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Jury hands down $4 million verdict

A District Court civil trial ended Monday, Aug. 17, with the jury delivering its verdict to end a three-week proceeding — a verdict ruling a townhomes association is entitled to recover in excess of $4.3 million from a local development company, Whispering Pines Company, Inc.

The amount noted in the verdict, however, is not yet fully determined, nor has a judgement yet been entered in the case. As a result, it is not yet known who owes what.

The plaintiff in the suit was the Whispering Pine Townhomes Association, Inc. and the association sought damages related to a variety of problems at the 59-unit Whispering Pines townhome site in the Pagosa Lakes area west of Pagosa Springs.

According to Heidi Storz, of the Denver firm Benson and Associates — representing the plaintiffs in the case — the suit related to construction defects in the 59 units and the surrounding common areas. Storz indicated the homeowners association and Whispering Pines Co., Inc. had attempted to remedy complaints via a negotiation process but said that once those negotiations failed “ultimately the association was left no other option than to go to court.”

The six-person jury found that the overwhelming number of claims made by the homeowners association were valid. The jury declared Whispering Pines Company, Inc. was liable for 93 percent of the combined fault that caused the plaintiff’s damages. (The homeowners association made claims relating to damage to concrete in streets, but had reportedly used ice melting compounds in the area that could have contributed to the problem.)

According to the Special Verdict Form, the jury found Whispering Pines Company, Inc. committed negligence per se, breached the implied warranty of habitability, and violated Colorado State Statutes in failing to provide a soils report.

Claims by the plaintiff that Patrick Alley, the principal in Whispering Pines Company, Inc. and the developer of the Whispering Pines projects was negligent, was negligent per se and failed to provide a soils report were denied, as were claims the defendants were liable for comparative negligence and failed to mitigate damages.

The court found the plaintiff is entitled to recover damages in a variety of categories:

• Roofs — $300,000.

• Wall systems — $600,000.

• Safety — $1,185,000.

• Structure — $48,000.

• Decks — $225,000.

• Concrete and foundation work — $589,000.

• Framing — $30,000.

• Site drainage/grading away from buildings/downspouts — $195,000.

• Cosmetics — $10,000.

• Architectural and engineering fees — $254,560.

• Contingencies — $318,200.

• General conditions — $477,300.

• Construction management — $50,000.

The “Safety” category, said Storz, concerned claims regarding improper connection of heavy timber frame elements, work on decks, and framing components missing in some townhome attics, among others.

As part of the proceedings, Whispering Pines Company, Inc. made a claim of breach of conflict against Reynolds Knight Anderson PC and a claim of breach of contract against Tracy Reynolds. The jury found no liability for breach of contract on the part of Reynolds Knight Anderson PC or Reynolds.

Alley said Wednesday that the verdict will be appealed. “Of course, it will be appealed,” he said, “ to the appellate court and, if necessary, to the (state) Supreme Court. The jury never got the chance to view the work, was not allowed to look at the project.”

Alley said anyone interested can inspect the work at the site and to contact the Whispering Pines office. “If they want to call some of the homeowners who have purchased multiple units,” said Alley, “they can call the office and we will provide a list.”

Alley added: “Unfortunately, the subs (local subcontractors who worked on the project) are the ones who will get hit. We tried to keep them out of this. They’re all locals and they are all good people.”

Whispering Pines attorney Robin Lambourn, of the Colorado Springs firm Dewhirst and Doven, expanded on Alley’s point.

“This is a two-phase case,” said Lambourn. “It was bifurcated in March and there are third-party claims by the Whispering Pines Company, versus the subcontractors. There hasn’t been an Entry of Judgment yet, and no apportionment between the defendant, the plaintiff and subcontractors.”

Lambourn said no trial date concerning the third-party claims has been set, and he noted that a third-party complaint has been filed and those local subcontractors who might be involved are already aware of the situation.

“There are still appellate issues to be determined,” said Lambourn, “and as far as who owes what — we’re still very early in the game.”

A telephone conference is set for Tuesday, Aug, 25, at which time other details will be worked out among the parties to the case.

editor@pagosasun.com