North Carolina’s New Attorneys’ Fees Statute

Posted on October 11, 2011 by Gregory L. Shelton Leave a comment

North Carolina to Enforce Reciprocal Attorneys’ Fees Clauses in Business Contracts Entered on or after October 1, 2011

 

 

By: Gregory L. Shelton
Horack, Talley, Pharr & Lowndes, P.A.
gshelton@horacktalley.com

For years, North Carolina lawyers have had to explain to their clients that contract provisions entitling the winning litigant to an award of attorneys’ fees are not enforceable. We would explain that North Carolina courts would not award attorneys’ fees absent statutory authority or some exception to the rule. In the construction context, attorneys’ fees are recoverable in lien and bond enforcement actions and in cases brought under the Unfair or Deceptive Trade Practices Act.

Senate Bill 414 (Session Law 2011-341), signed into law on June 27, 2011, changes the status quo. Under the new law, reciprocal attorneys’ fees provisions in “business contracts” entered on or after October 1, 2011 will be enforceable in court. The term “business contract” is defined in the statute as a contract “entered into primarily for business or commercial purposes,” and does not include “a consumer contract, an employment contract, or a contract to which a government or a governmental agency of this State is a party.” Notably, the attorneys’ fees provision will be enforced “only if all of the parties to the business sign by hand the business contract.”

I recognize that many in the legal and business community will celebrate this new statute. In the abstract, it makes sense to require the bad guy to pay the good guy’s attorneys fees. But consider the fact that many legal disputes are determined on purely legal principles, such as a statute of limitations defense, and not on the actual merits of the case. Also, in many cases, the recovery of attorneys’ fees becomes a “case within a case”; and entirely new battleground. Attorneys’ fees provisions are certainly a game-changer, but how the game will be changed will depend upon the particular facts and circumstances at play in the case, and the financial resources and personalities of the parties.

Fortunately, the General Assembly smoothed out the rough edges by allowing courts or arbitrators to consider the all of the facts and circumstances involved, including the financial resources of the parties, the behavior of the parties during settlement negotiations, the amounts of settlement offers as compared to the verdict, and the award of fees in similar business cases.

 

NC Law , , ,

Liens, Leases, and Loopholes

Posted on September 8, 2011 by Gregory L. Shelton Leave a comment

The struggle to survive in harsh conditions depicted in Winslow Homer’s masterpiece “The Fox Hunt”

Liens, Leases, and Loopholes

Complex Real Estate Agreement Defeats Mechanic’s Liens

By: Gregory L. Shelton

Shelton Law Carolinas
(704) 940-9012

In the current unfavorable economic climate, the ability to assert lien rights can determine economic life or death for those who furnish labor or materials to construction projects.  On the other side of the equation, developers and owners are taking matters into their own hands to avoid costly and disruptive liens. For example, owners are more closely monitoring downstream payments, strictly enforcing lien waiver requirements, and communicating directly with first, second, and third tier subs and suppliers as the project progresses. While these risk mitigation techniques are easy to implement, owners desiring even more protection against liens are structuring development deals to take advantage of loopholes or weaknesses in North Carolina’s mechanic’s lien law.

In Pete Wall Plumbing Co., Inc. v. Sandra Anderson Builders, Inc., et al., COA09-1449-2 (Sept. 6, 2011), the Greensboro Housing Authority (the “Housing Authority”), a quasi-governmental entity, employed this latter technique to effectively eradicate lien rights for the subcontractors and suppliers involved in the construction of six low-income homes.  Through a series of transactions, the Housing Authority, its construction lender, the developer, Willow Oaks Development, LLC (“Willow Oaks”), and the general contractor, Sandra Anderson Builders, Inc. (“SAB”), effectively eliminated the lienable property interest.

The details of the plan are set forth in the Court of Appeals’ lengthy opinion, but in short, the Housing Authority leased the six properties to Willow Oaks who, in turn, subleased the properties to SAB. The subleases required SAB to construct the single family homes on the properties, and further provided that SAB would be the “owner” of the improvements during the term of the Subleases. Upon completion of the work, SAB was required to “convey the Improvements to a Homebuyer in accordance with the provisions set forth in the Master Ground Lease.” The Subleases were recorded with the Guilford County Register of Deeds.

