Dallas Austin

What is the distinction between pay-if-paid and paid-when-paid clauses in construction contracts?  From both a payment and legal perspective, much larger than you might think. Often included in the payment provisions in construction contracts is a clause requiring payment only “if” the general contractor is paid or “when” the general contractor is paid.  The enforceability of pay-if-paid clauses, also called contingent payment clauses, in Florida was the subject of one of our recent blogs. If and when Contingent payment clauses in their simplest form are “if-then” commands.  If

What does a single trolley car lumbering down Main Street in 1907 have in common with a high speed rail travelling at 205 mph between Dallas and Houston 115 years later? When it comes to eminent domain rights in Texas, quite a bit. James Miles owns a 600 acre tract of land in Leon County. The property has been in his family for nearly 100 years. In 2015, Texas Central Railroad & Infrastructure, Inc. and Integrated Texas Logistics, Inc. (collectively, “Texas Central”) requested permission to survey Miles’ property for purposes of obtaining a 100-foot right of way for a high-speed trai

Many subcontract agreements allow a general contractor to withhold payment on one project due to problems, like delays or non-conforming work, on another project. These provisions need only be a sentence long and can be hidden almost anywhere in the agreement. However, regardless of the length or complexity of the cross-payment clause itself, the provision can have wide-reaching impacts to many different projects. From the subcontractor’s perspective, a cross-payment provision starves one or multiple projects for cash to complete the work.  From the general contractor’s perspective, prote

Texas law favors settling disputes by arbitration, as it is intended to provide a less expensive, quicker means of resolving a dispute than litigation. However, in some cases, forcing a party to participate in arbitration can have the opposite effect. For example, in Houston ANUSA, LLC v. Shattenkirk, the Houston (14th) Court of Appeals recently ruled that an arbitration provision in an employment contract was “substantively unconscionable” because the cost of arbitration would be so excessive as to prevent the party from asserting his claims. In Shattenkirk, an employee filed suit against

Is an insurance company legally liable for an accident that occurred when its policyholder followed claims investigation recommendations? The Texas Supreme Court recently answered this question, stating, “no”. In Elephant Insurance Company, LLC v. Lorraine Kenyon, Ms. Kenyon was involved in a car accident and had pulled over to the side of the road.  She called her insurance company, Elephant Insurance, to report the claim.  While she was on the phone with the adjuster, her husband arrived at the scene.  The insurance adjuster made several suggestions about what would be needed to docum

Must an employer pay commissions to an at-will employee earned after the employee’s date of termination?  The Texas Supreme Court recently weighed in on this issue, reminding employers that written expectations and terms of employees, their positions, their salaries and/or earnings is crucial. In Perthuis v Baylor Miraca Genetics Laboratories, the Court concluded the state’s “procuring-cause doctrine” applies to commission (or sales) payments for an employee no longer employed with employer at the time the commission is collected. In 1916, the procuring-cause doctrine was established

Recently, the Virginia governor signed into law “SB550,” which explicitly makes “pay-if-paid” clauses unenforceable by statute, joining six other states with similar laws. Texas also has a statute governing pay-if-paid or contingent payment clauses, though does not outrightly void them.  What are contingent payment clauses and what are the statutory restrictions in Texas on their enforceability?  This article provides a primer. What are contingent payment clauses? Contingent payment clauses are just that, clauses that provide that when X happens, Y occurs (i.e., X is a condition prec