July 2025 Opinions

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 Bill Seward (BillS@clesolutions.com) should you have any questions or problems accessing the new decisions.

July’s Sponsoring Firm – Andrews Myers, PC

(Special thanks to Marcela Arevalo, Brittany Cooperrider, Bryce Latray, Mayra Maldonado, Ryan McKee, Rahul Rao, Wesley Walker, and John Williamson)

Opinions from July 2025:

2025-07-03 UnitedConcertsInt’lv.TheCityofHidalgo,Tex.Mun.FacilitiesCorp.—Thirteenth Court of Appeals—appeal from dismissal of a garnishment proceeding to collect a domesticated New York judgment; UCI sought to garnish funds from MFC, the governmental owner of Payne Arena; the trial court granted MFC’s plea to the jurisdiction, finding it immune from garnishment as a governmental entity; the appellate court affirmed, holding that governmental immunity deprived the court of subject-matter jurisdiction and that a governmental entity’s immunity was not waived for garnishment actions.

2025-07-03 KendallCnty.v.WaringLandInvs.,LLC—Thirteenth Court of Appeals—interlocutory appeal from denial of plea to the jurisdiction in a dispute over development and sewage permits for property in Waring, Texas; Waring Land Investments alleged the county and its officials acted ultra vires by denying permits based on regulations that did not apply to the platted lots at issue; the Court found the district court had supervisory jurisdiction over the commissioners court under Article V, § 8 of the Texas Constitution and that the pleadings sufficiently alleged ultra vires actions and arbitrary or unauthorized conduct; the trial court’s denial of the plea to the jurisdiction was affirmed.

2025-07-10 Coxv.Kimberlin—Ninth Court of Appeals—appeal from summary judgment; homeowner sued contractors for breach of settlement agreement, negligence, and DTPA violations arising from allegedly defective construction work performed pursuant to settlement of prior lawsuit; trial court granted plaintiff’s three motions for summary judgment against all defendants; appellate court held that genuine issues of material fact existed precluding summary

judgment, including: (1) scope of settlement agreement and whether defective work was covered by settlement or original construction contract, (2) identity of party who performed the allegedly defective construction work, and (3) whether contractor made deceptive representations under DTPA; court applied de novo standard of review and found plaintiff failed to establish entitlement to judgment as matter of law on essential elements of her claims; reversed and remanded.

2025-07-16 Inre OneWayConcrete,LLC—Seventh Court of Appeals—petition for writ of mandamus; property owner sued contractor for damages related to a fire incident; when the contractor attempted to designate a responsible third party, the trial court denied leave on the basis that the applicable statute of limitations period expired; the appellate court held Texas Civil Practice and Remedies Code § 33.004(d) did not except the applicable statute of limitations period because the contractor failed to serve its initial disclosures per TRCP 194.4 and, thus, did not meet its obligations to timely disclose the entity it sought to be designated as a responsible third party; writ denied.

2025-07-22 KarlKruseGmbH&Co.KGv.N.F.Smith&Assocs.,L.P.—Fourteenth Court of Appeals—appeal from denial of special appearance; German electrical components distributor sold capacitors to Texas electronics retailer, who later discovered parts were counterfeit and sued for breach of contract, negligence, and breach of warranty; defendant filed special appearance challenging personal jurisdiction; trial court denied special appearance; appellate court held that under United Nations Convention on Contracts for the International Sale of Goods (CISG), plaintiff’s purchase orders containing Texas jurisdiction clause were counter-offers to defendant’s expired quote, which defendant accepted by conduct when it shipped goods and invoiced plaintiff; appellate court applied CISG principles that replies containing materially different terms (including dispute settlement provisions) constitute counter-offers rather than acceptances; held defendant contractually consented to Texas jurisdiction through terms in purchase orders, making exercise of personal jurisdiction proper even without minimum contacts; affirmed denial of special appearance.

