne Sewell & Riggs, L.L.P., Geoffrey H. Bracken, Houston, Gardere & Wynne, L.L.P., Stacy R. Obenhaus, Allison Freeman Logan, Dallas, for Appellant.
    Law Offices of Anne P. Stark, P.C., Anne P. Stark, Dallas, for Appellees.
    PANEL A: CAYCE, C.J.; DAY and LIVINGSTON, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

In this case we must decide once again whether the limitations on damages and defenses to liability provided to contractors in the Residential Construction Liability Act (RCLA) apply to a homeowner’s suit against a contractor for damages caused by .a construction defect, when the contractor fails to make a reasonable written offer of settlement. We hold that the limitations on damages and defenses to liability do not apply in such a situation. We further hold that appellees’ Deceptive Trade Practices Act (DTPA) claim is not preempted by the RCLA under the facts of this case. We modify the trial court’s judgment to delete the award to appellees for costs of repairs under the DTPA. We affirm the remainder of the judgment, as modified.

I. BACKGROUND FACTS

Appellees Aziz and Hajer Alwattari bought a new home in Arlington, Texas, constructed by appellant Perry Homes. The Alwattaris signed an earnest money contract in December 1991 to buy the house for $199,500. Prior to closing in January 1992, the Alwattaris received a warranty from Home Owners Warranty Corporation. In late 1992, the Alwattaris noticed hairline cracks in the walls and expansion joints of the house and contacted Perry Homes. Perry Homes sent David Redd to inspect the property and take elevation measurements. Redd reported to Perry Homes that there had been some shifting in the foundation.

In 1994, the Alwattaris were replacing the damaged flooring in their kitchen, when they noticed a crack in the foundation. Upon further inspection, Redd found additional settlement under the foundation. On August 31, 1994, Mr. Alwattari sent a letter to Perry Homes’ warranty department and asked what remedial actions should be taken. Perry Homes sent Bill Ford to the house to investigate the Alwat-taris’ concerns. Based on Ford’s findings, Perry Homes began performing cosmetic repairs to the house, which were needed due to the shifting of the foundation, and informed the Alwattaris that the “process will take 2-3 months.” The Alwattaris continued to discover cracks in their walls and kitchen floor.

On December 7, 1995, the Alwattaris, through their lawyer, sent a letter to Perry Homes demanding that Perry Homes pay for an engineering report, the cost of any necessary repairs, temporary housing for the Alwattaris during the repairs, the reduction in the house’s market value, and the Alwattaris’ attorneys’ fees. Less than a week later, the Alwattaris sued Perry Homes for breach of contract, violations of the DTPA, negligence, and gross negligence. On January 10,1996, Perry Homes had a structural engineer inspect the Al-wattaris’ house. Based on the engineer’s findings, Perry Homes responded to the Alwattaris’ demand letter on January 23 with the following written offer of settlement:

Foundation Complaint. With regard to the foundation movement, twenty (20) piers will be installed starting at the northwest corner of the house continuing along the east side of the house and two-thirds (⅜) of the way along the south side of the house. The concrete piers will be twelve (12) inches in diameter with a twenty-four (24) inch under-ream. The concrete piers will be installed to approximately ten (10) feet below the surface. The total cost for piering approximately will be $7,000.00. At the time the piers are installed, any hairline crack in the foundation one thirty-second (½2) of an inch in width or larger will be filled in with epoxy.
Perry Homes will pay sixty percent (60%), i.e. $4,200.00, of the total cost of installing the piers by way of a joint check payable to the Alwattaris and the independent contractor hired to perform the installation. The Alwattaris will pay the other forty percent (40%), i.e. $2,800.00, of the total cost of installing the piers. The Alwattaris will submit a proper claim regarding the foundation repair to Home Owners Warranty Corporation (“HOW”) in accordance with the terms of their Home Owners Warranty Program. Perry Homes will receive a copy of all documents sent to and received from HOW regarding the Al-wattari’s claim. If the claim is accepted, Perry Holmes will not be required to reimburse the Alwattaris for the $2,800.00 paid by them towards installation of the piers. It is Perry Homes’ ... understanding that HOW is paying forty percent (40%) on all accepted claims. Therefore, the coverage provided by HOW will cover the additional $2,800.00 required to install the piers. If, however, the claim is rejected, Perry Homes will reimburse the Alwattaris for their $2,800.00 contribution.
Cosmetic Complaints. Three (3) months after the piers have been installed, Perry Homes or an independent professional engineer will reinspect the house and will, within one (1) month of the reinspection, repair all cosmetic items related to any foundation movement or the foundation repair process.
Attorneys’ Fees. Because suit was filed before Perry Homes was sent a formal demand letter, Perry Homes is unwilling to pay the $1,500.00 demanded by you. In order to resolve this matter, Perry Homes will pay the Alwattaris $750.00 for attorneys’ fees.

