We Are Deposed
If you get into an argument on the street with a crazy man,
"Tom," I said, "we sometimes feel you're not on our side." At that comment Tom's jaw dropped slightly. I continued.
"That business with Rabin's deposition, where you called and said `What if I told you the floors don't slope.' I couldn't sleep that night! And now it's the same thing with the basement. Banks says its just settling cracks and you're willing to accept that at face value. Tom, we can't sell the house with those cracks! They're not normal!" Tom stayed silent, so I continued. "Everyone comments on those cracks. Every builder who looked at the house saw them as a major problem needing correction. You yourself said they're getting bigger."
Tom spoke up. "Sometimes I have to play devil's advocate. I want nothing more than to see both of you come out whole. But when I hear something that might weaken our case, I have to consider it to see where we stand. Frankly we have an excellent case, but I'm very afraid you may not come out a hundred percent."
"Why not?," Larry asked.
"Legal fees. We may not be able to recover those."
"We understand, Tom," Larry said. "But sometimes you come across like you'd be happier representing the insurance company, like you aren't comfortable with the plaintiff's side."
Tom spoke emphatically. "Not at all. Not at all. Ask anyone, you'll see I represent plaintiffs more often than defendants."
Larry persisted. "Maybe so, but how are we to interpret your response to the basement cracks? [Murdock's insurance company] dug up Cooper's son's basement next door and you accepted that because `they had water.' Hell, how do you know they had water? Only because Cooper's attorney told you so! They whisper something to you and you seem to accept it as gospel, and then we're wrong. Frankly Tom, it doesn't make sense. We had water too!"
If this conversation suggests we were ready to dump Tom and find another lawyer, it was not so. We were just seeking reassurance that he understood our position.
"Look, Larry, I hear everything you're telling me," Tom said. "We won't ignore the basement. But we've got to go to trial with some agreement among our experts."
"Tom, they all agree! Except Banks on the basement, and he's a structural engineer, not a builder. It's not his house! We can't sell it the way it is!"
In the end Tom capitulated and said the basement would not be ignored. He was 100% on our side, we had an excellent case, and it would get better as we came closer to trial. For now we had to concentrate on our depositions. Venting provided some relief from the awful feeling of injustice, a feeling known to every innocent victim of greed and incompetence. We were thirsting for redress against these men who had so defiled our home and our lives. To prepare us for the depositions Tom showed us an excellent videotape, "How to Take Depositions in Business Cases." Among the tape's major points:
They went after me. For the better part of two afternoons Pierce went over every document in his possession while I sat across the table. The other two lawyers asked me very few questions.
Q (Pierce). Looking at a letter dated February 20, 1987 from you and Dr. Martin to Mr. Murdock, is that your signature?
A. Yes, it is.
Q. Is that your husband's signature?
A. Yes it is.
Q. Did you both write it?
A. Yes, we wrote it together.
More than half the time was spent on such trivial questions, questions that allowed Pierce to review correspondence that had been in his possession for months. It seemed that Pierce was using our depositions to orient himself to the case, to learn just what our complaint was all about. Other portions of the deposition covered my frustrations dealing with Murdock and his workmen before the suit was filed. An example (from page 66 of the transcript):
Q. What was the problem in the master bathroom?
A. Well, part of it was the fact that we had many people come through to figure out why we had a leak in the shower, and one of the things that happened because of the leaking in the shower was they had to remove part of the tile. Then they had to fix part of the tile. Then in the toilet area of that bathroom the tile also was not even. Then the tub when we used it shifted in position and we had a gap between the tile and the tub.
Q. Are we restricting our discussion now to the master bathroom?
A. That part was the master bathroom.
Q. So you had somebody in to fix the leak and, in the process
A. You're talking about the shower leak?
A. The first person who came in the end of June  was a plumber who said there was nothing wrong with his plumbing work. It was the door and tile man's fault. So Frank Murdock called Shower Doors who came and said, no, it's not my fault, it's the plumber's fault or the tile man's fault. The tile man came and said it's not the tile's fault, it's the plumber or the door. And we went round and round with this kind of repair. And I could go through this with every item in the house that needed to be repaired. In the meantime, we had a leaky shower which we still talk about I think on December 15. That's just one example.
Q. That was the master bathroom?
A. That's the master bath shower stall which leaks, had been leaking from when we first moved into the house, into the basement, into the finished part of the basement. So we had water coming through the suspended ceiling tile onto the furniture, onto the carpet.
Q. Was that problem ever fixed?
A. I believe in February of 1987.
Q. By whom?
A. Actually it was Mr. Nelson, with Mr. Nelson's help, that he came out and said that we needed a threshold, an elevation of the shower threshold, and that the whole thing needed to be repaired and fixed properly and then we would have a shower that wouldn't leak, instead of going from a tile man to a door man to a plumber, all of whom did not assume responsibility.
