Don’t Messer with Texas’ Speaker
I assume that most readers know by now that Speaker Craddick and his consiglieri Bill Messer are the defendants in a lawsuit filed by Amazon Tours, Inc. of Dallas. The dispute involves the defendants’ request for a refund for a fishing trip that never took place. Thanks to the Quorum Report for including a link to the documents in the suit, which I have just finished reading. I’m going to set out the major allegations in the plaintiff’s petition and then comment below.
Since most of us have set opinions about the Speaker, and perhaps about Messer as well, I’m going to ask you to do this: Forget about the personalities, and just think what you would do under these circumstances: You pay $4,500 for a very expensive vacation package to go on a safari in Africa. Just before you are to leave, the tour company calls you to say that a massive brush fire has broken out, and conditions for hunting appear to be both dangerous and unsuitable. They give you the option of going forward with the trip or rescheduling at a later date. Later, the tour company calls to suggest other dates. None of them are convenient. You ask for a refund. The company refuses. Substitute fishing in Brazil for hunting in Africa and that’s what happened to Craddick and Messer. I don’t know how you would feel about having the tour company say that they get to keep all of your money, but I would be apoplectic.
Here is the tour company’s statement of the case with some addition allegations stated elsewhere in the petition provided in brackets. I do not vouch for any of the facts alleged in the petition.
This is a contract dispute. Plaintiff sold Defendants a fishing trip to Brazil [in February 2006] to fish for “peacock bass” in the Amazon. Defendants, the Speaker of the Texas House of Representatives, and Bill Messer, an attorney and high powered lobbyist, requested to be “roommates” on the fishing trip. High water on the Amazon made fishing conditions difficult. Plaintiff offered to reschedule the fishing trip as a courtesy. Defendants refused, and demanded a refund. Plaintiffs offered to reschedule defendants at their convenience. Defendants refused, threatening suit. [The group opted to reschedule for late November 2006. Months later, on or about August 17, 2006, Defendants called Plaintiff to say they would not go on the unscheduled trip. Plaintiff offered other dates, but Defendants refused them and demanded the refund of their money.] The contract that governed the sale of the fishing trips gave plaintiff the sole discretion as to whether to make refunds. Their legal position being untenable, defendants acted as bullies using the power of the Speaker’s Office to threaten “embarrassment to plaintiff’s reputation.”
Here is the language in the contract dealing with refunds:
No refunds are given for any unused pre-paid services included in the tour package …. Any request for a refund must be presented in writing within 30 days of your return. Requests for a refund based on claim of exceptional circumstances will be considered by Amazon Tours, Inc. on a case by case basis. Amazon Tours, Inc., at its sole discretion will determine whether exceptional circumstances exist and determine the amount of the refund if any.
What is an “exceptional circumstance?” Plaintiff contends:
High water in the Amazon is not an exceptional circumstance. Defendants could have opted to go fishing on their schedule departure date during high water. Defendants and their group made the determination not to go fishing in February 2006. Defendants’ determination to reschedule is not an “exceptional circumstance” by any objective measure. Defendants refusal to reschedule their trip [at] their convenience … does not create an “exceptional circumstance.” In any event, pursuant to the Contract, any subjective determination of “exceptional circumstance” is within the “sole discretion of Plaintiff.”
Finally, the tour company accuses Craddick and Messer of improper conduct:
Defendants have threatened to sue and embarrass plaintiff. Defendants most recent threat came in the form of a joint demand letter from both Defendants on the letterhead of Bill Messer, P.C. a highly powered lobbyist and member of Speaker Craddick’s “transition team.” Aside from the unseemly and unethical nature of a registered lobbyist and the Speaker of the House making a joint demand for money on the lobbyist/lawyer’s letterhead, particularly while the House is in session, Tom Craddick is not a lawyer. He sells drilling mud. Yet this written demand letter on a lobbyist/lawyer’s letterhead threatening “legal action, or embarrassment to [Plaintiff's] reputation” is first signed by Speaker Tom Craddick with Defendant Messer’s signature below it. Bill Messer, P.C. is a law firm. Its purpose is “to conduct successfully those professional services than an attorney and counselor at law, duly licensed under the laws of the State of Texas, is authorized to render ….” {ellipses are in the original document)
My comments:
1. One of the unusual aspects of this dispute is that the lawsuit was filed by the tour company, the party that has the money, not by Craddick and Messer, the party that claims to be owed the money. They have only written a demand letter. The tour company seeks attorneys’ fees, which, they say, are recoverable in a breach of contract case. But is this a breach of contract case? What act did Craddick and Messer promise to do and fail to perform? The refund provision in the contract requires that a request for a refund must be made within 30 days after the return trip–but there was no return trip, so the clock never started running.
