Court upholds right to sue over cemetery

Couple says builder knew of graves on site when home was built

November 06, 2001|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

An Eastern Shore couple who say their dream home is a nightmare built on perhaps two dozen graves can sue the developer's estate, alleging that he committed fraud in hiding a cemetery, the state's highest court said yesterday.

Thomas and Deborah Carven contend that developer Louis J. Hickman bulldozed the visible evidence of a family graveyard outside Bishopville, clearing tombstones but leaving an estimated 20 to 30 bodies underground.

"They have been saying all along that they did nothing wrong. Well, they did," said Thomas Carven.

The Court of Appeals' unanimous ruling returns the bizarre case to Worcester County Circuit Court, where the Carvens, who moved into the house in 1986, will have to convince jurors that the allegations are true and that they have been harmed.

Yesterday's ruling knocked down the Hickman family's legal arguments for dismissing the suit. The ruling said that a law that gives immunity from defects discovered more than 20 years after property is improved does not apply in this case. The law is aimed at protecting builders whose work was considered fine when it was done but two decades later is inadequate.

The high court also said that removing tombstones is unlike adding roads to what had been a 200-acre farm. Streets can be considered property enhancements; bulldozing a cemetery is against the law.

The judges said the law gives cemeteries protections over other land, including regulations for relocating the dead.

"The concealment may have allowed Hickman to sell the land at a higher price, or without the impediments established by law, but this is not what we believe the Legislature intended to regard as an improvement," Judge Alan M. Wilner wrote in the 16-page opinion.

The Carvens say they would move if they could afford it, but allegations of graves and goblins have lowered the market value of their home.

Thomas Carven says the house probably would fetch $225,000 if bodies were not buried on the property - though the Hickmans' attorney disputes the figure and the claim that Hickman, a former Worcester County commissioner who died in 1997, cleared tombstones in the 1960s on what in 1986 became the Carvens' homesite in Holiday Harbor.

Cost of disinterring remains aside, "I don't want to be sitting in my house and watching them scooping those people up," Carven said.

The corpses would have to be reinterred - whether any lie directly beneath the house is unknown - "and what if they miss one or two," he said. He would still have to disclose the cemetery to potential buyers.

Harold D. Norton, the Carvens' attorney, hailed the ruling as extending protection for property buyers by taking away the 20-year time limit for filing lawsuits against developers who conceal defects.

James W. Almand, lawyer for widow Vivian M. Hickman and her family, said his client, in her 70s, has offered to buy the property for more than $150,000, and "she has offered to move remains if there are any," which he estimated would cost $30,000, but the Carvens turned down the offer.

"They [the graves] need to stay, we need to go," said Thomas Carven. Whether "they" exist will go to trial, likely next year.

"The Carvens will have to prove the allegations they have made. ... Nobody has put them to that test yet," Almand said.

The Carvens say they are sharing the house they built with spirits that manifest themselves in odd noises, a television that mysteriously turns off and on, the odor of pipe smoke, a grandfatherly apparition and other phenomena.

In 1994, old-timers told Deborah Carven that her property used to be a little cemetery. In January 1995, curiosity led her to grab a shovel. A foot deep, she unearthed bones and a casket handle.

The Carvens sued in 1997, seeking $1.5 million. The Worcester County court agreed with the Hickmans on the legal issue and last year the Court of Special Appeals overturned that ruling. The Court of Appeals upheld the appellate ruling.

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