Nearly five years after a bridge project started south of Lubbock – got blamed for the closure of a well-known business, and generated two lawsuits, a counter-lawsuit and a Texas Supreme Court case – work resumed.
Overpass construction restarted last month at U.S. Highway 87 and Farm to Market Road 41 – what used to be the Bernards liquor/convenience store and gas station location. The project started in October 2021 and work stopped in December 2022.
The new wrap-up date is scheduled for late 2027 instead of the original completion date of October 2024.
The owners of Bernards blamed the Texas Department of Transportation (TxDOT) for delays and roadblocks leading to fewer customers coming in and ultimately the closure of the business last year, which LubbockLights.com covered.
The stalled construction project led to lawsuits:
- The Bernards owners (FamFive Holdings) sued the Texas Department of Transportation.
- TxDOT sued the surety company for Allen Butler Construction.
- Allen Butler Construction countersued TxDOT.
“Yeah, people should be fired. There’s been gross incompetence,” said Philip Thrash, owner of FamFive (the parent company of Bernards).
Thrash spoke with LubbockLights.com after this story was published and the story was updated to reflect his concerns, which you can read further below.
TxDOT announced a new general contractor – Webber Construction, LLC, of The Woodlands – in an April 24 press release. Webber replaced Allen Butler Construction (ABCI) which TxDOT declared to be in default in July 2023 – roughly seven months after work halted.
“Webber … will resume work to complete the partially built structure … In addition to making improvements to the drainage structures, crews will begin work by setting-up erosion control measures, earthwork to build up the roadway on the southern end and wall construction,” the press release said.
TxDOT said the FM 41 crossover is expected to close in late summer with traffic being detoured.
LubbockLights.com reached out Wednesday via email to attorneys for TxDOT, ABCI, ABCI’s surety company Berkshire Hathway and FamFive (Bernards). TxDOT said it would not comment on the lawsuits. The others have not yet responded.
A TxDOT status page online anticipated phases and detours.
- Phase 1: Completing the north side of the bridge structure. No detour anticipated.
- Phase 2: Completing the south side of the bridge structure. No detour anticipated.
- Phase 3: Constructing U.S. 87 main lanes and turnarounds. Detours proposed for FM 41 traffic.
- Phase 4: Rehabilitation of the northbound frontage road associated with the FM 41 exit ramp. The U.S. 87 main lanes are open over the bridge for traffic. Detours proposed.
- Phase 5: Rehabilitation of the southbound frontage road and work to fix drainage problems. Detours proposed for traffic traveling southbound U.S. 87 from FM 41.
- Phase 6: Final pavement surface installation for the entire project area. Daily lane closures anticipated.
Bernards (FamFive) sued TxDOT
Bernards’ parent company FamFive sued TxDOT even before business shuttered its doors – winning a victory in lower court only to lose on appeal.
The early victory was not winning the lawsuit. It was much more modest.
FamFive won a ruling from District Court Judge John Grace it could keep its lawsuit on the books and least have the case heard.
TxDOT took that ruling to the Seventh Court of Appeals in Amarillo – claiming it had a special legal protection called “sovereign immunity,” and FamFive (Bernards) had no right to sue.
The ruling from the Seventh Court laid out the background like this: “FamFive filed suit against TxDOT for inverse condemnation. It claimed that its lost profits were directly caused by the material and substantial impairment of access to Bernard’s caused by TxDOT’s construction project.”
The Seventh Court found technically people could get to Bernards. Traffic flow was reduced, but that’s not the same thing.
In its file to the Supreme Court, Famfive claimed, “Access was materially and substantially impaired even where the points of [entry and exit] were not directly blocked.”
FamFive also claimed this is no ordinary detour. Instead, TxDOT forced customers to travel up to 15 extra miles to reach the convenience store.
TxDOT’s response said, “Texas law has never recognized damages to real property for increased travel distance and time resulting from a construction detour.”
Thrash is still upset.
“You can look across the government spectrum – federal, state, local. It does not appear that people are ever held to account,” he said.
“I’m disappointed in our local leadership,” Thrash said – mentioning he wrote to two county commissioners and the county judge.
“I’ve formally requested in those in those letters that the Commissioners Court petition the state to audit TxDOT,” Thrash said.
But he never heard back, he said.
In his opinion, if there is never an investigation then nothing prevents this from happening again on another project.
Referencing a 4-mile stretch of freeway that opened last month in South Lubbock, Thrash said, “… [This] should have been a project that was completed before Loop 88.”
ABCI’s legal action against TxDOT claimed design flaws and Thrash added his thoughts – pointing to a public statement from ABCI last year and saying, “The bridge deck was designed by TxDOT to be 6 inches higher than the connecting ramps.”
“Those are engineering flaws. And if that doesn’t sound like incompetence, I don’t know what does,” Thrash said.
More legal wrangling – Allen Butler Construction
TxDOT sued Allen Butler Construction Inc (ABCI) and its surety company Berkshire Hathaway for nearly $22 million in April 2025.
According to the Surety and Fidelity Association of America, “A surety bond is a written agreement, often required by law, to guarantee performance or payment of another company’s obligation under a separate contract or compliance with a law or regulation.” In some ways it’s like insurance but legally and technically it works differently.
TxDOT’s claim was simple enough. ABCI stopped working in violation of its contract. And then the surety company refused to pay.
Berkshire Hathaway’s defense said TxDOT had one year under state law to file a claim. If the clock started ticking in July 2023 and TxDOT filed in April 2025, then TxDOT abandoned its rights.
TxDOT replied Berkshire simply misinterpreted the law and “… The Project was terminated on November 8, 2024” – putting the lawsuit back within the deadline.
But that’s not all.
ABCI filed a counterclaim against TxDOT, saying in part, “ABCI discovered that substantial portions of the Project were not constructable as designed due to numerous errors and omissions in TxDOT’s design plans …”
Part of the project went into “a natural playa lake basin” without proper drainage, ABCI claimed.
“After construction of the frontage roads, repeated flooding events occurred in May 2022, and thereafter, closing travel lanes and endangering the public,” ABCI claimed – along with other problems.
After the counterclaim, ABCI, Berkshire and TxDOT all agreed to “continue” or delay the case. LubbockLights.com was unable to find where TxDOT filed a response yet to ABCI. For now, the trial date is set for October 28.
Timeline
- October 2021: Work began on $21.6 million U.S. 87/FM 41 overpass with entrance and exit ramps, turn-arounds and safety lighting.
- February 2022: First in a series of public written complaints began – for example – the detour of east/west traffic at FM 41.
- Summer 2022: Projected end date for FM 41 detours, according to TxDOT press release.
- December 2022: Work stopped, according to Philip and Herrlinda Thrash (the family who owned FamFive and Bernards).
- July 2023: Contract with Allen Butler Construction declared in default by TxDOT.
- December 2023: Thrashes (FamFive) sued TxDOT.
- August 2024: Intersection at FM 41 reopened for east/west traffic.
- October 2024: Project’s original completion date.
- March 2025: Bernards closed down.
- March 2025: TxDOT appealed local ruling that Bernards could sue.
- September 2025: Appeals court agreed with TxDOT, Bernards did not have standing to sue.
- November 2025: Case goes to Texas Supreme Court (still pending).
- April 2026: Work restarts.
