Judge likens lawsuit to a movie

Case involves claim that home has ghosts

June 15, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The case is so bizarre that an appellate judge mused yesterday that not only had the judges read the legal briefs, but "I think we've seen the movie."

A three-judge panel of the Court of Special Appeals is grappling with legal issues surrounding a Bishopville couple's disturbing allegation that the developer of their home concealed that he illegally flattened a small graveyard on their lot, leaving its corpses buried there.

At issue is whether Tom and Deborah Carven, who say the dream house they built in 1987 has ghosts, can sue for fraud. They say developer and former Worcester County Commissioner Louis J. Hickman knew about the farmstead burial site but omitted it when platting Holiday Harbor development in 1964.

A graveyard there is not named on tax records or deeds, but its site was mentioned so often by old-timers that Deborah Carver picked up a shovel in January 1995.

"I was in this hole up to here," she said, pointing to her knees, "and I found bones and a casket handle."

Hickman's estate - he died in 1997 - does not acknowledge that anyone is interred in Lot 96 and denies wrongdoing. The estate says the developer is protected by a law that gives builders immunity from a lawsuit brought more than 20 years after the initial property improvement.

But the Carvens' lawyer disagreed. "It is counterintuitive to say to someone that a person can destroy and conceal a graveyard, and then when it's 20 years or more later when it's discovered say, `Well, I don't own it. I haven't owned it for 20 years,'" said Harold D. Norton. "If you can hide a fraud for 20 years, then you can get away with it?"

James R. Trader, a past president of the Ellicott City-based Coalition to Protect Maryland Burial Sites, estimates that as many as 9,000 small graveyards dot the state. He said laws against destroying them are infrequently enforced, and a financial incentive exists for developers not to report graves they find on valuable land.

Yesterday, one judge on the state's second-highest court said he wondered if the lawsuit was too late. Or, another questioned, can destroying a graveyard, morally repugnant and a misdemeanor, be considered a property improvement that starts the 20-year clock ticking? Norton said no. Hickman could have created the development by building around the cemetery or getting state permission to move the graves, he argued. He said the county would not have approved the development as it was planned if officials had seen a graveyard on the plans.

James W. Almand, the Hickman family's lawyer, countered that the residential development was an improvement to a farm Hickman bought, adding more than 150 homes and enhancing the value of the property.

"Where is the statute that says where Hickman couldn't have a Lot 96 with graves on it?" he said.

Lawyers say few cases describe what constitutes a property improvement.

Depending on how the judges rule could make the case significant, because what is known as a "statute of repose" gives wide protection from defects that develop much later for architects, designers and others in the building businesses, they said.

"I think it would be a significant precedent that would reduce the broad protection of the statute of repose," Almand said.

Settlement talks have failed. The Carvens claim their home is worthless. In an odd twist, covenants for the development specify no graveyards.

The couple filed their $1.5 million lawsuit in December 1997.

A Worcester County judge ruled against them in the fall, saying that too much time has passed for the developer to be liable.

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