In Jasek v. Texas Farm Bureau Underwriters, the Court held that the Seller of used personal property was not liable to the Buyer for alleged misrepresentations posted by the third party online auction service. Jasek v. Tex. Farm Bureau Underwriters, No. 14-19-00759-CV, 2022 WL 364050, at *1 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no pet.)

Background. Jasek purchased a used, badly damaged tractor “from an online auction website, SalvageSale.com.” Id. at 1. The following information was posted on the website:

“On December 5, 2013, this unit was damaged when the operator hit a stump. This unit will not start, run or operate in its current condition. No work has been done to the unit. Damage includes but is not limited to: undercarriage, housing, clutch, flywheel and driveshaft. Please refer to the attached photos and bid accordingly.

This listing is AS IS WHERE IS with all faults and no warranties expressed or implied.”

Id. at 1.

The listing included 16 photographs of the damaged tractor and no inspection was permitted before the auction. “However, the listing provided that at the  time of removal “if the item differs significantly from how it was represented in the lot description, the Buyer must contact Customer Care prior to removing.”” Id. at 1.

Jasek submitted the winning bid. He never inspected the tractor and hired a third party to pick up the tractor and deliver it to a repair shop that “identified a large hole in the clutch housing that had not been depicted in the listing photographs.” Id. at 1. As a result, Jasek filed a lawsuit against the seller, Texas Farm Bureau, alleging fraud and violations of the Texas Deceptive Trade Practices Act.

The Trial. Testimony revealed  that the tractor was determined by Texas Farm Bureau to be a total loss from being damaged when it hit a stump. Texas Farm Bureau paid its insured an amount equal to the tractor’s agreed pre-loss fair market value. In turn, Texas Farm Bureau decided to sell the damaged tractor through SalvageSale’s online auction, in order to recoup any remaining value of the tractor.

Prior to the sale, Texas Farm Bureau provided SalvageSale with a “Loss Assignment Sheet,” photographs of the damaged tractor, and the prior owner’s repair estimate. The Loss Assignment Sheet stated that the tractor “hit a stump causing damage to undercarriage. Damage is to housing, clutch, flywheel, and drive shaft.” The tractor was listed “as is” with no presale inspection permission allowed. Id. at 1.

“SalvageSale then created the online listing, scheduled an auction, and forwarded the proceeds from the sale to Texas Farm Bureau.” Id. at 2. SalvageSale was not included as  a party to the lawsuit.

At the conclusion of the trial, the jury found in favor of Jasek on his fraud and DTPA claims. Unfortunately for Jasek, the trial court entered a take nothing judgment, notwithstanding the jury verdict, in favor of Texas Farm Bureau.

Appeal. Jasek appealed the take nothing judgment. The Court of Appeals upheld the trial court’s take nothing judgment because Jasek did not establish that Teas Farm Bureau wrote or created the online listing for the tractor. Texas Farm Bureau emailed the Loss Assignment Sheet, photos, and repair estimate to SalvageSale. The implication was that SalvageSale created the final information posted online about the tractor. There was “not evidence that Texas Farm Bureau prepared the [online] listing or made a disclosure or representation to Jasek.”

Further, there was no evidence that SalvageSale was acting as the agent for Texas Farm Bureau in posting the listing that would make Texas Farm Bureau vicariously liable for the posting by SalvageSale.

As a result, the Court of Appeals, held that the trial court did not err in rendering its judgment notwithstanding the verdict.

Conclusion. It is interesting that, based upon these facts, the jury returned its verdict in favor of the buyer. Although it could be argued that the online posting should have included a photograph of the hole in the clutch housing, the damage to the clutch was mentioned and the tractor was being sold “as is” through “SalvageSale.com” without inspection. Surely, a buyer would not be expecting much value in return for this purchase. Interestingly, the Court of Appeals never really addressed whether the alleged misrepresentations or omissions of fact were actionable. It was able to dispose of the case on the grounds that the seller was not the one that made the alleged misrepresentations in the posting.

In this case, “[t]wo lenders seek to collect more than $58 million from Michael Lockwood.” Lockwood Int’l, Inc. v. Wells Fargo, Nat’l Ass’n, No. 20-40324, 2021 WL 3624748, at *1 (5th Cir. Aug. 16, 2021)). The case arises out of a personal guaranty and forbearance agreements signed by Lockwood guaranteeing his companies’ $90 million revolving lines of credit extended by Wells Fargo and Trustmark.

Lockwood’s companies provided services to the oil and gas and construction industries. They ‘entered into two revolving credit notes in 2015, borrowing $70 million from Wells Fargo and $20 million from Trustmark.’ Id at *1. By 2016, the companies had breached some of their obligations under the notes, and the parties entered into an agreement to modify the obligations and reduce the total debt to $72 million. Lockwood executed a personal guaranty of the debts. Wells Fargo and Trust Mark (the “Lenders”) also insisted that a chief restructuring office – CRO – be engaged to help “turn the companies around.” Id at *1.

