Benton T. Wheatley practices in the area of construction law with a focus on construction, design and engineering disputes and transactions, fiduciary responsibilities in relation to private equity investment in the real estate development construction process, and on counseling REITs and private equity firms on rights and options as purchaser of recently completed construction projects with construction or design defects. Mr. Wheatley has practiced in a wide range of construction areas, including complex delay; impact; defective design; defective construction, differing site conditions claims, or fiduciary duties involving mediation, litigation or arbitration; and problem project workouts, including negotiating with sureties and owners. He also has experience with the drafting and negotiation of complex construction, design, counseling private equity firms on managing risk present in their passive limited partner investments, counseling developers and construction managers on policies and processes necessary to comply with fiduciary duties arising from passive limited partner investment in construction projects and engineering contracts and environmental issues concerning construction projects. In addition, while serving as assistant general counsel for a large international architectural/engineering firm, Mr. Wheatley worked on issues regarding project delivery in all fifty states, Mexico, Venezuela, Bolivia, Brazil, and Argentina.
Mr. Wheatley is board certified in Construction Law by the State Bar of Texas Board of Legal Specialization.
In addition to construction law matters, Mr. Wheatley handles administrative matters related to the construction and design industry, as well as environmental and commercial litigation.
Mr. Wheatley is a 1991 graduate of the University of Oklahoma College of Law and a graduate of the University of North Carolina at Chapel Hill.
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
- Lead counsel in matter where general contractor client terminated a construction contract with an owner due to non-payment.
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 roper fix and hopefully resolve the costs without litigation.
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.
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.
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. 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.
- 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
- University of Oklahoma College of Law, J.D., 1991
- University of North Carolina at Chapel Hill, B.A., 1986
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, 2020-2023
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
- 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
- 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