Saturday, February 4, 2012

Home building dispute settled in unusual venue

Fraud and falsehood only dread examination. Truth invites it. - Samuel Johnson

Waco – The Bill Logue Juvenile Detention Center is an industrial tilt-wall pre-fab concrete building located at the end of a long cement drive, sandwiched between a manufacturing complex and a warehouse near the corner of Loop 340 and Gholson Road in the deep and fertile Brazos bottoms just off I-35.

If one did know of its existence and utility, it would be easy to drive right by the installation on a daily basis and never acknowledge it's even there.

Like most courthouses, it's actually an integral part of a jail.

As such, it's a jail for people who have not yet reached the age of consent.

Nestled in the heart of the building, down a wide corridor just off the lobby, is an airy and spacious courtroom lined with tall shelves of law books where the 74th State District Court routinely handles the heart-rending business of removing children from their parents' custody due to incompetency, sentencing children to stretches in the state's penal system for juveniles - The Texas Youth Commission - or certifying youngsters as adults, to be tried for felony offenses for which they may be incarcerated until they reach the age of majority.

Inside this chamber, Judge Gary Coley rules on the familial impedimenta that lines the last nine yards of hell as a matter of routine. Knowledgeable observers all agree the underlying causes of the knotty problems the State of Texas finds cause in which to intervene are almost always related to drug addiction, one of the more depressing facts of 21st century American life.

A balding middle-ager with a quick smile and a quicker sense of the ridiculous, Judge Coley would probably be equally at home astride a charger or commanding a battery of field artillery.

When dealing with the objections of counsel, he is judiciously pensive and affects a pained expression while intoning, when he has sustained the objection, the words, “You may ask your next question, Counselor.”

He simply says, very quietly, “Overruled,” when he finds no merit.

When provoked by redundancy or clumsy attempts to dramatize the obvious, his words crack and snap like a pistol shot or a breaking board. “May I approach the witness, Your Honor?”

“You may!”

In either case, this public servant deals with all such entreaties by learned counsel as if they are the outburst of an unruly neighbor, then goes on with his business, which is clearing the docket and dispensing justice. You may believe the Court is very good and quite efficient in his performance of the complexities of this task.

Above all, Judge Coley does not suffer gladly a fool, nor would a reasonable man expect him to tolerate any form of foolishness.

In this setting, the matter of Brazos Star Homes v. William “Matt” Cawthon and Shelly Horn Cawthon played out over the course of a week-long presentation of evidence and testimony.

In fact, if one did not know, or was not tipped off that this mysterious breach of contract proceeding was in progress at such an unlikely location, there would be no reason to suspect that this lawsuit was at trial, for there was no mention of it in the on-line dockets published by the McLennan County court system.

The central conflict in this proceeding hinged on the lack of information available in the execution of a cost-plus contract involving the erection of a custom home for an estimated cost of $302,000 – or, perhaps, $325,000, depending on whom you may choose to believe – and a builder's fee of $25,000.

Admittedly, contracting on a cost-plus basis does not yield the most advantages for the buyer, and yet every building, rocket, bomb, airplane, warship, round of small arms ammunition, uniform, boot, bullet, band-aid or can of beans procured by the most giant corporation of all, the U.S. Government, is obtained in exactly that way.

The information necessary to make an intelligent accounting of the costs of building the Cawthon home, when received pursuant to a defense discovery motion, was turned over to the Sheriff's Department, the editorial staff of the Waco “Tribune-Herald,” the election campaign committee supporting the candidacy of Chief Deputy Randy Plemons, and others, according to sworn testimony by the plaintiff himself. He also admitted that he supplied confidential information such as banking records of the defendants, loan applications, social security numbers, personal phone numbers, and credit card slips.

When the final bill came in, there was a cost overrun of something like $77,000 owed for the closing, an inability to pass code inspections, and a reluctance by city inspectors to issue a certificate of occupancy.