Unfortunately, the Lockwood companies continued to be in default of the notes. As a result, the Lenders required Lockwood to “give the CRO “full authority to operate [Lockwood’s companies]” or face acceleration of the loans. Id at *1. Lockwood complied and gave full authority to the CRO. However, Lockwood’s companies continued to remain in default.

This time, in order to avoid acceleration, the Lenders required Lockwood and his companies to sign a forbearance agreement containing “a waiver and release of all “setoffs, counterclaims, adjustments, recoupments, defenses, claims, causes of action, actions or damages of any character or nature” against the Lenders. Id at *1.

Later, a second forbearance agreement was signed to avoid acceleration. When the second forbearance agreement expired, the loans remained uncured and the Lenders accelerated the lines of credit. As a result, a lawsuit ensued between the Lockwood parties and the Lenders. The Lockwood parties sought more than $1.5 billion in damages including for fraud and conversion. Of course, the Lenders made claims for breach of the loans and of the guaranty agreement.

‘After a trip through federal, state, and bankruptcy courts, nothing ultimately became of the Lockwood companies’ tort claims against the Lenders.’ Id at *2. However, the Lenders’ breach of guaranty claim against Lockwood survived, and the Lenders filed a motion for summary judgment. Lockwood asserted that fact issues remained as to his affirmative defenses, including for duress. The trial court granted the Lenders’ motion for summary judgment and entered judgment in favor of the Lenders and against Lockwood for in excess of $58 million.

Lockwood appealed contending that his defense of duress barred the Lenders from recovering on their loan agreements. He contended that he signed the guaranty and forbearance agreements under duress. In signing the first forbearance agreement, Lockwood contended that the Lenders pressured him into relinquishing full control of his companies to the CRO.

The appellate court said that duress requires more. In order to prove the legal defense of duress, one must prove “(1) a threat to do something a party has no legal right to do, (2) an illegal exaction or some fraud or deception, and (3) an imminent restraint that destroys the victim’s free agency and leaves him without a present means of protection.”

Here, “Lockwood’s duress defense falters at the first step because he has not proven that the lenders threatened to take any unauthorized action.” Id at *4. There is simply nothing that prohibits a lender from demanding a change in management as a condition to modifying a loan. The court went onto say:

Lockwood has not established that the lenders perpetrated any “bad acts” to obtain his signature on the first forbearance agreement. The duress defense fails.

Id at *4.

At the end of the day, the Lender’s prevailed on their $58 million judgment. The moral of the story is that leveraging financial pressure against an opposing party in negotiations, alone, is insufficient to support the defense of financial duress.

Introduction. A party can be held liable for conspiracy to commit fraud and theft, even if the party did not commit all of the underlying bad acts. Bates Energy Oil & Gas, L.L.C. v. Complete Oil Field Servs., L.L.C., No. 20-50952, 2021 WL 4840961, at *1 (5th Cir. Oct. 15, 2021). In this case, the 5th Circuit Court of Appeals affirmed the trial court’s judgment finding that David Bravo and his company, Unlimited Frac Sand, were vicariously liable for $652,146.22 in damages and $227,614.77 in attorney fees, based upon conspiracy to commit fraud and theft.

Factual & Procedural Background. Bates Energy Oil & Gas, LLC (“Bates Energy”) and its principal, Stanley Bates (“Bates”), agreed to obtain frac sand for Complete Oil Field Services (“COFS”). The COO of Bates Energy was David Bravo (“Bravo”). He later formed and managed a new  company, Unlimited Frac Sand, LLC d/b/a Frac Sand Unlimited (“FSU”). FSU listed Bates as Vice President and Member, and FSU listed Bates’ girlfriend as a Manager.

Bates Energy and COFS agreed to place $1,000,000 in an escrow account to be used by Bates Energy to purchase the frac sand for COFS. However, the escrow funds could only be withdrawn with the approval of COFS. A proof of escrow funds confirmation letter was later sent to Bravo.

Little did COFS know, the principal of the escrow account, Dewayne Neumann (“Neumann”), was a close associate of Bates. Over several months, Bates, Bravo, and Neumann coordinated the withdrawal of escrow funds, without the approval of COFS. They ultimately misappropriated $652,146.22 of the escrow funds and delivered no sand to COFS.

