We were very confidant when, on October 5, 1993, the jury trial against Terminix and the realtors commenced in Sutter County Superior Court before a visiting judge, Roy L. Norman.  We knew that since this was a civil suit, we didn’t need to prove our case beyond a reasonable doubt; we only needed a “preponderance” of evidence.  We knew we had enough evidence to prove our case “beyond a reasonable doubt” and our expert witnesses were extremely credible, experienced, and unimpeachable.  Our confidence, unfortunately, was short lived.

After the jury selection, our attorney informed us that the judge had issued a pretrial ruling that punitive damages would not be allowed.  (A year after the trial, when our attorney relinquished all the documentation pertaining to our case, I found a document submitted to the court by David Tennant, Terminix’s attorney, that indicated our attorney had failed to appear at the pretrial hearing held on the defenses' motion regarding punitive damages.  If our attorney had failed to appear, the judge would have granted the motion solely because it was uncontested.)

Our attorney informed us that the judge also issued pretrial rulings that he would not allow the issue of square footage misrepresentation; and that because our real estate appraiser expert witness, Frank LaBella, did not have his written appraisal with him at his deposition (news to us), he could not testify as our real estate appraiser expert witness, and his appraisal could not be admitted as evidence.

Why didn’t Mr. LaBella have his appraisal with him when he was deposed?  In May 1992 when we retained our attorney to represent us, he told us he would select our expert witnesses.  It wasn’t until August 1993, the he informed us he needed $1,000 to retain Frank LaBella as our real estate appraiser expert witness; and at that time, I gave him a check for $1,000 made out to Frank LaBella.

Mr. LaBella and his daughter, Gina, inspected the house in August; and he was deposed in late September.  Mr. LaBella testified at the trial that in addition to being a real estate broker who owns his own real estate company, he is also an attorney and has testified as an expert witness in several cases.   If it was essential for Mr. LaBella to have his written appraisal with him at the time of his deposition, wouldn’t he know that and have it with him?

The court was going to be relocated to a new building and would not be in session for a couple of days.  Our attorney argued the importance of Mr. LaBella's testimony and offered to redepose Mr. LaBella during court downtime at our expense.  Judge Norman denied the motion.  This ruling prevented us from introducing proof we paid more for the property than it was worth, which was essential to prevail.  Our attorney filed a motion for a mistrial.  It was denied.

Terminix never denied that the damages existed when they issued their clear pest inspection report. Their defense consisted of preventing evidence and testimony from being admitted into court.

The real estate agents/brokers never denied that there were multiple damages they had failed to disclose.  Their defense consisted of false, unsubstantiated contentions; questionable documents, including a document that disappeared after they verified a test of the document would prove when it was written; witnesses that deliberately lied on the witness stand; and preventing evidence and testimony from being admitted into court.

While presenting our case, our attorney called the seller's agent/broker, Betty Palacio, to the stand.  Even though the judge had issued a pretrial ruling that he would not allow the issue of misrepresentation of the square footage, our attorney repeatedly attempted to question Mrs. Palacio about the square footage.  The judge issued a sanctions ruling against our attorney, and he was not allowed to even say the words "square footage."  Mrs. Palacio was dismissed from the witness stand.

After several arguments regarding the judge's decision not to allow the issue of misrepresentation of the square footage, the judge finally ruled that he would allow it; and he reversed his sanctions ruling.  Our attorney informed us he would pursue the issue when the defense called Mrs. Palacio back to the stand while presenting their case.  The defense did not call her back to the stand.

Our attorney called "our" agent/broker, Bonnie McConnell, to the stand.  What was surprising and annoying is that when he asked a question that seemed to “rattle” her, he changed the subject and failed to pursue the issue.

One of the many false contentions Ms. McConnell testified to was that we were looking for a "fixer-upper"; however, we had written offers we had made on two other houses -- one made before our offer on this house and one made after our first offer on this house was not accepted -- that would have proven we were not looking for a fixer-upper.  The judge would not allow the written offers admitted as evidence, ruling they were "irrelevant."

If we were looking for a “fixer-upper” as the defense falsely claimed, why did we look at a house that wasn’t advertised as a “fixer- upper”; why wasn’t even one of the multiple damages and defects disclosed; why did both real estate agents deny knowing the house had even one damage or defect; why did the Condition of Property clause in the Real Estate Purchase Contract warrant that all appliances, plumbing, electrical, etc. were in working condition and that the roof did not leak; why did the “Buyer Walk-Through Inspection clause in the Real Estate Purchase Contract state we would be able to have a walk-through inspection prior to close of escrow to determine all items in the “Condition of Property’ clause were as promised; and why did she refuse us the walk-through inspection?

Our attorney didn't ask those questions; and during a recess when we asked why, he stated that he would ask those questions when the defense presented their case and called her back to the stand.  We told him they had no reason to call her back to the stand.  She was not called back to the stand.