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Categories Construction Law

Texas Mechanic’s and Materialman’s Liens

Author swb Categories Construction Law Posted on

Mechanics Liens in Texas

Texas law protects the interests of general contractors, subcontractors, and suppliers by providing them with lien rights against construction projects, but the law is complex and there are many hurdles to overcome in order for a claimant to perfect its lien. Chapter 53 of the Texas Property Code is the primary, though not exclusive, source of Texas lien law. Chapter 53 describes the parties who are entitled to a lien, the notices that must be given, the form of the documents that must be filed, and a multitude of related rules, defenses, and restrictions. Texas lien law is so varied and complex that it poses a challenge to some of the state’s best lawyers. A claimant who chooses to wade into those waters without a lawyer’s assistance should proceed with great caution.

The first step is to determine whether a potential claimant is granted lien rights under the statute. Not every person who is involved in a construction project has lien rights. Certain trades, such as architects, engineers, landscapers and demolition experts, are required to have a written contract; an oral contract will not suffice. On residential projects, the original contractor must have a written contract, signed by the owners (both spouses), before the original contractor or any of its subcontractors can assert lien rights.

If a potential claimant qualifies, the next step is determining the proper notices that must be sent, to whom, and when. The types of notices necessary to perfect a lien claim, and the deadlines for same, depend on a variety of facts. The types of notices are different for specially fabricated materials and claims for retainage. The particular wording of the notices will control whether an owner may withhold payment from a general contractor to satisfy a subcontractor’s claim. The deadline for the notices, how many that a claimant has to send, and to whom the notices must be addressed, vary depending upon whether the project is residential or commercial if the claimant is an original contractor, subcontractor, or supplier, and whether the claim is for a progress payment, final payment, or retainage.

Drafting and filing the lien affidavit is no less complex than the notices that have to be sent in advance. The affidavit claiming a lien must contain specific information and, under some circumstances, very specific wording. The information that has to be included varies depending, again, upon whether the project is residential or commercial and whether the claimant is an original contract, subcontractor, or supplier. In addition, the deadline for filing the lien affidavit varies based upon a number of factors: when the claimant’s work was performed; whether the project was completed or the original contract terminated; and whether the owner has made a written demand for lien claimants to file their lien affidavits. A claimant may have lien rights, send the proper notices, and still fail to file a valid lien affidavit by the applicable deadline.

Even after a qualified claimant sends proper notices and timely files a valid lien affidavit, the owner of the project may still have defenses against the lien claim that will prevent a claimant from realizing a full recovery. The deadline for filing suit to foreclose on a lien varies depending upon whether the project is residential or commercial. The owner may have withheld the statutorily required retainage, thereby limiting the owner’s liability and protecting the project from foreclosure. In short, after a valid lien is perfected, the war is not over.

The Texas legislature has considered making changes to the Texas lien statutes to simplify the process, but, as of the writing of this article, no significant changes have been made in years. Perhaps one day the process will be easier, but until that day, it is vitally important for a potential lien claimant to seek the advice and assistance of an experienced construction lawyer.

If you need assistance collecting payment for labor/materials you’ve provided to a project, please contact us to discuss the lien filing process and how we can help.

Categories Employment Law

The Families First Coronavirus Response Act

Author swb Categories Employment Law Posted on

On April 2, 2020 the Families First Coronavirus Response Act (H.R. 6210) takes effect and will remain in place until December 31, 2020.

The two major provisions of the Act are the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  Both provide paid leave for employees absent from work for reasons related to COVID-19. Benefits will differ for full-time versus part-time employees who are defined as follows: full-time employees are individuals who work for their employer for 40 hours or more per week and part-time employees are individuals who work for their employer for less than 40 hours per week.

Emergency Paid Sick Leave Act

The Emergency Paid Leave Act applies to all “covered employers” which includes private sector employers with fewer than 500 employees, and public sector employers with 1 or more employees. Note, there is a possibility that certain health care providers, emergency responders and small businesses with fewer than 50 employees may be exempt from the bill’s paid leave requirements if they can show that compliance with the requirements of the Act would jeopardize the viability of the business as a going concern.  Guidance on this exclusion process is expected to be issued on March 25, 2020.

This Act states that an employer shall provide to each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
  5. The employee is caring for a son or daughter of such employee, if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID–19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full-time employees are entitled to 80 hours of paid sick time and part-time employees are entitled to paid sick time for the number of hours equal to the number of hours the employee works, on average, over a 2-week period.

If the employee is entitled to paid sick leave for a reason described in 1, 2, or 3 (listed above), the employee’s required compensation shall not be less than the greater of the employee’s regular rate of pay, or the minimum wage rate in effect for such employee in the applicable State or locality, whichever is greater. However, the employee’s required compensation may not exceed $511 per day and $5,110 in the aggregate over the two-week period.

If the employee is entitled to paid sick leave for a reason described in 4, 5, or 6 (listed above), the employee’s required compensation is two-thirds of the employee’s regular rate of pay and may not exceed $200 per day and $2,000 in the aggregate over the two-week period.

Paid sick time does not carry over from one year to the next, and the employee is entitled to paid sick leave regardless of the duration of their employment. Additionally, the employee may use paid sick time before using other paid leave, but the employer cannot require the employee to use paid leave before using paid sick time.

