I Will Not Go Quietly: Termination at All Levels of Construction (2023 Construction Law Winter Program)
8:25 Registration and Continental Breakfast
8:55 Welcome and Introductions
9:00 The Heart of the Matter: The Owner's Right to Terminate
James Bernier, North Carolina Department of Justice, Raleigh
Parties in a construction contract aren't stuck together for life. When in a contract, communication and documentation are key to a healthy contractual relationship. Recognizing when the relationship has soured, when to cut ties, and the options for letting go are also important.
10:00 Break
10:10 Leather and Lace: How Design Professionals Fit in a Termination
The design professional is a chameleon — sometimes in the owner's corner and sometimes in the contractor's. How the architect or engineer should handle the owner terminating a contractor, or a contractor walking off a job, can be fraught with peril. And sometimes the designer needs to walk if an owner makes unreasonable demands or a contractor's work on a project puts him/her in jeopardy. This session deals with the myriad roles of the designer in handling a termination (or firing) of others and in terminating his/her own work on a project, as well as your role in advising the design team in making (or assisting in) a clean break.
11:10 Break
11:20 The End of the Innocence: How to Represent a General Contractor Being Terminated for Cause
Ryan L. Beaver, Bradley Arant Boult Cummings LLP, Charlotte J. Patrick Haywood, Carruthers & Roth P.A., Greensboro
Discuss from a contractor's perspective how best to address an owner's declaration of default for both public and private jobs. This session also addresses the contractor's need to consider whether to save the project, themselves, or maybe both.
12:20 Lunch Break
1:20 New York Minute: What Performance Bond Sureties Face When the Termination Call Comes
Daniel R. Hansen, Shumaker Loop & Kendrick LLP, Charlotte
Explore the process that a surety company undertakes when its principal is defaulted and terminated. Topics include bond forms, distinctions between default and termination, the surety's rights and duties to investigate and perform, performance bond defenses, and more.
2:20 Break
2:30 The Boys of Summer: Considerations for Subcontractors and Suppliers When the Prime Gets Canned
Steven A. Bimbo, Smith Terry & Windle, Charlotte Bentford E. "Ben" Martin, Hamilton Stephens Steele + Martin PLLC, Charlotte
This presentation focuses on subcontractor considerations following the termination of a general contractor for cause as well as for convenience. The discussion includes considerations for obtaining payment for work performed prior to the termination, whether the subcontractor can stop working and terminate the subcontract or must keep working (and, if so, for whom), considerations regarding payment for work not yet performed, and the effect of an automatic assignment of subcontracts following a termination for cause. Also hear about the contract provisions addressing all these considerations and how the provisions can be modified to protect the subcontractor.
3:30 Break
3:40 All She Wants to Do Is Dance: Ethical Quandaries for Lawyers Advising Clients in Terminations*
Alex Ferri, Ward and Smith PA, Raleigh Jason T. Strickland, Ward and Smith PA, Raleigh
This segment is an examination of ethical issues frequently encountered in exercising or responding to terminations in the construction context, including the potential for conflicts of interest when the lawyer represents multiple parties and the lawyer becoming a fact witness in termination situations. We also discuss the constraints on the lawyer demanding cure actions or exercising the termination right.
It's easy to get into a construction contract. It's a lot messier to get out of one.
Contributors
Andrew P. Atkins
Andrew P. Atkins is an attorney at Smith Anderson in Raleigh as a member of the firm's Construction and Commercial Litigation practice groups. He is a seasoned construction attorney with significant experience in litigation and contracting. He also co-chairs the Real Estate Litigation practice at the firm. He represents owners, contractors and developers in multi-party disputes involving public and private commercial projects. He regularly counsels clients on risk management issues and claim development during construction.
Andrew has significant experience in mediation, litigation, and arbitration and has been involved in projects across North Carolina, throughout the southeast, in Puerto Rico and in Eastern Europe. He has been involved in numerous cases with millions of documents produced in discovery and is able to assist clients in the development of strategies to efficiently process and produce large volumes of documents while minimizing discovery costs. Based on his experience, he serves as the firm's eDiscovery Partner-In-Charge. He also regularly represents clients before the various North Carolina construction-related licensing boards and counsels them on applicable laws and rules.
Andrew is committed to public service. Most recently, he was appointed by Speaker Tim Moore to the North Carolina Rules Review Commission where he serves as 1st Vice Chair. He was previously appointed by Chief Justice Mark Martin as a Reporter on the North Carolina Commission on the Administration of Law Justice. He has also served in several roles within the North Carolina Bar Association and the American Bar Association's Construction Forum.
