Construction 201: Making Sure Your Client Gets Paid


Re-Broadcast on April 17, 2017

All attorneys representing construction clients will want to be able to help resolve their client’s payment disputes whether simple or complex, involving mechanic’s lien or bond claims. This course will provide a background for perfecting your mechanic’s lien and bond claims and will also emphasize some of the issues that come up frequently in payment disputes, such as contract inclusions, plans / specification deficiencies, and back charges. Learn some easy tips to determine the mechanic lien specifics in your state. Find out what to look for in bond claim disputes and how to make sure your claim is not denied! This course is taught by a Texas attorney with experience in owning her own boutique construction practice in the Dallas/Fort Worth area. There will be ample opportunity for discussion and follow-up questions as well as material which includes basic forms to add to your practice!

Key topics to be discussed:

  • What makes up a Construction Law Business?
  • Developing an Arsenal of Experts in Particular Areas of Need
  • Strategic Marketing for Obtaining the Clients
  • Top Tips for Protecting Your Client
  • Important Construction Industry Contractual Clauses
  • Ins and Outs of Mechanic’s Liens
  • What do you need to know to Perfect your Bond Claim
  • Litigation: Allegations, Defenses, and Proving your Case
  • Case Law Update: Rulings That Affect Your World

Date / Time: April 17, 2017

  • 2:00 pm – 4:00 pm Eastern
  • 1:00 pm – 3:00 pm Central
  • 12:00 am – 2:00 pm Mountain
  • 11:00 am – 1:00 pm Pacific

Choose a format:

  • Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
  • On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date.



kelly-davisKelly Davis, Esq.

Few construction lawyers have the first-hand experience to understand fully the complex issues that their clients face. When Kelly Davis was a child, her father started a small residential construction business, and there began Kelly’s love of construction. She was the little girl that would be running all around the construction projects. Over the years, her father’s business grew into developing commercial buildings, and high-end residential homes. As a result, Kelly has grown up, worked in and lived around the construction industry her entire life.

After opening her own General Litigation firm, Kelly’s litigation practice naturally progressed into primarily a construction litigation and real estate practice. She represents clients from all segments of the construction industry in all types of construction disputes, including delay and labor impact claims, defective work claims, performance and payment bond, breach of contract, breach of warranty, and mechanic’s and materialman’s lien foreclosure claims. Kelly also assists her clients by handling corporate formation and other corporate issues, reviewing and drafting contracts for their businesses, and perfecting lien and bond rights. She is a frequent speaker to professionals on construction law topics.

Kelly Davis was born and raised in Lewisville, Texas. After obtaining her Bachelor of Arts degree, she attended the Master’s program at Texas State University Legal Studies, which was the first of its kind in the State of Texas and still one of only a select few in the United States. Afterwards, she obtained her Doctor of Jurisprudence degree from St. Mary’s University School of Law in San Antonio, Texas. As a Student Attorney she served in the Clinical Program at the Center for Legal and Social Justice, helping the indigent with their legal needs. After receiving her Juris Doctorate Degree, Kelly returned to the Lewisville area and now provides services to her clients throughout Texas.

CLE Accreditation:
mylawCLE seeks approval in all states except VA.

CLE 2.00 – AK
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CLE 2.00 – CA
CLE 2.40 – CO
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CLE 2.00 – IA
CLE 2.00 – ID
CLE 2.00 – IL
CLE 2.00 – IN
CLE 2.00 – KS
CLE 2.00 – KY
CLE 2.00 – LA
CLE 2.00 – ME
CLE 2.00 – MN
CLE 2.40 – MO

CLE 2.00 – MP
CLE 2.00 – MS
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CLE 2.40 – NY
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N/A – VA
CLE 2.40 – VI
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CLE 2.00 – WA
CLE 2.40 – WI
CLE 2.40 – WV
CLE 2.00 – WY

Accreditation Policy
myLawCLE will seek credit where attending attorneys are primarily licensed for all of its live webinars and live teleconferences, except in states which allow for reciprocity (see reciprocity section below). Credit for CLE in a self-study format is sought for in most states; however, some states do not allow for CLE credit to be earned in a self-study format (see the self-study section below). Many states typically decide whether a program qualifies for MCLE credit in their jurisdiction 4-8 weeks after the program application is submitted. For many live events, credit approval is not received prior to the program. Credit hours granted are subject to approval from each state.

Additionally, some states allow for credit to be granted on a 1:1 reciprocal basis for courses approved in another mandatory CLE jurisdiction state. This is known as a reciprocity provision and includes the following states: AK, AR, CO, FL, ME, MT, ND, NH, NJ, NY, PR, and SD. myLawCLE does not seek direct accreditation of live webinars or teleconferences in these states.

On-demand CLE
myLawCLE will seek on-demand approval in all states except Virginia and Arkansas (outside reciprocal provisions stated above).

myLawCLE Credit Guarantee
myLawCLE offers a program and credit approval guarantee. If a registered attendee is unhappy with a CLE program they have attended, myLawCLE will offer that attended access to another complimentary CLE or a full refund in order to insure the attendeeís satisfaction.

Additionally, on all online CLE programs application for approval will be made in all states where attending attorneys are primarily licensed in. If a registered attorney does not receive credit from their state for any reason, a full refund will be granted.

