Don't Messer with Texas' Speaker
Fri May 25, 2007 6:53 am

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.

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