After the first workday (or portion thereof) that an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time. Employers are required to post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in this Act.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Act amends the Family and Medical Leave Act of 1993 (FMLA) and applies to all employers with fewer than 500 employees (subject to the same possible exemptions for health care providers, emergency responders and small businesses with fewer than 50 employees).

To be an “eligible employee” under this Act, the employee requesting leave from work must have worked for the employer for at least 30 days prior to requesting the leave, and the leave must be requested because the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee, if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency related to COVID-19 declared by a Federal, State or local authority.

This act allows for an employee to take up to 12 weeks of job-protected leave, of which the first 10 days are unpaid – however, the employee may use paid time off (PTO) that he or she has accrued to cover these 10 unpaid days.

After these initial 10 days of unpaid leave, the employee’s paid leave is calculated based on an amount that is not less than two-thirds of an employee’s regular rate of pay subject to a maximum cap of $200 per day and $10,000 in the aggregate over the 12 week period.

Note: employers with fewer than 25 employees do not have to restore the position of employees who take paid leave if the employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer caused by a public health emergency.

For additional information about our Employment Law Practice or to make arrangements for an initial consultation with a lawyer call our law office directly at (214) 919-3555.

Categories Uncategorized

Coronavirus Update: Our Commitment to our Clients & Employees

Author swb Categories Uncategorized Posted on

At Saunders, Walsh & Beard, we are carefully monitoring the current novel coronavirus (COVID-19) outbreak. Our goal is to ensure business continuity in order to meet our clients’ needs throughout this period by taking appropriate measures regarding the health and safety of our clients as well as all members of our firm. To that end, we have implemented several measures to meet our health and business objectives:

• We have ensured that any of our employees working remotely have full and secure access to our systems without compromising our communications with you, your confidential information, or our work product;

• We are holding more client and other meetings by audio or video conferencing;

• We have adopted measures regarding any attorneys or staff members who may feel ill or otherwise be at risk;

• We have increased the cleaning of contact surfaces on our premises and promoted the simple and effective measures public health authorities have identified as reducing risks of transmission.

We are focused on delivering our legal services throughout this period just as we have done through other periods of turmoil. Rest assured we are equipped with the requisite secure technology and processes to continue serving your needs remotely, timely, and securely.

It is in such times we are reminded that we are not only your business partner but a member of the wider community together with you, our clients. We all have a role to play in this evolving situation and we at Saunders, Walsh & Beard will endeavor to do our part.

Categories Litigation

Legislative Changes to 18.001 and What it Means to You

Author swb Categories Litigation Posted on

It’s fall in an odd-numbered year and that means only one thing in Texas–lawyers have a whole host of new and updated rules to learn after the recent legislative session.

One of the most substantive changes occurred in Chapter 18.001 of the Civil Practice and Remedies Code. In the good old days (three months ago) a plaintiff could file an affidavit from a medical provider stating the amount charged for the services was reasonable and the medical services provided were necessary. If this affidavit was timely filed 30 days prior to trial (or 30 days prior to the date evidence was heard at trial), then the affidavit alone would be sufficient evidence to support a finding of fact that the amounts charged were reasonable and necessary. Once filed, the burden was then on the defendant to show the charges were not reasonable and necessary by filing a controverting affidavit within 30 days of being served with the plaintiff’s affidavit. If the defendant did not file their own controverting affidavit within 30 days, then the defendant would not be able to contest the necessity and reasonableness of the charges at trial.

HB 1693 changes all of that.

The deadlines surrounding the new rule are the most important change. Now, plaintiffs must serve their 18.001 affidavit on a defendant within 90 days of the defendant filing an answer. This is vastly different than the previous 30 day before trial (first hearing of evidence) deadline and will result in fewer defendants being rushed to file a controverting affidavit on the eve of trial.

If a court orders, or a portion of the Texas Rules of Civil Procedure set, the plaintiff’s expert designation earlier than 90 days after the defendant files its original answer, then plaintiff must serve its 18.001 affidavit by the earlier expert designation deadline. Simply put, if a court orders a plaintiff’s expert designation on a date 60 days after the defendant’s answer, then the plaintiff must file its 18.001 affidavit by its expert designation deadline, rather than the 90 days.

A defendant now has 120 days after the date they file their answer to serve their controverting affidavit. Similar to the rules for plaintiffs, defendants will have to serve their controverting affidavit earlier if a court orders the defendant’s expert designation for a time earlier than 120 days after defendant’s answer.

Practically speaking, this change will result in defendants receiving more complete sets of medical records at an earlier stage of litigation and it’s likely that service of 18.001 affidavits will now be included in agreed scheduling orders, removing doubt and adding efficiency to the litigation process.

Categories Congratulations, Uncategorized

Congratulations to our 2019 Texas Super Lawyers!

Author swb Categories Congratulations, Uncategorized Posted on

Saunders, Walsh & Beard is proud to announce J. Brantley Saunders, Mark A. Walsh, Lewis L. Isaacks, Alexander N. Beard, and David M. Kennedy as 2019 Texas Super Lawyers.

About Super Lawyers
Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected through a multi-phased process including independent research, peer nominations, and peer evaluations.

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