And They Built A Crooked House, by Ruth S. Martin
PART V: A NEW WAY TO PROFIT: SELL A DEFECTIVE HOME AND REFUSE
TO RESPOND TO THE HOMEOWNERS.
Court fool, n. The plaintiff.
The 1988 Seoul Olympics preceded our trial by a few weeks. As the pageant unfolded on TV we could not resist making comparisons. Like the athletes we also prepared long and hard for our `event.' We trained under a dedicated `coach.' We expected our opponents to try anything to beat us, not drugs of course but sneaky tactics. And like each Olympic event, wining or losing would come down to our team's performance before an impartial judge.
Ambrose Bierce, The Devil's Dictionary,
On Wednesday, October 5 we went downtown to Tom Baxter's office to go over final strategy. Melissa Oliver met with us first and revealed the latest news: Jake Cooper planned to go out of the country the week of his trial! Cooper's lawyer had verbally asked the Judge for a continuance (delay) so his client could make a `buying trip' to Italy. The request was denied but Cooper was reportedly going anyway.
As of late that evening Webster was reportedly trying to convince his client to stay for the trial. Tom was upset. He wanted to put Jake Cooper on the witness stand, in order to show the Judge how our developer had breached his contract. Tom could introduce Cooper's deposition in court but he didn't think it would be nearly as effective as live testimony.
Once subpoenaed, Cooper could be arrested if he did not appear. Did he know this? In any case we were not surprised by his brazen plans. He had shown nothing but contempt for our complaint. Who ever heard of the main defendant planning an overseas buying trip during his trial?
As we saw it Cooper simply didn't care about this case, either because he had no intention of paying if he was assessed damages or for some other reason we could not fathom. His attorney Doug Webster had been mostly silent through 14 months of litigation, choosing to stay in Pierce's shadow.
Tom had sent Cooper a subpoena for the trial on Oct 4, but since he wasn't home the subpoena was taped to the door of his house. Ordinarily this would be sufficient, but we envisioned Cooper claiming he never received it. We convinced Tom to send another subpoena, delivered in person.
A second subpoena went out that night, with instructions to the process server to wait until someone was home. On Thursday, October 6, Tom called. He just learned from Webster that Cooper would appear at his trial, and would leave for Italy after his testimony.
(In one of several ironies in our case, we saw Cooper and his wife at a local theater October 8, the Saturday before trial. The movie was the then-unknown-but-now-famous "The Thin Blue Line," a riveting documentary about how the legal system in Dallas was subverted to convict a man for a murder he didn't commit. A totally different case than ours, for sure, but the movie heightened our concern about how we might be treated by the law.)
On October 6 Tom met with Marshall and Banks. He came away feeling prepared for trial. Meanwhile Larry and I `rehearsed' my coming testimony. He took the role of Pierce and badgered me with insulting and leading questions. (This may all sound foolish but rehearsals do help build confidence for trial.)
The next attempt to sabotage our case came on October 7, the Friday before trial. Pierce filed a written motion to deny Marshall's testimony in court, on grounds that he came into the case after the period of discovery, i.e. after the original May 16 trial date. Tom and Melissa prepared a written objection to Pierce's motion, citing case law validating use of Marshall's testimony, and pointing out that at no time in the month after Marshall's report was mailed did Pierce (or any attorney) seek to depose him.
Pierce's motion, citing no case law or any valid reason for denying our witness, seemed another desperate cheap shot. Pierce would defend his client Murdock not with experts (he had none) or the truth (it did not favor his client), but with the two-pronged attack of a weak defense: first, try to exclude the testimony of the plain-tiff's experts. Second, for experts you cannot exclude, try to impugn their credibility.
Having no intent whatsoever to fix our house properly, the Murdock defense was built on denial and shifting of responsibility: deny what you can, minimize the rest, or shift the blame to someone else. What about Cooper? The day before trial Tom showed us Webster's brief. It was a poorly written, incomplete document, easy to see through if you knew the whole story. Webster quoted many of the same cases cited in Tom's brief, but went into very little detail about how these cases helped his client. Webster's summary of the case completely ignored Cooper's record of non-response and the attempted extortion of $1700. Incredibly, the brief claimed that our hiring Cooper's builder (Murdock) to finish the basement during construction violated Cooper's contract, since we did not first obtain his written permission! (Before construction began Cooper had mentioned in a letter that we could employ anyone we wished to finish the basement).