2025-07-24 GreatAm.Ins.Co.ofN.Y.v.WilliamsonCnty.—Third Court of Appeals—permissive appeal from denial of summary judgment in a performance bond dispute; Williamson County sued Great American, the surety, after terminating its contractor for a public park project, alleging failure to perform under the bond; Great American argued the County’s claim was barred by the one-year limitations period under Tex. Gov’t Code § 2253.078(a), contending the contract was “terminated” when the County removed the contractor; County countered that the contract was not terminated until the surety waived its right to complete the work months later; the appellate court held that “termination” under the statute refers to the end of the contract’s existence, surety obligations extend past contractor termination, and that the limitations period was triggered only when the surety finally waived its performance rights; denial of summary judgment affirmed. Seealso dissenting opinion (Theofanis, J.).

2025-07-24 TexasS.Univ.v.WestwoodRestoration,LLC—Fifteenth Court of Appeals—interlocutory appeal from denial of plea to the jurisdiction; contractor sued university for breach of construction contracts after university failed to pay invoices within 30 days as required by

contract terms; university filed plea to jurisdiction arguing contractor failed to sufficiently invoke Texas Civil Practice and Remedies Code Chapter 114 immunity waiver and failed to comply with contractual ADR procedures before filing suit; appellate court held that contractor adequately pleaded claim for breach of express contract provision under Chapter 114 by alleging specific buildings, written agreements, and a 30-day payment requirement breach, even without identifying contracts by name or citing specific provision numbers; court held that express provision must be stated in contract, not plaintiff’s petition, and fair notice pleading standards govern specificity requirements; held contractual ADR requirements under Texas Government Code Chapter 2260 are enforceable but not jurisdictional based on recent Texas Supreme Court precedent; affirmed denial of plea to jurisdiction.

2025-07-31 AEPTex.Inc.v.WilksRanchTex.,Ltd.—Eleventh Court of Appeals—appeal from summary judgment; utility company sought to replace existing wooden H-frame electric transmission structures with taller steel monopoles under rights granted by 1927 easements; landowners sued for declaratory and injunctive relief claiming easements did not permit changes in materials and height of structures; trial court granted summary judgment for landowners, declared that easements required replacement structures be the same height and material, and awarded attorney’s fees; appellate court held that 1927 easements granting “right to construct, operate, patrol, maintain, and repair its transmission line, including easement for said purposes, and including necessary poles, and fixtures” were unambiguous and permitted modernization of transmission infrastructure; court applied principle that easements accommodate technological development over time when broad language is used without express limitations; reversed and rendered in part.

2025-07-31 BigCreekConstr.,Ltd.v.Sustaita—Tenth Court of Appeals—interlocutory appeal from denial of summary judgment in a wrongful death and personal injury suit arising from a fatal accident at a highway construction site; Big Creek, the contractor, asserted statutory immunity under Texas Civil Practice and Remedies Code § 97.002, arguing it complied with the TxDOT contract’s traffic control requirements; the plaintiffs alleged Big Creek failed to provide adequate warnings, signage, and personnel; the appellate court found the contract’s traffic control provisions were ambiguous and susceptible to multiple reasonable interpretations, making summary judgment improper; the appellate court affirmed the trial court’s denial of summary judgment, holding Big Creek failed to conclusively establish its immunity defense.

2025-07-31 Brazoria10.5,Ltd.v.MacEdison,LLC—Fourteenth Court of Appeals—appeal from partial summary judgment in a lien priority dispute; Brazoria sold land to Mac Edison, secured by a vendor’s lien and deed of trust (later sold to Parker Apartments), and executed a Subordination Agreement making its liens subordinate to a future lien securing Silverkey’s debt to Patriot Bank; after default and subsequent transfers, Brazoria challenged the enforceability of the Subordination Agreement, arguing indefiniteness, modification by later agreement, estoppel by deed, and subrogation; the Court held the Subordination Agreement was sufficiently definite, not limited by subsequent communications, and not barred by estoppel or subrogation; the trial court’s judgment giving priority to the Patriot/Parker Apartments lien was affirmed.

The Change Order is a benefit of membership in the Construction Law Section. Please note The ChangeOrderdoes 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 TheChangeOrder, please submit to John C. Warren or Karly Houchin. Be sure to renew your membership in the Section when it becomes due or you will be at risk of losing this valuable benefit.

John C. Warren              Karly Houchin

Co-Editor                 Co-Editor

Cokinos | Young PC             Allensworth