Introduction
Note: This was a very hard essay to write.
First, I can be successfully sued if I accuse someone of a crime. However, I can write about a series of events in a truthful way that point to a potential crime and let the reader figure out if a crime was committed. You, the reader, get to play detective, over and over.
Second, one of the players has recently passed away of natural causes. He was a Colorado Springs Police Officer. By law, the truth is not a defense for defamatory comments against the dead. The purpose of this is to effect change. Since the officer’s actions were endorsed by the CS Police while he was alive, I am not writing about him as much as whether the CS Police policies and procedures serve the public.
Third, my attorney did me no favors when he decided not to tell the jury that the lawsuit was about whether the Defendant had created a proprietary information fraud scheme and only gave them some of the evidence we had that should have proved that. Before the trial, he told me he was going to use a subtle strategy and let the jury figure it out for themselves. There are subtle arguments and there are invisible arguments supported by invisible evidence that is never presented. We presented an invisible case, and I have no idea why, though I suspect it was exhaustion.
Part 1
In 1998, my wife and I selected a builder for our custom home. I told him that I wanted to learn from the process and become a builder myself. We agreed on plans. He got the house to framing and stopped work and, six weeks later, abandoned the project. I finished the house, found a number of building errors, fixed them and sued him to recover damages for what I thought were errors.
He answered the lawsuit with a forged contract (neither he nor his lawyer contested our assertion at trial that the contract in the answer did not bear our signatures; he admitted in deposition that our contract version did have his signature) and the claim that he had always feared I would steal his proprietary information.
The contract we signed was printed on a dot matrix printer and had no proprietary notice. The contract filed with the lawsuit was printed with a laser printer and had a proprietary notice at the bottom of each page. I found a similar, but not identical forgery in my bank records dating from the period when the house was being built. It was my opinion that while the forged contract in the answer might have been a misguided attempt to change the outcome of a lawsuit, the two year old forgery in the bank records suggested that I was very likely the victim of a proprietary information scam that was being put in place before ground was broken.
I deduced that the scam anticipated that it would be difficult for me to get a building license by just watching the process and that the builder would have to leave the project so that I would finish it and fix any errors he had left. Once I had a license and began building houses, he would claim that I was using his sub list and spreadsheet, both of which he was claiming as proprietary. The paperwork made it appear that I was involved in selecting the subs for my own home, which was not true. He was in a position to claim that any sub I used was one he had told me he would be using.
I reexamined all of my interactions with the builder and discovered that every one could be made to fit into the framework of a scam:
1) Dual contracts with the forgery having a proprietary notice. At deposition the builder admitted that he had never before claimed that his information was proprietary. He signed a contract with another client a week after we signed ours and that contract had no proprietary notice. That house was built simultaneously with ours and the owner was never told that the builder considered his information proprietary.
2) Building Permit: When the builder drew our building permit, he listed me as the owner. His normal procedure on all but two other homes was to list his company as the owner. By listing me, he made it easy for me to cancel his permit when he quit the project. This out of character action strongly suggests that he never intended to complete the house.
3) Introduced Errors in Plans, so that they could be “fixed.” Our house was to have casement windows throughout. The plan he prepared for the architectural control committee in May, 1998 showed casement windows throughout. Two weeks later, he submitted plans to Regional Building that had a 2 foot wide by 5 foot high sliding glass window in the laundry room. Two weeks after that, he prepared a “revision” that showed a casement window but didn’t give it to me or tell me it existed. In 2007, a copy of these plans surfaced in the ACC lawyer’s files when the ACC discharged their lawyer. I gave my attorney two copies of that copy. When he didn’t have them available for trial, I suspected that they disappeared from his files and asked him to look for them. To date, he has not found them.
4) Tap Fee Attempted Fraud: Told us he had no funds to pay the $7,000 tap fee and asked us to front the money. At the first draw, he attempted to collect the money again with a line on the draw that said the money would go to his company. When I objected he said: Write me a check and I will write you one back. I circled the number, wrote the amount I was writing the check for on the draw and gave him back my signed copy.
