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SECTION 1. And They Built a Crooked House: How one couple lost a fortune while winning the largest residential construction case ever tried in their state
Section 1 is a synopsis of my first book,
And They Built A Crooked House,
which is 246 pages with appendices.
In Section 1 of Crumbling Dreams I omit the angst, the passion, the shear
emotional trauma bared in the original book. Also left out are
quotes from the depositions and trial, exhibits introduced in
court including experts' reports, the bulk of the Judge's written
Opinion, and my letters to the newspapers and community
leaders. (As with the first book, in this synopsis I have changed
the names of our developer, builder, architect and trial lawyer.)
Those who wish to read the unabridged story, with all the
documents included, click to
Although what follows is a shortened version of the story, it is
sufficient to show some of the inherent pitfalls in building or
buying a new house. As will become evident from information
presented in Section 2, every case is unique and every case is
the same; the details may vary but the legal and financial
effects are remarkably similar everywhere. So, too, are the
emotional effects. Buying a seriously defective new house is a
devastating experience no matter who you are, no matter what
your profession. Though I am obviously critical of the people
we did business with, perhaps the real culprit in ours and all
other cases is a legal system that allows bad builders and
developers to get away with indeed, to profit by their
incompetence and/or dishonesty. If you think this is too strong
a statement, read on. This book may help protect you from a
The following headline and lead paragraph appeared prominently in the Cleveland Plain Dealer on July 2, 1989.
If you own a home it is undoubtedly your biggest material asset. Imagine that your home suddenly lost half its market value, every dollar of equity disappeared, and you could not sell it for the value of your mortgage. A fire? An earthquake? Some other natural disaster?
For us the disaster was entirely manmade. After moving into a new $350,000 custom-built, architect-designed house, we discovered major defects, a result of both faulty design and construction. The developer the man who arranged for construction and sold us the house totally ignored our plight. The architect and builder, both men hired by the developer, refused to accept responsibility for the defects. Our construction contract, which we thought protected us in a major dispute, was simply ignored by all parties.
As a result my husband and I became plaintiffs in the largest residential construction case ever tried in Ohio, and one of the largest in the country. For three full years the time we lived in the house we suffered unremitting frustration and aggravation, not to mention enormous expense to fight our case. Yet what happened to us was entirely preventable. Our story may help you prevent a similar disaster.
Our saga began innocently enough, in the summer of 1985, when we
decided to look for a larger house. Our family (three daughters, ages 2,
8 and 13) was outgrowing the old house. After 6 weeks of searching we
found nothing suitable and affordable in the used-house market. Then we
noticed a classified ad for a new `spec' house being completed in an
adjacent community. This house turned out to be smaller than we
wanted, but we learned that a vacant 2-acre lot on the same street was
We Meet The Developer And His Architect
The man who placed the ad met us at the vacant lot, which he owned. For us, the lot was ideal: heavily wooded, very private, and on a cul-de-sac street. Most importantly, the street was in the same excellent school district as our existing home. This man, who I will call Jake Cooper, had bought three contiguous vacant lots; the lot next to the one we visited he had sold to his son, who was building a house, and the third lot over contained the spec house.
Mr. Cooper was not the actual builder, but proclaimed himself the `developer' of houses on his land. To buy the vacant lot we would have to use Mr. Cooper's architect and builder, the same men erecting his son's house next door and the adjacent spec house. The price of the house would include his architect's fee and all financing until construction was completed, after a $30,000 down payment. We figured if the builder and architect were good enough for Mr. Cooper's son, they were good enough for us, and arranged to meet with Mr. Cooper's architect, James R. Nelson.
Mr. Nelson, was amiable and accommodating. He listened patiently to what we wanted (first floor master bedroom, four bedrooms upstairs, full basement), and over the next few weeks translated our wishes into a complete set of plans. It was the first time we had ever dealt with an architect, and remember feeling satisfied with his effort and drafting ability. We obviously had no idea at the time that he was incompetent to design our house or that, like the developer he worked for, he would lie once his mistakes were discovered.
The final plans called for a two-story, cedar-sided structure of 3800 square feet, plus a full, unfinished basement. Mr. Cooper's price came to $307,350 including the lot, close to what we had estimated. We did not bargain for a lower price. The reason we did not is, in retrospect, ironic. We felt that holding out for a lower price might give him some incentive to cut corners. We would rather pay his asking price and be assured of a well-built house.
We had still not met Mr. Cooper's builder, but weren't too concerned. The builder, Frank T. Murdock, was erecting Cooper Jr's home as well as the spec house, he was active in the area, and we had heard nothing bad about him (but then, we never asked). Also, Mr. Nelson, whom we trusted as a licensed professional, spoke highly of the builder. Again, we had not the slightest clue that these men were ignorant of how to design and build our house.
On several occasions, well before the contract signing, we asked Mr. Cooper what his responsibility and role would be.
"I am the developer," he said. "Mr. Murdock will build your house, but I am the developer, this is my project."
"Who do we call if there are any problems?"
"You call me. I am responsible."
Oh, how the lambs are deceived.
We Meet The Builder
We first met the builder in our lawyer's office the day of contract signing, November 8, 1985. A young man, Mr. Murdock had a rather breezy, confident air; he answered all our questions with a don't-worry-I-can-take-care-of-it attitude. Since we didn't know Mr. Murdock and had not hired him, we insisted that the architect, Mr. Nelson, make three inspections of the house during construction. Mr. Cooper, the developer, agreed and our contract lawyer wrote these inspections into the contract, which Mr. Cooper then signed. (Mr. Cooper had a separate construction contract with the builder.)
We felt positive about the deal. Many people were building expensive homes in this Cleveland suburb, and our enterprise seemed almost risk-free. Mr. Cooper, an affluent, semi-retired jewelry salesman, was putting up most of the money; the architect and builder were working for him on the two adjacent houses; and we had a detailed contract. What could go wrong? Everything, as it turned out. We had unknowingly signed a contract with one unscrupulous businessman, and our house was about to be built by two other people who did not quite literally know how to do it.
Ground was broken in mid-November, 1985 and for the next eight
months construction went smoothly, or so we thought. In February 1986,
after one of his inspections, Mr. Nelson wrote us a letter on his firm's
stationery, stating that everything was going well and that "Your home
is one of our stronger designs."
The Developer Demands More Money
The contract originally called for a closing of May 15, 1986, but on May 17 the driveway wasn't finished. Also, Mr. Cooper had inexplicably not delivered the warranty deed to the bank on time, so a May 15 closing was not possible. For these reasons, and since the sale of our old house would not finalize for another few weeks, we asked for an extension of the closing to June 6. Mr. Cooper agreed in writing, without any dissent.
