District wants case back in state court

By G. Romero Wendorf

While admirers and former alum strolled around the beautifully-renovated hallways of PSJA’s original 100-year-old Memorial Middle school Dec. 3, little did they know how close the school came to total ruin. Thankfully, the school’s preservation held together, but now there’s a lawsuit faulting its initial renovation.

Whether or not PSJA ISD’s lawsuit against now-defunct builder Texas Descon, Architect ERO, Structural Engineer Frank Lam & Associates, Inc., and insurance carrier Great Northern Insurance will ultimately be heard in federal or state court is still up in the air.

The lawsuit is centered on renovations made to Memorial Middle School in 2010. Instead of improving the building, school district attorneys claim that the so-called renovations actually damaged the facility and put lives at risk.

Last month, Chicago-based Great Northern fled a motion to move the lawsuit out of state District Court and into federal court, which is a legal right offered to out-of-state corporations. PSJA ISD had 30 days to respond to the request, which it did, fling a motion to remand the case back to the 389th state District Court in Edinburg.

A hearing is set in federal court Jan. 6.

Meanwhile, Great Northern has also fled a motion of severance. PSJA ISD has appealed that as well. What the insurance company wants, says one legal source who would speak only on condition of anonymity, is to break up the case into two separate cases. On one side PSJA vs. Texas Descon and ERO and Frank Lam; and on the other PSJA ISD vs. Great Northern. It would cost the district more money, and maybe break up some of the facts in the case. Whereas, it’s in the district’s best interests if the lawsuit is tried in which all four defendants are sitting at the same courtroom table; all of the pertinent facts laid out in a row for all to see.

From the standpoint of the defendants., it’s also in their best interests, says the legal source, for the case to be tried as one. So if PSJA ISD wins its lawsuit, the punitive monetary award can be split four ways instead of three.

Back to the beginning

Back in the mid-2000s, the old three-story school was in sorry shape. Shut down for a few years due to structural problems, the place had become a magnet for gang-bangers who took pleasure in using rocks to bust out windows. She looked like a bag lady down on her luck looking for a fix.

Then, in 2008, the school board and superintendent decided the historical edifice needed some TLC. Historic to the district, preservation came to the forefront as more community members and former alum joined the chorus – restore this old building because it has too many memories to simply tear it down.

So in 2008, the district hired a Houston-based firm comprised of structural engineers who inspected the building and came back with its recommendation: further structural inspections are needed because clearly there are some structural problems that need addressing before any renovation work can proceed.

Enter McAllen-based ERO architects, who inspected the building, cited various problems with the old school’s exterior and interior and made its recommendation: tear it down and replace it with a new building.

Then, according to the lawsuit, ERO came back, did some further review and changed its mind: the old school could indeed be renovated. The school board approved the recommendation, and renovation work was hatched.

After bids were let, Texas Descon was hired as the general contractor through its general partner, Descon 4S, and began work on the project on or about May 4, 2010. ERO signed on as architect of record the same month and entered into a contract with structural engineer Frank Lam & Associates to provide consulting services and to provide recommendations for the structural systems for the old building’s renovations, additions, and new construction, according to the PSJA lawsuit fled against all the named parties.

Soon after that, things began to fall apart. Literally. According to the PSJA lawsuit, during the course of the demolition of the outer support structures, portions of the main school building not designated for demolition collapsed, and like a stack of dominoes, other parts of the edifice began to topple.

The project was split into two phases. Unfortunately, according to the lawsuit, Phase II went the same as Phase 1 – basically a catastrophe. During the course of construction of additions and renovations to several areas of the school, it was learned that the walls and support systems would have to be entirely demolished and rebuilt for stability purposes, “essentially requiring that the buildings be re-constructed from the foundation up.”

The new foundation went up and so did the costs. The renovation budget soon swelled beyond original expectations based on “expert advice.”

Lawsuit particulars

The PSJA ISD lawsuit takes up at least another seven pages to sort out the rest of the story. Great Northern paid one insurance claim, but didn’t take into account the further structural damage their “experts” knew lay just around the corner with regard to other structural collapses, according to the lawsuit. Therefore, PSJA attorneys allege, it owes more money than it’s already paid.

For its part, according to the PSJA lawsuit, Texas Descon was negligent in its planning and execution of the demolition process; didn’t adequately inspect and test the structures before it used inappropriate means of demolition; and helped drive up the renovation cost by approximately more than $1.5 million originally budgeted.

Just as culpable, claims the lawsuit, are ERO architects and structural engineer Frank Lam & Associates.

The lawsuit claims that ERO failed to advise the district that it lacked sufficient information to design and specify the project, and yet advised the PSJA ISD Board of Trustees to go ahead and bid out the project despite the fact that it lacked suffcient plans and specs at the time.

Combine ERO’s deficient planning, claims the lawsuit, coupled with Texas Descon’s negligence, and soon the old school’s walls literally came tumbling to the ground while the basement filled up with unexpected groundwater. A Charlie Foxtrot to be sure.

Perhaps more damning, if proven true, the lawsuit claims that ERO had actual, subjective knowledge that no renovations or additions should be contemplated because of inherent problems with the structures, “yet nevertheless proceeded to recommend and design these improvements with a conscious disregard of the possibility of catastrophic accidents causing extreme property damage and/or potential injury and loss of life.”

Meanwhile, up in Austin, claims the lawsuit, the expert structural engineering firm, Frank Lam & Associates, only did cursory observations on the project and failed to perform any exploratory testing to determine structural conditions. After all, the school was only 96 years old.

While demolition was underway, claims the lawsuit, Lam wasn’t even on site every day to guard against careless actions on the part of Texas Descon.

As a result, PSJA ISD is demanding a trial by jury.

A hearing in federal court Jan. 6 will determine where the case will be tried: federal court or the 389th state District Court.

Taking the lead on the case is school district Attorney Jesus “Chuy” Ramirez and co-counselor Robert Schnell.