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LOSING EVERYTHING:

'AN ALL-AMERICAN HORROR STORY'

Junior and Cole sit with their grandchildren, Ricky and Kayla as

family members surround them in their Englewood back yard. From left,

, his wife Kathy, Patti and and their son . (STAFF

PHOTOS/BERT CASS)

Family sues builder; loses home

By Victor Hull

REGIONAL REPORTER

and Junior Cole thought the wavy roof of their new $98,000 dream home

was defective, so they sued their builder.

First, they lost the lawsuit.

Now, they're losing their home.

And not just their new home, but their old home -- a neighboring house now

occupied by their son and his wife. Nine adults and children, in all, will

be forced to move.

A judge has ordered the auction Thursday of the Coles' Englewood properties.

The reason: The builder is entitled to collect $143,489 in attorney fees,

interest and other costs from the Coles because they lost their suit.

The Coles have tried desperately to save their home. Last year, they filed

an action in Bankruptcy Court, but the move only delayed the auction. Now,

they may try to file again to buy some more time.

If the sale goes through, it will mark the end of a saga that began when

Cole fell in love with a builder's model home six years ago.

Just last December, the 73-year-old Cole said, she made the last payment on

the 6-year-old mortgage on her new home with the help of money she'd earned

cleaning houses and working in a nursing home.

``We thought we'd be here 'til we died,'' said Cole, a soft-spoken

woman from Alabama. ``We're just about dead now, it's been so rough on us.''

Her husband, Junior, is a 77-year-old disabled World War II veteran

described by the family as mentally unstable. Cole is bewildered by what's

happened.

But to the builder's lawyers, this is a clear-cut case of tough justice: The

Coles played legal hardball and lost; now they have to pay. Though they said

they personally like Cole, they blame her misfortune on bad advice

from her son, .

``This isn't newsworthy,'' said Port Charlotte attorney Lederer, who

represents the builder and calls the case ``The Nightmare on Elm Street,'' a

reference to the Coles' street address. ``They lost and refuse to pay. It's

not uncommon at all.

``These people wanted something for nothing.''

Added the Coles' builder, Larry LeBeau, ``We did not instigate this. If it

had been the other way around, they'd be wanting theirs, too.''

But others see the case differently. The attorney who represented the Coles

in bankruptcy called the situation ``outrageous.'' A retired building

inspector, who once examined their house and rated their roof the worst he'd

seen in 4,600 inspections, called it ``an All-American horror story.''

``I've never seen anything like it before,'' said Tampa bankruptcy lawyer Al

Gomez. ``You talk about a sad situation, this is it. They have a legal right

to do it. Is it morally right? That's a different question.''

Junior Cole, far right, and his family watch the rain from their lanai

recently. Their home, on Elm Street in Englewood, is to be auctioned off

Thursday to pay for attorney's fees.

'Cosmetic problems'

In the spring of 1992, Cole was an excited homebuyer. She had seen

Barlar Enterprises' three-bedroom, 2,000-square-foot White House model in

Port Charlotte, and told Junior she liked it. ``My husband said, `Let's get

it,' '' Cole said.

It would never be that simple again.

Construction began later that year. The Coles didn't like the look of the

trusses, saying they were weathered and warped.

When the roof was finished, it looked uneven. The Coles have pictures in

which the outline of the plywood roof decking appears visible beneath the

shingles.

They complained to LeBeau, who said he repeatedly tried to address their

complaints. Small sections of lumber, called ``scabs,'' were nailed to the

side of the trusses to level the roof. Additional nails were hammered in.

After the house was finished, in early 1993, the Coles had an engineer and a

certified building inspector examine the roof. Both listed several faults,

including ``undulations'' in the roof and several areas in which the plywood

deck was not touching the top of the trusses.

The engineer, Karl Kokomoor of Englewood, expressed concern about the roof's

integrity and said it might not hold together ``under the most stringent

design conditions.''

Jack W. Appleby, who owned a building inspection business in Venice at the

time, was more blunt. He concluded that the roof did not meet Sarasota

County's building code, even though it had passed official inspection. He

said he found nails driven through roof shingles, tar paper and plywood into

trusses to try to ``hold the curled plywood down.''

``This roof is unacceptable and will detract from the sale of the property

if such sale is necessary,'' Appleby wrote in a letter to the Coles'

attorney.

The Coles refused to release the final draw on their construction loan to

Barlar, and sued. Barlar countered, demanding the rest of the payment on the

house. The builder also pulled in the carpentry and roofing subcontractors,

and the truss manufacturer, as parties to the suit.

Mediation failed. The Coles say they turned down a $12,000 settlement offer

because they'd already spent that much in legal fees and rent while the

dispute went on, and faced the prospect of tearing off and replacing the

roof.

The trial lasted six days. LeBeau admitted there were visible variations in

the roof plane, but testified they were cosmetic.

``I see houses like that every day on my travel,'' he told the court.

LeBeau added that he had stopped trying to address the Coles' complaints

after receiving Appleby's report. LeBeau said, ``We tried to do everything

we could to correct what they wanted. It just got to be impossible.''

The builder argued that the appearance of the roof could be attributed to

lightweight shingles the Coles had requested, or to faulty installation by a

personal friend of Cole's, who had been asked to do the work. The

construction work, the builder noted, had been approved by Sarasota County

building inspectors.

