February 23, 2015 · 9:27 AM
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This is the third of a three-part series exploring the Texas Supreme Court’s decision in Zachry Construction Corp. v. Port of Houston Authority of Harris County. A summary of the case can be found at Part 1 of the series. Part 2 addressed the “no-damages-for-delay” aspects of the case and commented upon the current state of North Carolina jurisprudence on the enforcement of such contract clauses. This post explores the decision’s holding with respect to lien waivers and highlights some key issues contractors should bear in mind before executing these often-overlooked instruments.
What Zachry Says About Lien Waivers
By way of reminder, here’s the pertinent lien waiver language that gave rise to the dispute over whether Zachry waived its right to claim $2.36 million in liquidated damages (“LDs”) that had been withheld by the Port Authority:
[Zachry] hereby acknowledges and certifies that [the Port Authority] has made partial payment to [Zachry] on all sums owing on Payment Estimate Number [–––] and that it has no further claims against [the Port Authority] for the portion of the Work completed and listed on the Schedule of Costs in Payment Estimate Number [–––].
The Port Authority argued this language constituted a waiver of all claims for payment; Zachry argued it only applied to lien claims. The trial court saw it Zachry’s way, and the Texas Court of Appeals reversed.
The Texas Supreme Court thought the jury got it right.
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January 5, 2015 · 8:57 AM
Because my practice is focused almost exclusively on construction projects in North Carolina, I focus far more attention on local case law developments than on appellate decisions from other states. But every now and again, a decision from some far-flung jurisdiction gets published that is just too big, too fascinating and too important to overlook.
Zachry Construction Corp. v. Port of Houston Authority of Harris County, handed down by the Supreme Court of Texas (the “Texas Supreme Court”) on August 29, 2014, is just such a decision.
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Filed under Case law from other states, Delay Claims, No Damages for Delay Clauses
Tagged as active interference exception to no damages for delay clause, construction lien waivers, contractor lien waivers, contractor means and methods, effect of lien waivers on claims, enfoceability of no damages for delay clause, exceptions to no damages for delay, is no damages for delay clause enforceable, lien waivers, liquidated damages, liquidated damages for delay, means and methods, NC construction law, no damages for delay, owner interference with means and methods, Raleigh construction lawyer, wrongful withholding of LDs, wrongful withholding of liquidated damages
May 23, 2012 · 12:03 PM
Legislation revising North Carolina’s mechanic’s lien law was filed in both the House and Senate sides of the N.C. General Assembly yesterday. Text of the legislation can be found here.While not the ambitious rewrite that members of the construction bar and real property bar had envisioned when the process of revising the statutory scheme began a few years ago, the pending legislation would make several important changes to existing mechanic’s lien law, while leaving a couple other significant issues for future legislative effort.
Click “Continue reading” below for my thoughts on the five most significant proposed changes embodied by the current revisions — as well as my thoughts on the top two “non-changes” to existing law.
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Filed under Feature story, Lien Law, State law, policy & news
Tagged as change to NC lien law, definition of improvement, false lien waivers, fraudulent lien waivers, lien upon funds bankruptcy, lien waivers, nc contractor lien, nc mechanics lien, NC mechanics lien law, Notice of Public Subcontract, payment bond notice requirements NC, revisions to NC mechanics lien law