Burke County Contractor Dispute: Unpaid Work Allegations Clash with Official Statements

A Morganton building contractor insists Burke County stiffed him for work he did on the Jonas Ridge Convenience Center, but County Manager Brian Epley says those assertions are false.

Wendell Fox, who owns FoxBuilt Construction, addressed the Burke Board of Commissioners during the public comments portion of the regular monthly meeting last Tuesday night, claiming he was a “victim of injustice perpetrated by Burke County.”

Fox’s company was awarded a contract worth approximately $1.3 million in December 2022, for construction of the new convenience center at Jonas Ridge, the completion of which was identified by the commission as one of the short-term goals of its sweeping capital improvement plan instituted last year.

But the project was not completed, and the county was forced to seek another contractor. In November 2023, commissioners approved a budget amendment for $450,000 for re-engagement of the project.

FoxBuilt has billed the county for a total of $608,445, and the county has paid the company $243,378. Meanwhile, at least one subcontractor has told the county FoxBuilt owes it $450,000 for work done at the site.

And since Fox filed for federal bankruptcy last August, no one can be paid until the matter is settled in court.

Meanwhile, Moss-Marlow Building Co. of Hickory was contracted to complete the project. Epley said work is ongoing and should be completed by early spring.

“Because of a material breach of contract, the county has terminated the contract with Foxbuilt Construction,” Epley said. “We’ve gone through a rebidding process. Moss-Marlow received the new contract. That increased the cost, so we not only lost time, but it also cost us more to re-engage and remobilize both the engineering and construction costs. A lot of the work had to be redone for a variety of reasons.”

Epley said FoxBuilt was required by state statutes to obtain a performance bond – a financial guarantee to one party in a contract against the failure of the other party to meet its obligations. 

He said the county found out Fox had not obtained the bond when an unpaid subcontractor contacted the county last summer and claimed FoxBuilt owed it $450,000 for work done at the site. 

“The county gave FoxBuilt an ample opportunity to provide the bonds and complete the project, but FoxBuilt did not provide the bonds and in fact did no further work on the project, as far as the county knows, after June 28, 2023,” said Epley.

In addition, companies in New York, claiming to be lenders to and unpaid creditors of FoxBuilt, contacted the county seeking payment. “They claimed that FoxBuilt had assigned its rights to payment by the county to the creditors and provided copies of documents purportedly signed by FoxBuilt to that effect,” Epley said. “The county obviously had no way of knowing whether those claims were true, but they gave the county further reason to worry that payments made to FoxBuilt would not reach subcontractors engaged by FoxBuilt who had worked on the project.

“The performance bond would have ensured that the project could be finished,” Epley added. “Unfortunately he (Fox) violated that state law; he didn’t get it. There were unpaid subs (subcontractors) on the job and substantial dollars that were paid at that point weren’t making their way to the subcontractors.”

Epley added Fox, whose business at 818 W. Union St. was destroyed by a fire Jan. 31, filed a petition in federal bankruptcy court last August. Public Safety Director Jason Whisnant said last week the fire is still under investigation by local and state authorities. 

Epley said he and County Attorney J.R. Simpson obtained outside legal counsel after Fox filed for bankruptcy, and the matter is currently in litigation. 

“Mr. Fox ended up subsequently filing for federal bankruptcy, so at this point, it’s in judicial process,” said Epley. “The county is following what the courts tell us to do, and that’s a legal process that’s going to take some time to play out.

“I’ve told him (Fox) many times, the dollars in the county’s coffer for this project have been earned by somebody, and the county is going to pay those dollars to somebody. But the court has got to tell us who that is. Unfortunately, because he did not pay his subcontractors, he owes way more money than we have, and the county can’t legally pick winners and losers.”

Fox contended Tuesday he and his company were not at fault.

“We were told that the ground-breaking had to be done on a certain day,” said Fox. “We informed the county that the ground-breaking would be done on that day. We informed the county that if the groundbreaking was done on that day, there would be no bond on the job because the bond was still in underwriting. We were told to proceed, so we did.”

Epley said FoxBuilt “claims that the county waived the payment and performance bond requirement, but the county has investigated that claim and found no reason to think that it's true.”

Fox said the county acknowledged his company’s work but didn’t pay. 

“Burke County’s acknowledgement of the quality work is evident in the words by their own county manager, who told me personally, ‘we know you did the work. The work is good. We have the money. We want to pay you,’” Fox said. “Yet despite this acknowledgment, they failed to fulfill their obligation.” 

Fox went on to say: “Their actions not only defy the principles of fairness and honesty, but also undermine the very foundation of contractual agreements. I was promised by Mr. Epley three times for payment, only to have him call each time and tell me he could not pay. In the face of mounting legal expenses, Burke County has chosen to prolong this ordeal rather than fulfill their obligations for the services rendered.”

Epley said he understands Fox’s position and sympathizes with him.

“He seems like genuinely a decent guy who has tried to make it and has had some unfortunate things happen,” said Epley. “I feel bad for him; he’s had a tough row to hoe here lately. I’m empathetic to that. We want everybody to do well. But his assertion that we decided to be cruel to him and treat him unfairly is not an accurate depiction of the truth. 

“That would be a disturbing story if it were true, but it's not.” 

Marty Queen is the senior reporter for The Paper. He may be reached at 828-445-8595 or at marty@thepaper.media.