Monthly Archives: June 2015

Attorney’s Fees in Eminent Domain Cases: Would a Failed Bill have Leveled the Playing Field?

    A bill that would have drastically changed condemnation law in Texas, failed to become law as the 84th Texas Legislature came to a close on June 1, 2015. Senate Bill 474 was passed by the Senate by a 25-6 vote, but the House of Representatives failed to take any action, and the bill died without ever coming up for a House vote.

The Bill

    SB 474, by Senator Lois Kokhorst, R-Brenham, would have required condemning authorities, who sought land through eminent domain proceedings, to reimburse landowners for their attorney’s fees and other expenses if the amount awarded in the preliminary administrative proceeding exceeded the condemnor’s offer for the property by at least 20 percent. The bill would have also required reimbursement for attorney’s fees and other expenses if the case moved beyond the special commissioners’ hearing and into litigation where the final judgment exceeded the condemnor’s offer by at least 20 percent.

How the Bill Would Have Worked

    Imagine if a person purchased a piece of land and built a house. Suppose the appraised value of the land and the house is $250,000. Then, a condemning authority decides it needs that land for a project and offers the landowner $200,000. Knowing that its house and land is worth $50,000 more than the offer, the landowner hires an attorney to fight the case. During the litigation, the landowner is saddled with fees to pay for the experts and appraisers. Eventually, the attorney secures payment from the condemnor of $250,000. Although the landowner gets paid the fair market value for this property, it is now out the money for attorney’s and expert fees. Under SB 474, the landowner would be able to recoup that money because the final award exceeded the $200,000 offer by the condemning authority by more than 20%.

Arguments For and Against

    The rationale behind the bill was that disputed eminent domain cases can often end up in court and can stretch out for long periods of time. During that time, attorneys and expert fees can pile up. While a property owner may eventually receive payment for the fair market value of its land, it can find itself well short of that amount after these fees are paid.

    Proponents of the bill said that it is unfair for landowners to be paid adequate compensation and then subtract the cost it takes to achieve that compensation. Additionally, property owners are often forced to accept diminished compensation for their land because they cannot afford the legal costs to challenge the offer through litigation. Registered supporters of SB 474 included representatives from the League of Independent Voters of Texas, the Texas Public Policy Foundation, the Texas Farm Bureau, the Texas and Southwestern Cattle Raisers Association, the Texas Wildlife Association, and various landowners.

    Opponents of the bill argued that if landowners see eminent domain litigation as essentially free, there is will be a lot more cases progressing to trial and less cases being settled earlier. Additionally, opponents believed that the law requiring condemning authorities to make a good-faith offer is sufficient and already gives enough protection to property owners. Registered opponents of the bill included representatives from the Texas Conference of Urban Counties, the Association of Electric Companies of Texas, the Texas Pipeline Association, the Tarrant Regional Water District, the Gas Processors Association, the Texas Municipal League, and representatives from various Texas counties and cities.

    As the Texas Legislature will not convene again until January of 2017, landowners believe they will not be given a chance to level the playing field in eminent domain for at least two more years.

Review Commission Vacates OSHA Housekeeping Citation Arising From Fatal Accident

On April 27, 2015, the Occupational Safety & Health Review Commission issued a decision vacating an OSHA Citation issued against Brand Energy Solutions, LLC in Secretary of Labor v. Brand Energy Solutions, LLC, OSHRC Docket No. 09-1048, which can be found at The Citation was issued as a result of an OSHA investigation conducted after a fatality involving a Brand employee at the Shell Oil Company refinery in Deer Park, Texas. The underlying trial on the Citation was for a single housekeeping violation under the OSHA construction standards. Brand was represented at trial and on appeal by J. Albert Kroemer and James T. Phillips of Cantey Hanger LLP.

In the fall of 2008 Shell hired Brand to erect a scaffold around one of its crude distillation columns, a large cylindrical tower at the refinery, in order to conduct insulation work. On December 18, 2008, when the scaffold was approximately half way completed and stood approximately 110 feet high, a Brand employee fell from the unfinished platform to her death.

An OSHA investigation resulted in the issuance of a Citation to Brand alleging a housekeeping violation under 29 CFR 1926.25(a), because scaffold materials were left on the stair tower landings in the scaffold after the project had been shut down because of the accident. The Secretary interpreted the material as “debris” under the housekeeping standard. This citation was affirmed by the Administrative Law Judge at trial, and Brand brought its appeal to the Review Commission.

The majority opinion agreed with Brand’s argument that the scaffold housekeeping standard under 29 CFR 1926.451(f)(13) was more specifically applicable than the general housekeeping standard in the Citation, 29 CFR 1926.25(a) and thus preempted the standard relied on by OSHA in the Citation. It therefore vacated the Citation. It held that because the alleged “debris” was located on a stair landing, the scaffold standard, which applied to the accumulation of debris on “platforms,” was applicable. The scaffold standards defined a “landing” as “a platform at the end of a flight of stairs.” The majority held that this was the specific circumstance involved, and therefore rejected the argument advanced by the Secretary that the general housekeeping standard, which includes the accumulation of debris on “stairs,” was the applicable standard.

A concurring opinion was issued agreeing that Brand had established that the scaffold housekeeping standard preempted the general housekeeping standard. However, it also agreed with Brand’s argument that the Citation should be vacated because the scaffold components left on the stair tower after the accident constituted essential equipment rather than “debris” under either housekeeping standard. It reviewed Commission precedent which holds that “equipment” does not constitute “debris,” and noted the materials which were the subject of the Citation—material used to erect the very scaffold involved—were essential to the work being performed by Brand and thus “equipment.” Although it acknowledged that Commission precedent holds that even equipment can constitute debris when it is not kept in a proper organizational state, the Secretary failed to prove that the organization of Brand’s equipment fell below this standard.

Because the concurrence would have vacated the citation under either housekeeping standard, it provides guidance to housekeeping matters in all areas of construction, not just for scaffolds. Although leftover construction materials and unused tools and equipment will likely be considered debris and thus must be kept clear of work areas, materials and equipment which are in line to be used in a given project may take on a different character under the concurring commissioner’s analysis. While it is important for all employers to be cognizant of the appropriate housekeeping standards and to follow them, depending on the facts and circumstances, this decision may provide cited employers additional bases from which to defend against housekeeping violations.