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Benton T. Wheatley

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Overview

Ben has more than 20 years experience in litigating numerous complex construction and environmental matters, negotiation and drafting construction and design contracts, serving as in-house counsel for an international A/E firm, and working on issues concerning the practice of architecture, engineering, and project construction in all 50 states, Mexico and South America. In addition to construction law matters, Ben handles administrative matters related to the construction and design industry, as well as environmental and commercial litigation.

Ben has practiced in a wide range of construction areas such as complex delay, impact, defective design, defective construction or differing site conditions claims involving mediation, litigation or arbitration as well as problem project work-outs, including negotiating with sureties and owners. He has also worked on the drafting and negotiation of complex construction, design and engineering contracts, environmental issues concerning construction projects, including issues related to storm water pollution prevention issues and alternative dispute resolution. Ben serves on the American Arbitration Association Roster of Neutrals for Construction cases. Additionally, he has immense experience representing corporations and professionals in claims before State of Texas administrative agencies, construction project liens and bond claims and project payment issues, performance, defaults, termination, warranty and liquidated damages disputes and jobsite injuries.

Ben's representative projects:

  • Prosecuted multi-million dollar payment claim on behalf of general contractor, against large, national retailer.
  • Defended an engineering firm in a three-week design defect case in Galveston County, Texas, where plaintiff’s demand to the jury was $6.2 million. While other defendants were found liable, Ben’s client received a defense verdict on all of the claims against it.
  • Defended Texas A&M University against a $3 million construction delay/impact claim. Not only did Texas A&M receive a defense verdict but was awarded damages on its counterclaim.
  • Drafted design and construction contract language for Owner, for use of Building Information Modeling (BIM) on a medical center project valued in excess of $300,000.000.
  • Negotiated a series of complex tri-party engineering contracts with a public owner and private concession holder for services on a $1 billion road project.
  • Prosecuted administrative claims against the Texas Department of Transportation on behalf of a road contractor at the State Office of Administrative Hearings.
  • Defended a large contractor on claims of wrongful termination in a week long jury trial in federal court.
  • Defended a structural engineer in a week long jury trial where the jury demand exceeded $800,000. Ben’s client received a defense verdict.
  • Defended an engineering firm on claims against it by the Texas Board of Professional Engineers. All claims against Ben’s client were dismissed.
  • Defended a manufacturer in federal court against accusations it had dumped toxic materials in a Superfund site. Ben’s client received a directed verdict in its favor, and was exonerated.

SIGNIFICANT CASES LITIGATED

  • Elness Swenson Graham Achitects, Inc. v. RLJ II-C Austin Air, LP, 2011 WL 1562891 (Tex.App.-Austin 2011)
  • CCE, Inc. v. PBS & J Const. Services, Inc., 2011 WL 345900 (Tex.App.-Hous. (1 Dist.) 2011)
  • Shiner Moseley and Associates, Inc. v. W.O.H. Enterprises, L.L.C., 2010 WL 1918765 (Tex.App.-Corpus Christi 2010)
  • Dibco Underground, Inc. v. JCF Bridge & Concrete, Inc., 2010 WL 1413071 (Tex.App.-Austin 2010)
  • Alcoa, Inc. v. Contech Const. Products, Inc., 2007 WL 2229830 (W.D.Tex. 2007)
  • Kizer v. Meyer, Lytton, Allen & Whitaker, Inc., 228 S.W.3d 384 (Tex.App.-Austin 2007)
  • May v. National Union Fire Ins. Co. of Pittsburgh, Pa., 84 F.3d 1342 (10th Cir.(Okla.) 1996)
  • May v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 918 P.2d 43 (Okla. 1996)
  • Sun Co., Inc. (R & M) v. Browning-Ferris, Inc. 926 F.Supp. 170 (N.D.Okla. 1996)
  • Sun Co., Inc. (R & M) v. Browning-Ferris, Inc. 919 F.Supp. 1523 (N.D.Okla. 1996)

Memberships & Affiliations

  • American Inns of Court, Master
  • American Red Cross, Central Texas Chapter, Board and Board Executive Committee Member, 2004-2010
  • Association of General Contractors, Central Texas Chapter, Member Legal Affairs Committee, 2011- Present
  • Austin Bar Association, Chair, Breakfast with the Judiciary Committee, 2011- Present
  • Oklahoma Bar Association
  • State Bar of Texas

Awards & Honors

  • AV® Preeminent™ Peer Review Rated, Martindale-Hubbell
  • Texas Bar Association, Life Fellow

Admissions

  • Oklahoma
  • Supreme Court of Oklahoma
  • Supreme Court of Texas
  • Texas
  • United States Court of Appeals for the Tenth Circuit
  • United States District Courts for the Eastern, Northern and Southern Districts of Texas
  • United States District Courts for the Eastern, Northern and Western Districts of Oklahoma

Articles & Speeches