Dallas Austin

When does an “as-is” sale support of claim of deceptive trade practices? A recent case from the Austin Court of Appeals provides some insight as well as a cautionary tale to anyone selling a property requiring repair. In Christians v. Flores, Flores sued Christians regarding the “as-is” purchase of a home located in Austin, Texas, asserting that Christians failed to disclose issues with the home’s roof.  Prior to the sale of the property, the roof was damaged by a hailstorm. A roofer who visited the house testified at trial that a storm had damaged the roof beyond repair and needed

Do engineers owe fiduciary duties to the general public based on rules issued by their governing board? The Houston Court of Appeals recently examined this issue and held that, absent a relationship of trust and confidence, the board rules do not create such a duty. At issue in Hussion Street Buildings, LLC v. TRW Engineers, Inc., was a housing development constructed adjacent to property owned by Hussion. TRW was a civil engineer involved in the development. Hussion alleged that TRW’s scope of work included design of a water-detention plan, but that TRW failed to design or specify one. Huss

Since the onset of the COVID-19 pandemic and the massive social and economic consequences it has wrought, owners and contractors alike have taken a harder look at their contracts.  Do the contracts have force majeure, waiver of consequential damages, or no damages for delay clauses?  Are the clauses written broadly enough to encompass the pandemic and its aftershocks?  It is safe to say that contracts negotiated pre-2020 look a lot different from those prepared after the pandemic was declared. One provision not regularly included in pre-pandemic construction contracts, but now standard in n

What makes a worker an employee versus an independent contractor?  How you classify an individual may change, depending on whether proposed revisions to the Fair Labor Standards Act (FLSA) by the Department of Labor are accepted and enacted. The proposed revisions were posted on the Federal Register’s website on October 13, 2022 and will be available for public comment until November 28, 2022. The proposal seeks to broaden the factors used to determine whether a worker is an employee, allowing more workers to be classified as employees who would then be entitled to the minimum wage and over

Is a failure to procure the right type of insurance for a construction contract a material breach of contract?  If so, what are the damages arising from that breach and are they actual or consequential?  A recent opinion from the Houston Court of Appeals answers these important questions. In Totalenergies Petrochemicals & Refining USA, Inc., v. Kinder Morgan Petcoke, LP, et al., an employee of Kinder Morgan Petcoke (Kinder Morgan), Gary Counts, died at a refinery owned by Totalenergies Petrochemicals & Refining (Total).  Counts’ estate filed suit against Kinder Morgan, Total and s

Recently, in a case in Alabama, an insurance company was able to deny coverage because the builder did not timely report the claim.  In American Builders Insurance Company v. Riverwood Construction, LLC., the issue was whether Riverwood Construction, the contractor and policyholder/insured, had to timely report lawsuits to its insurance carrier. Riverwood was sued in two residential cases in Alabama in 2017 and immediately hired an attorney to defend the case. But, Riverwood apparently failed to send notice of these lawsuits to its insurance carrier, American Builders, until 2019.  Once it

When is an arbitration clause illusory and, therefore, unenforceable? The Texas Supreme Court recently decided this issue in an employment context in In re Whataburger Restaurants LLC. In February 2013 Yvonne Cardwell sued her employer, Whataburger Restaurants LLC, claiming she had been injured while working at a Whataburger restaurant in El Paso, Texas. At the time she was hired, Cardwell signed an acknowledgement that she was as at-will employee and agreed to the policies in the 51-page Employee Handbook.  The Handbook included a provision requiring all workplace injury claims to be submitt