photo by: Nick Krug

An aerial shot from the east of David Booth Kansas Memorial Stadium in 2017.

The Jayhawks are winless on the football field in 2020, but frustration borne of that folly cannot compete with the 15-year competition to assign financial responsibility for life-threatening mistakes with installation of the glass-and-metal shroud on Memorial Stadium’s press box.

This extraordinary legal controversy fostering a pile of Johnson County District Court rulings, three Kansas Court of Appeals decisions and a new Kansas Supreme Court opinion has been characterized as the state’s “Odyssean litigation” for its sheer longevity and eventful turn of the screw.

Shortcomings with the facade installed in 1999 weren’t discovered until 2004 during KU’s investigation of water leaks. That’s when it became apparent a subcontractor used the wrong set of shop plans and affixed the transparent wall with improper attachments. The deficient anchors, district court records show, created a “hazard of certain casualty” if the wall system failed.

“The structural integrity of the press box itself was in peril,” said Danne Webb, an attorney representing general contractor Walton Construction Co., formerly headquartered in Kansas City, Mo.

Safety concerns were rectified and Walton settled with the University of Kansas for $600,000 in 2005. Walton sought compensation from subcontractor Building Erection Services Co., of Kansas City, Missouri. It was BESCO that originally attached the wall of glass and metal structure.

A trial in Johnson County resulted in an order for BESCO to compensate Walton, an outcome that started the clock of this appellate nightmare.

The Kansas Supreme Court was eventually thrown into the game in the role of referee. In this corporate rivalry, the companies were lined up against each other to fight over costs of remediation work at the stadium and more than $500,000 in legal costs incurred over the years.

The issue wasn’t whether Walton deserved to recover damages from BESCO, but what level of payment and attorney fees could be supported by a contract between the companies.

Following review of the court record and legal claims at oral argument in September, Supreme Court Justice K.J. Wall, a newcomer to the state’s highest court, authored the November opinion that could be a breakout moment in the case.

The justices expressed disappointment with now-retired District Court Judge Kevin Moriarty. The Johnson County judge had ignored a Court of Appeals mandate by deciding BESCO should bear greater liability than Walton for the fumbled project developed to offer a luxurious view of the Jayhawks to sports writers and wealthy fans.

The Supreme Court supported the Court of Appeals’ instinct to reject Moriarty’s final attempt to set a damage award, pointing to the judge’s decision to unreasonably inflate BESCO’s liability. The Supreme Court instructed the district court to try a fourth time to reach an equitable solution.

In 2009, a Court of Appeals panel initially agreed BESCO was liable for some, but not all, of repair costs.

The second Court of Appeals decision in 2015 said evidence didn’t support a requirement BESCO pay 50% of remediation costs and all attorney fees incurred by Walton and KU. However, the Court of Appeals didn’t hint as what was a reasonable allocation of liability.

Moriarty, the district judge in Johnson County, reacted by declaring BESCO pay all the legal bills and more than half the cost of repairs. He said BESCO was obligated for 85% of the cost of removing and reinstalling the metal framing, and 50% of the cost of removing and reinstalling the glass.

Scott Beeler, an attorney for BESCO, said no legitimate interpretation of the Court of Appeals’ decisions in the case could justify anything larger than a 50% liability for BESCO.

“It was a dart throwing exercise,” Beeler said. “Pick a number. Throw a dart. Maybe it’s over 50%. If so, pick that number. That is not substantial, competent evidence of the percentage of fault that is attributable to BESCO for their limited scope of work. It is pure, rank speculation, and that has been our argument three times in a row.”

BESCO appealed the district court’s most recent ruling. The Court of Appeals ruled Moriarity’s play was a false start. Remarkably, the appeals court also threw in the towel by not directing the district court to attempt a fourth resolution.

“Walton has had three chances to present evidence that would support its damage award, and it has failed to do so,” the Court of Appeals judges said. “We see no reason to give Walton a fourth chance.”

The Supreme Court’s opinion said the Court of Appeals was on solid ground to toss the third attempt at apportioning damages, but unmistakably threw a yellow flag on the Court of Appeals for not ordering the district court try again.

The Supreme Court expressed sympathy with the idea of a 50/50 split on remediation costs by Walton and BESCO because the glass and metal had to be removed to replace the fasteners. The water leak was corrected at the same time, but the Court of Appeals concluded Walton didn’t prove the water infiltration was a consequence of BESCO’s work.

— Tim Carpenter is a reporter for Kansas Reflector.