Section I. Introduction

Section II. What makes up a Construction Law Business? (Gone are the days of a truck, clipboard & cell phone)
a) Pros and cons of a construction law practice
b) Conception to dissolution and everywhere in between
c) Corporate formation and general corporate matters
d) Contract drafting and negotiations
e) Real Estate agreements
f) Payment issues – including mechanic’s lien and bond claims
g) Residential Construction Act (as well as State Construction Commission) procedures and processes
h) Warranty disputes
i) Mediation and Arbitration
        i. Selection of your mediator and arbitrator
        ii. When drafting consider the pros and cons of arbitration vs. jury or bench trial
        iii. Pre-Arbitration requirement of mediation
j) Litigation
k) Employee issues
l) Government entity disputes
m) Post judgment and collection matter

Section III. Developing an Arsenal of Experts in Particular Areas of Need

Section IV. Strategic Marketing for Obtaining the Clients
a) Internet presence
b) Relevant associations
d) Draft articles for local construction publications

Section V. Top Tips for Protecting Your Client
a) Get the project information up front
b) Require a credit application
c) Get a personal guaranty
d) Read (and revise) the subcontract carefully
e) Joint check agreement
        i. What is it?
        ii. Why is it useful?
        iii. What are its pitfalls?
f) Create a paper trail
        i. Delivery tickets
        ii. Responding to delay, man the job
        iii. Providing proper halt work notices
g) Draft and use invoices with favorable terms and conditions
h) Make sure the payment applications are correct
i) Watch your notice deadlines

Section VI. Important Construction Industry Contractual Clauses
a) Payment conditions
b) Scope of Work
c) Turn Key or Cost Plus
d) Change orders
e) Termination 
f) Indemnity
g) Warranties 
h) Limitations on liability 
i) Flow down 
j) Arbitration 
k) Lien Waivers
l) Choice of Law and Venue 

Section VII. Ins and Outs of Mechanic’s Liens
a) Notice letters
        i. General requirements
                • Determine the following:
                        › Tier 
                        › Residential? 
                • Who to notice? 
                • Method 
        ii. The clock starts on delivery
        iii. Continued notice 
        iv. What do you do if there is a payment bond? 
b) Retainage
        i. Determine if there is a particular retainage notice that must be sent out at beginning of the project
c) Statutory Mechanic’s Liens
        i. How do you perfect?
                • Make sure your affidavit has the “magic words” required by your state’s property code
                • Record the lien affidavit 
                • Send notice of the recorded lien affidavit
        ii. What if this is a landlord/tenant project?
                • The general rule
                • Exceptions
        iii. Will I be reimbursed attorney’s fees and interest for my mechanic’s lien?
        iv. Every State is different
d) Constitutional Lien – what is the difference?
        i. What circumstances can you file a constitutional lien? 
        ii. What does self-executing mean and why is it important?
        iii. What is the deadline to file the constitutional lien?

Section VIII. What do you need to know to Perfect your Bond Claim
a) Miller Act (Federal Public Works)
        i. What is it and when does it apply?
                • How do you perfect your claim?
                        › What must the contents of your notice contain?
                        › What is the deadline for filing your claim?
        ii. What if you do not have information about the payment bond?
        iii. Filing suit on the bond
        iv. Can you obtain attorney’s fees and interest for a payment bond claim?
        v. How do I preserve my rights
b) Private Payment Bonds
        i. What are they and when do they apply?
        ii. How is the private payment bond different than public bond and mechanic’s liens?
c) What is the difference between a payment bond and performance bond?
d) Settling the claim
        i. Conditional and non-conditional waivers
        ii. Release of liens
        iii. Affidavit of All Bills Paid

Section IX. Litigation: Allegations, Defenses, and Proving your Case
a) Contingent Payment Clauses – When are they valid?
        i. Contingent Payment (Paid if Paid) Clauses
                • Certain types of contracts are excluded
                • General contractor’s fault
                • Notice
                        › Prompt Payment Act
                        › The “Private” Prompt Pay Acts
                        › The “Public” Prompt Pay Acts
                        ›  The Federal Prompt Pay Act
                • Defenses:
                        › Unconscionability
                        › Sham relationship
        ii. Effect of contingent payment clauses on lien rights
b) Warranty Claim Basics
        i. Implied Warranties
                • Merchantability
                • Fitness for a particular purpose
                • Disclaiming the implied warranties
                • Good and workmanlike performance
                • Habitability
        ii. Written warranties
        iii. Magnuson-Moss Warranty Act
c) Basics on indemnity provisions
        i. Broad form indemnification provisions in construction contracts
                • What are they?
                • What are the requirements?
                • Are there any exceptions?
        ii. What is the difference between Indemnification, Hold Harmless vs. Duty to Defend Claims?
        iii. Typical provisions
d) Trust fund claims – exp: Texas Trust Fund Statute – “Plan B”
        i. What is it and how is it useful?
        ii. Personal liability against the agents, officers, or directors of the general contractor or upstream subcontractor
        iii. Exceptions
        iv. Defenses
e) Other Useful Causes of Action and/or Defenses
        i. Prompt Payment Act
        ii. Foreclosure on Liens
        iii. Summary Motions to Remove Lien
        iv. Breach of Implied or Written Warranties
        v. Residential Construction Liability Act (RCLA) Type Claims
        vi. State Sponsored Dispute Resolution Programs
        vii. Declaratory Judgment
        viii. Surety Bond Claims
        ix. Wrongful Denial of Claims

Section X. Case Law Update: Rulings That Affect Your World