City of San Antonio, Acting by and Through City Public Service Board ("CPS Energy") v. Tommy Harral Construction, Inc.
04-15-00286-CV
| Tex. App. | Aug 5, 2015Background
- CPS Energy sued Tommy Harral Construction, Inc. (Harral) for damage to underground utility facilities caused by Harral’s excavation work on April 9, 2008.
- The general contractor on the project, RTM Construction Co., Inc., timely provided a pre‑dig notification to locate underground facilities.
- CPS Energy moved for summary judgment under the Texas Utilities Code, arguing the excavator (Harral) failed to give required notice and thus was not entitled to statutory protections.
- The trial court denied CPS Energy’s motion for partial summary judgment on the statutory notice issue; CPS obtained permission to bring an interlocutory appeal of that denial.
- Harral’s position (as appellee) is that contractual privity/agency between the general contractor and subcontractor allows the subcontractor to rely on the general contractor’s notice so the statutory notice requirement was satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a subcontractor must independently give pre‑dig notice under the Texas Utilities Code, or may rely on a general contractor’s notice | The Code’s notice duty applies to the person who will excavate; a subcontractor performing the digging must give its own notice to ensure compliance and allocate risk clearly | A subcontractor may rely on the general contractor’s timely notice because contractual privity (and principal/agent relationship) permits reliance and satisfies the statute | Trial court denied CPS Energy’s partial SJ, holding that the subcontractor could rely on the general contractor’s notice (i.e., GC’s notice can satisfy the statutory requirement) |
Key Cases Cited
- F.F.P. Operating Partners L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007) (statutory construction principles)
- First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008) (de novo review of statutory interpretation)
- R.R. Comm’n of Tex. v. Tex. Citizens for Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) (construction of statute is a question of law reviewed de novo)
- Clark’s‑Gamble, Inc. v. State, 486 S.W.2d 840 (Tex. Civ. App. — Amarillo 1972) (writ ref’d n.r.e.) (discussion of agency/authority principles)