After receiving this offer, the Alwattaris began settlement negotiations with Perry Homes. Sometime later, they hired their own engineer, Gary McHale, to inspect the house. McHale determined that the Al-wattaris’ foundation was not performing adequately. A year later, McHale returned and determined that the foundation remained unchanged and had not settled any further.

In May 1997, the Alwattaris demanded that Perry Homes repair the foundation without requiring the Alwattaris to execute a release of their claims. Perry Homes then hired a foundation repair company to make approximately $10,000 worth of repairs. Perry Homes paid for the entire cost of the repairs. By the following month, Perry Homes had completed all of the repairs the Alwattaris demanded in accordance with McHale’s report.

On July 21, 1997, McHale sent a letter to the Alwattaris stating that the structural repairs had been completed and that “the foundation repairs appear to have been properly completed.” Perry Homes began making further cosmetic repairs in September 1997 and had substantially completed them at the time of trial in December 1997.

II. THE TRIAL COURT’S CHARGE

At trial, the parties stipulated that the foundation problem was a “construction defect,” as defined by the RCLA. The trial court granted Perry Homes a directed verdict on the Alwattaris’ gross negligence claim and on their claim under the DTPA that Perry Homes took advantage of the Alwattaris’ lack of experience and knowledge to a grossly unfair degree. The Alwattaris do not challenge the directed verdict.

In the court’s charge, Special Question 1 asked,

Did Perry Homes make a reasonable written offer of settlement to the Plaintiffs within forty-five (45) days of its receipt of the December 7, 1995, written notice from [the Alwattaris]?
Answer ‘Tes” or “No.”

The jury was then instructed over Perry Homes’ objection not to answer Special Questions 3 and 4, which contained the elements of damage for recovery under the RCLA, if they answered Special Question 1 “no.” Thus, the jury was charged that if they found that Perry Homes did not make a reasonable settlement offer, they were not allowed to answer any damage questions relating to the Alwattaris’ RCLA claim. Instead, the jury was instructed to answer the special questions on the Alwat-taris’ other claims.

III.THE VERDICT AND JUDGMENT

The jury found that Perry Homes did not make a reasonable written offer of settlement and, therefore, did not answer the special questions related to the damage elements for the Alwattaris’ RCLA claim. In answering the special questions on the Alwattaris’ other submitted claims, however, the jury found that Perry Homes was negligent and that it had violated the DTPA by acting unconscionably, by breaching the warranty of good workmanship, and by engaging in such conduct knowingly. The jury awarded the Alwat-taris $1,557.39 in actual expenses, $10,000 for the diminution in fair market value of their home in its repaired condition, $5,000 for Perry Homes’ knowing conduct, and $35,000 in attorneys’ fees. Based on the Alwattaris’ election to recover on the DTPA findings, the trial court doubled the first $1,000 of actual damages based on the jury’s knowing conduct finding and rendered judgment awarding the Alwattaris total damages in the amount of $18,557.39 and $35,000 in attorneys’ fees.

IV.SUMMARY OF ISSUES ON APPEAL

Perry Homes asserts that the Alwattaris are precluded from recovery under the DTPA because the preemptive provision of the RCLA applies to their construction defect claim. Specifically, Perry Homes contends that it made a reasonable written settlement offer as a matter of law and that the Alwattaris should take nothing on their RCLA claim because the Alwattaris unreasonably rejected its offer and presented no evidence to support recovery of the reasonable cost of repairs necessary to cure the defect. Perry Homes attacks other parts of the judgment and jury verdict, including multiple issues asserting that the trial court’s judgment should be reversed because the jury’s DTPA findings are not supported by the evidence.

