Gregory M. Cokinos and Anthony T. Golz 2017-12-20 04:55:01
The Texas Supreme Court issued numerous opinions and rulings within the past year impacting construction law, including three opinions on Civil Practice and Remedies Code Chapter 150 alone. Several are noted below. In Byrdson Services, LLC v. South East Texas Regional Planning Commission,1 the Supreme Court held that a contract may fall within the waiver of immunity found in Chapter 271 of the Local Government Code even if the local governmental entity is not the primary beneficiary. The court reasoned that Chapter 271 is written expansively to cover agreements providing services, so long as the services are provided “to” the governmental entity. Thus, even if the primary purpose of the contracts at issue was to benefit homeowners, the benefit to the commission—satisfying its contractual obligations to the state—was sufficiently direct and concrete for the contracts to fall within Chapter 271. In Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc.,2 the Supreme Court held that an owner’s failure to pay the balance due on a contract did not bar its recovery for the contractor’s prior breach. The jury found that both parties failed to comply with the contract and that the contractor failed to comply first, but the jury impliedly found that the contractor’s breach was not material. The court held that the contractor’s breach—by providing a refrigeration system unable to maintain the target temperature— was not material as a matter of law, explaining that the issue of materiality is generally one for the fact-finder, and finding no conclusive evidence of materiality. The court further held that the owner’s subsequent breach did not discharge the contractor’s prior breach, as a material breach excuses only future performance, but not past performance. In Levinson Alcoser Associates, L.P. v. El Pistolón II, Ltd.,3 the court held that a certificate of merit cannot satisfy CPRC § 150.002(a)(3)’s “knowledge” requirement by relying on the expert’s licensure or active engagement in the practice. Rather, CPRC § 150.002(a)(3) requires some additional explication or evidence in the record reflecting the expert’s familiarity or experience with the practice area at issue in the litigation. Because nothing in the record reflected the expert’s knowledge of “the design of shopping centers or other similar commercial construction,” dismissal was required. In Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp.,4 the Supreme Court further addressed CPRC § 150.002(a)(3), holding that the statute does not require an expert to establish his or her knowledge through testimony that would be competent or admissible as evidence. The court additionally held that CPRC § 150.002(b) does not require a certificate of merit to address the elements of each cause of action pleaded by the plaintiff. The statute instead requires the certificate to attest to the defendant’s professional errors and omissions and their factual basis. In Pedernal Energy, LLC v. Bruington Engineering, Ltd.,5 the Supreme Court held that CPRC § 150.002(e) affords trial courts discretion to dismiss either with or without prejudice and, therefore, a trial court’s decision to dismiss without prejudice is not necessarily an abuse of discretion. Finally, the Supreme Court declined to review the most recent decision by the 14th Court of Appeals in Houston in Port of Houston Authority v. Zachry Construction Corp.,6 bringing that case to an end. After more than 10 years of litigation, the trial court’s judgment awarding Zachry nearly $20 million in damages was affirmed. The Zachry case involves a number of significant legal issues affecting construction law. The construction practitioner is encouraged to review each opinion. Notes 1) 516 S.W.3d 483 (Tex. 2016). 2) 518 S.W.3d 432 (Tex. 2017) (per curiam). 3) 513 S.W.3d 487 (Tex. 2017). 4) 520 S.W.3d 887 (Tex. 2017). 5) No. 15-0123, 2017 WL 1737920 (Tex. Apr. 28, 2017). 6) 513 S.W.3d 543 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). GREGORY M. COKINOS is a principal and founder of Cokinos | Young, a Houston-based commercial law firm with a concentration in the practice of construction law. He has tried and handled a range of litigation matters, as well as contract negotiations for complex construction and real estate developments. Cokinos is active in the State Bar of Texas Construction Law Section, where he was instrumental in establishing the Construction Law Journal and is the editor. He is a member of the American College of Construction Lawyers. ANTHONY T. GOLZ is a principal in the Houston office of Cokinos | Young. He is certified in civil appellate law by the Texas Board of Legal Specialization. His practice is devoted almost exclusively to appellate matters. CLASSIFIED ADVERTISING Place your ad today in the Texas Bar Journal for fast results! For more information, call (800) 204-2222, ext. 1834.
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