Builder’s lawsuit resolved
2nd case heading to January trial
Just before a judge declared a mistrial Thursday, a 92-year-old North Little Rock widow settled her lawsuit against two co-defendants of an unlicensed builder authorities say duped the woman out of her savings and home.
Gretchen Madison had yet to take the stand in her breach-of-contract trial against 40-year-old Marcus Andrew Dupree of Jacksonville when Pulaski County Circuit Judge Tim Fox halted the proceedings.
The judge said the suit against Dupree will go to trial again in January, which is about a month before Madison’s 93rd birthday.
Dupree’s former partner, Robert A. Walker of Jacksonville, and Walker’s mother, Joy Kinman, 58, reached a confidential settlement with Madison overnight, attorney John Ogles told the judge before the mistrial.
Ogles was the attorney who had argued for a mistrial.
Madison sued in 2013, alleging that Dupree took all of her money, promising to raze and replace her home of almost 50 years, but instead left her with a dangerously incomplete, substandard residence that can’t be repaired and is unfit for human occupation.
She had paid him and his company, Northstar Consultants Inc., about $60,000 for the work after Dupree
had promised her he would replace her 900-square-foot home with a 1,216-squarefoot residence in about three months, by the end of 2012.
Prosecuting Attorney Larry Jegley has described what Dupree built her to live in as a “heap.”
The money was from an insurance settlement Madison received after water damage in her home caused a black mold infestation that rendered the residence unlivable.
The mother of five raised her children plus two others during the 49 years she lived in her house. Madison now lives in a trailer on the property.
In declaring the mistrial, Fox ruled that her attorney, Jordan Tinsley, had violated his order against disclosing to jurors that Dupree had been tried and acquitted last year on criminal charges stemming from Madison’s accusations.
Disclosing the results of the criminal proceeding would be confusing to jurors and raise issues in the civil litigation that aren’t relevant, Fox said.
“It opens up a plethora of issues, and [the trial] becomes about [the criminal case] and not about the causes of action” in the lawsuit, Fox said.
Dupree was cleared of criminal wrongdoing for his dealings with Madison at trial in October 2015. He had been charged with felony theft, which carries a maximum penalty of 20 years in prison.
Explaining to jurors why he had barred the sides from disclosing anything about the criminal case, Fox said the results of that criminal trial had nothing to do with the question of whether Dupree had broken his contract with Madison.
Fox met with the nine women and three men of the jury to explain why he had ended the trial before they had heard all of the evidence.
Prosecutions and lawsuits have such differing standards of evidence and revolve around vastly different issues of law that the outcome of one case frequently does not have anything to do with the outcome of the other, he said.
A criminal conviction requires a unanimous jury verdict based on findings of guilt beyond a reasonable doubt, Fox said.
A jury considering civil litigation decides who is the prevailing party based on a lesser standard of preponderance of the evidence and only needs a
nine-member majority to reach a verdict, he said.
Fox said he had ordered both sides to tell their witnesses that they were absolutely barred from disclosing there had been a criminal proceeding, even if the witness thought they were being asked about that case.
When a witness disclosed on the stand Wednesday that he had testified in the criminal case, the defense moved for a mistrial.
Fox said he had sanctioned the defendants before the trial for refusing to obey his order that they attempt mediation ahead of trial.
Fox said state law requires him to order mediation. It’s not a requirement to settle lawsuits, he said, but mediation, which involves a neutral third party, can generate “meaningful communication” between the parties that can help the attorneys determine the most efficient method of presenting their case when they come before a jury.
“I don’t care whether they settle,” he said. “I only ask that people in good faith negotiate.”
Before meeting with the jurors Thursday, Fox ordered Madison and Dupree into mediation ahead of the Jan. 24 trial, saying they had to present him with the mediator’s report before then.
Failure to comply would have “consequences,” he said.
Dupree is representing himself in the litigation. His lawyer told jurors in the October 2015 criminal trial that prosecutors were putting “a square peg in a round hole” by bringing a criminal case in a dispute that should have been resolved
through Madison’s lawsuit.
Dupree had not completed the construction on time, then was fired and barred from the property before he could finish the home, the defense said.
Kinman, who is president of Kinman Homes of Jacksonville, and Walker, 31, were not involved in the criminal case.
Madison had accused them of fraud, misrepresentation, violations of the Arkansas Deceptive Trade Practices Act and civil conspiracy.
Dupree operated under the contractor’s license granted to Northstar Consultants Inc. Walker helped establish Northstar with Dupree and registered it with the state Contractor’s Licensing Board to get Northstar its building license, the suit states.
That license was revoked for misconduct over Dupree’s failure to complete Madison’s home, according to testimony.
According to the lawsuit, Kinman deliberately misrepresented her son’s qualifications on his application for a contractor’s license and denied on the form that they were related.
She also got two of her friends, Patricia Young and Lucille Cook, to provide false work references as a personal favor to her to help him get his license. Those women had never met Walker before endorsing him, according to the lawsuit.
Northstar, now defunct, never responded to the lawsuit, so it has been ruled liable by default. A jury will decide how much damages it should pay to Madison.