I am a lower lier contractor, subcontractor to a subcontractor on a public works (Hospital owner is the country in San Antonio) providing labor only. We have been paid nothing. I filled all appropriate notices required by the state as well as intent to lien and actual lien. I want to file a new lien for the entire amount due inclusive of the extra signed work orders that are not paid for in addition to the additional contract. Can I legally do this? Work was last performed on the job 20 of August 2021. Thank you!
You may have a serious problem. If Bexar County is the owner of the real property and the project, then the mechanic's lien laws set out in Texas Property Code Chapter 53 for private projects would not apply. Instead, Texas Government Code Chapter 2253 would apply, and there should be a payment bond posted by the prime contractor. You would have to mail by certified mail notice of non-payment with a sworn statement of account to the payment bond surety and the prime contractor.
You really should retain a construction attorney to review and evaluate your legal position based on the contract and pertinent documents. The right to be entitled to file a mechanic's lien is set out in Texas Property Code Chapter 53, and you really need to make sure that if you file a lien, you have properly and appropriately done so. But Chapter 53 does not apply to publicly owned land, which appears to be your situation.
Filing an invalid lien could subject you to liability under the Texas Fraudulent Lien Act, and you could be liable for statutory damages of $10,000, or actual damages, whichever is greater, plus attorney's fees. Facing such a claim would add insult to injury.
Good luck.
Thanks so much for your prompt reply. I mispoke, we did in fact file notice through levelset to the bond company. I would like to ammend it. Our attorney asked me if levelset would allow the ammendment and it appears they do by filing another notice. I guess I want to know if my new notice superceeds the previous one or is it in aggragate, or even worse does it void the claim from the prior notice completely. He doesnt seem to know which is really alarming to me. Where are you located? We are in Arlington, TX.
Thanks again for your time.
Amending a claim is fairly straight forward. Prepare a First Amended Statement of Claim, and mail it by certified mail to the surety and prime contractor. You could face an issue if you are increasing your claim, and were untimely in doing so.
Stating your claim properly will give you a basis for argument.
If you subcontracted with a subcontractor, the subcontractor would owe whatever amount you are entitled to under your sub-subcontract.
Contact me if you need further assistance.
Brian W. Erikson
The Erikson Firm, A Professional Corporation
P.O. Box 140249
Dallas, Texas 75214-0249
Telephone: 214-202-4742
Telecopier: 1-214-853-5320
eMail: Brian.Erikson@eriksonfirm.com