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What is a design professional’s legal responsibility for an enhancement to her original design?  What if the enhancement is necessitated by a design error and omission?  Welcome to world of betterment, not necessarily a better world, but almost certainly a bettered one. What is betterment?  If you are looking for a Texas court or statute to define “betterment”, you will have a long and frustrating search.  While there are cases that reference jury instructions about betterment and there are Texas statutes that discuss “improvements”, there is no definitive case-law or statutory d

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

As children, we quickly learn the difference between “should” and “must”, particularly when it comes to homework, chores, and eating nutritious foods.  On May 18, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the largest federation of unions in the United States, initiated legal proceedings seeking to compel the Occupational Safety and Health Administration (OSHA) to issue mandatory workplace standards, a must, rather than the current guidelines, a should.   Since the beginning of the outbreak, the AFL-CIO and a number of other labor unions hav

In recent days, the United States Congress has taken up modifying the Payroll Protection Program (PPP).  Last week, the House of Representatives passed a bill that made significant changes to the Program. The Senate has yet to pass the House bill or its own bill to modify the PPP. The House bill broadens the length of time for an employer to use its PPP loan as well as how the employer may allocate the loan funds. In particular, the bill modifies the following provisions of the PPP. Increases the time limit in which the loan funds can be used from 8 weeks to 24 weeks so that businesses can

The headlines are mesmerizing, though not in a good way.  On the heels of a pandemic that has cost thousands of citizens their lives, a Caucasian man kills an African American man in the upper Midwest.  Protests break out that devolve into riots and spread to other cities.  The National Guard is called out.  The economic health of the country and income security of millions of Americans, both convalescing from the pandemic, hang in the balance.  The year is 1919.  And 2020.   As the old adage says, those who cannot remember the past are condemned to repeat it.  But history rarely repl

Bankruptcy or even the threat of it, whether of an owner, contractor, or supplier, can have significant repercussions on a construction project.  At the whiff of insolvency, an owner may terminate the contract and take an assignment of subcontracts.  Mechanic’s liens and payment disputes become more complex and potentially uncollectible.  Insurer’s payment of third-party claims may require court oversight.  Understanding these impacts may allow you to prepare a shelter before the bankruptcy storm hits. 1.    Assignment of Subcontracts Many contracts, particularly those modeled after

Unforeseen site conditions can entirely disrupt an ongoing project or prevent it from it getting off the ground in the first place. Apart from the time impacts unforeseen site conditions can wreak on a project, they also can wind up costing owners and contractors substantial amounts of money.  Much of Texas’s case law interpreting unforeseen site condition provisions derive from the seminal Texas Supreme Court case of Lonergan v. San Antonio Loan and Trust Company. In Lonergan, the contractor constructed a building according to plans and specifications developed by an owner-retained archite