5) Front Deck and Stairs: The front door sill was built 9 feet above ground level, but the elevation plans submitted to Regional Building and given to us showed a walk up with no need for stairs and an existing ground level near the door sill. Because they also showed every other door sill in the house below ground level, I told him to raise the house four feet. At trial, he said he had raised the house only two feet, meaning that he knew before ground breaking that the front door would need a deck and stairs but prepared deceptive plans. If he could force me to design a set of stairs, get them engineered and permitted, I would have more credibility when I applied for a building license. A review of the permits drawn on every other house he built showed no after construction deck permits, a fact which tags this as another out of character action suggesting a fraud scheme.
6) Elevation Plans Secret Modification: Even though the elevation page showing the soil level was a part of the Regional Building public record, the builder had a new elevation plan page prepared that was identical to the one he had given to Regional Building two weeks earlier except that it eliminated the existing soil level line. This modification lacked a revision number and revision date and he never told us it existed. We didn’t discover this modification until the end of the first day of trial when the Defense attorney’s line of questioning alerted us that he was going to claim that the house was raised solely to improve the view and thus it was our fault that the house needed a deck and stairs. The preparation of this page suggests that the builder expected and contemplated a future legal action before ground was broken AND that he contemplated burglary as a means of substituting that page in my records. He couldn’t very well walk up to me and say “please give me back the elevation page and take this one instead.”
7) Large Pieces of concrete waste in backfill: There was no place on our lot to store excavation dirt. It was supposed to be hauled away when the foundation was dug, stored offsite, and hauled back. Also, the lot was not flat enough to allow concrete waste to puddle, so none was generated there. After the builder left the project, I discovered that his excavation sub had hauled in about 20 large pieces of concrete and placed them in the fill where the piers for the front steps would have to be located and where I would be certain to find them. Two other areas of fill that were later excavated for electrical and plumbing service did not have large pieces of concrete in them. The builder claimed at trial that he planned to build concrete steps. That claim would do away with the need for a deck and the need to excavate where the fill was located. It wasn’t possible because the cement foundation was five feet short of the front door. Dirt piled against the house to reach the door sill would be piled against framing, not concrete.
8) Base Plumbing: One drain was stubbed centered on a door, two other drains were stubbed within 18 inches of each other, not useful as they were for a toilet and a bathtub. The water intake pipe was never found and the sewer pipe was cut off 18 inches inside the foundation. What made the sewer and water curious was that the plumber was inspected three times before it passed, suggesting that after it passed, it was sabotaged. At trial, the builder claimed the plumbing inspector called to tell him that the plumbing was stubbed inside the foundation, something he had never mentioned at the time he was on the project, or during discovery/deposition.
9) Fired (?) Plumber: At trial, the builder claimed he had fired the plumber, but that plumber was working on another of the builder’s jobs within two weeks, according to inspection records. At the time of construction, the builder claimed, after showing me a blood trail, that the plumber had cut his thumb, was disabled, and left the project. If the water and sewer really were sabotaged by the builder, as seems likely given all of the other events, it would have been inconvenient for the plumber who passed the inspection to finish the project and correct the “errors.” By claiming that the plumber was disabled, he precluded that.
10) HVAC rough in: The master bedroom cold air return was not hooked to the system. Just before leaving the project, the builder had his framer frame around the ductwork to conceal that fact. Also, while the HVAC bid and plans called for the cold air returns to be installed near the floor, where cold air is found, they were installed in the ceiling.
11) Attempts to get fired: The builder eventually quit the job, but made several attempts to get fired. He arranged to be caught in a lie. He cut branches off of a neighbor’s trees, He attempted twice to get me to plug a neighbor’s drain. He became uncooperative and unavailable. He installed a double hung window in the laundry room. He brought the project to a virtual standstill for six weeks.
12) Double Hung Window: While his various plans called for a casement window and a sliding glass window in the laundry room (see #3 above), he framed the window for a double hung window and installed it without my knowledge or permission. At trial, he seemed to be claiming that he was merely selling us a window for $490 that he bought for $150. During deposition he claimed that I didn’t know what a double hung window was, was too dense to understand, approved its installation, and even assisted in the installation. The reason for the radical change in story: My previous tract house had been upgraded with double hung windows five years earlier and we had included a photo of an open double hung window from that house in the exhibits.
