Southborough couple have a $1 million money pit
Ever since they moved into the house at 22A Lovers Lane in 2005, Kathryn and Christian Culley say their long-awaited "dream home" has been nothing but a nightmare. The garage was too small to fit their car. Weeks later, water began flooding the basement. Over time, doors couldn't be shut, and floors started creaking. The Culleys didn't know it, but their house was shifting... During the course of the legal proceedings, builder Gary Cato lost his license, as did two engineers, John Greendale and Carlos Ferreira, who both admitted to stamping plans improperly. After a monthlong trial, a jury awarded the Culleys $1.1 million in damages, an amount that was to be tripled automatically because of the fraud and building code violations... A year later, though, the Culleys haven't seen a cent. They are still looking for resolution.  That's because Middlesex Superior Court Judge Thomas Murtagh threw out the jury's verdict, saying it went "against the weight of the evidence and was likely due to misapprehension, confusion or passion."

Southborough couple have a $1 million money pit

By Brad Petrishen/Daily News staff

The MetroWest Daily News

SOUTHBOROUGH — Ever since they moved into the house at 22A Lovers Lane in 2005, Kathryn and Christian Culley say their long-awaited "dream home" has been nothing but a nightmare.

The garage was too small to fit their car. Weeks later, water began flooding the basement. Over time, doors couldn't be shut, and floors started creaking. The Culleys didn't know it, but their house was shifting.

      
     Photos by Ken McGagh
      Christian and Kathryn Culley of 22 Lovers Lane in Southborough stand
      in front of their front door which they can't use because the steps are
      crumbling and portico above is buckling.

Now the couple and their lawyer, Michael McLaughlin of Boston, say the house was built illegally on top of poor-quality fill material, and because the soil is shifting unpredictably, the structure is sinking into itself. To make matters worse, a retaining wall they say used to run in a straight line along the rear of the property is failing, slithering across the edges in serpentine fashion.

A Middlesex Superior Court jury ruled last summer that the 3,500-square-foot, $1.1 million home the Culleys bought in 2004 was built shoddily, and those who built and sold it to them had committed fraud.

During the course of the legal proceedings, builder Gary Cato lost his license, as did two engineers, John Greendale and Carlos Ferreira, who both admitted to stamping plans improperly. After a monthlong trial, a jury awarded the Culleys $1.1 million in damages, an amount that was to be tripled automatically because of the fraud and building code violations.

A year later, though, the Culleys haven't seen a cent. They are still looking for resolution.

That's because Middlesex Superior Court Judge Thomas Murtagh threw out the jury's verdict, saying it went "against the weight of the evidence and was likely due to misapprehension, confusion or passion."

Stuck in a home that creaks and cracks, the couple says the government has failed them at both the local and state levels.

The Culleys say they did everything right - from requiring that an architect design the plans to going through a reputable real estate agent in Re/Max.

After agreeing on an offer to purchase, Cato, who told them he owned the land, didn't start building the home for six months. The Culleys say they were told Cato was going through the usual lengthy permitting process.

What the Culleys say they didn't know was that Cato was in bed with the real estate agent - literally - and that the two were trying to secure an order of conditions from the Conservation Commission in order to build on the land.

McLaughlin said Cato and the real estate agent, Paula Spinazola of Southborough, confirmed in court that they were domestic partners. He said the two have lived together for more than 20 years and built 17 houses together.

"We gave them a $50,000 deposit to build the house, and they didn't even own the land yet," Kathryn Culley said. "They were lying from the beginning."

A jury agreed, finding that the Culleys relied on false statements by Cato that the home had been designed by an architect when they decided to buy it. In fact, a designer had made plans for the building, but McLaughlin, the couple's attorney, said those plans weren't detailed building plans and weren't tailored to the site.

"There were never any building plans. Ever," said McLaughlin, who argued at trial that plans found in the building file had been inserted when the Culleys began asking questions.

Unaware of latent defects in the home that resulted from 22 building code violations later found by the state Department of Public Safety's Board of Building Regulations and Standards, the Culleys closed on the home. They say they never would have been able to close, however, if it wasn't for a fraudulently obtained temporary certificate of occupancy.

Just before the closing, Peter Johnson, the town's building inspector at the time, said he wouldn't sign the temporary certificate without a statement from an engineer saying the home was properly constructed, McLaughlin said.

That certificate was supplied the day before the closing by Greendale, a Holliston engineer who admitted in court that he stamped the certificate without ever doing any engineering work in exchange for $100, McLaughlin said.