Webster's estimate of the cost of repairs was laughable. He listed only a few items and managed to ignore 90% of the defects to arrive at a figure of about $10,000.
But this is what litigation is all about. The courtroom is a level playing field. The judge can only act on what is presented in court. Until he sifts through all the evidence your claim and the defendant's position carry equal merit. The defense knows this; the more out-rageous their position in one direction, the more likely will your claim seem equally outrageous the other way. If you ever have to pursue legal remedy for a valid claim against someone who has totally ignored you and reneged on a signed contract, don't be shocked by the incredible distortion the defense will present at court.
Tuesday, October 11, 1988
The night before trial we went to sleep late and awoke early. We both felt fine, however, and
my husband was ready to testify. We wrote in our journal, before leaving for the Justice Center:
If this case wasn't costing us a small fortune it would be funny, almost entertaining. Stupid, sleazy men are being dragged, kicking and protesting, into court. They and their lawyers continue to distort the truth in their desperate attempt to avoid responsibility. If we lose it will only be because the legal system fails us, not because we have not proved our case. Our case is so clear, so well documented, that it will take an errant judgment to deny us our due. We know such can happen, and that it won't be fair. But that's the legal system. The movie we saw Saturday [The Thin Blue Line] is an excellent documentary of how one man's freedom can be taken away by an unfair legal process. If freedom can be taken away, so can the value of one's home. The obvious lesson is this: the legal system does not always come to the right decision.
Like on May 16, we again have no idea what today will bring. We just hope that the trial begins, that we have our day in court, and that these men are finally made to answer for what they have done to us.|
* * *
Mercifully we went to trial, though it didn't actually begin until 10:15 a.m. First the Judge met with all the lawyers to see if there was any chance of a settlement. No chance; this time the defendants made no offer. Then the Judge spent about 45 minutes sentencing four drug offenders, one after another.
The entire trial was held in the Cuyahoga County Court of Common Pleas, before Judge ___________. Neither we nor the defendants had requested a jury. Tom thought our chances were better with just a judge. I was ambivalent about having no jury. Unless one or more jurors harbored a prejudice against physicians I didn't see how a jury would be bad for us. Tom was afraid a jury might not be sympathetic toward physicians whose house, even though defective, was probably more spacious than the average juror's. Also, without a jury the case was supposed to go faster.
Present in the courtroom besides us were the three defendants, a court reporter, and six lawyers (Pierce had an associate, a young attorney named Roger Jones whom we had never met before). There were no observers and no family members from either side.
The trial opened with brief speeches by each lawyer outlining his client's case. The defendants' strategy was now plainly expressed: through their lawyers, they denied responsibility for the bulk of the damage (Nelson and Murdock), or denied any financial responsibility at all (Cooper).
My husband was the first witness. He was on the stand from 10:30 until noon, and then from 1:30 until 5 p.m. Using our four letters to Murdock and Cooper as guideposts, he carefully recon-structed the sequence of events from the fall of 1985 until July 1987, when we filed suit. As each letter (or contract) was discussed it was entered into the record as a plaintiff's exhibit.
Tom also introduced photos of the house, showing selected defects. Larry described each one, including the September 12 photo of water in the basement.
It was good to finally have our day in court, to see Cooper squirm as Larry related how he had tried to extract an extra $1700 because "my profit margin is very thin on your house." We scored a minor victory as Larry read from a letter Cooper had sent us on October 28, 1985, to the effect that we could use any firm we wished to finish the basement. Tom also asked Larry to recount how he handed the $50,000 check to Mrs. Cooper on July 1, 1986, to show that Cooper's comment that Larry was "nasty" was totally unfounded.
