Texas Construction Bond Litigation and Attorneys’ Fees Lawsuit–Compliance Issues Determined in Austin Court

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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  1. 03-02-00270-CV

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Cumberland Casualty & Surety Company, Appellant

v.

 

Nkwazi, L.L.C., Appellee

 

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FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

 

  1. 22,992, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

 

 

 

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M E M O R A N D U M  O P I N I O N

This case arises out of a surety’s obligation under a performance bond. Appellee Nkwazi, L.L.C. (“Nkwazi”), a limited-liability company owned and operated by four persons, including Kalpesh Patel and Rajeev Patel, (1) contracted with Salinas Construction & Design (“Salinas”) for the construction of a motel in Bastrop. Appellant Cumberland Casualty & Surety Co. (“Cumberland”) issued performance and payment bonds to Salinas as part of Nkwazi’s requirement for financing. After repeated problems between Nkwazi and Salinas, Nkwazi declared Salinas in default and filed a claim against the performance bond. Cumberland refused coverage, and Nkwazi sued Cumberland. Following a jury trial, the district court rendered judgment, awarding Nkwazi actual damages, attorney’s fees, and prejudgment interest. Cumberland appeals, arguing that: (1) the jury’s findings were against the great weight and preponderance of the evidence, (2) the district court erred in awarding appellate attorney’s fees contrary to the jury answers, and (3) the district court erred in awarding Nkwazi prejudgment interest at a rate of ten percent per annum. We will affirm the district-court judgment.

 

Cumberland’s Failure to Perform By its first issue, Cumberland argues that the jury’s finding that Cumberland’s failure to perform under the bond was not excused was so against the great weight and preponderance of the evidence as to be manifestly unjust–a challenge to the factual sufficiency of the evidence. Oram v. State Farm Lloyds, 977 S.W.2d 163, 168 (Tex. App.–Austin 1998, no pet.); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.–Amarillo 1988, writ denied). Specifically, Cumberland disputes the jury’s answers to Questions 2 and 3. Question 2 asked: “Was Cumberland[‘s] [] nonperformance under its Performance Bond excused by Nkwazi[‘s] [] failure to satisfy conditions precedent to recovery under the Performance Bond?” Question 3 asked: “Was Cumberland[‘s] [] failure to comply with the Performance Bond excused?” The jury answered “No” to both questions. Cumberland does not dispute that it failed to comply with the performance bond. Rather, Cumberland argues that its obligations under the bond were discharged because Nkwazi materially altered the bonded contract by not hiring an architect to inspect Salinas’s work, leading to a substantial overpayment for work Salinas either improperly performed or failed to perform. This, Cumberland argues, destroyed a condition precedent to bond performance.

 

The performance bond followed the format of American Institute of Architects document A312. Paragraph 3 delineated the requirements for bond performance. It required that there be no “Owner Default,” and if no owner default, then “the Surety’s obligation under this Bond shall arise.” Cumberland asserts that Nkwazi’s failure to hire an architect violated paragraph 12.4 of the bond. Paragraph 12.4 defines “Owner Default” as: “Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof.” (Emphasis added.)

 

In response, Nkwazi argues it was not in default because its contract with Salinas did not require Nkwazi to hire an architect to inspect the construction. Specifically, Nkwazi asserts that a bid proposal by Salinas (the “Proposal”) was the only contract between Nkwazi and Salinas and there was no “owner default” or material alteration of that agreement. (2) Cumberland asserts that the Proposal required Nkwazi and Salinas to execute an “AIA [American Institute of Architects] Standard Form Construction Contract” (“AIA Contract”), and Nkwazi should be held to the AIA Contract provision that required it to employ an architect. (3)

 

In evaluating factual sufficiency, we review the entire record and set aside the finding only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Oram, 977 S.W.2d at 168. We may not reverse simply because we conclude that “the evidence preponderates toward an affirmative answer”; instead, we may only reverse where “the great weight of [the] evidence supports an affirmative answer.” Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

 

The record reflects that Nkwazi entered into a franchise agreement with Comfort Inn, which provided Nkwazi guidelines for the motel’s construction. Nkwazi employed an architect who drafted drawings and created a “specifications book” based on the guidelines. Comfort Inn then approved Nkwazi’s plan, allowing Nkwazi to solicit construction bids. In 1997 Nkwazi sent bid packages to numerous contractors, which included the plans and specifications created by Nkwazi’s architect. Eventually, Nkwazi accepted Salinas’s construction bid of $1,089,000. Rajeev testified that after choosing Salinas, he asked Salinas to send Nkwazi a contract, and Salinas sent Rajeev the Proposal. (4) Both Rajeev, for Nkwazi, and Salinas signed the two-page Proposal, which was dated January 3, 1997. Rajeev and Kalpesh testified that this was the only contract to which the parties agreed. To obtain financing, Nkwazi received a Small Business Administration Loan, funded by First State Bank of Austin. Rejeev testified that the only contract documentation that he initially presented to the bank to secure the loan was the Proposal.

 

The bank required that the project be bonded, and Cumberland agreed to issue performance and payment bonds to Salinas. The bond request from Salinas’s bond agent to Cumberland stated that the motel contract date was “1/?/97,” and the amount requested was “$1,089,000.” Cumberland issued an original bond, for Phase I, for half the cost of construction; it was dated April 17, 1997. In August Cumberland issued a rider for the remainder of the contract, covering Phase II. Nkwazi paid Salinas’s $17,000 premium. Thomas West, Cumberland’s Dallas branch manager, testified that Cumberland had investigated Salinas’s “prior contract performance,” and a compilation of Salinas’s financial data before issuing the bond. Cumberland required that a fund administration service be used to monitor the payments made to Salinas.

 

Construction began in April 1997, and Nkwazi paid Salinas as the project progressed. During construction Salinas neglected to follow the construction plans and defects in his work became apparent. Meetings occurred between Nkwazi and Salinas to correct the defects. Salinas did remedy some of the problems; however, others remained. Rajeev testified that toward the end of 1997 communications with Salinas became more difficult and less frequent. To complete construction, Nkwazi worked directly with the subcontractors to correct Salinas’s insufficient work. Rajeev testified that during construction he did not have an architect inspect the progress of the motel; he also testified that he did not know of such a requirement and did not know that architects “provided that service.” Rajeev, and later Kalpesh, monitored Salinas’s progress by periodically visiting the construction site; when defects were discovered, Rajeev brought them to Salinas’s attention. In early 1998, the fund administration service reported Nkwazi’s problems with Salinas and the project’s slow progression to Cumberland. Nkwazi retained counsel and notified Cumberland that it was considering a declaration that Salinas was in default. At a meeting among the three parties, Salinas agreed to correct the construction problems, and Nkwazi, at Salinas’s demand and Cumberland’s suggestion, agreed to set aside $108,917 as retainage to ensure that Salinas and his subcontractors would be paid. Nkwazi and Salinas signed an agreement concerning the retainage, as did West, for Cumberland. Nkwazi, however, continued to experience problems with the construction and, in August 1998, almost one year after the projected completion date, Nkwazi declared Salinas in default. At this time, serious problems in the motel’s construction remained. After Nkwazi failed to obtain sufficient responses from Cumberland concerning bond coverage, Nkwazi filed this action against Cumberland. (5)

 

Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence sufficient to support the jury’s answers to Questions 2 and 3. At trial the parties presented conflicting testimony regarding the Proposal. Cumberland, through Rajeev’s testimony, presented evidence that the specifications book, presented to Nkwazi by its architect, contained requirements that any contract would be an AIA Contract. The bid-proposal form that Salinas signed and that became the Proposal was also a part of the specifications book. The Proposal’s language envisioned that the owner and the builder would sign a separate contract. Rajeev and Kalpesh testified that neither had sufficiently read nor understood all the contents of the specifications book and that they were unaware of the contract requirements. Rajeev stated that he asked for Salinas to send him a contract for the motel’s construction, and the Proposal was all that he received. He stated that he was unaware that more was required. Kalpesh presented similar testimony. Rajeev admitted that the Proposal’s language indicated that it was not the contract, but he and Kalpesh both testified that they believed that the Proposal was, in fact, their contract with Salinas. Reinforcing this belief was Rajeev’s testimony that the bank did not require any other contract, aside from the Proposal, for the small business loan. Rajeev also testified that he was the person supervising Salinas, but that, although possessing a civil engineering degree, he had no construction experience. Both Rajeev and Kalpesh offered testimony concerning the serious nature of the construction problems remaining at the motel.

