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I am a subcontractor in CA to a GC in TX on a private sector project.

TexasLien on Funds

We have a total gross contract amount of $8950. Retention on the project is 10%, We have invoiced as follows: WORK PERFORMED AND INVOICED FOR Progress billing #1: $980 - $98 retention = $882 net (Invoiced to GC, GC has not paid us) Progress billing #2: $7,340 - $734 retention = $6,606 net (Invoiced to GC, GC has not paid us) WORK NOT YET PERFORMED OR INVOICED FOR Progress billing #3: $630 - $63 retention = $6,606 net (Not yet invoiced to GC) RETENTION YET TO BE INVOICED Total retention to be billed on project is 10% of total contract amount, or $895. We have not invoiced for retention yet, as we have not completed our work on the project. I think it is possible that this facility may never re-open and we may never get a chance to do the remaining work (which would be invoiced under our progress billing #3). I believe I should lien project for following amount: $980 (for progress billing 1, includes retention amount of $98 not yet invoiced) $7,340 (for progress billing 2, includes retention amount of $734 not yet invoiced) My position is that by contract, we are due payment not only on progress billings 1 and 2, but also on the retention amount associated with these two progress billings, even though we have not actually invoiced retention yet. DO YOU AGREE?

1 reply

Apr 21, 2020
If you have a lump-sum contract (as it appears you do) and the GC breaches the contract by way of not making timely payment, and if that non-payment constitutes a material breach, which I would argue it does, then the law would require the general contractor to pay you for the work performed to date plus the profit which you would have been entitled to had you completed the work. Texas lien law is extremely complicated, but a lien is your best leverage in getting paid. As a subcontractor, you must send monthly statutory notice letters to protect your lien rights which MANY subcontractors miss. So make sure to use LevelSet or reach out to an attorney (or both) to protect your lien. Attorney's fees are generally recoverable, so it makes sense to file a lien even for this smaller project value. Ben House 281-762-1377 ben@houseperron.com
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