Friday, June 25, 2010

Court Case Outcome Could Allow Contractors To Sue

Yvonne Castillo
TSA General Counsel

As blogged before, see below, pending before the Texas Supreme Court is a case where one of the issues is: whether or not to allow a third party "contractual stranger" to sue a design professional for economic damages. If the Court rules "yes," then contractors who claim economic losses stemming from the architectural plans and specifications could sue architects. Because the ruling could have a tremendous impact on the architectural profession, we filed an amicus brief ("friend of the court") with the Court this morning.

Click to read TSA’s amicus brief.

Tuesday, June 15, 2010

“Gross Unfairness” Alleged If Contractors Can’t Sue Architects

by Yvonne Castillo
TSA General Counsel

This is what is alleged in a legal brief pending before the Texas Supreme Court. Imagine if in every project you did, regardless of whether you had a contract with the contractor on the project, the contractor could sue you because he lost money and is pointing the finger at you and the plans and specifications as the source of his economic damages. That’s what’s at stake in a case pending before the Texas Supreme Court. The case stems from an issue where Sharyland Water Supply Corporation is trying to recover alleged economic damages against sewer engineers for designing sewer lines in an alleged negligent manner (i.e. causing harm to their water lines), thereby allegedly creating economic damages to the Corporation. Why do we care about this case? Because Sharyland Water Supply had no contract with the design professionals and is alleging economic damages (without any accompanying property damage or personal injury), and depending on the Court’s ruling, this could easily translate into contractors being able to sue architects on the plans and specifications for alleged economic damages, even without privity of contract.

I’m in the process of finalizing and submitting an amicus brief (“friend of the court” brief since we’re not named litigants) on behalf of TSA to, hopefully, persuade the Court to rule against allowing Sharyland to recover against the engineers. In other words, we’re asking the Court to uphold the Economic Loss Rule, a long-standing legal doctrine that says you can’t sue a party in tort (negligence) for economic damages when there’s no property damage or personal injury. The architectural community cannot afford a change in law where the Economic Loss Doctrine is not upheld. This would be a big problem – opening up a pandora’s box of litigation. If contractors can sue on the architectural plans, who’s next? Subs?

Guest Blog: Driving Mr. Libeskind [Part II]

by Jamie Crawley, AIA, LEED AP


I am not sure how many times I have visited the Kimbell…sometimes alone just to sketch, with friends to see a travelling exhibit, as a newly minted architectural student, then leading my own students years later, and most importantly a special visit once with my daughter. But with the news and images, May 27, of the museum’s expansion, I recalled my good fortune of admiring and facilitating Daniel Libeskind’s first visit to Kahn’s masterwork and the reverence he showed for the place. [curious? check out “Driving Mr. Libeskind | Part One”]

Reading Ouroussoff’s review in the NYTimes last week and recalling the conversations I had with Mr. Libeskind almost ten years ago, I’ll admit my mind wandered… “What if Libeskind were Piano in some alternate reality?” With the discussions of Kahn, and his perceived intentions with the Kimbell, could Daniel Libeskind or in this case Renzo Piano deliver an appropriate response to arguably one of the masterworks of the 20th Century?


We entered that day through the loading dock -- joking that even the public entering on that side of the structure from the small surface parking area rarely realized this was counter to Kahn’s intended entry sequence. Maybe it was Libeskind’s irreverence to certain convention, but I soon realized the mechanics of the museum were also of interest and not off limits to us this day.

What would Libeskind do? Likely he would also generate an elaborate sequence of entry from the subterranean parking structure to an intermundium or area between the two worlds of the new and the old galleries. In reviewing Piano’s proposition, I am struck by the response to entry and remain uneasy at this proposed solution. Noting I see this oddly as a foray into the world of Libeskind of juxtaposition, reinterpretation, and deconstruction. Though I believe arriving between these two worlds gives rise to an uneasy balance, a purgatory of sorts. The parti embraces deconstruction of entry as it relates to the history of this place. The first visit upon its completion in 2013 there will be many a weary disciple of Kahn unsure of which path of worship to take.

Incidentally, at the time of our curator-led tour, we, like so many other architecture junkies, eventually exited the building, walked out to the lawn, turned on our respective heels, and returned along Kahn’s intended route, reentering the museum and continuing our tour. Mr. Libeskind’s Jewish Museum would officially open with exhibits in September just as other fateful events would unfold in New York. Later he would tackle museum projects in England and more recently an expansion to Gio Ponti’s Museum in Denver. I enjoyed his quick wit and realized his architecture is duly informed by his insatiable curiosity and musically tuned mind. We talked of seeing the world differently and of deconstruction. He spoke of his affinity for the museum program and his disappointment at the unrealized Victoria and Albert expansion in London. Renzo Piano in Texas alone has three other successful museums and will undoubtedly create an energy efficient and technologically advanced addition to the Kimbell Museum. But the restraint shown in those previous site specific and stand-alone responses does not appear present in Fort Worth. Nor would I like to see a return to the light in the Cy Twombly, the evenness of the light in that space appears to negate it as a material. Hence counter to Kahn’s response at the Kimble and elsewhere. Piano’s proposed roof system appears to be a hybridization of lessons learned at the Menil, Nasher, and Cy Twombly. The feeling of light in the space we will only know when we visit and…we will most certainly visit.

CONCRETE (anyone?)

In closing, consider where Piano’s subtle parlay into a world of Libeskind’s deconstruction falls apart: his choice of glass…Ando respectfully, quietly and gracefully acknowledged Kahn but a street divides them. The Modern politely waves at the Kimbell. Piano who knew Kahn, chooses a dialogue on this “sacred” site in a material other than concrete and misses the singular proposition of this this setting... in this sense of place...a dialogue between master and student...past and present. If I would have one question for Mr. Piano, it would be:

Why not? Maybe Daniel will ask him after his next visit.

