Within the reams of legal documents filed in the August 2015 suit are accusations of good ole boy politics and an alleged plot to hold file cabinets hostage — we’re not making this up — worthy entertainment for legalphiles and enough feinting and lunging to rend more than a few reputations.
The épées come out again on Jan. 25 before Lafayette District Judge Kristian Earles for a hearing on Fenstermaker’s claim that Youngsville waited too long to file suit. The firm had long argued, according to court documents, that the contract between Youngsville and Fenstermaker prescribed mediation between the two sides before any suit could be filed. Earles brushed that gambit aside at an earlier hearing.
“I’m optimistic about it,” Youngsville Mayor Ken Ritter tells ABiz. A former councilman who won election as mayor in 2014, Ritter inherited the contretemps from former longtime Mayor Wilson Viator.
“I think once the facts of the case are argued, it’ll be evident we did file the suit [on time],” Ritter adds.
Attorney Frank Neuner, whose firm, NeunerPate, represents Fenstermaker, disagrees: “This work was done and accepted back in February of 2009,” he says. “The time to file the lawsuit expired in 2014.”
But Fenstermaker’s real defense isn’t about time; it’s about target. The firm argues that the construction contractor holds the ultimate liability for Chemin Metairie’s problems.
The nuts and bolts of the case have been widely reported: Youngsville entered into a contract with Fenstermaker in 2005 to design Chemin Metairie Parkway, an in-town arterial designed to move traffic — a lot of traffic — in the bustling south Lafayette Parish community.
The first phase of the parkway, a 2.5-mile stretch running from the La. 92 roundabout south and east to the Youngsville Highway (La. 89) just past the new Youngsville Sports Complex, was opened in 2009 and almost immediately began falling apart. A handful of big-box retailers were just beginning construction and a lot of traffic from heavy trucks hauling dirt, concrete and construction materials were all over the road, exceeding trafficcount estimates that remain in dispute between the two sides.
The city has spent $1.7 million repairing the road and anticipates spending as much on future repairs. The repair work led to closures of the roadway and the attendant hassles for motorists, and it has stretched Youngsville’s financial resources thin.Youngsville is bustling, yes, but it has no city property tax despite the frantic expansion of subdivisions over the last decade, a growth pattern that has taxed the city’s capacity to provide infrastructure to all the new moms, dads and 2.5 children. Road projects like Chemin Metairie and Ambassador Caffery South are helping by luring businesses and their sales taxes, but Youngsville still strains beneath the weight of its own success.
Viator, the former three-term mayor, tells ABiz that Chemin Metairie was instrumental in luring four major retailers — Rouses Supermarket, Walgreens, CVS and a McDonald’s — and that for a time those four businesses alone accounted for roughly a third of Youngsville’s sales tax base.
“The road traffic went up,” Viator says.
“The heavy truck traffic was supposed to be 2 percent but ended up being 14 or 15 percent.”
More subdivisions also began sprouting along Chemin Metairie’s skirts, adding to the stress on the road.
The situation has engendered a lot of second guessing, especially by Viator, who says he urged the council in 2014 to scrape a troublesome section of Chemin Metairie down to 2 inches of asphalt and to lay 6 inches of durable concrete on top. That would’ve extended the roadway’s expected life to 30 years but, Viator recalls, the council balked at the idea.
After the first section began failing, Viator got everyone together — Fenstermaker, the city and Glenn Lege Construction, the Youngsville-based contractor for the project — to seek a solution outside the legal system. Lege Construction agreed to repair the road at its own cost, with Fenstermaker chipping in a small amount. But Chemin Metairie kept giving way, forcing the city to drop nearly $2 million on subsequent repairs.
Fenstermaker has long contended that it was Glenn Lege Construction’s work that caused the failure, pointing as evidence to the first section in Phase 1 that has been problem-free. The reasoning, attorney Neuner says, is that if the same engineering was applied to the entire phase, and it was, then all sections should be failing equally if engineering were the cause. Neuner says Fenstermaker asked Glenn Lege Construction in 2009 for information on what type of asphalt it used on Phase 1, but the construction company said a computer crash erased all the files.
Viator echoes Fenstermaker’s suggestion that substandard asphalt — and heavier construction vehicle traffic along the more northerly stretches of Phase 1 — is to blame, telling ABiz that an engineer who formerly worked on the project told him the mix used for the project wasn’t the recipe specified in the contract.
“It was the wrong asphalt,” Viator says. “I like Glenn Lege and I respect him, but the person who was mixing the asphalt wasn’t qualified.”
Viator says he considered litigation in 2014 but believed it was too late. Besides, he adds, he was still disinclined to take the matter to court. “We didn’t have a leg to stand on,” he says.
“The bottom line is we feel like Fenstermaker did everything within the terms of the contract,” Neuner says.
The tug-of-war between Youngsville and Fenstermaker has at times taken odd turns, notably in a claim by Youngsville that the engineering firm is holding office furniture and its contents captive: “An overriding issue in this motion which Fenstermaker is failing to disclose is that Fenstermaker is in possession of several filing cabinets of Youngsville documents that Fenstermaker is refusing to release until the City signs an onerous hold-harmless agreement drafted by Fenstermaker’s attorney,” one passage in a memorandum filed by Youngsville reads. “In essence, Fenstermaker is holding the City’s documents hostage and the City believes that many of those documents may identify even more instances of defective work done by Fenstermaker.”
“In essence, Fenstermaker is holding the City’s documents hostage and the City believes that many of those documents may identify even more instances of defective work done by Fenstermaker.”
Neuner says the so-called “holdharmless agreement” only pertains to future lawsuits against Fenstermaker and has no bearing on the present case.
Fenstermaker and Associates took things up a notch when it argued in a recent court document that Youngsville and specifically Mayor Ritter are shielding the real cause of the problems with Chemin Metairie, Glenn Lege Construction: “Plaintiff’s opposition demonstrates it is aware of specific facts and evidence which it intentionally failed to allege in the Petition. Presumably, Plaintiff is withholding these facts to protect Glenn Lege Construction Inc., the contractor responsible for furnishing materials for the roadway and constructing the roadway, since its principal made a $1,000 political contribution to Kenneth L. Ritter, the Mayor of Youngsville, and since it continues to provide Plaintiff with construction services and materials.”
Fenstermaker even submitted a list compiled from the state Ethics Board showing campaign contributions, including $1,000 to Ritter, made by Glenn Lege Construction.
Ritter bristles at the suggestion that Lege Construction isn’t a defendant in the case because the company donated to Ritter’s campaign for mayor in 2014, calling it “really ludicrous” and “insulting to me and the residents of Youngsville.”
“There was no direction from me as to who the defendant should be,” Ritter says. “I had to make some tough decisions regarding expenditures related to the reconstruction of this road. The logical questions in my mind were, how did this happen and is there any recourse?” That recourse, Ritter says, is recovering from Fenstermaker money the city has spent and anticipates spending to repair Chemin Metairie Parkway. In a lunge at the engineering firm’s president, Bill Fenstermaker, Ritter says it makes sense that a major political donor like Fenstermaker would see a conspiracy based on campaign contributions.
“I guess I’m not surprised that that would be an argument because naturally one of the largest campaign contributors in the state would expect political favors based on the dollar amount donated,” Ritter says. “There’s just no room for that in my administration at all.”