Q. Who actually remedied the problem in February of 1987?
A. A combination of the plumber, it ultimately was the plumber. It was ultimately a part of the lead pan that had a hole in it, at least that's my understanding.
And then the tile person had to come back to build the threshold. Then the door people had to come back to fix the door to fit the threshold. And then there was a period of four to six weeks where we couldn't even use the shower because it was leaking badly and was then dug up. And it took that long to get everyone together to fix the problem. Other problems were discussed in detail during my deposition. Along the way Pierce also probed to find out what kind of people we are. A synopsis of these questions (not verbatim):
Q. Mrs. Martin, have you or your husband ever sued anyone before?
Q. Did you have any problems with Nelson or Murdock before you moved into your house?
A. No, we did not.
Q. Have you taken any tax deductions based on the defects in the house?
A. No, none.
Q. Who have you told about the problems with your house?
A. Only our closest friends, and our relatives.
Q. Why did you put your house up with a real estate agent?
A. To sell it and get on with our lives.
Q. Why didn't you sell it?
A. Because we couldn't afford to buy another house with the offers we received.
Q. Are you or your husband related in any way to the experts who have been called in to see your house?
Q. Did you or your husband know any of the experts before they were called in to look at your house?
Q. Why are you suing for recision instead of getting the house fixed? A. Because we have three children and don't want to move twice.
My deposition spanned two afternoons and lasted a total of seven hours. They finished up the second afternoon with Larry, for an-other two hours. Larry could have gone on much longer but the time was late and the lawyers had other appointments. With Larry, Pierce mostly rehashed details about events, again impressing us that he was still learning about the case. With about a half hour to go attorneys Webster and Collins began asking the questions, mostly relating to charges of `misrepresentation' and `concealment' implicit in our complaint.
From Mr. Webster:
Q. Dr. Martin, you now believe that Jake Cooper did not intend to build you a top quality home, is that correct?
A. Events have transpired since we moved into the house and the way Mr. Cooper has treated us, that my wife and I have doubts about his honesty and integrity in providing us with a top quality home. I don't know that he set out to do the things that he has done to us, but the way events have transpired, we have our doubts about his intentions. We don't know when those intentions changed or what made him do the things he has done to us and the way he has treated us...they may have changed either before the contract was signed or since then, but they have made these two years an absolute nightmare for myself and my wife and my children.
Q. What, during that two year experience, has made you change your mind?
A. First of all, Mr. Cooper never once came over to see what the house was like or what he had developed, even though his son and grandchildren live next door and he visited there, obviously, very often. Never once did he make any inquiry about the house, the construction, how things were going or whether we were having any problems. Then when we sent him the letter in December  in effect asking him to "Please help, too," hoping that he would get together with Mr. Murdock and help make the repairs, there was absolutely no response. And then in January , the first and last time we ever heard from Mr. Cooper, was to ask for his $850 with absolutely no acknowledgment of what was in the previous letter or what we were going through and then subsequently the letters in January, February and March that we sent to him. There was absolutely no response, none. And that also included a letter from Mr. Schroeder to Mr. Cooper; absolutely no response. None, even though he came over to the house next door, obviously, very often and when Mr. Baxter sent him two or three letters pleading with him to "Come to the meetings, please get involved, please help the Martins with the problems they are having," because the contract that he sold with the house -- there was absolutely no response. He refused to get involved, whatsoever. Then, when he was finally deposed I read the things that he said, which were just mind-boggling and a total misrepresentation of the truth. When you buy something worth $300,000 from an individual and it's your home and for that individual to behave the way he has toward us and to not respond the way he has not responded to it, it certainly raises questions in your mind about the honesty and intentions from the very beginning.
Q. Did you have any problems with Mr. Cooper prior to December 15, 1986?
A. Well, the problem on June the 5th, when he demanded more money just before the closing.
Q. Any other problems?
Q. Did you look to him?
A. We didn't have problems on December 14th, we just sent the letter on December 15th.
Q. I understand. Had you made any attempt at all, about construction to Mr. Cooper, about construction?
Q. How do you believe that Mr. Cooper distorted the truth?
A. He made statements which were not true.
Q. Dealing with?
A. The way I handed his wife the check.
Q. Were you aware of any animosity then, you and him, going either way prior to that?
A. There was actually no animosity between Mr. Cooper and myself. It was a totally bizarre circumstance when he demanded more money out of the blue, when he had granted a letter to my attorney granting an extension of the closing to June 6th. This was done without any questioning, without any animosity. He just granted it. He also granted in the same letter $50,000 [bridge loan]. He never said or complained once that we were being unreasonable and we could not move in from the original closing date because the driveway wasn't in and the inspection permit and several other things [weren't completed]. The entire thing seemed reasonable and then on June the 5th, the actual day before the closing was supposed to take place, he walked into my attorney's office and said, "I want $1,700 and I'm not giving you the deed." Q. Did you agree to pay the $850 at that time?