“This fraud and theft occurred in two ways; Bravo played a key role in both. First, the group executed a series of unauthorized disbursements of COFS’s money from the escrow account to Bates and his associates. This included David Bravo, who was listed as an intended recipient and received $47,500 through accounts held in his wife’s name. Each of the disbursement authorizations stated: “electronic signature  added under authorization by Frac Sand Unlimited, LLC.” For one round of disbursements, the authorizations were signed by Bates but indicated in the “by” section that they were made by “David Bravo, CEO.” Despite the clear terms of the escrow agreement, each of these disbursements was made without the knowledge or approval of COFS.”

Id at *1.

Second, the group defrauded COFS by using the escrow funds to purchase frac sand from Tier 1. Bates and FSU arranged to use the escrow funds to pay for this frac sand. One of the disbursement authorizations was signed by Bravo as CEO of FSU. He even admitted at trial that he was aware that the funds were used to purchase the sand. Rather than deliver the sand to COFS, it was sold to a third party.

The trial court found David Bravo and FSU liable for conspiracy to commit fraud and theft. As a result, the court held that they were jointly and severally liable for $652,146.22 in damages and $227,614.77 in attorney fees. Bravo and FSU appealed to the 5th Circuit.

5th Circuit’s Decision. On appeal, the 5th Circuit stated:

““In Texas, a civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996). “The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.” Massey v. Armco Steel Co., 652 S.W.2d 932, 9234 (Tex. 1983) (citations omitted).”

Id at *3.

The 5th Circuit then stated that a party can be liable for conspiracy even if the party “did not commit the underlying bad acts.” Id at *3.

Conclusion. The 5th Circuit went on to find that there was ample evidence that Bates, Bates Energy, and other parties hatched a scheme to defraud COFS. Further, there was ample evidence that Bravo was a co-conspirator in that scheme, and that Bravo and FSU were members of the conspiracy. This same evidence supported the claims by COFS for theft and conspiracy to commit theft. Thus, the 5th Circuit affirmed the trial court’s judgment on both counts.

Introduction. In Texas, an employer is vicariously liable for the negligence of its employee, acting within the course and scope of employment, resulting in injuries to a third party. In the automobile accident case of EAN Holdings, LLC v Arce, 636 S.W.3d 290 (Tex. App.- Fort Worth 2021, pet. denied), the Fort Worth Court of Appeals considered whether EAN Holdings, LLC was vicariously liable for the negligence of EAN’s employee, Nelson, resulting in injuries to third party Guillermo Arce. Since Nelson was operating the EAN owned vehicle while he was on his way home from work, the court held that EAN was not vicariously liable for Nelson’s negligent operation of the EAN owned vehicle.

Background. On the date of the accident, Nelson was driving home from EAN’s branch office, in a car owned by EAN, and was involved in a motor vehicle accident resulting in injuries to Arce. As a result, Arce sued EAN for being vicariously liability for the negligence of Nelson. The jury found that Nelson was negligently operating the vehicle, within the course and scope of employment for EAN, and awarded Arce substantial damages. EAN challenged the verdict on appeal.

In analyzing whether EAN was vicariously liable, the Court of Appeals discussed  the common law doctrine of vicarious liability. “To establish that an employer is vicariously liable for an employee’s negligence, a plaintiff must prove that, at the time of the negligent conduct, the employee was acting in the course and scope of his employment.” Id at 295.

“On the evening in question, Nelson was driving home in an EAN personal-use vehicle after leaving work when he collided with Arce’s vehicle.3 Nelson’s plan had been to stop at a Whataburger to get dinner and then to go home. He was not conducting any EAN business at the time of the collision. Although he had his personal cell phone with him, he was not using it at the time of the collision. He had no plans to conduct any EAN business when he arrived home for the evening, and EAN, according to his area supervisor, did not expect him to work from home.4” Id. at 294.

The Court discussed the application of the coming-and-going rule as noted by the Supreme Court of Texas (SCOTX) in Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 128 (Tex. 2018). In Painter, SCOTX stated that under this rule an employer is not vicariously liable for the negligent operation of a motor vehicle by its employee, if the automobile accident occurs while the employee is traveling to or from the place of employment.

Holding. Based upon the coming-and-going rule, the Fort Worth Court of Appeals held that, as a matter of law, EAN was not vicariously liable for the negligence of Nelson since he was on his way home at the time of the automobile accident.

Introduction. The Texas Supreme Court (SCOTX), in Signature Indus. Services, LLC (SIS) v. Int’l Paper Co. (IP), reduced the $59.1 million jury award to just under $1.8 million. [638 S.W.3d 179, 186 (Tex. 2022)]. The jury’s verdict was largely based upon consequential damages sustained by SIS as a result of IP’s breach of contract.  SCOTX held that, since these consequential damages were either not foreseeable or proven with reasonable certainty, SIS was not entitled to recover them.

