Construction Defect Journal Archives

Old Case Teaches New Tricks

March 16, 2017
Angela A.L. Connor & Curtis W. Martin - Peckar & Abramson, P.C.

Eight years after completion of the wharf project, Zachry and the Port of Houston continue to slug
it out in the appellate courts and continue to refi ne Texas construction law along the way. In the
latest appellate opinion, the Court of Appeals details the general contractor’s control of the means
and methods of their work without interference from a governmental entity. It also supports a
subcontractor’s use of a pass-through claim as a cost efficient way to recover damages.

By now most of us are familiar with the project and the previous decisions. Zachry sued the Port
claiming breach after the Port denied Zachry the right to continue construction using its frozen
cutoff wall. The Texas Supreme Court upheld the jury’s $20 million verdict for Zachry, ruling that
the Port’s “no damages for delay” clause would not bar Zachry’s claim in light of the Port’s active
interference with Zachry’s work. The Supreme Court then sent the case back to the Court of
Appeals to consider other arguments that the Port had made.

That led to the most recent decision. In December, 2016, the Houston Fourteenth Court of Appeals
ruled in favor of Zachry on all issues and affirmed the jury verdict. In doing so, the Court of Appeals
provides several lessons or reminders on Texas Construction law.

Reprinted courtesy of Angela A.L. Connor, Peckar & Abramson, P.C. and Curtis W. Martin, Peckar & Abramson, P.C.
Ms. Connor may be contacted at aconnor@pecklaw.com
Mr. Martin may be contacted at cmartin@pecklaw.com



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