May 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.

May’sSponsoringFirm–UnderwoodLawFirm,P.C.

(Special thanks to Madalena Almanza, Austin Estelle, Madison Estes, Taylor Holley, and Aaron Smith)

OpinionsfromMay2025:

2025-05-01 Am.Servs.U.S.,LLCv. Identity Built,LLC—First Court of Appeals—restricted appeal from default judgment; contractor sued owner for breach of contract and foreclosure of its mechanic’s and materialman’s lien on property; private process server filed return of service stating citation and contractor’s petition were delivered to the Texas Secretary of State, however the record did not contain a Whitneycertificate or any other documentation showing that the Secretary of State forwarded process to owner by certified mail, return receipt requested, at its most recent address on file; appellate court held the record did not affirmatively show strict compliance with the rules governing issuance, service, and return of citation and, therefore, trial court never acquired personal jurisdiction over owner and default judgment was rendered in error; reversed and remanded.

2025-05-01 LippertComponents,Inc.v.Williams—First Court of Appeals—appeal of judgment against parent company for negligence and negligent undertaking claims arising from injuries temporary employee sustained unloading materials at subsidiary’s plant; court of appeals found there was no more than a scintilla of evidence that parent company exercised control over the specific aspect of safety that led to the injury at issue necessary to impose a duty on the parent company and, thus, the jury’s negligence finding was not supported by legally sufficient evidence; trial court’s judgment reversed and judgment rendered that injured temporary employee take

nothing against parent company.

2025-05-01 EdisonSolarLLCv.Barrera—Second Court of Appeals—interlocutory appeal from denial of motion to compel arbitration; appellate court held the contract’s dispute-resolution provisions contained conflicting terms which could not be harmonized and, thus, there was no meeting of the minds on the essential terms of their arbitration agreement as necessary to render the provisions enforceable; affirmed.

2025-05-02 PDTHoldings,Inc.v.CityofDallas—Supreme Court of Texas—equitable estoppel of City’s enforcement of height-related ordinance against builder of noncompliant duplex; City approved builder’s plan for construction of duplex, issued a permit for construction to begin, affirmatively told the builder an incorrect height limit and issued an amended permit for such height after inspecting the construction, and later stated the building was “OK TO FINISH” even after identifying ordinance violation; Supreme Court held that estoppel against the City was necessary to prevent manifest injustice where citizen relied on affirmatively misleading government statements, as opposed to mistaken actions, and suffered substantial loss as a result; reversed court of appeals’ judgment and reinstated trial court’s judgment estopping City from enforcing the height-related ordinance against builder.

2025-05-07 4-S Mfg. Tex. Ltd. Liab. Co. v. Terra Lago Apartments, LLC—Fifth Court of Appeals—appeal of summary judgment in favor of owners; subcontractor filed suit asserting breach of contract claim against owners as a third-party beneficiary to a Memorandum of Understanding (MoU) between general contractors and owners; appellate court held that MoU only incidentally conferred benefits to subcontractor, which was insufficient to show the contracting parties intended subcontractor to have a contractual right to recovery under the MoU; held the MoU did not provide third-party beneficiary status to subcontractor; affirmed.

2025-05-08 Richardsonv.BuilderServs.Grp.,Inc.—Second Court of Appeals—appeal from default judgment; appellate court held that process server’s affidavit in support of contractor’s motion for substituted service failed to strictly comply with TRCP 106(b)’s requirements, as it was based on speculation and conclusory statements and did not contain any probative evidence that the address for substituted service was a place where the defendant could probably be found or that the substituted method of service would have been reasonably effective to give defendant notice of the suit; trial court did not have personal jurisdiction over defendant when it entered the default judgment; reversed and remanded.

2025-05-13 Albelbaisiv.MustangMaterials,LLC—Fifth Court of Appeals—appeal of summary judgment in favor of supplier against credit application guarantor; supplier filed a suit on sworn account and guarantor filed general denial that was accompanied by an unsworn declaration which declared the “foregoing was true and correct”; supplier moved for summary judgment and guarantor’s response included an affidavit stating that he did not sign the guaranty; appellate court held that unsworn declaration was not a categorical repudiation of guarantor’s signature or the debt and, thus, guarantor waived any challenge to the genuineness of the guaranty; appellate court also held guarantor’s affidavit in response to the motion for summary judgment only constituted a mere denial that he signed the guaranty which failed to create a genuine issue of material fact; affirmed.

