In May, the Texas Supreme Court issued an opinion holding that if a contract mandates written notice, that some form of writing is required. The opinion issued in the case of James Construction Group v. Westlake Chemical Corporation, did not overrule the doctrine of substantial compliance with contractual notice provisions, but held that absent waiver – which can be very difficult to establish – an oral notice does not satisfy a contract’s written notice provisions. Although in a well-reasoned dissenting opinion by Chief Justice Hecht, joined in by three other members of the Court, substantial compliance would have been found as the jury in the trial court found, construction owners, contractors, and subcontractors must give written notices of events or claims if their contracts so mandate in order to protect their rights. From reading the Court’s opinion, the written notice requirement will prevail even if the other party has full knowledge of the conditions that require written notice. The written notice requirements go well beyond construction contracts as they are found in leases of property, sales agreements, and other contracts. Although emails and other forms of written notice should suffice, if a contract specifies a form of written notice to a particular person or sent by registered or certified mail, the written notice should comply with those provisions.
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