Background. SIS is a construction and maintenance company founded in 2010 that performed maintenance for IP as well as other industrial businesses. In March 2014, SIS and IP entered into a contract for SIS to upgrade a vessel known as a slaker. IP used the slaker to recycle chemicals for making paper. Apparently, IP was required to initially pay $775,000 to SIS. However, SIS could also charge for other costs as they were incurred.

Delays and disputes arose, and SIS claimed that it was still owed $2.4 million after it finished the work. In  the interim, SIS had entered  into confidential negotiations to be acquired for the amount of $42 million, by another company. Apparently, these negotiations faltered, after IP refused to pay the $2.4 million to SIS for its services. Subsequently, SIS began experiencing cash flow problems and was not even able to timely pay payroll taxes, resulting in penalties being assessed.

SIS sued IP for breach of contract and fraud. SIS’s expert testified that as a result of IP’s breach, SIS lost $42 million from the lost sale, SIS’s book value decreased by $12.4 million, and SIS incurred $1.9 million in penalties for non-payment of payroll taxes. The total of these consequential damages was $56.3 million. Based upon the evidence, the jury awarded this $56.3 million plus the $2.4 million in direct damages that SIS was claiming for services provided to IP. The court of appeals reduced the $56.3 million in consequential damages to $12.4 million and upheld the $2.4 million in direct damages. The parties then petitioned SCOTX for review.

SCOTX began its analysis by discussing direct and consequential damages.

Direct damages often include restoration of “the benefit of a plaintiff’s bargain.”…Consequential damages, on the other hand, compensate the plaintiff for foreseeable losses that were caused by the breach but were not a necessary consequence of it.

Signature Indus. Services, LLC v. Int’l Paper Co., 638 S.W.3d 179, 186 (Tex. 2022).

SCOTX found that IP did not know about the pending $42 million sale of SIS to the third party. In fact, the negotiation of this sale was confidential. Since these consequential damages were not foreseeable by IP, then SIS was not entitled to recover them.

SCOTX next addressed the jury’s award of $12.4 million for the loss of SIS’s book value. The Court found that SIS failed to prove these damages with reasonable certainty and that loss of book value was not a proper measure of damages. Therefore, this part of the damages award was  also not recoverable.

SCOTX then went onto address the $2.4 million awarded in direct damages for unpaid services. The Court upheld all but $622,560 of this part of the award. This was disallowed because it was based upon charges for overhead, tax penalties, and lost revenue. Unfortunately for SIS, recovery of these charges was prohibited by the contract.

As a result, SCOTX rendered judgment that SIS take nothing on its claim for consequential damages and reduced the award for direct damages to approximately $1,777,440.

Conclusion. The plaintiff must prove that consequential damages, like those being claimed by SIS, are foreseeable. This makes it exceptionally challenging to recover these types of damages. Further, these damages must be proven with reasonable certainty. This will almost  always require the plaintiff to support these damages with competent expert testimony.

Introduction. In the Estate of Wlecyk, the trial court found that the Decedent revived his 2001 Will by making a 2016 hand-written notation on the Will that it stands. [No. 01-19-00299-CV; 2021 WL 1537489 (Tex.App.–Houston [1st Dist.] April 20, 2021, no pet.)]. This resulted in Decedent’s estate passing to his children in equal shares rather than to his live-in friend.

Background & analysis. Billy Joe Wlecyk died  on January 30, 2018,  while bailing hay. On February 1, 2018, Billy Joe’s daughter, Sharon Reed, filed an application to probate Billy Joe’s 2001 Will that was ratified on July 15, 2016. The ratification was significant because Billy Joe had also executed a Will in 2005 leaving his estate to his live-in friend, Daniel. Whereas, in the 2001 Will, Billy Joe left his estate in equal shares to his children.

Daniel filed a competing Application requesting the Court to probate the 2005 Will leaving everything to her. She contended that the 2005 Will remained in effect at the time of Billy Joe’s death and that the 2016 hand-written notation on the 2001 Will was procured by fraud. After hearing the evidence, the Court found that Billy Joe’s hand-written 2016 notation revived Billy Joe’s 2001 Will. The trial court admitted the 2001 Will to probate.

So, how did the 2001 Will end up trumping the 2005 Will? Well, on July 15, 2016, Billy Joe called his daughter, Sharon, and asked her to bring him the 2001 Will. Sharon removed the 2001 Will from her gun safe where she had stored it for safekeeping (no place but Texas). She took it to Billy Joe who was at the home of his friend, Allan. Billy Joe put the Will on the car hood and wrote on this 2001 Will that “This will still stands.” He initialed this notation. This was followed by Billy Joe’s handwritten signature. Another page followed containing a jurat stating that the document was “signed and sworn to” in Brazoria County, on July 15, 2016, by Billy Joe Wleczyk, before notary Kimberly Miller. Estate of Wlecyk, No. 01-19-00299-CV, 2021 WL 1537489, at *1 (Tex. App.—Houston [1st Dist.] Apr. 20, 2021, no pet.).

