Unusual Courtroom Tactic Wins Case Against Construction Company

Sometimes doing something unusual in a courtroom can make all the difference. Ohio civil litigation attorneys at Cooper & Elliott were faced with such a decision. After a brief discussion about the risk, they made a bold decision to literally pour a bottle of water over the defense’s exhibit—and it proved to be the turning point in the case of a family whose dream home turned into a nightmare due to a construction defect.

The construction defect

It started when the Gearharts* noticed water coming into the basement of their new home. After each rain, water poured in through the cinder blocks—so much so that the Gearharts were able to capture the water coming in on video. The sump pump was running non-stop, and their basement was so damp that mold was growing on their belongings, some of which were family heirlooms. Mildew formed on the walls, and when the Gearhart’s children started showing flu-like symptoms, they feared that mold was inside the walls. The Gearharts attempted to combat the mold growth with a variety of solutions, but had little success.

When the construction company that built the home refused to take responsibility for the water seepage, the Gearharts came to us for help.

Perseverance and creativity

We needed to find out exactly what flaws or defects were allowing water to leak into the basement of the Gearhart’s home. The construction company was not willing to cooperate in that, so we had to do some digging on our own.

Rather than spending thousands of dollars excavating around the entire house to see what errors had been made, we hired experts and conducted research. By looking through records we were able to determine how much gravel the builder had used, and according to experts, it wasn’t enough. Gravel allows water to drain away from the foundation walls, and without enough of it, the soil around the basement was absorbing water like a sponge. The immense weight of the saturated soil put so much pressure on the walls that they had started to bow and crack. Water damage aside; the very stability of the house was in question. By excavating in a small area, we discovered that the construction company neglected to properly treat the exterior of the walls with waterproofing chemicals.

During trial, the first judge dismissed the case—much to the consternation of the jury that had heard the evidence against the construction company. That decision was reversed on appeal, which meant that we would have to start over with a new trial, significantly lengthening the process. At that point, most attorneys would have grown weary with the case and advised their clients to take the settlement the construction company had offered—but we kept fighting.

Using the defense’s tools against them

During the second trial, the construction company’s defense built a special exhibit to demonstrate to the jury the functionality of a basement wall. It was a mock-up wall made of cinder blocks, about five feet long and four feet high, with tar on the outside and gravel at the base.

As we prepared for cross-examination, we noticed a bottle of water on the table, and it sparked an idea: after a brief discussion, we decided to take the bottle of water and pour it over the exhibit. The defense had constructed an elaborate exhibit to demonstrate how a basement wall should deflect water, but they had neglected to include water in their demonstration.

We knew we were taking a risk, but we followed our instinct.

As the cross-examination began, we asked the witness if the model represented a properly constructed wall. The witness acknowledged that it did. We then poured the water over the exhibit, which drained away exactly as intended—reaffirming that the walls of the Gearhart’s home were not properly constructed.

The jury had viewed the videos of water pouring in through the walls of the Gearhart’s basement, and the demonstration with the water bottle solidified our case. The witness wasn’t prepared for the exhibit to backfire, and needless to say, there were some chuckles from the jury. That moment helped turn the trial in favor of the Gearharts.

The Gearharts feared they might walk away having to pay exorbitant amounts of money to correct a terrible defect in their dream home. With a little creativity and perseverance, we were able to make sure that didn’t happen. They received a settlement that allowed them to fix their dream home, from bad walls to mold remediation, and helped pay their expenses while they lived somewhere else during the process.

Two civil litigation attorneys are better than one

There’s a reason we assign two attorneys to each case. All minds work differently, and sometimes one of us will see something that the other doesn’t, like I did with the water bottle. When that happens, we can put that new idea into play immediately, and it can make a big difference for our clients.

 

*Names in this article have been changed to protect our client’s privacy.  

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Homeowner’s Association Defends its Residents Against Dream-Threatening Construction Defects

Rainwater on the outside of a home can be a blessing during the heat of a summer drought. But when that water gets inside—no matter the season—the damage can be devastating.