On June 5 Mr. Cooper dropped a bombshell. He walked into our lawyer's office and demanded an extra $1700 for "our delays." This was our first hint that written agreements and contracts meant nothing to Mr. Cooper.
Our lawyer called my husband at work to relay the demand. It was incredible. Mr. Cooper threatened to withhold the deed unless we agreed to pay more! After some haggling over the phone Mr. Cooper lowered his demand by half. He did not require a signed note, just a promise that we would pay him an extra $850 by the end of the year. His timing, reasoning and manner were perverse, irrational. He had no basis, legal or otherwise, for demanding extra money, but we had no choice. We had sold our old house and would soon have no place to live. So we agreed and he released the deed.
We moved in on June 17, 1986.
We Discover Sloping Floors And More
Soon after moving in we noted problems with the house. The master bathroom shower leaked through to the basement ceiling tiles. The laundry room floor sloped. The kitchen and dining room floors sloped and walls in several rooms bowed out, apparent when we tried to hang pictures. (We appreciated none of these defects on our final inspection tour in May.)
We notified the builder, Mr. Murdock, and he promised to fix everything. At this point we were not too concerned, and continued to spend money on our new home, adding landscaping, a wood deck, storm windows and other extras. By December 1987 our total net investment in the house was $350,450. (Some of the additions, such as finishing the basement and a burglar alarm, were accomplished during construction.)
As the year progressed more defects became apparent, including: cracks in the basement floor and walls; water in the basement after a heavy rain; sloping floors in the foyer, family room and master bathroom; and an ill-fitting tub that shifted in its cradle when filled with water. The builder's repair attempts were never effective. His workmen, when they did show up, seemed unable or unwilling to fix any of the major problems.
Several workmen came to look at the shower. The tile man blamed the shower door. The shower door man blamed the tile work. They replaced some tiles and adjusted the shower door, but the shower continued to leak.
On December 15, 1986 we wrote the builder and developer a polite but firm letter, listing all the defects and pleading with them to fix our house completely.
Mr. Cooper's response was to send a brief letter reminding us that we still owed him $850! He mentioned nothing about our letter or our construction problems. (Although his son lived next door and he visited there often, Mr. Cooper never once asked to see our home.) We responded with another detailed letter to both the developer and builder, pointing out their legal obligation to fix our house. Despite further letters from us and our lawyers, Mr. Cooper was never again heard from until he was sued, seven months later.
The Problems Continue
In January, 1987 Mr. Nelson came to investigate our complaints. Afterwards, he wrote us a detailed letter, stating that the house was structurally sound and that the sloping kitchen floor was an "optical illusion." He did acknowledge the sloping laundry room floor, and recommended adding latex material underneath the tile to level the floor. At no time did he even hint of any problem with his design.
The builder still couldn't get anything fixed properly. His workmen tried to level the laundry room floor by jacking it up from below with a vertical beam, but this only caused a large buckle in the dining room wall above. New joists were added to the basement ceiling but the floors above still sloped. Crooked door frames that held our pocket doors were replaced; the new frames were even more crooked! The more problems we encountered, first with the house, then with the builder's feeble attempts to fix things, the more defensive he became.
We called our contract lawyer and on February 12, 1987 he wrote a letter to the builder and developer, threatening legal action if the house wasn't soon fixed. Our fury was rising. We began a detailed log of all the delays and problems with the builder's workmen. Now anticipating a lawsuit, we sent out a third letter to all three men, and included our "Log of Daily Frustrations."
About this time, in response to months of complaining, the leaky
shower was finally fixed. The rubber liner underneath the tile had a hole
in it! When asked why this problem wasn't discovered months earlier, the
plumber responded: "We check the simplest things first."
The Final Straw
In late February Mr. Murdock came to the house with his head carpenter, and now appeared willing to fix all the other defects. This change in his attitude was more a response to our contract lawyer's threatening letter than to our own correspondence. Over the next few days Murdock's workmen ripped out walls, lifted flooring, and removed moldings in various parts of the house. We were encouraged. Nothing had yet been repaired during all this activity, but the builder at least seemed motivated.
Then on March 2 the builder sent a "junior carpenter" to fix the sloping mudroom floor. The method? Irregular pieces of particle board that left a gaping hole through to the basement. The result was appallingly sloppy and the floor still sloped!
At that point we became convinced the builder didn't know what he was doing and oh, were we right! We called and asked him to desist from further repair attempts until we obtained an independent investigation of our house. His response to what was clearly a botched construction job:
"I can only do what my architect tells me."
Not only did Murdock not understand the construction defects, he also
did not accept responsibility. His response was a taste of things to come.
The Experts Descend
On the advice of our contract lawyer we hired an attorney experienced in trial work, a litigator, someone I'll call Tom Baxter. Hiring a litigator is like being operated on by a surgeon; both specialists control your destiny, except that the litigator's control lasts as long as the lawsuit exists. You are totally at his mercy and except for firing him can do nothing on your own about the lawsuit.
The first thing Mr. Baxter did was to contact experts for a detailed investigation. Within a month this group included a consulting architect, a structural engineer, a soils analyst, and a builder. Initial cost for just these experts was over $5000. Coupled with our lawyer's fee of $145 per hour, we began spending an average of $1000/week to pursue our case.
By early May we received the reports. The house was defective throughout, both by design (inadequate support beams; structural tolerances below the standard of locally-accepted building codes) and construction (substandard rough-in carpentry; sloppy and substandard craftsmanship). Both the architect's understanding and the builder's repair attempts were way off the mark. To fix the house properly would cost almost $100,000 and we would have to move out for at least three months!
We were devastated, but felt confident that these men would not want a lawsuit, especially since the evidence for defective design and construction was so blatant. We could not have been more wrong.
From the time we first viewed the lot until the day of contract signing, the developer Mr. Cooper had always made it clear that he was responsible for our house, and that the builder and architect were his agents. We had not even met Mr. Murdock, the builder, before the day of contract signing, and we had no contract with either him or the architect. It was Mr. Cooper who placed the classified ad about the property, hired the architect and builder, sold us the house, and pocketed the profit (we found out later his profit on the deal was over $50,000). Yet we would have to spend tens of thousands of dollars to get to trial and prove the developer's responsibility. And even then we would lose everything.
