Don Hill Construction Company v. Dealers Electrical Supply Company

In Don Hill Construction Company v. Dealers Electrical Supply Company, 790 S.W.2d 805 (Tex. App.--Beaumont 1990, no writ), the materialman who supplied a subcontractor sent a late first notice of non-payment to the original contractor. Id. at 806. The Court held that the materialman's failure to provide the first notice to the original contractor did not affect the liability of an owner who received the three-month notice. Id. at 809-10. The original contractor received the three-month notice but did not dispute the claim. Id. at 810. The opinion refers to Tex. Prop. Code Section 53.084, which states that the owner's property is subject to a claim for money paid to the original contractor after the owner becomes authorized to withhold funds, but such opinion fails to explain how the lien had been secured as required by the statute. Id.; see Tex. Prop. Code Ann. 53.084(b). In Don Hill, the Court determined that establishing the original contractor's and the owner's liability requires separate notices and that the notices required to hold the original contractor liable to a derivative claimant do not affect the liability of the owner. Don Hill, 790 S.W.2d at 809-10.