Dallas Austin

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

When is a contractor who performs work for a governmental entity allowed to share in the state’s immunity from suit?  When can the contractor, not just the King so to speak, do no wrong?  A June 2020 Texas Supreme Court opinion sheds additional light on the issue. 1.     Tic-Tac-Toe The Texas Lottery Commission, an entity entitled to sovereign immunity, contracted with GTECH to manufacture and service instant lottery tickets.  GTECH proposed a “FUN 5” scratch-off game, essentially a tic-tac-toe game with a 5X box that allowed the winner to claim five times the prize amount in the &

When is a force majeure clause specific enough to excuse performance in the COVID-19 era?  We are about to find out. The Republican Party of Texas (“RPT”) recently filed suit against the City of Houston and its Mayor, Sylvester Turner (“Mayor Turner”), Houston First Corporation (“HFC”) and its President, Brenda W. Bazan (collectively the “Houston Defendants”) for cancelling the contract to hold the Texas Republican Convention in Houston between July 13 and 18, 2020.  The City’s action came as Texas consistently posted (and, as of the date of this article, continues to post)

The Texas Supreme Court recently clarified the standards for enforcing liquidated damage provisions.  As these types of provisions are prevalent in design and construction contracts, the Court’s opinion has particular resonance in the construction industry. In Atrium Medical Center, LP v. Houston Red C, LLC, the Court held that liquidated damage provisions, to be enforceable, must be “facially reasonable” and must not create an “unbridgeable discrepancy” between actual and liquidated damages.  The Court also clarified which party bears the burden of proving facial reasonableness an