 

West testified that Cumberland’s file only contained the Proposal and the Phase I and II bonds–no AIA Contract. Moreover, no evidence was adduced at trial that the parties entered into an AIA Contract. The following testimony was offered by West when he was questioned about Cumberland’s issuance of the performance bond to Salinas without reviewing the AIA Contract.

 

 

[Q]: Why was Cumberland Casualty & Surety Company performance bond then issued in April?

 

 

 

 

[A]: I believe it’s because that’s when the contract was signed and it was time to obtain the payment and performance bonds in order for the contractor to move forward in constructing the hotel.

 

 

 

 

[Q]: Was a signed A.I.A. contract sent to you at the time this bond was issued?

 

 

 

 

[A]: No.

 

 

 

 

[Q]: How did you learn that the contract had been entered into?

 

 

 

 

[A]: It’s our understanding the agent provided the information that they had secured contracts and they needed to get the payment and performance bonds issued in order to move forward.

 

 

 

 

 

 

The agent West mentions was Cumberland’s agent in South Texas. West also testified that Nkwazi had complied with the notice requirements to invoke bond coverage. West stated at trial that he did not think the Proposal represented the contract, but his deposition testimony, introduced at trial, stated the opposite. Similarly, West testified that Cumberland’s position was that Nkwazi had not properly paid Salinas in accordance with the contract; yet, in his deposition, West stated that Cumberland’s position was that Nkwazi had paid Salinas pursuant to the contract.

 

When viewed in a neutral light, the entire record does not lead to a conclusion that the jury’s finding was manifestly unjust. Cumberland argues that the Proposal was not a valid contract and that Nkwazi and Salinas did not comply with the AIA Contract provisions. Cumberland attempted to show that the Proposal was not a contract but only a bid proposal and offered evidence that Nkwazi failed to comply with the AIA Contract that Nkwazi should have required. Yet, Cumberland issued the bond without an AIA Contract and never demanded that Nkwazi provide one. Cumberland accepted Nkwazi’s premium payment. There is no evidence or allegation that Nkwazi misrepresented that an AIA Contract had been signed. That Cumberland’s agent assured Cumberland that a contract existed and that the Proposal envisioned that an AIA Contract would be signed is of no benefit to Cumberland. We hold the evidence is factually sufficient to support the jury’s finding that Cumberland was not excused from its obligation under the performance bond.

 

Cumberland relies on Old Colony Insurance Co. v. City of Quitman for the proposition that a surety is released from its obligation when there is a material alteration in, and deviation from, the terms of the contract without its consent and to its prejudice. 352 S.W.2d 452, 455 (Tex. 1961). The alleged material alteration is that Nkwazi failed to have an architect inspect the on-going construction, which led to a substantial overpayment of Salinas. Cumberland’s reliance on Old Colony is misplaced. The applicable contract, as found by the jury, is the Proposal and not the AIA Contract; therefore, by the Proposal’s terms, Nkwazi cannot be held to have made a material alteration of a contract that it did not agree to. In Old Colony, the City of Quitman paid a well-drilling company the remaining balance due before a contract provision, requiring the testing of the water, had been satisfied. 352 S.W.2d at 453. After payment, the well was tested and the water proved unusable. Id. The city then sought recovery from the surety for the full amount paid. Id. The supreme court held that making the final payment on the contract before the water test had been completed, as required by the contract, was a material alteration, which prejudiced the surety; thus, no recovery was permitted. Id. at 456. Here, Cumberland argues that Nkwazi’s overpayment materially altered the AIA Contract; however, the evidence supports the jury’s findings that the Proposal, not the referenced AIA Contract, was the contract that Cumberland bonded. Therefore, Old Colony is inapplicable because Nkwazi did not materially alter the contract that was in effect. Instead, Cumberland had bonded Salinas’s performance under the Proposal, a contract which Cumberland does not argue Nkwazi materially altered. We overrule Cumberland’s first issue.

 

 

 

 

 

Appellate Attorney’s Fees

 

By its second issue, Cumberland argues that the district court erred in awarding appellate attorney’s fees contrary to the jury’s answers to Question 5. In response to Question 5, the jury awarded $84,783.71 in attorney’s fees to Nkwazi. The jury, however, awarded zero dollars to Nkwazi for each of the following subparts concerning appellate attorney’s fees: (1) for an appeal to the court of appeals, (2) for petition to the Supreme Court of Texas, and (3) for an appeal to the Supreme Court of Texas in the event petition was granted. Nkwazi filed a motion to disregard the jury’s answers. In the final judgment, the district court ordered that Cumberland pay Nkwazi $25,000, $10,000, and $5000, respectively, “in the event” these appeals were filed. Cumberland contends that the district court’s order was made in error. Nkwazi, however, argues that the uncontroverted evidence concerning appellate attorney’s fees established the amount as a matter of law, and the district court’s decision should be affirmed.

 

A trial court may disregard the jury’s negative finding and substitute its own affirmative finding only if the evidence conclusively establishes the affirmative finding. Brown v. Bank of Galveston, Nat’l Ass’n, 930 S.W.2d 140,145 (Tex. App.–Houston [14th Dist.] 1996), aff’d, 963 S.W.2d 511, 515-16 (Tex. 1998). The amount of attorney’s fees to be awarded is a question of fact and must be supported by credible evidence; this amount rests in the sound discretion of the trial court and its findings will not be disturbed, absent an abuse of discretion. A.V.I., Inc. v. Heathington, 842 S.W.2d 712, 718 (Tex. App.–Amarillo 1992, writ denied); Travelers Ins. Co. v. Brown, 750 S.W.2d 916, 918-19 (Tex. App.–Amarillo 1988, writ denied). While the fact finder ordinarily determines the reasonableness of the amount, the decision may not be arbitrary. Gunter v. Baily, 808 S.W.2d 163, 166 (Tex. App.–El Paso 1991, no writ). Evidence of attorney’s fees that is clear, direct, and uncontroverted is taken as true as a matter of law, especially when the opposing party has not rebutted the evidence. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). Testimony by an interested witness may establish the amount of attorney’s fees as a matter of law only if: (1) the testimony could be readily contradicted if untrue; (2) it is clear, direct, and positive; and (3) there are no circumstances tending to discredit or impeach it. Id.