13) Framing: Failure to follow nailing schedule. Installation of two eleven foot window headers that were three inches too short to pass the framing inspection. The framer turned out to have been put into business by the builder and had a loan guaranteed by him. If the framing was sabotaged, and it might have been because the framer didn’t want to return to the project after the builder left, the sabotage wasn’t as obvious as with other trades. Also suggesting sabotage was the fact that he went six weeks without getting or attempting to get a framing inspection while he was in stall mode (see below)
14) Proprietary Information: Beginning with the second draw, the builder started marking his spreadsheets with a proprietary information notice. Prior to that, he hadn’t mentioned the words. He claimed that he had had problems with another builder and that his lawyer had told him to start marking his paperwork as proprietary. At deposition the builder couldn’t name either the builder or the lawyer.
15) Stall Mode (Building Code Class): There is some evidence that the builder didn’t get bids from subs for anything past framing and HVAC. I had an opportunity to take a building code class with the Regional Building Officer that started right after framing ended and ended one day before the builder began taking steps to abandon the project, six weeks later. The project came to a virtual stop during that period. When the builder was forced on short notice to dry in the house by the banker, the roofer appears to have got the builder to pay a 50% premium over what the builder told me it would cost.
16) Stall Mode (Plumber): Over a six week period, the builder claimed not to be able to find a plumber to do the rough-in before he announced he was quitting. He claimed to have contacted 16 plumbers without finding one who would do the job. At his first partial deposition, he couldn’t name a single plumber he had contacted, claiming he had gone down the phone book at random. This despite the fact that he had claimed in a letter at the time he was quitting that he had found a plumber but told him not to start work as a way of punishing me. Three years later, he provided the names of two that he claimed to have contacted. He never seems to have considered bringing the original plumber back who was, at the time, working on another of his projects, but he couldn’t, because he was “injured.”
17) Trying to induce me to use his subs: The builder told me on three occasions that he was quitting the business in March of the following year. He was simultaneously recruiting a client whose house wouldn’t be finished until the following August. His framer, who owed him money, told me that the builder was quitting in March and he didn’t know what he would be doing. I did fall for the latter line, and wrote a letter in September that the builder held until November and then used as an excuse to quit (See 15 above).
18) At the time he quit, he wrote a letter announcing that his spreadsheets, subs, and contract were proprietary information. He wanted $15,000 each if I used them and 2% per month in interest starting three days after first use.
19) Concealing the names of subs: While I would know the names of the subs who had done work, I didn’t know the names of any after that point. If the builder had given me the names of the subs that he wanted to claim as proprietary, it would have been easy to avoid them. There were literally hundreds of subs in Colorado Springs and all compete against each other. The builder’s contract strongly suggested I would know the names of all of the subs he planned to use. That wasn’t reality. If, as I suspected, the builder hadn’t even gotten bids after framing and HVAC, he could claim that any sub I used was one he planned to use and I would have no mechanism to disprove him. One of the benefits of filing the lawsuit was to force him to name the subs who had supposedly bid on the house. While that information should have been in the lawsuit answer, and was asked for over and over again in discovery over the years, I didn’t get any company names until nine years after the event and though we had asked for names, and had a right to names, we never got them. By that time it was years too late to bother to ask any of them if they had bid on the contract and there were a lot of reasons not to trust the builder’s paperwork.
You now have the case that should have been presented to the jury, but was not. Some of it was presented, but as random bits of information, never tied together or tied to the word “scam.” I was told to answer the question as to why I surrendered my building license immediately after the lawsuit answer with the observation that when I saw a contract I hadn’t signed in the answer to the lawsuit I didn’t know what might else be out there. That was the biggest understatement of my life.
That statement was as close as the jury came to being told the story in a way that might have caused them to act in a way that was more than a very mild slap on the hand.
Part of the reason that the whole story couldn’t be laid out to the jury was that to do so would be to invite the testimony from the grave of a Colorado Springs Police Officer who was convinced, and wrote in his police report, after no investigation beyond a single phone call to a now disbarred lawyer, that I was a self admitted paranoid, and the real life testimony of another officer who determined, from his armchair, that my subsequent report wasn’t credible.
In their minds, it wasn’t possible that a builder might be using burglary to modify my records or be using burglary as a form of intimidation, and they couldn’t motivate themselves to do any kind of credible investigation. In fairness to them, they knew nothing of the 19 items above.
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