• Builder ignored explicit instructions to weather-seal the windows

  • Beau Rutherford testified that the windows passed his inspection

  • Beau Rutherford’s inspection missed window sealed behind drywall

  • Day or night, we manned towels to block water from floor throughout the house

  • Warnings and explicit instructions were ignored by builder

  • Builder did not weather-seal windows, and worse

  • Difference between sealed and unsealed windows is easy to see

  • How could we build water-tight windows when this builder couldn’t?

  • Rather than seal leaking windows, another idea came from Rutherfords’ attorney


Builder ignored explicit instructions to weather-seal the windows

Nearly 30 windows in our Rutherford Custom Home leaked. The leaks began with rains during construction, then homebuilding entered the then-historic Texas drought, which lasted until after we moved in.

All this, the builder ignored in installing our windows:

  • building code
  • manufacturer’s instructions pasted on the windows (See photos.)
  • Texas building standards (TRCC)
  • architect’s photos, calls for peel and stick flashing (See photos.)
  • owners’ follow-up to architect report with 8×10 photos

Our first light rain came after 4 1/2 months in the home, on April, 14, 2009. (See photos.) I grew up in a South Florida tract house and went through hurricanes without 1 window leak. But here, our Rutherford Custom Homes’ windows were leaking in light rains.

We called the Rutherfords after the leaks from the first rain. We called again after the leaks from the second rain. The builder twice sent not the windows installer, but a person who didn’t know what had and had not been done behind stone and wood.

In 3 1/2 months, the builder took no action to weather-seal the leaking windows. Nor did Rutherford Custom Homes act after deep water stains twice were pointed out to Beau Rutherford on window sills, coming up through the paint. We later learned the problem was behind stone and wood.

Beau Rutherford testified that the windows passed his inspection

James W. Rutherford, Jr., testimony at deposition Sept. 15, 2011:

Q: Did you inspect the windows after their installation to satisfy yourself that they were – would be weather tight and free of leakage?
A: Yes, I did.
Q: And they passed your inspection?
A: Yes.

* * *

Beau Rutherford’s inspection missed window sealed behind drywall


James W. Rutherford Jr. testified he OK'd windows. 1 was sealed behind a wall.
Missing window in Rutherford Custom Home
Rutherford Custom Homes concealed window found
Rutherford Custom Homes window found
Beau Rutherford testified that he approved Rutherford Custom Home windows.

(Click to enlarge.) Builder sealed window, top left, behind drywall. Beau Rutherford testified under oath that the windows passed his inspection.

Wimberley builder Beau Rutherford testified windows were properly installed.

We had the wall cut open.

5th window, per architect's plan, is discovered behind drywall.

5 windows on the plan, now we have 5 windows in the wall.

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* * *

Day or night, we manned towels to block water from floor throughout the house

Windows, rain inside and out
Windowsill water stain in Rutherford Custom Home
Rutherford Custom Homes' heavy windows leaks
Rutherford Custom Homes' leaking windows
Rutherford Custom Homes' leaking windows
Rutherford Custom Homes' leaking windows
Rutherford Custom Homes leaking window
Leaking windows in Texas Hill Country rain
Window leak in Rutherford Custom Home
Rutherford Custom Home windows didn't block rain
Rutherford Custom Home water-damaged window
Drywall crack at window Rutherford Custom Home
Rutherford Custom Homed builder did not stop window leaks
Drywall crack at Rutherford Custom Home window
Window rain cracks in Rutherford Custom Home
Window water stain pointed out to Rutherford Custom Home builder
Beau Rutherford was shown water stain twice.

After drought, came inundation.

Rain on long-time water stain that builder ignored in person and in To Do list.

First rain, a light one, since living in the home came in through 8 windows on 4/17/09.

Windows repairman pointed out cracks beside windows as, not good

Rutherfords sent a repairman who didn't know and couldn't see behind stone how windows were installed.

Water came from walls around windows. Rutherfords again sent person who had not installed the windows after 2nd rain.

Water begins flow to wood floor in July, 2009 rain.

Running out of towels in TV den.

Blocking rain from stairs.

Rain splashed down from above window.

Rain entry cracked window sill, migrated to floor.

Another crack appeared in wet drywall.

Wall beside window oozed water.

A drywall crack above studio window.

Windows serviceman pointed out bad crack.

One of water stains pointed out to builder Beau Rutherford.

Stain shown to builder, James W. Rutherford Jr., and put on To Do list. Nothing was done.

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Beau Rutherford’s testimony regarding the two visits of his windows repairman, and our pointing out to Beau Rutherford in-person the deep water stains on window sills:

Q: Did you ever receive notice … that the windows were leaking water from outside the house?
A: Not after the repair (of a year-earlier leak during construction), no.
Q: Never got any notice at all?
A: Not that I can recall.

