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The case against SMU — at least the legal one — may appear weak at first glance. After all, no one is claiming that SMU broke any law as it went about buying enough units at the University Gardens to take control of it and tear it down. The condominiums' governing documents allowed for this sort of exit strategy. Ironically, its purpose — as with other clauses like it — is to look out for the property owners.
No matter the strength of the case, the litigation has become a personal obsession for Vodicka, whose home in Coppell, northwest of Dallas, is stacked with many of the 300,000 pages of documents he has unearthed during the discovery process. The case file spans 20 thickly stuffed court jackets; the district clerk's case summary sheet is 38 pages long — an average case summary sheet is about three, according to the Dallas County District Clerk's Office.
"He has no law office, he has no secretary, he has a laptop and a cell phone," says McElhaney of Vodicka, both of whom are SMU law graduates. "He works all day on this case, and this is about all he does. This morning — at two in the morning — he was faxing things to me."
But Vodicka, who also maintains a law practice, claims that the school has tried to demonize him to take away attention from its underhanded land grab. As he discusses the case — and he can do so for hours without pause — Vodicka seems to nurse a grudge against SMU that no amount of money can cure.
Shortly after Vodicka filed his lawsuit in the summer of 2005, former resident and dentist Robert Tafel joined him as a plaintiff by intervening in the lawsuit. Tafel is represented by Larry Friedman, a controversial Dallas litigator known for his take-no-prisoners approach to practicing law.
Together they are making a novel argument alleging that SMU's condo-accumulating strategy was fatally flawed because once the school installed its own employees on the condo board, they had a fiduciary duty to the complex to be upfront with its residents.
As part of that responsibility, allege the plaintiffs, SMU had the obligation to inform the residents that the school wanted to purchase the property as a possible site for the Bush library, which would have given residents more leverage in negotiations with the university. The plaintiffs also allege that as a condo board, the SMU-dominated association bore the responsibility of maintaining the value of the property by not allowing it to fall into disrepair so it could be demolished.
"My client is saying that 'when SMU infiltrated the homeowners association, they had a duty to protect the interests of the homeowners,'" Friedman says. "They had a duty of absolute candor. They knew what the plan was, but they didn't tell the homeowners." The board kept its true intentions for the property a secret, he claims, so that it could low-ball the residents of University Gardens.
McElhaney dismisses Friedman's argument as "a bunch of sophistry — laced together with a lot of self-serving statements." His contention is that SMU was only able to gain control of the property because the condominium's own rules allowed it. And he says Vodicka, Tafel and the other former residents bought their homes knowing that at any time, they might have to sell against their will if a supermajority of the homeowners association decided to close down the complex.
Regardless of whether SMU prevails, the plaintiffs have succeeded in frustrating SMU and, even worse, the man it attempts to honor. In April, Judge Hoffman ordered that Bush testify in a deposition to answer the plaintiffs' questions about what he knew regarding the school's plans to take over the condominium complex. Although Hoffman's order was overturned by the 5th District Court of Appeals in Dallas, Vodicka, with characteristic resoluteness, vows to take the pretrial issue to the Texas Supreme Court.
Vodicka has also acquired sensitive documents during discovery that plaintiffs say depict the school's ruthless bid for the Bush library in its actions toward yet another property owner. In June 2004, as SMU was trying to purchase surrounding land to increase its options for library sites, its lawyers dispatched a letter to the owners of the neighboring strip center, Park Cities Plaza. At the time, SMU wanted to buy the shopping center, which runs perpendicular to Central Expressway. In its four-page letter, which threatened impending legal action, the school claimed that the shopping center was something akin to a modern-day Love Canal and that it needed to clean up its act.
"The Responsible Parties, therefore, are liable as generators of solid wastes and/or hazardous wastes, and as part and/or present operators of a treatment, storage, or disposal facility," read the letter, which was copied to the Environmental Protection Agency. "In its citizen suit, the PPI [SMU's real estate arm] will ask the court to order the Responsible Parties to conduct restoration and cleanup activities."
As McElhaney now admits, Park Cities Plaza, which includes a La Madeleine and a CVS pharmacy, was never the source of any solid or hazardous waste. He says the school worked on a separate project with an environmental expert, who initially concluded that contaminants were leaking from the property. He was mistaken.