 

At trial, Nkwazi presented expert testimony concerning reasonable attorney’s fees from Robert Shaffer, an attorney for Nkwazi. He testified as to the reasonableness of the requested fees for trial, as well as the fees that might be required in the event of an appeal to the court of appeals and the supreme court. Cumberland did not offer an expert of its own to refute Shaffer’s testimony. Cumberland did extensively cross-examine Shaffer regarding attorney’s fees accrued by Nkwazi related to the pretrial events and up to the trial itself. However, Cumberland did not cross-examine or offer any controverting or impeaching evidence concerning the requested appellate attorney’s fees. The evidence that $40,000 was a reasonable attorney’s fee for potential appeals was clear, direct, and positive and could have been readily controverted if the amount was not reasonable. See Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 788 (Tex. App.–Houston [14th Dist.] 2002, no pet.). Therefore, Nkwazi established as a matter of law the amount of attorney’s fees, and the district court did not err in awarding a reasonable amount as shown by the evidence. We overrule Cumberland’s second issue.

 

 

 

 

 

Prejudgment Interest

 

By its third issue, Cumberland argues that the district court erred in awarding Nkwazi prejudgment interest calculated at the rate of ten percent per annum. Cumberland, citing an earlier version of section 302.002 of the finance code, contends that the appropriate rate should have been six percent per annum because the contract ascertains an amount payable. See Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 1, sec. 302.002, 1997 Tex. Gen. Laws 3091, 3422 (amended 1999) (current provision at Tex. Fin. Code Ann. § 302.002 (West Supp. 2003)); Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 950 S.W.2d 371, 372-73 (Tex. 1997). Specifically, Cumberland argues that the performance bond and the underlying AIA Contract, which Nkwazi should have used, defined Cumberland’s contractual obligation under the bond. Alternatively, Cumberland argues that if this Court holds that the Proposal is the contract in effect, then the interest rate should still be calculated at six percent because the project specifications referenced in the Proposal provide that AIA form A201constitutes the “general conditions of [the] contract” and “clearly spell out the method by which damages for the Contractor’s breach are to be calculated.” Cumberland concedes that the “time frame adopted by the trial court was accurate.” Nkwazi argues that the court did not err because the Proposal is the contract and read in conjunction with the performance bond, provides no method for ascertaining Salinas’s or Cumberland’s liability. Because we have held that the Proposal is the contract between Nkwazi and Salinas, we accept Nkwazi’s argument.

 

In a breach-of-contract cause of action, prejudgment interest is calculated as simple interest and is based on the postjudgment interest rate applicable at the time of judgment. Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507, 532 (Tex. 1998). In Johnson & Higgins, the supreme court held that there are two legal sources for an award of prejudgment interest: (1) general principles of equity and (2) an enabling statute. Id. at 528. Under the finance code, prejudgment interest applies only to judgments in wrongful death, personal injury, property damage, and condemnation cases. Tex. Fin. Code Ann. §§ 304.102, .201 (West Supp. 2003); Johnson & Higgins, 962 S.W.2d at 530. Because Nkwazi’s breach-of-contract claim does not fall within the statutory provisions, prejudgment interest is governed by the common law. Johnson & Higgins, 962 S.W.2d at 530. Prejudgment interest accrues at the rate for postjudgment interest and shall be computed as simple interest. Id. at 532; see also International Turbine Servs., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 500 (5th Cir. 2002). Under the finance code, postjudgment interest is computed under the provisions of section 304.003; therefore, prejudgment interest is ten percent per annum, simple interest. Tex. Fin. Code Ann. § 304.003(c) (West Supp. 2003).

 

Cumberland’s reliance on the earlier version of the finance code is misplaced. The provisions of former section 302.002 do not govern the calculation of prejudgment interest in this action. See Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 330 (Tex. App.–Houston [14th Dist.] 2003, pet. filed) (section 302.002 does not apply to award of prejudgment interest). The district court was thus correct in ordering that prejudgment interest should run at ten percent per annum. Cumberland’s third issue is overruled.

 

 

 

 

 

Conclusion

 

We affirm the district-court judgment.

 

 

 

 

 

 

__________________________________________ Lee Yeakel, Justice

 

Before Justices Kidd, B. A. Smith and Yeakel

 

Affirmed

 

Filed: June 12, 2003

 

  1. For clarity we will refer to the Patels by their first names.

 

  1. The “Bid Proposal Form” contained the following language:

 

 

 

 

Bidder has carefully examined the form of contract, instructions to bidders, profiles, grades, specifications and the plans therein . . . and will do all the work and furnish all the material called for in the contract DRAWINGS and specifications . . . . In the event of the award of a contract to the undersigned, the undersigned will execute same on [an AIA] Standard Form Construction Contract and make bond for the full amount of the contract, to secure proper compliance with the terms and provisions of the contract . . . . The work proposed to be done shall be accepted when fully complied and finished to the entire satisfaction of the Architect and the Owner.

 

  1. Cumberland argues that the appropriate contract was AIA Document A101. Such document requires, inter alia, that: “Final payment . . . shall be made by the Owner to the Contractor when . . . a final Certificate for Payment has been issued by the Architect.” A101 also incorporated by reference AIA Document A201, which requires: “The Architect will provide administration of the Contract as described in the Contract Documents, and will be the Owner’s representative (1) during construction, (2) until final payment is due . . . . The Architect will advise and consult with the Owner. The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed Work . . . .”

 

  1. The Proposal was a form included in the specifications book prepared by Nkwazi’s architect.

 

  1. Salinas declared bankruptcy and was not joined as a party.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Residential Construction Liability Act Litigation Involving Roofing Contractor–Fort Worth Construction Defense Attorneys

 

Court of Appeals of Texas,Fort Worth.

Roy HERNANDEZ, Individually and d/b/a Hernandez Roofing, Appellant and Appellee, v. Philip LAUTENSACK, Appellee and Appellant.

No. 2-05-085-CV.

    Decided: April 13, 2006

Panel A:  CAYCE, C.J.;  HOLMAN and GARDNER, JJ.

OPINION

I. Introduction

Roy Hernandez, individually and d/b/a/ Hernandez Roofing and Philip Lautensack filed cross appeals from a judgment in favor of Lautensack concerning the roof Hernandez put on Lautensack’s house.   In three issues, Hernandez argues that Lautensack’s presuit notice under the Residential Construction Liability Act was untimely, that there was no evidence that Lautensack’s alleged damages were reasonable, and that the trial court erred in awarding attorney’s fees to Lautensack because his presuit demand was excessive.   In two issues, Lautensack argues that the evidence conclusively proved his attorney’s fees in an amount double what the jury awarded to him and that the trial court erred by refusing to reopen testimony so that Lautensack’s counsel could testify about appellate attorney’s fees.   We modify the trial court’s judgment and affirm it as modified.

II. Factual and Procedural Background

In 1999, Lautensack hired Hernandez to replace the slate tile roof on Lautensack’s residence at a cost of $20,000.   The new roof had many leaks that Hernandez was unable to stop.   In 2002, Hernandez told Lautensack that the leaks were the result of hail damage and offered to replace the roof for $9,100 in labor charges if Lautensack provided new slate tiles at a cost of $25,000.   Unhappy with Hernandez’s prior work, Lautensack hired another roofer, Kip Petty, to install a new cement tile roof for $32,300.   Petty documented several defects in Hernandez’s previous roofing job, including lack of proper underlayment, lack of metal flashing, and improper tile spacing.   Petty replaced the roof in September 2002.

