A HOUSE DIVIDED
Ellen and Joel Barish worked all their lives to buy their $400,000 house in Troon Country Club in 1990. It was a brand-new, 4,000-square-foot home on the edge of the desert near Pinnacle Peak.
Now their dream home is a wreck, Ellen Barish is bankrupt, they owe $155,000 in legal fees, and when it rains, water leaks inside the Barishes' house.
It was the rain that started the problem to begin with.
After two or three months of hard rain in 1993, the Barishes returned from a trip to find that their pool and patio had taken a little jaunt downhill. The back walls of the house were pulled along, ripping away from the roof and foundation of the house.
A seven-foot-deep fissure divides the patio. The walls and the foundation and the tile floor in the kitchen all bear cracks as wide as an inch. The windows in the back of the house no longer meet the sills.
Call it desert revenge.
"I see it about once a week," says Earl Gibbons, a soil expert at Construction Inspection and Testing. "It's just something that we have in the Valley. Ninety-nine percent of them are caused by water.
"Soil has a tendency to lose stability when it gets inundated with water. If the water is trapped and it's standing or ponding, it percolates down into the soil, and that stiff soil becomes soft."
And soft soil won't hold a house.
No one knows for certain what led to the ruin of the home, a portion of which is still occupied by the Barishes. That is yet to be determined in court. One version is that it started when plastic pool piping cracked, leaking water into the soil. Another is that there was not adequate drainage in the ground surrounding the house. And yet a third theory holds that the ground was not adequately prepared for the house in the first place.
In any event, houses are not supposed to sink or slide.
The Barishes' insurer, CNA Insurance Company, turned down their claim, citing an engineering report that concludes, "It is our opinion that poor construction practice, low bearing capacity of the existing soils near and within the existing wash along with unseasonal heavy rains were the causes of the observed distress."
In fact, most standard homeowners insurance policies do not cover damage caused by earth movement.
The Barishes bought their home from the Salt Lake City-based CrossLand Savings Bank, which had ended up with the house in a foreclosure on the builder, Sun West Development Company.
In 1993, after CNA Insurance denied their claim, the Barishes filed a lawsuit against CrossLand and Sun West, along with the grading contractor, the architect, the pool builder and the engineering contractor. Essentially, they sued everyone who had ever touched the house.
It's not an unusual strategy: Everyone involved is named as a defendant, everyone puts some money into the pot and the whole deal is settled.
But the scatter-gun tactic has not brought the Barishes any relief, and the deepest pockets have been dismissed from the case. Sun West was not insured, other than a $5,000 surety bond, which the Barishes have already received. The pool contractor, Native Sun Pools, filed bankruptcy in 1989. A judge dismissed the complaint against the architect, David Franklin.
CrossLand clearly was the defendant with the most money in this gang, but CrossLand had no intention of compensating the Barishes.
"It appears to be a sequence of events that really were not foreseeable to anybody," says attorney William Jenkins, who represents CrossLand. "That's not CrossLand's fault. Who could bet that you would have a 500- to 1,000-year flood occur over a two-month period of time? It's just not foreseeable. It is unfortunate, but it was not CrossLand's doing."
Two years, several depositions and more than 150 pleadings later, Maricopa County Superior Court Judge Sylvia Arellano agreed with CrossLand and granted the bank a summary judgment.
The rest of the defendants remain in the case, but there is considerably less likelihood that the Barishes can be made whole without CrossLand.
In fact, CrossLand is now owed money by the Barishes. In July, Arellano ordered the Barishes to pay CrossLand $155,311--the fees of 11 attorneys and three paralegals at two law firms who opposed them, Myers & Jenkins in Phoenix, and Prince, Yeates & Geldzahler in Salt Lake City.
"There is no evidence before the court which would support Plaintiff's [the Barishes] assertion that an award of fees against them would create a financial hardship," Arellano wrote in her ruling.
She also stated that the Barishes understood the risks of litigation. She cited a May 1993 letter from the Barishes' attorney to the attorneys for CrossLand that mentioned a number of alternatives, including to "sue everyone in sight."
The Barishes argued that CrossLand's fees were excessive and included, on numerous occasions, the duplication of effort by the two law firms.
But Jenkins defends employing a football team of lawyers.
"A lot of issues raised by the Barishes were not necessarily easy issues to resolve," argues Jenkins. "Some required research all over the nation for cases of relevance that you could argue for support of your position."
That CrossLand is a $7 billion corporation and the Barishes are two people with a wrecked home was apparently inconsequential to the judge, as was that the legal fees were about seven times those of similar cases, according to Arizona State University law professor Dale Furnish. The Barishes have appealed the dismissal of the case against CrossLand and the award of fees. They've also filed a judicial conduct complaint against Arellano, alleging that her conduct in the case was prejudicial and that she disregarded law and displayed an "unjudicial tendency to employ personal comments that appear to have been discriminatorily based."
Meanwhile, CrossLand in August began garnisheeing Ellen Barish's wages to collect on the judgment. In an ironic twist, Ellen Barish is an attorney at another bank, Bank One Arizona.
She filed a bankruptcy petition earlier this month. Although the legal-fee judgment was also entered against Joel Barish, who owns his own business, CrossLand has not attempted to attach his earnings, and he has not sought bankruptcy protection.
"Our house is being foreclosed on. And the attorney fees judgment is ruining our lives," Ellen Barish says. "When I filed bankruptcy, it throws away 27 years of credit.
"I think they believe that if they destroy us financially, we will not be able to file an appeal."
Jenkins contends that the Barishes knew the risk they were taking in court.
"They complain about the attorney fees after they put CrossLand to the task of having to go through an extremely lengthy and extensive process extraditing them from a lawsuit they had no business being in in the first place," Jenkins says. "And then they cry about getting hit with substantial attorney fees. They knew the risk going in. Mrs. Barish certainly knew what she was doing."
The court of appeals will likely determine that next year.
Meanwhile, rain soaked the carpet and the walls of the Barishes' dream house again last week.
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