2. Refunds are dependent upon “exceptional circumstances.” The tour company claims that high water on the Amazon is not an exceptional circumstance. The Amazon is the world’s biggest river. If I were contemplating being on it in a fishing boat, with crocodiles on all sides, high water would sound pretty exceptional to me.
3. What is the Plaintiff trying to convey with this language: Tom Craddick is not a lawyer. He sells drilling mud. Yet this written demand letter on a lobbyist/lawyer’s letterhead threatening “legal action, or embarrassment to [Plaintiff's] reputation” is first signed by Speaker Tom Craddick with Defendant Messer’s signature below it. Are they trying to suggest that Craddick was practicing law without a license? That’s what it seems like to me. Why can’t he and Messer sign the letter as aggrieved parties.
4. How can the tour company have the effrontery to claim that it has the unrestricted right to keep the money for a trip it gave the fishermen the option to cancel? (That’s their story; Craddick and Messer claim in their demand letter that the company canceled the trip on its own initiative.) Amazon may have the right to recover some expenses. If they used the money to make deposits that were forfeited, for example, they could deduct that from the reimbursement owed to Craddick and Messer. But they make no effort to mitigate their responsibility.
5. Plaintiff complains in its lawsuit, “Defendants have threatened to sue and embarrass plaintiff. Defendants most recent threat came in the form of a joint demand letter from both Defendants on the letterhead of Bill Messer, P.C., a highly powered lobbyist and member of Speaker Craddick’s ‘transition team.’” Frankly, this lawsuit seems more like an attempt to embarrass Craddick.
6. Craddick should not have signed the letter, “Speaker Tom Craddick.” That’s one word too many. He shouldn’t give people any ammunition to infer that he was writing in his official capacity. That’s the only fault I can find with the Craddick/Messer letter.
7. I’m sure that some readers will want to take me to task for defending the speaker. Or Messer. Be my guest. Just be sure to point out the fallacy in my legal reasoning. I’m trying to write about the plaintiff’s petition as a legal document, although it is a political document as well.
8. Maybe Craddick and Messer aren’t so shrewd after all. I thought they got rid of frivolous lawsuits–or was it lawsuits, period?–during the 2003 tort reform frenzy. They must have left a loophole somewhere.
Tagged: tom craddick
Anonymous says:
I might just be a dumb ole’ East Texas Democrat, but I am really trying hard to keep up with all of this.
One question.
What is Club Kuemple?
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Anonymous says:
Paul:
Thank you for being sensible. Whaterver reputation the Speaker has gotten over the years, this incident is ridiculous. I would not be surprised to learn that the tour company was put up to this.
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Anonymous says:
Paul, its nice to see you be completely reasonable…well…mostly reasonable with a post…
somethings that strike me:
1) it amazing that Eppstein remembered to clear the properties on the legal papers, but not on the “3R” Pac presser
2) how is this ALL the ABCs can bring up?? damn that is sad
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Anonymous says:
It is sad that Kronberg had the lawsuit before Messer and Craddick did.
I think this company has done a great job advertising how “great” their company really is….. must be a relative of Eppstein.
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Anonymous says:
Paul, you say regarding Craddick signing the letter with “Speaker Tom Craddick” saying
“That’s the only fault I can find with the Craddick/Messer letter.”
Are you dismissing that as a small thing? Was the Speaker planning to act on official House business in the Amazon? Considering how other things have been handled, I feel confident that they thought the company would see the word “Speaker” and back down.
The insurgency would not be taking place had members not felt bullied and finally had enough. This side matter of the lawsuit is small incident that resonates with what the members have experienced. Your legal reasoning may or may not hold water. That will be taken up by the judicial system. However, in politics and government, appearances are often times as important or more important than reality.
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Anonymous says:
Paul, your legal and political analysis of this is absolutely correct. The wording and timing of this suit are suspect. Would be interesting to see what documents would be produced if there were a counter-claim.
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Paul Burka says:
To anonymous at 12:56 p.m. This lawsuit will never go to trial. It will never even get to a judge. And Craddick and Messer will never see their $4,500.
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Anonymous says:
Thanks for the response, Paul. My point was that the legal reasoning for the lawsuit is the side issue compared to the appearance that Craddick was once again bullying someone in his role as speaker.
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Sal Costello says:
THE GRAND SECRET PLAN TO REMOVE CRADDICK THIS SESSION REVEALED:
What til Tuesday.
