No. 45TH. Plaintiff EDGEWOOD INDEPENDENT SCHOOL DISTRICT files its Original Petition

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1 FILED 9/24/ :11:33 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Roxanne Mujica 2014CI15241 No. W/ JD EDGEWOOD INDEPENDENT SCHOOL DISTRICT v. Plaintiff, KOONTZ/MCCOMBS CONSTRUCTION, LTD. Defendant. IN THE DISTRICT COURT OF 45TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS PLAINTIFF S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff EDGEWOOD INDEPENDENT SCHOOL DISTRICT files its Original Petition complaining of Defendant KOONTZ/MCCOMBS CONSTRUCTION, LTD. and respectfully shows the Court as follows: I. DISCOVERY LEVEL: 1.1 Discovery in this case is intended to be conducted under Level 3 of Rule 190 of the TEXAS RULES OF CIVIL PROCEDURE. II. VENUE: 2.1 Venue is proper in Bexar County pursuant to TEXAS CIVIL PRACTICE AND REMEDIES CODE in that all or part of as all or a substantial part of the facts giving rise to this action occurred in Bexar County, a contract was entered into in Bexar County, and the Plaintiff and the property which is the subject of this suit are located in Bexar County.

2 III. PARTIES: 3.1 Plaintiff EDGEWOOD INDEPENDENT SCHOOL DISTRICT ( Plaintiff or EISD ) is a local governmental entity, organized under the laws of the State of Texas, having its principal office in San Antonio, Bexar County, Texas. 3.2 Defendant, KOONTZ/MCCOMBS CONSTRUCTION, LTD., is a domestic for profit limited partnership doing business in the State of Texas. Defendant may be served with process by serving its registered agent, Bart C. Koontz, 755 E. Mulberry Avenue, Suite 100, San Antonio, TX Plaintiff requests that citation be issued so that service may be made by private process server. IV. CONSTRUCTION DEFECTS 4.1 Suit is brought against Defendant Koontz/McCombs Construction, Ltd. (referred to herein as Koontz McCombs or Defendant ) for property damage resulting from deficiencies in the construction of Roosevelt Elementary School located at 3823 Fortuna, San Antonio, Texas (hereinafter referred to as the School ). Plaintiff hereby sues for breach of the construction agreement between Koontz/McCombs and Plaintiff pertaining to the subject school construction, for breaches of the warranty of good and workmanlike performance, breach of the warranty of commercial habitability, and under common law. In the alternative, this suit is brought for common law negligence and/or negligent misrepresentation as to the Defendant in that they performed substandard supervision and/or construction and/or made subsequent substandard repairs to the School. At no time has Defendant advised Plaintiff of the problems with the original construction of the School, the need to repair all or portions of the School, the existence of problems which could cause and did cause significant property damage to the School, or the fact that the repairs were substandard and caused more damage to existing work. PLAINTIFF S ORIGINAL PETITION PAGE 2 OF 7

3 4.2 Koontz McCombs was the general contractor/construction manager hired by Plaintiff to perform the construction of the School. Plaintiff and Koontz McCombs entered into an agreement for the work to be performed by Koontz McCombs. The actions set forth in this Petition were committed by Koontz McCombs, its employees or its actual or apparent agents. As general contractor/construction manager for the construction of the School, and pursuant to the agreement, Koontz McCombs was responsible for any and all defects, improper construction practices, negligent construction or faulty work performed by any subcontractors, agents or third parties retained by Koontz McCombs or working under its direction and supervision on the project, including but not limited to the additions and renovations to the existing Roosevelt Elementary School in the Edgewood ISD. 4.3 Plaintiff s property sustained damage to various areas of the School including, but not limited to, the cost of destruction, repairs, replacement and/or restoration of the foundation system, the roofing system, the wall system, the civil grading system and also resulted in damage to equipment and property within the structure, as well as the cost of fixing the components and systems which are deficient and which are not fully functioning. These damages include the costs associated with the restoration and build back due to the development of the damage in and around the School. These damages are alleged to be the result of substandard and deficient construction of the School. 4.4 Plaintiff has further experienced other construction-related problems with the structure as the result of improper manufacture, construction and/or installation of the construction components and the restoration and repairs performed to the existing structures and the systems contained therein. Construction issues include, but are not limited to the following areas: PLAINTIFF S ORIGINAL PETITION PAGE 3 OF 7

