construction law | contractors | general contractor | subcontractors | residential construction defects |
breach of contract |
DTPA | mechanic's lien | suit on bond |
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2006 Houston Construction Law Cases

RECENT DECISIONS FROM HOUSTON COURTS OF APPEALS WITH LINKS TO
APPELLATE OPINIONS

United Fire & Casualty Company v. Boring & Tunneling Company of America (Tex.App.- Houston [1st
Dist.] Feb. 11, 2010)(Keyes) (
construction bond, substantial compliance with notice provisions of the
McGregor Act found even though sworn statement was defective because notary signature and seal
was missing, but issue overruled as a technicality)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Evelyn Keyes    
Before Justices Keyes, Hanks and Sharp  
01-08-00487-CV  United Fire & Casualty Company v. Boring & Tunneling Company of America d/b/a
Bortunco   Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble

Ashkar Engineering Corp. v. Gulf Chemical & Metallurgical Corp. (pdf) (Tex.App.- Houston [1st Dist.]
Feb. 4, 2010)(
interlocutory appeal in an industrial construction design defect suit, claim against a
licensed professional engineering firm, failure to file a certificate of merit required by statute)
We conclude that the substance of GCMC’s claims constitute negligence claims because the acts or
omissions complained of amount to a claimed departure from accepted standards of the practice of
engineering. As such, all of GCMC’s claims, without regard to their titles, are subject to the
requirements of Chapter 150.
Because, as we concluded above, GCMC failed to timely comply with Section 150.002, the trial court
was required, on Ashkar’s motion, to dismiss the suit. We hold that the trial court erred by denying
Ashkar’s motion to dismiss GCMC’s claims.We reverse the order of the trial court and remand for
entry of judgment dismissing GCMC’s claims.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Higley     
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00855-CV Ashkar Engineering Corporation v. Gulf Chemical & Metallurgical Corporation    
Appeal from 215th District Court of Harris County
Trial Court Judge:
Hon. Steven E. Kirkland   

Hughes v. Bay Area Montessori Houston, Inc. (Tex.App. - Houston [14th Dist.] Dec. 31, 2009)(Frost)
(
interlocutory appeal, professional malpractice suit)
This interlocutory appeal arises out of an architecture-malpractice case. An architect and
architectural firm sought dismissal of a school’s claims against them on the basis that the school
claimant failed to comply with the certificate-of-merit statute.  The trial court denied their motion to
dismiss without stating the basis for the denial.  In a single issue, the architect and architectural firm
assert that the trial court incorrectly applied section 150.002 of the Texas Civil Practice and
Remedies Code because the affidavit filed by the school allegedly did not contain a mandatory
element.  Because the school’s cause of action accrued before the legislature amended the
certificate-of-merit statute to permit an interlocutory appeal from the denial of a motion to dismiss, this
court lacks jurisdiction to consider this appeal.
DISMISSED: Opinion by Justice Frost    
Before Justices Brock Yates, Frost and Brown
14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc.     
Appeal from 295th District Court of Harris County
Trial Court Judge:
Tracy Kee Christopher

Choy v. Graziano Roofing of Texas, Inc. (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)
(
construction law, Trust Fund Act violations alleged)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-07-00761-CV  Andrew Choy v. Graziano Roofing of Texas, Inc.   
Appeal from 270th District Court of Harris County
Trial Court
Judge: Hon. Brent Gamble

Stanford Dev. Corp. v. Stanford Condo Owners Ass'n (Tex.App.- Houston [1st Dist.] Jan 29, 2009)
(Radack) (
arbitration, non-signatory, condo association's standing to sue on behalf of members,
bound by arb agreement)REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS:
Opinion by
Chief Justice Sherry Radack  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00240-CV Stanford Development Corporation v. Stanford Condominium Owners Association
Appeal from 333rd District Court of Harris County
Trial Court
Judge: Hon. Joseph Halbach  


West v. Triple B Services, LLP (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Fowler)
(construction law, BoC, surety liability limited to face amount of bond)
AFFIRMED AS MODIFIED: Opinion by
Justice Fowler  
Before Chief Justice Hedges, Justices Fowler and Boyce
14-07-00082-CV  William G. West, Chapter 7 Trustee of Classic Contractors of Houston Ltd., and Classic GP, L.L.C.,
and Western Surety Company v. Triple B Services, LLP
Appeal from 281st District Court of Harris County
Trial Court
Judge:  David J. Bernal

Hartford Fire Ins. Co. v. C. Springs 300, Ltd. (Tex.App.- Houston [1st Dist.] May 29, 2008)(Radack) (construction law,
bonding)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00065-CV Hartford Fire Insurance Company v. C. Springs 300, Ltd.
Appeal from 270th District Court of Harris County
Trial Court
Judge: Hon. Brent Gamble  

Arias v. Brookstone, LP (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Nuchia)
(construction law, contractors, mechanic's
lien, filing, bond)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS: Opinion by Justice Nuchia
01-05-00746-CV Gustavo Arias d/b/a Gus Trucking Service v. Brookstone, L.P. and Liberty Mutual Insurance Company
Appeal from 190th District Court of Harris County (
The Honorable Jennifer Elrod)
This appeal arises out of disputes over the construction of a new building for the Unity Church of Christianity. Among
other things, we must decide whether Property Code section 53.055 requires that a mechanic's, contractor's, and
materialman's lien affidavit be filed with the county clerk before the required notice is given. Tex. Prop. Code Ann. §
53.055 (Vernon Supp. 2007). We hold that it does not.