With disastrous consequences for us, our contract lawyer had failed to assign specific responsibility in the event of major construction mistakes. He had inserted an ambiguous clause whereby the developer's separate construction agreement with the builder was "assigned" to us. This clause was to protect us in the event Mr. Cooper died or skipped town during construction, but instead Mr. Cooper used it to claim "no responsibility" for the problems with our house. His claim was mind-boggling since, in another part of the contract, Mr. Cooper specifically guaranteed "first class, workmanlike construction."
Our contract also did not make either the builder or developer responsible for the architect, a person we had not hired. Although architects are independent professionals, our architect did not have malpractice insurance he was totally bare. If any of the problems were due to his faulty design, then we could be in the situation of having to sue a man we had not hired or paid, and who was neither wealthy nor insured. We had never considered (or been told about) this legal `black hole.'
The builder did carry builder's insurance, but his insurance company saw the architect's involvement as a way to avoid paying for any structural repairs.
We File a Lawsuit
Here's what happened. After receiving our experts' reports in May, 1987, the builder's insurance company claimed the problems were 90% the architect's mistakes, and refused to repair the house. The architect when confronted with all the evidence acknowledged that his design included two undersized steel beams. He agreed to strengthen these beams, but not correct any other defects. Such strengthening would correct only a fraction of the total defects, and could not be accomplished without a commitment to fix the rest of the house, which the builder's insurer refused to consider. In fact the builder's insurer made no offer to fix anything, not even the cosmetic defects obviously the builder's responsibility.
And Mr. Cooper? He refused to respond. Despite several attorney letters and the obvious threat of a lawsuit, Mr. Cooper remained silent throughout the spring and summer. As a result of this impasse, on July 22, 1987 we filed one of Ohio's largest residential construction lawsuits.
The suit asked for recision of the contract: a demand that Mr. Cooper buy back the house at its full market value, plus pay all our expenses. The suit clearly spelled out Mr. Cooper's breach of the written contract, wherein he guaranteed us a home built in a "first class workmanlike manner." The suit also demanded, of all three defendants, monetary damages for our emotional suffering and aggravation.
Over and over again we asked ourselves: `How can it be that we hired a lawyer in order to avoid problems, and now have this legal nightmare?' Yet our litigator refused to blame the contract lawyer. "A contract is only as good as the people behind it. You just had a bad result," he kept telling us. He did not consider this "bad result" sufficient grounds to sue the contract lawyer.
Fortunately we were able to live in the house, but that did not ease the pain of knowing what we had bought. In July 1987 we had the house formally appraised. Without defects it was valued at $410,000 (reflecting the rapid appreciation of homes in our area). With the defects: $251,000, a figure arrived at simply by subtracting the total cost to restore and resell the home. But who would buy such a wreck?
In November 1987 we put the house on the market through a real estate agent. Because of the defects the house could only be shown to people in the construction business. Furthermore, our experts' reports had to be disclosed or we could be sued. The highest offer received was $202,000, from a local builder. This amount was not enough to cover our mortgage (after real estate commission) and meant we could not move if we wanted to. We had lost every dollar of equity.
Meanwhile the lawsuit was like a big yawn. Mr. Cooper did respond to the suit, but only to deny any responsibility. The other two defendants denied the extent of our claim and admitted only to relatively minor defects. One would think the insurance company's lawyer would realize the magnitude of the situation and offer to settle. Not so. Instead, he did nothing to investigate our complaints and denied his client's responsibility for anything more than cosmetic defects; he assigned all structural problems to the architect.
We continued to run up legal and expert fees, as our lawyer met with their lawyers, our experts met with their experts, and all the lawyers met with the Judge. Between August 1987 and February 1988 there were five pre-trial hearings, none of which accomplished anything.
In late 1987 our lawyer received two strange letters from the builder's insurance company lawyer. The first letter (October 1987) proposed that the insurer fix the undisputed items (perhaps 20% of the estimated defects) and then "proceed with further litigation on the disputed items." This offer was turned down flat. The last thing we wanted was to have the house partially fixed and continue the litigation.
The second letter (December 1987) was even more provocative. The builder's lawyer wrote: "...it is unbelievable that your clients have done nothing since March 9, 1987 to mitigate the damages claimed against [the builder]...especially when all of the alleged construction defects could have been remedied within a week."
In retrospect it seems these letters were ploys to make it seem they
wanted to settle, but really to guarantee there would be a trial. A trial
builds up big legal fees. For the lawyer paid by an insurance company,
of course, that's a windfall. For us, the plaintiffs, paying out of pocket,
it is a disaster. We were becoming enmeshed in a totally no-win
situation, one destined to deplete our savings and enrich all the lawyers.
We felt, at the time, that we had no choice but to pursue this quest for
justice. Our lawyer never guaranteed a victory, but he also never
appraised us of our no-win position.
The Case Drags On
The Judge came to visit the house in January 1988 and (according to our attorney) seemed appalled by what he saw. Still, the case would rest on expert opinion. Seeing the damage didn't solve the issue of responsibility.
Our legal and expert fees continued to climb. The developer and architect were deposed in early 1988, along with their two experts, one hired by the architect, the other by the builder's insurer. Mr. Cooper stated, in his deposition, that he had "no responsibility" for our house, and cited the ambiguous paragraph in our contract.
The architect's deposition revealed him to be well meaning but inept (his blatant lying came later). As for the two `experts,' the one hired by the builder's insurer never seriously investigated the house. He did not submit a written report, at least none seen by us. His initial `impression' that the floors did not slope was later demolished by a detailed engineering survey of the house.
The other expert, hired by the architect, also did not investigate the house. His opinions were based on some information about grades of lumber provided by the architect, and turned out to be unrelated to the house's structural problems. Subsequently neither of these experts was called to testify at trial.
Because of some concern about weakness of our first structural engineer in a court fight, in January 1988 our lawyer called in a more experienced structural engineer to examine the house. This second engineer surmised that the floors were built sloping, which put much of the blame on the builder. "No one used a level when they built this house," he said.
In February 1988 Mr. Cooper's lawyer called in a new expert, an engineer who examined the floors for sloping. Using a vertical rod and surveying telescope, he went from room to room to check for sloping floors. (He was the only defense expert who systematically surveyed the house and filed a written report). His survey found the degree of sloping greater than even we had determined, in some areas as much as 1 to 2 inches in 20 feet!
With evidence in hand from our second structural engineer and Mr. Cooper's engineer, our attorney arranged for experts from both sides to meet. At this meeting, held in our attorney's law offices on February 18, 1988 the experts reached a consensus: our house was designed and built defectively. The two major structural defects are schematically below.