Relying on our decision in O’Donnell v. Roger Bullivant of Texas, Inc., 940 S.W.2d 411 (Tex.App.—Fort Worth 1997, writ denied) (op. on reh’g), four amici curiae argue that the RCLA applies to the Alwat-taris’ claims, even if Perry Homes did not make a reasonable written settlement offer, and that the effect of Perry Homes’ failure to make a reasonable offer is that the limitation on the amount of damages provided for in subsection 27.004(i) does not apply. Id. at 421. Amici argue, however, that under the controlling precedent of O’Donnell, the limitations on the types of damages provided for in subsection 27.004(h) apply to the Alwattaris’ claims. Id.

The Alwattaris also cite O’Donnell as authority for the opposite proposition that the RCLA’s preemptive provisions do not apply, because the jury correctly found that Perry Homes failed to make a reasonable written settlement offer. They contend that the jury’s DTPA verdict is supported by the evidence and that the judgment of the trial court should be affirmed.

V. THE RCLA

The RCLA applies to “any action to recover damages resulting 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). In enacting the RCLA, the legislature specifically provided that the RCLA would prevail “[t]o the extent of conflict between this chapter and any other law, including the Deceptive Trade Practices-Consumer Protection Act.” Id. (emphasis supplied). Thus, a claim that exists solely by virtue of alleged construction defects falls exclusively within the RCLA. In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522, 526 (Tex.App.—Houston [14th Dist.] 1998, orig. proceeding) (holding RCLA applied to allegations against home builder based on misrepresentations and false promises because there was no claim without the construction defect). A homeowner, however, may bring other claims that do not conflict with the remedial purpose of the RCLA. Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 123-24 (Tex.App.—San Antonio 1997, writ denied) (holding RCLA does not preempt common law fraud claims).

Under the RCLA, a homeowner who complains of a construction defect must give the contractor written notice of the claim. Tex.PROp.Code Ann. § 27.004(a). The contractor then has 45 days to make a written offer to settle the claim. Id. § 27.004(b). If a homeowner unreasonably rejects a contractor’s written offer of settlement or refuses to permit the contractor a reasonable opportunity to repair the defect, the homeowner’s total recovery is limited to the reasonable cost of the repairs that are necessary to cure the construction defect, plus the amount of reasonable and necessary attorneys’ fees and costs incurred before the offer was rejected or considered rejected. Id. § 27.004(f). Otherwise, the RCLA limits the homeowner’s recovery to the following damages proximately caused by the construction defect:

(1) the reasonable cost of repairs necessary to cure any construction defect that the contractor failed to cure;
(2) the reasonable expenses of temporary housing reasonably necessary during the repair period;
(3) the reduction in market value, if any, to the extent the reduction is due to a structural failure; and
(4) reasonable and necessary attorney’s fees.

Id. § 27.004(h). Under subsection 27.004(i), however, the total damages that a homeowner may recover against a contractor may not exceed the purchase price of the residence. Id. 27.004(f).

The limitations on damages and defenses to liability provided for in section 27.004 do not apply if the contractor fails to make a reasonable written settlement offer or otherwise cure the defect in the manner prescribed by the RCLA. Specifically, subsection 27.004(g) provides:

If a contractor fails to make a reasonable offer under this section, or fails to make a reasonable attempt to complete the repairs specified in an accepted offer made under this section, or fails to complete, in a good and workmanlike manner, the repairs specified in an accepted offer made under this section, the limitations on damages and defenses to liability provided for in this section shall not apply.

Id. § 27.004(g) (emphases supplied).

YI. PERRY HOMES’ SETTLEMENT OFFER

We first address Perry Homes’ contention that it made a reasonable written offer of settlement to the Alwattaris as a matter of law within 45 days after receiving the December 7, 1995 written notice of the Alwattaris’ complaints. As noted above, if Perry Homes made a reasonable settlement offer as a matter of law, it is entitled to the benefit of the limitations on damages and defenses to liability provided for in section 27.004.