: )
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Anonymous says:
It looks like the tour agency is in the wrong. Since this is already in the papers, I can see the defendants coming out swinging. From my understanding of the law, they are in the right and this tour agency is trying to leverage keeping the money by filing a lawsuit in the last week of the session. They might have given up the money to keep this out of the papers, but that is not possible any more….full speed ahead.
On the signature, that is not a big deal in my opinion. Legislators titles are not just used for “official conduct.” Any wedding invitation or phone bill will reflect their title. If he only signed official documents with his title, that would be a different story, but those don’t seem to be the facts.
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the ghost of sam houston says:
Paul,
I haven’t had a chance to review the petition or operative documents, but I thought I’d weigh in to let you know that the tort of business disparagement is recognized here in our great state. See, e.g., Forbes, Inc. v. Granada BioSciences, 124 S.W.3d 167, 170 (Tex. 2003).
With our results-oriented Supreme Court, I often wonder if business torts will be the only actionable torts left.
Again, I haven’t had a chance to really familiarize myself with the facts, but I thought I’d at least point you in this direction.
I’ll leave you with my usual caveat: The above is intended for general informational purposes only and is not to be construed or relied upon as specific legal advice.
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Elsbeth says:
My question is why didn’t he have trip cancellation insurance?
What’s so great about catching a peacock bass in the Amazon, anyway? Here’s an Alligator Gar Trek that costs a lot less and Captain Kirk is the guide. It’s for those that don’t have time for an international trip.
["The Lonestar Lunker
Texas is your passport to the elusive Alligator Gar, with the Longnose and Hybrid being the primary species targeted.
Your fishing location provides ready access to both the Trinity and Brazos Rivers, as well as Lake Sam Rayburn and Lake Livingston.
Each year anglers record catches of 200+ pound Alligator Gar in these watersheds. Your guide, Captain Kirk has over 15 years of experience targeting these great gamefish, and is highly regarded as the leading guide service in the area.
If you're looking for a trip targeting multiple 100+ pound fish, but don't have the time for an international fishing trip this operation is right up your alley."]
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the ghost of sam houston says:
Another thought: Isn’t this what travel insurance is for?
I’m sure Craddick’s and Messer’s good friends in the insurance industry could have hooked them with a sweet deal.
You know, payback for shutting down insurance reform, which has resulted in billions in overcharges paid by our state’s policyholders.
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Anonymous says:
To Anonymous 2:06: You may think the tour agency is “in the wrong”, but thanks to our anti-consumer legislature and supreme court they have the better legal position as the contract clearly states that refunds are in the tour operator’s sole discretion.
Whether it was wise or proper to file a pre-emptive suit for declaratory judgment is a different question.
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Anonymous says:
Paul
You are dead right from a legal standpoint. However, Messer should have had another firm send this letter on his behalf and on behalf of the Speaker. The signature by the Speaker on this letter was inappropriate but has not real legal effect on the allegations in this lawsuit.
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HL says:
I certainly not a fan of lawsuits of these types, but a few things need to be pointed out. The Amazon basin on a whole averages of 80 inches of rain a year with some parts receiving over 200 inches, so high water is not an unusual occurence. My guess is this possiblility is pointed out to prospective clients. That is why rescheduling is offered over refunds. Anyone going there should realize this. It is a rainforest for goodness sake. Also, Paul there are no crocodiles on the Amazon. Caimans yes, but that far different from crocs.
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Anonymous says:
Fish Camp in Brady!!!!
Catfish!!!Crappie!!!Africon Perch!!!
Send me $5,000, I will schedule your trip.
Brien Eppistieny
PO Box 177
Lohn, Texas
78763
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Anonymous says:
I don’t know where you and your legal analysts studied law, but this is a declaratory judgment action and is an entirely appropriate response. No doubt it’s also politically bent in light of the timing and the release to QR, but the legal conclusions here are off base. As for Amazon’s contract language, it is somewhat illusory and vendor favorable, but they could read it going in. And as one of your commenters pointed out, OttoCraddick has repeatedly endorsed legislation favoring such overreaching vendors–if in fact this is overreaching for fat cats’ international fishing trips. And for Craddick’s astounding use of his office to compel reimbusement–something you and your readers toss off–that easily states a claim under 42 USC 1983.
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Anonymous says:
Everyone calm down. this is just another Burka act to defend Craddick. He has no basis for anything else. If anyof us, including Burka, were to receive a letter like that from Craddcik then we would be suing him for corruption. Burka can’t stand tothink Craddickis wrong.
Doubt he will even post this. He hates the truth about himself.
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