South Carolina: Jury awards $7.72 million for botched condominium conversions; Damage was concealed behind the stucco

By Allison Retka The Daily Record Newswire BOSTON, MA -- Jesse Kirchner didn't shield a Charleston County, S.C. jury from the $8 million in settlement dollars he had already secured in the construction case before them. In fact, he was quite upfront with jurors. "We told the jury from the beginning that it would cost $15.7 million to fix the buildings," said Kirchner, a plaintiffs' attorney with Thurmond Kirchner Timbes & Yelverton. "We had already received $8 million and we're going to ask for the difference." For his transparency, Kirchner's clients -- a class of 215 condo owners and their owner's association -- got exactly what they wanted: a $7.72 million verdict. The owners of the condos, the Twelve Oaks at Fenwick Plantation, had sued more than a dozen construction contractors and subcontractors over botched construction work on the exterior of the complex's 12 residential buildings. In 2006, a real estate developer converted the four-year-old buildings from apartments to condos, selling them to policemen, teachers and businessmen at $150,000 to $200,000 each. "You could stand out in the parking lot and look at the buildings, and they looked great," Kirchner said. "It's not really until you start peeling the layers of the onion back that you find considerable damage hidden and concealed in the exterior skin of the building, mostly the stucco." By 2007, some residents had spotted water stains along their windows. The stains betrayed the massive wood rot festering under the buildings' exteriors, Kirchner said. At the time the condo owners filed suit, the developer owned the owner's association, which is rare, Kirchner said. He had to obtain a court order to allow a forensic investigator to make test cuts in several exterior walls around the complex. The lawsuit over the condos named nearly 16 defendants. All but one settled with the class of condo owners during two mediation sessions. After one session in the summer of 2010, a set of defendants settled for a total of $5.96 million. The defendants nabbed $2.04 million from another set of defendants after a January mediation session. After all the settlements, only one defendant remained: Plastering & Stucco Inc., a now-defunct Orlando, Fla., company. "You run the risk of piecemealing the settlement, and that somebody who is the last man standing is left with a large setoff or good defenses," Kirchner said. "But to settle with everyone else and leave [that company] was not a hard decision. Our case was strongest against them. The stucco was the biggest problem." James "J.J." Anderson, the Charleston attorney for the stucco company, said he couldn't comment because the case is still pending. A number of post-trial motions are still pending before the trial court, Anderson said. Stucco is a concrete product, which means it's porous and is designed to absorb a certain amount of water, Kirchner said. At trial, he said his expert highlighted the failure of the stucco applicator to install a proper drainage system for incidental moisture. "They way they installed it, it trapped water instead of letting it exit," he said. Kirchner said Plastering & Stucco Inc. directed blame to defendants that had already settled, including the siding installer and the company that installed the windows. "In South Carolina, you don't have to be sole contributor to damages to be held liable," Kirchner said. "You just have to be a contributing factor. Our expert told the jury again and again that the stucco applicator was the major cause of the damage." The plaintiffs had also suggested the jury should award $20 million in punitive damages, the annual revenue figure that Plastering & Stucco Inc. earned at the height of its business. "We did suggest [punitives] to send a message to an out-of-state contractor that when they come into our state and construct large buildings that affect 216 homeowners, we expect them to follow the law," Kirchner said. The jury awarded no punitive damages. Published: Mon, May 30, 2011