OCEAN TOWER LAWSUIT: Full text

Island Breeze

The developers of the Ocean Tower condominiums on South Padre Island have filed suit in Cameron County, claiming fraud on behalf of three firms involved with the engineering and construction of the high-rise building.

Construction on Ocean Tower was halted last month after cracks were discovered where the parking garage was attached to the main tower.

Below is the complete text of the lawsuit filed in the 357th District Court on June 26.

Ocean Tower, LP,
A Texas Limited Partnership,
Plaintiff

VS.

Raba-Kistner Consultants, Inc.,
A Texas Corporation;
Datum Engineering, Inc.,
A Texas Corporation; and
Zachry Construction Corporation,
A Delaware Corporation
Defendants

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Ocean Tower, LP, A Texas Limited Partnership, Plaintiff herein (herinafter "Ocean Tower"), which files this, its Original Petition, Complaining of Defendants Raba-Kistner Consultants, Inc., A Texas Corporation (hereinafter "Raba"); Datum Engineering, Inc., A Texas Corporation (hereinafter "Datum") and Zachry Construction Corporation, A Delaware Corporation (hereinafter "Zachry"), and would respectfully show the Court the following:

I.

LEVEL 3 DISCOVERY CONTROL PLAN IS SELECTED BY PLAINTIFF

1.01 Plaintiff hereby advises this Honorable Court that it selects and intends to conduct discovery in this case under Level 3 or Rule 190.4 of the Texas Rules of Civil Procedure.

II.

PARTIES

A. Plaintiff, Ocean Tower, LP, is a Texas Limited Partnership with its principal place of business in McAllen, Hidalgo County, Texas.

B. Defendant, Raba-Kistner Consultants, Inc., is a Texas Corporation, with its principal place of business at 12821 West Golden Lane, San Antonio, Bexar County, Texas 78249, where it may be served with process herein.

C. Defendant, Datum Engineering, Inc., is a Texas Corporation, with its principal place of business at 5929 Balcones Drive, Austin, Travis County, Texas 78731, where it may be served with process herein.

D. Defendant, Zachry Construction Corporation, is a Delaware Corporation, duly authorized to do business in the State of Texas, with its principal place of business in San Antonio, Bexar County, Texas. It may be served with process herein by serving its duly designated agent for service.

III.

VENUE

3.01 Plaintiff would show unto this Honorable Court that venue of this proceeding is proper in Cameron County because Cameron County is the county in which all or a substantial part of the events or omissions giving rise to Plaintiff's claims occurred, in that the fraudulent representations of Defendants Raba, Datum and Zachry, and/or the negligent actions of all three Defendants, and all the three Defendants actions and failures to act occurred in said County.

IV.

JURISDICTION

The amount in controversy herein is within the jurisdictional limits of this Honorable Court.

V.

FACTS

Ocean Tower is the owner of a substantial piece of property on South Padre Island, lying just North of the city limits of the City of South Padre Island, running from the Gulf beachfront to the bay shore of the Laguna Madre. Ocean Tower set out to develop the most luxurious, well-appointed condominium high-rise on the Texas Gulf Coast, and commissioned the plans for Ocean Tower Condominiums, a 31-story high rise structure containing 151 condominiums, 4 high speed elevators, a spa, fitness center, and fully-manned beachfront facilities.

After developing the plans, Ocean Tower began to look for highly reputable geotechnical (soil) and structural engineers and a quality general contractor, in order to produce a world-class facility in Cameron County. Defendant Raba represented to Plaintiff that is was the pre-eminent soil engineering firm in Texas. Raba states "Our professionals clearly understand the interrelationship between our geologic environment and the objectives of clients. We have worked on some of the region's largest and most significant construction projects. Over the past 37 years and presently, our geotechnical team successfully tailors cost effective scopes of service to fit individual project requirements. Every project is unique. We take advantage of advanced technology including geophysical surveys and pressure meter testing. ..." (Raba website, www.rkci.com) More specifically, Raba held itself out to be an expert on the Soils of Padre Island, and represented to Ocean Tower that, if engaged, it would work tightly with the foundation sub-contractor and the structural engineer to engineer a proper foundation for the project. Based on these representations, Raba was given the assignment.

Raba prepared its soil tests, gave instructions to the foundation sub-contractor, field-tested pile samples, and signed off on the foundation as poured.

