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.