Thursday, September 25, 2008

Warranty Claims, Attorney’s Fees, and You

Most transactions have some sort of cost associated with them. The bank charges $2 to use its ATM. Your financial advisor charges his fee to execute your stock trade. Your lender charges interest for the immediate use of its capital to fund your project.

When it comes to breach of warranty claims, those transaction costs often appear in the form of attorney’s fees, and they can frequently be the tail that wags the dog. Texas has strict limitations on when attorney’s fees are recoverable. Generally speaking, they are only recoverable when specifically allowed by statute or if the claim falls into one of eight defined categories:

1) rendered services;
2) performed labor;
3) furnished material;
4) freight or express overcharges;
5) lost or damaged freight or express;
6) killed or injured stock;
7) a sworn account
8) an oral or written contract

Noticeably missing from this list is breach of warranty. "Are you telling me," you ask, "that if I have to file a lawsuit because the widgets I bought and installed into the Taj Mahal II failed, and I WIN, I’m still going to be out my attorney’s fees???" Maybe, but you’re in a better position than you would have been a year ago.

Attorney’s fees have typically been non-recoverable in breach of warranty claims, so lawyers got creative to find other bases to receive them. One of the more common ways has been to bring claims based on consumer protection statutes (most notably, the Deceptive Trade Practices Act, or "DTPA"). The DTPA, which includes breaches of warranty within its scope, does allow for recovery of attorney’s fees.

Not every would-be plaintiff, however, qualifies for the protections created by the DTPA. For example, businesses with assets greater than $25 million are excluded. Does that mean that larger companies cannot recover their attorney’s fees while smaller companies can, even under the same facts? Until recently, that was probably the case.

Earlier this year, the Texas Supreme Court shook things up with the Medical City Dallas, Ltd. v. Carlisle Corporation case. 251 S.W.3d 55 (Tex. 2008). The court ruled that attorney’s fees are recoverable for claims of breach of an express warranty. The reasoning behind this decision was that breaches of express warranties sound in contract, and attorney’s fees are recoverable for a breach of contract. The court did not address whether attorney’s fees were recoverable for breach of implied warranties.

What does all this mean for you? First, it means that your transaction costs for bringing a claim for breach of warranty may have just gone down. But it also means that best practices dictate that you get that warranty written down. The law is still fuzzy on whether attorneys’ fees are recoverable for implied warranties, so make sure the warranty you get is express.

Friday, September 19, 2008

The Birth of a Contract

The construction industry is driven, to a large degree, by contracts (just consider the name "contractor"). The AIA has its standard forms, and many companies have their own models that they prefer to use. But when is a contract formally created? Does it happen with a handshake? What about when forms get faxed back and forth, with each new round creating new modifications to the terms?

Generally speaking, a valid contract is formed when an offer is made, it is accepted, and there is a meeting of the minds. There is no acceptance when there is an attempt to change or qualify the terms of the offer. If there is such an attempt, the offer is rejected. A purported acceptance that adds conditions not contained in the offer is not actually an acceptance–it is a rejection of the offer. Additionally, a qualified or conditional response to an offer does not create a contract because there is no meeting of the minds. This is actually a counter-offer.

A counter-offer must be accepted by the party who made the original offer to constitute a contract. An acceptance takes effect only when the acceptance is communicated to the offeror. When an offeror/counter-offeror does not specify the manner of acceptance, the offeror impliedly authorizes acceptance by the same manner used to present the offer.

Meeting of the minds, or mutual assent, is the essence of a contract, and it is judged objectively on the basis of what the parties actually said and did.

"OK, that sounds like a bunch of legalese," you say, "and I’m still not sure when a contract is formed when I’m going back and forth with the owner/general/sub."

The Texas Supreme Court has provided some guidance, and the case of Capital Bank v. American Eyewear is instructive. That case involved a question of whether a lease was valid and contained an acceptance of an offer. The plaintiff, American Eyewear, prepared a proposed lease and submitted it to the Bank. The Bank’s president then made several changes in the document, signed and delivered it. An officer of American Eyewear then, in turn, initialed the changes made by the Bank’s president, but made three additional changes before signing the document. The court held that when American Eyewear made changes in the lease form executed by the Bank and sent it back to the Bank, that action acted as a counter offer, which was not binding on the Bank without the Bank’s acceptance of the counter offer.

These are some basic guidelines, but the actual formation of a contract is a very fact driven analysis. There will, however, always be three elements: 1) offer, 2) acceptance, and 3) a meeting of the minds.

Examining whether a formal, binding contract is formed may seem like a rudimentary question, but it is actually very important–particularly if there have been back-and-forth changes to forms. If no actual contract was ever formed, then those terms and conditions that you thought were going to guide the transaction may not be applicable. Or, those modifications you thought you made may be worthless.

Friday, September 12, 2008


Everyone knows at least one mediation joke. My favorite is that the sign of a successful mediation is when everyone leaves equally unhappy (which, by the way, is partially true).