Design Electric v. Cadence McShane Corp. (Tex.App.- Houston [14th Dist.] Oct. 30, 207)(Seymore)(construction
contract,
unclean hands)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore
14-06-00703-CV Design Electric v. Cadence McShane Corporation
Appeal from 281st District Court of Harris County (
Hon. David Jorge Bernal)

Fish v. Marsters Co. (Tex.App.- Houston [14th Dist.] May 17, 2007)(Frost)(construction defect)
[
homeowner law, residential construction dispute, contractor, subcontractor)
AFFIRMED: Opinion by Justice Frost
Before Justices Fowler, Edelman and Frost
14-06-00129-CV Scott Fish v. Marsters Company, Frank H. Marsters, Individually and Pedigo Services, Inc.--Appeal
from 268th District Court of Fort Bend County (Judge Brady G. Elliott)

Tsertos v. Yammine (Tex.App.- Houston [14th Dist.] Oct. 18, 2007)(Hudson)
(construction law, mechanics lien, summary judgment reversed, fact issue)
REVERSED AND REMANDED: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00769-CV John Tsertos and Dundas Holdings, Inc. v. Yammine Gabriel Yammine, Et Al
Appeal from Co Civil Ct at Law No 4 of Harris County (
Hon. Roberta Anne Lloyd)

Fish v. Marsters Co. (Tex.App.- Houston [14th Dist.] May 17, 2007)(Frost)(construction defect)
[
homeowner litigation, residential construction dispute, contractor, subcontractor)

Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Hanks)
(construction dispute, commercial, BoC,
sworn account)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS: Opinion by Justice Hanks
01-05-01077-CV        Ton's Remodeling v. Tot Hoi Fund d/b/a Fung's Kitchen
Appeal from County Civil Court at Law No 2 of Harris County (
Hon. Gary Michael Block)

City of Houston v. Swinerton Builders, Inc (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Alcala)
(
law suits by and against the City of Houston)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
01-06-00870-CV        The City of Houston v. Swinerton Builders, Inc.
Appeal from 165th District Court of Harris County (
Hon. Elizabeth Ray)

Hickman v. Dudensing (Tex.App.- Houston [1st Dist.] May 24, 2007)(Bland)
(construction defect) (
homeowner law, DTPA, statute of limitations)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
01-06-00458-CV        David C. Hickman v. Royce Dudensing
Appeal from 155th District Court of Austin County (Hon. Dan R. Beck)

Cabo Construction v. R.S. Construction  (Tex.App. - Houston [1st Dist.] Apr. 12, 2007)(Keyes)
(slip and fall, premises liability, negligence, indemnity, construction law, general contractor-subcontractor agreement,
indemnification, ambiguity in indemnity provision, conspicuousness requirement)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Keyes
01-05-00487-CV Cabo Construction, Inc. v. R S Construction
Appeal from
157th District Court of Harris County

Rogers v. Texas Sterling Construction (Tex.App.- Houston [14th Dist.] Mar. 29, 2007)(Yates)(premises liability, death)

Weinberger v. Longer (Tex.App.- Houston [14th Dist.] Mar. 8, 2007)(Justice Seymore)
(
construction contract, fraud, exemplary damages, sanctions)
AFFIRMED: Opinion by Justice Seymore
14-05-01285-CV Sid Weinberger v. Larry G. Longer
Appeal from County Court at Law No 1 of Galveston County
Trial Court Judge: Mary Nell Crapitto

Gilbane Building Co. v. Two Turner’s Electric Co.  (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Anderson)
(construction law, dispute, subcontractor, school construction build out, breach of contract,
proof of damages, costs,
defense of waiver)
Construction Law Cases fom Houston Courts of Appeals
Houston Opinions
RECENT TEXAS SUPREME COURT
CONSTRUCTION LAW DECISIONS
(Tex 2009) (
Tex. 2008) (Tex. 2007)

Frymire Engineering Co. v. Jomar International,
No. 06-0755 (Tex. June 13,
2008)(Willett)(indemnity, water damage due to
faulty installation work, equitable subrogation
standing,
construction law)         

G.E. v. Moritz, No. 04-0871 (Tex. June 13,
2008)(Brister) (
workplace injury, premises
liability, independent
contractor, no duty holding in this case precludes
land owner liability for contractor's injury)  
Justice
Green delivered a dissenting opinion

Perry Homes v. Cull, No. 05-0882 (Tex. May 2,
2008)(Opinion by
Scott A. Brister) (arbitration
award in favor of home owner in residential
construction dispute overturned on waiver theory)

In Re U.S. Home Corp, Lennar Corp et al, No.
03-1080 (Tex. Oct. 12, 2007)(per
curiam)(mandamus,
arbitration between home
owners and builder compelled, residential
construction defect)

Entergy Gulf State, Inc. v. Summers (Tex. Aug. 31,
2007)(Willett)(premises owner and exclusive
remedy defense under Workers' Compensation
Act)  

Lamar Homes Inc. v. Mid-Continent Casualty
Co., No. 05-0832 (Tex. Aug. 31,
2007)(Medina)(insurers duty to defend, home
construction defect)  
The Court answers the questions certified by the
United States Court of Appeals for the Fifth
Circuit.

Reliance National Indemnity Co v. Advanced
Temporaries, Inc., No. 05-0558 (Tex. Jun. 8,
2007)(Medina)(subcontractor's mechanics lien)

Childers v. Advanced Foundation Repair, No.
05-0831 (Tex. May 26, 2006)(per curiam
opinion)(
arbitration, construction law)
Texas Construction Case Law - Houston Court of Appeals Decisions
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