Texas Construction Law - Recent Appellate Decisions
Also see: 2007-2008 Construction Law Cases from Houston

Houtex Ready Mix Concrete v. Eagle Construction (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Bland)
DTPA, frivolous suit, attorney's fees, sanctions, bad faith]
FURTHER PROCEEDINGS: Opinion by Justice Bland
01-05-00963-CV        HouTex Ready Mix Concrete & Materials v. Eagle Construction and Environmental Services,
Appeal from County Civil Coutt at Law No 4 of Harris County

Bhakta v. 2B2E, Inc. (Tex.App. - Houston [14th Dist.] August 22, 2006)(Seymore)
[suit on sworn account, building supplies, evidentiary objection, admission of evidence]
AFFIRMED: Opinion by Justice Seymore
14-04-01152-CV Mike Bhakta and Greenway Plaza Hospitality Inc. v. 2B2E, Inc., DBA Hughes Lumber-Plus
Appeal from County Civil Court at Law No 3 of Harris County (
Judge Lynn M. Bradshaw-Hull)

August 15, 2006 - Houston Court of Appeals Affirms Trial Court Judgment in Contractors’
Dispute Over Minute Main Park Retractable Roof

Hirschfeld Steel Co. v. Kellog Brown & Root Inc. (Tex.App.- Houston [14th Dist.] Aug. 15, 2006)(Frost)
[construction law, dispute between subcontractor and general contractor, breach of contract, warranty, retainage,
counterclaim, declaratory judgment]
AFFIRMED: Opinion by Justice Frost
14-04-00504-CV Hirschfeld Steel Company, Inc. v. Kellogg Brown & Root, Inc. (KBR), and Harris County-Houston
Sports Authority--Appeal from
270th District Court of Harris County

This case arises out of the construction of what is now known as Minute Maid Park and involves disputes among
the owner of the ball park, the general contractor, and one of its subcontractors. The subcontractor sued the
general contractor asserting contract claims for retainage and contract damages as well as seeking a declaratory
judgment against both the owner and the general contractor that the subcontractior’s ten-year warranty on the
park’s retractable roof was void. The general contractor asserted a counterclaim for breach of contract and
declaratory relief. The trial court granted summary judgment denying the subcontractor’s claims for declaratory
relief against the general contractor and the owner. After a jury trial, the trial court rendered judgment that both the
subcontractor and the general contractor take nothing on their claims against each other. On appeal, the
subcontractor (1) challenges the legal and factual sufficiency of the jury’s finding that it did not substantially
perform its duties under the subcontract, (2) asserts the trial court abused its discretion in admitting evidence
regarding the warranty, (3) claims the trial court erred in not rendering judgment in its favor on an allegedly
separate and independent contract claim for maintenance work on the roof, and (4) argues the trial court erred in
rendering summary judgment dismissing its declaratory-judgment claims. In its cross-appeal, the general
contractor asserts the trial court erred in denying it attorney’s fees under provisions of the subcontract allowing the
prevailing party in litigation between the subcontractor and the general contractor to recover attorney’s fees. We
affirm the trial court’s judgment.

Aug 1, 2006 - Homeowner’s inverse condemnation suit against state agency failed; homes were
flooded because road construction blocked drainage ditch

Ahart v. Tex. Dep’t of Transp. (Tex.App.– Houston [14th Dist.] Aug. 1, 2006)(by Hudson)
inverse condemnation claim for damages, takings claim under Texas constitution, flood damages to home as a
result of construction project, plea to the jurisdiction affirmed, intent element missing, only causation shown]
AFFIRMED: Opinion by Justice Hudson
14-05-00027-CV Delores Ahart Et Al v. Texas Department of Transportation
Appeal from Co Civil Ct at Law No 3 of Harris County (
Judge Lynn M. Bradshaw-Hull)

Pineoak Builders v. Great American Llyods Inc. Co. (Tex.App.–Houston [14th Dist.] July 6, 2006)(Hedges)
[residential construction,
commercial liability insurance coverage, duty to defend, indemnify]
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Adele Hedges
14-05-00487-CV Pineoak Builders Inc v. Great American Lloyds Insurance Company and Mid Continental Casualty
Company--Appeal from
234th District Court of Harris County Reese Rondon)

DR Horton-Texas v. Markel Int. Co. Lim (Tex.App.-Houston [14th Dist.] June 29, 2006)(by Guzman)
[residential construction liability, indemnity, latent defect
14-05-00486-CV DR Horton-Texas Ltd v. Markel International Company Limited and Sphere Drake Insurance
Limited, Ltd.
Appeal from
281st District Court of Harris County (Judge David J. Bernal)

In Re Jimmy Ash  (Tex.App.-Houston [14th Dist.] June 29, 2006)(by Hedges)
contempt, commitment order issued in residential construction dispute, writ of habeas corpus granted, order is
ambiguous and vague, and cannot be enforced by contempt]
MOTION OR WRIT GRANTED: Opinion by Chief Justice Hedges
14-06-00413-CV In Re: Jimmy Ash
Appeal from
113th District Court of Harris County (Patricia Ann Hancock)

Fondren Construction Co. v. Briar Cliff Housing  (Tex.App.–Houston [1st Dist.] April 13, 2006)(by Bland)
construction case law, subcontractor, breach of contract BoC, unjust enrichment, foreclosure of lien interest, fraud
and fraud in the inducement, negligent misrepresentation, right to recover on construction payment bond,
construction subcontracting work, Property Code, bond requirements, bench trial, summary judgment  evidence,
defense of limitations, suit not brought within one year of recordation of surety, bond]
AFFIRM TC JUDGMENT: Opinion by Justice Jane Nenninger Bland
01-04-01293-CV Fondren Construction Company, Inc., and Robert G. Lubkeman v. BriarCliff Housing
Development Associates, Inc., DPMC-Briarcliff, L.P., and John Deere Company
Appeal from
165th District Court of Harris County (Hon. Elizabeth Ray )

Tally Constr. Co. v. Rodgrigues, Inc. (Tex.App.-Houston [1st Dist.] April 6, 2006)(by Alcala)
construction dispute, subcontractor, breach of contract]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
01-03-01147-CV Talley Construction Company v. Alfonso Rodriguez, Inc., and Gene Robertson, Ind.
Appeal from
133rd District Court of Harris County

Real Estate Transactions, Insurance

Chapman v. Olbrich (Tex.App.-Houston [14th Dist.] June 29, 2006)(Frost)
home sale, specific performance]
AFFIRMED: Opinion by Justice Frost
14-05-00056-CV James and Patricia Chapman v. Doug and Eleanor Olbrich
Appeal from
157th District Court of Harris County
DISSENTING: Opinion by Justice Hudson

Coats v. Farmers Ins. Exchange (Tex.App.-Houston [14th Dist.] June 29, 2006)(Seymore)
homeowner insurance policy, insurance code claim]
14-04-00686-CV John Coats and Shahin Coats v. Farmers Insurance Exchange
Appeal from
270th District Court of Harris County (Brent Gamble)

Ortiz v. Collins (Tex.App.–Houston [14th Dist.] July 6, 2006)(substituted opinion on motion for reh’g)(Yates)
real estate transaction, foreclosure, forcible detainer and entry FDE, eviction, fraud, BoC, promissary estoppel,
statute of frauds, DTPA,
counterclaim for attorneys fees, finality]
14-04-01156-CV Robert Ortiz v. Andrew Collins, Tim Welsh and Jerel S. Twyman
Appeal from
295th District Court of Harris County (Judge Tracy Kee Christopher)
Concurring Opinion by Justice Mirabal


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