Lautensack sent Hernandez a claim notice letter on February 12, 2003, by certified and regular mail.   The letter described various problems with the roof, alleged breaches of express warranties and DTPA violations, and threatened litigation unless Hernandez paid Lautensack $41,880.   The certified letter was returned unclaimed;  the regular letter was not returned.   Hernandez did not reply.

Lautensack sued Hernandez on April 17, 2003, for breach of contract, misrepresentation, fraud, and deceptive trade practices and sought actual damages, attorney’s fees, and exemplary damages.   Hernandez responded with a plea in abatement claiming that Lautensack had failed to serve the requisite presuit notice under the Residential Construction Liability Act (“RCLA”).   See Tex. Prop.Code Ann. §§ 27.001-.003 (Vernon Supp.2005), .0031 (Vernon 2000), .004 (Vernon Supp.2005), .0041 (Vernon 2000), .0042 (Vernon Supp.2005, .005-.006 (Vernon 2003), .007 (Vernon Supp.2005).   Though Lautensack contended that his first letter was sufficient notice under the RCLA, he eventually sent a second notice letter in response to Hernandez’s plea in abatement.

The case was ultimately tried to a jury.   The jury returned a verdict in favor of Lautensack on all causes of action and awarded him $24,750 in actual damages plus $10,680 in attorney’s fees.   The jury also found that Lautensack’s RCLA notice was untimely because it did not give Hernandez the opportunity to inspect the alleged roof defects and offer to repair them.   For reasons not relevant to this appeal, the trial court disregarded the jury’s answers to the breach of warranty and DTPA issues.   The trial court then signed a judgment in favor of Lautensack for the amounts awarded by the jury.   Both parties appealed.

III. Discussion

A. Hernandez’s Issues 1. Timeliness of RCLA notice

In his first issue, Hernandez argues that the trial court erred by rendering judgment for Lautensack because the jury found that Lautensack’s presuit notice failed to meet the requirements of the RCLA. We disagree.

Section 27.004 of the RCLA provides that a claimant seeking damages arising from a contractor’s construction defect must give the contractor written notice of the alleged defect more than sixty days before filing suit.  Tex. Prop.Code Ann. § 27.004(a).   After receiving notice, the contractor has thirty-five days to inspect the property and forty-five days to make a written offer of settlement.  Id. § 27.004(a)-(b).  Under the RCLA as amended in 2003, failure of the claimant to give the requisite presuit notice results in dismissal of the suit.  Id. § 27.004(d).  But as Hernandez concedes in his brief, the prior version of the RCLA applicable to this suit contained no dismissal provision;  instead, it provided for abatement of a suit where the claimant failed to provide the requisite presuit notice.   See Act of May 17, 1995, 74th Leg., R.S., ch. 414, § 10, 1995 Tex. Gen. Laws 2988, 2996 (amended 2003) (current version at Tex. Prop.Code Ann. § 27.004(d)).

The trial court submitted the following question to the jury as part of the charge:

Do you find that, 60 days preceding the filing of this suit by Philip Lautensack against Roy Hernandez, Philip Lautensack gave written notice by Certified Mail/Return Receipt Requested to Roy Hernandez specifying, in reasonable detail, the construction defects that are the subject of the complaint at a time when Roy Hernandez could have performed any of the following:

a.  Within 35 days of receipt of the written notice, Roy Hernandez had a reasonable opportunity to inspect the property, to determine the nature and cause of the construction defect and the nature and extent of repairs necessary to remedy the construction defect?

b. Within 45 days of receipt of the written notice, make an offer to repair, or to have repaired by an independent contractor at Roy Hernandez’s expense, the construction defect described in the notice?

The jury answered “no” to both parts of the question.

Hernandez argues that the jury’s answers to this question compel a judgment in his favor.   Hernandez does not argue that the content of Lautensack’s notice was deficient;  rather, he argues that by replacing the roof before he sent his notice letter, Lautensack deprived Hernandez of the opportunity to inspect the property and offer to repair the alleged defects under RCLA section 27.004.

We reject Hernandez’s argument for several reasons.   First, the practical effect of Hernandez’s argument is to engraft the dismissal provision of the current RCLA onto the prior version that controls this case.   This we cannot do.   We must apply the law as the legislature wrote it.  Reese v. Duncan, 80 S.W.3d 650, 658 (Tex.App.-Dallas 2002, pet. denied).   Second, the RCLA’s intent to give a contractor a reasonable opportunity to inspect the property upon request was effectuated under the facts of this case.   The undisputed evidence at trial proved that Hernandez did in fact inspect the roof many times when he attempted to repair leaks before it was replaced and submitted a bid to replace the roof in September 2002.   Lautensack rejected Hernandez’s bid and chose to have his roof replaced by another contractor.   Third, the RCLA expressly provides that a contractor may make a monetary settlement offer, not just an offer to repair the defects.  Tex. Prop.Code Ann. § 27.004(b), (n).  The fact that Lautensack had the defective roof replaced before he sent his notice letter did not deprive Hernandez of the opportunity to inspect the roof, make an offer to repair or replace the roof, or make a timely, monetary settlement offer.

The version of the RCLA that governs this suit simply does not provide for the result that Hernandez seeks.   We overrule his first issue.

2. No evidence of reasonable cost of repair

In his second issue, Hernandez argues that there was no evidence that Lautensack’s repair costs were reasonable.   We disagree.

A legal sufficiency challenge may only be sustained when:  (1) the record discloses a complete absence of evidence of a vital fact;  (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact;  (3) the evidence offered to prove a vital fact is no more than a mere scintilla;  or (4) the evidence establishes conclusively the opposite of a vital fact.  Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999);  Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960).   In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not.  City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex.2005).

A party seeking recovery for the cost of repairs must prove their reasonable value.  Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex.App.-Fort Worth 1996, writ denied).   To establish the right to recover costs of repair, it is not necessary for a claimant to use the words “reasonable” and “necessary”;  a claimant need only present sufficient evidence to justify a jury’s finding that the costs were reasonable and the repairs necessary.  Id.;  Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 677 (Tex.App.-El Paso 1992, writ denied).

Kip Petty, the roofer who replaced the roof installed by Hernandez, testified without objection as an expert in residential roof installation generally and slate tile roofs specifically.   Petty testified that Hernandez failed to install adequate metal flashing, failed to space the slate tiles far enough apart, and improperly installed the roof underlayment.   He testified that because of these defects, the roof Hernandez installed “never had a chance” to be watertight.   Petty determined after his first inspection that the roof could not be repaired and needed to be replaced.   He testified that he bid $32,330 to replace the roof, and his invoice reflects that Lautensack paid the full amount.

Don Gove testified that he performed structural carpentry work on Lautensack’s house in conjunction with Petty’s roof replacement.   Gove testified that Lautensack’s house was designed to carry a cedar shingle roof, which would weigh about a third as much as a slate tile roof.   Gove replaced several rafters that had sagged or broken under the weight of Hernandez’s roof.   He performed this work according to the recommendations of a structural engineer.   Gove charged $2,400 for the structural work, plus another $1,500 for altering three dormer windows to accept appropriate flashing.   Gove specifically testified that those repairs were necessary.

Other evidence showed that the Hernandez charged $20,000 for the roof he installed on Lautensack’s house and that Hernandez offered to replace his first roof for $9,100 plus $25,000 in slate to be provided by Lautensack.   Hernandez himself offered the estimate of another roofer to replace just 419 out of the 14,000 to 15,000 slate tiles on Lautensack’s roof for $22,015.   We conclude that this is some evidence to support the $24,750 in actual damages awarded by the jury as the reasonable cost of replacing Lautensack’s roof.   We overrule Hernandez’s second issue.

