Solar Applications Engineering v. T. A. Operating - The Appellate ...

E. The trial court’s order of severance, bolstered by the Texas Property Code,
protected the owner from “double liability.”
The court of appeals supported its forfeiture holding by concluding that the lien-release
“condition precedent” protected the owner from double liability. See TA Operating, 2005 WL
2401879, at *3, n.3, 4. This ignores, however, that TA was fully protected from double
liability by the manner in which the trial court structured this litigation as well as by provisions
of the Texas Property Code.
This is how TA articulated the “double liability” concern in its motion for rehearing of
the court of appeals’ initial judgment in favor of Solar: “This contract, like most construction
contracts, expressly avoided the risk of the owner’s having to pay the contractor for
subcontractors’ work and then having to pay the subs a second time in order to clear the
mechanic’s liens.” TA’s Motion for Rehearing at 3.
The trial court, however, anticipated this double-liability concern and addressed it by
ordering a bifurcated trial—a point never acknowledged in the court of appeals’ decision on
rehearing. Before the trial of this case, the trial court issued an Order of Severance. See CR
106 ; App. 5. That order provided that the claims of the various subcontractors, as well as any
claims by Solar or TA against the subcontractors, be severed into a separate action without
prejudice to any claims or defenses, including any claims or defenses to liens filed against the
property. Id.
Directly addressing the double-liability concern, the order required that any sums
obtained by Solar in the main action (except for attorney’s fees and costs) “be held in trust”
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