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Family imprisoned in a home of horrors

It’s cold, it’s unsafe, and it’s falling down around their ears, but Southborough couple’s dream house is just about all they have left

By David Abel
Globe Staff / April 1, 2011

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SOUTHBOROUGH — The columns upholding the portico have fallen, and the slate stones on the porch are sinking. Caution tape blocks the front door.

In the basement, mold corrodes sheetrock, and long cracks sear the concrete foundation. Gaps in the walls from the uneven construction let insects, mice, and birds slip in and leave cobwebs, droppings, and nests.

From a distance, the lemon-colored clapboard house on Lovers Lane looks like a picture of the American dream, which is what the four-bedroom, three-car garage home symbolized for Kathryn and Christian Culley when they moved into the newly built home five years ago.

Since then, it has become the symbol of something very different: a colossal money pit.

The couple, who invested their life savings in the million-dollar home, have spent hundreds of thousands of additional dollars seeking help from engineers, contractors, and lawyers. They now have so little left that they cannot afford to heat the 3,500-square-foot home, which the state Department of Public Safety has found to be unsafe to inhabit.

“We’re completely marooned in the house,’’ said Kathryn Culley, 48, a mother of two teenage boys, who stays warm by wearing her winter jacket inside, covering all the windows in plastic, and using space heaters. “We can’t afford to leave, and we can’t afford to fix it. We never thought we would have found ourselves in this kind of situation.’’

What has made the Culleys’ plight more difficult is that last summer, after a monthlong trial in Middlesex Superior Court in which they sued their contractor, broker, and seven others, the presiding judge made the rare decision to overrule the verdict of a jury that awarded the couple nearly $1.1 million, or the value of the home.

Judge Thomas R. Murtagh ruled that the damages the jury awarded to the Culleys were excessive. The judge said the couple could accept a reduced award of about one-tenth of what the jury said the couple should receive or they could choose to have a new trial about the damages.

“The court concludes that the verdict goes against the weight of the evidence and was likely due to misapprehension, confusion, or passion,’’ the judge wrote in his decision in December.

The result has insulted jurors and left the couple in a kind of legal limbo. The Culleys feel that it is unfair to accept the relatively small award of $140,000, saying that their house would be next to impossible to sell and that the judge’s award would not come close to covering the repairs. They say they do not have enough money for a new trial. Moreover, the judge has yet to enter his order as a final judgment, making it impossible for the couple to appeal, without choosing between what they consider to be unacceptable choices.

Michael McLaughlin, their Boston-based lawyer, has accused the judge of being biased in favor of the defendants and urged Murtagh to recuse himself. He contends Murtagh, who was appointed in 2004 by former Governor Mitt Romney, committed judicial misconduct by failing to disclose that he sat on the board of the Greater Boston YMCA and was a member of the Andover Country Club. .

In February, McLaughlin filed a petition to the Supreme Judicial Court, asking the justices to remove Murtagh from the case. He noted that the law firm representing one of the defendants, Johnson & Borenstein in Andover, had represented the Greater Boston YMCA and the Andover Country Club. The petition was denied by Justice Margot Botsford, so McLaughlin appealed to all the justices, who have yet to rule on the matter.

“The appearance of impropriety is blatantly apparent,’’ McLaughlin said. “My question is what would cause a judge to refuse to recuse himself and let another judge look at that? The trial is done. We’re not appealing the jury’s decision. In the face of this blatant impropriety, why would this judge not recuse himself?’’

The judge did not return calls for comment.

Mark B. Johnson, a partner of the Andover firm that represented the builders of the Culley’s house, said it was absurd to suggest Murtagh was biased, adding that the judge did not grant motions to completely dismiss the jury’s verdict.

“We have absolutely no relationship with the judge,’’ he said.

In a letter to Massachusetts Lawyers Weekly, which first reported the Culleys’ story, Christopher Maffucci, a Boston lawyer who represented the broker and real estate company, called McLaughlin’s assertions of judicial bias unsubstantiated, the other firm’s ties to the judge attenuated, and described the judge as a “well-respected jurist . . . universally regarded as fair, patient, and respectful of litigants.’’

He said Johnson’s firm’s representation of the YMCA and the country club “hardly suggest any impropriety, and they do not even approach a level that would require the judge to recuse himself.’’

Maffucci added: “The judge had little choice but to set aside the $1 million damages award, because the plaintiffs and their counsel failed to introduce expert testimony establishing either the value of the allegedly defective property or the cost of repairing it.’’

But jurors who spent a month poring over the evidence, as well as visiting the Culleys’ home, said they were shocked the judge overturned their verdict.

Nicole Jordan, the forewoman of the jury and a senior engineer at Raytheon Co., said the jury was composed of an MIT professor, a doctor, a psychologist, and other highly educated people and that they all felt comfortable with their verdict, which she said had found for the Culleys on all 17 questions at issue.

“It’s just disappointing that after we spent all that time the judge would say we based our decision on emotion,’’ she said. “The guilt was clear, and the Culleys were definitely shafted. They’re stuck with a house that can’t be sold. I feel badly for them, but that’s not how we made the decision. We looked at the facts. It was proven that the house was not properly built.’’

As the Culleys consider their next steps, they know they are taking risks living in a house where cracks snake along nearly all the walls and in the roof, the fill their house is set on is sinking, and a retaining wall holding it all together is crumbling in parts. The columns supporting the house in the basement have been deemed inadequate by town inspectors, their garage was built improperly so that it can’t fit three cars, and the sprawling deck off their kitchen is rickety and unsafe to use.

Other problems include a bowing roof, warping floors, a basement that floods when it rains, cracks in window frames, and doors not closing properly.

McLaughlin has advised against a new trial, because it may result in a substantially reduced award, and he refuses to accept the judge’s decision, which he says would make it impossible to appeal.

“We don’t know what to do and don’t understand what more we can prove,’’ said Kathryn Culley, who said she and her husband now have hundreds of thousands of dollars of debt and that their credit score is so low they can’t get another loan. “At this point, it’s just the lack of hope that’s killing me.’’

David Abel can be reached at dabel@globe.com.