Defendant Datum represented itself as being a fully qualified structural engineer, and accepted the foundation. Datum states that: "Dealing with expansive soils requires experience and close attention to details and construction practice. By the nature of our work along the Balcones fault, we have gained a considerable amount of experience and understanding in mitigating the effects of expansive clay. This is an interdisciplinary subject, so we have authored a book with the goal of broadening our clients' knowledge in this area. ..." (Datum website: www.datumengineers.com)

More specifically, Datum held itself out as being able to engineer the structure itself, in order to create a superior structure. Ocean Tower relied on Datum's representations, and hired it as the structural engineer. However, Datum allowed for no settling of the structure, and Datum engineered the 31-story tower to be statically attached to the 4-floor parking garage.

Defendant Zachry actively sought out Plaintiff, after Plaintiff was negotiating with SpawGlass Contractors, an experienced general contractor which has built multiple high-rise buildings on the sands of South Padre. Zachry made multiple representations to Plaintiff that is have extensive concrete poured building experience, that it had engineers on staff to double check all measurements and dimensions, and that it would deliver a quality product to Plaintiff. Plaintiff relied on Zachry's representations, and allowed Zachry to prepare a contract with its subsidiary Coastal Constructors, which Zachry guaranteed, without Plaintiff's realizing that this would be Coastal's first high rise project.

The facts are that the soil upon which the building was placed contains a substratum of expandable clay at the 120 to 190 foot level. This clay is also known as compressable clay and, as a result of Raba's miscalculation of the piers necessary to support the building (Raba authorized 95 foot piers, after testing only down 100 feet) the building weight was focused on the clay stratum, which compressed, and allowed the building to settle. The settlement was uneven (differential settling) which stressed the beams and columns designed by Datum, and resulted in cracking, spalling and breaking of the beams and columns.

The current settling is the result of the general contractor's having completed the "topping out" of the building despite obvious measurement deviations beginning on the 7th floor, which should have alerted a contractor of the experience which Zachry claimed. Instead, the contractor completed 24 more imperfect floors in order to earn millions of more dollars in draws.

The present settlement chart is shown below:

Settlement of the structure (tower and parking garage) has occurred, and is continuing to occur, primarily due to consolidation of the Layer 4 soils as a result of structure loads being distributed to this layer. Measured total settlements to date are as follows:

Beneath tower core: 14 to 16 inches.
Beneath tower exterior: 8 to 14 inches.
Beneath west parking garage: 4 to 8 inches.
Beneath east parking garage: 1 to 2 inches.

These are present measurements, and if construction continues, will be increased.

In order to return the building to its proper design and function, the parking garage will need to be detached, and the foundation will need to be reinforced with micro piers of 200 feet in length through the expandable clay stratum into the solid stratum below. This will make the building completely stable and safe, and will allow the building to be completed in a quality manner.

However - the repairs in question will add 20 to 25 millions dollars to the cost of construction, and will delay the project for from 6 to 9 months. In addition, the negative publicity and economic damage to the project is expected to reach 100 million dollars.

V.

CAUSES OF ACTION

A. DEFENDANTS committed fraud against PLAINTIFF by the respective acts set out above. DEFENDANTS made representations to PLAINTIFF, the representations were material and the representations were false. Further, when DEFENDANTS made each representation to PLAINTIFF, DEFENDANTS knew that the representation was false or made the representation recklessly, as a positive assertion, and without knowledge of its truth. In addition, DEFENDANTS made each representation with the intent that PLAINTIFF act on it. PLAINTIFF relied on the representations and PLAINTIFF'S reliance on the representations cause PLAINTIFF injury.

B. In the alternative, the acts and omissions of DEFENDANTS were negligent. Such negligence, however, was more than momentary thoughtlessness, inadvertence or error in judgment. Said acts and/or omissions were of such conscious indifference to the rights, welfare and safety of PLAINTIFF and to the general public as to constitute gross negligence.

VI.

DAMAGES

A. PLAINTIFF has been damaged by the acts and omissions of DEFENDANTS. Those damages are within the jurisdictional limits of this Honorable Court.

B. PLAINTIFF has damages caused by the acts and omissions of DEFENDANTS in the amount of $125,000,000 and NO/100ths DOLLARS.

WHEREFORE, PREMISES CONSIDERED, PLAINTIFF prays that this Court cause DEFENDANTS to be served with process herein, that they be ordered to appear and answer and that upon final hearing herein PLAINTIFF have judgment of the Court for its damages, attorney's fees and costs and for any other and further relief, either at law or in equity, for which it may hereafter show itself entitled.

Respectfully submitted:

LAW OFFICE OF JOHN KING
3409 N. 10th Street
McAllen, Texas 78501
Telephone: (956) 687-6294
Telecopier: (956) 687-5514

By (signed) JOHN ROBERT KING
Texas Bar No. 11452000

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