Attorneys

 

Thomas R. Barber

Director

 

Address:

Houston, Texas

Phone: 713.653.5755

Fax: 713.890.3909

trbarber@coatsrose.com

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Practice Areas:

Construction/Surety Law

Alternative Dispute Resolution

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Thomas R. Barber

Tom has been a valuable Director in the Construction/Surety section of Coats Rose since 1992. His previous legal experience includes work as Associate Surety Counsel with Fireman’s Fund Insurance Company, and the Construction/Surety Section of Winstead, Sechrest & Minick. A registered professional engineer (licensed 1984, inactive currently) Tom has presented over eighty lectures and seminars to industry groups, Bar Associations and client groups. The topics range from suretyship, lien laws, construction contract provisions to sales taxation, dispute resolution and insurance issues. Tom has received an “AV” Peer Review rating by Martindale-Hubbell, has been named a construction Super Lawyer every year since the inception of this distinction, and has been recognized by Chambers USA and Texas Best Lawyers.  Tom was named 2014′s Houston Construction Law “Lawyer of the Year”.

Practice Emphasis

Tom’s practice focuses on representing owners and general contractors emphasizing the preparation of project design and construction management documentation, complex construction case workouts and lien and bond claim prosecution and defense.  Tom is also very experienced in matters relating to suretyship, including the comprehensive investigation and resolution of contractor defaults at all levels of contracting.

Education:

  • Oklahoma State University (B.S. in Mechanical Engineering, 1979)
  • University of Arkansas at Little Rock (J.D., 1985)

Admitted

  • 1985, Arkansas
  • 1989, Texas

Affiliations

  • Member, Arkansas State Bar
  • Executive Council Member, Construction Section, Houston Bar Association
  • Executive Council Member, Construction Section, State Bar of Texas
  • Chair Elect, Construction Section, State Bar of Texas
  • American Bar Association ABA Forum Committee on the Construction Industry (2006 Program Co-Chair)
  • Tort & Insurance of Practice Section, Fidelity and Surety Law Committee (2006 Program Co-Chair)
  • Surety Claims Institute
  • National Bond Claims Association
  • Southern Surety Association

Representative Projects

  • Represented Texas school district in the negotiation and drafting of Energy Performance contracts for retrofit of numerous outdated campuses.
  • Represented junior college in negotiating and drafting campus-wide Energy Performance contracts for funding through national grant sources as well as public funds.
  • Represented Municipality in negotiation and drafting the construction, design and procurement agreements for a $32 million minor league baseball stadium. The project was fast track design build with multiple FF&E contracts and was developed through a Public Private Partnership (P3). It was finished on time with less than 1% of the contract amount in change order work.
  • Representing Municipality in the drafting and negotiation of procurement contracts for design and construction of a $75 million performing arts venue, using a two-step Construction Manager At Risk delivery method.  The representation includes FF&E purchase contracts, working through a Public Private Partnership and the infrastructure development associated with the facility.
  • Represented municipality in the negotiation and drafting of construction,
    design and procurement agreements for a $75 million surface water treatment
    facility utilizing new filtration and treatment technologies, with significant potential damages for late completion arising out of subsidence
    fees and penalties.
  • Representing school district in the development, modification and
    implementation of construction procurement contracts, including design and
    testing, for execution of a $1.9 billion bond program.
  • Represented school district in recovery of substantially all of its costs
    (over six figures), including fees and expenses of consultants, from
    contractor’s surety in a case where the surety declined to complete or fund
    completion of a fast track “must be done over summer” renovation of an urban
    school.
  • Represented a large private high school in the negotiation and drafting of
    construction, design, project management and procurement contracts for mid
    seven figure campus wide expansion commencing with new academic building,
    parking structure, central plant renovations and additions and site civil
    works.
  • Represented various general contractors in constructing Joint Ventures,
    including agreements in compliance with the regulations applicable to the
    use of service disabled veteran programs.
  • Represented several homeowners in the negotiation and drafting of
    residential construction contracts for high value (mid six figure to seven
    figure) homes.
  • Represented surety in multimillion dollar claim by obligee, resulting in mini trial advisory verdict for surety on fraudulent inducement, thereafter producing settlement reimbursing surety for losses paid.
  • Represented surety on 6.5 million dollar probate bond case, resulting in dismissal of claims after investigation of offshore trusts, upheld on appeal.
  • Represented general contractor in case of first impression construing the Texas Trust Fund Statute to be a statutory trust under the Bankruptcy Code, resulting in general contractor being able to pay debtor subcontractor’s vendors out of funds due to the debtor subcontractor, in spite of IRS levy, in order to obtain warranties and to obtain final payment from owner.
  • Represented surety in case of first impression holding that a bond claimant is not a “consumer” with standing to sue under the Texas Deceptive Trade Practices Act.
  • Represented surety in case of first impression holding indemnitor’s failure to post collateral entitled surety to settle claims at its sole discretion as provided in general indemnity agreement.
  • Represented amicus sureties in case of first impression holding indemnitors do not have “bad faith” cause of action against sureties.
  • Represented surety in “Pre-Pack” bankruptcy of a national roofing contractor “roll up”. Participation in the preparation and review of bankruptcy pleadings, as well as hearings on contested matters, and the purchase and sale documents to accomplish “reverse roll up” sale of individual and grouped assets, resulting in the assumption of surety liabilities by purchasers and successor entities.
  • Represented surety in “Pre-Pack” bankruptcy of national mechanical contractor “roll up” requiring provision of DIP financing and bonding facilities during successful “reverse roll up” and sell off of individual and grouped assets.
  • Represented surety in successful “channeling” of claims from multiple jurisdictions in relation to offshore pipeline construction case, with result that claims were paid through insurance proceed recovery against marine builders risk policy.
  • Represented major oil company in resolution of dispute relating to HDPE pipeline installation in Persian Gulf.

