Thursday, August 2, 2018

Another Great Year of Solo Practice

Photo Credit: Rett HillMy how another year (and summer) has flown by.  I looked up and it was August 2nd and a month past the 8th anniversary date of the opening of The Law Office of Christopher G. Hill.  It hardly seems like 8 years have gone by except when I reflect on how things have changed in that time.

When I announced the opening of my solo construction practice on July 1, 2010, my children were in elementary and middle school.  Now I have two college students, one at Appalachian State University (with a budding photography talent that has provided some photos for this blog (including that on this post)) and the other at West Virginia University, and a high school sophomore.  In just the past year I have rotated off of the Board of Governors of the VSB Construction Law and Public Contracts and began a tenure on the Section Council  Virginia Bar Association Construction and Public Contracts Law section.  I was named to both the Virginia Business Magazine Legal Elite in Construction Law and to Virginia Super Lawyers in Construction Litigation.  I will also be speaking at the 39th Annual Construction Law and Public Contracts seminar in November (one I highly recommend for any lawyer interested in construction).

Among all of these great events, I have had the pleasure of working with a great group of clients, lawyers and friends in the construction industry and beyond.  I have spent time shooting sporting clays and fishing with clients.  This has allowed me to better understand my clients and their businesses on a personal level.  My involvement with the AGC of Virginia has been a great help with this.

So, without further ado, thanks to all of you that read this blog and that have supported me over the last five years. Most importantly, thanks to my wonderful wife and kids for their continued support and sometimes tolerance over the last 8 years.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Another Great Year of Solo Practice

Photo Credit: Rett HillMy how another year (and summer) has flown by.  I looked up and it was August 2nd and a month past the 8th anniversary date of the opening of The Law Office of Christopher G. Hill.  It hardly seems like 8 years have gone by except when I reflect on how things have changed in that time.

When I announced the opening of my solo construction practice on July 1, 2010, my children were in elementary and middle school.  Now I have two college students, one at Appalachian State University (with a budding photography talent that has provided some photos for this blog (including that on this post)) and the other at West Virginia University, and a high school sophomore.  In just the past year I have rotated off of the Board of Governors of the VSB Construction Law and Public Contracts and began a tenure on the Section Council  Virginia Bar Association Construction and Public Contracts Law section.  I was named to both the Virginia Business Magazine Legal Elite in Construction Law and to Virginia Super Lawyers in Construction Litigation.  I will also be speaking at the 39th Annual Construction Law and Public Contracts seminar in November (one I highly recommend for any lawyer interested in construction).

Among all of these great events, I have had the pleasure of working with a great group of clients, lawyers and friends in the construction industry and beyond.  I have spent time shooting sporting clays and fishing with clients.  This has allowed me to better understand my clients and their businesses on a personal level.  My involvement with the AGC of Virginia has been a great help with this.

So, without further ado, thanks to all of you that read this blog and that have supported me over the last five years. Most importantly, thanks to my wonderful wife and kids for their continued support and sometimes tolerance over the last 8 years.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Wednesday, July 18, 2018

Use Your Instincts when Negotiating a Construction Contract

Building in Downtown Richmond, VAI have often discussed the more “mechanical” aspects of contract negotiation and drafting here at Construction Law Musings.  However, there is another, less objective (possibly) and more “feel” oriented aspect to construction contracting that can have as big an impact on your construction project.  What am I talking about?  Your instinct as a construction professional when looking the other party in the eye and getting a feel for the company or individual with whom you are contracting.

Why is this so important?  Firstly, and this is a truism, no matter how well drafted your construction contract is (and it should be well drafted and reviewed by an experienced construction attorney), if the other party wishes to “play games” and not honor the terms of that contract, you could still very well end up in litigation with the attendant frustration and expense.  Having a great looking, well thought out and at least reasonably “fair” construction contract may make the litigation process somewhat less painful but it does not completely avoid the risk of litigation.  If the other party or parties to the contract decide not to pay you or perform as they promised, you are left to enforce whatever contract you have in place.