Tom next went over our attempts to get Murdock to fix the house and lead up to the four letters we wrote Murdock and Cooper. At this point Tom asked about Cooper's response to our letters. Answer: there was never any response. Tom then asked how Cooper's non-response affected us. Pierce objected that this line of questioning was not relevant to the case. The Judge sustained the objection. Tom tried to explain how Cooper's non-response was important to our case, since it would support our request for damages. The Judge thought for a moment, shrugged and said that Cooper's non-response may be no worse than something akin to "bad bedside manner."
"Bad bedside manner." The longer we are removed from the trial the more those words sting. Cooper sold us a house for over $300,000 and then refused refused to respond to us or acknow-ledge any responsibility, causing us, as a direct result, to incur over $55,000 in expenses and incalculable emotional distress. To the Judge this behavior was just "bad bedside manner."
If a doctor adopted such an attitude after the patient had suffered a bad result, the doctor's behavior would no doubt play heavy in the courtroom. But not in a contract case. Although we didn't fully appreciate it at the time, the Judge's off-hand (but on-the-record) comment foretold our legal position.
Tom then asked questions about the May 1987 meeting at the house (which Cooper refused to attend), and about events following the meeting. It was his intent to show that nothing happened as a result of the May meeting, and to get into the record Don Henderson's subsequent comment (June 1987) that "90% of the problems" were the architect's fault.
At the mention of Henderson's name Pierce vociferously objected, pointing out that Don Henderson was not going to be called as a witness and anything quoted about him would be hearsay. The Judge sustained Pierce.
* * *
Tom finished questioning Larry about 3 p.m. Next came cross examinations, first by Pierce.
He turned out to be a sharp lawyer, treacherous for the unwary. He asked several `are-you-still-beating-your-wife'
type questions, usually as part of a larger, multi-part question which was impossible to answer without
admitting something untrue. Larry repulsed him each time. At one point Larry told the Judge that
Pierce's question was unfair. The Judge responded that unfair or unreasonable questions would be
objected to by our attorney. Pierce's strategy was to show that Murdock had no contract with us except
for finishing the basement, and that he was therefore not responsible for the defects,
at least not directly to us as homeowners. To aid this point he drew a chart on the board with a marking pen (below),
which remained in the courtroom throughout the trial.
Pierce's chart was useful for focusing on the contractual arrangements.
(FTM in the chart is Frank T. Murdock, Inc.) Our original building contract was with Cooper (1).
Murdock signed the Addendum to the building contract but only with respect to Paragraph 16 (see page 9);
that section supposedly protected us if Cooper died or went bankrupt.
Also on November 8, 1985, Cooper and Murdock entered into a separate construction contract,
for $203,000 to build the dwelling (2). In 1985 we had no knowledge of this contract or the
actual construction price of our home. "Subs" refers to all the subcontractors
that Murdock hired and paid.
Separately, Murdock contracted with Nelson to provide archi-tectural services, which by 11/8/85 meant only three inspections during construction (3). Apparently Nelson's actual design fees were paid by Murdock as well. Finally, we entered into a separate agreement with Murdock on 2/25/86 to finish the basement for $11,895 (4). Although Pierce did not put it on the board we also, along the way, paid Murdock another $4200 for additions such as a built-in bookcase and closet shelving.
|FOOTNOTE. Pierce constantly referred to Murdock by his corporate name, "...Murdock INK," to show that he was not personally liable for any judgment. He pointed out Murdock's corporate name so often that later in the trial the Judge said the repetition "isn't necessary. I get the message."|
Pierce tried to show that Murdock was a saint in his efforts to make repairs. Of course our letters spoke the truth, but Pierce tried anyway. "He returned your phone calls, didn't he? He didn't send you a bill for his repairs, did he?"
Didn't send us a bill? From Pierce's questions one would think that Murdock's only involvement was as proprietor of a house-repair service, that he was an after-the-fact clean up man called in to fix another builder's mistakes and that our complaint was only about his repair efforts. If Murdock had done a competent job building the house his repair efforts would never have been an issue.
Earlier Larry had testified, when questioned by Tom, that Murdock did not respond to our initial letter of December 15, 1986. In cross-examination, after admitting that Murdock did return our phone calls, Pierce asked: "Regarding the December 15 letter, he did respond didn't he?"
Larry stared him down: "No he did not." Pierce then tried to make it look like Murdock might not have responded to make the repairs indicated in the letter, but that he at least responded to the letter.