A “matter-of-law” point is used when there is an adverse finding on an issue that the appellant had the burden of proving and the issue is conclusively established by the evidence. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Fenwal, Inc. v. Mencio Sec., Inc., 686 S.W.2d 660, 665 n. 1 (Tex.App.—San Antonio 1985, writ ref'd n.r.e.); W. Wendell Hall, Standards of Review in Texas, 29 St. MaRy’s L.J. 351, 481-82 (1998). In reviewing a matter-of-law point, we first examine the record for evidence that supports the adverse finding while ignoring all evidence to the contrary. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). If no evidence supports the adverse finding, we then examine the entire record to determine whether the evidence conclusively establishes all vital facts in support of the proposition as a matter of law. Id. If the issue is established conclusively by the evidence, the point must be sustained. Meyerland Cmty. Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex.App.—Houston [1st Dist.] 1985, wilt ref'd n.r.e.).

The evidence shows that the Alwat-taris purchased their house in 1992. Less than one year later, the house began to show signs of structural damage due to shifting in the foundation. The damage, which included cracks in the foundation, the walls, and the floors, worsened over the next four years. Although Perry Homes knew of these problems, it only volunteered to perform cosmetic repairs until it received the Alwattaris’ demand letter in January 1996. In response to the Alwattaris’ demand, Perry Homes offered to perform structural repairs to the foundation, but required the Alwattaris to pay 40% of the cost of the repairs out of their own pocket with a promise of future reimbursement, conditioned on whether their claim was paid by their homeowner’s warranty. Perry Homes also conditioned its offer on the Alwattaris’ executing a full release of their claims. We hold this is some evidence to support the jury’s finding that Perry Homes’ settlement offer was unreasonable. We must now determine the effect of this finding on the Alwattaris’ RCLA action.

VII. O’DONNELL V. ROGER BULLIVANT OF TEXAS, INC.

We first addressed the resulting effect of a contractor’s failure to make a reasonable settlement offer on a homeowner’s RCLA action in O’Donnell. In that case, the homeowners sued their contractor for faulty foundation repairs to their home. The O’Donnells asserted causes of action for negligence, gross negligence, product liability, breach of warranty, breach of contract, and violations of the DTPA. The contractor, Bullivant, moved for summary judgment, asserting that the suit was governed by the RCLA and that under the RCLA, the O’Donnells were entitled to recover no more than the purchase price of their home. The O’Donnells filed a coun-termotion for partial summary judgment, asserting that the RCLA did not apply because Bullivant failed to make a reasonable written settlement offer. Finding that the RCLA applied to the suit, the trial court granted Bullivant’s summary judgment motion and rendered a final judgment for the O’Donnells in the amount of $44,500, the purchase price of their home. O’Donnell, 940 S.W.2d at 414.

On appeal to this court, the O’Donnells claimed that the trial court erred in denying their motion for partial summary judgment, on the ground that the RCLA did not apply to their claims because Bullivant failed to make a reasonable settlement offer. Id. After first concluding that the defect was a “construction defect” as defined by the RCLA, we held the RCLA did, indeed, apply to the O’Donnells’ claims. Id. at 417. We further held that Bullivant’s settlement offer was unreasonable as a matter of law, and that, under the “clear and unambiguous” language of subsections 27.004(f), (g), (h), and (i), the effect of the unreasonable settlement offer was that the limitation on the amount of damages provided for in subsection 27.004(i) did not apply. Id. at 420-21. We, therefore, sustained, in part, the O’Donnells’ point complaining of the trial court’s application of the RCLA to their case, reversed the trial court’s summary judgment limiting the O’Donnells’ recovery to the amount of the purchase price of their home, and remanded the case to the trial court for further proceedings consistent with our opinion. Id. at 421.

The language of section 27.004 is no less clear and unambiguous today than when we decided O’Donnell. However, we erred in O’Donnell by construing the language of subsection 27.004(g) to mean that only the limitation on the amount of damages provided for in subsection 27.004© does not apply when the contractor fails to make a reasonable settlement offer. Instead, subsection 27.004(g) obviously encompasses all “limitations on damages and defenses to liability provided for in this section” — both the limitation on the amount of damages provided for in subsection 27.004® and the limitation on the types of damages provided for in subsection 27.004(h).

We, therefore, hold that, under subsection 27.004(g), the effect of a contractor’s failure to make a reasonable settlement offer is that the contractor loses the benefit of all limitations on damages and defenses to liability provided for in section 27.004, including both the limitation of subsection 27.004(h) on the types of damages recoverable by a homeowner and the limitation of subsection 27.004® on the amount of damages recoverable by a homeowner. We overrule O’Donnell to the limited extent that it may be interpreted as holding, either expressly or impliedly, that the only limitation on damages that does not apply when a contractor fails to make a reasonable settlement offer is the limitation on the amount of damages provided for in subsection 27.004®.

