Benton Wheatley, P.C.

Areas of Practice

• Representation of Private Equity Investors: Construction Projects
• Fiduciary Responsibilities Relating to Construction Project Investment
• Representation of Subsequent Purchasers of Construction Projects in Relation to Breaches of Purchase and Sale Representation and Warranties Relating to Property Condition

• Construction and Engineering and Design Transactions

• Construction and Engineering and Design Litigation/Disputes Resolution

• Construction and Engineering and Design Project Work-Outs

Representative Matters

• Obtained a $7.9 million arbitration award for a limited partner who is a majority equity investor in the construction and operation of a high-end living community for adults with intellectual and developmental disabilities.

• Represented a joint venture which included an Engineering News-Record top five firm, managing the legal issues and relationship with a governmental agency owner during completion of major civil infrastructure that experienced significant delays and defects; then resolved a $40 million claim by the governmental agency owner against the client for a fraction of the claim, via an “early” mediation process, conducted virtually.  This matter is thought to be the largest construction suit in Travis County/Austin history.

• Managing counsel for national engineering firm in a claim brought against it by Connect 202 Joint Venture in Phoenix, the project designer/builder alleging overbilling on the largest civil infrastructure project in Arizona history.

• Defended the City of Sugar Land, Texas, against a wrongful termination claim by a specialty contractor on a $75,000,000.00 performing arts center and prosecuted third party claims against others involved in the circumstances leading to the termination; resolved the matter for a fraction of the claim value.

• Represented Methodist Retirement Communities, a faith-based, mission-driven senior living facility spanning thirteen communities in nine Texas cities, in securing an insurance policy limits settlement against an architect and its structural engineer. The settlement, relating to significant structural design defects at a retirement center, came without the client having to file for dispute resolution.

• Represented Peabody General Contractors as lead counsel in formulating price escalation claim on a City of Austin infrastructure project.

• Represented a client who purchased a high profile new multi-use project in San Antonio called the Tribute at the Rim, which was found to have significant water penetration issues. Served as lead counsel, managing the forensic investigation and remediation, and will manage dispute resolution with the designer, builder and developer/seller.

• Represented global professional services firm RPS Group PLC, as lead counsel, in defending engineering malpractice claim in excess of $10 million concerning platting and entitlement for very large residential development in Dallas/Fort Worth area.

• Representing Flintco, LLC, an Oklahoma-based construction company, as lead counsel in a major claim against an electrical contractor who walked off a high profile public project in Oklahoma, costing Flintco approximately $5 million in increased project costs.

• Representing Farmer Bros. Co., a coffee-focused foodservice company based in Texas, in connection with damage to its headquarters/manufacturing/warehouse facility; working with the client through the forensic process, and engaging with the designer/builder to determine the proper fix and hopefully resolve the costs without litigation.

• Lead counsel in matter where general contractor client terminated a construction contract with an owner due to non-payment.

• Representing a holding company of large healthcare REIT Omega Healthcare in a claim of fraud, breach of contract and alter-ego against the seller of a healthcare facility which has significant foundation defects that were not properly disclosed as part of the sale.

• Managing review, drafting and negotiation of upstream and downstream contracts for a national engineering firm on large infrastructure projects around the U.S. and serve as Managing Counsel for a claim against it on the largest civil infrastructure project in Arizona history.

• Successfully settled a major claim in Chicago, on behalf of a pre-fabricated structural column specialty manufacturer that involved a potentially catastrophic structural failure on a high rise project and demonstrated that the issues were caused by others.

• Managed cost recovery actions against subcontractors, on behalf of a major regional contractor, when institutional owner imposed liquidated damages on client.

• Prepared and negotiated design and construction contracts and oversaw entity formation and domestication for large institutional projects in Cochabamba, Bolivia; San Pedro Garza Garcia, Mexico; Recife, Brazil; Buenos Aires, Argentina; and Caracas, Venezuela.

• Established on site relationships with local counsel and local consultants in Cochabamba and La Paz, Bolivia and Monterrey and San Pedro Garza Garcia, Mexico to assist with large institutional projects.

• Drafted design and construction contract language for owner, for use of Building Information Modeling (BIM) on a medical center project valued in excess of $300 million.

• Negotiated and drafted a series of complex, tri-party engineering contracts with a public owner and private concession holder for services on a $1 billion road project.

• Managed contracts for design and construction through a client's design and construction management office in Mexico City, Mexico.

• Managed contracts for design and construction through a client's design and construction management office in Mexico City, Mexico.

• Defended potentially responsible party in Federal Court CERCLA Superfund Cost Recovery claim in two-week bench trial, and obtained directed verdict on client’s behalf.

• Defended a large contractor on claims of wrongful termination in a jury trial in federal court.

• Defended a structural engineer in a jury trial concerning design of structurally suspended slab/foundation. The client received a defense verdict.

• Defended Texas A&M University against a $3 million construction delay/impact claim. Not only did Texas A&M receive a defense verdict, but the University was awarded damages on its counterclaim.

• Prosecuted claim against construction company and construction manager, on behalf of retail project owner, as a result of construction defects in foundation.

• Prepared a Master Service Agreement and related documentation for the major expansion of an information technology company's data storage facilities in multiple U.S. locations.

• Represented hotel owner and obtained Federal Court ruling ordering arbitration clause against non-signatory construction company parent to arbitration. Claim on behalf of hotel owner against construction company and its parent in two-week arbitration, resulting in arbitration award in favor of owner client in the amount of $5,240,000.00. Federal Court confirmed award.

• Prepared a Master Service Agreement and related documentation for publicly traded company’s expansion of its industrial production capacity.