When Billy Joe signed the written notation, his daughter, Sharon, and his two friends, Allan and Pamela, were all present. Pamela’s testimony included that, prior to writing the 2016 codicil on the 2001 Will, Daniel said that Billy Joe wanted her to move out of his house. Allan testified that when Billy Joe signed the 2016 codicil, Billy Joe “appeared to be of sound mind and body, and to know what he wanted. “ No one was pressuring Billy Joe.

After the trial, the court  admitted the 2001 will and the 2016 codicil to probate and appointed Sharon as independent executor. In doing so, the trial court found that Billy Joe executed a valid hand-written codicil on July 15, 2016. This 2016 codicil not only revived the 2001 Will but it also revoked the 2005 Will.

The court of appeals affirmed the trial court’s decision.

A written will may be revoked by “a subsequent will, codicil, or declaration in writing that is executed with like formalities.” TEX. EST. CODE ANN. § 253.002.

Estate of Wlecyk, No. 01-19-00299-CV, 2021 WL 1537489, at *5 (Tex. App.—Houston [1st Dist.] Apr. 20, 2021, no pet.).

A codicil that contains a sufficient reference to a prior will operates as a republication of the will as much as the codicil does not alter or revoke it.

Id at *5.

“Like formalities” means “under the formalities required to establish a valid will.” Wells v. Royall Nat’l Bank, 249 S.W.2d 695, 698 (Tex. App.—Galveston 1952, writ ref’d n.r.e.). It “does not mean that a typewritten, attested will can be revoked only by a later typewritten, attested instrument, or that a holographic will can be revoked only by a later holographic instrument.” Cason v. Taylor, 51 S.W.3d 397, 410–11 (Tex. App.—Waco 2001, no pet.). “A holographic will can revoke an attested will, and vice versa, so long as the revoking instrument is in accordance with the legal requirements.

Id at *5.

To be valid, a holographic will must be wholly written in the testator’s handwriting and signed by the testator. TEX. EST. CODE ANN. § 251.052.

Id at *5.

The record supports the trial court’s finding that the 2016 codicil meets these requirements. Miller, [Sharon] Reed, and Allan all testified that they watched as Billy Joe wrote and signed the codicil.

Id at *6.

Conclusion. It appears that the court reached the just result  in this case. However, the problems that arose could have probably been avoided if the Decedent had requested his attorney to draft a new formal will in 2016. Simple estate planning is relatively inexpensive and well worth the peace of mind it will give your rightful heirs, when it comes time for them to probate your estate.

Introduction. A property owner must file a certificate of merit with its construction defect lawsuit based upon errors or omissions committed by architects or engineers. The failure to do so as required by Chapter 150 of  the Texas Civil Practices & Remedies Code will result in dismissal of the lawsuit. In Res. Planning Associates, LLC v. Sea Scout Base Galveston & Point Glass, LLC, the Houston Court of Appeals upheld the trial court’s determination that the specifics of the certificate of merit filed by the property owner satisfied the requirements of the statute. [No. 01-19-0065-CV; 2021 WL 1375797 (Tex.App.–Houston [1st Dist.] Apr. 13, 2021, pet. Denied)].

Background and Analysis. SSBG, a non-profit corporation, spent $44,000,000 constructing a 60,0000 square foot building that housed dormitory and community rooms. SSBG retained JWC to construct the building and RPA to be the principal architect who in turn retained architect Shipley and engineer Paul. SSBG filed a lawsuit against RPA, Shipley and Paul, alleging that they were responsible for numerous construction defects.

The construction defects included a leaking and cracked roof, interior water damage, deterioration of the exterior, lighting deficiencies, and cracks in the flooring. The causes of action alleged against these Defendants were based upon negligence, breach of warranty, breach of contract, and misrepresentation. SSBG timely filed its certificate of merit or affidavit addressing the errors and omissions committed by these Defendants. The Defendants filed a motion to dismiss the lawsuit against them on the grounds that the  certificate of merit wasn’t specific enough to comply with the governing statute. The trial court denied the motion and Defendants appealed.

Tex. Civ. Prac. & Rem. Code § 150.002, of the certificate of merit statute, states:

“The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.”

Stated generally, a certificate of merit is a sworn written statement certifying that the defendant’s actions were negligent or erroneous and stating the factual basis for the opinion. CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 346 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The function of a certificate of merit is to provide a “substantive hurdle that helps ensure frivolous claims are expeditiously discharged.”

Res. Planning Associates, LLC v. Sea Scout Base Galveston & Point Glass, supra,  at *5.