2025-05-15 Cambasv.TrinityRoofing&Restoration,LLC—Sixth Court of Appeals—appeal of jury verdict awarding contractor damages for breach of contract and quantum meruit claims against homeowners for non-payment of work; homeowners argued contractor breached contract first because the work was not completed by estimated completion date in contract; appellate court held that contract language which provided a start date for the work and stated, “Please allow 4-5 weeks for production,” did not constitute an express time-is-of-the-essence clause to support homeowners’ first material breach defense; appellate court also held quantum meruit recovery was available for work performed that was not included in the parties’ written contract; affirmed.

2025-05-15 Tex.Dep’tofTransp.v.Smithson—Seventh Court of Appeals—appeal of jury verdict in favor of plaintiff; ordinary versus special premises defect; plaintiff sued TxDOT under Texas Tort Claims Act for injuries sustained in motorcycle accident, alleging the accident was caused by a road defect; court of appeals held plaintiff’s evidence, which included photographs of red paint marking the complained-of road condition and evidence that TxDOT employees patrol roadways and look for defects, was legally insufficient to show that TxDOT had actual or constructive knowledge of the road condition; appellate court found there was no direct evidence of who applied the paint or when they applied it so any conclusion that TxDOT applied the paint before the accident was an improper inference; reversed judgment of trial court and rendered judgment that plaintiff take nothing by his claims.

2025-05-15 InfrastructureAssocs.,Inc.v.Fereday—Ninth Court of Appeals—certificate of merit; interlocutory appeal from denial of motions to dismiss pursuant to CPRC Section 150.002; plaintiffs’ suit against engineers was filed less than 10 days prior to expiration of the applicable limitations period and did not include certificate of merit, as plaintiffs alleged a certificate of merit could not be prepared due to time constraints; plaintiffs failed to supplement their petition to include a certificate of merit within 30-day grace period; appellate court held plaintiffs’ petition asserted engineering claims against the engineers and, thus, a certificate of merit was required; reversed and remanded to trial court to determine whether to dismiss claims with or without prejudice.

2025-05-20 Smithv.AlRossLuxuryHomesLLC—Fourteenth Court of Appeals—interlocutory appeal from denial of motion to compel arbitration; homeowners and contractor signed a home remodeling contract containing an arbitration agreement but, after a dispute arose, they subsequently entered into a mediated settlement agreement which declared the remodeling contract null and void; a separate dispute later arose over the settlement agreement, and homeowners sought to compel arbitration under the remodeling contract’s arbitration clause; courts, not arbitrators, must decide the fundamental question of whether parties are bound by an arbitration agreement; appellate court held that no enforceable arbitration agreement existed between the parties, given the settlement agreement nullified the remodeling contract; affirmed.

2025-05-27 Morningside Ministries v. Koontz McCombs Constr. Ltd.—Eighth Court of Appeals—discovery rule; “inherently undiscoverable” construction defects; economic loss rule; owner sued contractor and project manager for breach of contract, breach of express warranty, and negligence more than 4 years after certificate of substantial completion was issued, asserting discovery rule; trial court granted summary judgment for contractor and project manager on

statute of limitations and economic loss doctrine defenses; appellate court held the discovery

rule applied, finding the structural defects and design deviations were inherently indiscoverable as no exercise of reasonable diligence would have detected them absent expert evaluation; contractor and project manager failed to negate the discovery rule; reversed and remanded.

2025-05-29 HalffAssocs.,Inc.v.Jacob&Martin,LLC—Second Court of Appeals—interlocutory appeal from trial court’s dismissal of engineer 1’s third-party action for contribution or indemnity against engineer 2, due to engineer 1’s failure to file compliant certificate of merit; appellate court held that engineer 1’s use of plaintiff’s certificate-of-merit, which addressed only engineer 1’s alleged negligence, along with its separate certificate-of-merit addressing engineer 2 was sufficient, albeit minimally, to satisfy the requirements of CPRC Section 150.002(b), given the derivative and conditional nature of engineer 1’s claims; a certificate of merit is not required to address the elements of the asserted causes of action, or recite the applicable standard of care or how the standard of care was allegedly breached, and it may contain conclusory statements; reversed and remanded.

2025-05-29 Beach Club Condos., A Winkler Dev., L.P. v. Shoreline on Lake Conroe Condo. Assoc.,Inc.—Ninth Court of Appeals—interlocutory appeal from trial court’s denial of motion to compel arbitration; defendants’ motion to reconsider motion to compel arbitration was based on operative facts not in existence when the original motion was filed, so it was treated as a distinct motion to compel arbitration for purposes of timeliness of appeal; arbitration provision only applied to “construction disputes”; appellate court reversed trial court’s order and remanded case to trial court to compel arbitration of all construction disputes and determine whether remaining claims, including alleged invalidity of contractual amendments and accounting issues, were intertwined with construction disputes and must be arbitrated.

The Change Order is a benefit of membership in the Construction Law Section. Please note TheChangeOrderdoes 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