Larry shot back. "No, Mr. Pierce, he didn't respond at all. Not by phone, by letter, mailgram, telegram or any other way. He just didn't respond."
Pierce also focused on the February 20th letter and my `Log of Daily Frustrations.' What, he wanted to know, was our purpose in keeping this log? Along the way he commented, rhetorically: "Behind their [the workmen's] backs you took notes and recorded conversations and they knew nothing about it!"
The absurdity of this accusation was apparent; our house was defective and no one was doing anything to fix it. We took notes to memorialize exactly what was happening, so people like Murdock would not be able to distort the truth in court. To imply that we were somehow sneaky was ridiculous, a lawyer's cheap shot.
Larry pointed out that it seemed important to set down exactly what was happening to us, especially since Murdock was saying things that were untrue (like my not being home when the workmen came). "It was a very frustrating time. That's why we called it the `Log of Daily Frustrations.'" After a short pause Larry added: "And it was aptly named." Pierce asked no more questions about our log.
He did ask Larry why I had taken the building plans to `Mr. B,' another home builder, prior to construction. (This fact was brought out in my deposition. I had wanted a second estimate of the cost to build our house, just to make sure Cooper's price was in the right ballpark.) Larry wasn't sure of the builder's exact name; he clarified that it began with a `B,' adding that I would know his name and could better explain the circumstances since I had made the contact. After a few more responses in this manner the Judge commented to my husband: "I've heard lots of doctors testify, but you're the first one I've met who answers questions like a lawyer." We weren't sure if this was a compliment or a criticism.
* * *
Collins's cross-examination focused almost exclusively on the `fraud' issue, in an attempt to show his client Nelson had not committed intentional deception. Collins seemed nervous. First he called my husband `Dr. Packard' (he was defending `Nelson & Packard, Architects'), and Larry corrected him. Then "Mr. Martin." Larry said nothing but the Judge corrected the attorney politely: "Dr. Martin."
The Judge agreed with Collins on the issue of fraud, and said so. Since the May 1987 meeting Nelson had admitted to at least some design inadequacies. Although his January 1987 letter called our sloping kitchen floor an "optical illusion," and he had done nothing to properly investigate the structural problems, there was no proof of fraud.
Next it was Webster's turn. His cross exam of my husband tried to show that Cooper was just an innocent bystander who had as-signed everything including all responsibility over to Murdock. This assessment was on the basis of the infamous paragraph 16 of the contract (see page 9), which of course did not absolve Cooper of responsibility for our house.
Based on the design and construction defects, and the events following their discovery, Cooper had clearly breached his contract. The crux of the issue was whether the defects were sufficient to warrant recision, and whether or not Cooper's unethical behavior could be considered in any legal judgment.
Webster never raised the issue of the attempted extortion. However, in an oblique reference he asked: "Do you agree that Mr. Cooper was entitled to a profit on this deal?" Larry had already made his point and felt it would not help to argue about the difference between legitimate profit and profit-by-extortion, so he simply said "Yes."
About Larry's demeanor in handing the $50,000 check to Mrs. Cooper, Webster asked nothing. Later, for the record, Webster asked if we ever paid Mr. Cooper the $850. "No" was the simple answer.
The day in court ended after Webster's cross exam.
* * *
Based on each defendant's position after the first day of trial, it would appear that no one was responsible for fixing our house. How could this be? During my husband's cross examination I wondered: When does the Judge stand back and say, `Wait a minute! What are the Martin's doing here? Why wasn't the house just fixed a year ago? Why is no one accepting responsibility? They paid for a new home, to be constructed in a first class manner. Individually, each defendant's argument might make sense, but looking at the big picture something's missing: overall responsibility for fixing the house, for making it what they contracted for.'
Wednesday, October 12, 1988
The case was taking longer than Tom had expected. He had planned for Architect Russell's testimony on Tuesday, but it had to be postponed until Wednesday.
On Wednesday morning, Oct 12, my husband went back on the stand and finished his testimony with Tom's `redirect.' At this point Tom tried to ask him questions about our legal and expert fees but Pierce objected. This was `new ground' which, by the rules of a lawyer's `redirect,' was not proper. The Judge sustained Pierce and said this testimony could be given later, by me.