Center columns (CC) throughout the basement are not level with
outside basement walls (OW), causing sloping of horizontal steel beams
(B) toward the center. As a result, both the first and second floors slope
toward the center of the house. This defect was attributed to the
Distance between outside basement walls and center columns is too
long for the size of beams (B) used in several areas. As a result, these
beams are undersized and sag in the middle, causing more sloping of
the floors above. This defect was attributed to the architect.
These defects do not affect the outside frame walls (F), which remain
Distance between outside basement walls and center columns is too long for the size of beams (B) used in several areas. As a result, these beams are undersized and sag in the middle, causing more sloping of the floors above. This defect was attributed to the architect.
These defects do not affect the outside frame walls (F), which remain straight.
At the February 18 meeting the experts agreed that proper repair would require adding structural supports throughout the house, plus "jacking up the house and leveling all the floors." A dollar cost was not discussed, nor was the question of responsibility, by now the central legal issue in the case. Still, despite agreement on the defects there was no offer to fix the house.
Instead, on April 13 and 14, 1988 we were deposed by the three defense attorneys. The builder's insurance lawyer asked most of the questions. It seemed to us that he was using our depositions to learn about the case, and that his two previous letters reflected either unwarranted arrogance or simple ignorance of the facts (or both). For over nine hours he painstakingly went through almost every letter and document, asking us to confirm the dates, our signatures, and other self-evident information.
Along the way he probed to determine what kind of people we are. Have we ever sued anyone before? No. Did we have any problems with Mr. Cooper or the builder before we moved in? None. Have we taken any tax deductions because of our defective house? No. Who have we told about our house? Only our closest friends. Why did we put the house on the market? To sell it and get on with our lives. Why didn't we sell it? Because we couldn't afford to buy another house with the offers received. Did we know any of the experts before they were called in? No. Why are we suing for recision instead of full repairs? Because we have three children and don't want to move twice.
In truth, our claim was so honest, straightforward and provable that the defendants' lawyers seemed embarrassed. They came into the depositions thinking we must be ogres. We believe they left feeling somewhat ashamed of their clients. Our lawyer said he had never before seen such believable and unassailable testimony. He wished the Judge could have been there.
We did not fool ourselves for one second into thinking we had won our case. There was still no offer to fix the house and we knew there would be a trial. By blaming someone else, each defendant obviously felt he could come out ahead in court. Certainly the defense lawyers stood to make a bundle by going to court. (Our lawyer eventually put a ceiling on his fees, so that he would make nothing extra by going to trial.)
We also knew we could win legally and still lose big. How? By a judgment that omitted all our legal and experts' expenses ($55,000 by the time of trial). Or by an order to fix the house, making us move twice and go through the aggravation of reconstruction. Or by a judgment against Mr. Cooper and/or the architect that led to a declaration of bankruptcy. Or by a decision that resulted in endless appeals and more litigation.
Trial vs. Settlement
Our first trial was scheduled for May 16, 1988. A few days earlier, our builder expert was deposed. After his deposition Tom came over to the house to tell us the bad news. The builder's deposition was a disaster. Tom had not properly prepared the builder, and apparently there was much confusion when his itemized figures to repair the house didn't add up to his original estimate. We were devastated, and disappointed in our attorney. He would go to trial but now didn't feel comfortable. For our part, we wanted nothing more than to get this nightmare over with. It was almost two years since we had we moved in, 18 months after our first letter to the developer and builder, and 10 months after the suit was filed.
We went to the courthouse on May 16, as scheduled. Right away, all the lawyers huddled. After about an hour Tom came out and said the builder's insurer agreed to fix the house! If we insisted on a trial we might win (even with our expert's shaky testimony), but with appeals the case could drag on for years. He recommended we strongly consider the offer. We agreed.
Five hours later, after non-stop negotiations, the lawyers reached a verbal `settlement'. It would have to be put in writing by our attorney and then signed by all parties, a process that would take about two weeks.
Basically the defendants, in partnership with the builder's insurer, agreed to pay an independent contractor to fix the entire house, pay all move-out expenses and most of our expert fees (except for the first structural engineer). They would not pay for our legal fees. (In Ohio, legal fees are not recoverable unless you win damages at trial, something our lawyer considered unlikely.)
As unfair as such a settlement would be (we had bought a new house and now stood to lose tens of thousands just to get those responsible to fix it), our lawyer thought it preferable to going to trial. He was right of course, but then all we had at that point were promises from dishonest men. My husband and I did not believe their verbal offer was sincere; we simply had no reason to trust them. Our lawyer was also concerned, since the defendants had never before shown any interest in properly fixing the house.
To protect us against a phony offer, Tom drafted a Settlement Agreement that would allow us to resume the original recision suit if there was a "material breach of the Agreement," i.e., if the defendants signed it and did nothing, or made only desultory repairs. Without such a clause, he said, we could be substituting one piece of paper for another, and in the process lose our right to sue for recision. On the other hand, if they fixed the house properly, we would drop the lawsuit "without prejudice."
On May 26 the Settlement Agreement was mailed out. All the lawyers met again on June 3. The defendants refused to accept the Agreement! Their attorneys offered no explanation. There was no stated objection to any specific part of the Agreement; instead, they simply refused it. The trial was once again rescheduled, for October 11, 1988.
We began to despair of the legal system. Five pretrial hearings, a phony offer on the day of trial, seemingly endless delay and expenses. How can this happen? How is it that people obviously responsible for a home's defects can be allowed to jerk around the innocent, wronged homeowners? How can they be allowed to spend many thousands on legal fees instead of spending it to fix our house? We had (and have) no answers to these questions. It is the `legal system' and there's nothing plaintiffs can do about it. We just prayed for the ordeal to end. (By the summer of 1988 this legal cancer had invaded every part of our existence, affecting our relations with each other, and with our children, friends and relatives. At times the emotional strain was so incredible that, in hindsight, we feel fortunate to have kept our health and our sanity. We worked hard to continue living normally; these men destroyed our home but we wouldn't let them destroy our lives.)
Tom took advantage of the long delay to bring in another contractor for a more detailed repair estimate. To strengthen the case our lawyer wanted a detailed, line-item estimate that would be more defensible in court.
After six visits to the house during July and August, 1988, the new contractor arrived at a figure close to the first repair estimate: $92,000. His estimate included jacking up the house, adding new structural supports, leveling the floors, and waterproofing the basement, plus repairing all the interior damage that might result form this work.
