City of San Antonio, Acting by and Through City Public Service Board ("CPS Energy") v. Tommy Harral Construction, Inc.

• Court: Court of Appeals of Texas
• Decided: May 18, 2015
• Docket: 04-15-00286-CV
• Status: Published

Opinion

ACCEPTED 04-15-00286-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/18/2015 7:55:22 AM KEITH HOTTLE CLERK No. 04-15-00286-CV

IN THE COURT OF APPEALS FILED IN FOR THE FOURTH DISTRICT OF TEXAS-4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 5/18/2015 7:55:22 AM KEITH E. HOTTLE CITY OF SAN ANTONIO, ACTING BY AND THROUGH CITY PUBLIC Clerk SERVICE BOARD (“CPS ENERGY”), Appellant, v. TOMMY HARRAL CONSTRUCTION, INC., Appellee.

Appeal from the County Court at Law Court No. 2 of Bexar County (Honorable Jason Wolff, Presiding)

APPELLEE’S RESPONSE TO APPELLANT’S PETITION FOR PERMISSION TO APPEAL FIRST AMENDED ORDER DENYING PLAINTIFF’S MOTION OF PARTIAL SUMMARY JUDGMENT

M. Chad Williams Appellee State Bar No. 24072425 willm161@nationwide.com LAW OFFICE OF MARK E. MACIAS 1100 N.W. Loop 410, Suite 370 San Antonio, Texas 78213 (210) 949-0166 (855) 949-1338 Fax

ATTORNEY FOR APPELLEE TOMMY HARRAL CONSTRUCTION, INC.

1 IDENTITY OF PARTIES AND COUNSEL

1. Appellant/Plaintiff in the trial court:

City of San Antonio, acting by and through City Public Service Board (“CPS Energy”)

2. Counsel for Appellant:

Matthew E. Vandenberg Melodee L. Gruber Jeffrey T. Harvey JACKSON WALKER L.L.P. 112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205

3. Appellees/Defendants in trial court:

Tommy Harral Construction, Inc.

4. Counsel for Appellee:

M. Chad Williams LAW OFFICE OF MARK E. MACIAS 1100 Northwest Loop 410, Suite 370 San Antonio, Texas 78213-2200

2 TABLE OF CONTENTS

APPELLANT’S ISSUE PRESENTED ............................................................................... 2 APPELLEE’S RESPONSE TO APPELLANT’S ISSUE PRESENTED ........................... 2 STATEMENT OF FACTS .................................................................................................. 3 ARGUMENT....................................................................................................................... 4 CONCLUSION ................................................................................................................... 5 CERTIFICATE OF COMPLIANCE .................................................................................. 6 CERTIFICATE OF SERVICE ............................................................................................ 6

1 APPELLANT’S ISSUE PRESENTED

The Texas Utilities Code requires that “any person who excavates or intends to

excavate” must comply with certain notice requirements prior to excavating. In light of

the applicable definition of “person” from the Government Code, did the trial court err in

ruling that, as a matter of law, the excavation notice of a general contractor satisfies the

notification requirement of a subcontractor that is an entity separate and apart from the

contractor?

APPELLEE’S RESPONSE TO APPELLANT’S ISSUE PRESENTED

1. The trial court did not err in ruling that, as a matter if law, the excavation notice of a general contractor satisfies the notification requirement of a subcontractor because there is contractual privity between the general contractor and the subcontractor that allows the subcontractor to rely on the general contractor’s satisfaction of the notice obligation.

2 STATEMENT OF FACTS

On April 9, 2008, while excavating as part of a construction project related to the

Vistana Apartment Complex, an employee of Tommy Harral Construction, Inc. caused

damage to underground equipment owned by CPS Energy.

An employee of RTM Construction Co., Inc., the general contractor of the project

where the excavation took place, timely provided notification of its intention to excavate.

CPS Energy timely filed suit against Tommy Harral Construction, Inc.

CPS Energy filed a Motion for Partial Summary Judgment as to its declaratory

judgment action asking the trial court to interpret that the provisions of the Utilities Code

and Administrative Code require a “person” as that term is defined in the Code

Construction Act to provide timely notice of the intent to excavate.

The trial court denied CPS Energy’s Motion for Partial Summary Judgment,

prompting CPS Energy to file a Request for Permission to File Interlocutory Appeal.