SAB, the now defunct general contractor/subtenant/“owner,” failed to pay its first-tier subcontractor, Pete Wall Plumbing Co., Inc. (“Pete Wall”), for plumbing supplies and services furnished on the properties.  By the time Pete Wall served the interested parties with liens on the contract funds and properties, four of the six properties had already been conveyed by “owner” SAB to the new homeowners, and the two unsold properties were subject to the construction lender’s priority interest in foreclosure.

Pete Wall filed a lawsuit to enforce its liens, but the trial court ordered that the liens be discharged (canceled) on the grounds that Pete Wall’s lien rights encumbered only SAB’s interest in the properties, and SAB’s interest in the properties terminated when the properties were sold.

The Court of Appeals agreed with the trial court, observing that it was ultimately Pete Wall’s  decision “to furnish materials to an entity with only a time-limited interest in the properties.” The Court also noted that the extent and terms of SAB’s interest in the properties were a matter of public record. In his concurring opinion, Judge Steelman agreed with the Court of Appeals’ conclusion, but expressed concern about the use of complex real estate agreements to “effectively eviscerate the constitutionally protected lien rights of laborers and materialmen.”

The Pete Wall decision will be attacked and defended by the various constituencies on legal and moral grounds. There is much to debate, because the Court of Appeals could have employed the language of Chapter 44A (the lien statute) to reach the opposite result. But for now, everyone involved in construction should recognize what the decision means going forward. For owners and developers, the Pete Wall decision represents a green light for Rube Goldberg-type real estate transactions designed to eliminate the possibility of any lien ever attaching to their property. For potential lien claimants (contractors, subs, suppliers, laborers, and design professionals), the decision highlights the importance of due diligence before signing on the dotted line.

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South Carolina’s “27-1-15” Letter

Posted on September 2, 2011 by Gregory L. Shelton Leave a comment

South Carolina’s “27-1-15” Letter

By:  Gregory L. Shelton

Shelton Law Carolinas

South Carolina law provides the unpaid contractor several effective tools to pry money away from owner or contractor who has a difficult time letting go. One such tool is the “27-1-15” letter.

Section 27-1-15 of the South Carolina Code of Laws provides the unpaid “contractor, laborer, design professional, or materials supplier” a mechanism to recover attorneys’ fees and interest against a party wrongfully withholding payment.  To take advantage of section 27-1-15, the person seeking payment must first satisfy the notice requirement of the statute by sending to the person upon whom the claim is made “due and just demand” by certified or registered mail. The debt must arise from labor, services, or materials furnished under contract for the improvement of real property.  The “just and due demand” is frequently made by the contractor’s attorney on firm letterhead.

Satisfaction of the notice/service requirement automatically imposes upon the recipient a duty “to make a reasonable and fair investigation of the merits of the claim and to pay it, or whatever portion of it is determined as valid, within forty-five days from the date of mailing the demand.”  If the party withholding contract funds fails to properly investigate the claim, or fails to pay all or a proper portion of the claim, “he is liable for reasonable attorney’s fees and interest at the judgment rate from the date of the demand.” A good 27-1-15 letter explains to the recipient the consequences of routing the letter to the “circular file.”

Section 27-1-15 offers real bang for the buck. The prospect of paying attorneys’ fees and interest horrifies those owners and, down the chain, those contractors, who may view holding money as a sidecar business enterprise.

Finally, keep in mind that the 27-1-15 letter (or “demand”) is but one of many powerful tools made available to the unpaid contractor by South Carolina law. We’ll look at other South Carolina heavy equipment in future posts.

Photo courtesy of Charleston Daily Photo.

 

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Bill Caldwell Talks Construction in the Carolinas

Posted on August 26, 2011 by Gregory L. Shelton Leave a comment

Bill Caldwell, President, Waldrop, Inc.

Bill Caldwell Talks Construction in the Carolinas

By:  Gregory L. Shelton

Shelton Law Carolinas
It’s been a busy time for me in Lawyerland, but I would not be able to enjoy my weekend if I failed to update my blog today.

And what an update it is, folks.

Several weeks ago, I attended the ABC of the Carolina’s annual conference in Charleston.  It was great to see all of the familiar faces and catch up with the industry “goings-on.” During the conference, I managed to score an interview with Bill Caldwell about the state of the construction industry. Bill has served as Chairman of ABC of the Carolinas for the past year, and did a great job keeping ABC members updated on issues and events by regular email blasts.

