BMSH I Katy TX, LLC v. Smith Seckman Reid, Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BMSH I KATY TX, LLC, §
§
Plaintiff, §
§
v. § Civil Action No. 4:22-CV-00218
§
SMITH SECKMAN REID, INC., §
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Defendant. §
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the January 6, 2026,1 Report and Recommendation
(“R&R”) prepared by Magistrate Judge Dena Hanovice Palermo. (Dkt. No. 159). Judge
Palermo made findings and conclusions and recommended that Smith Seckman Reid,
Inc.’s (“SSR”) Sealed Motion for Summary Judgment, (Dkt. No. 126), be granted in part,
(Dkt. No. 159). Specifically, Judge Palermo recommended that BMSH I Katy TX, LLC’s
(“BMSH”) claim for professional negligence be dismissed as time-barred. (Dkt. No. 159
at 54).
The Parties received proper notice and the opportunity to object to the R&R. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). On January 21, 2026, Defendant SSR filed eight
objections. (Dkt. No. 161). First, SSR objects that the R&R erroneously overruled its
objections to BMSH’s summary-judgment evidence. (Dkt. No. 161 at 5–7). Second, SSR
1 While the Report and Recommendation was signed on January 6, 2026, it was entered
on January 7, 2026, and the Parties objections were due January 21, 2026. (See Dkt. No. 159).
United States District Court
Southern District of Texas
ENTERED
February 17, 2026
Nathan Ochsner, Clerk
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argues that because BMSH, as Architect’s assignee, failed to allege sufficient injury,
BMSH’s assigned claims for breach of contract, professional negligence, and fraud are
barred. (Id. at 7–8). Third, SSR objects that the R&R should have granted summary
judgment on SSR’s affirmative defense of release. (Id. at 8–13). Fourth, SSR contends that
the Texas anti-fracturing rule applies and that, because the gravamen of BMSH’s claims
sounds in professional negligence, BMSH’s fraud claims fail as a matter of law. (Id. at 14–
16). Fifth, SSR argues that the economic-loss rule applies and bars BMSH’s direct
professional-negligence and fraud claims. (Id. at 17–22). Sixth, SSR objects that the R&R
fails to distinguish between BMSH’s direct and assigned claims for fraudulent
concealment. (Id. at 22). Seventh, SSR objects that the evidence is insufficient to support
BMSH’s fraudulent-inducement claim as a matter of law and that the R&R again fails to
distinguish between BMSH’s direct and assigned fraudulent-inducement claims. (Id. at
23–24). Eighth, SSR objects that BMSH waived the discovery rule and that comfort
complaints are not inherently undiscoverable. (Id. at 24–27). On February 4, 2026, BMSH
responded to SSR’s objections. (Dkt. No. 162).
In accordance with 28 U.S.C. § 636(b)(1)(C), the Court is required to “make a de
novo determination of those portions of the [magistrate judge’s] report or specified
proposed findings or recommendations to which objection [has been] made.” After
conducting this de novo review, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed.
R. Civ. P. 72(b)(3).
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The Court has carefully considered de novo those portions of the R&R to which
objection was made, and reviewed the remaining proposed findings, conclusions, and
recommendations for plain error. Finding no error, the Court accepts the R&R and
adopts it as the opinion of the Court. It is therefore ordered that:
(1) Magistrate Judge Palermo’s R&R, (Dkt. No. 159), is ACCEPTED and
ADOPTED in its entirety as the holding of the Court; and
(2) SSR’s Motion for Summary Judgment, (Dkt. No. 126), is GRANTED in part.
BMSH’s professional-negligence claim is DISMISSED with prejudice.
It is SO ORDERED.
Signed on February 13, 2026.
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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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