Following a hearing, the trial court granted the request to appeal and, on April 23, 2015,

the court entered a First Amended Order Denying CPS Energy’s Motion for Partial

Summary Judgment (the “Order”) which included permission for CPS to petition this

Court for leave to file an interlocutory appeal. In the Order, the trial court ruled that a

controlling question of law as to which there is a substantial ground for a difference of

opinion was at issue and that an immediate appeal of the Order might materially advance

the termination of the litigation. It is this Order, and the alleged controlling issue of law

3 implicated therein that CPS Energy now seeks leave to appeal to this Court.

ARGUMENT

Appellant contends that the issue to be appealed involves a controlling question of

law in the case. Appellee respectfully disagrees and asserts the issue is a question of fact

that should be left up to the jury to ultimately decide. At the trial court level

Appellant/Plaintiff is alleging liability against Appellee/Defendant under the theories of

Negligence and Trespass. As conceded by Appellant, there is substantial ground for

difference of opinion in that each party has advanced exact opposite positions on whether

or not Appellee/Defendant’s reliance on a General Contractor, and/or an employee of The

City of San Antonio, and/or an employee of CPS and/or other entity regarding a “dig

notification” is justifiable. Therefore, Appellee/Defendant contends that this issue is a

question of fact that should be left up to the jury to ultimately decide.

Appellee argues that because a general contractor company had satisfied the notice

obligations of the Utilities Code, Appellee was not under any obligation to provide

independent notice. In support of this argument, Appellee reasons that, because “a

person” intending to excavate had provided notice, the statute’s requirements had been

satisfied because there is contractual privity between the general contractor and the

subcontractor that allows the subcontractor to rely on the general contractor’s satisfaction

of the notice obligation. Subcontractors are hired to do specific jobs and/or tasks. When

they are hired to do certain jobs and/or tasks, subcontractors rely and depend on their

general contractor to provide certain services. In the instant case the general contractor 4 (RTM Construction Co., Inc.) timely requested and provided “dig notifications” of its

intention to excavate for the purpose of the work being done under the contract between

Appellee/Tommy Harral Construction, Inc. and RTM Construction Co., Inc. and

thereafter Appellee/Tommy Harral Construction, Inc. justifiably relied on this fact, along

with the assertions of a CPS crew that was on the job site at the time, that told

Appellee/Tommy Harral Construction, Inc. that CPS had no electric lines in the area

where the work was being done.

Furthermore, the general contractor hired Appellee and clearly would also have

intended to have the site excavated, making the general contractor an “excavator” for

purposes of notifying prior to a dig under the Texas Utilities and Administrative Code.

Accordingly, Appellant is asserting incorrectly that the party actually conducting the

digging is the sole party responsible for notifications prior to digging work.

CONCLUSION

Appellee, Tommy Harral Construction, Inc., respectfully prays that this Court

DENY Appellant, CPS Energy’s Petition for Permission to Appeal Interlocutory Order in

all respects, and grant it such other and further relief, both general and special, at law or

in equity, to which it is justly entitled.

5 Respectfully submitted,

LAW OFFICES OF MARK E. MACIAS /s/ M. Chad Williams State Bar No. 24072725 willm161@nationwide.com 1100 N.W. Loop 410, Suite 370 San Antonio, Texas 78213 (210) 949-0166 (855) 949-1338 – Fax

ATTORNEY FOR APPELLEE

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft

Word 2010 and contains 848 words, as determined by the computer’s word-count

function, excluding the sections of the document listed in Texas Rule of Appellate

Procedure 9.4(i)(1).

/s/ M. Chad Williams M. Chad Williams

CERTIFICATE OF SERVICE

I certify that on May 18, 2015, I served a copy of Appellee’s Response to Appellant’s Petition for Permission to Appeal First Amended Order Denying Plaintiff’s Motion for Partial Summary Judgment on the party listed below by electronic service and that the electronic transmission was reported as complete. My e-mail address is willm161@nationwide.com.

Counsel for Appellant Matthew E. Vandenberg Melodee L. Gruber Jackson Walker, L.L.P. 112 E. Pecan Street, Suite 2400 San Antonio, Texas 78205 /s/ M. Chad Williams M. Chad Williams