Because the jury in this case failed to find that Perry Homes’ written settlement offer was reasonable, the limitations on the types and amounts of damages and the defenses to liability that would otherwise be available to Perry Homes under section 27.004 of the RCLA do not apply, and, therefore, there is no conflict with the DTPA. Accordingly, the Alwattaris’ DTPA cause of action is not preempted. Issue eight is overruled.

VIII. THE ALWATTARIS’ DTPA CLAIM

A. Unconscionability

Perry Homes contends that the judgment awarding the Alwattaris damages for Perry Homes’ unconscionable conduct must be reversed because there is no evidence of gross disparity between the value of the house at the time the Alwattaris purchased it and the price they paid for the house.

Under the pertinent provisions of the DTPA in effect at the time the Alwat-taris filed suit, unconscionable conduct existed when the defendant’s act or practice resulted in a gross disparity between the value received and the consideration paid. Act of May 10, 1977, 65th Leg., R.S., ch. 216, § 1, 1977 Tex.Gen.Laws 600, 600, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 2, 1995 Tex.Gen. Laws 2988, 2989 (current version at Tex. Bus. & Com.Code Ann. § 17.45(5) (Vernon Supp.2000)). Disparity in value must be determined at the time of sale; diminution in value caused by later events cannot support an unconscionability claim. Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex.1995).

In determining whether there is legally sufficient evidence to support the jury’s unconscionability finding, we must consider all of the evidence in the light most favorable to the Alwattaris and to indulge every reasonable inference from the evidence in the Alwattaris’ favor. Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998) (op. on reh’g); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert, denied, 523 U.S. 1119,118 S.Ct. 1799,140 L.Ed.2d 939 (1998); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The evidence shows that the Alwattaris purchased their house in 1992 for $200,335. Cheryl Johnson, a realtor, testified that the house was worth $161,000 on May 30, 1996 in an unrepaired state; that the value of the house in its repaired state would be $196,000 in May 1996; and that its value in May 1996, if it had never had foundation problems or related damage, would be $211,000. Thus, according to Johnson, the house had a $15,000 “buyer stigma.” Adding this amount to the $35,000 for required repairs, Johnson testified that the house’s actual value was at least $50,000 less than what the Alwattaris paid for it as a result of the foundation defect and that this would have impacted the value of the house on any date “no matter what.” Based on this testimony, we conclude there is legally sufficient evidence to establish gross disparity at the time the Alwattaris purchased the house in 1992. We overrule issue two.

B. DTPA Damages

1. Reasonable Costs of Repairs

Perry Homes asserts that there is no evidence to support the jury’s finding that the $1,557.39 amount the Alwattaris paid for repairs to the house is reasonable. To recover out-of-pocket expenses or costs paid for repairs, the Alwattaris were required to prove the amounts paid were both reasonable and necessary. Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex.App.—Fort Worth 1996, writ denied). “[I]t is not necessary for a claimant to use the words ‘reasonable’ and ‘necessary’; a claimant need only present sufficient evidence to justify a jury’s finding that the costs were reasonable and the repairs necessary.” Id,

The Alwattaris’ son, Omar, testified to the following expenses: $57.39 to repair the master bathroom window, $750 for McHale’s engineering report, $325 for Johnson’s appraisal, $50 to repair a gutter, and $375 to remove the kitchen floor and paint the slab. No other evidence was offered in support of the Alwattaris’ claim for these expenses. While the evidence may show the repairs were necessary and the direct result of the foundation defect, there is no evidence to support the jury’s finding that the expenses were reasonable. Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 762-63 (Tex.App.—Fort Worth 1998, no pet.); Ebby Halliday Real Estate, 916 S.W.2d at 589. Issue three is sustained in part.

2. Diminution in Fair Market Value

Perry Homes also complains that the Alwattaris are not entitled to recover $10,000 in damages for diminution in fair market value because diminution in fair market value is an improper measure of damages under the DTPA. According to Perry Homes, the proper measure of damages for unconscionability is either benefit-of-the-bargain or out-of-pocket. We disagree.

