Feature Photo (above): D.W. Rutledge Stadium in the Judson school district has become the subject of construction defect litigation. Image: Google Streets.
by Adolfo Pesquera
San Antonio (Bexar County) — Representatives of the local general contractor and architectural community are expressing their concerns to the Judson Independent School District trustees over what they perceive is a school district developing a litigious reputation.
Officers of the Associated Builders and Contractors South Texas Chapter, Associated General Contractors San Antonio Chapter, and the American Institute of Architecture-San Antonio cautioned the board that their recent actions have eroded trust between the building design/construction community and the school district.
Doug McMurry, executive vice president of AGC San Antonio, spoke before the Judson ISD Board of Trustees last month. Courtesy: Judson ISD video archives.
Doug McMurry, the local AGC executive vice president, told VBX that the various associations’ leaders have been reaching out to Judson officials the past few months as a result of an aggressive claims strategy that has been employed.
“They’re seeking pretty significant damages based on what they were alleging are construction defects. In most cases, the contractor was never notified. They were never asked to fix anything. This sent up red flags,” McMurry said.
No specific case was referred to in their Dec. 20 comments to the board. In July, the trustees discussed retaining Gravely & Pearson for “potential defects at Converse Elementary,” and the law firm reappeared on the September board agenda for possible retention in the matter of alleged defects at D.W. Rutledge Stadium. Both board discussions were behind closed doors in executive session.
McMurry told VBX that Gravely & Pearson has a reputation in other regions of South Texas for filing these types of lawsuits, adding, “This is the first time we’ve seen it in an urban area.”
That may be so in very recent history, however, Gravely & Pearson represented Edgewood ISD in two construction defect lawsuits in 2014 and 2015 against Koontz McCombs Ltd. In a move unrelated to the litigation, Koontz Corporation sold its construction business in 2016 to Joeris.
The corporate law firm Cokinos|Young assisted the construction industry speakers in drafting a position paper. Using that for certain talking points, each speaker elaborated on their particular point of view. The common theme was that the school district should follow the standard practice of giving the contractor notice and the opportunity to repair a defect before an issue proceeds to litigation and the involvement of attorneys and insurance companies.
Under the Texas Property Code, there is no mandate to give notice, nor is there a “right to repair” law for non-residential construction. However, a right to repair clause is usually included in the contract language for a commercial project, McMurry noted, something the opposing side also acknowledged.
“Generally speaking, in the state of Texas, construction projects are governed by whether the work is public or private,” Gravely & Pearson co-founder Marc Gravely told VBX. “The law that applies generally is the contract that the property owner and the general contractor enter into.”
Torrey Carleton, executive director of the AIA San Antonio chapter. Courtesy: Judson ISD video archives.
Torrey Carleton, executive director for AIA-San Antonio, said the chapter’s leaders were deeply concerned about the lawsuits filed by “opportunistic law firms” and said it was eroding the trust of architect/engineer/contractor teams that will impact this community’s ability to deliver educational facilities.
“The process is arduous and requires trust, as evidenced on the reluctance of bidders and subcontractors to submit for the project that you offered in October,” Carleton said.
Her comment was an apparent reference to a September bid proposal for a building addition to Veterans Memorial High School that had an Oct. 2 deadline.
McMurry emphasized the historically close relationship the construction industry has had with K-12 and higher education institutions.
“I personally have worked on dozens of school bond campaigns. I served as chairman of two bond oversight committees–one with Northeast ISD and one at Alamo Colleges,” he told the board.
“We want you to be successful with facilities planning and school construction projects. Your success is our success. That’s why we are very concerned about specialty law firms interested in seeking large insurance settlements by asserting cookie-cutter claims,” he said.
McMurry reiterated the need for communication and giving a company a chance to make things right.
“Include your facilities maintenance people in the discussion. They’re a valuable resource to you. Lastly , remember that professional relationships between good construction companies, the ones you want to work with, and the district are important to your success.”
There have been attempts in the past to pass a “right to repair” law for commercial construction. VBX could find no such bill pending in the current session filings, as of Jan. 9.
While the construction community tries to portray the Gravely & Pearson law firm as somehow overly aggressive, it would appear the firm–which operates statewide from offices in San Antonio and Dallas–maintains a strong relationship with educational institutions. In addition to many school districts, the construction and insurance claims litigator has represented the Legal Assistance Fund, an advocate for public education that is governed by the Texas Association of School Boards, Texas Association of School Administrators, and Texas Council of School Attorneys.