• Prepared and managed multiple Design Build Agreements on behalf of a publicly traded company, consolidating its headquarters, manufacturing and distribution facilities and relocating them from California and other US locations to North Texas.

• Prosecuted a multi-million dollar payment claim on behalf of a general contractor, against a large, national retailer.

• Defended an engineering firm in a three-week design defect case in Galveston County, Texas, where the plaintiff's demand to the jury was $6.2 million. The client received a defense verdict on all of the claims against it, while other defendants were found liable.

• Lead counsel in two-week jury trial on behalf of hotel owner against construction company and design firm. Settled with construction company during trial. Obtained jury verdict against design firm with significant damages and attorney fee awards.

• Served as panel chair on a large, international arbitration matter through the International Center for Dispute Resolution.

Admissions

• Oklahoma
• Texas
• U.S. District Court for the Eastern District of Texas
• U.S. District Court for the Northern District of Texas
• U.S. District Court for the Southern District of Texas
• U.S. District Court for the Western District of Texas
• U.S. District Court for the Eastern District of Oklahoma
• U.S. District Court for the Northern District of Oklahoma
• U.S. District Court for the Western District of Oklahoma

Education

• University of Oklahoma College of Law, J.D., 1991
• University of North Carolina at Chapel Hill, B.A., 1986

Professional Activities

• Board Certified in Construction Law by the State Bar of Texas Board of Legal Specialization

• Panel Member, American Arbitration Association Roster of Construction Neutrals

• Master, American Inns of Court

• State Bar of Texas
  - Construction Law Section
  - The Construction Law Journal, Editorial Board

• American Bar Association
  - Forum on Construction Law

• Austin Bar Association
  - Breakfast with the Judiciary Chair, 2011-2012

• Association of General Contractors, Central Texas Chapter
  - Member, Legal Affairs Committee, 2011-2016

Honors and Awards

• Named the Best Lawyers "Lawyer of the Year" in Construction Law, Austin, 2024

• Listed in The Best Lawyers in America, 2018-2024

  • Construction Law
  • Construction Litigation
  • Commercial Litigation
  • Alternative Dispute Resolution
• Listed in Chambers USA: America's Leading Lawyers for Business, 2020-2024

• Texas Bar Foundation, Life Fellow

• AV Preeminent® Peer Review Rated by Martindale-Hubbell®

Civic and Charitable Activities

• Folds of Honor Foundation, 2008-present
  - Central Texas Chapter, Founder and Board of Directors, 2011-present
  - Board Chair, 2011-2018

• American Red Cross of Central Texas
  - Board Member, 2005-2010

Selected Publications

• Co-author, “The Origin of the Law of Impossibility and Force Majeure in American Jurisprudence and Its Application to Covid 19 Claims,” Construction Law Journal, Winter/Spring 2024
• Author, "Private Equity in the Real Estate Development and Construction Industries," The Construction Lawyer, February 2023
• Principal Author, "Private Equity in the Real Estate Development and Construction Law Industries," Construction Law Journal, Volume 17, Number 2, December 2021
• Co-author, "CARES Act Impacts Engineering and Construction Sector," Duane Morris Alert, March 30, 2020

• Author, "Joint and Several Contractual Liability and Settlement Credits: A Look at the One Satisfaction Rule in Texas," State Bar of Texas, Construction Section, Annual Conference, March 2017

• Author, "The Attorney-Client and Attorney Work—Product Privileges: What Every Construction Lawyer Needs to Know," Construction Law Journal, Volume 14, Number 1, 2017

• Author, "Assignment Issues in Construction Contracts" Construction Law Journal, Volume 12, Number 2, 2016 (Texas Paper)

• Author, "Assignment Issues in Construction Contracts," The Construction Lawyer, Winter 2016 (National Paper)

• Author, "What's the Appeal of Arbitration? Overturning Arbitration Awards and the New Appellate Rules," American Bar Association Forum On Construction Annual Meeting, October 2015

• Author, "Design Professionals and the Economic Loss Rule," State Bar of Texas, Construction Section, Annual Conference, 2014

• "Navigating the Labyrinth of Consequential Damages in the Construction Industry: A History of and Legal Approaches to Living with Them," The Construction Lawyer, Summer 2013

• "The Universal Applicability of Pass-Through Claims to All Parties to a Construction Project," The Construction Lawyer, Winter 2012

• Author, "Living in a Material World," Construction Law Journal, Winter 2007

• Author, "An Introduction to Building Information Modeling," The Construction Lawyer, Fall 2007

• Author, "Defending Subrogation Claims in Design and Construction Cases," The Construction Lawyer¸ Summer 2005

Media Hits

• Featured in “Force Majeure & Impossibility for Covid-19 and Other Construction Claims,” ABA Construction Law Today Podcast, June 5, 2024
• Featured in “Private Equity in Construction,” ABA Construction Law Today Podcast, September 11, 2023
• Quoted in "How We Won a $7.9 Million Arbitration Award: Construction Litigator Talks Shop," Texas Lawyer, October 22, 2020

Selected Speaking Engagements

• Speaker. “Design Professionals and the Economic Loss Rule,” State Bar of Texas, Construction Section, Annual Conference, 2014

• Speaker, "What's the Appeal of Arbitration? Overturning Arbitration Awards and the New Appellate Rules," American Bar Association Forum On Construction Annual Meeting, October 2015

• Speaker, "Joint and Several Contractual Liability and Settlement Credits: A Look at the One Satisfaction Rule in Texas," State Bar of Texas, Construction Section, Annual Conference, March 2017