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A tale as old as time: A supposedly “balanced” jobsite ends up requiring additional soil imports/exports, and the earthwork subcontractor performs additional work to fulfill its obligations in accordance with its contract. Is the earthwork subcontractor entitled to additional money or stuck with the agreed upon price for this additional work? The United States Court of Appeals for the Fifth Circuit recently addressed this scenario in D2 Excavating, Inc. v. Thompson Thrift Construction, Inc., et al. The D2 Excavating Court looked to the language of the subcontract in holding that the earthw

Since Texas’s businesses, schools, and courts largely closed their doors in March of this year, COVID-19’s impact and the challenges presented to our daily lives cannot be overstated. Just as businesses and schools continue to grapple with how to safely reopen (and remain open) around the State amid continued COVID-19 concerns, the courts share a similar plight in trying to get jury trials back on track. While Harris, Travis, and Bexar Counties are all experimenting and/or attempting some form of continuing jury trials, Dallas County is attempting a tangible first step in getting back to b

Be the change that you wish to see in the world, but make sure the change is in writing, signed by both parties, and does not run afoul of any contract documents. Change orders in construction projects are a necessity and, more likely than not, an inevitability. Who makes a Change order request? What goes into them? What are the procedures? We will discuss these questions and others below. 1.    What is a Change Order? Typically, a Change Order is a written instrument prepared by a contractor or a design professional and signed by the project owner, contractor and design professional, statin

Many times, contractors are sued for both breach of contract and breach of warranty, and then again for breach of express and implied warranties, leaving the contractor hopelessly confused.  If the warranties are contained in the contract, why isn’t breach of warranty redundant with breach of contract?  And, how is the contract subject to express and implied warranties? Fundamentally, what are warranties?  They are representations made by one party upon which another party may rely.  Warranties can be express or implied or created by statute. In this discussion, we will focus on express

Red flags abound.  First, the project owner insists that you use a particular subcontractor, even though you have never used or heard of that subcontractor.  Second, the subcontractor does not have sufficient capitalization or expertise to perform the work.  Third, the subcontractor sends you a certificate of liability insurance listing an insurance company that sounds vaguely, but not entirely, familiar. None of these red flags mean much until a claim is asserted relating to the subcontractor’s work.  That’s when many in the construction industry receive an unwelcome refresher course