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Customer Sued By San Antonio Builder on Libel Allegations

By Jennifer Hiller, San Antonio Express-News

Sep. 22--Here's something that doesn't happen every day: a home builder suing one of its customers.

The San Antonio-based Sitterle Corp. this week sued homeowner Army Col. Jay Hirata and asked for $500,000 in damages.

That's more than the price of a new home in Hirata's Emerald Forest, an upscale gated community on San Antonio's North Side, where homes range from the $300,000s to the $400,000s.

Sitterle filed a libel suit against the homeowner this week, accusing him of writing defamatory statements on a consumer advocacy Web site about the company's alleged refusal to fix leak problems in the hillside home.

At issue is a nearly two-year dispute over the Emerald Forest home, built by Sitterle in 2001 and used as a model home until Hirata and his wife Joy purchased it.

Lawsuits by builders against their own customers are rare, but not unheard of.

Fred Lewis, an attorney and president of the Austin-based advocacy group Campaigns for People, said the suits are often intended to intimidate consumers from speaking out against a company.

"It's not fun to get sued for $500,000," Lewis said. "Home builders have time and money and staff. Individuals don't have the same resources." The Hiratas bought the home in June 2004 and soon noticed that water was leaking into the basement after rains.

Sitterle tried to fix the problem, but the Hiratas say the leaking continued.

The couple filed a formal complaint with the Texas Residential Construction Commission, a state agency that oversees the home building industry. The commission's independent inspector and its appellate panel sided with the Hiratas.

Of the five complaints the Hiratas made about defects in the house, all five were found by the inspector and upheld by the appellate panel, said Duane Waddill, the commission's executive director.

According to commission documents, Sitterle then offered to make repairs. The Hiratas rejected that offer because the builder had not specified how they would be done.

Earlier this year, the Hiratas sued Sitterle.

In court documents for that lawsuit, Sitterle called the suit "frivolous" and said it "was brought solely for the purpose of harassment." The company also says the Hiratas are at fault for the leaking because they didn't maintain the house properly and altered the drainage pattern or soil grade.

Last month, Jay Hirata posted complaints about the builder on the discussion board of a San Antonio-based consumer advocacy group's Web site, Home Owners for Better Building.

This week, Sitterle fired back with the lawsuit against Hirata. Among the online comments that Sitterle's lawsuit lists as defamatory: "there is a strong musty odorous smell in the basement and the flooring is marked with water stains." "Sitterle Corp. does not admit any fault and are unwilling to remedy the situation." "We are the victims ... of a company that is unwilling and unable to accept responsibility and accountability for this defective foundation and home." The Sitterle defamation lawsuit, filed this week, says "tens of thousands" of people could have read those comments and that the company's reputation has been harmed.

Sitterle's suit came as a surprise to Hirata.

"This extra suit put a bigger burden on us," Jay Hirata said. "It's been a two-year nightmare for us. We just want it to be over." Frank Sitterle and Frank Sitterle Jr., two of the owners of the company, did not return phone calls seeking comment.

The company's attorney, William Oliver, says the Hiratas' house no longer leaks, but that he could not comment further and would have to defer to the company's court documents.

For the Hiratas, the legal battle is putting a crimp in their relocation plans. Jay Hirata is now stationed in Spain and had to take military leave to return to San Antonio to deal with the lawsuits.

Joy Hirata, a retired Army lieutenant colonel who would prefer to be living in Spain with her husband, has been stuck in San Antonio overseeing a house they cannot sell until the dispute is resolved.

The Hiratas' suit against Sitterle is scheduled to go to trial Thursday.

The Hiratas would like Sitterle to either buy back the home or repair the leaking problem in a more conventional manner, said Daniel Kustoff, their attorney. He said the Hiratas paid about $350,000 for the home.

Janet Ahmad, head of the Web site that posted Hirata's comments, said Sitterle is trying to suppress Hirata's free speech rights and held a news conference of her own Thursday afternoon.

The builder's lawsuit, she fears, "is the beginning of a new tactic."

ON THE WEB:

--Texas Residential Construction Commission: www.trcc.state.tx.us

--Home Owners for Better Building: www.hobb.org

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Copyright (c) 2006, San Antonio Express-News

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