March 20, 2003
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Homeowners, builders settle construction lawsuit

Two local residents and three contractors last week settled a lawsuit through a court mediator out of the Greene County Common Pleas Court.
The terms of the settlement were confidential, according to mediator Mark Shaver, who would only say that both parties were able to reach a mutually satisfactory agreement. The settlement averted a court date scheduled for March 25.
The lawsuit, which was originally filed in 2001, involved local residents Roy and Dagmar Smith and Ted Donnell, president of Axis Architecture, Synthetic Stucco, Inc. in Dayton and Jim Alt, owner of ALT Architecture in Dayton.
In an interview on Monday, Donnell said that the settlement was not an admission of guilt.
“I am satisfied with the settlement, though we certainly aren’t taking any responsibility in guilt or non-guilt,” he said. “We don’t feel like we’re at fault here.”
In an interview on Monday, Roy Smith said that he took necessary actions because, he said, “they gave us no choice.”
“They were unresponsive to our needs,” he said. “The last thing in the world we wanted to do was take them to court.”
Alt said that he had no comment on any of the issues relating to the suit, but one of his attorneys, Shawn M. Blatt of Dayton, said that the resolution was standard and that it was fortunate that everyone was able to reach to an agreement.
None of the entities involved in the case believes they had any liabilities, Blatt said. “I think everyone is glad to have the case behind them.”
Donnell owned Glenside Construction Co. in 1994 when the Smiths contracted with him and AKP Architecture, Inc. to build their house on Helen Court. At the time, AKP Architecture was owned by Alt, a former Yellow Springs resident.
As the building contractor, Glenside hired Synthetic Stucco, Inc. to install a stucco wall in the Smiths’ home using an exterior insulation and finish system (EIFS) manufactured by Synergy. The Smiths moved into their house in 1995.
Four years later, they noticed water leaking from their EIFS wall. Around the same time in early 1999, the Smiths saw a report on the TV show “Dateline” on a class action lawsuit against Synergy over defects in its EIFS. The Smiths joined the suit and received $9,595 when it settled, but claim in their local suit that it cost them more than $75,000 to fix the problem in their home.
The Smiths’ suit against AKP, Glenside, and Synthetic Stucco states that they contacted their home builders, Glenside and AKP, to address the problems with their siding and got no response. The suit states, “AKP had a duty of care to not specify inherently defective products, to not specify products known to have had numerous problems, and to not withhold known information” about the EIFS product. It says, “AKP, Glenside, and Stucco negligently performed work in violation of building and other regulations and codes,” alleging that “each of the defendant’s actions, omissions or conduct as aforesaid was intentional, malicious, deliberate, reckless, wanton and/or willful of gross misconduct.”
But Donnell claims that the problems were caused by a manufacturer’s defect. There were no problems with the product when his company had it installed, he said, and at that time there was no way of knowing that problems would arise. His company did send the EIFS installer to fix the leaks, Donnell said, but when the Smiths’ demands became unreasonable, he referred them to his insurance company and his attorneys.
Though information about the damages awarded in the settlement was not available, Donnell said that his insurance company assumed the responsibility for the total amount. The Smiths were originally seeking close to $2 million in punitive damages and charges, including negligence, breach of contract, fraud and professional malpractice.

—Lauren Heaton