But first some background on Mr. Caldwell.  Bill is President of Waldrop, Inc., an established mechanical contractor headquartered in Spartanburg, SC. Bill has been involved in the construction industry for nearly four decades, and over that time has held various executive operations and sales management positions in both the general contracting and mechanical contracting fields. Bill joined Waldrop’s management team in 2004 as Vice President of Operations, and assumed the role of President in 2009. While at Waldrop, Bill spearheaded a strategic initiative to expand Waldrop’s services, market sectors, and geographic footprint. Under Bill’s leadership, Waldrop became the first mechanical contractor in South Carolina to implement a registered apprenticeship program for its employees. Bill graduated from USC in 1974 with a degree in business administration (accounting).

I could go on and on about Bill’s experience and accomplishments, but you get the idea. Bill is the consummate professional, and he went above and beyond the call of duty in answering my questions.

Shelton:  What have you learned over the past year in your role as Chairman of ABC of the Carolinas?

Caldwell: My time as Chairman of the ABC of the Carolinas has reinforced to me that our industry and everyone who works in and/or supports construction at every level have enormous challenges ahead. We must not be afraid to take action to prompt needed change for our industry. We must be vigilant by confronting an array of issues head on. Such current critical issues are as follows:

  • Overwhelming government regulation impacting our business
  • The need for tax reform
  • Maintaining the right to work environment in the Carolinas
  • Financial institutions making working capital virtually inaccessible to our members
  • A skilled workforce that will be shrinking as baby boomers begin to retire
  • A lack of in-house training at every level by many in our industry
  • The shortage of young people currently entering the construction field
  • Continuing our fight for free enterprise and the merit ship philosophy
  • The increasing number of industry business failures coupled with many others who are currently operating on the edge

These issues threaten our very businesses and the livelihoods of all construction employees. As the leading construction industry association, we must lead the way in working together as a united membership to enact the needed change for the good of our industry. Our very business survival depends on it!

S:  What are the greatest threats to the merit shop philosophy right now?

C: One significant threat to our merit shop philosophy is the owner implementation and requirement of project labor agreements (PLAs) on future projects. The use of PLAs would eliminate the opportunity for any open shop contractor to compete for any project work package; thus eliminating the principles of free enterprise and open competition.

Another threat is the pending card check legislation in the Congress. If that were to become law, the ability of a union to organize a company’s workers would be made much easier without a secret ballot. If such an event were to happen, a federal arbitrator would deliver the news of the union’s successful card check effort and give the business owner 60 days to negotiate labor agreements for the respective trades. Having to deal with an arbitrator and become a closed shop organization could cause many open shop contractors to close their businesses rather than to have to deal with the government and union.

S:  Why are political involvement and training top priorities for ABC of the Carolinas?

C: The political world we live in today is nothing short of chaotic. If we are going to have a chance in prompting positive change for our industry, it is essential that we have elected officials in office who support our cause. As a chapter, we need our members to get involved in the political scene at the local, state, and national levels. We need to take action to personally call upon our elected officials to inform them of the issues we have and gather their support for legislation that will make things better. Much more personal contact with elected officials and those running in the 2012 elections is needed if we are to have candidates who can prompt the needed positive change. We must also have our members step up with financial support for those candidates who support our initiatives. By joining the ABC political action committee (PAC), we can accumulate financial support for worthy candidates in their campaigns. With the 2012 elections right around the corner, now is the time to build the financial resources through our PAC for this effort. Now more than ever, we need our members to get involved both personally and financially with our association’s political efforts.

On the training front, I continue to be mesmerized by the fact that so many of our members recognize the need for internal training at all levels of their company; but so few really do anything about it. It seems that training is one of the first things to get cut during a slow economic period; while during the good times, many firms cannot make the time to train employees as the employees are all busy with their work generating revenue. This dilemma has existed in our industry for many years due to the apathy of many business owners. That apathy toward training must change. With baby boomers beginning to retire and fewer younger people entering the trades, our workforce is becoming smaller. We cannot expect our businesses to prosper when the economy turns around if we do not have an adequate number of skilled workers in our employ. Skilled worker and business management succession can only be accomplished if we invest in our both our current and future employees with the appropriate training. Without it, we risk the long term continuity of our respective businesses.

S: Why should someone join ABC of the Carolinas?

C: I get asked that question a lot by prospects considering our association. The answer is really quite simple. By becoming an active member of our association, one will have the opportunity in a variety of ways to support our efforts for free enterprise and continuity of the merit shop philosophy. These two causes are the very lifeblood of ABC on a national and local level. Becoming engaged on a government affairs or training committee will not only help our organization but also the member’s firm by making them better prepared for the future. Also, an active member will get the opportunity to work with representatives from prospective client/peer firms and develop long lasting professional relationships that can support one’s business development activities.