In addressing whether the affidavit was sufficient, the Houston Court of Appeals stated:

The Texas Supreme Court has held that the language, “for each theory of recovery for which damages are sought,” in section 150.002(b) simply clarifies the statute’s application to any action arising out of the provision of professional services, regardless of legal theory, and does not enlarge the factual-basis requirement to include the various elements of each underlying theory that the plaintiff alleges.5 Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 894–95 (Tex. 2017). The statute’s applicability is not limited to professional-negligence claims. Id. at 894. And, section 150.002(b) does not require that the expert’s affidavit address the elements of the plaintiff’s various legal theories or causes of action. Id. at 896. Rather, the statute “obligates the plaintiff to get an affidavit from a third-party expert attesting to the defendant’s professional errors or omissions and their factual basis.” Id. The trial court then determines whether the expert’s affidavit sufficiently demonstrates that the complaint is not frivolous. Id.

Res. Planning Associates, LLC v. Sea Scout Base Galveston & Point Glass, supra,  at *6.

The Houston Court of Appeals went on to hold that the certificate of merit affidavit met the sufficiency standards set forth in the statute as interpreted by the Texas Supreme Court. Here, the expert stated in his affidavit that he reviewed the construction documents and conditions of SSBG’s building; identified and described the construction defects; articulated noncompliance with building codes and deficiencies in the shop drawings; described the failure of the Defendant architects and engineer to use ordinary care in performing their duties; and set forth the Defendants’ errors and omissions.

The Court of Appeals reemphasized that the function of the certificate of merit is to weed out frivolous claims. The Court held that the trial court  did not abuse its discretion in denying the Defendants motions to dismiss SSBG’s claims.

Conclusion. A property owner must timely file a qualified expert’s certificate of merit with its lawsuit based upon errors and omissions committed by architects or engineers. Otherwise, the lawsuit will be dismissed. The primary purpose of the statute is to weed out frivolous claims. However, the statute does not require the certificate of merit to address all the elements of the property owner’s various causes of action. It only requires that the property owner obtain an affidavit from an expert addressing the errors or omissions committed by the architects or engineers. “The trial court then determines whether the expert’s affidavit sufficiently demonstrates that the complaint is  not frivolous.” Id at *6.

The Los Compadres case, decided by the Supreme Court of TX (SCOTX), addresses Chapter 95 of the Texas Civil Practices & Remedies Code. This important statute sets the minimum criteria that must be met to hold a property owner liable for injuries sustained by a contractor’s employee performing construction work on the property owner’s premises. The contractor’s injured employee must show that the property owner exercised or retained some control over the work being performed by the contractor, had actual knowledge of the condition that caused the employee to be injured, and failed to provide adequate warning. Tex. Civ. Prac. & Rem. Code § 95.003. In this case SCOTX found that sufficient evidence supported the jury award against the property owner who failed to adequately warn its contractor’s employees who sustained electrical shock injuries caused by a live power line.  Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 781 (Tex. 2021), reh’g denied (June 11, 2021).

Background and Analysis. Property owner, Los Compadres Pescadores, LLC, employed Torres to act as its project manager to build a 4-unit condominium complex. Los Compadres hired independent contractor, Luis Paredes, Jr. d/b/a Paredes Power Drilling, to construct the pilings that had to be buried deep into the ground. AEP TX Central Co. owned the high-voltage power line that hung over the back part of Los Compadres’s property.

Torres initially told Paredes that he would contact AEP to do something about the power line.  Torres instructed Paredes to start working on the front part of the property. Paredes warned his crew to stay away from the power line. On the second day of construction, Torres told Paredes that the power line was still energized. On the third day, Torres told Paredes that the power line would not be de-energized but to continue drilling to install the pilings. As Paredes and two of his crew members were lifting rebar to place it into concrete, one end of the rebar contacted the live power line.

The electricity shot down the rebar, threw the men off their feet, briefly knocked them unconscious, and caused burns to their hands and feet.

Id at * 778.

As a result, the two crew members  filed a lawsuit including against Paredes. After the jury found in favor of the crew members, the trial court entered judgment based upon the verdict. The judgment was affirmed on appeal. Las Compadres filed a petition for review with SCOTX on grounds which included that the evidence was insufficient, under Chapter 95 of the Texas Civil Practices & Remedies Code, to support the jury’s verdict.

SCOTX agreed with Los Compadres that Chapter 95 applied. As a result, the crew members were required to prove that Los Compadres exercised some control over the work being performed, knew about the dangerous condition created by the power line, and failed to warn the crew members about this dangerous condition.

