April 27, 2008
You may say it's not about tort reform, but it is

This front page story about the longstanding battle between a group of homeowners who bought defective houses and the builders who built them largely boils down to this:

The homeowners took photos of tell-tale brown stains under leaky balconies. They collected inspection records showing how the builder had sometimes skipped getting required permits.

They documented how the company changed names and then denied warranty claims.

And they provided their own mounting repair bills.

The District Attorney's Office refused to take the case. In a letter, consumer fraud division attorney Valerie Turner said she thought it would be too difficult under Texas law to prove Tremont "intentionally and knowingly promised performance to the consumer, which they knew would not be performed."

"Your complaint, while very serious, is not criminal," the letter concluded. "We are sorry that civil remedies afforded to you and other homeowners under Texas law ... seem inadequate."

Sarah Reid Ford, one of the homeowners, was confounded by the response.

"We could get dozens of witnesses to say: 'These people cheated me, they defrauded me,' ... and at the end of the day, the DA's office does nothing," she said.

Several years earlier, the Better Business Bureau of Greater Houston also unsuccessfully urged prosecutors to investigate after Stature/Tremont failed to respond to consumer complaints and then changed names, said spokeswoman Carol Ritter.

The BBB ejected both companies from its membership rolls.

Though construction complaints are common, Ritter said, allegations about a pattern of substandard construction and deception by Stature were disturbing.

"They know that if they can string this out for as long as possible, they will just bankrupt everybody," she said.

Though it's possible in Texas to make a criminal case against a builder or remodeler who repeatedly takes homeowners' money and never performs any work, state laws are not strong enough to protect homeowners in many other situations, said Russel Turbeville, chief of the Harris County district attorney's consumer fraud division, who has seen construction-related complaints surge.

"Texas is a bad place to be if you've got a construction problem with your home," he said.

Tort reform and lack of legal protections have left homeowners who believe they have been victimized by builders with fewer ways to fight back, advocates from Home Owners for Better Building and Texas Watch say.

"To the extent there are builders who are gaming the system and preying on consumers we need to have significant reform," said Alex Winslow, of Texas Watch.

But Lee Parsley, an Austin attorney for Texans for Lawsuit Reform, said, "Lawsuit reform is not related to the problems people may be having collecting judgments or arbitration awards, and it has nothing to do with whether the district attorney can attempt to punish a person or company that refuses to pay."

In a narrowly defined sense, what the TLR shill says is true. The 2005 constitutional amendment that capped non-economic damages in medical malpractice lawsuits doesn't, strictly speaking, have any direct bearing on these cases. But the whole point of the so-called "tort reform" movement is to make it more and more difficult for consumers to seek redress through the courts for wrongs done to them by sellers of goods and services, all to the benefit of those sellers and their bottom lines. They've used a variety of tactics, from capping damages awards to requiring complaints to be resolved by a rigged arbitration process or to go through a stacked commission before earning the right to sue, and on and on. And if a pro-consumer bill threatens to make it through the Lege, pour in the money and lobby like hell to make sure it dies and stays dead. We all know that's what TLR would do in the event a measure to make collecting judgments or arbitration awards or to give DAs more leeway to bring criminal charges against companies that refuse to pay ever gained momentum, right?

So yeah, it is all about lawsuit reform. And don't you forget it, because for sure TLR never will.

Posted by Charles Kuffner on April 27, 2008 to Show Business for Ugly People

The 2005 constitutional amendment capped non-economic damages in lots of different suits, not just medical malpractice suits. That was another tort "reform" lie.

Posted by: Kenneth Fair on April 27, 2008 10:55 PM