Out-of-pocket loss and benefit-of-the-bargain are not the exclusive measures of recoverable damages under the DTPA. Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex.1992); Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985) (op. on reh’g). Under the DTPA in effect at the time the Alwattaris filed suit, a prevailing consumer could recover all “actual damages” for economic loss sustained by the consumer as a result of the deceptive trade practice. Act of May 29, 1989, 71st Leg;, R.S., ch. 380, § 2, 1989 Tex.Gen.Laws 1490, 1491, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 5, 1995 Tex.Gen. Laws 2988, 2992 (current version at Tex. Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon Supp.2000)); see also Kish, 692 S.W.2d at 466; Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex.1980). Such damages include diminution in market value occurring after repairs. Ludt v. McCollum, 762 S.W.2d 575, 576 (Tex.1988). Thus, we overrule that part of issue three challenging the damages awarded to the Alwattaris for the diminution in the fair market value of their house after repairs.

C. Knowing Conduct

Perry Homes argues that the evidence is legally insufficient to support the jury’s finding that Perry Homes’ conduct was committed “knowingly,” because there is no evidence that Perry Homes sold the Alwattaris the home with knowledge of the foundation problem.

Under the applicable version of the DTPA, a plaintiff is entitled to recover “additional damages” when the conduct is committed “knowingly.” Act of May 29, 1989, swpra. Knowingly means with “actual awareness ... of the falsity, deception, or unfairness of the act or practice.” Act of May 10, 1977, 65th Leg., R.S., ch. 216, § 1, 1977 Tex.Gen.Laws 600, 601, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 2, 1995 Tex.Gen. Laws 2988, 2989 (current version at Tex. Bus. & Com.Code Ann. § 17.45(9) (Vernon Supp.2000)).

The evidence in this case shows that before construction began on the Al-wattaris’ home, Perry Homes ordered a test by Alpha Test, Inc. to predict foundation movement (Alpha Test Report). The Alpha Test Report predicted foundation movement of up to 21/4 inches. In addition, the Alwattaris’ engineer, McHale, testified that in new construction, it is generally the duty of the contractor to investigate or test the soil. McHale testified that because there was a creek near or behind the Alwattaris’ house, Perry Homes should have removed or recom-pacted the soils, or installed piers to prevent the foundation defect. Perry Homes knew of the Alpha Test Report and the fact that the Alwattaris’ house was near a creek. We hold that this evidence is legally sufficient to support the jury’s finding of knowing conduct under the DTPA. We overrule issues four and five.

IX. CONCLUSION

We hold that because Perry Homes’ settlement offer was unreasonable, the limitations on the types and amounts of damages and the defenses to liability that are available to a contractor under section 27.004 of the RCLA do not apply; thus, the Alwat-taris’ cause of action under the DTPA is not preempted by the RCLA.

We further hold that there is sufficient evidence to support the Alwattaris’ recovery under the DTPA for Perry Homes’ unconscionable conduct and that diminution in fair market value after repairs is a proper measure of damages under the DTPA. However, we modify the judgment to delete the award of $1,557.39 for costs of repairs, plus the prejudgment interest awarded on that amount, because there is no evidence that the amount of $1,557.39 is reasonable. The remainder of the judgment is affirmed, as modified. Tex. R.App.P. 43.2(b).

LIVINGSTON, J. filed a concurring opinion.

TERRIE LIVINGSTON, Justice,

concurring.

I wholeheartedly join in the majority opinion in all aspects except as to the necessity of overruling a portion of O’Donnell v. Roger Bullivant of Texas, Inc., 940 S.W.2d 411 (Tex.App.—Fort Worth 1997, writ denied) (op. on reh’g). O’Donnell only held a contractor loses the monetary damage cap of subsection 27.004(1) when it fails to make a reasonable offer because this was the only question before this court. O’Donnell did not decide whether subsection 27.004(h)’s limitation on the types of damages is also lost when a contractor makes an unreasonable offer.