Prior to joining Smith Anderson, Andrew served as a Judicial Law Clerk to Justice Mark Martin, Supreme Court of North Carolina. He also practiced at the Office of the Comptroller of the Currency, United States Department of the Treasury (OCC), where he often worked with national banks on regulatory matters affecting their business operations and pursued enforcement actions on behalf of the OCC.
Andrew earned his B.A. in Political Science, with honors, and Economics, with highest distinction, from the University of North Carolina at Chapel Hill and his J.D., with high honors, from the University of North Carolina at Chapel Hill School of Law.
Ryan L. Beaver is a partner at Bradley Arant Boult Cummings LLP in Charlotte. He is a member of the Construction and Litigation Practice Groups. His primary focus is large public and private commercial construction practice disputes.
Ryan has extensive experience in representing contractors, subcontractors, and sureties in various state and federal courts, as well as private arbitrations. He also assists clients in drafting and negotiating their construction contracts to meet the client's specific needs on each project.
Ryan has taught numerous seminars and classes regarding subjects such as AIA contracts, delay damages, contract termination, documentation of construction disputes, and pursuing construction claims through the bankruptcy process.
Ryan was recognized in 2010 as a Rising Star by Super Lawyers magazine.
Ryan eanred his B.A., cum laude, from Wake Forest University and his J.D. from Wake Forest University School of Law.
James Bernier is Special Deputy Attorney General at the North Carolina Department of Justice in Raleigh. His practice focuses on contract, property, construction and insurance disputes and litigation.
In his time with the DOJ, James has represented the Department of Environmental Quality in enforcement actions, the Sedimentation Control Commission, the State Board of Elections, and the Innovations Council. For the last three years, he has been in the Property Control Section where he is assigned to the State Building Commission and the State Construction Office. He represents the State in construction and real property matters, disputes, and litigation.
James is admitted to the bars of The U.S. Virgin Islands, Virginia and North Carolina. He has practiced in administrative hearings, magistrate courts, state courts, federal district courts, and the Third and Fourth Circuit Courts of Appeals. James is also admitted to the U.S. Supreme Court.
Before joining the NC DOJ in September 2014, James was a partner in a law firm in the U.S. Virgin Islands.
James earned his B.A., summa cum laude, in Social Sciences from the University of the Virgin Islands and his J.D. from American University Washington College of Law.
Steven A. Bimbo is a partner at Smith Terry & Windle in Charlotte. In his principal area of practice of construction litigation, he represents general contractors, owners, developers, subcontractors, vendors, and sureties at every stage of a construction project, including pre-construction, licensing, preparation of contract documents, bid mistakes, defense of claims and termination.
Steven has a long-standing passion for residential and commercial development and construction and a passion for learning and understanding the legal and technical complexities of construction projects. These passions fit well with his career choice as he has gained significant experience arbitrating and litigating all types of construction disputes, from a billion dollar environmental remediation project to large and small scale public and private project payment disputes. Representative matters for Steven cover an array of construction sectors, including buildings, heavy-highway, industrial, water, energy, manufacturing, sewer/waste, telecom, hazardous waste collection, environmental remediation, and residential. Avoiding disputes is as important to him as defending and prosecuting claims.
Maintaining a niche practice handling creditor's rights litigation, Steven represents creditors and debt collection agencies against individual and class action allegations invoking federal and state consumer protection laws, including the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the Telephone Consumer Protection Act (TCPA).
Steven is a member of the North Carolina Bar Association and the Greensboro Defense Bar.
Steven earned his B.A. in Political Science with a concentration Law and Justice from North Carolina State University and his J.D., magna cum laude, from Charlotte School of Law.
Melissa Dewey Brumback is a Partner with Ragsdale Liggett PLLC in Raleigh. With 23 years of experience, her practice is focused on construction law and business disputes. She primarily represents architects and engineers, advising them on contract proposals to limit risks and defending them when litigation does arise.
Melissa's cases have included construction administration and management claims, plan defect claims, testing failure claims and delay claims. Her practice includes the defense of all sizes of claims, from private commercial buildings to large, multi-million dollar public projects. She defends clients in State and Federal courts as well as in binding arbitration.
In addition to construction cases, Melissa handles commercial litigation, business torts, contract negotiation, medical negligence claims, product defect liability, premises liability, title insurance litigation, and director and officer liability.
Since 2009, Melissa has written and edited the site Construction Law in North Carolina, which is dedicated exclusively to the design professional community. The blog is critically-acclaimed at the national level, and has been awarded the "Best Construction Blog" prize by Design and Construction Report.
Melissa is a Panel Member of the American Arbitration Association in Construction Law.
Melissa earned her B.A. from University of North Carolina at Chapel Hill and her J.D. from the University of North Carolina at Chapel Hill School of Law.
