Background

• Velasco contracted Cajun to expand a Brazoria County pump station for about $12.97M; Cajun subcontracted installation to Louisiana Crane; Velasco withheld $206,250 in liquidated damages after late substantial completion; Cajun sued Velasco and earlier sued Louisiana Crane and Patterson for related claims; Velasco moved for summary judgment asserting Cajun failed to meet contract notice prerequisites; a jury later awarded Velasco attorney’s fees; trial court granted severance for Velasco’s fee award and entered judgment for fees; Cajun appeals.
• Cajun alleged (i) failure to comply with the contract’s notice provisions or raise a fact issue, (ii) the notice provisions are void, and (iii) quantum meruit was improperly dismissed; Velasco claimed entitlement to summary judgment on notice and related contract defenses, and sought recovery of attorney’s fees; Cajun argued that some notice could be satisfied via email and that section 9.09(B) provided a conditioning precedent, not the 10.05 notice requirements.
• The appellate court conducted a de novo review of the summary judgment and held that Cajun did not satisfy section 10.05 notice requirements, particularly failing to notify of intent to appeal; the court treated the notice provision as a condition precedent to suit and affirmed the summary judgment on Cajun’s contract claims; the court also addressed attorney’s fees, holding that segregation was not required because the claims and defenses relied on the same facts and documents.
• The court concluded that Cajun’s preservation failures foreclose its challenge to the voiding of the notice provisions and the quantum meruit dismissal; it further held that Velasco was not required to segregate its fees where recoverable and unrecoverable work overlapped.
• The final judgment affirmed Velasco’s contract-claims victory and the attorney’s fees award, with severance of the fee issues from the main contract dispute.

Issues

Key Cases Cited

• Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary-judgment standards; de novo review in contract disputes)
• Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546 (Tex. 1985) (summary-judgment burdens and reviewing evidence for nonmovants)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (proper grounds for affirming when judgment silent on grounds)
• M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (contract-interpretation and burden on movant in summary judgment)
• Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276 (Tex. 1998) (conditions precedent and bar to recovery if not satisfied)
• Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945 (Tex. 1990) (construction of conditional language creating a condition precedent)
• T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Ass’n, 162 S.W.3d 564 (Tex. App.—Houston [14th Dist.] 2004) (conditioning language and court repudiation of ignoring plain contract terms)
• Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex. 1976) (conditions precedent to liability and performance)
• CDI Eng’g Group, Inc. v. Admin. Exch., Inc., 222 S.W.3d 544 (Tex. App.—Houston [14th Dist.] 2007) (contractual notice and conditions precedent)
• Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (attorney’s fees; segregation when necessary)
• 7979 Airport Garage, L.L.C. v. Dollar Rent a Car Sys., Inc., 245 S.W.3d 488 (Tex. App.—Houston [14th Dist.] 2007) (fee issues intertwined; no segregation required)