* * *

Warnings and explicit instructions were ignored by builder

Instructions for weather-tight seal pasted on windows.
Windows installation sticker calling for weather seal not followed.
Rutherford Custom Homes used no flashing products around windows.
Beau Rutherford testified he addressed the architect's concerns
James W. Rutherford Jr., builder testified he addressed architect's problems
Builder disregarded windows flashing instructions.

Installation instructions were pasted on every window.

No. 7: ...ensure weather tight seal.... Instruction not followed.

Photo and caption from architect report. Builder said he addressed unsealed windows problem.

Architect's photo and caption: use peel and stick.

Architect discovered unflashed windows, called for peel and stick.

Instructions to weather seal windows removed after architect report.

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* * *

Rutherford Custom Homes did not weather-seal windows, and worse

OSB panel left off Rutherford Custom Home in Wimberley, TX
Leaking windows in our Wimberley, TX, home
Rutherford Custom Home window framing gaps
Window frame gaps in our Wimberley, TX, home
Hill Country rains penetrate home's windows
Leaking windows gaps in our Hill Country home
Why Rutherford Custom Home windows leak -- no weather seal.
James W. Rutherford Jr., builder, testified he approved windows installation
Windows not sealed despite Beau Rutherford's testimony
Rutherford Custom Homes of Wimberley, TX, did not seal windows
Rutherford Custom Homes left openings in walls
James W. Rutherford Jr. testified about approving the windows
Rutherford Custom Homes windows disaster
J.W. Rutherford Jr. testified he approved windows, Tyvek
Rutherford Custom Home OSB missing
Tyvek gaps revealed in Rutherford Custom Home
Windows without weather seal in Rutherford Custom Home

(Click to enlarge.) Deconstruction reveals no OSB panel, leaving 1/2-inch opening across top of leaking window.

15 leaking windows in TV den.

Wind-blown debris, water enter framing gaps, up to 1/2 inch wide.

Framing miscut all around these 15 windows.

Water entry enabled through big framing gaps.

Rutherford Custom Homes-built windows had huge framing gaps.

Removed framing reveals that builder did not weather seal windows.

Deconstruction photo shows no peel and stick flashing on windows, enabling water entry into home.

Windows installed without sealing them, enabling water entry into home. Architect's report pointed out this problem, called for windows to be flashed.

No weather seal on windows.

Builder left other openings

Construction photo shows Tyvek Wrap and OSB gaps at windows.

Tyvek was left unpatched, unchanged from 2-years-earlier construction photos.

Missing OSB gaps left unfilled, Tyvek left unpatched.

Wall left open, enabling water flow.

Builder did not have Tyvek gaps patched.

Windows behind stone left unsealed despite code, manufacturer, architect, owner instructions.

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* * *

Difference between sealed and unsealed windows is easy to see

Rutherford Custom Homes did not have windows sealed with weather-tight flashing.
Window peel and stick installed by us

Builder left windows without seal and with OSB and Tyvek openings.

We sealed the windows. How Rutherford Custom Homes should have done it.

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* * *

How could we build water-tight windows when this builder couldn’t?

Beau Rutherford, was president of this construction company. His father Jim Rutherford touted himself as having 40 years of building experience, and according to Beau Rutherford, Jim Rutherford served as RCH paid consultant. However, Rutherford Custom Homes was unable to build our home so that all windows wouldn’t leak. We found 28 leaking windows. This, despite explicit directions. Then, after the first rains, our builders were unable to stop the leaks for 3 1/2 months, when we had to terminate them.

With no construction experience, even we were able to do what the builders were unable to accomplish — weather-seal the windows.

How did we do it? We looked at window manufacturers’ installation instructions and DuPont home building online, as well as question online building expert blogs. Plus, the contractors we hired not only knew how to build, they took pride in their work.

We weather-sealed the windows with peel and stick flashing. It wasn’t rocket science and DuPont, the maker of our Tyvek Home Wrap, has a good website for proper installation of windows and how to use their flashing products, none of which were used on our windows. In fact, all windows manufacturers we looked up at that time had almost identical examples of how to flash windows, and they all used peel and stick flashing.

Since our construction, DuPont is offering another way to weather-seal windows in addition to peel and stick. We found their website helpful both for its graphics as well as product details on what constitutes weather-seal flashing:

* * *

Rather than seal the leaking windows, Rutherford Custom Homes’ posed something else

Rutherfords’ attorney asked our architect in his deposition about a redesign of the home 5 years after the fact to mitigate water intrusion from their unsealed windows.

Attorney to our architect:

Q: Do you think awnings or another covering over the doors and windows would have mitigated water intrusion?