Source: http://www.seacoastonline.com, August 14, 2014
By: Jeff McMenemy

The developer and contractor for the controversial Portwalk mixed-use project are the focus of a lawsuit that alleges the nearby Harbour Hill Condominium, which is another one of their developments, suffered from shoddy construction, according to court records.

Portsmouth attorney John Lyons, who filed the lawsuit on behalf of the condo association, said this week they are alleging “there was a complete and systemic failure of the roof requiring its total replacement.”

The condo association claims in the lawsuit that after doing an engineering study of the roof in 2011, following problems with water leaks in the building, they discovered the alleged problems.

“The association learned there were numerous construction defects in the roof, including but not limited to the fact that (the) roof system had failed and the failure would require the removal of the existing roof,” according to the lawsuit, filed in Rockingham County Superior Court.

In addition, the lawsuit, which is scheduled to go to trial in December, claims “there were numerous construction defects and deficiencies related to the construction of the exterior walls” of the building.

The Harbour Hill Condominium Association filed the lawsuit against Pro Con Construction, the builder of the Harbour Hill Condominium project on Hanover Street, which is located next to the Hilton Garden Inn, and Cathartes Investments, the developer of the project, in 2012, according to the lawsuit.

The same team built and developed the Portwalk Phase 3 project, which includes the Hampton Inn & Suites, more than 100 high-end apartments and 250 parking spaces.

Attorney Henry B. Stebbins, representing Pro Con and Cathartes Private Investments, issued a statement about the case on Wednesday. Stebbins said the lawsuit “arises out of a claim by the condominium association that the roof on the Harbour Hills Condominium was faulty.”

“The claim is strongly disputed by the developer of the building and the contractor who built it,” Stebbins said in the statement. “The defendants in the case claim that agents of the condo association did not perform required annual inspections and maintenance of the roof, and that work that was done on the roof by others, after the building was completed, caused the leaking in question.”

In addition, Pro Con and Cathartes state “the court recently dismissed many of the claims of the homeowners association against the contractor, Pro Con, Inc., and denied a motion that had been filed by the condo association. It left open the question of whether the negligence claim alleged by the condo association should be dismissed.”

Rockingham Superior Court Judge N. William Decker, in a ruling issued Aug. 4, concerning Pro’s Con motion for summary judgment — a legal procedure asking for a judge to rule in their favor and dismiss the case — granted part of the motion filed by Pro Con relating to Harbour Hill’s contract claims. But Decker denied the motion for summary judgment on claims made against Cathartes for breach of express warranty, breach of the implied warranty and negligence and denied the motion for summary judgment against Pro Con for negligence, according to a copy of the decision.

In the 14-page decision, Decker noted that Harbour Hills hired an engineering firm, Noblin & Associates, which issued a report on the roof in July 2011. “The investigation found construction debris left on the roof and ‘systematic failure’ of the main roof system due to construction and material failures,” according to the decision.

Pro Con also sought to blame some of its subcontractors for the problems with the roof, according to Decker’s decision, which said the company “brought in several third-party defendants seeking contribution and relief for other claims.”

In a deposition by Pro Con Vice President David Raiche, he states that the efforts of its roofing subcontractor were “woefully inadequate,” according to the decision, and a November 2005 field observation reported prepared by Pro Con notes “several areas where the rubber membrane (on the roof) is improperly installed.”

Robert Sullivan, Portsmouth’s city attorney, said Thursday he did not know the lawsuit had been filed.
“That’s the first I’ve heard about it,” Sullivan said. “Because we are so inextricably intertwined with Portwalk, I’d be interested in seeing it.”

The lawsuit also names D & D Restoration of Londonderry as a subcontractor who worked on the roof. Attempts to reach someone from the company were unsuccessful and a phone number listed for their business had been disconnected.