3. Excessive demand

In his final issue, Hernandez argues that the trial court erred by awarding attorney’s fees to Lautensack because the jury found that Lautensack’s settlement demand was excessive.   Once again, we disagree.

In Findlay v. Cave, the supreme court held that a creditor who makes an excessive demand on a debtor is not entitled to attorney’s fees under Tex.Rev.Civ. Stats.  Ann.. art. 2226 (now chapter 38 of the civil practice and remedies code) for subsequent litigation required to recover the debt.  611 S.W.2d 57, 58 (Tex.1981);  see Tex. Civ. Prac. & Rem.Code Ann. § 38.001-.002 (Vernon 1997).   A demand is not excessive simply because it is greater than what the jury later determines is actually due.   Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex.App.-Beaumont 2000, pet. denied).   The dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably or in bad faith.   Id.;  Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 876 (Tex.App.-Waco 1998, no pet.).   Application of this rule is limited to situations where the creditor refuses a tender of the amount actually due or indicates clearly to the debtor that such a tender would be refused.  Findlay, 611 S.W.2d at 58.

In this case, the record contains no evidence that Hernandez ever tendered the amount actually due, that Lautensack refused any such tender, or that Lautensack indicated to Hernandez that such a tender would be refused.   We hold, therefore, that there was legally insufficient evidence to support the jury’s finding that Lautensack’s demand was excessive and that the trial court did not err by disregarding that finding and awarding attorney’s fees to Lautensack.   See Tex.R. Civ. P. 301 (providing that trial court may disregard any jury finding that has no support in the evidence).   We overrule Hernandez’s third issue.

B. Lautensack’s Issues

1. Attorney’s fees

In his first issue, Lautensack argues that he conclusively proved reasonable and necessary attorney’s fees of $21,360 through the end of trial and that the trial court erred by awarding him only the $10,680 in attorney’s fees-exactly half the amount he claimed-that the jury found were reasonable and necessary.

The amount of reasonable attorney’s fees is usually a question for the fact finder.  Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990).   The testimony of an interested witness on attorney’s fees generally does no more than raise a fact issue.  Id. But testimony from an interested witness may prove attorney’s fees as a matter of law when the testimony is not contradicted by any other witness or attendant circumstances and is free from contradiction, inaccuracies, and circumstances tending to cast suspicion on the evidence, especially when the opposing party had the means and opportunity of disproving the testimony and failed to do so.  Id.;  see also Welch v. Hrabar, 110 S.W.3d 601, 610-11 (Tex.App.-Houston [14th Dist.] 2003, pet. denied);  Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 62-63 (Tex.App.-El Paso 2000, no pet.);  Gulf Shores Council of Co-Owners, Inc. v. Raul Cantu No. 3 Family Ltd. P’ship, 985 S.W.2d 667, 677 (Tex.App.-Corpus Christi 1999, pet. denied).

In this case, Lautensack’s attorney, Mr. Holland, testified that Lautensack had incurred reasonable and necessary attorney’s fees through the end of trial of $21,360.   He introduced as exhibits his monthly invoices, which reflected the work he performed, how long it took, and how much he charged for it.   Hernandez cross-examined Holland extensively, but the focus of the cross-examination was whether Lautensack had complied with the RCLA’s notice requirements.   The closest Hernandez came to controverting Lautensack’s attorney’s fees was when he asked whether the work Holland performed before sending the second demand letter was “premature,” to which Holland answered “no.”   Because Holland answered the question in the negative, his fees remained uncontroverted.

No other witness contradicted Holland’s testimony;  indeed, no other witness testified about attorney’s fees.   Holland’s testimony and exhibits were free from contradiction, inaccuracy, and circumstances tending to cast suspicion on them.   Hernandez had the opportunity to contradict Holland’s testimony but failed to do so.

We hold that Lautensack proved reasonable and necessary attorney’s fees of $21,360 as a matter of law and sustain his first issue.

2. Refusal to permit additional testimony

In his second issue, Lautensack argues that the trial court erred by refusing to reopen testimony so that he could offer evidence of his anticipated attorney’s fees in the court of appeals and supreme court.

Rule of procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice.  Tex.R. Civ. P. 270.  Rule 270 allows, but does not require, the court to permit additional evidence.  Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.).   In determining whether to grant a motion to reopen, the trial court considers whether:  (1) the moving party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3) reception of such evidence will cause undue delay, and (4) granting the motion will cause an injustice.  Word of Faith World Outreach Ctr. Church v. Oechsner, 669 S.W.2d 364, 366-67 (Tex.App.-Dallas 1984, no writ).   The decision to reopen is within the trial court’s sound discretion. Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet.).   A trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion.   See id.   The trial court should exercise its discretion liberally “in the interest of permitting both sides to fully develop the case in the interest of justice.”  Word of Faith, 669 S.W.2d at 366-67.

Lautensack had every opportunity to put on evidence of his appellate attorney’s fees before the trial court closed the evidentiary phase of the trial.   His attorney testified at length about his fees.   Nothing in the record shows that Lautensack was diligent in attempting to produce evidence of his appellate attorney’s fees in a timely fashion, nor does he address the question of diligence in his brief.   Under these circumstances, “the interests of justice do not warrant a second bite at the apple.” Estrello, 965 S.W.2d at 759.   We hold that the trial court did not abuse its discretion by denying Lautensack’s motion to reopen the evidence.   We overrule his second issue.

3. Motion for judicial notice

Lautensack has filed a motion requesting that we take judicial notice of his attorney’s affidavit and other documents filed in the trial court and attached to his brief in this court.   Lautensack represents that those documents reflect what he would have claimed as appellate attorney’s fees if the trial court had allowed him to reopen the evidence.   Because we hold that the trial court did not abuse its discretion by refusing to reopen the evidence, we deny Lautensack’s motion for judicial notice as moot.

IV. Conclusion

We overrule Hernandez’s issues and Lautensack’s second issue.   We sustain Lautensack’s first issue and modify paragraph 2 of the trial court’s judgment to state, “Plaintiff is entitled to recover from Defendant reasonable and necessary attorney’s fees in the amount of $21,360.”   We affirm the judgment as modified.   See Tex.R.App. P. 43.2(b).

ANNE GARDNER, Justice.

– See more at: http://caselaw.findlaw.com/tx-court-of-appeals/1446994.html#sthash.Y7Xiy6yM.dpuf

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Texas Bill Would Create Roofing Contractor Registration Program–Fort Worth Roofing Contractor Attorneys

February 26, 2015

Texas state Representative Kenneth Sheets filed legislation that would establishes a voluntary roofing contractor registration program with the Texas Department of Insurance (TDI).

Sheets said House Bill 1488, known as the Roofing Contractor Consumer Protection Act, would help protect consumers from unscrupulous roofing contractors. Under the bill, roofing contractors installing replacement roofs in Texas would have the option to register with TDI, placing them in a state-wide database maintained by the TDI.

“Texas property owners face some of the highest homeowners insurance rates in the nation, in large part because of the unique weather risks faced by the state,” Rep. Sheets said in a statement announcing the bill. “Sadly, the problem of severe weather is made worse by the influx of contractors to an affected area that are either unable or unwilling to perform quality work. Poor work causes more severe and frequent property claims for homeowners, which then leads to higher insurance rates.”

