This is the opening statement of our attorney Henry J. Leader, Esq.
at our original case for shoddy construction against Mr. O’Neill.
We feel that he did an excellent job of communicating such a
complicated story, and apparently the Jury agreed. They gave us
EVERY SINGLE point in their verdict.

All right. Mr. Leader.
MR. LEADER: Thank you, Your Honor.

Good afternoon. I represent Pat and Fred Biggs. They live in the Town of Pierrepont on Waterman Hill. They originally came from New Jersey; and they lived in Potsdam, New York; and they had an idea that they would like to build their own home. They had a dream home. Because of their past experiences they wanted to do it right. They believed that if they could get an architect to help them that not only would it be done the way they wanted it to be done, but it would also save them money; so they had an architect draw some plans up for them. They also had a friend; and his name is James O’Neill, who is seated in between those two, fine attorneys over there. Mr. O’Neill was known to Mr. Biggs because Mr. Biggs did his bookkeeping for him. Mr. Biggs is not a certified accountant, but he is a bookkeeper; and he does have accounting experience; but, more importantly, Mr. and Mrs. Biggs and Mr. O’Neill were friends; and on or about September 10, 1997, those friends sat down at a kitchen table in Mr. O’Neill’s house. After three hours of discussion they came to an agreement whereby Mr. O’Neill would build at least part of Mr. and Mrs. Biggs’ dream home. The result of that, on January of 1998 was the nightmare on Waterman Hill. I believe the testimony will show that there was approximately 14 code violations, 12 safety and health concerns, 40 incidents of defective workmanship, substandard workmanship, 18 concerns with the building’s integrity, 18 deviations from their architectural drawings. In approximately March of 1995 Mr. and Mrs. Biggs purchased property on Waterman Hill in the town of Pierrepont.

The testimony that I expect you to hear will be that they contacted an architect named Brooks Washburn to have drawn for them a set of plans for their house. Mr. Washburn prepared a preliminary set of plans. Thereafter he prepared a final set of the architectural plans in approximately June of 1997, that summer. The plans were very detailed. The plans were for a full house, basement, first story level, second story, third story level. The Biggs have four children, three daughters and they have a son here today watching. They wanted a full house, but as it turns out they couldn’t afford to build a house that they wanted, not all at once; so they did it as they could. One of the things that was happening at that time was they were trying to sell their house in Potsdam. They had believed that they may have a sale; and when they were discussing doing the work with their friend, Mr. O’Neill, Mr. O’Neill began doing site work, for which he was paid. Unfortunately, the sale fell through; and Mr. Biggs called Mr. O’Neill, “Stop, stop work right now.” Okay, the work was stopped.

Within ten days, or two weeks later, Mr. and Mrs. Biggs did sell their house; and, in fact, they were going to get $80,000.00 for that sale; and Mr. O’Neill heard that they started talking again about doing these plans, building this house. I mentioned the date of September 10, 1997. Basically, Mr. O’Neill had been sending sheets and prices and numbers to Mr. and Mrs. Biggs; so Mr. and Mrs. Biggs, Mr. O’Neill sat down, got out the plans at the kitchen table, got all the sheets that Mr. O’Neill had sent; and they said, “This is what we can do. This is what we can build. We can’t build a whole house. I can do a basement, we can live in the basement, our kids and us. Build a shell, build a roof for us, the walls, the foundation, just the outside of the shell.” It wasn’t going to have fancy siding, plywood; but it was going to be watertight, was going to be protected against the elements, was going to have some windows, at least in the basement; and eventually when they had the money they were going to finish the house. Meanwhile, another thing of interest is that Mr. and Mrs. Biggs had no place to live; but that was not a problem because their friend said, “For the six to eight weeks this is going to take to do this, you can live at my house. I am alone. You can live at my house.” I will come back to that. One issue that — and it is not a complicated matter. One issue that you’re going to see is, who did the work. My client says one person was responsible for the work, and that was Mr. O’Neill. You’re going to hear testimony of James O’Neill, who is a contractor. The testimony that James O’Neill, doing business as O’Neill Construction Company — and I apologize. I don’t mean to bore you or insult anyone’s intelligence, but d/b/a stands for “doing business as”. If I decide I want to do business I am going to file a form downstairs in the St. Lawrence County Clerk’s Office entering doing business as an attorney, whatever. I can do that. I can just name it. James A. O’Neill did that in approximately August of 1991. He had filed a doing business certificate as Construction Management Services, and Construction Management Services is important because not only was he doing business by himself as O’Neill Construction Company, Construction Management Services, but thereafter he incorporates. This time he is doing business as Augustine, Inc.

