Residents Sue Brier Creek
Home Builder Over Mold
By Kim Nilsen
From Business Journal
March 14, 2003
Raleigh - The owners of a Brier Creek
townhouse are suing luxury home builder Toll Brothers over mold they say
they found growing inside their walls.
Frederick and Elizabeth Nielsen accuse Toll
Brothers, the developer of the golf course community Brier Creek, of
negligence, personal injury, fraud, breach of contract and deceptive trade
practices.
The lawsuit alleges that Elizabeth Nielsen,
who suffers from the disease sarcoidosis, became sicker while living in
the townhouse and moved out at her doctor's suggestion.
In a lawsuit filed Feb. 13 in Wake County
Superior Court, the Nielsens seek punitive damages or for the court to
slap Toll Brothers with "treble" damages - triple the amount of the actual
damages awarded.
An attorney for Toll Brothers is maneuvering
to get the lawsuit dismissed. In a motion filed March 7, the Huntingdon
Valley, Pa. - based company denied any wrongdoing.
Failing dismissal, Julia Youngman, a lawyer
representing the company, says the case should be shifted to arbitration.
An agreement the Nielsens signed in 2001 when they bought the $369,775
townhouse contains an arbitration clause, according to Toll Brothers'
motion, which is still pending.
Officials with Toll Brothers issued a
two-line statement in January in response to questions from Triangle
Business Journal about mold problems at Brier Creek, "The issue is limited
to a few of the homes at Brier Creek Country Club. The company is actively
working with each of these residents to resolve the issue," the statement
reads.
According to city building permits issued
last summer, Brier Creek planned to spend about $90,000 to repair problems
linked to mold in nine townhouse units on White Eagle Court and Fawn Lake
Drive.
Dan Bryson, an attorney
representing the Nielsens and several other Brier Creek residents in mold
talks, says the developer has settled out of court with more than 20
homeowners. Terms of the settlements have not been released. Tom Anhut,
vice-president for Toll Brothers' Raleigh division, could not be reached.
According to their lawsuit, the Nielsens
noticed green and black mold growing on the fire wall of a White Eagle
Court townhouse during construction in March 2001. That was before they
bought the unit. The Nielsens say they told the developer about Elizabeth
Nielsen's lung condition and were assured the mold would be killed.
In spring 2002, the Nielsens say they
received a phone call from Wally Tote, the project manager who had
overseen the construction of their unit. Tote, according to the Nielsens'
complaint, said the mold had never been completely removed and that their
unit had "had numerous water drainage and intrusion issues."
While she lived in the townhouse, Elizabeth
Nielsen's symptoms worsened, claims the couple's lawsuit. The disease that
afflicts her, sarcoidosis, is marked by a buildup of immune-system cells
in organs, a condition that can lead to inflammation. The lungs typically
are the first area to be affected.
The Nielsens say that in late May 2002 they
cut a hole in the drywall and found mold and odor. The couple left for
temporary housing - an expense they faced on top of medical bills,
according to their complaint.
High-end townhouses at Brier Creek still are
selling despite the ruckus over unwanted spores. The developer has sold 12
units on White Eagle Court alone since May 2002, when the Nielsens say
they first spotted the growth.
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