In addition to the creation of the state-wide database, HB 1488 tightens existing law by prohibiting all roofing contractors, regardless of their participation in the statewide registration, from rebating consumer insurance deductibles and requires disclosure to consumers the status of their liability insurance coverage.

“More often than not, the bad actors in the industry are not bonded or insured, leaving the homeowner without any recourse for work that is incomplete or improperly installed,” Rep. Sheets said. “A common sense disclosure requirement coupled with a voluntary registration database will provide consumers more tools to protect their properties from those who seek to take advantage of a catastrophe.”

http://www.insurancejournal.com/news/southcentral/2015/02/26/358782.htm

Source: Texas House of Representatives

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Texas Fraud Statutes in Chapter 27 Business & Commerce Code–Texas Business Attorneys

CHAPTER 27. FRAUD

BUSINESS AND COMMERCE CODE

TITLE 3. INSOLVENCY, FRAUDULENT TRANSFERS, AND FRAUD

CHAPTER 27. FRAUD

 

Sec. 27.02. CERTAIN INSURANCE CLAIMS FOR EXCESSIVE CHARGES. (a) A person who sells goods or services commits an offense if:

(1) the person advertises or promises to provide the good or service and to pay:

(A) all or part of any applicable insurance deductible; or

(B) a rebate in an amount equal to all or part of any applicable insurance deductible;

(2) the good or service is paid for by the consumer from proceeds of a property or casualty insurance policy; and

(3) the person knowingly charges an amount for the good or service that exceeds the usual and customary charge by the person for the good or service by an amount equal to or greater than all or part of the applicable insurance deductible paid by the person to an insurer on behalf of an insured or remitted to an insured by the person as a rebate.

(b) A person who is insured under a property or casualty insurance policy commits an offense if the person:

(1) submits a claim under the policy based on charges that are in violation of Subsection (a) of this section; or

(2) knowingly allows a claim in violation of Subsection (a) of this section to be submitted, unless the person promptly notifies the insurer of the excessive charges.

(c) An offense under this section is a Class A misdemeanor.

Added by Acts 1989, 71st Leg., ch. 898, Sec. 1, eff. Sept. 1,

 

Sec. 35.02. INSURANCE FRAUD. (a) A person commits an offense if, with intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy:

 

(1) prepares or causes to be prepared a statement that:

 

(A) the person knows contains false or misleading material information; and

 

(B) is presented to an insurer; or

 

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

 

(a-1) A person commits an offense if the person, with intent to defraud or deceive an insurer and in support of an application for an insurance policy:

 

(1) prepares or causes to be prepared a statement that:

 

(A) the person knows contains false or misleading material information; and

 

(B) is presented to an insurer; or

 

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

 

(b) A person commits an offense if, with intent to defraud or deceive an insurer, the person solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services for which a claim for payment is submitted under an insurance policy.

 

(c) An offense under Subsection (a) or (b) is:

 

(1) a Class C misdemeanor if the value of the claim is less than $50;

 

(2) a Class B misdemeanor if the value of the claim is $50 or more but less than $500;

 

(3) a Class A misdemeanor if the value of the claim is $500 or more but less than $1,500;

 

(4) a state jail felony if the value of the claim is $1,500 or more but less than $20,000;

 

(5) a felony of the third degree if the value of the claim is $20,000 or more but less than $100,000;

 

(6) a felony of the second degree if the value of the claim is $100,000 or more but less than $200,000; or

 

(7) a felony of the first degree if:

 

(A) the value of the claim is $200,000 or more

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 1162, Sec. 4, eff. September 1, 2005.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Texas Insurance Commissioner Bulletin Regarding Roofing Contractors and Claims–Ft Worth Roofing Company Defense Attorneys

 

COMMISSIONER’S BULLETIN # B-0014-14

May 23, 2014

 

TO: ALL COMPANIES, CORPORATIONS, EXCHANGES, MUTUALS, RECIPROCALS, ASSOCIATIONS, LLOYDS, OR OTHER INSURERS WRITING PROPERTY AND CASUALTY INSURANCE IN THE STATE OF TEXAS AND TO THEIR REPRESENTATIVES AND AGENTS, AND TO ADJUSTERS, PUBLIC ADJUSTERS, ROOFING CONTRACTORS, AND THE PUBLIC GENERALLY

RE: HOUSE BILL 1183

The Texas Department of Insurance issues this bulletin to remind insurers, insurance adjusters, and public insurance adjusters that the 83rd Texas Legislature (2013), enacted House Bill 1183, effective September 1, 2013, which establishes prohibited conduct of insurance adjusters, public insurance adjusters, and roofing contractors.

HB 1183 does not change existing prohibitions in Texas Insurance Code, Chapters 4101 or 4102, but it adds §4101.251 and §4102.163.

Section 4101.251 prohibits licensed adjusters from adjusting a loss related to roofing damage on behalf of an insurer if the adjuster is a roofing contractor or otherwise provides roofing services or roofing products for compensation, or is a controlling person in a roofing-related business. The section also prohibits a roofing contractor from acting as an adjuster or advertising to adjust claims for any property for which the roofing contractor is providing or may provide roofing services, regardless of whether the contractor holds a license under this chapter.

Section 4102.163 prohibits a roofing contractor from acting as a public adjuster or advertising to adjust claims for any property for which the contractor is providing or may provide roofing services, regardless of whether the contractor holds a license under this chapter.

While not contained in HB 1183, public insurance adjusters are prohibited from participating directly or indirectly in the reconstruction, repair, or restoration of damaged property that is the subject of a claim adjusted by the license holder. Texas Insurance Code §4102.158.

The department will investigate written complaints of persons violating the Insurance Code and notes that violating Insurance Code Chapters 4101 and 4102 may result in criminal penalties and license denial, suspension, or revocation. In addition, violating Chapter 4102 may result in fines.

If you have any questions regarding this bulletin, please contact Jamie Walker by email atjamie.walker@tdi.texas.gov, or by telephone at 512-305-6797.

For more information concerning this bulletin, see Questions 12-14 of
Frequently Asked Questions or at the following web address:http://www.helpinsure.com/home/documents/unlicensedfaq.pdf.

Julia Rathgeber
Commissioner of Insurance

 

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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OSHA levies $80K in Fines Against Texas Roofing Company–Texas Roofing Contractor Litigation

OSHA levies $80K in fines for Quick Roofing for repeatedly exposing Conroe, Texas, workers to falls, ladder hazards, eye injuries | United States Department of Labor

OSHA levies $80K in fines for Quick Roofing for repeatedly exposing Conroe, Texas, workers to falls, ladder hazards, eye injuries
Employer has been cited six times in three years for same or similar violations

Employer name: Quick Roofing LLC

Inspection Site: 628 Maple Point Drive, Conroe, Texas

Citations issued: April 14, 2016

Investigation findings: On Nov. 23, 2015, after witnessing three roofers at work at a site in Conroe not using fall protection systems, U.S. Department of Labor Occupational Safety and Health Administration inspectors began an investigation of their employer, Quick Roofing LLC. The inspectors found one serious and four repeat violations dealing with fall, ladder, and eye hazards. The Texas roofing company has an extensive history with OSHA for repeatedly exposing workers to fall and ladder hazards. The agency previously cited Quick Roofing for the same or similar violations in:

  • Dallas in December 2015
  • San Antonio in October 2015
  • Austin in September 2015
  • Fort Worth in July 2014 and February 2013

Proposed Penalties: $80,280

Quote: “Falls from roofs and ladders can debilitate or kill workers,” said Joann Figueroa, OSHA’s area director in the Houston North office. “Quick Roofing’s continued history of ignoring federal safety standards must end. OSHA will not tolerate employers that repeatedly ignore commonsense safety requirements.”

