Monday, October 24, 1988
The trial resumed on Monday, October 24. We arrived at 9 a.m., the time court was supposed to begin. Surprisingly, Cooper was also present, fresh from his trip to Italy. The Judge didn't appear in the courtroom until after 10 a.m. Delays without explanation like this one were fairly common but Monday's was the longest. For over an hour six lawyers, two plaintiffs and three defendants could only wait. Around 9:30 Pierce asked Tom to meet with him in the hallway behind the bench. Their discussion lasted only a few minutes. When Tom came back into the courtroom he asked me and Larry to come out to the lobby. Melissa joined us. In essence, Pierce told Tom that he had tried to fashion some settlement during the previous week, with an offer based either on recision or damages. The recision part fell through (probably, we reasoned, because Cooper would not participate). However, on be-half of all the defendants Pierce was prepared to offer us $53,000.
Of course Pierce knew from our depositions that we had spent well over $53,000 just to get to court. Accepting this offer would have put us right back where we were two years earlier, with no funds to fix our crooked house. Acceptance would prove the entire 18 months' litigation a total waste of time. The offer was a huge insult and Larry became angry. He was upset not just over Pierce's absurd offer but also at the way Tom presented it: matter of fact, as if it was something to seriously consider. Larry asked Tom why he was even telling us. "Why don't you respond with the same contempt that he [Pierce] shows us? For over a year they do nothing to settle this case, and instead only make ridiculous offers or statements. Why can't you just tell him to go shove it!"
Larry went on to point out that Pierce's `offer' only showed contempt for the enormous work done by Tom and Melissa and that accepting it would mean they had wasted their efforts. Facing Tom, Larry said: "Pierce is treating you and Melissa like two `schmucks' who have no case, who should accept a bone thrown by the defendants." Larry kept at it. "This trial is like some arbitration proceeding. The only decisions being discussed are what to fix and how much it will cost. These defendants have lied, distorted, misrepresented. Along the way they have caused us to spend a fortune in legal and expert fees but none of that seems to matter. Pierce's offer is just another example of the disdain he's shown from day one, when he blamed us for `not mitigating the damages.'"
Tom responded. "I have to tell you about Pierce's offer, that is my obligation as your lawyer. Furthermore, as your lawyer I have no right to get angry at Pierce. No, I don't think you should accept the offer, it is ridiculous, but I can't go around showing other lawyers the anger you and Ruth feel." Perhaps with this latest insult from Pierce Tom could have shown a little outrage, a little more pride in the work he had done. He is no slouch but for over a year he really did take too much crap from Pierce, and it dribbled down to us. Anyway, at my insistence Larry backed off. I had to testify in a few minutes and it would do no good to get me upset at this crucial moment. So Larry contained himself.
The Judge came into the courtroom at 10:10 a.m. and explained he had a sentencing to finish. The prisoner would have to be brought from the jail but that would take at least 20 minutes; in the meantime I could continue with my testimony. So I took the stand. Then the Judge immediately excused himself and returned five minutes later. Tom finally started asking me questions at 10:15. This session, a continuation of my October 14 testimony, was designed to elicit tes-timony about emotional aggravation and mental anguish. Before the Judge I had to keep my cool while relating the agony of a defective new home built by uncaring and/or incompetent people. "It's been a nightmare since December 1986...we had serious problems...not getting them fixed...February (1987) was an unbelievable time...excuses...running back and forth from work...not comforting to come home, home is supposed to be a special place." "Then when we hired our own experts and had their reports, still there was no offer to fix the house."
"Objection!" From Pierce.
"Dr. Martin," Tom asked, have you entertained in your new home?"
"No, we don't enjoy our home. Except for a few really close friends we've had no one over...Our lives have been affected...we lost all the equity in our home. When we learned we had to move out..."
"Objection!" Again from Pierce.
"When we realized problems were serious...When we were told what it would take to fix, that was our equity..."
"How have the problems affected, impacted, your family?"
"The whole idea [of moving out] disrupts our family. Where could we go? A night has not gone by that we haven't talked about this, since December 1986. Until then we thought the problems would be taken care of. Jake Cooper refused to answer us. This caused us more anguish. Why isn't he responding? Trying to help us?"
"Has this affected your work?"
"Yes. In February 1987 I missed much work. It has permeated my life. My teaching ratings at the medical school...began to decline. At (the hospital) I've been referred patients with complaints about construction problems in their homes. With what I've gone through I can't treat these people."
"Have you and your husband experienced anguish?"
Tom rephrased the question.
"During the period of time from December 1986 through March 1987, when letters were being written, did failure of the three defendants to respond and repair have an impact on your husband?"
"Yes. My husband became anxious, upset, had many sleepless nights. There was no investigation of the house. We were told the sloping was an optical illusion."
"Over what period of time has this anxiety been present?"
"To this day."