I encourage any prospect to get actively involved in ABC and one will easily see a positive return on their investment. After all, our industry is all about developing and working both personal and professional relationships. There is no better place to establish and maintain those types of relationships than by working with those individuals on things that will make our industry better.

S:  Thanks for taking the time to answer these questions.

C:  It’s been my pleasure.  Enjoy the conference.

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The Miller Act: Getting Paid on Federal Jobs

Posted on August 18, 2011 by Gregory L. Shelton Leave a comment

Keep Your Liens Off My Lawn!

The Miller Act and You

By: Gregory L. Shelton
Shelton Law Carolinas
Think about what would happen if contractors, subcontractors, and suppliers could file a mechanic’s lien on a government project. The sheriff could actually sell the courthouse on the courthouse steps. The White House could be turned into a bed and breakfast (ok, bad example). And Congress could be sold and converted into a skate park, all because the general contractor failed to pay the guy who installed the mahogany panels in the smoke filled rooms.

In 1935, Congress enacted the Miller Act to provide a remedy to certain unpaid subcontractors and suppliers. The Miller Act requires the prime contractor to obtain a payment bond on projects involving the construction, alteration, or repair of a “public building” or “public work” of the United States. A payment bond is not required on projects where the contract amount is less than $100,000.00.

In theory, the payment bond replaces the security otherwise provided by a lien upon the property, and an unpaid sub or supplier is not left to rely solely on the credit of the prime contractor. The prime (general) contractor pays a premium for the payment bond in much the same way an insured pays a premium for insurance. But there are significant differences between an insurance policy and a surety bond. Insurance is a two party agreement between and insurer and its insured, whereas surety agreements involve three parties: the surety, the principal (the person or entity purchasing the bond); and the obligee (the person or entity entitled to assert a claim against the bond). The difference does not end there. Unlike insurance, the surety is entitled to indemnity (reimbursement) from the contractor who obtained the bond. In the payment bond context, the principal’s duty to indemnify the surety places the contractor at risk of paying twice if a subcontractor misapplies contract funds and fails to pay the second tier.

The notice requirements and filing rules under the Miller Act are technical and strictly enforced. Claimants should consult with an experienced construction lawyer for assistance in this process.

In a nutshell, the Miller Act limits payment bond claimants to: (1) those who supply labor or materials directly to the prime contractor (first tier subs and suppliers); and (2) those who supply labor or materials directly to a subcontractor of the prime contractor (second tier subcontractors and second tier suppliers who supply material to a subcontractor). Suppliers of suppliers are out of luck under the Miller Act.

The first step in exercising rights under a Miller Act payment bond is to obtain a copy of the payment bond. The payment bond is usually two to five pages long and contains the names and addresses of the owner, the prime contractor, and the surety company (bonding company), the terms of the bond, and the penal sum (limit) of the bond.

The next step is to provide the prime contractor with proper and timely notice, if applicable. First tier contractors deal directly with the prime contractor, so no formal notice is required. Second tier subcontractors and suppliers, however, must serve the prime contractor with notice of the claim within 90 days after last furnishing.

The final step is to file suit on the payment bond against the surety and other appropriate defendants within one year of the claimant’s last furnishing, but no sooner than 90 days after last furnishing.

If you work on property owned by Uncle Sam, get a copy of the payment bond as soon as possible.  Otherwise, you may end up donating your work to We The People.

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What is Mediation?

Posted on August 10, 2011 by Gregory L. Shelton Leave a comment

He Wins if the Infection Doesn’t Kill Him

A Mediation Education

By:  Gregory L. Shelton
Shelton Law Carolinas

Alternative dispute resolution (ADR) refers to out-of-court methods of resolving legal fights.  ADR has been around for a long time.  During the ordeal, trial by fire, water, or combat determined winners and losers. So much for the good old days.

Together, arbitration and mediation dominate the ADR field in construction cases. Many standard form contracts, including ConsensusDOCS and AIA form contracts, require the parties to mediate and arbitrate disputes. Newer contract forms provide an ADR check-the-box option, with litigation in court as the default.

People sometimes confuse mediation and arbitration. Both methods seek the same goal, full resolution of the dispute, but do so in very different ways.