Link to the citations:http://www.osha.gov/ooc/citations/QuickRoofingLLC_1107565_0414_16.pdf

Background: In 2014, more than 800 workers died after falling. From May 2-6, 2016, construction employers and employees across the country will stop work for a few hours to learn more about how to recognize and prevent fall hazards. The National Safety Stand Down to Prevent Falls in Construction web site has information, materials and programs designed to help save lives.

Quick Roofing has 120 workers at its headquarters in Kennedale and has facilities in Austin, San Antonio, and Katy. The company has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Government Contractors and Subcontractors Coverage and Compliance Issues–EEOC and Department of Labor

The Federal Contractor Compliance Advisor helps Federal contractors and subcontractors understand basic coverage and compliance information on equal employment opportunity laws and regulations enforced by the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). Employees, job applicants and others may also find this Advisor useful for learning about the basic obligations of Federal contractors and subcontractors.

The following three equal employment opportunity laws are enforced by OFCCP:

Executive Order 11246, as amended (E.O. 11246) prohibits discrimination and requires affirmative action to ensure that all employment decisions are made without regard to race, color, religion, sex or national origin.

Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action in the employment of qualified individuals with disabilities.

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) prohibits discrimination against specified categories of veterans protected by the Act and requires affirmative action in the employment of such veterans.

OFCCP monitors compliance with these equal employment opportunity laws and their corresponding affirmative action requirements primarily through compliance evaluations, during which a compliance officer examines the contractor’s affirmative action program and employment practices. OFCCP also investigates complaints filed by individuals alleging discrimination by Federal contractors and subcontractors on the basis of race, color, sex, religion, national origin, disability or status as a protected veteran.

The Federal Contractor Compliance Advisor is one of a series of elaws (Employment Laws Assistance for Workers and Small Businesses) Advisors developed by the U.S. Department of Labor (DOL) to help employers and employees understand their rights and responsibilities under Federal employment laws. To view the entire list of elaws Advisors please visit the elaws website. To learn more about DOL’s efforts to enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government, visit the Office of Federal Contract Compliance Programs (OFCCP) website.

 

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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All accessory structures require a building permit under Fort Worth Building Law—Ft Worth Construction Lawyers

All accessory structures require a building permit. This may include gazebos, outdoor fireplaces, fountains with plumbing, wind turbines, solar panels, radio towers, swimming pools, including prefabricated above-ground pools over 5,000 gallons, freestanding satellite dishes over 12 feet tall, retaining walls over 4 feet tall, etc. There are additional specific zoning requirements associated with the location, maximum height and square footage, depending on property lot size. For more information, refer to Chapter 5 Supplemental Use Standards, Article 5.301 of the Zoning Ordinance.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas construction lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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What information does a residential contractor in Fort Worth, Texas need to know before the project starts?–Fort Worth, Texas Construction Law Attorneys

What information does a residential contractor in Fort Worth, Texas need to know before the plan to execute a project is begun?

Before you plan the location of your next project, you need to make sure that the location is allowed. Each residential property has an area around the perimeter of the property that is a required yard. This area is required to be open from the ground to the sky unobstructed and can be a side yard, rear yard, front yard or projected front yard. The sizes of the yards vary by the zoning classification for the property. For the correct setback for your property’s zoning classification, please refer to Chapter 4 District Regulations, Article 7 Residential Districts of the Zoning Ordinance.  If you are unsure if your project’s chosen location is located in one of these required yards, please contact a zoning staff member with the City of Fort Worth at 817-392-8028.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas construction lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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Fort Worth Development Building Permit Fee Schedule Information–Fort Worth, Texas Construction Attorneys

City of Fort Worth Development Department 2013 Fiscal Year Fee Schedule Revised September 25th, 2012 Building Fees

*Table 1-A; replace with a new table to read as follows:

TABLE NO. 1-A REMODEL BUILDING PERMIT FEES INCLUDES FEES FOR NEW CONSTRUCTION WITH NO SQUARE FOOTAGE (Fences, swimming pools, retaining walls, etc.) TOTAL VALUATION Permit Fee1, 2, 3 $0 to $2,000.00 $76.86 ($46.11)* >$2,000.00 to $25,000.00 (a) $76.86 (b) $15.37 (a) for first $2,000 (b) for each additional $1,000.00, or fraction thereof, to and including $25,000.00 >$25,000.00 to $50,000.00 (a) $430.51 (b) $11.10 (a) for first $25,000 (b) for each additional $1,000.00, or fraction thereof, to and including $50,000.00 >$50,000.00 to $100,000.00 (a) $708.14 (b) $7.68 (a) for first $50,000 (b) for each additional $1,000.00 or fraction thereof, to and including $100,000.00 >$100,000.00 to $500,000.00 (a) $1092.53 (b) $5.97 (a) for first $100,000 (b) for each additional $1,000.00 or fraction thereof, to and including $500.000.00 >$500,000.00 to $1,000,000.00 (a) $3484.33 (b) $5.12 (a) for the first $500,000.00 (b) for each additional $1,000.00 or fraction thereof, to and including $1,000,000.00 >$1,000,000.00 (a) $6047.01 (b) $3.41 (a) for the first $1,000,000.00 (b) for each additional $1,000.00 or fraction thereof *Remodel work associated with existing R-3 Use Group or their existing accessory U Use Groups shall be charged the fee in ( ). 1 When plan review and field inspections are performed by Third Party, the permit fee shall be reduced by multiplying the sum by 25% (0.25). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 2 When plan review is performed by Third Party with field inspections performed by City Staff, the permit fee shall be reduced by multiplying the sum by 70% (0.70). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 3 When plan review is performed by City Staff with field inspections performed by Third Party, the permit fee shall be reduced by multiplying the sum by 55% (0.55). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. Table No. 1-B; replace with a new table to read as follows:

TABLE NO. 1-B 1. CFPBOA Application Fee (1st item per address) . . . . . . $125.00 (Each additional item per address) . . . . 30.00 2. Permit Application Fee . . . . . . 25.00 3. Demolition and Moving Fees Square Footage 1 through 1,000 . . 67.00 1,001 through 2,000 . . 136.00 2,001 through 3,000 . . 254.00 3,001 through 5,000 . . 381.00 5,001 through 10,000 . . 510.00 10,001 through 20,000 . . 682.00 20,001 and above . . . 1364.00 4. Change of Occupancy Permit Fee . . . . . 72.00 5. Ordinance Inspection Fee (per inspector) . . . 30.00 6. Inspection (Orange) Card Replacement . . . . 25.00 7. Record Change Fee (per record or permit) . . . 25.00 8. Plan Review Deposit* those requiring circulation . . .(40.00) 220.00 those without circulation . . . .(20.00) 85.00 9. Contractor Registration (valid for one year) . . . 120.00 10. Residential Master Plan Registration . . . . 60.00 11. Vendor Certificate of Occupancy for Temporary Vendors . 60.00 12. Application for Specialized Certificate of Occupancy related to Sexually Oriented Businesses a. New . . . . 660.00 b. Amended, modified, renewal or transfer . . . 330.00 *Deposit is not required for additions and remodels to existing Group R-3 Occupancies, and for additions, remodels or new construction of their accessory structures. Where the plan review is preformed under the third party option, the deposit shall be the amount in (). Other Inspections and Fees: 1. Inspections outside of normal business hours (minimum of two hours) $38.00 per hour 2. Reinspection fee . . . . . . . . $27.50 3. Inspections for which no fee is specifically indicated (minimum charge – one-half hour) . . . . $38.00 per hour 4. Additional plan review required by changes, additions or revisions to plans (minimum charge – one-half hour) . . . $38.00 per hour for 3rd party Building, Electrical, Mechanical, Plumbing & Energy . $16.50 5. Inspections outside of city limits (commercial) . . . $49.501 per inspector (residential) . . . $66.001 total 1 Or $33.00 per hour, whichever is greater. *Tables 1-C-1 through 1-C-4; replace with new tables to read as follows:

