Dallas Austin

We have litigated some very strange “contracts”, including a construction contract comprised of a series of text messages.  And while we await the day when a party alleges a contract was formed via Instagram posts, the Texas Supreme Court has recently provided some guidance on whether a series of emails (dinosaur technology, I am told by my kids) can comprise a binding contract. The “contract” at issue in Capano Energy was an easement for a gas pipeline. In 2011, Plaintiffs granted Capano a 30-foot wide easement across their properties for installation and maintenance of a 24-inch gas

Is a subcontractor’s performance made impossible by a designer’s incomplete plans or the defective work of another subcontractor? Under those circumstances, is the subcontractor legally discharged from performing its contractual obligations?  The Dallas Court of Appeals, in a lengthy opinion, recently addressed this issue. In EM Building Contractor Services, LLC v. Byrd Building Services, LLC, Byrd, a general contractor, filed suit against EM Building, a drywall subcontractor, over three separate hotel projects located in Texas.  After EM Building failed to meet project schedule, failed

Are lost profits associated with local shelter-at-home orders recoverable under a property insurance policy? At least one court, the US District Court for the Western District of Texas, has ruled they are not. 1.    Non-Essential Businesses In Diesel Barbershop, LLC v. State Farm Lloyds, 2020 WL 4724305 (W.D. Tex., San Antonio Div.), several hair salons were forced to close due to their being categorized as non-exempt businesses under Bexar County’s Shelter-at-Home Order and as non-essential businesses under one of Governor Abbott’s Executive Orders.  Diesel and the other companies file

A recurring question in the design and construction industry is, what is the liability attached to site observation visits?  Most design professionals, construction managers, and owners’ representatives include language in their contracts that they are not responsible for contractors’ means and methods or for assuring safe practices.  But do those provisions really cut off liability?  Is the end result that, regardless of what language is included in contracts, the person performing the site observation visit retains some liability for a contractor using improper means or methods, or cr

What are your legal remedies when a contractor or subcontractor places an improper lien on property?  Under what circumstances is the contractor or subcontractor liable for $10,000 for filing such a lien?  The Texas mechanic’s lien statute, found in Chapter 53 of the Texas Property Code, provides some of the answers.  Among those answers is filing a motion to remove the lien, bonding around the lien, and seeking $10,000 and punitive damages for a fraudulent lien. 1.    Summary Motion The Texas mechanic’s lien statute, in particular Texas Property Code § 53.160, allows for a “summar