Perhaps realizing his mistake in preparing for the first trial, Tom made some arrangements to limit his fees. For another $14,000, payable before the trial, everything else would be on contingency. Any money we received to fix the house or to sell it would be ours totally. His firm would receive 40% of any money we received for damages. Did he really expect to win damages against these men? We hoped so, and readily signed the contingency agreement. This arrangement at least fixed our legal and experts' expenses at around $55,000 to $60,000, no matter how long the trial took (appeals were not covered, however).
The trial began on October 11, 1988 and lasted five days, but spanned two weeks (there was a week's hiatus when the Judge had to go out of town for another case). In those five days we proved our case. In addition to our own testimony and mountains of written documents (including our letters and numerous photographs and drawings) we called four witnesses the consultant architect, structural engineer, consultant builder to present his estimate, and the real estate agent who tried to sell the house in November, 1987. They all gave effective testimony.
Tom tried to get testimony about the formal appraisal of our house entered into the record, but it was not allowed. The market value of the house was not considered legally relevant. The Judge also disallowed any testimony about legal fees, since without a provable case of fraud they were not recoverable.
The defense lawyers tried to discredit the testimony of our witnesses, but that was difficult in light of the facts. In the end the defense presented only one expert, the developer's engineer who had surveyed for sloping floors, and he mainly corroborated the defects. His testimony was used to minimize the amount of necessary repairs. For example, he did not think the floors would need as much attention to leveling after the jacking-up process as did our engineer.
When questioned about the problems on cross examination, Mr. Cooper's engineer said they were "not insurmountable." He also admitted that he would "not guarantee" the results of reconstruction.
The defendants did not have much to say for themselves. Nelson the architect admitted design errors and the builder admitted to construction mistakes (finally!). Cooper the developer said he had never responded to us because "other people" were taking care of the problems. He also denied threatening to withhold the deed if we didn't agree to pay more money (a lie), but did not explain why he demanded more money in the first place.
Cooper also testified that he called the builder every time he received one of our letters (another lie), and that he was "concerned" about our problems. Murdock testified that the developer called him only once. Their conflicting testimony did not seem to matter to the court. In fact nothing outside the demonstrable defects seemed legally relevant. (Immediately after his testimony Cooper asked for permission to fly to Italy for a "buying trip." It was inconceivable to us that someone being sued would fly out of the country in the middle of his trial. But Cooper didn't seem in the least concerned. Permission was granted and he flew to Italy after the second day of his trial).
Despite the mountain of evidence we presented, both to prove the house's defects and the defendants' culpability and bad faith, the law (or the Judge's interpretation of it) could not make us "whole," that is, restore our losses. Ohio laws -- as is true in every other state I have heard or read about -- do not, apparently, provide for restoring one's home to its proper value, reimbursing expenses, or compensating the victimized homeowner for lost time and aggravation. As a result, practically every attempt to introduce testimony about costs beyond simple repair of our house was objected to by the defendants' lawyers and sustained by the Judge.
On the last day of trial each defense lawyer gave his summary statement; each agreed to some defects in the house, but tried to minimize his client's role. The developer's lawyer laid the problems on the architect and builder. If his client was ordered to buy the house back it should be for no more than $307,350 (the basic contract price) since, he argued, "recision is supposed to return the parties to their state before the contract."
The architect's attorney said his client was only responsible for about $8,000, what it would cost to repair the design errors; however, he had offered no testimony on this point during the trial. The builder's insurance company lawyer said that our repair estimate was absurdly high. Although none of the three defense attorneys had offered any testimony in court about the cost of repairs, the builder's attorney blithely started subtracting items he thought were unnecessary, and in this manner ended up at "$25,000." (If that's all it cost, one wonders why the defendants never followed through on their offer to fix the house.)
Tom argued for one of two judgments: either the full amount for us to make the repairs (and move out during the process), or recision at the house's fair market price. Since the market value of the house wasn't allowed into testimony, our attorney instead asked for interest on the total purchase price of $350,000; interest on this amount approximated the appreciation our home should have realized from June 1986. For either decision our lawyer also argued that we were entitled to a monetary award to cover our experts' fees and an additional large award for the emotional suffering caused by the defendants' breach of contract.
The Judge listened patiently to all the arguments, then announced that his decision would take "at least a week."
The trial ended October 24. For the next five weeks we heard nothing. Then, on December 1 our lawyer called with the news. We won and we lost.
IN THE COURT OF COMMON PLEAS (Cuyahoga County)
CASE NO. 133316
FINDING OF THE COURT
"The evidence will show that the following list of problems must be corrected in order to place [our home] in the first quality condition required by the contract. The problems which must be corrected cannot possibly be characterized as anything other than material breaches. They are:
"To jack all rooms
To jack basement
To dig 2 footers for basement columns
To install footers around basement stairs
To install unsightly newell post in foyer or,
alternatively, to double header
To rip floors in second floor to double joists, or
alternatively, rip off walls to install plywood bracing
To remove and refloor laundry room
To pull out and build properly a significant portion of
the master bath
To pull out and reinstall dining room walls
To patch, sand, tape, spackle virtually every room in
the house resulting from jacking operation
To repaint all of the rooms
To apply leveling compound on floors that were not
leveled by jacking
"This list is incomplete. The record is replete from numerous experts concerning the various problems that could be sustained to try to restore this house to a "first class, quality structure."
"One should understand that even these experts, with all the remedies they discuss, "could not guarantee" a solution to the problem.
"If the best of all the remedies were completed, the plaintiff still, if they were to attempt to sell the house, would be buying (or selling) a lawsuit from the new purchasers.
"The time and cost to repair is enormous in light of the price paid and the guarantees made.
"The court orders rescission [legal term for buy-back] in the amount of $307,350 for the purchase price plus $42,218 for improvements for a total of $349,568."
In another section of the Judge's 12-page decision, he ordered the builder to pay $20,172, and the architect $18,718, directly to the developer for repairs. The total of $38,890 was far less than our experts had estimated, but it didn't matter to us since fixing the house was no longer our option. According to the Judge, if we made repairs and then tried to sell the house we would be incurring another lawsuit.
One reason the total awarded the developer was lower than our experts' estimates was that the Judge did not grant money to waterproof the basement; instead he stipulated that the "exterior of the basement walls and basement wall must be warranted by [the builder] to [the developer]." Another reason, presumably, is that the developer heads his own construction company, and could get the repairs done much cheaper than we would have to pay.