Quite simply, the builder, acting as a construction manager for an owner who was operating as a general contractor, adamantly and steadfastly refused to supply information as to the true cost of materials and labor associated with the project.

Kind of reminds one of the story of the crap game in the basement of the prohibition-era Manhattan speakeasy so glibly narrated by that grand old scribe Damon Runyan – the one where the gangster who was controlling the bones insisted on playing with a set of dice that had no spots on them - none whatsoever - much to the consternation of the pigeons he had recruited through intimidation to join him in that charming little seance. He, and only he, could see the numbers on the bones.

Thems was the rules and he was stickin' to 'em.

Be that as it may, the circumstances that led to the suit – a festering complaint that developed over the course of several years - culminated in an 11-woman, 1-man jury deciding a list of 19 questions designed to settle the alleged civil wrong perceived by Mssrs. Marvin Steakley and his son, Andrew Steakley, when retired Texas Ranger Matt Cawthon and his wife Shelly abruptly stopped paying draw requests attached to the building of a 5,000-square foot home in which they reside in an attractive rural Waco subdivision near the banks of the Bosque River.

It is an interesting detail that Mr. Cawthon is a best friend and member of the posse that rides with Parnell McNamara, a retired U.S. Marshal who is running for Sheriff of McLennan County.

Mr. Steakley is a member of the committee to elect Chief Deputy Randy Plemons of the McLennan County Sheriff's Departmet, who is also a candidate running for the nomination of the Republican Party to replace retiring Sheriff Larry Lynch.

The jury's verdict was overwhelmingly in favor of the defendants, Mr. and Mrs. Cawthon, and included a potential award of a total of $38,000 in reasonable and customary attorney's fees incurred in their defense by Mr. Henry Wright and Mr. Aaron Mutnick, two young lions just recently admitted to the bar. Of these fees, $10,000 at $165 per hour are reserved in case of the need to argue the case at the appellate level, including the Supreme Court. For the basic investigation, discovery, trial preparation and court appearances, $28,000 are owed the law firm with which they are associated.

The scope and array of tortious behavior by the Cawthons outlined in the Steakleys' petition was extremely complicated, and included an allegation of defamation of character when Mrs. Cawthon e-mailed her banker and called the father-son duo “liars and thieves” and vowed she would run them out of business and out of town. The Steakleys are from the bayou city of Houston.

Apparently, the ladies and the lone gentleman of the jury – save one – agreed with Mrs. Cawthon when they found her statement to be true. Truth is an affirmative and unassailable, paramount defense against the charge of criminal libel and slander.

As Judge Coley's charge explained the law, there is no breach of contract when the work stipulated to be performed in the contract has in fact not been performed, and a breach of warranty occurs when the work that has been performed is demonstrably defective and requires remedial labor and materials.

As the week wore on, the testimony was elicited, and the documentation flashed across the screens of the overhead projectors and computer displays, the ladies of the jury reacted with the special type of disdain and disgust indicated by their facial expression and body language, the kind honest householding ladies always feel for the plumber who cheats them, the auto mechanic they caught in a lie, the carpenter who raided their pocketbook, the door to door swindler who sold them a bill of goods on new stucco or aluminum siding, and the slick talking, dismissive and inattentive smart aleck of a know-it-all insurance adjustor, burglary detective, or encyclopedia salesman.

Their sister got ripped off. She could prove it. She did prove it.

They didn't like it.

In fact, they despised it and showed their disapproval in their crossed arms, their elevated chins, the fire that flashed from their glaring eyes and the various sniffs and polite, ladylike snorts they emitted at crucial moments in this ongoing drama that required their attention for a brutally long series of days over the course of a week.

That single fact, supported by overwhelming evidence and testimony – much of it elicited from the plaintiffs themselves - settled all questions in their very female minds.

The ladies of the jury came down hard.

