The developer of a Bethesda apartment tower that caused serious structural damage to a next-door building agreed to pay the building owner $3.2 million in a settlement.
Bainbridge, which is near completion on its 17-story, 200-unit apartment on Fairmont Avenue, never admitted fault for the sheeting and shoring work that caused large cracks in the walls of the one-story building and former home of the Dansez! Dansez! dance studio and Fresh Grill restaurant.
But four days before a December 9, 2013 trial, Bainbridge and building owner White Flint Express Realty settled out of court.
The $3.2 million sum was disclosed in a court order on Thursday that decided the outcome of a battle over legal fees. Montgomery County Circuit Judge Ronald Rubin wrote the back-and-forth over legal fees was, “as heated as the litigation over the underlying case.”
Rubin ordered Bainbridge to pay White Flint Express an additional $3.5 million in legal fees and $411,000 in costs and expenses.
Bainbridge argued that White Flint Express had too many people on its legal team, a charge Rubin dismissed because of the amount of details and experts involved in the case. More than 430,000 documents were produced and Bainbridge, along with co-defendants Turner Construction Company and Schnabel Foundation Company, filed five motions to dismiss and five motions for summary judgement before the trial date.
Rubin also dismissed many of Bainbridge’s arguments against the legal fee payout because the company never took responsibility for the sheeting and shoring work that caused cracks in the building’s walls and forced its evacuation in February 2012 by order of Montgomery County’s Department of Permitting Services.
“By March 26, 2012, Bainbridge knew that the shoring and sheeting done by a subcontractor simply, ‘did not work.’ Yet, throughout the case, Bainbridge took the position that the damage to White Flint’s buildings was ‘aesthetic,’ and that its general contractor Turner, and Turner’s insurance company were responsible for any of White Flint’s losses,” Rubin wrote.
According to the judge, Turner then “pointed the finger” at its subcontractor, the Schnabel Foundation Company. Schnabel in turn suggested the damage was caused by the August 2011 earthquake felt throughout the D.C. region.
Meanwhile, Dansez! Dansez! has relocated to Norfolk Avenue and Fresh Grill is still out of a restaurant.
The legal battles over the Bainbridge apartment are far from over. Fresh Grill is suing the developer, construction company and White Flint Express, claiming that being forced out of its Fairmont Avenue address caused the business to go belly up.
In the Fresh Grill suit, the restaurant claimed it notified its landlord by December 2011 of movement in its building and cracks to its rear walls and the entrance door. On Dec. 5, 2011, Fresh Grill claimed a “loud boom” from the construction next door was heard and felt in the restaurant, sending customers hurrying out of the shop.
Fresh Grill immediately closed the restaurant and for the next couple days, it said construction workers “spent hours cleaning up the broken tile and mortar dust from the entire restaurant,” according to court documents.
Next to the Bainbridge apartment on St Elmo Avenue, the popular Red Tomato Cafe and BCC Automotive left in January. The same building owner is claiming some structural damage there and that construction crews working on the Bainbridge allowed construction debris to fall on its property.
That suit alleges wet concrete fell on the BMWs, Mercedes and other expensive cars the auto repair shop specialized in. Turner Construction, in its initial response to the lawsuit, admitted that wet concrete did fall onto the BCC Automotive property, but only in isolated instances.
As for the 4905 and 4909 Fairmont Ave. building that used to have Fresh Grill — the building owner is looking at the possibility of a new 7,000-square-foot structure with ground-to-ceiling windows in the hopes of attracting a new tenant.