In his decision the Judge did not explain the discrepancy between our actual cost of $350,450 for the house and his recision price of $349,568. The only additional item we were awarded was moving expenses (to be collected from the builder and architect). The Judge also gave no reason for not granting us any of our experts' fees, even though he extensively used reports of these same experts to write his opinion. Nor was there any statement about entitlement to interest, appreciation, or an award for emotional damages. The way these men responded to our complaint and the way they treated us the architect inspecting our house during construction and missing all the defects; the developer ignoring all letters from us and from our attorneys; the architect telling us in writing that obviously sloping floors were an optical illusion; the failure of all three defendants to properly investigate our complaints; reneging on an offer to fix the house in May 1988, causing trial postponement; and their lack of any offer at any time to fix our house properly was all legally irrelevant.
In summary, despite the fact that every aspect of our house as anything other than shelter had been destroyed, despite the fact that we had to pay thousands to prove what they had done to our home, and despite the fact that the developer had guaranteed us a first class home and then refused to respond until sued despite all this, the Judge saw our case as only one of a 'breached contract.' As victims of a breached contract, he obviously felt we could not recover anything beyond what we spent on the defective house.
Motion for Amendment
Obviously this was an unfair decision. Not only were we out a huge amount of money despite winning our case, but the developer stood to make a second profit. He could fix the house and then sell it for well over $350,000. The estimated market value as of March 1989, if the house had been properly built, was between 450 and 475 thousand dollars. Considering the house's history he might not get that much, but any sale over $350,000 would represent a profit. Our loss would literally be his gain.
Had the government appropriated our property to build a highway, we would have been paid the appraised value of the house. Had our home burned to the ground the insurance company would have paid for its replacement at current market value. But this is not what happened. What happened was not an act of nature or a result of government policy. What happened was that incompetent and uncaring men, men who had made specific guarantees in writing, had built our home defectively and thereby destroyed its market value and, in addition, caused us to incur enormous added costs. For this act, for which responsibility was clear and direct, the law (or the Judge interpreting the law) did not recognize our home's replacement value or any of the costs we incurred to prove our case. Whatever the reasoning, the decision made no sense to us.
Actually, the Judge's decision was counter to the philosophy behind Ohio real estate law. ("The philosophy of the law is to place the aggrieved party in the same economic position he would have been in but for the breach of contract. If the party would have made profits off the contract, the profits are properly included. He should be compensated for any losses sustained. Some common compensatory damages seen in real estate actions are awards of the real estate commission, interest rate differences, points, additional moving costs, and additional rental costs." -- Ohio Real Estate Law, 3rd edition, CK Irvin and JD Irvin, Gorsuch Scarisbrick Publishers, Scottsdale, AZ, 1985.)
That the decision was against Ohio Law was also our attorney's assessment, and on December 9 Tom filed a Motion for Amendment of the decision. This Motion is not an appeal but only a request, in the form of a legal brief, for the Judge to reconsider certain aspects of the decision. Citing legal precedents in other cases, our lawyer asked the Judge to grant us 2 years' interest on the $349,568, plus our experts' fees and closing costs.
After receiving a counter brief from the Developer's attorney, and a rebuttle from our lawyer, on January 20, 1989 the Judge issued a one word response to our Motion: "Overruled."
Imagine that you have just discovered a major defect in your house and that, in consequence of your complaint, you are ordered by the court to sell your home for $100,000 less than it is worth. Imagine that the defect was manmade and no fault of your own. Add to this scenario $55,000 for expenses plus three years of unremitting aggravation. Finally, imagine there is nothing you can do about it without losing more money and incurring more aggravation. Now you have some idea of what happened to us.
A contractor could infer the following message from the outcome of our case: If he builds a defective home he can ignore the homeowners totally until a lawsuit is filed. He can ignore and deny everything as long as he shows up at trial. If he loses, the worst that can happen is that he'll have to buy the house back, but then only at the original price. He will not have to pay for any appreciation, or for the homeowners' legal or experts' fees. The longer he can delay the trial the more he'll gain as the property appreciates. In essence, selling a defective new home is a 'no-risk' situation; as long as property values appreciate, the contractor can be as incompetent and uncaring as he wishes, and he will still come out ahead. If justice is delayed long enough he can conceivably get the property back at just what the land is worth!
Based on what happened to us, the developer of defective homes in Ohio cannot lose. Only the homeowner can lose. We were out over $55,000 in expenses, at least $100,000 in lost appreciation, and another $6000 in closing costs.
(Every case is unique and one could argue that a judge acting fairly would have compensated us fairly; after all, we did prove both the defects and material breach of contract. True, but the result epitomizes a theme of this book, which is prevention. You don't ever want to trust your plight to the mercy of a judge or jury or arbitrator. They may view evidence one way on Monday and another on Thursday. One judge may allow unlimited delays while another judge moves your case swiftly along. Or one judge may keep valid testimony from being heard while another judge admits all arguments. And so on. The legal process is highly arbitrary, and heavily stacked against people seeking redress in a civil matter. In breach of contract cases, where the legal outcome is meaningless unless you recoup your monetary losses, the plaintiff can lose in many more ways than he can win.)
Despite our enormous losses and the peculiar and unfair logic exhibited by the Judge in our case, we decided not to appeal. In essence the Judge had ordered us to return something that only goes up in value (real estate in a prime location) in exchange for something that only goes down in value (a fixed sum of money). For this reason appeal was a no-win situation. Any further delay by appealing would mean just a greater loss when the time came to buy another house, plus the legal expense of appealing. Even if a higher court granted us interest on the $349,568, the dollar amount would not equal the rapid appreciation of homes in our area. We had no rational choice but to stem our losses and move out. We had built our dream home and, through no fault of our own, lost a fortune.
After all our petitions were exhausted in January 1989, we began to look for another home. We were shocked to see how much used houses had gone up since 1985. The good schools had attracted an influx of people and as a result old houses had jumped between 30% and 60% in four years! It was disheartening to see homes smaller than ours, on a less desirable lot, going for over $500,000.
We had no choice but to double our mortgage payments or accept a lesser home. Having lost a fortune we opted for the latter. In late February we bought a 20-year-old split level house for $340,000. In 1985, when we contracted for our custom-built disaster, this split level would have sold in the mid-$200,000 range.
We moved into our new home June 22, 1989. Although a nice house, in size and amenities it doesn't compare with what we had built. For almost the same price we ended up with a far smaller lot and garage, and without a first floor master bedroom, finished basement, or deck. Still, we have no complaints about this house except the $160,000 `extra' we spent getting here.
Lies and Deception
Half the truth is often a great lie.