TABLE 1-C-1 A, B, E, H, I, & M USE GROUPS NEW CONSTRUCTION OR ADDITION BUILDING PERMIT FEES NEW SQUARE FOOTAGE Permit Fee1, 2, 3 0 to 30 $76.86 ($46.11)* >30 to 400 (a) $76.86 (b) $0.955 (a) for first 30 square feet (b) for each additional square foot, to and including 400 >400 to 790 (a) $430.51 (b) $0.711 (a) for first 400 square feet (b) for each additional square foot, to and including 790 >790 to 1365 (a) $708.14 (b) $0.668 (a) for first 790 square feet (b) for each additional square foot, to and including 1365 >1365 to 5850 (a) $1092.53 (b) $0.533 (a) for first 1365 square feet (b) for each additional square foot, to and including 5850 >5850 to 18,000 (a) $3484.33 (b) $0.210 (a) for the first 5850 square feet (b) for each additional square foot, to and including 18,000 >18,000 (a) $6047.01 (b) $0.191 (a) for the first 18,000 square feet (b) for each additional square foot *New square footage associated with existing R-3 Use Group or their existing accessory U Use Groups shall be charged the fee in ( ). 1 When plan review and field inspections are performed by Third Party, the permit fee shall be reduced by multiplying the sum by 25% (0.25). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 2 When plan review is performed by Third Party with field inspections performed by City Staff, the permit fee shall be reduced by multiplying the sum by 70% (0.70). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 3 When plan review is performed by City Staff with field inspections performed by Third Party, the permit fee shall be reduced by multiplying the sum by 55% (0.55). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure.

TABLE 1-C-2 F & S USE GROUPS NEW CONSTRUCTION OR ADDITION BUILDING PERMIT FEES NEW SQUARE FOOTAGE Permit Fee1, 2, 3 0 to 75 $76.86 ($46.11)* >75 to 1080 (a) $76.86 (b) $0.351 (a) for first 75 square feet (b) for each additional square foot, to and including 1080 >1080 to 1980 (a) $430.51 (b) $0.308 (a) for first 1080 square feet (b) for each additional square foot, to and including 1980 >1980 to 3365 (a) $708.14 (b) $0.277 (a) for first 1980 square feet (b) for each additional square foot, to and including 3365 >3365 to 24,675 (a) $1092.53 (b) $0.112 (a) for first 3365 square feet (b) for each additional square foot, to and including 24,675 >24,675 to 50,050 (a) $3484.33 (b) $0.100 (a) for the first 24,675 square feet (b) for each additional square foot, to and including 50,050 >50,050 (a) $6047.01 (b) $0.096 (a) for the first 50,050 square feet (b) for each additional square foot *New square footage associated with existing R-3 Use Group or their existing accessory U Use Groups shall be charged the fee in ( ). 1 When plan review and field inspections are performed by Third Party, the permit fee shall be reduced by multiplying the sum by 25% (0.25). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 2 When plan review is performed by Third Party with field inspections performed by City Staff, the permit fee shall be reduced by multiplying the sum by 70% (0.70). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 3 When plan review is performed by City Staff with field inspections performed by Third Party, the permit fee shall be reduced by multiplying the sum by 55% (0.55). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure.

TABLE 1-C-3 R USE GROUPS NEW CONSTRUCTION OR ADDITION BUILDING PERMIT FEES NEW SQUARE FOOTAGE Permit Fee1, 2, 3 0 to 65 $76.86 ($46.11)* >65 to 700 (a) $76.86 (b) $0.556 (a) for first 65 square feet (b) for each additional square foot, to and including 700 >700 to 1400 (a) $430.51 (b) $0.396 (a) for first 700 square feet (b) for each additional square foot, to and including 1400 >1400 to 2700 (a) $708.14 (b) $0.295 (a) for first 1400 square feet (b) for each additional square foot, to and including 2700 >2700 to 11,800 (a) $1092.53 (b) $0.262 (a) for first 2700 square feet (b) for each additional square foot, to and including 11,800 >11,800 to 24,500 (a) $3484.33 (b) $0.201 (a) for the first 11,800 square feet (b) for each additional square foot, to and including 24,500 >24,500 (a) $6047.01 (b) $0.148 (a) for the first 24,500 square feet (b) for each additional square foot *New square footage associated with existing R-3 Use Group or their existing accessory U Use Groups shall be charged the fee in ( ). 1 When plan review and field inspections are performed by Third Party, the permit fee shall be reduced by multiplying the sum by 25% (0.25). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 2 When plan review is performed by Third Party with field inspections performed by City Staff, the permit fee shall be reduced by multiplying the sum by 70% (0.70). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 3 When plan review is performed by City Staff with field inspections performed by Third Party, the permit fee shall be reduced by multiplying the sum by 55% (0.55). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure.

TABLE 1-C-4 U USE GROUP NEW CONSTRUCTION OR ADDITION BUILDING PERMIT FEES NEW SQUARE FOOTAGE Permit Fee1, 2, 3 0 to 175 $76.86 ($46.11)* >175 to 2500 (a) $76.86 (b) $0.152 (a) for first 175 square feet (b) for each additional square foot, to and including 2500 >2500 to 5200 (a) $430.51 (b) $0.102 (a) for first 2500 square feet (b) for each additional square foot, to and including 5200 >5200 to 10,200 (a) $708.14 (b) $0.076 (a) for first 5200 square feet (b) for each additional square foot, to and including 10,200 >10,200 to 46,500 (a) $1092.53 (b) $0.065 (a) for first 10,200 square feet (b) for each additional square foot, to and including 46,500 >46,500 to 96,500 (a) $3484.33 (b) $0.051 (a) for the first 46,500 square feet (b) for each additional square foot, to and including 96,500 >96,500 (a) $6047.01 (b) $0.041 (a) for the first 96,500 square feet (b) for each additional square foot *New square footage associated with existing R-3 Use Group or their existing accessory U Use Groups shall be charged the fee in ( ). 1 When plan review and field inspections are performed by Third Party, the permit fee shall be reduced by multiplying the sum by 25% (0.25). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 2 When plan review is performed by Third Party with field inspections performed by City Staff, the permit fee shall be reduced by multiplying the sum by 70% (0.70). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 3 When plan review is performed by City Staff with field inspections performed by Third Party, the permit fee shall be reduced by multiplying the sum by 55% (0.55). The resulting amount will be calculated to the penny with no rounding for the tenth of a penny figure. 3210.5 Fee. Along with the Consent Agreements the applicant shall pay a nonrefundable application fee as follows: Approval Fee Building Official $170.00 Development Director $200.00 City Council $500.00.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas construction lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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