Lawsuit over faulty construction to go to trial on May 30
By Barbara Arntsen
Published in News on February 18, 2005 2:06 PM
It took two years, and an appeal to the State Court of Appeals, but a Wayne County woman who says she was not treated fairly by the company that built her home will soon get her day in court.
On Thursday, lawyers and court officials tentatively agreed to try Lisa Daniel's case against builder Jeff Moore on May 30.
In the original case, Superior Court Judge Jerry Braswell declined to order the enforcement of a mediated decision between the parties. That ruling has been reversed by the state Court of Appeals.
The Daniels hired Moore to build their home on Mt. Carmel Church Road in 1999. After the house was completed, the couple found problems with the construction and complained to the state.
An inspector for the North Carolina Contractor's Board found that the house was out-of-square, that there were framing code violations in the attic, and that there were other building code 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 Consultants, said it found the same code violations as the state inspector as well as additional violations.
The couple then sued Moore. They also sued the Wayne County Inspections Department, saying negligent inspection practices allowed the faulty construction to occur.
The couple also filed complaints with the state licensing board against Moore and Wayne County building inspector Joe Nassef. In April 2001, the board found that the actions of Moore exhibited incompetence and constituted gross negligence and misconduct. His license was revoked for two years.
Though the state board found code violations it believed Nassef should have discovered during the inspection process, no action was taken against the inspector. The board believed the county's inspection sequence created the problems and said it couldn't hold Nassef personally responsible for following departmental procedures.
Jimmy Lloyd Wade, then the county's chief building inspector, told the board the inspection sequence would be changed.
The county added a flooring inspection as a result of the Daniels' lawsuit.
After mediation, the county paid the couple close to $95,000 but did not admit negligent inspection practices. The Daniels used the $95,000 to pay off the mortgage on the house they couldn't live in.
Moore agreed in mediation to pay to fix the house, but he later balked when he received the estimates, which ranged from $81,000 to $140,000.
The case went to court in September 2002 before Judge 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 Daniels were not present in the courtroom, but were out in the courthouse hallway, unaware of what was going on in the courtroom.
The judgment gave Moore ownership of the Daniels' house, but said Moore had to pay the couple $41,144.
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, the Daniels fired Ms. Rhodes as their lawyer.
But Ms. Rhodes signed the consent judgment anyway, on Oct. 9, 2002.
The Daniels moved 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 apply.
The appellate court ordered the consent agreement removed from the record, saying that the Daniels withdrew their consent to the judgment before it was signed.
"Without his client's consent, an attorney has no inherent authority to enter into a settlement agreement that is binding on his client," the court wrote.
During Thursday's proceedings, Moore's attorney, David Rouse, told Superior Court Judge Paul Jones that his client had been charged with trespassing in 2002 because of a complaint from Ms. Daniel.
Rouse said that Moore had gone into the house on Mt. Carmel Church Road because Judge Braswell's ruling had given him the right to the house. Although the trespassing charges were dismissed, Rouse said that the charge caused his client damages and he said he plans to file a supplemental counterclaim for malicious prosecution.
Randolph James, the lawyer for Ms. Daniel, said that Rouse wasn't following proper court procedures. James said that Rouse should file the amended pleading, instead of asking the judge permission ahead of time.
The case originally got off track, James said, because the proper rules and court procedures were not followed.
Jones agreed with James, saying Rouse could file the amended pleading if he desired, but that the issue before the court was to schedule a trial.