SCOTX found that there was sufficient evidence to prove this. This evidence included that:

  1. Los Compadres’s employee and superintendent, Torres, hired Paredes to perform the work.
  2. Torres instructed Paredes on the performance of the work.
  3. Torres controlled the work that led to the accident because he initially instructed Paredes to work from the front of the property and later told him to work on back of the property even though Torres knew the power line remained energized.
  4. The dangerous condition was not open and obvious to the two injured crew members because they did not know the line was energized.

Lessons learned. A property owner should make sure that its construction contracts do not contain language giving it the right to control the performance of the work to be performed by its contractors. Further, the property owner’s employees should refrain from instructing contractors on how to perform their construction work. Last but not least, dangerous conditions on the property should be corrected before any construction work begins.

Introduction. Doing business with a governmental entity can be tricky business because of the doctrine of governmental immunity. If this doctrine applies, the governmental entity may escape liability for harm it causes to others. Recently, the City of Carrolton  filed a plea to the jurisdiction claiming that it was immune from a lawsuit filed by Weir Brothers Contracting, LLC for unpaid grading work that amounted to over seven hundred thousand dollars. The Dallas District Court denied the City’s plea because it found that the City was engaged in performing proprietary rather than governmental functions. See City Carrollton v. Weir Bros. Contracting, LLC, No. 05-20-00714-CV, 2021 WL 1084554 (Tex. App.—Dallas Mar. 22, 2021, pet. denied).

Background and analysis. The City published a proposal for the lease or sale of 38 acres. The bid criteria included price, property use, financing, bidder experience and how the proposed project would enhance the McInnis Sports Complex. The City signed a lease agreement with Blue Sky Sports Center of Carrolton, LP.  Under the lease, Blue Sky would lease 30 acres of the property to “operate a multi-use sports, recreational, entertainment, and related service facility.” Id at *1.

On July 13, 2016, the City entered into a contract with AJI to grade a 41.94-acre tract that included the 30 acres leased to Blue Sky. In exchange, AJI would receive approximately 6 acres of the tract. In turn, AJI hired Weir Brothers Contracting, LLC to perform the grading, and, for its part, Weir would receive an interest in the 6 acres. Weir began the grading in February 2017 and in March encountered a capped landfill. The City issued an order to stop work until the problem could be remediated. Subsequently, the City terminated its agreement with AJI on the grounds that AJI failed to complete the grading working within 90 days. A couple of months later the city hired Blue Sky’s general contractor to finish the grading.

On October 20, 2017, Weir submitted an invoice to the City in the amount of $728,270 for work performed. The City refused to pay and terminated its contract with AJI. Weir obtained an assignment of all claims that AJI had against the City. Weir sued the City for breach of contract, quantum meruit, promissory estoppel, and tortious interference with a contract. The City filed a plea to the jurisdiction contending it was immune from the lawsuit under the governmental immunity doctrine. The trial court denied the plea and the City appealed.

The Dallas Court of Appeals explained that a municipality like the City exercises its powers through governmental and proprietary roles. Governmental immunity protects a City from suit based on the performance of a governmental function. However, it does not protect the City when performing a proprietary function. Here, the City was performing a proprietary function by engaging in the preparation and leasing of real property for the tenant’s use. The leasing of property is not a function that falls under the statutory definition of a governmental function.

Furthermore, the record shows that the City’s decision to lease the land was a discretionary act conducted on the City’s own behalf primarily for the benefit of its residents.

Id at *5.

Conclusion. The Court of Appeals concluded that the City’s actions were proprietary. Therefore, the City was not protected by the Governmental immunity doctrine.  As can be seen from this case, conducting business with a governmental entity can be risky business. If the Court had found that the governmental immunity doctrine applied, then the City would have been immune from the lawsuit and shielded from liability for payment of the grading work.

Introduction. A couple of years ago this blog discussed the construction defect case,  Pleasant Grove Indep. Sch. Dist. v. FieldTurf USA, Inc., in which the Pleasant Grove Independent School District sued its general contractor, Altech, Inc., and the manufacturer, FieldTurf USA, Inc., in connection with the installation of  a defective artificial turf system as part of in the construction of Pleasant Grove’s new football stadium. 06-19-00022-CV, 2020 WL 1646633, at *1 (Tex. App.—Texarkana Apr. 3, 2020, no pet. h.). The trial court granted  Altech’s motion for summary judgment dismissing Pleasant Grove’s claims against Altech. The case proceeded to trial only on Pleasant Grove’s claims for breach of warranty against FieldTurf, and the jury awarded $175,000 in favor of Pleasant Grove. On appeal, the Court of Appeals reversed the summary judgment rendered in favor of Altech and remanded the case for a new trial of Pleasant Grove’s breach of warranty/contract claims against both Altech and FieldTurf. The appeal has finally made its way to the Supreme Court of Texas (SCOTX). This article discusses the decision by SCOTX to reverse the Court of Appeals and uphold the trial court’s summary judgment in favor of Altech.  See FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 830 (Tex.2022).