Alex Ferri is a litigation attorney with Ward and Smith PA in Raleigh. Her practice focuses on construction. She helps clients with general litigation matters, assisting through all phases of the litigation process, from investigation and pleading to trial, settlement and appeal.
As a licensed North Carolina general contractor, Alex has years of experience working in construction. She brings that expertise to her legal practice, where she helps draft and negotiate contracts between project owners, designers, contractors, and subcontractors.
Alex earned her B.A.from Clemson University and her J.D. from Wake University School of Law. While in law school, she was involved in several organizations, including Moot Court, Trial Bar, and First Generation Law Students Organization, earned numerous merit-based scholarships, and was awarded the Suzanne Reynolds Award for her work in her 1L writing class. As an avid writer, she served as a writing teaching assistant her 2L year and participated in Wake Forest's Appellate Advocacy Clinic her 3L year. In this clinic, Alex co-wrote two appellate briefs, one of which was filed in the Supreme Court of the U.S. and quoted by Justice Breyer in his concurring opinion.
Before joining Ward and Smith full-time, Alex served as a summer associate in 2021.
Daniel R. "Dan" Hansen is a partner at Shumaker Loop & Kendrick LLP in Charlotte. In practice for more than two decades, which included many jury trials, bench trials, and arbitrations, he represents businesses of all sizes in a variety of legal disputes and commercial transactions.
A diplomatic problem-solver, Dan devotes approximately sixty percent of his practice to surety and construction law, representing sureties, contractors, owners, and construction materials manufacturers, including window manufacturers in commercial and residential claims, both in federal and state courts throughout the Southeast. His ability to remain diplomatic and solve complex problems also allows him to successfully represent clients in matters, including shareholder disputes and broker-dealer litigation.
Dan is a member of the American, Mecklenburg County and North Carolina Bar Associations.
Daniel earned his B.A., summa cum laude, from Bowling Green State University and his J.D., magna cum laude, from Case Western Reserve University.
J. Patrick Haywood is a director at Carruthers & Roth PA in Greensboro. He has tried over 70 cases to juries in his career and has appeared in nearly all of North Carolina's 100 counties. His practice focuses on business matters, construction disputes, shareholder disputes, or any other needs of your business.
Patrick has been recognized as a senior fellow of the Litigation Counsel of America, an invitation-only trial lawyer honorary society composed of less than one-half of one percent of America's lawyers. He frequently lectures on construction-related issues for trade organizations and for groups of contractors, developers and design professionals.
Patrick is also a Fellow of the American Bar Foundation and a member of the Greensboro and North Carolina Bar Associations and the North Carolina Association of Defense Attorneys.
Patrick earned his B.A., magna cum laude, from North Carolina State University and his J.D., magna cum laude, from the University of North Carolina at Chapel Hill School of Law.
Bentford E. "Ben" Martin is an attorney with Hamilton Stephens Steele + Martin PLLC in Charlotte. He has been a civil litigation attorney for over 30 years, having handled numerous cases in federal and state courts, as well as before administrative bodies and arbitrators, and appeals to the North Carolina Court of Appeals, North Carolina Supreme Court, Fourth Circuit Court of Appeals and U.S. Supreme Court.
For more than a decade, Ben has focused his practice on the areas of construction law and litigation, representing general contractors, trade contractors and subcontractors, owners, developers, as well as sureties, municipalities, designers and owners' associations in contract review, negotiation and preparation, as well as claims, litigation and arbitration. He has prepared contracts and handled claims concerning a wide variety of projects including hospitals, schools, condominium and apartment projects, hotels, manufacturing facilities, shopping centers, subdivisions and highways. He also has extensive litigation experience with real estate disputes and the areas of products liability, insurance claims and other areas of commercial litigation.
Ben has an AV Preeminent Peer Rating by Martindale-Hubble, and has been selected annually for inclusion in Business North Carolina's "Legal Elite," North Carolina "Super Lawyers" and Best Lawyers in America, in the fields of construction law and litigation, since 2005-2006. He was ranked as Lawyer of the Year – Construction Law (Charlotte 2014, 2016) by Best Lawyers. He currently serves on the Council of the Construction Law Section of the North Carolina Bar Association.
Ben earned his B.A., magna cum laude, from Wake Forest University and his J.D., with honors, from University of North Carolina at Chapel Hill School of Law.
Jonathan W. Massell is a shareholder at Maynard Nexsen PC in Raleigh. He practices in the areas of construction law and business litigation. He frequently represents owners, contractors, subcontractors and suppliers on the front end by assisting in contract drafting and negotiations. When disputes arise, he has experience representing clients in a wide array of construction issues, including, but not limited to contractual disputes, defects, delays, and lien and bond claims. He also represents clients in land use and zoning matters, both at the early development and planning stage and in litigation.
