The Law

Consultant Wasn’t Qualified by Ron Davis Failure to meet a deadline has cost owners of a new Texas shopping center a chance to seek certain legal remedies for construction problems they are claiming. The shopping center is Texarkana Pavilion in Texarkana, and its owners contracted to buy the property while it was still under development. It was only after the owners began making payments to the developers that they maintained they had discovered “certain issues with the property’s substructure.” Specifically, the owners cited “subgrade and concrete paving of the parking lot…began experiencing material and other defects, such as the development of voids beneath the pavement, washing out of the pavement subgrade, settling and/or failure of concrete sections, and heaving of concrete sections.” Furthermore, the owners alleged that the developers “knew that the storm sewer system…had experienced numerous failures,” that the failure of the system “was allowing subgrade to be washing out from under the property,” and that the steps taken in response to the failures were “purely cosmetic in nature.” The owners consequently stopped making payments to the developers on grounds that they would not have bought the property under the purchase agreement had the issues with the parking lot been discovered.” Both parties then sued. Caught in the middle was Apex Geoscience, Inc., which provided engineering services related to the shopping center construction. Because of that role, the owners also sued Apex, among others involved in the project, claiming that Apex failed “to adhere to the guidelines that the company outlined in its geotechnical report related to the construction of the subgrade for the property and utilities.” But an official of the developers pointed out that Apex is simply “a materials and testing firm which contracted with [Texarkana Pavilion] to perform concrete, soils and materials testing on the project, including the parking lot.” In response, the center’s owners relied on the expertise of a consultant who claimed that Apex failed at conducting materials testing during center construction. But evidence showed that the consultant does not regularly conduct materials testing and therefore is not qualified to judge Apex’s work on the project. By then, time was running out for locating a replacement for that consultant. And Apex appealed for a dismissal of the lawsuit against it, pointing out that nothing actually supported the claims against the company. More importantly, the company added, the time period in which to contest its findings had elapsed. A Texas court of appeals agreed with Apex and, based on the expiration of the time restriction for appeal, dismissed the lawsuit. (Apex v. Arden Texarkana, LLC, 2012 WL 2299285 [Tex.App.-Texarkana]) Decision: July 2012 Published: July 2012