Scottsdale couple battle developer over wall
A major Arizona homebuilder stands accused of attempting to financially bleed a north Scottsdale couple into submission in a decade-long legal dispute over a defective retaining wall. It took nearly 10 years before an arbitrator found that Shea Homes owed Quent and Nolya Augspurger $164,000 for damages, legal fees and court costs — a judgment that a Maricopa County Superior Court judge reaffirmed late last month....In 2003, the couple filed for arbitration just before their ability to do so expired. The arbitration process ended up taking four years.  “It’s supposed to be a quick and easy, economical way of settling disputes,” Quent Augspurger said. “I think they try to wear the homeowner down and make it so difficult for them that they give up.” Nolya Augspurger characterized the developer’s attitude as, “Don’t mess with us big boys.

Scottsdale couple battle developer over wall

Ari Cohn, Tribune

A major Arizona homebuilder stands accused of attempting to financially bleed a north Scottsdale couple into submission in a decade-long legal dispute over a defective retaining wall.
                           
It took nearly 10 years before an arbitrator found that Shea Homes owed Quent and Nolya Augspurger $164,000 for damages, legal fees and court costs — a judgment that a Maricopa County Superior Court judge reaffirmed late last month.

In deciding the dispute, arbitrator Raymond Weaver called some of Shea Homes’ arguments “literally preposterous” and slammed the developer in connection with dragging out the proceedings in an attempt to outspend the Augspurgers.

“It is virtually impossible to buy into Shea’s position,” Weaver wrote in his July 30 order. “Many of the requests could and should have been admitted by Shea rather than participating in gamesmanship to run up costs for (the Augspurgers).”

The Augspurgers bought a newly constructed house from Shea Homes in the McDowell Mountain foothills, at 11458 E. Christmas Cholla Drive, near the intersection of Jomax and Happy Valley roads, in 1996. The home sits on an incline, with the backyard supported by a 5-foot retaining wall.

Quent Augspurger, a retired engineer, said it wasn’t long before he began to notice cracks in the wall and joints pulling apart in a metal fence on top of it. Over time, the wall has begun to bulge and a vertical seam has appeared, which he likened to two gates opening outward. If the gates continue to open, it could drop the backyard down the side of the mountain, he said.

“That’s a serious indication you’ve got movement and high stresses,” he said. “Eventually, the wall could go down and we lose the backyard.”

A building inspector he hired found that Shea Homes had built the wall with only about half the metal rebar needed to reinforce the concrete, that the rebar embedded in the concrete was done haphazardly, and that the home’s foundation should have been two feet deeper in the hillside, Augspurger said.

When he presented Shea Homes with the findings in an attempt to reach some agreement on repairs, the developer was unresponsive, he said. “They didn’t seem to be real fond of us.”

One of the developer’s lawyers, Jill Ann Herman of Lorber, Greenfield & Polito, called the accusation that Shea dragged out the proceedings “absurd.” She would not say whether Shea Homes planned to appeal the ruling. Calls to other representatives of the developer went unreturned.

“Since it’s an ongoing matter, the policy is not to provide any comment,” Herman said.

After Shea Homes’ initial disinterest in the Augspurgers’ defective retaining wall, the couple filed a complaint with the Arizona Registrar of Contractors, which regulates builders’ licenses. The registrar issued a corrective work order to Shea Homes in 1998. But because the order doesn’t carry the force of law, the developer ignored it, Quent Augspurger said.

For a while, the couple let the issue lie and hoped the wall wouldn’t get any worse.

“We’re heading into retirement. We weren’t sure we wanted to battle this thing,” he said.

But it became clear that eventually the wall would fail, he said. In 2003, the couple filed for arbitration just before their ability to do so expired. The arbitration process ended up taking four years.

“It’s supposed to be a quick and easy, economical way of settling disputes,” Quent Augspurger said. “I think they try to wear the homeowner down and make it so difficult for them that they give up.”

Nolya Augspurger characterized the developer’s attitude as, “Don’t mess with us big boys. We can drag it out for years and years and drown you in court costs.”

The arbitrator earlier this year agreed with the Augspurgers, noting Herman’s admission that Shea Homes had ordered her to “spare no expense in the defense.”

Weaver awarded the Augspurgers the cost of a new wall to be built outside of the existing one, attorneys fees and court costs.

“(Shea Homes) at no time had any intent to provide for an expedient and economical way to resolve this case unless (the Augspurgers) totally capitulated,” Weaver stated.

He also dismissed the claims of Shea Homes’ lawyers, who argued that even though the developer built the wall, it was done illegally and therefore the company shouldn’t be held liable for fixing it.

Despite the arbitrator’s excoriation of Shea Homes, Robin Meinhart, Scottsdale’s planning spokeswoman, said the building department hasn’t heard a lot of complaints about the company or developers in general.

“Anecdotally, we don’t hear about that as something that happens frequently,” she said.

Bob Petrillo, city building inspection and land survey manager, said the city doesn’t normally get involved in civil disputes between builders and buyers.

“We don’t track that, to be honest with you,” he said. “We don’t really get involved with that if we can help it.”

http://www.eastvalleytribune.com/story/99212