Twitter Facebook YouTube LinkedIn Google Plus Instagram
Andrews Myers
Business Insight from the Ground Up
Beware Quick Offers to Repair
by Katy Baird  Prior to filing suit on a construction defect the parties often engage in a meaningful discussion to settle the matter outside of Court. It is not uncommon for a contractor to offer to provide repairs to the “alleged” defect to prevent the project owner from filing suit. In theory this sounds like a win-win. The owner gets its repairs free of charge and the contractor foregoes a long-drawn out legal battle including expert/attorneys’ fees. Yet, problems arise when the repairs are not sufficiently performed to prevent the defect from re-appearing down the road.
Texas Courts have found that the acceptance of repairs does not toll/impact the deadline for project owners to file suit. G.R. Auto Care v. NCI Group, Inc., 01-17-00068-CV, 2018 WL 4087295, at *6 (Tex. App.—Houston [1st Dist.] Aug. 28, 2018, no pet.). This means that when the owner becomes aware of a potential defect in the design or construction the owner has four years to file its breach of contract claim and two years to file a claim for negligence. If, at some point within that two to four year time period, the owner agrees to accept an offer of repair, the statute of limitations does not stop and re-start at the time the repairs fail. Read more...
The 32nd Annual Construction Law Conference
by Ben Westcott   Once again, the 32nd Annual Construction Law Conference, held over February 28th - March 1st, did not disappoint. On a personal level, this was my 20th year to attend the conference, and the firm held our 11th consecutive “Friends of Andrews Myers” Dinner as a kick-off to this annual CLE event.  Over the course of two days, well over 800 registered attorneys attended some really informative speaker sessions, including Lee Shidlofsky’s ever popular insurance law update, Tim Ross and Allison Snyder on termination, Andrea Hight on easements and crane rights, old dogs David Peden, Bill Sommers and Steve Yungblut taught us some of their tricks, and Fred Wilshusen and Misty Gutierrez on the back story behind the Lonergan case.  I am also pleased to report that our Construction Law Section raised over $100,000 in personal and corporate donations for our chosen charity, Operation Finally Home, which builds homes for our country’s many wounded Veterans and their families.  We look forward to next years’ conference and hope that you can join us in 2020.  For a copy of my presentation on the 2019 Texas Legislative Updates click here
New Associate Matthew S. Cire
Matthew S. Cire joins the firm's litigation practice group, focusing primarily on real estate and construction disputes, as well as general business litigation matters.  Prior to joining the firm, Matthew was a litigator in a boutique business litigation firm in Houston. Click here to view Matthew Cire's full bio.
Six Named 2019 Rising Stars

Six Andrews Myers attorneys have been recognized among the top young lawyers in Texas by Thomson Reuters’ SuperLawyers.

Click here for the press release. 
OSHA Multi-Employer Citations: A Closer Look
by Tony Stergio  The Fifth Circuit has (for the time being) approved of OSHA issuing multi-employer citations.  As a result, we will certainly see citations issued to contractors for hazards to which other contractors’ employees were exposed. It should be noted, however, that OSHA will not issue citations to upstream contractors every time a downstream contractor’s employees are exposed to a hazard. Multi-employer citations have been the law of the land in other circuits for quite some time, and there are established legal guidelines dictating when a multi-employer citation can be issued.  Now that multi-employer citations have come to Texas, all Texas contractors should understand those legal principles.
To ascertain whether a contractor should be cited, OSHA engages in a two-step process:
  1. Determine whether the employer is a Creating, Exposing, Correcting, or Controlling employer
  2. Determine whether the employer’s actions were sufficient to meet the obligations imposed by the category that applies  Read more...
A more detailed hand-out on Multi-Employer Citation examples can also be found here
Department of Labor Issues Two Notices in March
by Elaine Howard   Overtime/ Fair Labor Standards Act
Under the Obama Administration, the DOL issued a rule raising the weekly salary that an employee must be paid in order to qualify for many of the exemptions from overtime, from a minimum of $455 per week to $913 per week.  Many employers began to increase salaries in anticipation of that rule going into effect, but it was blocked in late 2016 by a federal judge.  We have expected the Trump Administration to propose a new rule for some time.  On March 7th, the DOL announced a proposed rule that will raise the weekly salary minimum to qualify for many exemptions to $679, which is equivalent to $35,308 per year.  This rule will go through a period for public comments, and could take effect in late 2019.  We will provide further updates regarding any increase in this salary requirement.  If the rule does go into effect, employers will need to evaluate the salaries paid to employees designated as exempt, to determine if they continue to qualify for the exemption.  This may be an appropriate time for employers to re-evaluate how they categorize employees as exempt, as employees’ duties and responsibilities may change over time and impact whether they are properly classified as exempt.
Family Medical Leave Act
Under the FMLA, covered employers (generally those with 50 or more employees within a 75 mile radius) are required to provide an eligibility determination within five days of learning that an employee needs to take time off for a reason that might be covered by FMLA (see Form WH-381).  When an employer has enough information to make the FMLA determination, and generally within five days of receiving the Form WH-381, the employer must send the designation notice (see Form WH-382).  Because these time periods are so short, HR departments and employers have to be vigilant to timely issue the proper notices.  Read more...
Contractors' Failure to be Licensed Results in Disallowance of $12M in Claims
by Josh Judd   In a harsh result issued by a Delaware bankruptcy judge, $11.1 million claims owed to an insulation and scaffolding contractor were disallowed because the Texas-based contractor did not have a California contractor’s license.  In 2013, Synflex, a Texas based contractor, entered into three contracts to provide insulation services for a solar plant in San Bernardino County, California (the “Project”). Synflex never obtained a California Contractor’s license.  The Project’s owner, Albeinsa, subsequently filed bankruptcy in Delaware, and Synflex filed a claim for $11 million and Orbital Insulation Corp., a supplier of Synflex, filed a $1.1 million claim for labor, services, equipment and materials it provided to Synflex. Orbital, likewise was not licensed in California. Synflex argued that it had held itself out to Albeinsa as an entity authorized to provide insulation and scaffolding services in California, but it did so with full disclosure that it was relying on its relationship with a third-party entity, A-1 Mechanical Insulation, LLC ("A-1 Insulation"). Synflex understood that it was authorized to operate under A-1 Insulation's California contractor's license, and asserted that Albeinsa confirmed Synflex's contracting status and used Synflex's services with full knowledge and approval of its licensing position.   Read more...
The Women's Initiative
The Women's Initiative of Andrews Myers is currently planning their 2nd annual "Women Wine Makers Tasting" on Thursday, May 9th.  Adele Corrigan, one of Houston's top female sommeliers, will curate several wines from female vintners across the world. If you'd like to join us for this fun networking event, please contact Brittany Cooperrider to be added to the guest list.
Join Us at the Upcoming Special Events in April