Despite the sometimes negative reputation mediation has gained over the years, it can be a very effective, every economical way to resolve disputes. The specifics of mediation may vary a little depending on the forum, but the basics are this. All parties get together in one room and provide a brief opening statement. The parties then break up into separate rooms. The mediator will typically visit with the party seeking relief first. He or she will find out a little about the claims being made and the relief being sought. The mediator will then visit each of the other parties and find out about their defenses or counter-claims. Anything told to the mediator is completely confidential. Depending on the complexity of the case, dollars and cents may not even be discussed in this first round. The mediator is simply trying to learn in an hour or two what you’ve lived with for some time.

At some point, the claimant makes a formal demand (typically a monetary amount, but sometimes it could be specific performance). That demand is relayed to the other party(ies), who explain to the mediator why they believe that figure is incorrect. If everyone is there is good faith, a counteroffer is usually given and taken back to the claimant. This process repeats itself until either a settlement or stalemate is reached.

"Why," you ask, "should I spend a morning or whole day sitting in the office of some mediator (and pay them for their time) when we could just send offers back and forth over the phone?" Well, there are several reasons.

First and foremost, if you are working under an AIA contract, there is a good chance that you will have to mediate. The AIA General Conditions of the Contract for Construction (Form A201-2007) states that "Claims, disputes, or other matters in controversy arising out of or related to the Contract except those waived....shall be subject to mediation as a condition precedent to binding dispute resolution."

Secondly, mediation really can be a cost-effective way to resolve disputes. Compared to the potential costs of extended litigation or arbitration, the time and expense related to a mediation is not very high. It is useful to have a neutral third party provide his or her honest assessment of a case. They hear all the facts and arguments the way a jury or arbitrator would hear them. And they will offer their disinterested assessment of how a case might turn out if it is not resolved.

A mediator can also be a much more effective messenger of the strengths of your case than you are. Even if they are just relaying the arguments you have already made directly to the other party over the phone (or face-to-face), the fact that the messenger is a neutral third party will often times give those same arguments a little more weight.

Perhaps the most important aspect of mediation is that the parties still control their own destiny. You control how much (if any) you agree to pay or accept. You control what terms and conditions a settlement will have. And you have the right to get up and leave at any point. There is no obligation to settle, and the mediator cannot commit you to a settlement. There is no judge, jury, or arbitrator telling you what you will or will not do. This is a far cry from what happens at a trial or arbitration should the dispute not be resolved. There, you put your company’s fate in the hands of complete strangers over whom you have no control.

At the end of the day, however, mediation only works if all parties are making a good faith effort at resolving the dispute. If a party is not interested in a resolution, it is a waste of time. But if the parties are genuinely interested in trying to work out their differences, then it is certainly a worthwhile endeavor and may prevent bigger headaches down the road.

Monday, September 1, 2008

Prompt Payments to Contractors and Subcontractors -- It's Not Just a Good Idea, It's the Law

My last article discussed the pitfalls of holding and distributing construction payments and loan receipts. But what if you’re on the other end of that equation–what if you’re the party who is seeking payment. What kind of protection is out there for you?

Liens may be an available remedy, and there is always the option of litigation. But what if your company is working on a project and your portion of the job is about half finished, but the company you contracted with is about four months behind on payments. This isn’t the first time they’ve fallen behind, but it’s a lucrative contract for your company (when you’re paid) and you would like to finish out your work. Additionally, it is a high profile project and you would like to use it as an example of what your company can do, but these late payments are creating all kinds of cash flow problems for you. Do you keep working and hope payment comes sooner rather than later, or do you pull your crew from the site? If you pull your crew, are you inviting litigation for walking off the job?

The Texas Prompt Payment to Contractors and Subcontractors Act provides some guidance for this scenario. It states that if an owner receives a written payment request from a contractor for an amount that is allowed under a contract for work or specially fabricated materials, the owner must make payment within 35 days of receiving the request. Unpaid amounts accrue interest at 1½ % per month.

Even more notable about the statute is that it gives contractors the ability to stop working. If an owner fails to pay the contractor an undisputed amount within 35 days, the contractor may suspend its contractually required performance. This can be done ten days after the contractor gives the owner (and possibly the owner’s lender) written notice that (1) payment has not been received, and (2) the contractor intends to suspend performance for nonpayment.

At this point, you’re doing a mental calculation of the costs of pulling your crew off the job site and then sending them back and wondering if it is worth the expense. You’re in luck—the statute provides that a contractor who suspends performance under this provision is not required to supply further labor, services, or materials until it is paid the amounts due (over which performance was suspended), plus costs for demobilization and remobilization.

Obviously, there are many factors to consider before pulling off a job for nonpayment, including the relationship between the parties, potential for future projects, and the amount at stake. However, having the force of the Texas Payment to Contractors and Subcontractors Act behind you will at least provide a little piece of mind.