In August 1995, Circuit Judge S. ruled there was ``clear and

convincing evidence'' that the construction ``met all industry standards''

and complied with the building code. Barlar had ``corrected all purported

deficiencies brought to their attention.''

ordered the Coles to pay the rest of the construction loan, plus

interest, or a total of $30,522.82.

No compromise

The Coles considered an appeal, but backed down because of the cost. They

said they got the bank check for the final loan payment of about $23,800,

then scraped together the money for interest and other items from their own

funds.

In their mind, the case was over.

``We thought it was clear,'' Cole said.

But it wasn't. Within weeks, Barlar's attorney, Lederer, filed a claim

against the Coles to recover his fees and his client's other expenses. The

subcontractors whom Barlar had brought into the suit sued the builder to

recover their fees. Barlar, in turn, asked the court to force the Coles to

pay those third-party costs.

The argument dragged on for months. Finally, in August 1997, ruled

that the Coles were liable for a total of $98,721 in attorney fees and

interest, and ordered their property sold to recover the money.

The sale was to include, not only the home that Barlar built, but another

behind it -- a house that the Coles had bought after moving to Englewood in

1980. Junior and had turned that home over to and their

daughter-in-law, Kathy, in 1995 after moving into their new home. The

younger Coles said they have spent several thousand dollars to remodel.

The Coles argued that they weren't liable for the attorney's fees because

they had paid off the original court judgment. But concluded that it

was the bank that had satisfied the judgment, not the Coles.

The Coles' decision to withhold part of their loan payment to Barlar turned

out to have been a crucial error. It enabled the builder to argue that the

dispute was a contract issue. That voided the couple's protection, under

Florida's homestead law, from having their property seized for most types of

debts. One attorney involved in the case called the move ``pretty good

lawyering.''

In desperation, the Coles turned to the U.S. Bankruptcy Court. They wiped

out their debt -- including the debt to the Venice lawyer who represented

them in the lawsuit -- but the case was then returned to state court, which,

last month, rescheduled the auction. In the meantime, the legal fees

mounted.

Ironically, while the lawyers in the case say the issues were ``hotly

contested,'' Barlar's lawyers say it's fair for the Coles to lose their home

because they pursued their case so vigorously.

``It's unfortunate when people will not compromise,'' said North Port

attorney Grissinger, who also represents Barlar. ``They went to the

mat, made an extremely expensive lawsuit. Unfortunately, if you're

uncompromising, intransigent and you're wrong, a hard result can happen.

There's an old saying: `You made your bed, you've got to sleep in it.' ''

While the builder's lawyers express sympathy for the Coles, the sympathy

only goes so far. During the litigation, Junior Cole threatened to kill

LeBeau and Lederer, court records show, prompting a court-ordered

psychiatric evaluation.

Lederer now accuses the family of trying to hide its assets. He contends the

Coles didn't want to pay for their house, ``so they sued their contractor.''

If anyone's to blame, he said, it's Cole. Lederer said Cole

gave his parents bad advice.

``Everyone felt sorry'' for the Coles, Lederer said. ``They're in their 70s.

We offered money to make them happy. Do I think they were properly advised

by attorneys? Yes. Were they properly advised by their son? No. They seem to

be decent enough people who have been manipulated by their son.

``We're not ogres throwing old people out of their home. I wouldn't be a

party to that, nor would my client.''

LeBeau is a victim, too, Grissinger said. He had to spend a substantial

amount of time and money fighting a baseless lawsuit, the lawyer asserted.

``It's certainly been as painful for him as anything he'd had in his life,''

Grissinger said. ``He has a good business, a good reputation, and came upon

the customer from hell.''

Gurley, a Sarasota lawyer who represented the carpentry

subcontractors, termed the lawsuit's outcome ``absolutely fair.''

``They had their day in court and lost,'' he said. ``If you go to sue

someone and you lose, you ought to pay. That's the way it goes.

``This case didn't turn out good for anybody. They thought they had a real

problem and they didn't.''

Indeed, Lederer said, it's important to note that the Coles' roof, after all

this time, doesn't leak. But there are still gaps, visible from the attic,

in some places where the plywood deck does not meet the top of a truss,

leaving a gap the width of a finger.

Gomez, the Tampa bankruptcy lawyer, said he finds it unbelievable that the

Coles could lose their home because they pursued a complaint against a

builder.

``I think it's crazy,'' he said. ``Personally, I think it's outrageous.''

Appleby, the house inspector, has retired and sold his business. He said the

Coles' case is one of the reasons he got out.

``There's no reason in the world they shouldn't have won,'' he said. ``It's

an All-American horror story that should never have happened. It was an

absolute crime as far as I'm concerned.''

The Coles are prepared for the worst, even as they grasp for legal maneuvers

to save their homes. Their belongings are packed. The living room is mostly

bare; sleeping bags serve as temporary beds. If they're forced out, the Cole

clan -- Junior, , their nephew, his wife and child and Kathy,

and their two children -- will move to a two-bedroom house in Port

Charlotte.

Cole is worried about the fruit trees she planted.

``Orange and lemon, and they're just now beginning to bear,'' she said.

``Now, we won't get no good out of them.''

Victor Hull can be reached at 957-5234 or vhull@....

Story Filed By The HERALD TRIBUNE, SARASOTA, FLORIDA

NYT-07-14-98 2357EDT