Bullivant, the contractor, had impled the purchase price of the O’Donnells’ home and moved for summary judgment requesting the trial court to award the O’Donnells their purchase price. Id. at 414. Bullivant never asked the court to apply the subsection 27.004(h) types of damages. Id. While the O’Donnell opinion acknowledges the existence of the other limitations on the types of damages set forth in subsection 27.004(h), the holding of the opinion does not reach the issue of whether an unreasonable offer by the contractor waives the limitations on the types of damages in subsection 27.004(h). The only issue was whether to apply the monetary damage cap where no reasonable offer to repair had been made. Any broader interpretation of O’Donnell is tied to dicta only and thus does not require overruling.

      . Tex.Prop.Code Ann. §§ 27.001-.007 (Vernon 2000).

      . Tex.Bus. & Com.Code Ann. §§ 17.41-.63 (Vernon 1987 & Supp.2000).

      . The RCLA defines a "construction defect” as
      a matter concerning the design, construction, or repair of a new residence, of an alteration of or addition to an existing residence, or of an appurtenance to a residence, on which a person has a complaint against a contractor. The term "construction defect” may include any physical damage to the residence, any appurtenance, or the real property on which the residence and appurtenance are affixed proximately caused by a construction defect.
      Tex.Prop.Code Ann. § 27.001(2) {see infra note 5).

      . The amici are Greater Houston Builders Association, The Home Builders Association of Greater Dallas, The Greater Fort Worth Builders Association, and Texas Association of Builders. A fifth amicus, Centex Homes and Centex Real Estate Corporation, also filed a brief but did not address the application of the RCLA.

      . Because the Alwattaris filed suit in December 1995, the 1995 version of the RCLA controls. All references to the RCLA in this opinion use the letter designations of the 1995 version, not the current 1999 version. Act of May 24, 1993, 73rd Leg., R.S., ch. 797, 1993 Tex.Gen.Laws 3166, 3166-69, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 10, 1995 Tex.Gen.Laws 2988, 2996-97, amended by Act of May 8, 1999, 76th Leg., R.S., ch. 189, 1999 Tex.Gen.Laws 663, 664-67 (for current version, see supra note 1).

      . At the time of O’Donnell, these subsections were designated (d), (e), (f), and (g). Act of May 24, 1993, 73rd Leg., R.S., ch. 797, § 5, 1993 Tex.Gen.Laws 3166, 3168 (amended 1995 & 1999).

      . Regrettably, this error led to an incorrect disposition of the appeal. Because we held in O’Donnell that the RCLA applied and rendered partial summary judgment that only the "RCLA's damage cap does not apply to the O’Donnells' claims,” we remanded the RCLA action for further proceedings. Id. at 421. The correct disposition would have been to render partial summary judgment that none of the damage limitations provided for in section 27.004 applied and remand the case for further proceedings on the O’Donnells' other non-RCLA claims.

      . It was not necessary for the Alwattaris to prove that the house had zero value to establish gross disparity, as Perry Homes contends. See, e.g., Kinerd v. Colonial Leasing Co., 800 S.W.2d 187, 191-92 (Tex.1990) (op. on reh’g); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 858-59 (Tex.App.—Corpus Christi 1999, pet. denied); Mercedes-Benz of N. Am., Inc. v. Dickenson, 720 S.W.2d 844, 855 (Tex.App.—Fort Worth 1986, no writ).

      . Because we affirm the judgment awarding the Alwattaris DTPA damages for Perry Homes’ unconscionable conduct, we need not address Perry Homes’ complaint in issue one regarding the jury's findings of a breach of warranty under the DTPA, or Perry Homes’ challenges to the jury's negligence findings under issues six and seven.

      . As part of this argument, Perry Homes contends that a soil testing report prepared by an expert hired by Perry Homes is not admissible as a statement of a party opponent and, therefore, cannot be used to prove knowledge on the part of Perry Homes. At trial, Perry Homes objected to admission of the report on the grounds that it was inadmissible hearsay because it was not prepared by Perry Homes. However McHale, the Alwattaris’ engineer, also testified as to the content of the report without any objection from Perry Homes. Because the contents of the report were previously admitted through McHale’s testimony without objection, Perry Homes has waived any argument as to the report’s admissibility. Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Ramirez v. H.E. Butt Grocery Co., 909 S.W.2d 62, 69 (Tex.App.—Waco 1995, writ denied).

      .The report was relied on by Perry Homes’ structural engineer, Don Illingsworth, in preparing the repair plan it proposed in its settlement offer to the Alwattaris in January 1996.