On July 23, 1987, with all other options exhausted, we filed the lawsuit. It named as defendants Cooper and his construction business, Murdock and his business, and Nelson and his architectural firm. The actual complaint, 17 typed pages, was divided into nine "counts" and 75 numbered paragraphs. Basically the suit made two demands: recision of the original sales contract we had signed with Jake Cooper, and punitive damages against all three defendants. As to recision the suit demanded:
For punitive damages:
In legal parlance this last sum is called the "prayer," because plaintiffs can only "pray" they'll receive it. Realistically, Baxter didn't think we would be awarded any punitive damages. The defendants had 30 days to obtain legal counsel and respond to the suit. Nelson already had Mike Collins as attorney. Murdock's insurer had to hire a lawyer for his defense, and Cooper had to find a lawyer and respond. We thought it possible that Cooper would not respond, that he would ignore the suit just as he had ignored nine letters.
A few days later Tom called.
"Good news," he said. "The judge assigned to the case is Judge _______________. He's one of the best, extremely fair. He doesn't take any bull from anyone. He'll move the case along."
Depending on which side lawyers take (plaintiff's or defendant's), they usually have preference for some judges over others. A lawyer cannot pick a judge for any particular case. Judges are assigned to lawsuits on a rotating basis, so who you end up with is a matter of luck. According to Baxter, we had been lucky.
Before the lawsuit was filed Baxter asked us to obtain a formal appraisal of our home's value. He recommended Skip Zimmerman, a respected appraiser in the area. A formal appraisal works like this. Three homes in the area, of similar age, construction and square footage, are checked for their recent selling price. Your house is compared to each of the three, and dollars are added or subtracted to your home's appraised value depending on how it stacks up against the other houses. For example, one of the comparison homes used in our appraisal sold for $440,000, but had fancy landscaping and an extra room, so from that home's selling price Zimmerman subtracted $30,000 when computing our home's market value. Using this method, in July 1987 Zimmerman appraised our house at $410,000 if there were no defects. He then subtracted the total cost to fix the house properly (including an allowance to cover interest lost to buyer while repairs were made).
What role did Emerald Heights play in this debacle? Before construction began the architectural plans were approved by the Emerald Heights building department, and before we took title the house was inspected by the town building inspector. Was there something in the plans that should have been noted before allowing construction? Sam Russell (our consulting archi-tect), Bill Sloan (consulting engineer), plus Schroeder's consulting architect (Nigel), and the attorney/architect we called in for a second legal opinion, all found the plans lacking in some way. Sloppy con-struction only added to sloppy design. Was Emerald Heights in some way responsible for allowing the house to be built?
No matter what the answer, a municipality cannot be sued for faulty home design and/or construction. Baxter explained that local governments have `sovereign immunity' against such lawsuits, even though they approve the plans and inspect each house before occupancy. Notwithstanding sovereign immunity, Baxter wanted the local building inspector to see the house and learn first hand of our situation. During trial, he reasoned, it would be better to have the building inspector on our side than defending the builder. On August 7 the inspector met Baxter at the house. Like the many experts before him, the inspector was also appalled. He had not noticed these problems at the time of formal inspection. What about approval of the plans? He told Baxter that the plans had been perfunctorily approved because "Emerald Heights has no indepen-dent architectural review board." Tom thanked him and that was that.
It is amazing at how many points along the way this nightmare of our lives could have been prevented.