EXCAVATING FOR A NEW BANK BUILDING

Back in 1978 my company contracted to excavate for the new Capitol National Bank. It was the largest job of that type that Lewis Contractors had ever taken on. Considering it was excavating 30′ deep a full block square downtown Austin from 7th to 8th St. between Guadalupe and Lavaca and it was solid limestone rock it had its challenges.

The only real way to accomplish a project like that was to blast. If I remember correctly, we did it in around 60 days. Considering the equipment we had to work with in those days, it seems remarkable to me now. It all came off without a hitch.

Came off without a hitch, well almost.

After we finished the main building excavation, we had to wait until the building was almost complete before we could excavate for a tunnel that would connect up to a parking garage north of 8th Street. Our blasting subcontractor was required to drill and blast the tunnel while the blasting for the building.

When we went back about a year later to begin excavating for the tunnel, which was a 50′ wide and 30′ deep across 8th Street, the rock was not broken, as was part of the contract. We notified the subcontractor, to come back and aid us in removing to unblasted rock, per our agreement.

After several days of attempting to break the rock, the blaster informed us that he couldn’t continue working because he was out of money. We were holding $30,000 of his contract, per the agreement as retainage which is customary to insure all work is completed in a satisfactory manner. However if we would advance him the $30,000 he would then be able to remove to rock.

I could tell that he was in trouble and it was going to cost much more than the $30,000 to complete the work. I knew he was trying to retire and his company was broke, so given over the money wouldn’t serve either of us. He and I came to an understanding that in lieu of paying him the $30,000, we would complete the work ourselves. Everyone concerned would be better off for handling it that way.

The job was finished and life continued on. About five years later I was served with a lawsuit, with him seeking the $30,000 he had never been paid.

My attorney, advised that we counter-sue him for the amount that it actually cost us to complete the work, which was over $100,000 more than the $30,000. I argued that it would do no good to sue the man, as he was broke and we’d never receive a dime. The logic was how a jury would react better with a counter claim. What did I know? So on the advice of my attorney we countersued.

I had always figured the old fellow would die and the lawsuits would die with him. It took several years for it to come to trial. We spend a couple of days in the courthouse. I had already spent about as much on my attorney as the original claim was, which is not so uncommon in those circumstances.

The jury handed down a verdict that he wasn’t due the amount of his suit and I wasn’t due the amount of my countersuit. Everything was a wash.

I left the courthouse pleased because in all actuality, it was what I had always wanted.

A couple of days later my attorney called with a big surprise. The judge had ruled that since we lost our countersuit and it was a greater amount than the original suit, that we were the “big loser” and he was the “little loser” so we would pick up the tab for his lawyer. That amount was around $30,000, ironically.

My attorney said we would have an excellent chance of prevailing but it would take a while and cost more attorney fees and other costs. We would just need to convince a judge to overrule another judge, but that the “Big Loser vs Little Loser” has never been tested as far as he knew.

I thought about it for a few minutes and called my attorney back to see where I would need to deliver a check to and the exact amount. I personally carried a cashiers check down to my attorney to put this whole thing to bed.

But As It Turned Out, That Wasn’t The End Of The Story

Two or three years later I went to buy my wife a new Chevrolet Suburban. When they ran my credit, the credit manager informed me I had a judgement against me and would have to clear it up. Researching it, I found out that when the Judge made the determination that she did, she immediately handed it down as a Judgment, so I would have to honor it.

I later found out than there was some cronyism going on between she and the other attorney. He had pleaded with her to find a way to help him get his money, because he otherwise would never get paid.

I called my attorney that had handled this case to see what would have to happen to get this resolved. When he called me back to give me the news that he had spoken with the other attorney and I would need to pay him $1,200 to prepare a Release of Judgement, since all of that cases records were archived, blah, blah, blah.

I suppose I must have blown a fuse. I told him that I was headed to the airport and would be in Las Vegas for 3 days. When I got back that Suburban had better be ready for me to take delivery of. I left him the dealership name and off I went. I was so upset I’m not really sure what all I said, but we went straight from the airport when we returned and picked up her new ride.

I never had another word with that attorney.

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