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@asbuiltlaw.com> mark.young@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@constructionlawsection.org> Sent: Friday, May 17, 2019 11:41 AM To: myoung@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@cokinoslaw.com> jwarren@cokinoslaw.com) and/or Bill Seward ( <mailto:BillS@clesolutions.com> BillS@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@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@constructionlawsection.org> admin@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.