Court overturns judge; couple can sue over house
By Barbara Arntsen
Published in News on June 30, 2004 2:01 PM
A Wayne County couple will get another chance to sue a local contractor and the county's building inspector over construction problems with their home.
The North Carolina Court of Appeals vacated a decision made in October 2002 by Judge Jerry Braswell of Wayne County. The decision allows the contractor to move the home, and overturned Braswell's January 2003 decision denying Lisa and Paul Daniel a new trial.
The Daniels hired Jeff Moore to build their home on Mt. Carmel Church Road in 1999. After the house was completed, the couple found numerous problems with the construction and complained to the state.
The North Carolina Contractor's Board sent an agent in the fall of 1999 to investigate the Daniels' complaints. The agent found that the house was out-of-square, there were framing code violations in the attic, and he also found other violations under the house.
The state inspector advised the Daniels to hire an engineer to determine the extent of the problems.
The engineering firm, R.V. Buric Construction Consult-ants Inc., said it found the same code violations as the state inspector as well as additional violations.
The couple then sued Moore, and they also sued the Wayne County Inspections Depart-ment, charging negligent inspection practices that allowed the faulty construction to occur.
After mediation, the county paid the couple close to $95,000, but did not admit to negligent inspection practices.
Moore agreed in mediation to pay to fix the house, but he later balked when he received the estimates. The estimates ranged from $81,000 to $140,000.
The case went to court in September 2002 before Judge Jerry Braswell. The judge declined to enforce the mediated agreement.
Before beginning the trial, Braswell held a lengthy pretrial conference in his chamber with LeeAnn M. Rhodes, the Daniels' lawyer, and negotiated a consent order to settle the suit. The Daniels weren't present at the pretrial conference.
After the conference, Braswell announced in open court that the lawyers had settled the case.
The judgment gave Moore ownership of the Daniels' house, but said Moore had to pay the couple $41,144. Moore would have to remove the house from the Daniels' property at his own expense and would pay the money owed to the couple after the house was sold.
The judge arrived at the $41,144 figure by first subtracting the county's settlement of $94,600 from the $112,000 the Daniels had paid Moore.
The difference was $17,400. Braswell then added $6,334 for engineering fees, $5,000 for 10 months worth of rental payments for the Daniels and $10,235 toward rebuilding the footing for the home.
He also ordered Moore to pay $975 for cleanup.
After Braswell stated the terms of the settlement, he requested that the lawyers prepare a written consent judgment.
Four days later, Lisa Daniel sent Ms. Rhodes a brief communication via e-mail and fax, telling her that she did not consent to the Sept. 9 order by Braswell.
Two weeks later, on Sept. 24, the Daniels fired Ms. Rhodes as their lawyer.
But Ms. Rhodes signed the consent judgment anyway, on Oct. 9, 2002.
The Daniels immediately filed a motion for a new trial or to amend the judgment, alleging that the trial judge's biased conduct during the pretrial conference denied them their right to a trial. They also said that they did not consent to the proposed settlement, and that the judgment contained vague and uncertain terms, making it impossible to carry out.
The appellate court ordered the consent agreement removed from the record, saying that the Daniels withdrew their consent to the judgment prior to the time it was signed.
"We hold that the trial court abused its discretion in denying plaintiffs' motion for a new trial," the court said.
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