Dallas Bar Association
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Focus | Construction/Real Property Law
August 2021 Volume 46 Number 8
DBA Trial Lawyer of the Year: Professor Cheryl Wattley BY ANASTASIA TRIANTAFILLIS
As the daughter of a woman who held distinctive positions in both the political and educational arenas, Professor Cheryl Wattley was inspired to follow in her mother’s footsteps as an activist and academic. Her recognition as the Dallas Bar Association’s Trial Lawyer of the Year is but a confirmation of a life dedicated in service to others, especially those who might not otherwise have a voice. Born and raised in Connecticut, Professor Wattley boldly declared at the young age of nine years old, after watching children who looked like her be threatened with police dogs during the Birmingham marches, that she would become a lawyer to “make sure that people are aware that laws are being changed.” After graduating from Smith College, cum laude with high honors in sociology, and from Boston University College of Law, Professor Wattley began her legal career as an Assistant United States Attorney in the District of Connecticut representing the United States in civil litigation. Her professionalism and hard work were demonstrated early on in her legal career, when just at the age of 26, she confidently wrote a justification memorandum successfully
Focus
urging the United States’ entry as litigating amicus curiae in Connecticut ARC v. Thorne. This case dismantled the large state institution and established decentralized residential placement of individuals with intellectual disabilities in the State of Connecticut. Professor Wattley also secured a settlement with the Department of Housing and Urban Development to assure that families of a New Haven pub- Cheryl B. Wattley lic housing facility would have proper and suitable housing. For these cases and other work, Prof. Wattley was presented a Department of Justice Special Achievement Award. She later transferred to the United States Attorney’s Office for the Northern District of Texas, where she focused on the prosecution of white-collar crime, serving as Chief of the Economic Crime Unit. Dur-
ing her time in this office, she secured a number of jury verdicts in publicized fraud cases. Professor Wattley received the Department of Justice Special Achievement Award, the United States Postal Inspection Service National Award, and commendations from the Department of Treasury, the Immigration and Naturalization Service, and the Customs Department. She then went into private litigation practice, where her work and trial experience spanned civil rights, federal and state criminal defense, and postconviction proceedings. In 1995, she was nominated by President Bill Clinton for a federal judgeship. However, her career path took a different turn—as a professor of law—and her extensive work in the university clinics and mentoring of students is a path that
she recognizes has a far greater impact in shaping the generations of law makers and society changers. Her first teaching experience was as a criminal law professor at the University of Oklahoma College of Law, but she quickly pursued her passion to influence the new generation of legal professionals by also serving as the Director of Clinical Education. Professor Wattley’s approach to teaching through practical experience, afforded her students with litigation experience before completing their academic curriculum. She coordinated and supervised students in litigating actual trials and provided them with the invaluable knowledge of a courtroom experience early on in their careers. Through the International Human Rights Clinic, she also worked with nongovernmental organizations to provide shadow reports in relation to countries’ mandatory human rights reports to the United Nations. Her students’ tireless and meticulous work contributed to an amendment to a Central American country’s education statutes to remove corporal punishment for indigenous students as allowable discipline. continued on page 22
Construction/Real Property Law
What To Do When You Notice Your Client Didn’t Give Notice BY WALKER M. DUKE
Most construction contracts, and many non-construction contracts, contain notice provisions under which a party seeking an adjustment of the contract price or time must give notice of a claim, usually accompanied by supporting documentation, within a specified period of time. These notice provisions are frequently conditions precedent to litigation or arbitration, and a failure to comply could potentially bar your client’s claims from ever seeing the courthouse. So, what do you do when you notice that your client didn’t give notice? First and foremost, determine whether the notice required is even enforceable. Texas Civil Practice & Remedies Code Section 16.071(a) states: “A contract stipulation that requires a claimant to give notice of a claim for damages as a condition precedent to the right to sue on the contract is not valid unless the stipulation is reasonable. A stipulation that requires notification within less than 90 days is void.”
While that provision may appear to be a get-out-of-jail-free card for shorter notice provisions, the statute’s applicability is not entirely settled. In one of the few construction cases analyzing Section 16.071(a), the El Paso Court of Appeals refused to strike a 7-day notice provision, holding that it did not fall within the statute’s scope. However, in a 2020 opinion, the Corpus Christi Court of Appeals allowed a party to assert Section 16.071(a) as a defense to a 30-day notice provision. If the notice provision is indeed valid, the next step is to establish compliance or develop defenses to compliance. If your client did not strictly comply with the terms of the notice provision, determine whether you can establish substantial compliance. Substantial compliance is an equitable doctrine that allows breaching parties who have substantially completed their obligations to recover on a contract. The doctrine recognizes that if a contractor has not completed performance, it is in breach of the contract; however, the owner cannot use the contractor’s failure to completely perform as an excuse for its
own non-performance. Per the doctrine of substantial compliance, exactitude in the performance of contractual duties may not be required where any deviations or deficiencies do not seriously impair the purpose underlying the contractual provision. Look to see if your client provided some kind of notice, even if informally. Were there meeting minutes that mentioned impacts on time and cost? Maybe a schedule update that showed a delay due to unforeseen site conditions? The key is to find documentation establishing your client gave some form of notice of their issue, even if not in a formal claim document. The next line of defense is waiver, i.e., establishing that the other party waived compliance with the notice provision. Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. A condition precedent may be waived, and the waiver of a condition precedent may be inferred from a party’s conduct. Was your client’s claim evaluated even though they may not have complied with the
notice provision? Did the owner offer some adjustment of price, just not a sufficient amount? If so, you may be able to argue that the owner waived compliance with the notice provision. Determining whether there has been a waiver is a question of fact that depends on the circumstances of the case and is a matter of each party’s intent; there can be no waiver unless intended by one party and understood by the other. Intent must be clearly demonstrated by the surrounding facts and circumstances. The key is to find actions that demonstrate that the notice provision was not enforced. When parties are busy advancing the work on a project, strict compliance with notice provisions can sometimes get overlooked. This can potentially be fatal to your client’s claim, but examining enforceability of the provision, establishing substantial compliance, or proving waiver can be three tools to help preserve your client’s claims. HN Walker M. Duke is a Partner at Duke Seth, PLLC. He may be reached at wduke@dukeseth.com.
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