Greendale voluntarily forfeited his license, and testified during the trial on behalf of the Culleys. Cato was stripped of his contractor supervisor license permanently in 2007 for the building violations.

Ferreira, a Southborough resident and engineer, lost his license for five years in 2009 after he admitted that he prepared, stamped and signed plans for the retaining wall without visiting the site, analyzing soil conditions or reviewing construction plans.

Cato never applied for a building permit for the retaining wall.

When asked whether that may have been an oversight during a June 2008 deposition, Building Inspector Johnson said, "If you read the building code very carefully, I probably should be getting more building permits for those. None was obtained. If it had a permit, some attention would be paid to the backfilling."

In his deposition, Johnson admitted that he allowed construction of the home to continue after he discovered Cato had not applied for a building permit after receiving an initial foundation permit.

When asked why he didn't issue a cease and desist order, Johnson replied, "Because I thought - I was busy. I didn't see that it would solve a problem. I probably should have, but I didn't, and I had the understanding that I would be able to inspect it after I issued the permit when the framing was still available to look at."

Johnson also admitted he was never given any detailed building design data, despite explicit language in the building permit that requires such data. Instead, he used Greendale's certification as justification for the temporary certificate of occupancy.

Although the Culleys did not sue Johnson, they say they can't understand why he let Cato build for so long without a permit, especially since they say he was regularly inspecting a house being built down the road during the same time period.

"An intelligent person would have to ask why somebody in his position would look the other way for so long," Christian Culley said.

Johnson, who retired in February 2009 and moved to New York, declined a request for comment.

After years of pretrial motions, the Culleys got their day in court in June 2010. After a monthlong trial, 12 jurors unanimously found for the Culleys on all 17 counts.

But Murtagh overruled the jury, saying the Culleys failed to prove damages because they didn't present the cost of repair.

McLaughlin said he didn't present such information for two reasons. First, engineers testified it would cost $150,000 just to get a quote for repairs. Second, the purchase price was established in court as the measure of damages.

Invalidating a jury verdict is rare and shocking, McLaughlin said. After looking into Murtagh's background, McLaughlin filed a notice demanding Murtagh recuse himself from the case. He claims that Murtagh should have disclosed that Johnson & Borenstein, lawyers for the builders, had in the past represented the Andover Country Club, of which McLaughlin says Murtagh is a member.

Additionally, McLaughlin said Johnson & Borenstein successfully defended the Greater Boston YMCA in a 2006 land court dispute at a time in which Murtagh was on the Greater Boston YMCA's board of directors.

McLaughlin said the relationship constitutes the "appearance of impropriety," which he said is all that's necessary to require a judge to recuse himself.

Mark Johnson, of Johnson & Borenstein, disputes McLaughlin's claim.

"Neither my firm nor anyone in my firm has had any relationship with Judge Murtagh outside of court proceedings," he wrote in an email to the Daily News.

When faced with the allegations in open court, Murtagh said the information about the YMCA was available in his "profile" and that the ethics filings are "a different kettle of fish."

"I answered those questions as I thought I should answer those questions," he said.

McLaughlin said he hasn't figured out what profile Murtagh is referencing. Murtagh's judicial profile on the Massachusetts Court System website does not include any information other than his mailing address.

Murtagh has not recused himself from the Culley case and has not entered his final judgment, leaving the Culleys with the option to accept $140,000 in reduced damages or to start a new trial on the issue of damages.

The Culleys, who say they have racked up close to $900,000 in attorney fees since 2004, say they can't afford spending any more time or money on the trial.

They also can't afford to repair and correct the 22 building code violations, and they worry the home could come crumbling down on them at some point.

"This thing's going to fall down," McLaughlin said. "It's just a matter of time."

The couple's fate now rests with the Supreme Judicial Court, which is considering McLaughlin's argument against Murtagh.

Murtagh did not return a request for comment. State Trial Court spokeswoman Joan Kenney said judges are barred form commenting on active cases.

Kathryn Culley said she can't understand why, if the judge truly is impartial, he wouldn't step aside and allow his decision to be validated by someone else.

"We're praying for the SJC to just do the right thing, and just give us a new judge to interpret the jury's decision," she said. "We've been failed at every point - the inspector, the permitting process, the real estate agent, the courts - every single thing that's supposed to protect a consumer when they buy a property.

"Somebody could have stopped this along the way," she added. "But it never happened."

(Brad Petrishen can be reached at 508-490-7463 or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it )

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