-- Benjamin Franklin, Poor Richard's Almanack, 1758
Throughout the spring of 1989 there was no escaping the awful feeling of injustice. We were, in effect, ordered to move out of our new home at a $160,000 loss. Meanwhile, Cooper was preparing to take another profit on the dwelling. He had gained the upper hand by choosing to not respond, had in fact totally ignored us and our contract with a claim of "no responsibility." We could not (and still cannot) fathom how the law can penalize buyers of a defective home and, at the same time, reward a developer like Jake Cooper.
As you have seen, and as will again become apparent, the law is virtually toothless against dishonest developers like Jake Cooper. The decision had now put him in position to sell the house, without proper repairs, to some unsuspecting family at another profit. Would he dare? Yes, he would. Since inspections that lead to an occupancy permit ignore structural defects, he could also get away with it. Unless the authorities knew what had happened to us, Cooper could profit from selling a defective home twice.
Why did we care? Our losses were final, the case was over, nothing we said or did could reimburse us even partly. But reimbursement was no longer the point. We felt obligated to do something for the rights of homeowners, especially whoever might end up with our old house. The law may not be able to reach men like Cooper, but perhaps something else could: publicity.
On June 23, 1989 I sent a letter to the mayor and council members of the community, telling them what happened, why we had moved, and asking that they not let this sorry episode repeat itself. Also, to clarify any misunderstanding about our reasons for moving I sent a copy to friends living on the street.
My letter alone should have sufficed to ensure that Cooper properly repaired the house, but I realized other people needed to also know. After all, the community might claim it had no responsibility to inspect a used home, or that the legal judgment superseded any local responsibility for the house.
I also sent a copy of the letter and the Judge's written opinion to the Cleveland Plain Dealer and two suburban papers. The reaction was quicker than expected, almost immediate. Shortly after we moved out we were phoned by a widely-read columnist for the Plain Dealer, and also by reporters for the suburban weeklies. The PD's story is the one quoted at the beginning of this section. The column ends:
This column, plus a suburban newspaper story that appeared on July 6 ("Couple's dream house turns to horror story," Chagrin Valley Times), created intense publicity for awhile. In response, Cooper and Nelson (but not Murdock) held a news conference at our old house. Their comments were published in two long articles in the suburban weeklies (apparently no one from the Plain Dealer, Cleveland's daily newspaper, attended their conference).
At first we were surprised that Cooper would blab about the case, since he was proven in court to have breached his contract with us. But we were even more surprised that he would appear publicly with Nelson, the architect who was proven to have designed our house defectively.
It turns out Cooper was using Nelson to help make the repairs! As we read their comments, it became clearer just what type of people we had been up against. These men were egregious liars. The following quotes and comments from Architect Nelson appeared in news articles from the Chagrin Valley Times or the Chagrin Herald Sun, July 13, 1989.
"When I went over the plans with Mrs. Martin, she wanted a support column in the basement moved to open the area. It's a common request, but in removing the column, I failed to recalculate the loads (on the beam)."
Not only was this statement a lie, but Nelson had never used this excuse before, in any letter, in deposition, or in court. Now he was blaming me for his design inadequacy.
* (*These excerpts typify the kind of revisionist history and distortions of fact that homeowner victims commonly face when a case goes public. In Section 2 you will find similar excuses given by builders in other areas of the country, to explain away defective construction and unhappy homeowners.)
Nelson also said he offered to fix [his design] problem, which he estimated would have cost $3000 to $5000, but the Martins chose to take legal action.
Nelson's design defects were much more major than he was ever willing to fix. The Judge assessed them at over $18,000, a fact Mr. Nelson did not mention at his news conference.
Nelson did get one thing right, however:
"...the sloping floors, which were noticeable, were caused by flexed beams and basement columns set too low in the foundation, a construction error."
So Nelson blamed me for his design mistakes and lay the other structural problems on Murdock. Then, for the reporters, he tried to make it look like we wouldn't let him fix what was wrong with the house. How can you win against an architect who is not only incompetent, but who lies about his mistakes? You cannot.
And what did Jake Cooper claim? The following quotes are from the same July 13, 1989 articles that appeared in the Chagrin Valley Times and the Chagrin Herald Sun.
"I never heard from [the Martins]. They drew up the contract with me and passed all responsibility on to the builder and architect...And I responded to the builder when he gave me copies of their letters to him."
Despite having received a total of nine letters from us and our lawyers Cooper claimed he never heard from us. And the "builder...gave me copies of their letters"? ALL THE LETTERS WERE SENT DIRECTLY TO HIM!
Cooper also claimed that:
"Everybody wanted to do the right thing. But [the Martins] were encouraged by somebody that they could get $2 million, so they didn't let the builder complete the repairs to the house...That's why they brought all their experts in."
This comment, perhaps more than any other, shows the baseless character of the man we had done business with. But there were more lies from his twisted psyche.
Mr. Cooper said he did offer to settle out of court, contrary to the Martins' claim, and [Mr. Cooper] also claimed [the Martins] are the ones who reneged on an out-of-court settlement.
And quoting Cooper directly:
"The whole thing got blown out of proportion. I was not unhappy with the house. That's why I didn't appeal the case."
"I'll be lucky to get $375,000 for [the house]. You just don't get $400,000 on this block...I wish they would have stayed and let [the builder] fix their house."
Cooper was "not unhappy with the house" because he knew he had been handed a windfall by the court: the house and lot at 1985 prices (in a rising market) and money to make the repairs. In the aggregate, Cooper's and Nelson's comments showed that we didn't have a chance in hell of getting our house fixed properly during the litigation. Even after the trial and our experts' testimony and the Judge's written opinion, neither Cooper nor Nelson admitted to the defects or displayed any understanding of why we went to trial. Nor, of course, did they have the slightest remorse for what they had done to us.
According to our attorney, Cooper's lies and blatant distortion of our motives were not sufficient grounds to sue for slander. Still, I felt the need to set the record straight and countered with a letter to the editor pointing out Cooper's lies (published in the Chagrin Valley Times on August 17, 1989). Tom also sent a strong letter to Cooper's attorney, serving notice that his client should stop distorting the case or face a possible lawsuit.
The lies did not end there. Cooper proceeded to deceive prospective home buyers. On August 3, 1989 he put the house up for sale, advertising in the classifieds:
BY OWNER. VERY SPECIAL . . . 5 bedroom Contemporary. 2 Acre fully wooded lot on quiet cul-de-sac street . . . Ready now for occupancy. Low 400s.
This ad appeared well after Cooper publicly stated "you just don't get $400,000 on this street." Also, it is noteworthy that three different experts estimated it would take at least three months to fix our house properly. We moved out June 22 and Cooper's ad appeared less than six weeks later.
