And They Built A Crooked House, by Ruth S. Martin

CHAPTER 29.

Decision: The Most Unfair Civil Court Decision in the History of Cleveland


The carpenter should measure for 'level'
-- the architect should design for 'level.'
From the Judge's written Opinion
For several weeks after the trial ended there was no word from the Judge. Larry called Melissa on Monday, November 7. What's happening? Nothing, she said. She and Tom had talked briefly with the Judge while arguing another case in his courtroom. He acknowledged our case but gave no clue as to when his decision would be ready. Is this unusual, to take so long for a decision? Melissa was also surprised by the Judge's delay, though she knew of "really unreasonable delays" with other judges. She expected we would hear soon, but did not guess when.

Another week went by and still no response. We placed another call to Tom on November 16th. Yes, he agreed, this is unusual. He offered two possible explanations. Perhaps there is a delay in the Justice Center's typing pool. Or perhaps the Judge is having difficulty with the tort argument, and is waiting on the decision from another case in progress. Extreme delay was not unheard of, but was also not typical of this judge. Tom really didn't know what was taking so long, but would call us as soon as he heard anything. "You'll be the second to know," he said.

We had suffered delay after delay, but this was one we never expected. We had always thought that you have a trial and then a decision. Either the Judge was stymied by the complexities of the case and was doing his best to render a fair decision, or he was just procrastinating. Either way there was nothing we could do but wait. Tom finally called on December 1, 38 days after the trial ended. "I just received the Judge's decision," he said. "It's a partial victory." Just what we were afraid of.


* * *



IN THE COURT OF COMMON PLEAS
CASE NO. 133316
FINDING OF THE COURT
RESCISSION [legal term for recision]

The testimony of the defendants' experts, at best, state that the problems on this house are "not insurmountable" and that even after literally "picking up" nearly every wall in the house that they could "...not guarantee they could fix it..." 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 in the amount of $307,350 for the purchase price plus $42,218 for improvements for a total of $349,568. The Court orders that plaintiff submit a warranty deed to Defendant Jacob Cooper for the premises in question here. The Court orders that Defendant Jacob Cooper and Cooper Construction Builders & Developers refund the plaintiff $349,568 as rescission for the material breach of the contract between the parties.


THE CROSS CLAIMS
The court agrees that the cross-claims by Cooper have merit...


At this point the Judge wrote several detailed pages outlining exactly how much Nelson and Murdock must pay Cooper for specific repairs in each room of the house. Some examples are given below (capitals and underlining are exactly as in the Judge's written opinion), followed by the specific court order. Exhibit 52 refers to the detailed report of needed repairs prepared by contractor A. Barry Marshall; his report was based on analyses by consulting structural engineer Charles Banks and consulting architect Sam Russell. All three men gave testimony on our behalf.

RECREATION ROOM - The Court finds that both the defendants (Murdock and Nelson & Packard) contributed to the defects...The Court finds, therefore, that both the defendants owe Defendant Cooper $4,653.00.

MUD ROOM AND CLOSET - The Court finds the problems as shown in Exhibit 52 are reasonable and are construction defects and the Court finds Cooper against Murdock in the amount of $935.00.

THE TOILET ROOM is another construction defect rampant with poor workmanship. Finding for Defendant Cooper against Defendant Murdock in the amount of $585.00.

THE MASTER BEDROOM CLOSET - The court finds this to be a construction defect along with a design defect. Defendant Murdock should have been more cautious throughout the entire project, because the design defect threw much of the building out of "kilter." For the closet the Court finds for Defendant Cooper against Defendants Murdock and Nelson & Packard for $300.00.

THE LIVING ROOM - The problems delineated in Exhibit 52 are created by both construction and design defect because of the underdesigning for bending movement and inadequacy for deflection, which also should have been measured by the contractor. The Court finds for the Defendant Cooper against Defendants Murdock & Packard in the amount of $598.00.

FOYER AND CLOSET - For the same reasons as stated in the living room the Court finds both Nelson & Packard and Murdock in the amount of $4,575.00 as delineated in Exhibit 52.

FAMILY ROOM - Insufficient support beneath family room is a design defect. The Court finds for Defendant Cooper against Defendant Nelson & Packard for $2,753.00 pursuant to Exhibit 52.

SOUTH BATH INCLUDING TUB ROOM - A construction and design defect. Poor support combined with shoddy workmanship...$1,128.00.

NORTH CORNER BEDROOM AND CLOSET - A construction and design defect. The leveling of the floors [is] primarily of a design defect but, as in other areas, a failure of the construction end of this fiasco...contributed to the problem...$740.00.

HALL BATH - Poor support, construction, planning and design again make this a construction and design defect...$1,180.00.

STAIRS TO SECOND 2nd [floor] - A design defect, pursuant to Exhibit 52. Inadequate joists and inadequate design beams for support. The Court finds for Defendant Cooper against Defendants Nelson & Packard in the amount of $2,063.00.

TOILET ROOM - This continuance of the perpetuation of "Murphy's Law"is well manifested in the toilet (room). The carpenter should measure for "level"-- the architect should design for "level"...$436.

...The Court further finds that the exterior of the basement wall must be warranted by Murdock, Inc. to Cooper, or Cooper's heirs, assigns or designees. The court further orders that both Defendants Murdock and Nelson & Packard pay all moving costs of plaintiffs.

ORDER

The Court orders the plaintiffs to submit a general warranty deed to Defendant Cooper for the property in question. The Court orders the Defendant Cooper to remit to plaintiffs the amount of $349,568 and enters judgment for that amount. The Court orders the Defendant Murdock, Inc. to pay the Defendant Cooper the amount of $20,172 and enters judgment for that amount. The court orders the Defendant Nelson & Packard, Inc. to pay the Defendant Cooper the amount of $18,718 and enters judgment for that amount.

-- continued --