Danny Vaughan and Kathleen Vaughan v. Ross Phillips d/b/a Ready-Built Homes and On-Site Construction

Summary

In this concurring opinion, Justice Pirtle agrees that the Vaughans were not entitled to attorney’s fees because they did not prevail on their contract claim. The opinion clarifies that, if Phillips establishes the Vaughans’ breach on remand, his damages should be based on the contract price less amounts paid and expenses avoided, rather than the Vaughans’ cost of completing the construction project.

Holdings

1. Because the Vaughans were found to have materially and without excuse breached the contract, they did not prevail on their contract claim and were not entitled to recover attorney's fees under section 38.001 of the Texas Civil Practice and Remedies Code.
2. If Phillips establishes the Vaughans' breach on remand, Phillips's recovery should be measured by the contract price, less amounts already paid and expenses Phillips will avoid because he is excused from further performance; the Vaughans' cost of completion is not necessarily the same as Phillips's cost of completion.

Questions Presented

1. Whether the Vaughans were entitled to attorney's fees under section 38.001 of the Texas Civil Practice and Remedies Code after the jury found that they materially and without excuse breached the contract.
2. Whether the cost of completion incurred by the Vaughans is equivalent to Phillips's cost of completion or otherwise establishes the amount of Phillips's contractual recovery after partial performance.

Disposition

other