Next came Sam Russell, Jake Cooper and Charles Banks. Archi-tect Russell's testimony was low key but effective. He testified that we would have to be out of the house during repairs, and gave his opinion of the extent of repairs and how they should be handled, which was somewhat different than Banks's version. This was acceptable, since the complexity of the defects would admit some difference of opinion.
At one point, when asked if he had seen evidence for water in the basement, Russell said yes, he had. There were no fresh puddles when he was there but the walls did show dampness and evidence for water leakage.
Cooper was next. He displayed the twisted, contradictory logic of a narcissistic, unethical businessman. First, he stated without a hint of irony that he was "concerned about the Martins." Next he lied by stating that he never threatened to withhold the deed on June 5, 1986, and that he called Murdock each time he received one of our letters (an assertion contradicted by Murdock's later testimony).
When questioned about the repayment of the $50,000 check Cooper made no comment about Larry acting "nasty"toward his wife. When reminded that we repaid the loan in full with interest, Cooper said: "I didn't care if they paid me the interest. The interest wasn't important to me." This comment, under oath, came from the same man who tried to extort an extra $1700 from us because "my profit margin is very thin." (And from the same man who, long after the trial ended, continued to chisel us over a few hundred dollars.)
Finally, in an about face undoubtedly orchestrated by his lawyer he stated that he did feel responsible for our house, but that he left it up to others to get the house fixed. "I saw no need to come to the [May 1987] meeting."
Tom quoted from Cooper's January 1988 deposition, where he claimed under oath that he was "not responsible." Cooper said Tom was "taking it out of context." Each time Tom pointed out a discrepancy between his January and October testimony, Cooper said the earlier comments were being quoted "out of context." Now in front of the Judge he admitted "responsibility" and saw no inconsistency with this admission and his total refusal to respond over an eight month period. "Other people," he said, were taking care of the problems.
Cooper's testimony was mind-boggling. How can anyone get away with the things he did, and then the things he said about what he did? Should Tom have spent more time pointing out the incon-sistencies between his testimony and his actions? Should he have gone over the January deposition line by line, demanding that Cooper explain himself? If Tom had done so, would it have mattered to the court? Or was the Judge's reaction to Cooper ("bad bedside manner") set the first day of the trial?
After Cooper's testimony Webster requested the Judge's permission for his client to go to Italy. The Judge asked if anyone had any objections. Tom had none and Cooper left town the next morning.
* * *
Next Charles Banks took the stand. He was superb: calm, au-thoritative, unshakable. The Judge seemed to pay closer attention to Banks's testimony than to that of any other witness. He reported that all the engineers had met in Tom's office in February, and come to agreement on the structural defects and how to correct them.
There was a palpable hush as Banks explained the house's defects. Using diagrams of the floor plan (portion provided in Appendix B), and a schematic cross section of the house, he pointed out how the floors sloped toward the center, and how they could be leveled ("add two columns here, strengthen beams there"). One nice touch was that in the schematic each of our children's bedrooms was labeled by their first names. "Now in Amy's room the problem is..."
Banks also testified that we would have to be out of the house while it was repaired, that plumbing and electricity would have to be disconnected, and that the amount of drywall cracking could be extensive.
Without the strong testimony given by Charles Banks our case would have been much weaker. Our thought at the time: Tom was certainly correct in switching from Sloan (our first structural engineer) to Banks.
When Tom finished, the Judge asked to meet all the lawyers in his office. My fantasy at that moment: the Judge is so enraged that our house wasn't fixed after Banks and the other engineers had agreed on the problems in February 1988, that he is considering a directed verdict in our favor.
Alas, more fantasy. The Judge just wanted the lawyers to have Banks clarify which of the defects could be attributed to Nelson and which to Murdock. According to Melissa, the Judge seemed to feel Banks's testimony was laying everything on Nelson.
On cross examination attribution became a little clearer, but the Judge still found it necessary to question Banks directly. He asked Banks if the defects testified to were construction or design errors. Both, said Banks, and he pointed out how most of the floors had been built sloping, in a way that had nothing to do with Nelson's design errors.