Mediation is a process by which an outsider, the “mediator,” helps the opposing parties resolve their dispute by agreement as opposed to a third-party decision. In most mediations, the parties and the mediator will assemble in a conference room and present their sides of the story. After the “general session” is over and the parties have said their peace, the mediator usually separates the parties into separate rooms and goes back and forth delivering offers and counteroffers, closing the gap with each visit.

Mediators are much more than messengers.  They must be able to read the room, deal with emotional combatants, and keep the negotiations on track. Mediators do not give legal advice or act as advocates for one party or another. That’s what the lawyers are there for.

If the parties come to a settlement, the mediator may prepare an agreement and have the parties  sign on the spot.  I prefer this approach because the people with an investment in the process can close the deal before going back to their offices and homes and possibly being corrupted by the peanut gallery.  “You agreed to what? If I had been at the mediation, I would’ve told them blah blah blah.” You would be surprised how many settlements fall apart when the lawyers return to their offices to finalize the deal.

If the parties are not able to resolve the dispute, the mediator declares an impasse and the mediator’s job is done. In most cases, the offers and counteroffers made at mediation may not be used as evidence in court.  Mediators may keep proceedings open after the first round of negotiations if the mediator believes additional time or information could facilitate a full resolution of the dispute.

I will address arbitration at another time.  Until then, it suffices to say that arbitration is a binding process whereby a decision is made by the arbitrator.  Conversely, the mediator does not make any factual or legal determinations, nor does he render any decisions.

Government Contracts, NC Law, SC Law , , , , , , , ,

The Dollars are in the Details

Posted on August 3, 2011 by Gregory L. Shelton Leave a comment

A Teaming Agreement at Work

The Dollars are in the Details

By:  Gregory L. Shelton
Shelton Law Carolinas

I have been monitoring the advance sheets in South Carolina and North Carolina for an interesting case concerning federal contracting.  Ask and you shall receive.

Hot off the presses, we have Stevens Aviation, Inc. v. DynCorp International, LLC, South Carolina Court of Appeals Case No. 4857, where a general contractor, DynCorp, and subcontractor, Stevens, joined forces under a Teaming Agreement to pursue a federal contract for maintenance of Army and Navy aircraft.  The Teaming Agreement incorporated a “Statement of Work” attachment providing that Stevens would perform certain painting, inspection, and maintenance work on the aircraft.

The team won the contract, at which point they entered into a Subcontract. One of the recitals (the “whereas” clauses) in the Subcontract referred to the Teaming Agreement by name and date. At some point, DynCorp started using other subcontractors to perform what had been Stevens’ scope of work. Stevens sued DynCorp alleging that the Subcontract incorporated the terms of the Teaming Agreement, including the Statement of Work attachment, by reference.  DynCorp argued that the  Subcontract contained no terms of exclusivity such that DynCorp was bound to use Stevens for all the work.

Stevens’ prevailed at the trial court level, but the Court of Appeals reversed. The Court of Appeals first noted that recitals (“whereas” clauses in the subcontract preamble) do not constitute binding contractual language, and pointed to provisions in the subcontract where the parties incorporated specific provisions (including terms of the FAR) by expressly referring to the provisions.  No such reference was made to the provisions of the Teaming Agreement relied upon by Stevens. The Court of Appeals then turned to language in the Subcontract providing that Stevens “shall provide all . . . services . . . at the direction of DynCorp.” The Court of Appeals concluded that DynCorp’s diversion of work to other subs did not constitute a breach of contract.

The result did not turn on what the parties or the Court thought was fair, or what the parties believed their agreement to be.  Rather, the result turned on words and phrases, and where those words and phrases were located within the Subcontract.

Stop tossing the contract documents into the file cabinet once work begins.  And start paying attention to the details.

Photo courtesy of Charleston Daily Photo.

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Pics Or It Didn’t Happen: Using Photographs to Document the Project

Posted on August 1, 2011 by Gregory L. Shelton Leave a comment

Foundation Issues

Using Photographs to Document the Project

By:  Gregory L. Shelton

Shelton Law Carolinas

(704) 940-9012

Photographs provide the finder of fact (whether judge, jury, or arbitrator) with a wealth of information about a construction dispute. The owner may criticize a contractor for not performing work on a clear sunny day, but if the contractor presents photographs of the site covered in several feet of snow from a storm the day before, the contractor’s lack of action may be more understandable.  So many things can be documented by a camera: manpower, equipment, access to the work, condition of the site, condition of work before its turned over to another contractor, interference, survey work (layout, elevations, etc.), defective work, weather; the list goes on.