Secondly, if you get a tingly feeling on the back of your neck when negotiating job terms, that feeling could be telling you that the job could be one that will be a painful one.  Aside from the contract, the course of dealing and the management of the project are probably the biggest hurdles on any construction job.  If it seems that you will have a tough time getting paid or that the project management team is one that would be less than ideal to work with, then seriously consider whether you want to move forward with that job.  Getting into a project where you feel the management, scheduling, etc. of the project won’t go smoothly is a recipe for an unprofitable and frustrating experience.

Should you always avoid those jobs that you get a sinking feeling about?  Not necessarily.  Just think harder and bounce the possibility of taking the job or hiring the subcontractor you get that feeling about off of others before you do.

There will always be the occasional project where you wish you had known more before you got into it, but if you listen to your “spidey sense” more often than not, it will lead you in the right direction.

As a quick aside, the photo for this post was taken by my son, be sure to check out his other photos linked from the image.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Use Your Instincts when Negotiating a Construction Contract

Building in Downtown Richmond, VAI have often discussed the more “mechanical” aspects of contract negotiation and drafting here at Construction Law Musings.  However, there is another, less objective (possibly) and more “feel” oriented aspect to construction contracting that can have as big an impact on your construction project.  What am I talking about?  Your instinct as a construction professional when looking the other party in the eye and getting a feel for the company or individual with whom you are contracting.

Why is this so important?  Firstly, and this is a truism, no matter how well drafted your construction contract is (and it should be well drafted and reviewed by an experienced construction attorney), if the other party wishes to “play games” and not honor the terms of that contract, you could still very well end up in litigation with the attendant frustration and expense.  Having a great looking, well thought out and at least reasonably “fair” construction contract may make the litigation process somewhat less painful but it does not completely avoid the risk of litigation.  If the other party or parties to the contract decide not to pay you or perform as they promised, you are left to enforce whatever contract you have in place.

Secondly, if you get a tingly feeling on the back of your neck when negotiating job terms, that feeling could be telling you that the job could be one that will be a painful one.  Aside from the contract, the course of dealing and the management of the project are probably the biggest hurdles on any construction job.  If it seems that you will have a tough time getting paid or that the project management team is one that would be less than ideal to work with, then seriously consider whether you want to move forward with that job.  Getting into a project where you feel the management, scheduling, etc. of the project won’t go smoothly is a recipe for an unprofitable and frustrating experience.

Should you always avoid those jobs that you get a sinking feeling about?  Not necessarily.  Just think harder and bounce the possibility of taking the job or hiring the subcontractor you get that feeling about off of others before you do.

There will always be the occasional project where you wish you had known more before you got into it, but if you listen to your “spidey sense” more often than not, it will lead you in the right direction.

As a quick aside, the photo for this post was taken by my son, be sure to check out his other photos linked from the image.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Tuesday, July 10, 2018

Sometimes You Get Away with Unwritten Contracts. . .

contract photoI have spoken often regarding the need for a well written construction contract that sets out the “terms of engagement” for your construction project.  A written construction contract sets expectations and allows the parties to the contract to determine the “law” of their project.  An unwritten “gentleman’s agreement” can lead to confusion, faulty memories, and more money paid to construction counsel than you would like as we lawyers play around in the grey areas.

One other area where the written versus unwritten distinction makes a difference is in the calculation of the statute of limitations.  In Virginia, a 5 year statute of limitations applies to written contracts while a 3 year statute of limitations applies to unwritten contracts.  This distinction came into stark relief in the case of M&C Hauling & Constr. Inc. v. Wilbur Hale in the Fairfax, Virginia Circuit Court.  In M&C Hauling, M&C provided hauling services to the defendant through a subcontract with Hauling Unlimited in 2014, the last of which was in July.  M&C provided over 2000 hours of hauling and provided time tickets (that were passed to Mr. Hale on Hauling Unlimited letterhead and signed by Mr. Hale or his agent) and an invoice stating the price term of $75.00 per hour.  No separate written contract between M&C and Hauling Unlimited or Mr. Hale existed.

