June 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.

June’s Sponsoring Firm – Cokinos | Young

(SpecialthankstoRayDennison,BlakeJones,KristenMaloney,JadeMisenhimer,EmmaMyles,SamuelPendergast,JakePeters,andChristianTrevino)

Opinions from June 2025:

2025-06-03 Aguinagav.JATProjectHoldingsTex.,LLC—Fifth Court of Appeals—contractor and financier entered into Rule 11 settlement agreement to resolve dispute arising from project to develop townhomes; the agreement required execution of an agreed final judgment to be held in trust; contractor later withdrew consent to the Rule 11 agreement and financier moved to enforce the agreement; trial court entered an agreed final judgment pursuant to the Rule 11 agreement; appellate court held that trial court erred in entering the agreed judgment in response to financier’s motion to enforce because contractor withdrew consent to the Rule 11 agreement and there was no pleaded breach of contract claim for that agreement; reversed and remanded.

2025-06-10 SOAPEng’g,LLCv.InfinitiIntegrationServs.Corp.—Seventh Court of Appeals—breach of oral contract and misappropriation of trade secrets dispute between subcontractor and sub-subcontractor arising from project to replace and upgrade equipment at CO2 recompression plant; sub-subcontractor filed suit after subcontractor refused to pay outstanding invoices after project was completed; the trial court found in favor of sub-subcontractor and awarded damages; on appeal, subcontractor challenged whether there was factually sufficient evidence to establish the creation of a binding agreement between the parties; appellate court held the trial court’s finding that a binding agreement arose between the parties was not so against the great weight and preponderance of the evidence as to render the finding manifestly unjust; affirmed trial

court’s judgment as to the breach of contract claim.

2025-06-10 Lutz v. RWH Homebuilders, LP—Fourteenth Court of Appeals—appeal from denial of motion to confirm arbitration award; two arbitration proceedings arose in residential construction case between homeowners and builder; first proceeding resulted in award for builder on construction defect and warranty claims, and trial court issued judgment confirming the award; second proceeding resulted in award for homeowners on breach of contract claim, and homeowners moved to confirm the award; builder objected on resjudicatagrounds, and trial court denied the motion; appellate court held the issue of resjudicatawas for the arbitrators to decide and not the court and, thus, the trial court erred in denying the motion to confirm; trial court’s order reversed and judgment rendered confirming the second arbitration award.

2025-06-11 McClearyv.CTLCorp.—Eighth Court of Appeals—appeal from trial court’s grant of summary judgment for construction manager in personal injury suit brought by injured worker following explosion of pipeline during construction; appellate court held that injured worker’s summary-judgment response did not expressly present arguments or evidence that the explosion was a foreseeable result of construction manager’s actions and damages resulting therefrom and, thus, a no-evidence summary judgment was proper; affirmed.

2025-06-12 Campbellv.HendershotEquip.Co.—Eleventh Court of Appeals—appeal from trial court’s grant of summary judgment for equipment rental company in personal injury suit brought by injured worker following incident involving telehandler during construction of building; worker’s negligence claim was based on alleged failure of rental company to train the lessee of its equipment and negligently entrusting the telehandler to an incompetent or reckless operator; appellate court declined to establish a general legal duty to train lessees on the use of rental equipment; appellate court found that, if rental company had owed a duty to train and breached that duty, such breach was not the proximate cause of the worker’s injuries; also found worker produced no evidence of rental company’s negligent entrustment; affirmed.

2025-06-12 CJEConstr.,LLCv.Krynicki—Thirteenth Court of Appeals—appeal from trial court’s denial of motion to compel arbitration; homeowners and contractor signed a contract for construction of a new home, which included a promise for the home to be completed within 180 days; homeowners filed suit for violations of the DTPA after construction was not timely completed, and contractor moved to compel arbitration based on contract’s arbitration clause; homeowners argued there was no valid contract before the trial court as contractor did not authenticate the contract; appellate court held contractor’s failure to authenticate the contract was not fatal and contract was competent evidence of valid agreement to arbitrate; homeowners judicially admitted to the existence of the contract by making references in their pleadings to payments made in connection with the contract and allegations that contractor “did not complete the home within 180 days as represented”; trial court’s judgment reversed and remanded.

