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Is litigation support during or near the end of a project considered related to construction of the project in Texas?
Small project with horrendous amounts of non-conforming work. Owner requested and agreed to pay for the litigation support.
1 reply
Jun 9, 2020
I'm not sure I understand the question. But, if you're asking whether litigation support would give rise to mechanics lien rights, I don't think that it would. The Texas Property Code does provide mechanics lien rights for architects, engineers, and surveyors. However, § 53-021(c) states that these rights are available to a design professional who "prepares a plan or plat under or by virtue of a written contract with the owner or the owner’s agent, trustee, or receiver in connection with the actual or proposed design, construction, or repair of improvements on real property or the location of the boundaries of real property..."
Simply reviewing the project's progress, comparing the actual work against the plan, and generally inspecting the work that was done wouldn't seem to fall into that category. That would seem especially true if your work was only done to bolster litigation efforts. Though, if you believe your work fits into that description, then a lien may well be an option. However, keep in mind that mechanics lien rights are generally only available to those whose work has led to the improvement of the property. So, auditing the work that's been done, without more, wouldn't seem to fall into the general purpose of lien rights - which might point toward the unavailability of a mechanics lien claim.
Granted, in a situation where lien rights may be in the grey area, sending invoice reminders, payment demand letters, or even a Notice of Intent to Lien may all be strong tools for forcing the owner to pay what you're owed. Plus, if they refuse payment, a breach of contract claim should be on the table. Ultimately, though - consulting your own Texas attorney would help to identify what tools make the most sense to force the customer to pay what you're owed.