TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED JUNE 20, 2018

NO. 03-17-00355-CV

James Maroney and Maureen Maroney, Appellants v. Chip Buerger Custom Homes, Inc.; and Newton W. Buerger, Appellees

APPEAL FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY BEFORE JUSTICES PURYEAR, FIELD, AND BOURLAND AFFIRMED IN PART; REVERSED AND REMANDED IN PART; REVERSED AND RENDERED IN PART ON MOTION FOR REHEARING – OPINION BY JUSTICE PURYEAR

This is an appeal from the judgment signed by the trial court on February 28, 2017. The Court’s opinion and judgment dated March 22, 2018 are withdrawn. Having reviewed the record and the parties’ arguments, the Court holds that the trial court properly granted summary judgment on (1) the Maroneys’ negligence and express-warranty claims against both appellees, (2) the Maroneys’ implied-warranty claims against Newton W. Buerger personally, and (3) all of the Maroneys’ claims against both appellees for damages to the home’s lakeside columns, “envelope sealing,” and landscaping and grading. We therefore affirm those portions of the trial court’s judgment.

We further hold that the trial court erred in granting Chip Buerger Custon Homes, Inc. summary judgment on the Maroneys’ implied-warranty claims against it and on its affirmative defense of limitations with respect to the Maroneys’ claim of damages to the two-story lakeside porch. We therefore reverse those portions of the trial court’s judgment dismissing the Maroneys’ implied-warranty claims against Chip Buerger Custom Homes, Inc. with respect to their claimed damage to the lakeside porch and remand that issue to the trial court for further proceedings in accordance with this opinion.

We further hold that the trial court erred in granting appellees attorney’s fees, and we reverse that portion of the judgment granting appellees attorney’s fees and render judgment that neither appellee is entitled to attorney’s fees. Each party shall pay the costs of appeal incurred by that party.