David & Goliath Y2K
By Joel Schofield

"Do you the Jury, find by clear and convincing evidence that the defendant committed forgery with the intent to defraud or harm?"

The jury answered "Yes," and promptly delivered an award in the amount of more than $4.5 million to the victim. Presiding United States District Judge Vanessa D. Gilmore did not reduce the jury’s award. And so begins this classic tale of Corporate America versus the little guy.

On April 26 of this year, in United States District Court, Houston, Texas area apartment property owner T. David O’Brien, III had his day in court. Astonishingly enough, after a more than three year long battle, media giant AT&T/TCI was found liable on the charge of committing forgery with intent to defraud by forging O’Brien’s signature to a long term Cable Television Easement and Maintenance Agreement.

The Agreement to which the signature was forged forced O’Brien into allowing AT&T/TCI to continue providing cable television service to the property, effectively denying his ability to negotiate for alternative services with AT&T/TCI’s private cable competitors.

Dateline 1996

On December 5, 1996, Larry Kessler of InteliCable contacted the franchise cable company (then TCI) on behalf of O’Brien to verify that it did not have a current agreement binding O’Brien’s property. Kessler was informed by TCI that his information was incorrect and that they were in fact holding an agreement signed by O’Brien in 1995.

Upon learning of this, Kessler then immediately contacted O’Brien to inform him of the situation. O’Brien, however, was adamant that he had never signed an agreement with the company in 1995 or at any other time.

After further discussing the matter, Kessler explained to O’Brien that in order to receive a copy of the alleged agreement, TCI required that a fax request signed by O’Brien be sent that same day. Prior to sending the fax, O’Brien contacted the cable operator to obtain a copy of the agreement, which he professed he had no knowledge of signing. The company reiterated its need for a signed fax request before they could release the document to O’Brien or Kessler.

At this point, O’Brien remained adamant that he never signed an agreement. Both he and Kessler felt the fax request was very unusual. So, as a precaution, O’Brien used a non-authentic signature on the fax he sent requesting a copy of the Agreement TCI said he had signed.

Approximately two hours later, O’Brien received a faxed copy of the Agreement. O’Brien immediately forwarded a copy of the document to Kessler. To their astonishment, the document was signed with a signature strikingly similar to the non-authentic signature used in O’Brien’s fax request just two hours earlier (See Fig 1).

"I knew I had never signed any agreement," said T. David O'Brien III. "When TCI said I needed to send over a written request with my signature to receive a copy of a document that I knew I had never signed, we knew something just didn't smell right."

Immediately upon receiving the forged document, both O’Brien and Kessler attempted to resolve the situation with TCI. Kessler called the company immediately and faxed them a copy of the documents as well as a copy of O’Brien’s legal signature, assuming this would cause TCI to relent on the issue and move forward. However, TCI steadfastly refused to acknowledge the forgery and furthermore, continued to assert its right to provide cable television service to the apartment property.

In January 1998, after working together for more than a year to resolve the situation, both Kessler and O’Brien concluded that despite their efforts to bring resolution to the matter without litigation, as a last resort and against his principles O’Brien was forced to file a lawsuit alleging the forgery.

"For the life of us we couldn't figure out why they didn't come to us and try to work this out," said O'Brien. "We offered to meet them with any document they wanted, passport, drivers license, whatever was needed to prove to them it wasn't my signature on the agreement. But they would not do it. Going to court was the last thing we wanted to do. All we really wanted was a fair agreement."

"In the beginning, I couldn’t believe O’Brien’s signature could have possibly been forged by the nation’s largest cable operator," said Kessler. "He owns a single, 160 unit apartment complex. It seemed impossible that a company of this size would take a risk of this magnitude for such a small project. So I naively thought that our calls and fax to them later that day would clear the matter up in minutes. Those minutes turned into over a three year experience," said Kessler.

So, on April 19^th, 2000, the United States District Court in Houston, Texas began hearing the case of Meadow Park Partners v. TCI TKR of Houston, Inc. The trial lasted four days and resulted in the jury finding in favor of O'Brien, awarding him over $4.5 million.

A fact that influenced the jury as the case was presented by O’Brien’s attorneys, Jerry V. Walker, Sr. and Jerry V. Walker, Jr., was that during the pre-trial investigation it was discovered that in addition to O’Brien’s forged agreement, agreements of at least three other apartment complex owners were identified as forgeries. The property owners were contacted and the notaries of the documents also testified that both their signatures and seals were forged.

All's Well That Ends Well

"David became my very first client in May of 1996," reflected Kessler. "In our wildest imaginations, we could not have conceived of what was to happen. Who could have possibly anticipated that it would take more than three years, four lawyers, two judges, and a federal jury to finally get a new deal for David’s property? The experience has made us good and trusting friends, which is a rare find today. And despite the business repercussions that may come of all this, I would still make the decision to fight the battle with David again."

"We are pleased with the way things turned out," said O'Brien. "It was a long fight and we are ready to move on with things. We just hope that when people read and hear about this, aside from seeing the money, they see the message that if you stand up for what you know is right, you are going to come out okay."

"This type of situation is precisely why both state legislatures and the Federal Communications Commission (FCC) must continue to make rulings in favor of private broadband operators providing voice, video and data services to the multihousing industry," said Kessler. "These types of actions, which even in this case were not isolated to a single event, are the result of monopolistic business practices.

"The current franchise cable and incumbent telephone companies have become too large and far too unaccountable. They are losing their incentive to be fair and provide good service. The only possible check and balance to be put in place is competition, so long as such competition is at the property owner’s election, and is not forced."