Note to attorneys who will doubtless read this post: All opinions expressed in this column are based on a personal, non-legal and untrained interpretation of the lawsuit filed with the Dallas County Clerk (full text at end of post). My legal experience extends to binge-watching LA Law and The Good Wife.
I’ll admit my only surprise is why it took so long. Didn’t we all instantly mutter, “someone’s gonna get sued” the second we saw the news of the partial collapse of The Renaissance parking garage back in October? So this first lawsuit’s only marvel is in beating others to the punch (and make no mistake this is only the first drop of blood in the water).
In my non-legal and completely weightless opinion, I see good-news for the plaintiffs. Assuming all is provable as written, this case will likely hinge on two facts. The contractor, Reconstruction Experts, Inc. not securing a building permit before beginning demonstrably inferior work and FirstService Residential, Renaissance’s management company, for allowing work to start without seeing the physical permit.
Note: The HOA is also named, but I suspect that’s more to do with the large insurance policies condos maintain on board members coupled with lawyers’ desire to have a hand in every wallet. The HOA insurance policies I’ve seen (admittedly few) seem to cover inadvertent acts by the board but drop them if an act was knowingly improper.
Because most HOA boards are made up of people with little experience beyond (maybe) balancing a checkbook, and certainly not large commercial construction projects, they’re likely not personally liable in this case … unless of course the HOA board knew work was beginning without a permit. In that case, all bets are off.
Of course no lawsuit in history is ever that simple, is it?
There’s also a wrinkle where the suit states that the city didn’t issue the permit “due to safety concerns with the project” but doesn’t specify. Without knowing what those concerns were and how they were communicated to the contractor and Renaissance management, it’s impossible to know how serious they were. Though to an idiot like me, it seems unlikely the safety concerns included the storage of rubble in a parking space because I just don’t see the city asking that (the building yes, the city, no). But we don’t know.
I suspect a second level to the suit will also have to prove that the lack of a building permit (while illegal) also resulted in foreseeable and preventable sub-standard “work” (rubble storage) to be carried out. After all, if the work was performed to legal standards regardless of the permit situation, the accident would have still occurred. In that case, I’d think the permitting issue becomes more of a legal inconvenience than a smoking gun for the defendants seeking cause and blame.
The third level hits as the plaintiffs try to prove that Reconstruction Experts knew about the garage weight limits and exceeded them. It may be difficult to figure out if building management knew of any weight limits, and if so, that they communicated them to Reconstruction Experts. The smoking gun here may be in understanding why the debris was moved from the area prior to the collapse. Did someone notice something?
A fourth level may come into play if there are known weight limits that were not exceeded but are incorrect. It’s certainly possible the original design or the garage’s construction may be a contributing factor. After all, if Renaissance was told of a weight limit and the evidence proves it was not exceed, there may be an original construction flaw. I suspect there’s going to be a lot of stress testing of the garage and its components as this plays out. If this is proven, expect the original developer to be pulled into the mess.
Of course there’s a bunch of other legalese in the lawsuit. It’s what I call kitchen-sinking. Lawyers leaving no stone unturned to bulk up simple concepts and to extend blame and consequences as far as the eye can see. You know what I mean … if lawyers could find a way to sue God for faulty workmanship after an earthquake, they would. Mostly it serves to intimidate the lay defendant … because every attorney from Perry Mason to Alicia Florrick surely knows (and plays) the same game.
How are Plaintiffs “Damaged?”
For there to be an award of damages, the plaintiffs must prove they’ve been “damaged” by the incident. Damages in their most basic are about making a plaintiff “whole.” Simply, returning the plaintiff as much as possible to a state before the incident occurred.
But we all know there’s another side to damages that seeks to punish defendants for wrongdoing. For example a car company knowingly marketing a car that cheats emission requirements or whose ignition switch is faulty. Those kinds of damages exceed making a plaintiff whole. We’ve all seen Erin Brokovich.
Personally, the only easily quantifiable damages listed at this time would be monetary assignments surrounding the loss of use of their still-trapped cars and their contents, along with the increased expenses incurred by the parking garage’s continued closure. To me this equates to rental car costs, additional insurance expenditures and any future increases, and whatever’s in their car they can’t live without (phone or prescription glasses … yes. Snickers bar and gym clothes … probably not.). I’d also extend the damages to parking fees, tickets and some added money for the sheer inconvenience of the whole experience. While these are ongoing expenses, they can be calculated to a final ending date and dollar amount.
If cars have been damaged in the garage, repairs and any lingering resale impairment (thanks Carfax) are also quantifiable. I’d need to understand further how an undamaged car that’s simply trapped would have its resale value diminished simply by being trapped.
What’s fascinating to me are the list of “non-quantifiable” damages. I call them non-quantifiable because at this time, there doesn’t appear to be an easy and accurate way to measure them. Perhaps by the time this case makes it to court, enough time will have passed to measure them. But I also feel these damages are on a downward sliding scale. Let me explain …
In addition to cars, the list includes reduced valuations for their condos. They’ve said the garage collapse, associated press coverage, and mandatory disclosures required when selling their condos has “significantly” reduced their value by creating a stigma and impairing the Renaissance’s reputation.
Certainly any reduction in resale prices would have to be proven (over time). Ideally, it would have to be proven over a protracted period (over more time). Perhaps insurance companies have actuaries who use national data on resale valuation trends after semi-catastrophic events who can calculate how diminished a condo’s value would be and for how long? Because as I said, without a recurrence, “damages” will almost certainly evaporate over time as the event passes into history.
How Damaged?
While it’s up to the jury (or out of court settlement) to determine liability and actual damage payouts, the lawsuit believes it’s a nice, round one-million dollars. At least part of the rationale for that number seems to be to allow the plaintiffs to conduct some extra “discovery” (investigations) into the circumstances of the accident that are only allowed for suits over (and including) the million mark.
Mr. Mallon’s condo is valued by DCAD at $151,370, they also place a value on Ms. LaCarra’s condo of $171,820. Messrs. Eghdami and Pourjavad’s unit is valued at $176,810. With DCAD valuations like these and current listings of similar units priced above these valuations, it’s tough to see any immediate effect. For trial, I’m sure a trend line will be constructed that maps all actual closed sales prices (versus listing prices) during 2015 and noting any change since the accident.
What do I think a fair judgement should be? That will depend on a lot more information and detail that’s not in the lawsuit paperwork … because that’s why we have a court system … not so idiots like me can guess.
In Conclusion
One thing you can bet on is that this suit is a trial balloon for others. With 600 units, a pile-on is guaranteed.
Do I think the plaintiffs will “win?” Yes. Do I think the lawyers on both sides will be the biggest winners? Aren’t they always?
But never having experienced a real courtroom drama, perhaps I should see how this all shakes out in person? If it’s like TV, I’m going to need a seat cushion.
Remember: Do you have an HOA story to tell? A little high-rise history? Realtors, want to feature a listing in need of renovation or one that’s complete with flying colors? How about hosting a Candy’s Dirt Staff Meeting? Shoot Jon an email. Marriage proposals accepted (they’re legal)! [email protected]
