ABC Greater Houston Chapter - Build Houston Magazine, June/July 2021

BY AMANDA J . GARZA T he Houston First Cour t of Appeals of Texas recently affirmed a trial court ’s decision wiping out a whopping $17 million claim brought by a contractor against an owner for acceleration costs, holding that the claim was barred by release language contained in a signed contract modification of the type routinely executed by the parties over the course of the project to compensate the contractor for changes to its work. MMR Constructors, Inc. v. Dow Chemical Co. , 2020 WL 7062325 (Tex. App.— Houston [1 st Dist.] Dec. 3, 2020, no pet. h.) illustrates the severe consequences release language can have on a party’s claim, even when embedded in a routine contract modification or change order. MMR Constructors, Inc. v. Dow Chemical Co. involved The Dow Chemical Company’s (“Dow”) Power, Utilities, and Infrastructure Project in Freeport, Texas. Pursuant to a fixed-price contract with Dow, MMR Constructors, Inc. (“MMR”) agreed to provide electrical and instrumentation construction work on the project. Among other things, the contract contemplated that it could be modified to provide additional compensation to MMR in the event that certain changes to MMR’s work caused it to incur costs beyond the agreed contract price. Over the course of the project, the parties executed several contract modifications providing MMR with additional compensation. The last contract modification was executed on May 3, 2017. Each contrac t modification contained the following release language: RELEASES IN CONTRACT MODIFICATIONS AND PRESERVATION OF CLAIMS A CAUTIONARY TALE FOR CONTRACTORS: 18 BuildHoustonOnline.com June/July 2021 LEGAL

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