Outside of the construction industry Jonathan has broad experience representing clients in various commercial, collection and insurance coverage disputes, with a particular focus on trucking industry defense work. He has helped resolve many disputes at mediation, has argued numerous motions in state court and has federal trial experience.
Jonathan earned his J.D., with high honors, from the University of North Carolina School of Law, where he was a member of the North Carolina Law Review and the Graduate Student Attorney General's Staff. He graduated with a B.A. in History and Spanish from the University of Virginia.
Charles G. "Charlie" Middlebrooks is an associate at Parker Poe Adams & Bernstein LLP in Charlotte. He focuses on commercial and construction litigation. He routinely represents clients in various kinds of civil suits, including complex civil litigation in North Carolina's trial courts, the North Carolina Business Court, and in the federal district courts in North Carolina.
Charlie's recent experience includes serving as the second chair in a multi-week arbitration where he conducted the direct examination of the primary expert witness, cross-examined witnesses, and prepared other witnesses for direct examination.
Charlie is a former law clerk for Chief Judge Laura Beyer and Judge George Hodges of the U.S. Bankruptcy Court for the Western District of North Carolina. He earned his law degree from Wake Forest University School of Law. While there, he was a notes and comments editor for the Wake Forest Journal of Law and Policy, a board member of Moot Court, and a judicial extern for Chief Judge Margaret Bartley of the U.S. Court of Appeals for Veterans Claims. He was also on the Appellate Advocacy Clinic, where he drafted a brief in Department of Commerce v. New York, then pending before the U.S. Supreme Court.
Charlie is a leader within the North Carolina Bar Association's Construction Law Section, serving on its executive council.
Charlie earned his B.A., cum laude, in Political Science from University of South Carolina and his J.D. from Wake Forest University School of Law.
Sandra "Sandy" Mitterling Schilder is a Partner at Ragsdale Liggett PLLC in Raleigh. She is a senior litigator with over 25 years of experience. Her practice is focused on civil litigation primarily in construction and commercial liability.
Sandy's previous experience as a plaintiff's attorney offers her invaluable insight in defending design professionals such as architects and engineers where she has managed hundreds of construction defect, negligence claims and contract disputes. She has worked on cases involving claims of all sizes from single family residential to multi-million dollar commercial, industrial projects and roadway projects.
Sandy also handles complaints before state licensing boards for professionals and corporate clients of all occupations. In her employment law practice, she works with corporate and non-profit clients to ensure understanding of and compliance with state and federal regulations and advises on good policies including drafting employee handbooks. Sandy defends EEOC, DOL, ADA and other legal actions related to employment.
Sandy is a member of the North Carolina Association of Defense Attorneys and the North Carolina and Wake County Bar Associations.
Sandy earned her A.A. from Peace College, her B.A. from University of North Carolina at Chapel Hill and her J.D. from University of North Carolina at Chapel Hill School of Law.
Brian J. Schoolman is an attorney with Safran Law Offices in Raleigh. He has been with Safran Law Offices since 2003, and has represented clients in all roles in the construction industry, including commercial, residential, and public owners, general contractors, subcontractors, suppliers, design professionals, and trade associations. His practice includes construction law and litigation, commercial litigation, contracts, corporate organization and governance, administrative hearings, and appellate practice, both in state and federal courts. He has also served as a lobbyist and advocate on several pieces of construction legislation before the North Carolina General Assembly, including bills on public construction delivery methods and on prequalification.
Brian is admitted to the North Carolina and California State Bars, the 4th Circuit Court of Appeals, and all three Federal District Courts in North Carolina. Brian is a member of the North Carolina Bar Association Construction Law Section, and the American Bar Association Forum on Construction Law. He is also certified as a Superior Court Mediator by the North Carolina Dispute Resolution Commission (NCDRC).
Brian earned his J.D. from the Duke University School of Law, and graduated, magna cum laude, from Claremont McKenna College, earning his B.A., with honors, in Government.
Jason T. Strickland is a construction litigator with Ward and Smith PA in Raleigh. He represents and assists contractors, subcontractors, owners, lenders, and design professionals in all areas of the construction and development process. His goal is to help clients through the building process in the most efficient and cost effective manner. His practice experience includes civil litigation, preparation and negotiation of construction contracts, and development of best practices for construction companies.
Prior to joining the firm, Jason clerked for Chief Justice Mark D. Martin of the North Carolina Supreme Court.
Jason is a member of the Greater Raleigh Chamber of Commerce (Young Professionals Network) and the North Carolina Bar Association.
Jason earned his B.S., cum laude, from North Carolina State University and his J.D., cum laude, from the The University of North Carolina School of Law.
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