BERNARD V. BUCKLEY - A CASE STUDY FOR LEGISLATIVE REFORMS

1. BUCKLEY THE BUILDER This former Texas A&M All-American football player became a homebuilder after leaving the NFL. He then cheated Mr. Bernard out of over $1 million and was convicted of fraud, but he hasn’t paid a dime. Before becoming a homebuilder, Marcus Wayne Buckley played college football, was an All-American in 1992, was drafted by the New York Giants in 1993, and played seven seasons as an NFL linebacker. So why would he become a builder and cheat Mr. Bernard? Because Texas laws allowed him to do so. Texas laws let him hide his assets while prosecutors treat the case as a civil contract dispute rather than a crime.

   On March 3, 2002, David Bernard’s home at 1510 Riverview in Arlington, Texas, burned to the ground.  He and his wife lost everything they owned in the fire.  Mr. Bernard and his wife decided not to rebuild their home at the Riverview location with his fire insurance proceeds and instead purchased a lot at 1039 Mallard Pointe in Grand Prairie, Texas, to build their new home.
   
   
2. On June 28, 2002, Mr. Bernard hired a close friend, Marcus Buckley, to build their new home on Mallard Pointe.  Between July 2002 and April 2003 Bernard wrote checks to Buckley totaling $466,000.  Buckley converted a substantial portion of these funds to his own personal use by endorsing and cashing many of the checks.  Buckley also built a partially-completed structure that was deemed by Grand Prairie’s chief building officer, Gail Lux, in August 2003 as structurally “very unsafe.”  Mr. Lux testified that he was surprised that the house hadn’t “fallen down.”
   
   
3. After Buckley looted the funds to build their home, Mr. Bernard had to pay more than $100,000 to unpaid subcontractors hired by Buckley who had filed liens on the Mallard Pointe property as well as an additional $56,000 to rebuild the partially completed defective structure.  Since their insurance funds had been depleted, Mr. Bernard fired Buckley, then had to obtain a loan, and ultimately paid another general contractor an additional $660,000 to complete their home on Mallard Pointe.  Ultimately Mr. Bernard’s total out-of-pocket loss resulting from Buckley’s fraud, deceptive trade practices and negligence amounted to $1,134,000.
   
   
4. Mr. Bernard filed suit against Buckley on January 30, 2004.  The civil fraud trial began on August 21, 2006.  On the ninth day of the trial, August 31, 2006, the Court found that Buckley had intentionally violated several pre-trial orders in front of the jury.  As a result the trial court imposed death penalty sanctions and entered judgment in favor of Mr. Bernard for a total of $4,537,266.80. 
   
   
5. Buckley’s attorney did not request findings of fact or conclusions of law and did not file a motion for new trial complaining of the trial court’s sanctions.  The record contains ample evidence that the trial court got the facts and the law right in this case.     
   
   
6. Buckley subsequently appealed, and Mr. Bernard’s appellate brief was filed on June 7, 2007.  The trial court then ordered the parties to engage in mediation to achieve final resolution on the amount of damages. 
   
   
7. After mediation in August 2007 the parties agreed in writing that Buckley would owe Mr. Bernard approximately $960,000 under a specific payment schedule, and the appeal would be withdrawn.  The agreement stated that if Buckley defaulted in his payments to Mr. Bernard, he would then be liable for the original amount awarded by the trial court.
   
   
8. Buckley has reneged on the agreement and has not paid Mr. Bernard a dime.  Buckley continues to live in an expensive home and maintains a luxurious lifestyle.  Over seven years have passed since Mr. Bernard signed a contract on June 28, 2002, for Buckley to build his new home.  During this period Mr. Bernard and his wife have been financially devastated by Buckley’s fraud.  Despite pursuing their case to the fullest extent under the law, they have yet to receive any compensation for their damages due to Buckley’s ability to hide his assets. 
   
   
9. Today disputes such as Mr. Bernard’s are generally viewed by Texas prosecutors as civil contractual disputes. Criminal prosecutions against homebuilders for fraud are extremely rare.  Texas legislators need to change the laws to upgrade the conversion of construction funds by homebuilders from a misdemeanor to a felony.