In the two years since Palm Coast filed suit against a dozen contractors involved in the original construction of the ill-fated splash pad at Holland Park, GrayRobinson, the law firm representing the city, has billed $376,000 in fees, with more depositions, hearings and what the attorney handling the case said may well be a four-week trial early next year, all of which would raise the city’s legal costs substantially.
By the time it’s done, and absent likely appeals whichever way the case goes, the city’s legal bills are almost certain to exceed half a million dollars. (The budget for the city attorney this year, which does not include splash pad or any other outside litigation, is $670,000.)
The legal costs will be added to the cost to the city of rebuilding the splash pad, which reopened to acclaim and with no technical issues since, on July 3. The city contracted with Daytona Beach-based Saboungi Construction to rebuild the splash pad portion of what had been a $6.28 million renovation of Holland Park, completed in May 2021. The splash pad portion had cost $5 million. Saboungi Construction, which had built several city landmarks, rebuilt the splash pad for $3 million including contingencies and design.
The city has paid out all those legal and reconstruction costs in addition to what it had originally paid for the 2021 renovation. But all legal and reconstruction costs would be recouped should Palm Coast prevail in its case against the original contractors.
It’s not a simple case. There are 12 defendants. The 13 attorneys representing each of the defendants and Palm Coast’s Trevor Arnold of GrayRobinson appeared before Circuit Judge Dawn Nichols in a status conference earlier this month, with Arnold alone speaking and summarizing where the case stood.
“It appears that everybody is working well together,” Nichols told the litigants, calling it a “pleasant surprise” compared to some of the other cases she’s been dealing with concurrently. “Just keep doing what you’re doing.” The niceties may be deceptive, considering the sums and reputations on the line.
Nichols is brand new to the case, as she is to the Flagler County courthouse, but not to civil or criminal law: she is among the Seventh Judicial Circuit’s most seasoned judges. The case had been moving along since Palm Coast filed the suit almost exactly two years ago (on Nov. 29, 2022) on now-retired Judge Terence Perkins‘s docket.
Arnold gave the judge the Cliff-Notes background, with a few additional insights: “This relates to a public park, a splash pad,” he said, “and the repairs have now been completed, and that has simplified some of the issues, perhaps created some more issues. But so we have produced those documents regarding the repairs, liquidating things, so that is kind of the status of the overall dispute. Plenty of issues still left in the litigation, but the repairs were commenced after the lawsuit was filed, and those have now been completed in the park is reopened.”
The city contends that contractors committed a series of mistakes and overlooked code requirements during construction. The number of defendants is itself a built-in defense for many of them, who can point the finger at other contractors to shift responsibility in part o=r in whole. The contractors will also retort that the city’s inspections should have caught errors and prevented their furtherance. (See: “Harsh Report Outlines List of Serious Issues at Splash Pad as Council Prepares Next Repair Step.”) Even if some or all the contractors are found to be liable for mistakes, the trial will also define the percentage of liability each contractor is responsible for, itself a complicated and, for juries, tedious and sometimes intractable process.
Some contractors could settle before trial. More mediation sessions are scheduled in coming weeks. But so far there are no indications that a trial would be avoided. Long witness lists have been submitted to the court, some of them big, open windows into the litigants’ strategies. For example, one of Palm Coast’s expert witness will be Kenneth Martin of Martin Aquatic Design and Engineering, an Orlando firm. He is the author of the 123-page report that outlined the problems at the splash pad. He will presumably testify about the report, and in language accessible to the jury. Of course, he will also be cross-examined by the defendants’ attorneys in what is expected to be one of the focal, and grueling, points of the trial.
The city has also submitted a list of 33 witnesses, including top city administrative directors such as Lauren Johnston, who was the parks director then deputy administrator at the time of the splash pad construction, Carl Cote, the city’s engineering director, James Hirst, the current parks director, Eric Gebo, a city architect, Susan Knopf, a plans examiner who works in the city’s building division, and an additional two dozen witnesses culled from contractors who worked on the project.
The defendants have their own long witness lists, though many names appear on many lists. That a witness is on a list doesn’t mean every witness will be called to testify.
Arnold told the court that the city has taken numerous fact witness depositions, with the majority of those depositions done–but not the “substantial” majority, Arnold specified. “There may be some further third party defendant depositions.”
There was a pre-suit mediation, as required by the court. Not all parties participated. “We now have another mediation scheduled in January. There’s an expectation of a further mediation after the expert depositions,” Arnold said.
He then spoke of the real challenge ahead: the length of the trial. “We are projecting a four week trial period at this point,” Arnold said. “Obviously these cases tend to get thinned out, and there’s parties and issues that could get resolved that would shorten that. So I think there’s a possibility, if not a probability, that that gets condensed. But at this point, given the number of parties and issues and anticipated witnesses, I think we’d be remiss if we didn’t project a four week period.”
“I appreciate the fact that you’re going to try to narrow the scope,” the judge told the litigants, for obvious reasons: Nichols handles Flagler County’s entire felony bench, plus a significant portion of its civil docket. She is still closing out her dockets in Volusia County. A trial longer than a week would create a backlog everywhere else. Nichols told the attorneys that her office is very communicative with the parties, accommodating any need for “quick court intervention,” whether it’s for a quick status conference or any other need, especially with zoom helping. “I’m not going to over manage you guys. You know what you’re doing, but if you need help, I’m here,” Nichols said.
Arnold said the hearings would be requested on an as-needed basis rather than unnecessarily set hearings ahead of time. Docket sounding–the last step before trial–had been scheduled for Jan. 7. But that has been scrapped. There is no hearing scheduled for the moment.
As for the splash pad, the city is closing it on Dec. 2 for the winter season. It was a planned closure. It will reopen on March 1.
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