Residents of a condominium community experienced this disaster firsthand when a series of units across the neighborhood began struggling with water seeping from the ceilings and walls. The water ruined carpets and personal belongings, and it rotted away the underlying wood structures, causing mold to develop.

The homeowner’s association realized the damage was happening across many units. It wasn’t just a small problem—it was structure-wide. At the same time, they realized water bills across the neighborhood were increasing; the problem was both internal and external.

As the damage spread, the repair estimates started coming in. The destruction would cost hundreds of thousands of dollars to fix. Water was penetrating everywhere and the damage was major, even though the residences were less than ten years old.

The residents and homeowner’s association knew they had to do something to fix the problem, and they knew they had to act quickly to save their investment.

The homeowner’s association, tasked with overall governance, protection, and advocacy for the homeowners, had its work cut out. It was clear that this relatively new property had defects stemming from shoddy construction. In addition to dealing with daily reports of damage, they had to figure out where to begin assessing the original construction process to figure out where they went wrong. They were overwhelmed, and they turned to us for help.

Helping the homeowner’s association make things right

After hearing their story, we knew we had to take the case, even though construction cases are often incredibly expensive to prepare for court. Hiring experts to assess the underlying structural defects, as well as reviewing the building process, could be a very expensive investment for the homeowner’s association.

Unlike a lot of other law firms, we were ready and willing to take the case on a contingency basis. This was particularly important because many of the residents in the condos were retirees living on a fixed income. Had we not taken the case on a contingency basis, the homeowner’s association would have passed those fees on to the residents in the form of increased assessments. Those retirees could have been forced to choose between paying for medication and paying these extra fees—we were able to prevent that scenario.

We knew the right construction experts that could assess the structural damage by tearing down walls to figure out the underlying issues. It was a huge project—and we were ready to help.

Shoddy construction, defect disaster

What we discovered was appalling. The construction company had failed to install moisture barriers between the exterior and interior walls, which would have stopped the rain seeping into people’s living rooms. Additionally, they had also failed to follow the manufacturer’s instructions on various materials used in the overall construction project.

But for us, the icing on the cake was this: the construction firm failed to hook up the lines that fed water to the entire community. Water was leaking out underground, wasting a valuable natural resource and costing thousands of dollars in utility bills.

Fixing a defect—and making a wrong right

The builder initially refused to assume responsibility for their mistakes. We battled with them while they denied any wrongdoing, blamed it on the construction materials themselves, and claimed they weren’t liable for any internal water damage to the condos.

Thankfully, by using an Ohio Supreme Court ruling, we were able to apply pressure on the builder’s insurance company to encourage the construction company to do the right thing. We had to do a lot of extra homework on this one, but it was worth it. The homeowner’s association walked away with a substantial settlement that completely covered the cost of repairs, and it felt great to know these families would get their homes back to normal.

Home is where the leakage isn’t

The thing that touched us the most about this case was that a lot of these residents had put their life savings into these places. Many were retirees or empty nesters, and they felt safe investing in brand-new homes in a lovely community run by a great homeowner’s association. Before that “new house smell” had even worn off, they were fighting off rainwater. Then they had to deal with excavating the water lines to repair them, tearing out walls and carpets to fix the damage, and many other inconveniences to alleviate each construction defect.

It was just the opposite of the low maintenance lifestyle they were looking for when they bought the condominiums in the first place!

Today things are back to normal. The dream that these families bought into is finally real. They’re living in lovely, maintenance-free homes, and we’re proud to have helped them attain their goals. As part of our normal pre-trial process, we visited these condos, walked the grounds, and met the homeowners. It’s a practice we enjoy, one that we think really connects us to our clients. Drive through the neighborhood now, and you’ll see it’s a pretty place and home to some good people who really deserve it.

*Names in this article have been changed to protect our client’s privacy. 

The outcomes of any client’s case will depend on the particular legal and factual circumstances of the case.