2025-06-18 In re Aerohead Grp., Inc.—Fourth Court of Appeals—petition for writ of mandamus in response to trial court “passing” on subcontractor’s motion to compel arbitration and signing an order granting another subcontractor’s partial motion for summary judgment; appellate court held the trial court erred by ruling on the merits of a disputed claim via a partial motion for summary judgment before summarily ruling on the pending motion to compel arbitration; mandamus relief granted.

2025-06-19 MyPlaceServs.LLCv.Newman&Co.MSO,LLC—Third Court of Appeals—breach of contract and DTPA claims arising from construction buildout of commercial space; trial court found contractor failed to deliver and complete work in the time and manner provided in the parties’ contract, and contractor and its agent made false and deceptive representations regarding the time and manner in which they would complete the project; owner awarded actual damages in the amount it had paid contractor, which the trial court trebled; appellate court found the evidence presented at trial supported findings that contractor and its agent made intentionally fraudulent representations about their abilities and quality of their services and later demanded extra-contractual payments and abandoned the project, which was incomplete and did not conform to plans or City code requirements; obtaining building permit and providing building plans were not conditions precedent to contractor’s performance under the parties’ contract; affirmed.

2025-06-23 Prof’lServ.Indus.,Inc.v.Ibey—Fifth Court of Appeals—certificate of merit; interlocutory appeals from denial of engineering firms’ motions to dismiss pursuant to CPRC Section 150.002; engineering firms hired to perform inspection services in connection with highway construction project; appellate court held engineering firms’ inspection services were done as a component part of the necessary steps for implementing the traffic control plan, which clearly involved provision of engineering services and from which the claims against the engineering firms arose; appellate court also held the term “action” refers to the entire lawsuit, such that 2023-amendment to Section 150.002—which applies to “actions” commenced on or after September 1, 2023—did not apply to contractor’s cross-claims filed on September 5, 2023, as the original suit was commenced on March 22, 2022; engineering firm did not waive reliance on Section 150.002’s certificate of merit requirement by filing a cross-claim against contractor or by filing general denial; reversed trial court’s denial of engineering firms’ motions to dismiss.

2025-06-26 ThomasCraigConstr.,Inc.v.ParkSquareCondo.Owner’sAssoc.—First Court of Appeals—interlocutory appeal from trial court’s denial of motion to compel arbitration; waiver of arbitration by substantial invocation of judicial process; condominium association sued contractor and others related to renovation project; contractor moved to compel arbitration after case was on file for nearly 3 years, during which time contractor sued 6 subcontractors as third-party defendants, asserted counterclaim against condominium association, engaged in extensive discovery, and sought judicial rulings on merits-related issues involving the Residential Construction Liability Act; appellate court held contractor substantially invoked the judicial process and its conduct caused prejudice to the parties opposing arbitration; affirmed.

2025-06-27 WernerEnters.,Inc.v.Blake—Supreme Court of Texas—“but-for” causation and “substantial-factor” causation are both required components of cause in fact element of proximate cause for negligence claims; driver of pickup lost control of vehicle during icy conditions, causing pickup to cross the median and into the path of oncoming 18-wheeler, which was driving below the speed limit and immediately braked but nevertheless collided with pickup; injured passengers in pickup sued 18-wheeler driver and his employer; trial court rendered judgment against defendants and court of appeals affirmed; Supreme Court held that no reasonable juror could have found 18-wheeler driver’s actions were a substantial factor in causing the accident and, thus, 18-wheeler driver was not a proximate cause of the accident; Supreme

Court found the sole substantial factor in bringing about the accident was the pickup driver losing

control of his vehicle and crossing the median into oncoming highway traffic before 18-wheeler had time to react; court of appeals’ judgment reversed and judgment rendered for defendants. Seealsoconcurring opinion (Young, J.); dissenting opinion (Bland, J.).

2025-06-30 TACTotalAutomationControls,Inc.v.MSCIndustrialSupply,S.deR.L.deC.V.—Eighth Court of Appeals—interlocutory appeal from trial court’s denial of motion to compel arbitration; waiver of arbitration by substantial invocation of judicial process; party moved to compel arbitration after case was on file for 1 year, during which time movant filed a counterclaim and third-party claim and conducted extensive discovery; appellate court held movant substantially invoked the judicial process to the other parties’ detriment by willingly participating in the case for a year, despite knowing the arbitration agreement existed since the time suit was filed, and only moving to switch forums when it became clear that its case was not proceeding in a favorable manner; 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. 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 Editor

Cokinos | Young PC

Mitchell R. Powell Associate Editor Cokinos | Young PC