In February of 2018, beyond the 3 year statute of limitations for unwritten contracts but prior to the expiration of the 5 year limitation period for written contracts.  Needless to say, Hauling Unlimited filed a plea in bar to have the matter dismissed as being brought beyond the 3 year statute and argued that no signed or other written contract existed, therefore the 3 year limitation period applied.  After review of the various precedents (which I commend for your reading), the Court determined that where a signature on a contract is not a condition of the contract itself being a written one.  In doing so, the Court stated

In the immediate facts, although there was no signature by Defendant Hauling Unlimited, the parties did not make their signatures a condition of the contract being a written one. All the terms of the agreement between the Plaintiff and Defendant, including the rate and the hours worked, were committed to writing in the daily sales tickets and the invoice. These terms were unconditionally assented to by the parties.

In short, the Court determined that Hauling Unlimited and Mr. Hale assented to M&C’s terms and did not insist on a signature to make their contract a written one.

The lesson from this? At the very least be sure to provide consistent documentation of your work if you aren’t going to have a written contract.  The better lesson? Don’t put yourself in this position.  Call your friendly experienced construction attorney and get a written contract together that both keeps arguments such as these from looking like good ones and also extends your statute of limitations.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.

Sometimes You Get Away with Unwritten Contracts. . .

contract photoI have spoken often regarding the need for a well written construction contract that sets out the “terms of engagement” for your construction project.  A written construction contract sets expectations and allows the parties to the contract to determine the “law” of their project.  An unwritten “gentleman’s agreement” can lead to confusion, faulty memories, and more money paid to construction counsel than you would like as we lawyers play around in the grey areas.

One other area where the written versus unwritten distinction makes a difference is in the calculation of the statute of limitations.  In Virginia, a 5 year statute of limitations applies to written contracts while a 3 year statute of limitations applies to unwritten contracts.  This distinction came into stark relief in the case of M&C Hauling & Constr. Inc. v. Wilbur Hale in the Fairfax, Virginia Circuit Court.  In M&C Hauling, M&C provided hauling services to the defendant through a subcontract with Hauling Unlimited in 2014, the last of which was in July.  M&C provided over 2000 hours of hauling and provided time tickets (that were passed to Mr. Hale on Hauling Unlimited letterhead and signed by Mr. Hale or his agent) and an invoice stating the price term of $75.00 per hour.  No separate written contract between M&C and Hauling Unlimited or Mr. Hale existed.

In February of 2018, beyond the 3 year statute of limitations for unwritten contracts but prior to the expiration of the 5 year limitation period for written contracts.  Needless to say, Hauling Unlimited filed a plea in bar to have the matter dismissed as being brought beyond the 3 year statute and argued that no signed or other written contract existed, therefore the 3 year limitation period applied.  After review of the various precedents (which I commend for your reading), the Court determined that where a signature on a contract is not a condition of the contract itself being a written one.  In doing so, the Court stated

In the immediate facts, although there was no signature by Defendant Hauling Unlimited, the parties did not make their signatures a condition of the contract being a written one. All the terms of the agreement between the Plaintiff and Defendant, including the rate and the hours worked, were committed to writing in the daily sales tickets and the invoice. These terms were unconditionally assented to by the parties.

In short, the Court determined that Hauling Unlimited and Mr. Hale assented to M&C’s terms and did not insist on a signature to make their contract a written one.

The lesson from this? At the very least be sure to provide consistent documentation of your work if you aren’t going to have a written contract.  The better lesson? Don’t put yourself in this position.  Call your friendly experienced construction attorney and get a written contract together that both keeps arguments such as these from looking like good ones and also extends your statute of limitations.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 license.