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Demolished E’town residence deemed unsafe, unfit by jury

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Panel finds city acted reasonably in tearing down home

By Marty Finley

A 12-member jury ruled Thursday that Elizabethtown acted reasonably in tearing down a home on Pear Orchard Road three years ago, but it still may be liable to compensate owner Cecil Cundiff for the value of property lost in the demolition.

Eleven of 12 jurors found the home at 1514 Pear Orchard Road was an unsafe structure or was unfit for human habitation. The circuit court jury also found it was either unreasonable to repair the home or normal construction had ceased for two years of more. The home was razed in May 2011.

Cundiff had purchased the home and undertaken a massive remodeling project on his own after relocating it. Attorneys for the city argued Cundiff let the home sit in disrepair for six years without making any improvements.

The decision did not require unanimity, according to instructions issued by Judge Kelly Mark Easton.

Jurors also were instructed to provide a fair market value for the home and the personal property lost in the demolition, which was set at roughly $17,000. Cundiff was present Thursday during closing arguments, but did not appear in court for the verdict.

City Attorney D. Dee Shaw said the city potentially could be liable to pay that amount to Cundiff, but the final judgment rests with Easton, who may find the city does not owe the amount because of the jury’s findings.

Easton instructed attorneys for both sides to submit a simultaneous post-trial brief for his review within two weeks before he issues a judgment.

Ben Humphries, co-counsel for Cundiff, said he was disappointed with the verdict, but took comfort in knowing it’s an advisory verdict and not final.

“We’re hoping the judge will be able to provide a remedy for him, and we’re sure he will,” he said.

Dwight Preston, chief counsel for Cundiff, argued fair compensation for the home would be $39,000, which he said was half of the $78,000 appraised value. Cundiff jointly owned the home with his son, Chad, who previously settled with the city in a separate case involving the same property, according to attorneys for both sides.

Preston pushed for a little more than $12,000 for personal property Cundiff lost inside and outside of the home. Preston claimed in his closing statement that property outside the home was taken without permission during the demolition and the property inside was needlessly destroyed because the city was unwilling to relocate it.

Jason Bell, counsel for the city, said officials gave Cundiff ample notice to remove the personal property and had no legal obligation to move it, saying the city is not in the business of moving residents.

Bell also countered that the property was placed inside the home illegally because Cundiff was required to have an occupancy permit before moving items in and had not done so.

During his argument, Preston said the city issued a number of red herrings during the trial to distract the jury from the fact it could not adequately prove the home was unsafe, unfit for habitation or teetering on the edge of full or partial collapse.

Preston said the city and Cundiff both made “rookie” mistakes because the city never ad torn down a home involuntarily while Cundiff never had taken on a remodeling job so large.

He admitted Cundiff probably took on more than he could handle, but he was pursuing a lifelong dream — one which, he said, was devastated by “Hurricane Elizabethtown.”

If the city was intent on tearing the home down, he said, officials should have ordered it closed, boarded it up and issued a lien so they could have pursued ownership. Instead, Preston said, it took a more troubling route by tearing down a man’s home without his permission.

Preston argued the notion that the home was uninhabitable was “silly” because it had no occupants to endanger. There also was no one from the public in danger because it was private property. Had someone been injured in the home, he said, they would have done so committing the crime of trespassing.

Preston also said a structural engineer was hired, who analyzed the home and did not find any immediate danger of collapse.

Bell said Cundiff was issued repeated warnings to fix up the home or risk its demolition. Preston earlier said Cundiff was caught in a Catch-22 because the city would tell him to resume construction then later order him to stay away.

Cundiff has said he received no formal letters or notices from the city regarding hearings or formal action. Bell reminded the jury Cundiff had responded to some of those notices and documented evidence that Cundiff attended meetings of which he claimed no knowledge.

In summary, Bell said, Cundiff did not want to follow the rules and did not want to be punished when he violated numerous codes, including the state’s residential code and the property maintenance code followed by the city.

“Mr. Cundiff stonewalled the city,” he said.

Bell said the city is lawfully obligated to act in the best interests of the public under the property maintenance code if a property is deemed unfit or unsafe. He said certified inspectors who entered the home found numerous violations, including openings that exposed the interior to the elements, structural deficiencies and wet, damaged electrical wiring.

Bell said it would have been disastrous if a child had stumbled upon the property and been injured or killed by a collapse.

Defense attorneys hoped the older age of the jurors may have benefited the elderly Cundiff as the average age of the jury pool was 64.

After the verdict, Shaw said the jury was attentive and patient with what turned out to be a complex, three-day proceeding.

“All in all, it was a very fair decision by the jury,” she said.

Marty Finley can be reached at 270-505-1762 or mfinley@thenewsenterprise.com.