4 Defective civil grading system; Defective exterior flatwork and sidewalk system; Defective wall system; Defective foundation system; Defective roofing system; and Ongoing construction issues related to construction warranty activities, and service and follow-up activities by the Defendant. 4.5 Defendant, expressly or impliedly, individually or through their agent or agents, made one or more of the following representations or warranties: (a) That the construction in question would be performed in conformance with the contract documents and be free from defects ; (b) That the construction in question would be performed in a good and workmanlike manner, and would be commercially habitable, i.e., free from unsafe, unhealthy, or unsanitary conditions; (c) That the School, and all related improvements and all relevant construction, installation, sealing, sizing, settings, and components, would be made, done, or constructed properly and in a good and workmanlike manner; (d) Other representations or warranties. 4.6 Plaintiff further alleges that each and every one of the representations of Defendant concerned material facts. Defendant s express or implied representations were relied upon by Plaintiff or its agents to Plaintiff s substantial injury and damage. In this connection, Plaintiff further alleges that Defendant purported to have and did have superior knowledge concerning the subject matter of the transaction described above, and Plaintiff justifiably relied upon such superior knowledge. 4.7 As a result of all such conduct of the Defendant, Plaintiff has been damaged in an amount in excess of the minimum jurisdictional limits of this Court. Such conduct of the Defendant was negligent and tortious. The conduct of Defendant constituted misrepresentation PLAINTIFF S ORIGINAL PETITION PAGE 4 OF 7

5 of fact. The conduct of Defendant was the proximate and/or producing cause of the injuries and damages to Plaintiff for which it herein sues. Plaintiff seeks actual damages from Defendant for the costs and expenses necessary to fully and completely repair any problems or defects in the project and for recovery of any incidental costs or expenses incurred as a result of the required repairs. V. CONDITIONS PRECEDENT 5.1 All of the conditions precedent to bringing this suit under the contract(s) and to Defendant s liability to Plaintiff for the claims stated above have been performed or have occurred. All notices, complaints or demands were timely and properly given in such a manner as to fully comply with the terms and conditions of the relevant contract(s) and applicable law. In the alternative, Plaintiff alleges that as to any such terms, conditions, notices, or requirements, Defendant waived them, Defendant is estopped from asserting them, and/or Plaintiff substantially complied with them. Plaintiff makes the same allegations of waiver or estoppel as to every defense or exclusion pleaded by the Defendant. VI. DISCOVERY 6.1 In response to a defense of limitations, if any is asserted, Plaintiff pleads the discovery rule, latent defect, fraudulent concealment, equitable estoppel and other matters of excuse and avoidance. In addition, Plaintiff pleads that it is exempt from the statute of limitations pursuant to section of the Texas Civil Practice and Remedies Code. VII. DAMAGES; ATTORNEY S FEES 7.1 Plaintiff seeks damages for the repair and replacement of the property damage from the defective work on the Project. Damages sought are within the jurisdictional limits of the Court. Those damages exceed $1,000,000, and Plaintiff seeks monetary relief over $1,000,000. Plaintiff reserves the right to amend the amount of relief sought as its investigation continues. PLAINTIFF S ORIGINAL PETITION PAGE 5 OF 7

6 7.2 Plaintiff and its attorneys are entitled to attorney s fees in connection with the bringing of this action for breach of contract, warranty or other legal theory. Plaintiff hereby makes demand for payment of its attorney s fees and expenses incurred in connection with bringing and prosecuting these claims. 7.3 Plaintiff reserves the right to amend this pleading in accordance with the TRCP and as discovery and investigation continue. VIII. JURY DEMAND 8.1 Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Plaintiff hereby demands a trial by jury on all contested issues of material fact. Along with the filing of the Original Petition, Plaintiff tendered the requisite jury fee to the Clerk of the Court. IX. REQUEST FOR DISCLOSURE 9.1 Pursuant to Texas Rules of Civil Procedure 194, Plaintiff requests that Defendant disclose the information or material described in Rule 194.2(a) - (i) and 194.2(l). WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon trial of this matter, the Court grant: 1. Judgment against Defendant for actual damages, as set forth above, in an amount in excess of the minimum jurisdictional limits of this Honorable Court; 2. Incidental damages caused by Defendant s breaches; 3. Interest on said Judgment at the legal rate from the date of Judgment; 4. Pre-judgment interest as allowed by law; 5. Post-judgment interest at the legal rate; 6. Attorney s fees; PLAINTIFF S ORIGINAL PETITION PAGE 6 OF 7

7 7. Any additional damages under the facts set forth in this or any amended pleading; 8. Costs of suit; and 9. All such other and further relief to which Plaintiff may show itself to be entitled, at law or in equity. Respectfully submitted, GRAVELY & PEARSON, L.L.P. 425 Soledad, Suite 600 San Antonio, Texas Telephone: (210) Facsimile: (210) By: Marc E. Gravely State Bar No Michael M. Gavito Texas Bar No Jonathan C. Lisenby Texas Bar No and ESCAMILLA & PONECK, L.L.P Douglas A. Poneck State Bar No Philip Marzec State Bar No North St. Mary s Street San Antonio, Texas Telephone: (210) Facsimile: (210) ATTORNEYS FOR PLAINTIFF PLAINTIFF S ORIGINAL PETITION PAGE 7 OF 7