Background. In 2008, Pleasant Grove retained Altech as its general contractor to build a new high school football stadium with an artificial turf field. Altech’s subcontractor installed the Prestige XM-60 turf system manufactured by FieldTurf. The artificial turf was installed in 2009, and FieldTurf expressly warranted, for 8 years, that if the height of the artificial turf decreased by 50% or more, during normal and ordinary use, FieldTurf would repair or replace the defective turf.

Altech warranted in its contract with Pleasant Grove that its work would be free from defects not “inherent in the quality permitted and that the Work will conform to the requirements of the Contract documents.” Those requirements included that the shock pad would meet the following criteria:

  1. G-Max rating range 80-120, ASTM F355;
  2. G-Max Range 100-140 ASTM F355; and
  3. Field surface G-Max within the above rages for the life of the synthetic turf system warranty.

FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 831-832(Tex. 2022).

In 2014, Pleasant Grove notified FieldTurf of significant problems with the turf and demanded that the turf be replaced under the warranty. FieldTurf offered to perform a “LayMor Scrape” to remove some of the rubber infill at the base of the fibers to expose more of the fibers. Pleasant Grove rejected this offer and filed suit against both Altech and FieldTurf.

Before the case proceeded to trial, both Altech and FieldTurf filed motions for summary judgment with the trial court. Altech requested that the trial court enter a total summary judgment as a matter of law in its favor, and the trial court granted the motion. Field Turf requested the trial to enter a partial summary judgment in its favor on Pleasant Grove’s fraud claims only, and the trial court granted the motion. The case proceeded to jury trial on Pleasant Grove’s breach of warranty claims against FieldTurf. The jury returned a verdict in the amount of $175,000 in Pleasant Grove’s favor. On appeal, the Court of Appeals overturned the trial court’s order granting summary judgment in favor of Altech and remanded the case to the trial court for a new trial. The parties filed a petition for SCOTX to review  the decision by the Court of Appeals. The primary substantive issue addressed by SCOTX pertained to the Court of Appeals overturning the summary judgment in favor of Altech.

Legal analysis. The basis of Altech’s traditional and no-evidence motion for summary judgment was that it  “played no role in selecting the allegedly defective turf product—[Pleasant Grove] chose the Prestige XM-60 and approved it as being compliant with the construction specifications—and that Altech made no guarantee or warranty that the product would be free from inherent defects or other defects permitted by the contract documents.” Id at 833.  Pleasant Grove responded that the contract did not exempt Altech from liability for inherent defects and it imposed liability upon Altech for the acts of downstream contractors. Further, the turf of the football field did not conform to the contract documents in that it “failed to maintain a G-Max rating less that 140 through its first eight years.” Id at 833. In support of this, Pleasant Grove attached a report from its expert to its summary judgment response “indicating an average field G-Max rating of 166.5 and individual results between 143.6 and 188.4, all exceeding the contractually mandated maximum of 140.” Id at 832–833.

Altech objected to the expert report because it (1) failed to document that proper testing had been done or that the testing device was calibrated, and (2) Pleasant Grove failed to properly authenticate the report. Further, Altech contended that Pleasant Grove spoliated evidence by removing the turf from the football field before Altech had the opportunity to inspect and test it. At the summary judgment hearing, the trial court stated on the record that it was sustaining the objection, granting the summary judgment motion, and dismissing Pleasant Grove’s claims against  Altech with prejudice. The trial court subsequently signed a written order granting the summary judgment and dismissing Pleasant Grove’s claims against Altech with prejudice. However the written summary judgment order did not state that the trial court sustained Altech’s Grove’s objection to the expert report.

The Court of Appeals determined that, since the trial court’s ruling sustaining Altech’s objections was not included in a written order, the ruling should not be considered. Therefore, the expert report was part of the summary judgment evidence presented by Pleasant Grove in support of its claims against Altech. As a result, the trial court erred in entering the summary judgment dismissing Pleasant Grove’s claims against Altech.  In reviewing the decision by the Court of Appeals, SCOTX held that the trial court’s ruling did not need to be included in a written order since it was already recorded in the Court Reporter’s record of the summary judgment hearing. Thus, it was the Court of Appeals who erred in relying on this report to  overturn the trial court’s summary judgment . As a result, SCOTX reversed the Court of Appeals decision and upheld the trial court’s summary judgment order dismissing Pleasant Grove’s claims against Altech.

Conclusion. As can be seen from this case, construction defect disputes are often highly technical. Thus, at some point, the plaintiff will be required to present competent expert witness reports and testimony to support its claims. Otherwise, the plaintiff’s claims, like  those of Pleasant Grove, will be dismissed before the case is ever presented at trial to a judge or jury.