Growing Specialty

Growing Specialty

By Janet Leiser

Senior Writer

At Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis PA, lawyers John Vento and Robert Buesing are charged with saving taxpayers a $140 million-plus tab.

That's about how much the construction problems of the Lee Roy Selmon Crosstown Expressway expansion will cost the Tampa Hillsborough Expressway Authority, unless Vento and Buesing are successful. The lawyers say the road's designer, URS Corp., is responsible for last year's collapse of the expressway's piers and should pay.

The attorneys are part of a growing legal trend: Their focus is construction law.

In August, Vento was among the first group of lawyers to become certified in construction law through The Florida Bar. About 100 of the state's 76,000 lawyers are now board certified in the specialty.

Steve Marlowe of Marlowe & McNabb PA, a small Tampa firm that specializes in construction law, has practiced construction law since 1976. He and partner Brian Stayton also recently became certified in construction law.

At Trenam Kemker, there are about 12 lawyers in the firm's construction/government contract practice group. Other firms, such as Holland & Knight LLP, Carlton Fields PA, Fowler White Boggs Banker, GrayRobinson and Phelps Dunbar LLP, also have groups that specialize in construction law.

"Construction is one of the largest economic drivers in the state of Florida," says Buesing. "The days of any general practitioner lawyer handling construction law disputes, I believe, are gone."

Start to finish

Many firms provide all legal services a developer needs in the creation of a project, from the writing of a contract to purchase land to the litigation of problems that arise during construction.

One Trenam Kemker client is a group of 20 homebuilders who are responding to Charlotte County government's request for proposals for the redevelopment of Murdoch Village, Vento says. The challenge is to meet all the requirements of the RPF, while writing the proposal so that it piques the Charlotte County Commission's interest.

The firm also represents a developer who's building an $18 million HUD apartment complex in Punta Gorda. Vento came to that contractor's rescue earlier this year when the government stopped payments because the contractor was six months behind schedule.

Other Trenam Kemker clients include SimDag, which is developing Tampa's Trump Tower, and the company that built Sheikra, Kumba and Montu at Busch Gardens.

"Construction is a complex process," Buesing says. "It involves an awful lot of energy and input from a lot of different people, and from the lawyer's point of view, there are a lot of opportunities where a mistake might be made."

Pipes to piers

Problems run the gamut.

Buesing recently received a call from an established contractor about a jail he'd just completed. The electrician didn't ground the pipes correctly so the pipes developed holes and began leaking.

"It's like a law school exam," Buesing says. "Is it the architect's fault for designing it improperly? Is it the electrician's fault? Is it the plumber's fault?"

If the bill is big enough, the attorneys usually hire forensic engineers to help decide what went wrong.

Most of the time, the problem is with the design, Vento says, adding: "There are a lot of inspectors watching to make sure it goes in right. But there really isn't anyone checking to make sure the design is correct."

As for the expressway, the engineering firm was contractually required to have its design go through a peer review, Vento says. But it didn't happen.

He contends a peer review might have caught the design error.

The expressway project is back on track and expected to be completed by next August, Vento says. He declined to discuss specifics of the dispute since the firm is involved in confidential mediation with URS.

Contracts matter

It sounds simplistic, Buesing says, but a legally sound contract is key to protecting the interests of those involved in a project. "A well-written contract can save you millions of dollars," he adds.

Marlowe, who's also an arbitrator, agrees. He says the contract specifies the rules of the game. It's the first item an arbitrator reviews in a dispute.

Because of the high cost of litigation, more and more contracts require mediation, Vento says.

"Our No. 1 goal is to avoid litigation," Vento says. "It can be very expensive for our clients."

If litigation isn't avoided, the legal bill can hit seven figures. In the expressway case, there are as many as 10 law firms involved in the dispute and legal fees could exceed $5 million.

Ardaman & Associates, independent consultants hired by the authority, and state Department of Transportation engineers, say serious mistakes were made by URS in the design of foundations for all 212 piers in the five-mile project.

"The key to this business is to get the lawyers involved at the first sign of trouble instead of waiting until you're polarized and there's a huge dispute," Vento says.