The Big Loser

I know I’ve told y’all this story before, but I can’t pull it up. That may be because it was in the comments of another story. Anyway, I don’t have much going on this morning so I’ll just re-tell it. It’s actually worthy of being a story all on its own.

Back in the late 1970s I contracted to do the excavation for the Capitol National Bank in downtown Austin. The project called for the removal of approximately 100,000 cubic yards of solid limestone. The excavation was a hole that was a full block square by about 30’ deep. It was located between 7th and 8th Streets to the south and north and Lavaca to the east and Guadalupe to the west .

In those days the only practical means to do an excavation of that sort was to blast it with dynamite and then load out the blasted rock on dump trucks.

This photo shows a track drill on the upper tier, drilling for the blasting. You can see the dome of the Capitol in the background.
The blasted rock and a 977 Cat Track Loader
The excavation site with a dump truck being
loaded.

In addition to the deep hole that was excavated for the new bank building, we also blasted and dug out for an underground tunnel that would connect up with a Parking Garage that was to be built on the north side of 8th Street.

The tunnel would not be ready to dig out until both the bank building and the parking garage were nearing completion, a year or so later. Care was taken to blast out the width across that street. The City allowed us to close that street long enough to blast, which would raise the street, then we could temporarily repair the street before reopening it.

For most projects in those days we did most blasting with our own forces, but with this being downtown and the liabilities so high, we elected to hire a subcontractor that blasting was their only business. For the entirety of the main excavation, the first phase of work, the blasting work was flawless, meaning the rock was broken up into manageable size that it could be easily excavated.

However when we went back to do the tunnel excavation, that area was very poorly blasted. I met with the subcontractor, of whom had been paid almost 100% of his work, except an amount of retainage which was customary in our business. The retained amount was approximately $60,000. The subcontractor had fell on hard times and said he wouldn’t be able to come back and redo his work unless I paid him the $60,000 up front. Since the new buildings were already built adjacent to the tunnel area, the General Contractor wouldn’t allow it to be blasted, so the rock would have to be mechanical removed. Doing calculations of what it was going to cost to extract the rock in that area, I knew it would be far more costly than the $60,000. Giving him the $60,000 wasn’t going to allow him to do the work, because he was already broke, old, in poor health and ready to retire.

I met with the old fellow, of whom I really liked and had known for a number of years, and told him that I would complete the work and keep the $60,000 to help offset the cost I was to endure. He seemed very relieved to be able to walk away from the project, given what it would involve to finish.

We started to work excavating the tunnel, keeping good notes on what all was involved. The tunnel was completed, as was all the rest of the project. We had spent a couple of hundred thousand more dollars than the $60,000 by the time we finished. While that was a bitter pill to swallow, we had done well on the project overall, so we could afford it.

A few years passed, maybe 3 or 4 when I received a letter from an attorney saying that his client, the Blasting Subcontractor was demanding his $60,000 that I had failed to ever pay him. First one thing and another and we were headed to the courthouse.

We started preparing our case. Due to good record keeping we were able to show that we did the work that the other company was paid for but had not done successfully.

After everything was turned over to my attorney he said “you need to countersue this guy for all the money he cost you.” I told him I wasn’t interested in trying to collect any money from my once upon a time old friend, because he was old, broke and in very poor health. My attonney argued that it would help our case to countersue. Reluctantly I agreed, as he was the expert when it came to legal matters.

The case was fairly straightforward, only took a couple of days to get a verdict. The jury said the old fellow didn’t deserve any money. Further they said that I shouldn’t get any money from him on my countersuit. The whole thing was a draw.

I left the courthouse feeling pretty good. It had cost me a few thousand in attorney fees, but I had prevailed.

A few weeks later I got a call from my attorney asking me to come in to talk about something that had just come up. Upon arriving I was informed that the opposing attorney had gone to the Judge in the case, after the fact and got her to rule that I should pay the attorney fees for the other side. He pleaded that he would not get paid otherwise. The old man was broke and in poor health, therefore he’d never see a dime of the $12,000 (approx.) that he was owed.

Being a friend of the court, it appeared, the judge ruled that I should pay the $12,000. I didn’t feel right about it all but looking at the up hill battle I’d face, first trying to get another judge to overturn a judges decision and the expense in doing so, I was probably going to payout several thousand dollars trying to fight it, with no hope of recovering the attorney fees even if we prevailed.

This became known as the Big Loser vs. the Little Loser Case. Since I had lost more on the countersuit that the other fellow lost, I became the “Big Loser”.

I rolled over and decided to pay it. I left my attorneys office and drove straight to the bank and got a cashiers check in the total amount. I had my courier deliver it to the courthouse that day to settle the case once and for all.

It was a couple of years later when I went to buy my wife a new Suburban. This was most likely the first major purchase I had made during the 2 years since the court case. The finance manager at the dealership informed me that I had a judgement against me that would need to be remedied before he could get the finance company or any bank to make the loan. I started looking into what the judgement was all about. Finding out that the Judge in the case had entered that ruling as a judgement, insuring that I would surely have to pay it at some point.

Steam was coming out of my ears. I called my attorney from that case to tell him what had transpired. He said he would look into it.

After talking with the opposing attorney, he called to give me the news that a release of lien would be prepared. It would cost me an additional $1,100, because it had been long enough ago that he’d have to do extra work to search his archives.

As anyone that knows me knows, I lost my ever lovin Lewis mind about that time. When I was done explaining the all facts to my attorney, he assured me he’d get it taken care of.

The next day I got a call from the dealership saying the new Suburban was serviced and ready to be picked up.

I never was sure which attorney prepared the release of lien, but someone did and really that was all that mattered to me.

I never had an occasion to ever speak to that attorney again.

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