 By Attorney Edward Jesson
Delays in construction are often unavoidable. This rang especially true over the last few years while the world has been dealing with the COVID-19 pandemic. Contractors have had to deal with material shortages, price increases, and difficulty finding labor, among many other issues. However, legal issues tend to arise when those delays start costing people involved in the project money. The first thing to look at when evaluating whether you may have a claim for delay damages is the construction contract. Most contracts address delays, though the level of specificity will vary greatly. Generally speaking, the parties will be bound to whatever the contract says with regards to delay damages. Assuming that delay damages are recoverable, the burden is on the party claiming those damages to show: (1) what caused the delay; (2) that the person or entity claiming the damages was in no way responsible for the delay; and, (3) that the damages requested were, in fact, caused by the delay. Under North Carolina law, delay damages can, for the most part, be quite easily categorized. For example, there are excusable and non excusable delays. Generally, excusable delays will be delays caused by circumstances outside of the contractor’s control—COVID-19 being a great example. An example of a non excusable delay is failure to properly schedule and coordinate the work. In most instances, parties will not be able to make a claim for excusable delays and may be able to make a claim for non-excusable delays. There are also compensable and non compensable delays. A compensable delay would be a delay caused by circumstances within the control of the owner but not the contractor making the delay claim. For example, failure of the owner to provide materials which were required to be purchased by the owner which causes a delay in construction could be considered compensable delay—one that would entitle the contractor to additional time to complete the project or, under certain circumstances, monetary damages. Non compensable delays are, under most circumstances, going to be delays that do not allow anyone claim for monetary damages. Of course, in order to make a claim for monetary damages from a delay you have to show that you have suffered actual financial damages. Examples of monetary delay damages could be an owner’s lost profits from not being able to open a business on time, or increased material costs due to a delay from the contractor. Examples of monetary damages for a contractor may include the costs of idle equipment and labor, extended project overhead, and potentially lost profits from jobs that the contractor could not take due to delays caused by the project owner. There are many other aspects to delay damages under North Carolina law—many of which can be costly to owners and contractors alike. The good news is that many of these risks can be mitigated using effective contractual language. If you are curious whether your business is protected or if you have a delay issue, don’t hesitate to give the attorneys at Jesson & Rains a call.
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 By Associate Attorney Katy Currie
Recently, the news has been filled with the fight over Lisa Marie Presley’s trust after her sudden and unexpected death in January 2023. The issue is who should serve as trustee, and the reason why this is not clear is because, in 2016, Lisa Marie Presley amended her trust. This amendment removed her mother, Priscilla Presley, and Barry Siegel, the Presley family's business manager, as co-trustees and named her children, Riley and Benjamin Keough, as co-trustees instead. Benjamin passed in 2020, leaving Riley as the sole trustee. Priscilla Presley argues that the 2016 amendment is invalid because she never received a copy of the amendment. In North Carolina, the creator of a revocable trust may revoke or amend the trust so long as they follow the procedure as it is stated in the trust document itself. If the trust states, for example, that the revocation document must be notarized, then it must be notarized. Under North Carolina law, if the method for amending the revocable trust is not stated within the trust document itself, the creator of the trust must amend their trust (1) with a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust or (2) by any other written document delivered to the trustee, manifesting clear and convincing evidence of their intent to amend or revoke the trust. So, in Lisa Marie Presley’s case, if she had lived in North Carolina, her mother would have a legitimate argument that the amendment was invalid if Priscilla Pressley was serving as the trustee in 2016. Other estate planning documents must be amended or revoked carefully. Similar to a trust, if an agent is currently serving under a power of attorney and the principal amends or revokes it, the principal must serve the agent with a copy of the revocation. If a power of attorney document is recorded at the county Register of Deeds, a revocation of that document must also be recorded to put the world on notice that it is no longer valid. Wills and health care documents are automatically revoked when a new document is executed; however, it is best practice to let anyone and everyone who has a copy of the document know and ask them to destroy it. Even though a later executed will revokes a prior will, if the prior will is filed or probated at the courthouse mistakenly after someone passes away, it is a lot of work for the executor to undo. The death of a family member can, unfortunately, bring out the ugly side of some people. To ensure that your wishes are followed, you must carefully comply with the law when it comes to amending or revoking your documents. If you have additional questions or are in need of assistance, reach out to Jesson & Rains!  By Attorney Kelly Jesson
There are numerous to-do items and deadlines business owners must keep up with to successfully run a business. However, many business owners forget that they must file an Annual Report with the North Carolina Secretary of State to keep their business in active and good standing with the state. The Annual Report is used to keep the business records up to date with the Secretary of State. On the Annual Report, you will provide basic information about your business, such as the name and address of the registered agent, the principal address of the business, and the names and signatures of company officials. Most businesses formalized with the Secretary of State’s Office need to file an Annual Report, such as Business Corporations, Limited Liability Companies (LLC), Limited Liability Partnerships (LLP), and Limited Liability Limited Partnerships (LLLP). Non-Profits, Limited Partnerships, Professional Corporations (PCs), and Professional Limited Liability Companies (PLLC’s) do not have to file an Annual Report. There is also a filing fee due with the Annual Report. For LLC’s and partnerships, the fee is $200, and for corporations, the fee is $25. The due date for your business’s annual report depends upon the type of business, but generally April 15th is the deadline for most businesses. For corporations and partnerships (LLP and LLLP), the annual report is due to the Secretary of State’s Office the 15th day of the fourth month following the entity’s fiscal year’s end. For example, if your fiscal year ends on December 31, your annual report for that year is due on April 15th. Jesson & Rains offers a yearly plan for businesses that includes serving as our client’s registered agent and filing their annual report, among other things. This plan helps to ensure your privacy (if your business is ever sued, the lawsuit will be delivered to our office’s address); you will be less likely to fall victim to a scam (we will sort through and destroy junk mail); you will be more organized and have less paper (we will scan and forward your mail immediately to your attention after sorting); and we will ensure that corporate records and Secretary of State records are kept up to date. We also offer an upgraded yearly plan that includes unlimited telephone access to attorneys throughout the year. The consequence for not filing an Annual Report and/or paying the fee is that the Secretary of State can administratively dissolve your business. This means that you will lose the liability protection you enjoy by being a formal business, and a creditor can come after your personal assets. If you have questions about filing your Annual Report or want to learn more about the annual plan services offered by our firm, you can click HERE, or feel free to reach out to Jesson & Rains directly! |
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