Addicks Services, Inc v. GGP-Bridgeland, LP et al

Filing 99

AMENDED ORDER re: 92 Motion for Clarification, 98 Order granting motion for Clarification. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION A DDICKS SERVICES, INC., P l a i n t i ff , vs. G G P -B RIDGELAND, L.P. F/K/A ROUSEH OUSTON, L.P., BRIDGELAND GP, LLC, A ND SAFECO INSURANCE COMPANY OF A M E R IC A , D e fen d a n ts. § § § § § § § § § §

C IVIL ACTION H-06-3478

A M E N D E D ORDER T h is construction contract dispute is before the court on defendants' motion for c la r if i c a t io n of the court's October 27, 2008 Summary Judgment Opinion and in the a ltern a tiv e motion for summary judgment to remove plaintiff's claims against the indemnity b o n d (Dkt. 92).1 The court heard oral argument on January 13, 2008. The motion for c la rif ic a tio n is granted, and the motion for summary judgment is denied. 1. C la r if ic a tio n T h is court has held that Addicks released its claims against the Bridgeland defendants f o r costs incurred through November 25, 2005 (Dkt. 91). Defendants seek clarification that co u rt implicitly, if not expressly, held that the releases also effectively released Addicks's rig h t to a lien.

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The parties have consented to the jurisdiction of the magistrate court for all purposes, including final judgment (Dkt. 17).

E a c h release states that in consideration for a progress payment, Addicks "waives and re le a se s its lien and right to claim a lien for labor, services, or materials furnished through" th e date of the waiver. By signing the release, Addicks acknowledged that "the payment ref ere n ce d above, once received, constitutes full and complete payment for all work p e rf o rm e d , and all costs or expenses incurred . . . relative to work or improvements at the P r o je c t as of the date of this Waiver." Each release further states:2 [ T ] h e undersigned hereby specifically waives, quitclaims and releases any c la im for damages due to delay, hindrance, interference, acceleration, in e f f ic ie n c i e s or extra work, or any other claim of any kind it may have against th e Owner , . . . or any other person with a legal or equitable interest in the P r o j e c t , as of the date of this Waiver, except as follows: _____________________________________________________________ _____________________________________________________________ T h e r e is nothing written in the blank on any of the 15 releases. T h e reasoning in the court's summary judgment opinion applies equally to any lien c la im by Addicks. In other words, Addicks has released any right to claim a lien through N o v e m b e r 25, 2005. 2. M o tio n to Release Bond In February 2006, Addicks filed a mechanic's and materialman's lien against the B rid g elan d property in an amount over $2,250,000. In order to release the lien and secure c le a r title to the property, the Bridgeland defendants procured a Release of Lien Bond from S a f e co Insurance Company. Defendants argue that based on this court's summary judgment

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See, e.g., Bridgeland's Ex. A-1 at 1. 2

ru lin g , the Release of Lien Bond should be released and Addicks's claims against Safeco s h o u ld be dismissed. Whatever the ultimate legal effect of the court's summary judgment ruling on the s ta tu s of the Release of Lien Bond, the court agrees with Addicks that it is premature for the c o u rt to order release of the bond at this time. The summary judgment ruling is interlocutory. D e f en d a n ts can offer no authority for partial release of the bond under Texas Property Code § 53.160 or any other Texas law. Therefore, defendants' motion for summary judgment to re m o v e plaintiff's claims against the indemnity bond (Dkt. 92) is denied. S ig n e d at Houston, Texas on January 14, 2009.

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