[CLC-Discussion] FW: The Change Order - April 2019 - Construction Law Section

Fri May 17 09:39:53 PDT 2019

The State Bar of Texas's Construction Law Section produces an e-periodical
called, "The Change Order" that summarizes several new cases in one sentence
and includes an online link to the article.  The issue is below.  I thought
it would be interesting to share with our members what another Construction
Law section of another large bar does.  I am inactive in Texas.

Have a great weekend!

Best regards,

Mark Young, Esq., JD, MBA, BS Civ. Eng.

Shareholder, AS-BUILT LAW PLLC

Construction Panel Member, American Arbitration Association

Concentrating in Construction and Business Law

 <mailto:mark.young at asbuiltlaw.com> mark.young at asbuiltlaw.com

Main: 561-340-3700

Direct:  561-784-2322

Cell.  561-719-1250

West Palm Beach, Florida

From: Construction Law Section of the State Bar of Texas
<admin at constructionlawsection.org> 
Sent: Friday, May 17, 2019 11:41 AM
To: myoung at younglaw.info
Subject: The Change Order - April 2019 - Construction Law Section

STATE BAR OF TEXAS

CONSTRUCTION LAW SECTION

THE CHANGE ORDER

--------------- April 2019 Edition ---------------

  _____  

Dear Construction Law Member:

Please see below for the latest edition of "The Change Order." Below you
will find recent court decisions concerning construction law and related
matters, including a brief note related to the significance and/or key
issues addressed in each. To review the full opinion, please click on the
case name and you will be redirected to the Construction Law Section's
website where the case has been uploaded. Please note these opinions may be
subject to appeal, withdrawal, and/or modification. Please follow up with
the case history should you intend to rely on any holding that is subject to
review. Please contact John C. Warren ( <mailto:jwarren at cokinoslaw.com>
jwarren at cokinoslaw.com) and/or Bill Seward ( <mailto:BillS at clesolutions.com>
BillS at clesolutions.com) should you have any questions or problems accessing
the new decisions.

April's Sponsoring Firm - Bradley Arant Boult Cummings, LLP
(Special thanks to Jon Paul Hoelscher, Ian P. Faria, Ryan Kinder, Christian
Dewhurst, Marcus Miller, and Sabrina Jiwani) 

  _____  

Opinions from April 2019: 

2019-04-03
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_01.pdf> Spruce Lending, Inc. v. Garcia--Fourth Court of
Appeals--arbitrability; dispute whether claims were subject to arbitration
clause in financing agreement; court enforced arbitration agreement and
rejected Plaintiff's argument that contract (and arbitration agreement
therein) was void because it failed to comply with certain state and federal
consumer protection and contract formation statutes.

2019-04-03
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_02.pdf> Texas Mut. Ins. Co. v. Garcia--Eighth Court of
Appeals--dispute involving death benefits after construction accident;
insurer had duty to continue paying death payments unless and until
claimants recovered money in suit against construction company; for purposes
of worker's compensation benefits under the Texas Labor Code, recovery
occurs once monies are obtained from third-party tortfeasor; while an
agreement was signed, claimants had not actually recovered until money was
obtained.

2019-04-10
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_03.pdf> Magness v. Baker--Fourth Court of Appeals--only method
available for enforcing a settlement agreement is through summary judgment
or trial; where material terms of proposed amendments to a contract are left
open for future negotiations, the proposed amendments constitute an
agreement to agree and are not binding or enforceable.

2019-04-10
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_04.pdf> Roberto Diaz v. R&A Consultants--Eighth Court of
Appeals--worksite accident involving general contractor's duty to another
contractor's employees; general obligations unrelated to cause of the
accident did not impose duty to ensure contractors perform in safe manner;
having knowledge of and pointing out leak did not impose duty of supervision
to another contractor's employees; right to enforce workplace rules did not
create a duty on the part of project manager.