When Mr. Steakley and son marched out of that courtroom, followed by their women, they held their chins high and avoided all eye contact with other men in the room. Mr. Steakley, Sr., held a folder of papers over his chest, as if in protection of his heart and vitals; a chastened son followed him, alternately fidgeting with his lapels, thrusting his hands in his pockets, trying hard to deal with the lump in his throat, looking everywhere and anywhere but into the faces and eyes of the men and women of the gallery.

This is a partial recap of the testimony supported by hard-won information in the form of actual invoices:

Andrew Steakley told Mrs. Cawthon he could get her special discounts on certain plumbing fixtures and other materials he uses in spec homes such as the sunken tub with spa nozzles that does not work and has no access panel for electricians and plumbers to get at the mechanism – an oversight that will require removal of the tub to correct the problem. Mr. Steakley promised a discount price on the $1,500 item, but in fact billed $1,200 for it in a vague, non-itemized “draw request” with no accompanying invoice after accounting a cost of something like $500 for the item. The only time the spa has worked, the Cawthons had to resort to a circuit breaker to get it turned off.

The home has a front porch that is partially covered by a metal roof. The Cawthons wanted a regular tin roof, but Mr. Steakley “insisted” on a bronze-colored roof which he had to obtain through a special order. It took 6 weeks to arrive and meanwhile, the interior of the home, the sheetrock, framing, and other architectural features, were heavily damaged by rain soaking through the exposed substrate of the roof. This required an involved repair job, new materials, and much unnecessary labor.

The Cawthons obtained antique brick from a family farmhouse located at Salado. They wanted Mr. Steakley to have the bricklayer use it to build the fireplace in the family room of the new home. But another contractor mistakenly used the brick to fill in the poured concrete structure of a bench in a shower room in the master bath, requiring replacement of the antique brick, which had some sentimental value.

A $520 planer obtained from Lowe's was billed to the Cawthon home, a trade for a $1,000 labor bill owed a trim carpenter. Similarly, cleaning supplies, a mop and bucket got charged to home as building supplies. Caulking guns and other tools were similarly charged to the Cawthon job. In response to the statement by the Cawthons' attorney that “A mop is not material that you use to build a house,” Andrew Steakley replied, “That's debatable.”

Flooring material obtained for the Cawthon home was installed on another job.

In one chilling exchange of testimony, Mr. Cawthon recalled how he found highly flammable oil-soaked rags lying on scaffolding under the eaves of the house. On another occasion, a wire trash container filled with oily rags ignited spontaneously and burned the tops of trees on the lot before the local fire department was able to battle the blaze to a standstill. Asked to what fault he would attribute such negligence by workmen and supervisors, he replied, "Inept management."

The list goes on and on, and at one point, under cross-examination by the Cawthons' attorneys, Mr. Steakley, Sr., admitted he did not actually obtain bids from subcontractors and suppliers. When it came to an accounting of the true cost of the non-functioning bathtub, Andrew Steakley said, “I don't know if I actually have an invoice for the tub that was used at the Cawthons' house.”

One of the ladies of the jury made no attempt to hide her disgust; she blew air to fluff her bangs and shook her head while the rest of the ladies sat, arms akimbo, and stared upward at a 45-degree angle at some imaginary object 1,000 yards in the distance.

When it came to the mix-up over the antique brick, Mr. Steakley, Jr., became quite defensive. In a curt manner, in an angry tone of voice, he said he kept no daily log of materials delivered to the job site, or where they were to be used.

“You're responsible, aren't you?” asked Mr. Wright.

“No, I'm not,” Mr. Steakley replied.

“Who's responsible?” Mr. Wright asked. “Somebody's got to take responsibility for that.”

Mr. Steakley chuckled, looked down his prominent nose, and said in a flippant tone of voice, “If you say so.”

Though it's not over until it's over, it looks like he lost money on this one, folks.

I'm just saying, that's all. - The Legendary

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