How does he do that? Well, you’ll hear testimony that he had his bookkeeper type up a form and give it back to him about the paperwork, I guess, you have to file with the federal and state government. You have to do that. Mr. Biggs did that. Thereafter Augustine, Inc., files its own d/b/a, which surprise, surprise is also Construction Management Services; so we got four or five different entities that Mr. O’Neill was using doing construction. You’re going to hear a lot of testimony about that from him. The bottom line is that there is no one that knew better than Mr. Biggs, the bookkeeper for Mr. O’Neill, or Mr. O’Neill, d/b/a Construction for C.W. Augustine, who Mr. and Mrs. Biggs were dealing with. The bottom line is that they were dealing with their friend, James O’Neill, to build this house. You will see no evidence of a bill, a quote, no letterhead showing a corporation. Yes, a corporation was good for liability purposes, but that is an issue that you will hear. Regarding the evidence you will hear, the testimony will be that Mr. O’Neill has 23 years of building experience. He advertises that. He tells his friends that, and the house is going to be built for a lump sum. You will see a document, maybe foolish, hopefully not The document is going to be a written thing, lots of handwriting on it by Mr. Biggs and Mr. O’Neill with a little tape along the side; and what it says is “Mr. O’Neill is going to build this for me. We’re going to pay Mr. O’Neill $79,993.00.” That number represents the original money Mr. and Mrs. Biggs had. They were on a tight budget. When they sold their house they had about $80,000.00. That’s all they had. They said, “Jim, this is the money we have, What can you do?’ Jim said, “For that money, this is what we can do;” and that is what happened on september 10 at the kitchen table, and that’s what was suppose to happen. If it had happened, we would not be here.

Now, there is a couple of definitions that you may already know; and I may actually get embarrassed because I intend to call Mr. Brooks Washburn as the architect and engineer. However, one is AlA. That definition means American Institute of Architects. Brooks Washburn, AlA. Another definition is TJI. TJI, as far as I can tell the testimony will be that a TJI is a truss joist I beam. Probably someone here on this jury may know what that means. What I understand it to mean is something that can go a long– you have a long span so you don’t need a lot of beams. You can have wide, open spaces in your house because of this TJI. Mr. and Mrs. Biggs knew what they wanted. They wanted big rooms. Their architect, who they did have a written contract with, they said, “This is what you need for that.” Another definition is called radiant tubing. guess that is the thing. I never *heard of it before this case. Radiant tubing is some type of tubing that goes in the floor, can go into cement or subflooring. Apparently, somehow that produces heat, which heat rises and makes it warm; so on September 10 they talked about having radiant heat, radiant tubing, TJI, and AlA. The Biggs house was to be completed, the shell, walls, roof, foundation, weather proofing, the shingles, the wiring, the plumbing, the heating, and windows, at least in the basement, were suppose to be done. That is confusing because the basement is the first floor. They actually do move in the basement and live there. That is the first floor. The basement was also suppose to be sheetrocked, taped and drywalled. Again, you probably know this, but when you put sheetrock on the wooden studs there is, I guess, a dry wall compound; and you put that on, and you have tape on it; and then I guess to do it, well, you should do more than one coat; and you sand it down and get it ready. If it is raw sheetrock, you want to prime it. This is what they sat down about on September 10. This is what Mr. O’Neill agreed to do for them. They wanted to live somewhere. It was going to be in the basement. It was going to be built to code. You’re going to see pictures of this; and, most importantly, Mr. O’Neill was going to follow Brooks Washburn’s plans, with one exception. Mr. Washburn had a set of windows going out to the backyard on this Waterman Hill site, and I guess after the discussion it was agreed they were going to use Peachtree doors, like glass doors. That is a little notation you see on that. That was one exception.