Tom paused, checked with Larry and Melissa regarding anything he might have left out, then said to me: "No further questions." It was 10:45. On cross examination Webster had one question which made no sense, about additions and repairs to our previous home. If he was trying to show that we have lived through repairs without difficulty, he didn't make his point clear. Neither Pierce nor Collins cross examined me. We had prepared hard for their questions but I also thought they might not ask any. I had testified about emotional damage from our "nightmare." It was by now apparent to each defendant, to their lawyers and to the Judge that our ordeal was solely a result of glaring design/ construction incompetence and a massive breach of contract. We were entirely innocent. Anything Pierce or Collins might ask in attempt to discredit me could only backfire; it would give me more opportunity to display the scars of this injustice.
Unfortunately, as the first four days of trial had foretold, my testimony would probably not make much difference. When the law is unjust (or, as lawyers like to say, "when the law doesn't provide a legal remedy for your situation") the best testimony is of no help. After my testimony Tom again tried to enter our legal fees into the record, by asking the Judge to allow Gary Goldstein to testify (see page 143). The defense lawyers immediately objected. The Judge, citing some case report which he held in his hand, ruled in their favor. "There is no proof of fraud or malice" he said, meaning legal fees are simply not recoverable. Tom then approached the court reporter and read into the transcript Goldstein's credentials and the fact that he would have testified to the reasonableness of the legal fees. Pointedly, the Judge did not listen to Tom; he was talking to his bailiff when Tom mentioned the figure "$32,500."
Next Tom tried to argue that our case against Nelson and Murdock was based on tort, not contract, since we didn't have a contract with these men. As tort, and not contract, we were entitled to recover the repair costs plus emotional damages. This part of the trial became very legal and confusing. After much discussion between the lawyers and the Judge, the latter ruled that the case was one of contract, not tort. This decision, coming on top of the exclusion of our legal fees, seemed to effectively bar recovery for emotional damages; the point had been repeatedly made by defendants' counsel that matters of contract can only be decided for the value of the contract, i.e. the cost to fix or buy back the house.
The last trial witness and the only one called by the defendants was Frank Noble, Cooper's engineer who surveyed the sloping floors with Charles Banks in February. Noble went on the stand about 11 a.m. His testimony was perversely amusing, especially when he compared repairing our house with fixing the Dunham Tavern (a 100+ year-old building in downtown Cleveland) and other property in Cleveland's `warehouse' district. Noble agreed with Banks's engineering assessment, with one exception. He didn't think all the floors would have to be leveled after the jacking-up procedure. Banks had testified they would need further leveling with "leveling compound," which would require lifting the carpeting or flooring in each room. Noble thought the jacking procedure by itself would level most, if not all, of the floors. Under cross exam he admitted that he "didn't know for sure."
The main thrust of Noble's testimony was that fixing our house wasn't such a big deal, that the drywall cracking from the leveling shouldn't be "too bad." He said the problem in fixing our house "wasn't insurmountable," a phrase Tom would repeat to our advantage in his closing speech. Noble never testified about how much it would cost to repair the house and (surprisingly) was never asked by Webster if we could stay in the house during repairs. Thus, the fact of our having to move out was never contradicted. On balance we didn't think Noble's testimony hurt our case much. (In the middle of Noble's testimony the prisoner was brought in, handcuffed. He was a chronic parole violator and drug abuser; the Judge sentenced him to prison.)
Tom finished with Noble about 12:10 p.m. and we broke for about two hours. Back in the courtroom we learned there would be no more witnesses. Before the lunch break Collins and Pierce indicated Murdock and Nelson might take the stand, but plans apparently changed over lunch and neither one was called. The Judge then motioned for Tom to proceed with his summation speech. Tom's speech was good. He outlined the two different remedies of recision and damages, and argued that we should have the option of choosing between the two, assuming the Judge could grant either one. He pointed out the unfair position the defendants had put us in and how we deserved not to have to worry any more about our house. "The Martins contracted for a new house to be constructed in a `first class' manner. What kind of house did they receive? One with major design and construction flaws. One with problems that the defendants' only witness says are `not insurmountable.'"
Next came Webster, whose speech was so absurd and outrageous that it must have insulted the Judge's intelligence. Some of Webster's arguments:
Tom also pointed out that Collins's estimate was only a simple addition of a few line items in Marshall's report and did not account for any damage to the house from these repairs; and that many other items dealing with the finish of the house had been ignored in these discussions, i.e. wood trim, bathtub repair, etc. Our lawyer finished with a flourish. For damages we deserved the full cost of repairs, move-out and investigatory fees. For recision we deserved our cost to build the house ($350,000) plus 10% interest per year, for a total of $420,000. Added to an award for either damages or recision we deserved, for all our emotional turmoil, an award from the court of $275,000.
At 4:30 the testimony and speeches were over. As a last gesture Tom handed the Judge and Pierce his final trial brief, one concerning damages. The Judge commented that he would try to have his decision within a week but that it could take longer. He then held up Tom's brief and addressed everyone with the comment: "these things don't fall out of the sky; they take a lot of work to prepare, so when you get a bill from your lawyer, pay him." With that, we ended the day and the trial.