ACCEPTED
04-15-00286-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
8/5/2015 2:47:51 PM
KEITH HOTTLE
CLERK
No. 04-15-00286-CV
IN THE COURT OF APPEALS FILED IN
4th COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS- SAN ANTONIO, TEXAS
SAn Antonio, TEXAS 08/05/15 2:47:51 PM
KEITH E. HOTTLE
Clerk
CITY OF SAN ANTONIO, ACTING BY AND THROUGH CITY PUBLIC 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)
AMENDED BRIEF OF APPELLEE
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.
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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
RECORD CITATIONS
For the ease of reference, citations to the Clerk’s Record will be [R at page
number] and citations to the Clerk’s Supplemental Record will be [SR at page number].
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Contents
IDENTITY OF PARTIES AND COUNSEL ...................................................................... 2
RECORD CITATIONS ....................................................................................................... 2
TABLE OF AUTHORITIES ............................................................................................... 4
STATEMENT OF THE CASE ........................................................................................... 5
STATEMENT REGARDING ORAL ARGUMENT ......................................................... 6
APPELLANT’S ISSUE PRESENTED ............................................................................... 6
APPELLEE’S RESPONSE TO APPELLANT’S ISSUE PRESENTED ........................... 6
STATEMENT OF FACTS .................................................................................................. 7
STANDARD OF REVIEW ................................................................................................. 7
ARGUMENT....................................................................................................................... 8
CONCLUSION ................................................................................................................. 10
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TABLE OF AUTHORITIES
Page(s)
CASES
F.F.P. Operating Partners L.P. v. Duenez,
237 S.W.3d 680 (Tex. 2007) ................................................................................ 7
First Am. Title Ins. Co. v. Combs,
258 S.W.3d 627 (Tex. 2008) ................................................................................ 7
R.R. Comm’n of Tex. v. Tex. Citizens for Safe Future & Clean Water,
336 S.W.3d 619 (Tex. 2011) ................................................................................ 7
Clark’s-Gamble, Inc. v. State,
486 S.W.2d 840, 845 (Tex. Civ. App. – Amarillo 1972, writ ref’d n.r.e.) ................... 9
STATUTES
Tex. Util. Code § 251.002 ....................................................................................... 10
Tex. Util. Code § 251.151 ........................................................................................ 10
Tex. Util. Code § 251.157 .......................................................................................... 8
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STATEMENT OF THE CASE
The Underlying Proceeding: This lawsuit was initiated by Appellant City of San
Antonio, acting by and through City Public Service Board (“CPS Energy”), against
Tommy Harral Construction, Inc. (“Harral”) to recover for damages to CPS Energy
facilities and equipment caused by alleged Harral’s negligence while excavating. [R at
37–40].
The Course of the Proceedings: CPS Energy moved for summary judgment
against Harral under the Texas Utilities Code because it damaged CPS Energy property
while excavating and allegedly had not properly requested location of underground
property prior to digging. [R at 9–30]. This motion was granted, and then the summary
judgment was reversed by the trial court upon Appellee’s Motion for New Trial. [R at 4–
7]. After this reversal, CPS Energy filed its First Amended Petition seeking declaratory
relief concerning interpretation of an excavator’s obligations under the Texas Utilities
Code and moved for partial summary judgment on that issue. [R at 37–40]. When that
partial summary judgment was denied, this appeal ensued. [R at 58–60].
Trial Court’s Disposition From Which Relief is Sought: On April 23, 2015, Judge
Jason Wolff signed the First Amended Order Denying Plaintiff’s Motion for Partial
Summary Judgment (the “Order”). (App. A). [R at 58–60]. It is this interlocutory Order
that CPS Energy appeals.
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Permissive Appeal of Interlocutory Order Granted by This Court: On May 27,
2015, this Court granted CPS Energy’s Petition for Permission to Appeal from an
Interlocutory Order. [R at 64].
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
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.
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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. [SR at 29 – 31].
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.
[SR 25 – 26 and SR 73 – 11].
STANDARD OF REVIEW
The Order at the center of this appeal is a denial of a declaratory summary
judgment premised on interpretation of the duties of excavators under Section 251 of the
Texas Utilities Code. Because the construction of a statute is a question of law, this
Court reviews the Order de novo. R.R. Comm’n of Tex. v. Tex. Citizens for Safe Future
& Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) (“The construction of a statute is a
question of law we review de novo.”); see also First Am. Title Ins. Co. v. Combs, 258
S.W.3d 627, 631 (Tex. 2008); F.F.P. Operating Partners L.P. v. Duenez, 237 S.W.3d 680,
683 (Tex. 2007).
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ARGUMENT
Appellant states that The Utilities Code expressly provides guidance and
definitions concerning pre-dig obligations of excavators and mandates that those who use
equipment to dig or excavate a site provide notice within a specified period before
digging. If such notice is given, the statute shields the excavator from liability for
damages caused in the course of the excavation. On the other hand, if notice is not given,
there is no such immunity from liability and the owner of the underground property has a
claim for damages caused by the excavation. Tex. Util. Code § 251.157(d).
Appellant argues that the scope of those who can provide the statutorily mandated
notice beyond the individual or entity that actually performs the excavation not only runs
afoul of the provisions of the Utilities Code but also interjects uncertainty and risk to
underground property owners and excavators alike. Appellee respectfully disagrees.
Appellant argues that the safest result is to place the responsibility of compliance
with the notification process with the “person” (as defined by the Code Construction Act)
that will dig. Appellant goes to state that in each instance, before digging, an employee
can check with his employer who will know whether that employer has provided notice
or not. Because that employer will bear the risk of noncompliance (both via liability to
the property owner and to the employee in the event of injury), there is a greater incentive
for compliance.
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
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independent notice. [SR 25 – 26 and SR 73 – 11]. 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. Furthermore, in the instant situation the
general contractor would be considered the principal and the subcontractor its agent and
the subcontractor acted on express authority from the general contractor. Express
authority arises from the principal’s agreement that the agent act on the principal’s behalf
and for his benefit. Clark’s-Gamble, Inc. v. State, 486 S.W.2d 840, 845 (Tex. Civ. App. –
Amarillo 1972, writ ref’d n.r.e.). 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 (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. [SR 25 – 26 and SR 73 – 11], 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.
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Tex. Util. Code § 251.151(a) and Tex. Util. Code § 251.002(5), (6). 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
AFFIRM the trial court’s Order denying Appellant, CPS Energy’s Motion for Partial
Summary Judgment and to remand this cause to the trial court for further proceedings
consistent with the Court’s ruling. Appellee, Tommy Harral Construction, Inc. further
prays that this Court grant it such other and further relief, both general and special, at law
or in equity, to which it is justly entitled.
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
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CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word
2010 and contains 1238 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 August 5, 2015, I served a copy of the foregoing Amended Brief
of Appellee 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
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