Supreme Court of Texas

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No. 20-0079

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James Construction Group, LLC and Primoris Services 

Corporation,

Petitioners,

v.

Westlake Chemical Corporation, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

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JUSTICE BOYD, joined by Justice Blacklock and Justice Huddle, 

dissenting in part. 

I agree with the Court that substantial compliance can satisfy a 

written-notice requirement but oral notice cannot constitute substantial 

compliance. I also agree that Westlake cannot recover the costs it 

incurred when it replaced James because its oral notice failed to 

substantially comply with the contract’s written-notice requirement and 

the contract did not otherwise entitle Westlake to recover those costs. 

But I conclude that the parties’ agreement that “no claim shall be made” 

for consequential damages constitutes a covenant not to sue for such 
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damages. Because I would reverse the court of appeals’ holding as to the 

consequential-damages provision, I respectfully dissent in part.

The contract plainly stated that neither party “shall be liable to 

the other for any consequential . . . damages . . . and no claim shall be 

made by either [party] for such damages.” [Emphasis added.] The Court 

gives undue weight to the contractual language explicitly forbidding 

claims for consequential damages being “an independent clause.” Ante

at ___. This grammatically inconsequential detail pales in comparison 

to the binding power of the conjunctive “and,” which links the waiver of 

consequential damages to the covenant not to sue for such damages, 

ensuring both are valid, independently enforceable provisions.

The Court’s rationales for its interpretation are unpersuasive. Its 

premier argument relies on the title of the contract section at issue 

(“Waiver of Consequential Damages”), ante at ___, and disregards the 

fact that the substantive text of the section clearly records the parties’ 

more expansive intent. See Enter. Leasing Co. of Hous. v. Barrios, 156 

S.W.3d 547, 549 (Tex. 2004) (“Although we recognize that in certain 

cases, courts may consider the title of a contract provision or section to 

interpret a contract, ‘the greater weight must be given to the operative 

contractual clauses of the agreement.’” (quoting Neece v. A.A.A. Realty 

Co., 322 S.W.2d 597, 600 (Tex. 1959))). The contract spells out the 

parties’ agreement to both waive consequential damages and covenant 

not to sue for such damages. And if the section’s title does not fully 

capture this manifestation of intent, the contract’s text must 

nevertheless control. The difference between these provisions is 

paramount because the mutual waiver of consequential damages simply 
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bars recovery, while the promise not to sue constitutes a covenant that, 

if breached, enables the other party to recoup its costs incurred in 

defending that suit. These provisions are not duplicative, as the Court’s 

reading would ensure; rather, they accomplish different goals and avoid 

surplusage and superfluity. 

The Court attempts to rely on the distinction between a “claim” 

and a “suit,” asserting that relinquishing “a claim to any consequential 

damages to which [the parties] may be entitled in the event of a lawsuit” 

is not the same as relinquishing “the right to bring a suit in the first 

place.” Ante at ___. But the contract bars both collecting consequential 

damages and making a claim for such damages. Westlake breached the 

contract when it asserted a claim against James for consequential 

damages.

Finally, the Court errs by depending on the somewhat 

unpredictable line between direct and consequential damages, arguing 

that because a court might ultimately categorize damages as 

consequential when a party believed them to be direct, the contract here 

could not have barred suit for consequential damages. Ante at ___. But 

Westlake’s subjective belief that the damages it sought were direct, 

rather than consequential, was subject to judicial review and 

interpretation. To whatever extent judicial characterization of damages 

as direct or consequential impeded Westlake’s ability to safely predict 

whether it was violating a covenant when it sued James, that does not 

alter the contract’s plain language. Whether it knew or not, Westlake 

was suing for consequential damages, which its contract 

straightforwardly forbids.
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Because Westlake breached the contract’s covenant not to sue for 

consequential damages, I would reverse the court of appeals’ contrary 

holding and reinstate the jury’s award of the attorney’s fees James 

incurred in defending against Westlake’s claims for consequential 

damages. Because the Court does not, I respectfully dissent.

Jeffrey S. Boyd

Justice

OPINION DELIVERED: May 20, 2022