There was very little the defense lawyers could do to Banks on cross exam. Collins tried to have Banks separate out the defects due to bad design, in order to show how `little' it would cost to repair his client's mistakes.
Pierce asked Banks about the cracks in the basement. Yes, Banks said, they were settlement cracks. The basement walls were plumb. Pierce then asked if Banks had seen any evidence for water in the basement.
Moment of truth. We had argued for months with Tom about the basement problem; it was his `blind spot.' He could not recognize that we had a provable case for major basement repair. Accordingly, he did not formally prepare Russell or Banks on this issue. He thought our case for the basement was weak because everyone said the large, vertical cracks were just `settlement' cracks.
Tom's plan was to rely on us to testify about the water, and hope the Judge would agree that something should be done with the base-ment. Banks was not a waterproofing expert, and Tom felt he should not have to comment on the problem. For this reason, immediately after Pierce's question, Tom stated "Objection, your honor."
Tom should have kept quiet. As he was speaking Banks was answering the question: "Yes, I saw evidence for water in the Martin's basement." Tom looked surprised, then said, "Objection withdrawn."
Suddenly the mystery was solved. It was all so obvious. The cracks had nothing to do with the water! The large cracks were settlement cracks of no major concern to anyone but us (try to sell a house with giant cracks in the basement walls). The water was not coming `through' the cracks; instead, it was the result of a different problem: inadequate outside waterproofing. We had both settle-ment cracks and a waterproofing problem.
Thursday, October 14, 1988
This morning Tom planned to have two other people testify on our behalf: realtor Bill Arrington, who tried to sell our house in November 1987, and Skip Zimmerman, who had appraised it twice. As Arrington walked into the courtroom Pierce immediately objected, on the grounds that any offers to buy our house were immaterial in a recision case. Tom said we had not elected the remedy of `recision only,' that we also had a legitimate claim for the cost to repair the house.
The Judge thought Tom had elected `recision only' at the October 1987 pretrial hearing. "Your honor, I don't think so," Tom re-sponded, adding that Mr. Arrington was prepared to testify about rental cost of houses in our area should we be forced to move out to have the house fixed.
The Judge at this point asked for the defense attorneys to meet in his office. A few minutes later they returned to the courtroom. Then Pierce met briefly with Tom outside the courtroom. Larry and I just stayed in our seats, puzzled, not knowing what was happening. When Tom re-entered the room, the Judge looked at him and said: "Did he tell you?" and Tom nodded yes. Tell him what?
Apparently Pierce had pointed out to the Judge that if we were forced to declare for recision only, and lost on that ground, that the appeals court would probably order a new trial since the house did have some problems. According to Melissa's account he, Pierce, `did not want to retry this case.' The Judge agreed with Pierce and allowed both claims to stand. This decision paved the way for realtor Arrington to testify.
Arrington was very good on the stand. He testified calmly about the two offers for our house, $200,000 and $202,000, and said they were both at "arms' length," i.e. legitimate business offers. He also testified about the rental costs in our school district (anywhere from $1500 to 2500/month), and the fact that there was no active rental market in the area, only single family homes that occasionally became available and usually required a year's lease.
Arrington's testimony was only about 15 minutes but was effective. And appreciated. Nothing much changed when he was cross-examined.
Next Tom called in Skip Zimmerman, the real estate appraiser. The defending attorneys immediately objected, claiming that the appraised market value of our home was not relevant, either for damages or recision. Recision, stated Cooper's attorney, "can only restore the parties to where they were before the contract," which meant Cooper should get the house back for $307,350 if recision was granted. Pierce objected that damages "can only be the cost to repair [the house]." Both lawyers argued that in neither legal situation (recision or cost to repair) can the market value of our home be considered.
Another backroom meeting took place, this time between the Judge and all the attorneys. Result: Zimmerman couldn't testify. The market value of our home had it been built properly was simply not admissible in court.
