Judge James Hunter of Gallatin General Sessions Court dismissed the civil action of breach of contract before a second witness was ever called against defendant Stonemark Homes on September 28, 2006.
The Plaintiff, Jack Driver & Sons, is a residential builder local to Hendersonville, Tennessee. He alleged that the builder who sold a residential home lot to him, Stonemark Homes, knowingly showed negligent mispresentation and intentional misrepresentation. In Docket #147—7-21, the amount asked for by the Plaintiff was under $15, 000.
Jack Driver’s attorney, Marshall T. Cook, of Bone McAllester Norton PLLC, showed in his opening statements why his client believed Stonemark Homes to be guilty. He told the story of how Mr. Driver had purchased the lot for his son to build a home on and how the eventual disclosure of the condition of the lot was exposed and extraordinary expenses were incurred. According to attorney Cook, there were descriptions of unusual amounts of buried debris, “up to ten feet in some cases. “
Trent Lehman, attorney for the defendant, Stonemark Homes, stated that “no other agreements or representation” were in place in regards to the residential lot in question. He gave the dates of what construction was done on the lot since it was purchased by the plaintiff.
“July 25th, pulled permits, February of 2006, home was completed, and May of 2006, an underground pool was installed.” Mr. Lehman also argued that Mr. Driver had never called any problems to the attention of Stonemark Homes. Problems were “never brought up to the defendant.” He also argued that Mr. Driver brought the property “as is” according to the contract.
The first witness called by the Plaintiff’s attorney was Jack B. Driver. He identified himself as a residential home builder with 34 years of experience. He described what was discovered when he first walked the lot.
“There was a lot of construction debris on the lot.” He quickly saw there was previously attempted construction on the lot.
“There was an electrical temporary hooked up. There was also a footing dish, L-shaped about 50-75 foot long.” He was also asked to describe what type of debris was found in the building process as the site was excavated. He instructed that normal size rock or sheet rock in the soil is common but not buried rock. “We were pulling out boulders the size of a pick- up.” He also described other unusual debris found such as “55-gallon drums, water pipe. “ At that point, he contacted Stonemark Homes and had a conversation about the debris removal. He indicated the surface debris was removed by Stonemark Homes.
There was a series of small pictures of the construction site submitted by the plaintiff which were labeled “Collective Exhibit One.” Jack Davis told the courtroom that the normal cost to prepare a site for building in comparison to what he paid. It is approximately “$4600. $26, 000 was the actual.”
In the cross examination of Mr. Davis, Attorney Lehman pointed out for verification that “Stonemark Homes was not the developer.” Stonemark Homes sold the property to but did not develop the land. He asked if the plaintiff had proof that any extraordinary or unusual conditions existed on the property. Mr. Davis attempted to argue that he had a conversation with a Stonemark representative that showed proof. Attorney Lehman informed the court that the unnamed person in question was no longer an employee of Stonemark nor was he at the time of the alleged conversation.
When Judge Hunter asked the defense to call the next witness, Mr. Lehman made a motion to dismiss the case because “awareness of the condition of the lot was not proven.” Judge Hunter granted the motion to dismiss on the grounds that there was “no evidence that Stonemark knew of conditions on lot.”
When I asked Attorney Lehman how his client felt about the resolution of the case, he said, “We won so the client was happy. This is a good example of when the court system works.” The plaintiff’s attorney, Marshall T. Cook, told this reporter, “We are checking into the possibility of appeal but are trying to see if we are able to locate a witness who can provide critical testimony. We were not able to locate him for yesterday.”