4/4 - AM sponsors AAA Construction Conference
4/5 - ABC Central Texas Chili & BBQ Cook-off
4/5 - Billy Davis leads AM Mock Trial for ABC Greater Houston Young Leaders
4/9 - ABC Greater Houston LOGIC (Ladies Operating for Growth in Construction)
4/11 - AM sponsors HBJ 2019 Landmark Awards
4/12 - AM supports the MCA Shotgun Invitational
4/15 - AM sponsors ABC Greater Houston Spring Clay Shoot
4/16 - Clayton Utkov and Andy Harris present "Legal Contracting Issues" to AGC North Central TX
4/17 - Ben Westcott presents "How New Laws Impact Contractors" at UH Lunchtime Legal Forum
4/18 - Jason Walker holds "Beginners Bonds & Liens" seminar for NACM
4/24 - Billy Davis presents "Contracts" to AGC Construction Leadership Council
4/25 - Lisa Norman holds "Enhancing Your Collections Toolbox" seminar foir NACM Texas
4/26 - AM hosts NACM Statewide Conference
4/27 - AM sponsors EASB Live from ATX! Gala at Camp Mabry
4/30 - Elaine Howard presents "Dealing with Governmental Entities" to ABC Houston
Planning for the Inevitable Legal Dispute
by Colby Hodges  As the oil and gas industry continues its climb from the gone-but-not-forgotten days of $30 oil, upstream and midstream operators and service providers are once again seeing growth in their businesses.  However, with that growth can come an increased risk for the inevitable legal disputes that all businesses face.  Having a plan in place before disagreements arise can be key to a quick resolution and substantial cost savings.  Here are a couple of tips to address issues we often run into.
Include Early-Onset Dispute Resolution Procedures in Major Contracts.  As lawyers, time and again we come across contract disputes and other disagreements that potentially could have been resolved if cooler heads had prevailed at the outset.  With this in mind, it rarely hurts either party to agree to include contract language that mandates all sides must attempt mediation or some other alternative dispute resolution procedure prior to any legal action being filed.   Read more...
Litigation & Arbitration
The King Can Do No Wrong (Mostly)
by Lauren Scroggs   If you contract with a governmental entity and it breaches the contract, the remedies available to you may be limited (or even nonexistent) pursuant to the sovereign immunity doctrine.  Sovereign immunity protects governmental entities from being sued without their consent. The limitations imposed by sovereign immunity originally stemmed from the concept that “the king could do no wrong.”  Now, the justification for immunity is a practical one: to shield taxpayers from the cost of defending lawsuits and to ensure tax dollars are not diverted from their intended purpose.  From a taxpayer’s perspective, immunity makes a lot of sense.  If you’re trying to sue a governmental entity, not so much.  Fortunately, sovereign immunity will not always preclude recovery against governmental entities. 
The Texas Legislature has enacted various waivers of immunity under certain circumstances.  For example, immunity from suit is waived for “local government entities” under Texas Local Government Code Chapter 271, when the entity enters into certain contracts, including those for the provision of goods or services.   But even if you establish your contract is encompassed by this waiver under Chapter 271, the remedy you seek may be limited or outright prohibited.  In fact, Chapter 271 limits the “total amount of money awarded” to four categories of damages, and precludes any recovery of certain other types of damages.  Read more... 
unsubscribe from this list | update subscription preferences