After Zimmerman was sent away Melissa Oliver put Jim Nelson on the stand. This was the first time she had spoken up in court. She did a creditable job. Her questions were to the point and well chosen. Nelson admitted to design errors but denied lying or covering up. He seemed sincere in his wish to pay for what he considered were design errors. Overall, Nelson came across as perhaps well-meaning but certainly inept, both in his design and in the way he inspected the house during construction and afterwards. Next Tom put Murdock on the stand. The builder could not dispute any of the letters we sent. He documented Cooper's non- involvement before the lawsuit. Cooper had earlier testified under oath that he called Murdock each time he received one of our letters, to make sure that the problems were being taken care of.
"Mr. Murdock, how many times did Mr. Cooper call you about the Martins' house after December 15, 1986?"
"Once," said Murdock.
Although Cooper's building contract called for a full time supervisor, Murdock admitted to being at the site only "about two hours a day." We doubt he was there that much. Even so, "two hours" was but another example of how our contract with Cooper had been breached.
Again the basement issue was raised. Murdock's building specifications called for a "dry basement." (The case for the basement was now so obvious; why hadn't Tom see it?) "Mr. Murdock, do you agree that your building specifications for this house called for a dry basement?"
Murdock was not asked if the basement was dry; we already had testimony that it was not.
Gone from Murdock was the bravado of November 1985, and his "I'll-take-care-of-it" attitude of late 1986 and early 1987. Gone also were his excuses for substandard construction and inadequate repairs. He came across for what he is: a not very competent or very caring builder, one who was brought to justice for incredibly sloppy construction and now couldn't weasel his way out.
If we were not his victims we could almost feel sorry for Murdock. In a larger context he epitomizes much of what is wrong with many American-built products. I had this thought during Murdock's testimony: `This guy really doesn't know anything about building houses, and doesn't care that he doesn't know. I bet there are lots of builders like him. What if the Japanese came to America and started constructing houses with the same skill and attention to detail with which they build everything else? I'd build my house with them! It's guys like Murdock that give American products a bad name and allow foreign competition to take over. The Japanese could drive builders like Murdock out of residential construction in no time.'
Tom's last question to Murdock was pure vindication. "Mr. Murdock, do you agree that the house has construction defects?" A long pause, then "Yes." (An earlier letter, seemingly eons ago, from Murdock's personal attorney: "Notwithstanding your clients are very verbose, and have sent many letters, we take issue with the facts set forth therein.")
* * *
During the first two days of trial our letters to Murdock and Cooper were discussed in such detail that we congratulated ourselves on our prescience in writing them. More than anything else, they served to document the problems in early 1987; subsequent testimony corroborated that Cooper never responded and that Murdock was inept and desultory in his repair attempts.
Without those letters we have no doubt that Murdock and Cooper would have testified to total ignorance of our complaints or of our dissatisfaction with the repair attempts. It would have been our memory of events against theirs, and they would have claimed to be unaware of our complaints until we filed the lawsuit. (I can envision Murdock's testimony without our letters: `As far as I remember, every time I learned of a problem it was fixed promptly. If there were unresolved problems it was because the Martins didn't let me know.') Our letters prevented Cooper and Murdock from distorting the events of early 1987.
Tom finished the day with Mr. Marshall, who was allowed to testify after all. He came across as competent and self-assured, but just a little cocky and argumentative when cross examined by Pierce. But then Pierce does that to people. At one point Pierce all but accused him of being a `fire chaser' and of having higher overhead than most builders because he monitors the radio for fire alarms. Marshall testified that he had come out to the house five or six times, and spent about two hours each visit. He affirmed that his estimate to repair the house came to $92,000, that it would take about four months, and that we (and the furniture) would have to move out. He admitted his estimate was based on the list of items given him by Tom (our `Exhibit A' from May 1988) and on Mr. Banks's engineering report.
Marshall had made no independent assessment of the damage; he was called in just to give a detailed estimate of the cost of repairs. Pierce seemed to make much of this point, suggesting that, since Marshall's estimate was based on our experts' opinion of what needed fixing, that it somehow lacked validity.
Pierce tried to discredit much of Marshall's estimate starting with the largest chunk, $21,000 to waterproof the basement. First Pierce asked if he had seen Murdock's specifications list. No, he had not. Then:
"How did you arrive at $21,000 to repair the basement?"