Publications

  • U.C.C. Article 9 – Disposition of Repossessed Collateral, 6 UALR L.J. 585 (1985)
  • Bonds and Liens on Construction Work in Texas, publication of the Associated General Contractors, January, 1990, 1991, 1992, 1993, including the Property Code, the McGregor Act, and the Miller Act
  • Overview and Tips on Mechanics Liens and Bonds Related to Liens, Texas Construction, Seventh and Eighth editions (February and March 1994)
  • Mechanics Liens in Texas, National Business Institute (1998) (2004)
  • The Texas Trust Fund Statute; Construction Section, Annual Meeting, (1999), State Bar of Texas
  • Construction Payment Remedies in Texas; National Business Institute (2001)
  • A Primer for Bond Claims in Texas; Presented to Kemper Insurance Companies (2001) and CNA Insurance (2001)
  • Got a Multi-State Mess and a Bankruptcy? Maybe a Channeling Injunction Will Work; Southern Surety and Fidelity Claims Conference, 12th Annual Meeting (2001)
  • The New Surety Claims Practices Act Requirements in Texas; Southern Surety and Fidelity Claims Conference, 13th Annual Meeting (2002)
  • Pre-Pack Bankruptcies and First Day Orders: I Hear That Freight Trail Coming; Southern Surety and Fidelity Claims Conference, 14th Annual Meeting, (2003)
  • What Sureties Should Know About Mold Claims (Or, The Fungus Among Us); Southern Surety and Fidelity Claims Conference, 15th Annual Meeting (2004)
  • Business Structures From the Surety’s Perspective: Locking in Indemnity and Collection Rights; Southern Surety and Fidelity Claims Conference, 16th Annual Meeting (2005)
  • Treasury Certification Investigations – The Ultimate (Abusive) Settlement Tool for the Government; Southern Surety and Fidelity Claims Conference; 17th Annual Meeting (2006)
  • The Use of Business Structures to Encapsulate Liability; Construction Law Section of the State Bar of Texas and The Texas Institute of Continuing Legal Education, 19th Annual Construction Law Conference (2006)

Speeches

  • Bonds & Liens Seminar Presented to The Associated General Contractors of America (2012)
  • 2011 Legislative Changes Affecting Public School Construction and Development in Texas
  • 2011 Texas Bonds & Liens
  • 2011 Texas Non-Residential Liens
  • Production Builder Developer Lien Claims and Foreclosure: Some Practical Tips (2011)
  • Bonds & Liens Seminar Presented to the National Association of Credit Management (2011)
  • Surety Association of Houston – City of Houston Bond Forms: Contrasted and Compared (2010)
  • A201 Clauses Presented to: Houston Chapter Associated General Contractors of America (2010)
  • A111 Clauses Presented to: Houston Chapter Associated General Contractors of America (2010)
  • South Texas Construction Conference: How to Get Paid (2010)
  • Texas Mechanics Liens and Bond Claims Presented to AGC Project Management (2010)
  • DOL Wage Rate Claims Against Sureties and a Southern Survey: Wage Claims Against Payment Bonds (2009)
  • Selected Topics in Construction Contracts (2008)
  • Spring Workshop 2008 – Texas Public Purchasing Association: Overview of Construction Contract Terms and Conditions
  • Southern Surety Association Speech 2007: Subcontract Bond Forms – Why Do they Want That and What to Do About It
  • Bonds & Liens Seminar Presented to Houston Contractors Association (April, 2007)
  • Texas Mechanics Liens and Bond Claims Presented to University of Houston Management Class (2007)
  • Key Considerations in Bonding Public and Private Projects (2007)
  • Texas Mechanics Liens and Bond Claims Presented to Texas Rental Association (2007)
  • Certificate of Insurance Presented to: Houston Chapter, Associated General Contractors of America (2006)
  • Lien Releases on Public Projects – A Bad Idea (2006)
  • Bonds and Liens – University of Houston (2006)