About the author:
Jamie Crawley, AIA, LEED AP,  joined the office of Hamilton & Associates in May 2010 as Director of Architecture. Since 2005, he has served as lead designer and project manager for projects in a variety of sectors including public/civic, commercial, education, residential, and industrial throughout North, Central, and South Texas. Formerly a full-time Visiting Assistant Professor of Architecture, he continues to participate and speak at industry conferences on architecture, sustainability, advocacy, social media, and education. He currently serves as a member of the TSA New Media Committee and will be moderating a panel on “Purpose of Social Media” at the TSA Convention in October 2010. BLOG: atxarchitect | TWITTER: @ha_architecture

Thursday, June 3, 2010

Engineers Beware... You're Not Getting the Whole Truth

Yvonne Castillo
TSA General Counsel

If you read the recent Texas Society of Professional Engineers (TSPE) Update to their members on Friday, May 28, and their “take” on the lawsuit they filed against the Texas Board of Architectural Examiners (TBAE), you’d likely walk away from the update believing (or should I say “misbelieving”) that they’ve won! That their members don’t know the reality is a shame and probably contributes to this decade upon decade-long battle between engineers and architects. Frankly, in my opinion, TSPE is doing a disservice to their members. I can only hope that the engineers that read these updates take a little time to actually click on the Court opinions that are embedded and not take the editorial summary as gospel.

The truth is TSPE lost on all counts but one, and that one claim was so insignificant that it made no difference to the issue at hand. Let’s start with what they won. The court agreed with the engineers that TBAE shouldn’t have included a statement in one of their educational pamphlets that said “Engineers may not engage in the same activities as architects” because that statement doesn’t reference the fact that there are certain exemptions where an engineer can design buildings that fall below the certain threshold (i.e., 20,000 square feet for commercial buildings or the dollar thresholds of $100,000 on public projects). The same goes for another statement in that same pamphlet that said “Simply put, our position is this: In Texas, architectural plans and specifications require the seal of a licensed architect.” Again, it depends. If the plans and specifications fall under the thresholds required by law, then technically that statement is wrong, even though the Court acknowledged that TBAE did reference the exemptions when the document was read as a whole.

So, mea culpa, TBAE was slapped on the hand by the Court, asked to clarify that there are certain exceptions in the Architects Practice Act, but all TBAE needed to do was specifically reference those exceptions in those statements. There was a bunch of legalese used to explain that concept, but that in a nutshell is what happened. So, what did the engineers get out of that “favorable” ruling? Next to nothing. The Court’s action simply required the pamphlet to reference the exemptions that exist today. I say “So what?” That’s not a win. They gained nothing. The law is still the same and the Court affirmed it. The Court did nothing, I mean n-o-t-h-i-n-g, to expand those exemptions to allow engineers the authority to practice architecture beyond the thresholds that exist today.

Now let’s talk about what the engineers lost, and lost big time. And, please don’t take my opinion as gospel either, click here to read the Court’s findings. The Court ruled in favor of TBAE on all other substantive claims. The Court said that TBAE’s rules, including the rule which delineates when an architect is required on a project and when an architect must prepare the architectural plans, are valid and consistent with statutory law, DESPITE the engineers’ claim to the contrary. The Court also said that professional engineers are not categorically exempt from the Architects Practice Act, DESPITE the engineers claim to the contrary. Those claims were shot down…clean and simple. The whole lawsuit was filed because the engineers want the authority to practice architecture beyond the exemptions and the Court said a resounding “No.” So who won the lawsuit? I say: there’s no question that TBAE came out the winner which means the architects law was upheld which means engineers cannot, may not, should not practice architecture unless they’re doing it below the thresholds….and that’s the truth!

Wednesday, June 2, 2010

Publications Committee Update

Brantley Hightower
TSA Publications Committee, Chair

May was a busy month at the TSA office. In addition to hosting the Design Awards jury on May 21, TSA hosted the Publications Committee on May 14. The committee met to discuss the future of Texas Architect magazine. Sitting in on the bimonthly meetings to discuss Texas Architect and CheckSet is always a pleasure since it allows other committee members and myself the opportunity to hear about all of the quality work the Society is doing as an organization, as well as to see and talk about all the truly amazing design work that is being produced by the TSA membership. Sitting in on the Design Awards jury made me realize just how many outstanding projects are out there, and I truly wish we had more space in the magazine to feature them all.
At any rate, the May Publications Committee meeting was unique because it was a strategic planning session to discuss the future of TSA publications. We came to the meeting not looking to radically change anything about the magazine, but rather to develop strategies to subtly improve internal mechanisms that will allow the continued publication of the best architecture the state has to offer.
The committee members feel strongly that there will always be a place for a well-produced, high-quality print publication. That said, we also realize that increasing our Web presence is a necessary part of any long-range strategic plan. To that end, we also met with members of the New Media Committee, who came to the table with considerable excitement about the potential of TSA's social media tools, such as Facebook, Twitter feeds, and the blog. These outlets are excellent mechanisms for the quick dispersion of news and rapidly changing situations. This is an area where Texas Architect is at a disadvantage because of the long lead-time between published issues. That said, there is some "cachet" associated with the magazine because of its quality and the scarcity with which it is published. While I definitely feel there is room for overlap and look forward to developing those links, it also seems worthwhile to recognize the differences and allow each media type to do what it is they do best.
But we also want to know what you, the readers, think. 
Later this year, Texas Architect subscribers will receive an invitation to participate in an online survey about the magazine. This survey is an opportunity for us to hear from the entirety of the readership and to gain a better understanding of what our readers want. We encourage and look forward to your participation.