Unfortunately, by December 8, 1997, a little under two months later, Mr. and Mrs. Biggs paid to Mr. O’Neill the sum of $74,370.00. The testimony will show that they had to pay out of their pocket another $2,450.00 to a guy to do the concrete, another $600.00 to a contractor to try to help with this grading, and $600.00 for a garage door, making the total of $78,295.00 they paid. Meanwhile Mr. O’Neill had taken a job with Kraft Foods. He had two workers who could not read Brooks Washburn’s plans to finish this job. On January 19 after the famous icestorm, which everyone probably still remembers, Mr. and Mrs. Biggs had been living with their four children in a two-room, unheated part of Mr. O’Neill’s house. Mr. O’Neill had gone to the Islands. They said, “We can’t stand it anymore. We have to go home.” Six to eight weeks had long passed. “We want to go. We have to get out of here.” They moved in. At that point what they moved into was not a dream house, but a funhouse. The testimony is going to show that in a three-foot span the floors deviated from level about three-quarters of an inch. That it was in the kitchen, the dining room. A six-foot span deviated seven-eighths of an inch. They were in a literal fun house. The testimony will show there was no permanent foundation. Their walls and basement were leaking like a sieve. When they saw this they said to the architect, Mr. Washburn, “Can you look at this for us?” Mr. Washburn is going to testify that he saw 14 code violations. Code should be defined. That is the Uniform Fire and Building Code, I guess, in New York State. There were 18 building integrity concerns. He worried about if this situation continues if this building is going to lose its integrity; 12 safety and health concerns; 18 unsanctioned deviations from Mr. Washburn’s plans. In other words, the testimony you’re going to hear from Mr. and Mrs. Biggs is that when they told Mr. O’Neill, “We wanted to do this, okay, as long as it is okay with Mr. Washburn,” he said, “Go ahead. I will talk to Mr. Washburn. Don’t worry about it.” You’re going to hear Mr. Washburn say, “I never heard from Mr. O’Neill about these things. These aren’t my plans.” 40 examples of poor workmanship. When you say that, workmanship that deviates from the industry standard. Just, you don’t become a carpenter or somebody that does that kind of thing. You’re going to hear testimony from an engineer, Bruce Clark; but when all this happened Mr. and Mrs. Biggs complained to their friend, to Mr. O’Neill, to no avail. “We had an agreement.” They finally said to Mr. Clark, Bruce Clark, a professional engineer from Gouverneur, “Please come and look at our house.”

Perhaps most disturbing in the evidence you will see photographs showing that the stairs going from the second to third floor, those two things that support the stairs are rested on a piece of plywood.Mr.Clark said there is, you have like a sill that runs around the outside of the house that rests on cement. You’re going to hear testimony from Mr. Clark because of the foundation, because of where it was placed, this is on one inch, maybe, of cement on foundation; someone, maybe not this man, somebody put a screw through one of their drain pipes in the basement. The living level was covered over with dry wall until Mr. and Mrs. Biggs discovered that there was a leak. I anticipate the testimony will be from Mr. O’Neill that it wasn’t him, it was his corporation. Secondly, that the Biggs changed things and that the Biggs were insistent. They wanted things right their way. They wanted extra things and didn’t want to pay for it. I submit that is not true. I ask you to listen to the evidence and hear for yourselves. Yes, the testimony will be that the Biggs updated a faucet or two. They asked for and paid for windows on the third floor, but it was the contractor, James O’Neill, who changed things. Mr. and Mrs. Biggs were told by Mr. O’Neill, you will hear testimony, that what Mr. Washburn, their architect specified, wasn’t available. Mr. O’Neill deviated from the foundation wall going to something called a foam block instead of a poured wall, which Mr. Washburn, AlA, recommended and specified in the drawings which were on that table on September 10. You will hear testimony, “The basement leaks.” Mr. O’Neill got a different floor joist than what was recommended by Brooks Washburn, and you’re going to hear a lot of testimony about contacting Georgia Pacific about whose fault it was. The bottom line, you will hear testimony that the floor joist hangs below the headers. If you were going to get sheetrock on there, you’re going to hear testimony, that is nearly impossible. Mr. Biggs did request that a wall be moved in the basement and that another change be made in the bathroom. You will hear testimony that request was made before a single nail was driven, a single piece of wood was put up. Once again he said, “If it is okay with Mr. Washburn, our architect.” Once again Mr. O’Neill said, “Don’t worry, I will check with him and see.” He never checked with him and went ahead and did it.