When giving lectures on the topic, I make it a point to have the audience think of themselves as historians.  You are recording the history so that someone else doesn’t do it for you.

To make your historical record more credible, adopt some simple procedures to make your photos count.  Having a superintendent hand over a disk full of photographs is great, but I would also like to see each roll or digital sequence organized by date.  Knowing when an event occurred is often as important as the event itself.  The time/date stamp feature should be employed as a matter of course. It is also helpful to know the location of the item photographed.  Without a notation (either in the photograph itself or in the photo log), one portion of the foundation looks like another.

If the photo includes people, it is very helpful to know their name, their role, and their employer.  (I can’t tell you how many times people claim they weren’t at that meeting.) Also, make a record of the person taking the photographs, because at trial I will need someone to testify that the photograph is an accurate depiction of the object or scene at the relevant time.  Having the photographer on the stand makes this process much easier and more convincing.

You can use outside objects such as rulers, tape measures, or newspapers to blunt attacks. Use rulers or tape measures to give the viewer a perspective of size of the object photographed.   The newspaper may in some circumstances help substantiate the date on which the photograph was taken. The opponent cannot claim that an event occurred on March 1 when the event photographed includes March 10th’s newspaper.

You see where I am going here. It may be enough to take the picture, but if you want to blunt attacks to the relevance or credibility of the photo, more thought and effort is required.  A practical and efficient procedure tailored to your company, or the project, goes a long way.

These observations and rules apply to videotaping as well.  Videotape collects pictures and sound, so make sure you don’t put your foot in your mouth when the camera is running.

Government Contracts, NC Law, SC Law , , ,

Guest Post: Get Ready for a Green World of Construction

Posted on July 14, 2011 by Gregory L. Shelton Leave a comment

Christopher G. Hill

Get Ready for a “Green” World of Construction

Christopher G. Hill is lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC, and a LEED AP.  Chris has been nominated and elected by his peers to Virginia’s Legal Elite in the Construction Law category on multiple occasions. He specializes in mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.  Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.  Additionally, Chris is active in the Associated General Contractors of Virginia and the Board of Governors of Construction Law and Public Contracts Section of the Virginia State Bar.

First of all, thanks to Greg for the chance to post here at Construction Law Carolinas.  I’m always happy to post with friends and truly appreciate the opportunity.

Over the past several weeks, several developments have occurred in the land of green building.

The International Green Construction Code or IGCC (2.0) was introduced at Green Build to much debate and acclaim.   As pointed out by my friend and fellow LEED AP construction attorney, Doug Reiser in his Builder’s Counsel Blog, several states and municipalities have adopted this construction code.  Whether you agree or disagree with this move, it is time to get educated on this development and how it could affect your business going forward.  To do so, check out the webinar and audio at Chris Cheatham’s Green Building Law Update for some great analysis.  Chris also has a series of articles analyzing the IGCC that are worth a read.

New green building projects are popping up all over the place.  The USGBC, the entity that oversees and implements the LEED certification program, estimates that it has 1 billion (yes with a “b”) in square footage within the LEED system.  The General Services Administration of the Federal Government has mandated green building in all new construction.  Couple that with the adoption of “green” zoning regulations (such as in Arlington, VA) and state “green” building codes (such as CALGreen), and you, as a builder or construction professional (read attorney) have every reason to believe that sustainable building is here to stay.

However, the news is not all rosy.  The issues with some high profile “green” projects (some green building related, and others merely run of the mill construction disputes in green clothing), are enough for even the most optimistic of us to wonder about the future of green building.  While I have on several occasions compared myself to Eeyore, the ever rained upon donkey and friend of Winnie the Pooh, when it comes to my outlook on the future of sustainable design and building, I, like Eeyore, keep plugging along, and so should you.  Despite some setbacks (some of which could have been avoided through proper planning), the sky is not falling on green building.

My fellow attorneys in the construction field along with our clients need to learn from these issues in order to avoid them.  One trend that I see continuing, aside from the move toward more sustainable building practices, is the rise in legal, contractual and insurance/bond related risk management consulting.  With the proper teams in place, the issues raised above can be minimized.

In short, the trend is very much toward a sustainable building infrastructure.  We’re all in for quite a ride and should not be discouraged by the occasional hiccup.  This move toward a more energy efficient and environmentally friendly building stock is a good one that needs to continue, we just can’t fly blind into that good night.

 

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