Cooper did not sell the house 'by owner' so he signed up with a large real estate company. Perhaps to explain how the house came to be vacant, he told people that we had moved out of town and so he bought the house back, as if he had done us a favor. Worse, he wrote a deceitful open letter to explain his position with the house, and copies were distributed by the real estate agent to people who came to look at the house. Calling us by name, this letter stated that we had a "personality conflict" with the builder and became unhappy with the house. The letter made no mention of the lawsuit, the trial, the structural defects, the judgment or his breach of contract. Cooper's letter was shown to prospective buyers throughout the summer and early fall of 1989. Our lawyer agreed that Cooper's outrageous and dishonest letter should not go unchallenged. On September 29, 1989 he sent a strongly worded letter to the president of the realty company, with a copy to the individual agents involved in marketing the house. Our lawyer's letter said, in effect, 'Mr. Cooper is lying and he better stop or you, the real estate company, could be sued.'
While all this was going on Cooper found a buyer, a couple with two kids moving from Florida to Cleveland. They were shown Cooper's deceptive letter. Cooper met with them. He led them to believe that he had bought the house back from us because we were "moving out of town." (In a metropolitan area of 456 square miles with a population of 1.5 million, we moved a distance of less than two miles, to an adjacent suburb within the same school district.)
Cooper didn't mention the lawsuit, the trial, the experts' reports, the newspaper publicity. He told them that only one area of the house was defective (the area under the mudroom floor, about 10% of what we proved in court), and that it had been fixed with some new posts. This out-of-town couple bid $368,000 for the house and it was accepted.
Then they found out we were still in town and called us. We told them the simple truth. The house had major defects. There was a lawsuit. A trial. A judgment. They got a copy of the judgment and were appalled, both by the judgment and by the disparity between the true story and what Cooper had led them to believe. Needless to say, they backed out of the deal.
After this couple backed out, Cooper's lawyer called them and asked repeatedly if they talked to us and what we said; he was obviously looking for some excuse to sue us. It probably never occurred to him that the deal fell through because Cooper had not properly fixed the house and had lied.
A similar scenario was repeated two more times over the next few weeks. People who had seen the house and been shown Cooper's letter (presumably before the end of September, 1989) called us. We heard the same story as with the first couple. The nature of the defects and the reason for Cooper owning a vacated house were misrepresented. Cooper said the defects were only minor, confined to one section of the house, and that everything had been fixed. No mention of the trial, the legal judgment, or the fact that all three levels of the house not just the basement area were proven in court to be structurally defective. On both occasions the interested party sought a copy of the judgment (a matter of public record), read the truth, and backed out.
After our lawyer's letter was mailed and the third potential buyer backed out, the selling strategy changed. In November 1989 the asking price was dropped to $369,000, and we heard no more about Cooper's lies or his outrageous letter. Presumably the letter was discarded in favor of a more honest approach.
In March 1990 Cooper finally sold the house. The buyers made no attempt to contact us. We do not know the selling price or special financing terms, if any, of the deal. Nor do we know if Cooper fixed the house properly before the new owners moved in. If he did, then they should have a lovely home.
In April 1990 we received an unexpected legal bill from Tom's firm for $1900. The document we had signed before the October 1988 trial put us on a contingency arrangement but also obligated us to pay expenses advanced by the law firm in preparation for the trial. The bill was for copying costs, computerized legal searches, and photographs used at trial.
We called Tom. "Why did you wait so long to bill us?"
"I never closed out your case. I just closed your file last week," Tom answered, adding: "Don't forget, you had forty-five thousand dollars in unbilled legal time. And you didn't get billed for the work I did after the title transferred, all the letters and everything else. I really can't do anything about the nineteen hundred dollars. I'm afraid you have to pay it."
If Tom's claim about the unbilled legal time was correct (and we have no reason to doubt it), the total cost to seek legal redress in a case of obvious and undisputed defective residential construction on a single-family home was $104,000, of which we paid out-of-pocket nearly $60,000. I will leave it to the reader to judge the sanity of our legal system.
Crooked House is Published
People could not believe our story. Mainly, they could not fathom that the law allows a dishonest developer to profit from selling a defective ouse twice. Nor, of course, did the outcome make any sense to us.
Make no mistake. The loss of our home and $160,000 because we did business with a sociopathic developer and his incompetent cronies hurt, and will continue to hurt to the end of our days. I hope my story and all the information that follows will help protect you and your family from similar pain.
One way we handled our sense of injustice was to write about it. At first I wrote letters to the newspapers and to the town's officials. Then I wrote a short article for Medical Economics, a magazine that publishes pieces by physicians on social and economic issues ("The Judge Called Our Dream House A Fiasco," Medical Economics, January 22, 1990). Many friends and acquaintances saw my article and liked it. Several said it was important that I warn others about the risks of buying or building a defective new house. Not a few suggested I use my training as a psychiatrist to warn others about dealing with "bad people."
My husband and I had long kept detailed notes about the case. In the beginning, of course, we never dreamed of writing a book. Our initial purpose was just to keep the facts straight. Having written all the letters and my published article, writing the book was a natural sequel. And They Built A Crooked House was published in the summer of 1991.
Crooked House was positively reviewed in several local and national publications. Below are portions of one review from OHIOANA, a statewide publication on books by Ohio authors. The headline was chosen by the reviewer.
In addition to the reviews, my husband and I were featured in stories that appeared in suburban dailies, and for a while there was intense publicity about the book. Because I changed all the names in the story except ours, including the name of the community, we didn't expect any repercussions from the three defendants. They had chosen to go to court in a public trial instead of fixing our house, and we had proved material breach of contract, so they could hardly complain about any publicity.
Our legal advice regarding publication was straightforward: because practically everything about the case was a matter of public record, writing about the events and even mentioning the defendants' real names was in no way libelous. Truth is an absolute defense against libel. However, our kids attend the same public school as the developer's grandchildren, and we had no wish to embarrass his innocent family (or, for that matter, the families of the other participants), so we changed the names.
We also realized that people outside our area wouldn't know Jake Cooper from Adam. While writing the book we heard or read about construction problems in other states, and it became apparent that our message was not limited to one slice of Ohio. We had something important to tell homebuyers all over the nation. In the forward to Crooked House I wrote: "The men who desecrated our house operate in one small area of one county of this huge country. This book is really for homeowners and homebuyers everywhere because the problem we experienced defective residential construction happens all over. Who the players were in our particular case is not nearly so important as understanding how this nightmare can happen and how to prevent it."