One more thing. When Mr. and Mrs. Biggs were without a house, having sold their house and using that money to pay Mr. O’Neill, Mr. O’Neill said, “You can come live with me;” but at that time, in anticipation of testimony, I think it is important to note that Mr. and Mrs. Biggs will testify that they did the cooking, the cleaning, the laundry, the grocery shopping and the telephone answering for Mr. O’Neill. Mr. O’Neill was alone, and he may have put in a phone line for Mr. Biggs; but that was something that I wish you will pay attention to the testimony about. There also were continual problems that you will hear about in the testimony. One was that the Biggs complained. Finally, after the icestorm they moved into the house. They said, “Jim, this house is not what we wanted. This isn’t what you were suppose to do,” and as a result of that complaint they received a bill dated January 24, 1999. That bill acknowledged that 79,995 original contract, but then asked for $11,257.00 for extras. The Biggs found more problems. Their septic system failed. They had to pay someone else to dig up the whole leach field and replace the septic system. You will hear the testimony. There is a video. They had an unventilated furnace and exhaust. Their foundation was blown out at the corners. Water and mud was penetrating the grade to the house. I guess the grade means how far the dirt comes up to the house. Ideally, it would be such a way as to have water fall away from the house. This grade was just the opposite, not so that water would fall away. In fact, water would collect and be more likely to go in there. That was the site work. They complained more; and as a result of that, the testimony is going to be, that the Biggs received a bigger bill. February 17, 1998, Mr. O’Neill awarded them with an additional $10,900.00; $15,078.00 bill, $221.80 bill for phone. I submit the testimony is going to show that he wanted them to go away.

You will hear testimony that Mr. and Mrs. Biggs caused delay. You will hear that weather caused delays. You will even hear a claim that even the icestorm caused delay. Don’t believe it. There was no work done during the icestorm, but you will hear testimony about, is that it was the mechanic’s lien fault. Again, at the risk of boring you, a mechanic’s lien is when someone provides materials for my house and I don’t pay that person, they can file a lien on my property and my real estate and my records saying you owe me for the materials I gave you. You’re going to hear testimony that Mr. and Mrs. Biggs said to their friend, Mr. O’Neill, “This includes everything?” “Yes this includes these things.” Mr. O’Neill took that $79,000.00, but yet shortly thereafter Mr. and Mrs. Biggs received a mechanic’s lien from Security Supply Corporation on or about April 9, 1999, in the amount of $9,747.00. Thereafter they got another mechanic’s lien from Triple A Lumber, $16,906.35. Their dream home has turned into a circus. The reason of that circus is that contractor.

You may hear testimony from others, but one particular witness will be a Carrie Baleno. The testimony I expect to present to you is that Carrie Baleno was a young lady who was hired by Mr. O’Neill, and that the purpose of her job was to rework invoices that Mr. O’Neill made for the Biggs job and to use those invoices to support an unsubstantial bill to the Biggs. You will hear testimony from her that materials that went to Mr. O’Neill’s garage, to other jobs, were, in fact, billed to Mr. and Mrs. Biggs. For example, 60 TJIs, there was only 32 for the job. Does she have a perfect past? No. Did she work during the time of their building this? No. In fact, the testimony will be that she sent them a threatening letter at her boss’ request, but she has now come forward, and I anticipate she will be a court witness.

This was their dream. This was their friend, a man they trusted. They asked him to do their dream on September 7, 1997. As part of the evidence we hope to have a video. I was watching the video at home. There was a scene where water was gurgling out of the tub and the toilet while the washer was going. My nine-year-old came in and said, “What’s that?” I told him. He said, “They should get their money back.” I hope you agree. Thank you very much.