2019-04-17
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_05.pdf> Studio E. Architect and Interiors, Inc. v. Lehmberg--Fourth
Court of Appeals--certificate of merit; although petition expressly denied
asserting any claims against architect arising from provision of
"Professional Services" as used in Chapter 150 of CPRC, court looked to
whether claims implicated the architect's "education, training, and
experience in applying special knowledge or judgment" to determine whether
certificate of merit was required; allegation that defendant conducted
construction management and oversaw project fell within context of
definition of architect's professional services; dismissal of plaintiff's
claim against architect required because plaintiff failed to attach
certificate of merit to original pleadings; architect did not impliedly
waive its rights to dismissal because it did not substantially invoke
judicial process; trial court's order reversed and remanded for
determination as to whether dismissal should be with or without prejudice.

2019-04-17
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_06.pdf> Murphy Land Group, LLC v. Atmos Energy Corp.--Twelfth Court
of Appeals--merger clause; court concluded merger doctrine did not apply
when easement and roadway lease were two separate transactions; because
easement and roadway leases were separate and distinct, "estoppel by
contract" doctrine was inapplicable; no evidence existed that energy company
intended to extinguish easement rights by executing temporary road lease.

2019-04-23
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_07a.pdf> Sig-Tx Assets, LLC v. Beatrice Serrato, et al.--Fifth
Court of Appeals--review of denial of motion to compel arbitration;
equitable estoppel doctrine; held appellants did not establish trial court
abused its discretion in holding non-signatory of contract was not subject
to arbitration clause under the doctrine of direct benefits estoppel. See
also
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_07b.pdf> dissenting opinion (Bridges, J.).

2019-04-25
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_08.pdf> United Commerce Ctrs., Inc. v. J.R. Birdwell Const. &
Restoration--First Court of Appeals--contract interpretation; conditions
precedent to an obligation to perform; oral modification of contract;
owner's refusal to allow general contractor to commence repairs of
building's roof pursuant to parties' contract constituted material breach of
the contract; lost profits.

2019-04-25
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_09.pdf> U.S. Ply, Inc. v. Arci, Ltd.--Ninth Court of
Appeals--dispute between roofing subcontractor and manufacturer of roofing
materials; manufacturer misrepresented qualities of product to subcontractor
in connection with subcontractor's purchase; manufacturer breached express
and implied warranties associated with sale; subcontractor's conduct was not
a valid defense to breach of warranty; legally and factually sufficient
evidence that subcontractor relied on information supplied by manufacturer
to purchase manufacturer's project; manufacturer waived right to complain
about trial court's failure to reduce findings to writing.

2019-04-26
<http://www.constructionlawsection.org/Portals/0/Documents/TheChangeOrder/20
19/19Apr_10.pdf> Rohrmoos Venture v. UTSW DVA Healthcare, LLP--Supreme Court
of Texas--commercial tenant can terminate lease due to landlord's prior
material breach; tenant was "prevailing party" under lease, despite not
seeking or obtaining monetary damages, by successfully defending against
landlord's breach of contract claim and securing take-nothing judgment; fee
amount incurred or contracted for is not conclusive evidence of
reasonableness and necessity; generalities about an attorney's experience,
the total amount of fees, and reasonableness of the fees are not sufficient
to support fee-shifting award under lodestar method; to prove reasonableness
and necessity of attorney's fees, evidence must be presented about the
detail of the work performed, how much time was spent on the tasks, and how
total fee amount was calculated.

  _____  

 <http://www.constructionlawsection.org/Members/TheChangeOrder.aspx> The
Change Order is a benefit of membership in the Construction Law Section.
Please note The Change Order does not report on all cases that may be
applicable to the practice of Construction Law; rather, it reports on cases
the Editor and Sponsoring firm(s) reviewed and considered noteworthy for the
particular month. If you are aware of a recent opinion that addresses
construction law or related issues that you believe should be included in
The Change Order, please submit to  <mailto:jwarren at cokinoslaw.com> John C.
Warren. Be sure to renew your membership in the Section when it becomes due
or you will be at risk of losing this valuable benefit. Make sure your
online profile is up to date to access archived copies on the website.
Forgot your password? Use the "Forgot Password" function at login to reset.

John C. Warren
Editor
Cokinos | Young PC

  _____  

If you wish to opt out of future e-mails regarding the Construction Law
Section, please let us know by e-mailing
<mailto:admin at constructionlawsection.org> admin at constructionlawsection.org.
The Construction Law Section of the State Bar of Texas is located at 8601
Ranch Road 2222, Building 1, Suite 220, Austin, TX, 78730. 

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