Opinion
No. 05-04-00631-CV
Opinion Filed January 17, 2006.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 004-37103.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION DENYING MOTIONS FOR REHEARING
On August 22, 2005, this Court issued its memorandum opinion in this case reversing and remanding to the trial court the portion of the trial court's judgment that ordered the Towns take nothing on their counterclaims and awarded Herring attorney's fees of $12,375 in defense of those counterclaims. We affirmed the judgment in all other respects. On September 6, 2005, appellees Bob Herring Construction L.L.C., d/b/a Bob Herring Builder, and Bob Herring, Individually, filed appellees' motion for rehearing and, on September 9, 2005, appellants Edward Town and Sharon McAdams Gunn-Town filed their amended motion for rehearing. Both motions for rehearing are denied.
We write solely to address appellants' point number one in their motion for rehearing. Appellants contended in their brief on appeal, and again in their motion for rehearing, that the failure of the architect's letter to include the phrase "the home was complete in accordance with the terms of the contract" raises a material fact issue regarding whether the home was "complete in accordance with the terms of the contract." However, appellants did not raise the argued omission in the architect's letter with the trial court in their summary judgment response. "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex. R. Civ. P. 166a(c). An unpreserved "material fact issue," unlike a "matter of law" issue, may not be raised for the first time on appeal. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Yancy v. City of Tyler, 836 S.W.2d 337, 339-40 (Tex.App.-Tyler 1992, writ denied).
We DENY appellants' motion for rehearing. Also, we DENY appellees' motion for rehearing.