A Dallas court has ordered for a series of wrongful death lawsuits against a local independent living facility to stay in open court after the defendant’s attempt to move them back into a confidential arbitration.
In an order issued Friday, Dallas County Court at Law Judge Melissa Bellan also denied a motion for abatement made by the defendant, The Tradition — Prestonwood, an upscale senior residence in North Dallas.
A spokesperson for The Tradition acknowledged the company received Judge Bellan’s order and is considering how to proceed.
The lawsuits were filed against The Tradition last summer by the families of six elderly residents who are believed to have been murdered by Billy Chemirmir, a 47-year-old serial killer.
The suits allege that The Tradition’s security was woefully inadequate, allowing Chemirmir virtually unfettered movement on the property, where he murdered eight residents in 2016 by posing as a maintenance worker to gain access to their apartments.
The families also allege that The Tradition deliberately hid information about the deaths from residents and the police, which delayed the arrest of Chemirmir, who is currently indicted on capital capital charges for the murder of 14 people.
Beyond keeping the litigation public, lawyers representing the families told The Texas Lawbook that Judge Bellan’s order paves the way for discovery to begin in the case — although there may still be some speed bumps.
“Our clients deserve to discover the truth of what happened, what The Tradition knew when they knew it, and they have to start answering questions under oath,” said Dave Wishnew of Crawford, Wishnew & Lang, the law firm the families hired. “Unfortunately what we expect to happen is for [The Tradition] to appeal, which could be another year that they don’t have to answer to the victims’ families.”
Although they have already served the defense team with a “pretty robust”request for discovery, The Tradition has resisted responding, CWL’s Trey Crawford said, and added the company has had “boilerplate” objections to “every request we’ve made.”
The CWL attorneys filed their lawsuits a week after The Tradition filed six separate arbitration actions against the families while they were in the middle of a mediation. Once the arbitrations happened, the lawyers filed counterclaims in the arbitrations as well as six sister lawsuits in Dallas County that challenge the validity and enforceability of The Tradition’s arbitration provisions.
At a hearing held in Judge Bellan’s courtroom in September, the plaintiffs’ lawyers said the central dispute ended up being a tug-of-war between which arbitration law held the authority in this situation: the Texas Arbitration Act or the Federal Arbitration Act.
The plaintiffs argued the TAA applied, which would mean that the arbitration agreement laid out in the residents’ lease agreements (a contract under Texas law) was not valid or enforceable because their claims are personal injury in nature. Under the law, according to the families’ lawyers, any arbitration clause associated with personal injury claims is invalid and unenforceable unless 1) the injured party receives legal advice before signing, and 2) the lawyer providing the advice signs the arbitration agreement.
“There was no signature by lawyers for our clients agreeing to arbitration as a matter of law under the Texas Arbitration Act,” Crawford said.
Crawford said the defendants argued that the FAA applied in this situation because the contract (lease) relates to transactions affecting interstate commerce. They further argued the language in the FAA mandates enforcement of the arbitration agreement.
“They were speaking out of both sides of their mouth, quite frankly,” Crawford added.
According to CWL lawyers, since the lawsuits began, The Tradition has made substantial wording changes to its website and social media related to its safety and security.
With certain court filings, the plaintiffs attached exhibits of “before and after” screenshots of the website showing paragraphs describing The Tradition’s amenities that once included phrases such as “cutting-edge security” and “a safe and secure environment,” which have since been deleted.
Crawford said he looks forward to taking depositions and getting “key people under oath” to further discover more ways The Tradition may have failed to live up to their safety promises to residents.
“There were a lot of things they did to conceal what had happened, hoping it would never come to the light of day … [but] we’ll continue to shine the light,” he said.
In addition to Crawford and Wishnew, the families are represented by CWL attorneys Michael Lang and Ali Ohlinger. The Tradition’s lawyers are David Macdonald and Jennifer Leblanc of Macdonald Devin Zeigler Madden Kenefick & Harris.
For an in-depth article on the lawsuit’s claims and the nature of how the litigation began, read The Lawbook’s previous report.