"That's how much it costs to dig up the basement from the outside and waterproof it."
"Those are standard rates based on the number of linear feet?"
"Who told you it needed waterproofing?"
"That was on the list of items provided by Mr. Baxter."
"But you didn't see the original specifications provided by Mr. Murdock?"
"No, I did not."
Pierce also challenged the fact that estimates provided by some of the subcontractors were unsigned (implying they were invalid), and kept recalling the fact that Marshall's experience is with fire- damaged homes. Pierce was clearly not happy with this estimate.
On balance we thought Marshall's testimony was effective. Since there was no builder to testify for the defendants, Pierce's cross exam reflected only his opinion against that of an experienced rebuilder of damaged homes. (Why Pierce never bothered obtaining an indepen-dent estimate remains a mystery to this day).
Marshall's testimony finished about 5 p.m. and the court ad-journed.
Friday, October 14, 1988
The fourth day of trial started out with a little charade. Tom wanted his attorney friend Gary Goldstein to testify about the legitimacy of our legal costs. Everyone quickly objected, with Pierce's partner Jones citing cases that showed legal fees are never recoverable in a contract case. The Judge then met with all the attorneys. Result: Goldstein was not allowed to testify.
Apparently testimony on legal fees can be introduced only if there is a provable case of fraud. The Judge didn't think we had such a case. He would agree to reconsider his decision after my testimony, but we knew this was a dead issue. Over $32,000 out the window.
I took the stand about 10 a.m. with our lawyer asking the ques-tions. At one point I became so rattled I started to cry, and we took a little recess. The Judge had to leave at 11:50 that morning so I didn't finish. I did get a chance to testify that Murdock and Nelson did nothing to properly investigate the sloping floors, despite my repeatedly making them aware of the problem. Nelson made only one measurement with a four-foot level in one section of the kitchen floor. I told the court that I would have expected an architect to be more thorough.
Tom asked me about basement water. I testified that we had both dampness and puddles. Tom was now a convert to our cause. He wanted to continue solidifying our case for full repair of the basement's waterproofing. The Judge interrupted him with the comment: `I understand. It's obvious that a first class dwelling should have a dry basement.' We had proved our point.
Tom stopped asking me questions at 11:40 so he could introduce our experts' bills as evidence for reimbursement in any judgment. This lead to more objections, then more benchside discussion be-tween the Judge and the lawyers.
Result: the Judge threw out Bill Sloan's and the soil investigator's bills, since neither testified in court. He admitted the others for consideration, but Pierce pointed out that a significant portion of the other bills was for `trial preparation,' which is not reimbursable by the court; only investigatory fees can be recovered. Amid much confusion and shifting of papers Pierce then said: "I'll leave it up to the Judge to decide what part of the fees were for investigation and what went for trial preparation," and the session ended.
Tom had run through most of the questions he wanted to ask me except those relating to emotional distress. Because the Judge was going out of town for a week (to preside over another trial), court would not resume until October 24. Scheduled for that day was the defense's only witness, Frank Noble.
* * *
At the end of four days in court we had unequivocally proved our case: that Cooper didn't give a damn about us or our house, and in effect had breached his contract; that Nelson had made major design mistakes; that Murdock's construction resulted in much of the sloping floors; and that, despite clear obligation to supervise the construction and repair process, neither Murdock nor Nelson had done anything to properly diagnose and correct their mistakes.
Banks had testified that we would have to be out of the house during repairs, a point confirmed by Marshall. And Marshall tes-tified that it would cost about $90,000 to repair the property. The weight of testimony proved our basement was not properly water-proofed.
Arrington testified that there is no active rental market. Finally, at no point did the defendants call any expert to oppose ours. By the end of the week I could only glare at Nelson and Murdock (Cooper was not in court, having left for Italy) and think: `Well, are you proud of yourselves?'
So we proved out case, that these men were unethical (Cooper) or incompetent (Murdock and Nelson), that our house was defective by their mistakes, and that the cost to repair was enough to warrant recision. In court, we were morally vindicated. But we didn't come just for moral vindication. We came for reimbursement, to be "made whole."
And there lay the rub.
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