A. I told my attorney, "How could he do this?" He said, legally, that he can't but by the time I fight it I'll be out of a house, because we had already sold our house. We didn't know why he [Cooper] was doing this to us and he didn't give us any satisfactory answer. He said, "I'll take half," and he did not demand a note or anything. He just said "I want you to promise me half" and I said "Okay, I'll pay at the end of the year, okay, we have no choice."
Q. Initially he demanded $1,700?
A. Yes, that's correct.
Q. During the course of construction on your house, were you concerned that Mr. Cooper had not paid visits to it?
A. No, we weren't concerned. He had represented himself before the contract was signed on November the 8th  that he was responsible, that he was overall in charge and that if we had any problems to come to him.
Q. Were you aware that the actual builder on the house was going to be Frank T. Construction?
Q. Did you have any problems with that at any time?
A. No. Not while the house was being constructed, no.
Q. What did you understand Mr. Cooper's role to be during the construction of the house?
A. As the person ultimately responsible, if there were any significant problems.
Q. And it's true to say you didn't call on him to help you until December of 1986?
A. That's correct.
Q. Other than the contacts your wife spoke about earlier and that you have spoken about concerning Mr. Cooper about the $850, can you think of any contacts that you had with Mr. Cooper prior to December of 1986?
A. Well, the contacts leading up to the contract signing.
Q. Any different ones than we spoke about?
Mr. Webster: That's all, thank you.
Now it was Mike Collins's turn to ask questions of Larry.
Q. Is there anything that leads you to believe that Mr. Nelson intended to conceal conditions from you and not report them?
A. What time?
Q. During construction.
Q. After construction?
A. Well, I don't know what Mr. Nelson's intentions were. I do know that he wrote several letters and came to the house and one of the letters said that the sloping floor was an optical illusion and there were no major structural problems with the house and that he did not admit to any structural problems with the house until confronted with our experts' reports.
Q. Did you think that he was misstating his opinions in those letters?
A. Quite honestly, we don't know what to think. Mr. Nelson is an architect. He's a professional and he was responsible for designing the house. He was responsible for coming through the house on three or four occasions. He reviewed the problems in detail in January  and wrote a letter about them and never once mentioned the structural problems, which he later admitted.
Q. Do you think he intended to conceal those problems when he wrote the letters in January?
A. I honestly don't know.
Q. Mr. Martin, in paragraph 73 of the complaint it states, "Defendants failures to disclose were representations to Plaintiffs regarding the residence, which was made recklessly and willfully for the purpose of withholding and suppressing critical and material information and facts thereby creating false and misleading impressions as to the conditions of the residence." Can you tell me what facts you have relative to Nelson, Packard Architects, Inc. to support that? What facts do you have that indicates Nelson and Packard were reckless and willfully withheld and suppressed critical and material information to you?
A. Mr. Nelson designed the house, he's an architect. The house did not exist before Mr. Nelson's plans. It's a manmade object totally designed by Mr. Nelson, built by Mr. Murdock. Mr. Nelson supervised the construction to the extent as we've already discussed. Mr. Nelson came out to the house and wrote an extensive letter about his ideas of what was wrong with the house, and never once mentioned structural problems. Later, after we hired experts to find out what was wrong with the house, Mr. Nelson agreed there were structural problems.
Q. Are you indicating that he willfully withheld that information, though?
A. I don't know.
Q. Are you indicating that he, in some way, suppressed that information?
A. I have no proof of that.
Q. Do you feel that he was trying to create false and misleading impressions?
A. I can only restate what I just stated. The floors sloping are not an optical illusion.
Mr. Collins: I have no further questions.
Suddenly the depositions were over. It was 6:30 p.m. and time to go home.
The sad, everlasting truth is that instead of offering to fix our house the defendants were paying lawyers thousands of dollars to probe us for some chink in our armor of total innocence, something to lay on us before the court. After nine grueling hours they had found nothing. What next? Having no intention to fix our house, they would now prepare for the trial. There would be a trial, no doubt about it, but what would be their defense? They had no experts to dispute our findings so their lawyers would have to attack our experts, minimize the defects and shift responsibility as much as possible.
I write about the situation as if it made some kind of sense, as if we understood what was happening. In truth, the whole thing made no sense at all. From our perspective in late April 1988 these men were past logic, past common sense. Why were they going to trial over our defective house instead of just fixing it? Why were they putting us through hell and paying lawyers instead of repairing our home? Why were they doing this to us? Why were they doing it to themselves?