Weekley for the Defense

If the Murillos, Townsends and Ganjis tried to bring their suits against David Weekley Homes today, they might have a tougher time in court, thanks to revisions in the law approved during the 1995 legislative session. Those changes were largely due to the efforts of Texans for Lawsuit Reform and its founder, shopping center developer Dick Weekley, David's brother.

Not that Dick Weekley intended it that way. When the intense, angular developer says that helping his brother's business was the furthest thing from his mind, one gets the impression that to disagree could prove fatal. "I don't think about Weekley Homes when I'm talking about tort reform," he says. "I think about the agenda that's been developed by people all across the state, and Weekley Homes is never an issue."

That agenda, he points out, had 11 planks, only a couple of which could remotely be construed to have anything to do with home building. And according to Weekley, the one that does seem most relevant, an overhaul of the Deceptive Trade Practices Act (DTPA), in reality had little bearing on Weekley Homes because of a 1989 law that supersedes the DTPA on matters of new home construction.

David Weekley Homes' attorney Chris Pappas agrees that the other law, the Residential Construction Liability Act (RCLA), governs residential construction matters. In fact, he's filed a motion to that effect in the Murillo, Townsend and Ganji lawsuit. "I think anyone today who tries to suggest that the RCLA doesn't truly supersede the DTPA when it comes to a case involving a residential construction defect is foolish," Pappas says.

That's clearly a dig at the plaintiffs' attorney, Elizabeth Burkhardt, whose own motion to try the case under the DTPA argues that the RCLA does not entirely prevail when the case involves fraud or malice. As yet, the judge in the case has not ruled on either motion.

David Bragg, an Austin attorney who fought Weekley and tort reform on behalf of the Texas Trial Lawyers Association, says the question is open to debate. And in cases in which the RCLA doesn't apply, Bragg says, plaintiffs clearly have a disadvantage under the revisions passed by the Legislature.

Foremost among those was a change in the burden of proof required to collect damages for mental anguish, which all three families are seeking against David Weekley Homes. Now, they would have to show that the harm done was "intentional," which Bragg says is almost impossible. In addition, actual damages can only be multiplied if there was a "knowing" violation, not as tough to prove as an intentional one, but still more difficult than the old standard.

The revamped DTPA also exempts from liability anyone who renders licensed professional services. Before the company declared bankruptcy, Structural Engineering Consultants Inc. was a co-defendant in the Weekley suit. Under the new law, the company would likely not have been liable.

Texans for Lawsuit Reform -- to which the Weekley brothers each contributed $25,000 -- has another set of proposals for next year's Legislature. One of them could have a significant impact on suits against homebuilders -- a form of "loser pays" law that would require plaintiffs to pay the attorney's fees of the defendants if they failed to recover "materially more" than the most recent settlement offer. Bragg says that such a change would force many clients to take whatever a defendant might offer and retreat. "It is impossible to tell what a jury is going to do," he says. "You're talking about sticking your client with $100,000 in attorney's fees."

Dick Weekley, who has cut back most of his development business to concentrate on tort reform, allows that he doesn't know the fine points of the law. Others, he says, craft the specific bills -- he just fights for them. "I think the civil justice system in this state has many flaws, and to the extent that I can be a catalyst to help change it, I want to help change it."

And he reiterates that David Weekley Homes does not factor into his efforts. If he wanted to line his own pockets, he says, he'd be out building more shopping centers like he used to, not spending his days in Austin. "I haven't asked [Texans for Lawsuit Reform's] attorneys whether any of these statutes would impact Weekley Homes," he says. "Homebuilding is never an issue. We don't talk about homebuilding."

-- Bob Burtman


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