Defendants in the Elm Grove flood lawsuit have filed more than 20 new documents with the Harris County District Clerk since mid-July. The big news: The addition of Concourse Development, LLC to the lawsuit has pushed back the trial date from March to September next year. It has also triggered more victim-blaming plus claims and cross-claims among the defendants.
In 2019, runoff from 268 clear-cut acres under development by Perry Homes contributed to flooding in Elm Grove, not once, but twice. Victims sued two subsidiaries of Perry Homes who were developing the property. They also sued several contractors, and LJA, the engineering company.
Perry Homes is the parent company of subsidiaries PSWA and Figure Four Partners, who were originally sued.
Concourse Development bought the property now known as Woodridge Village on 1/12/2018 and sold it to Perry Homes six days later.
Concourse is also the developer of Woodridge Forest, immediately west of Woodridge Village. Approximately one year before the purchase and quick sale, Concourse reportedly told Woodridge Forest residents at a community meeting that the Woodridge Village property would never be developed because it was “just too wet.” USGS classified large parts of the area as wetlands and multiple streams converged there.
Where Case Stands Now
The addition of Concourse to the lawsuit prompted multiple requests by Concourse and other defendants to delay the trial again – until September 20, 2021. Concourse said it didn’t have enough time for discovery and preparation. Given that the case was already almost a year old, Concourse claimed it had a lot of catching up to do. In their response to the plaintiffs’ sixth amended petition, Concourse also pointed some fingers at other defendants. One then filed a cross-claim against Concourse (see below).
Concourse Blames Victims and Almost Everyone in Sight
Defendant Concourse Development LLC denied each and every claim in Plaintiff’s latest petition. This is called a General Denial.
Concourse then lists eight pages of defenses. They repeat the phrase “Pleading further, and in the alternative, if such be necessary and subject to the foregoing pleas and without waiving same…” a grand total of twenty times. That means, “If the general denial doesn’t work, we reserve the right to claim X. And if X doesn’t work, we reserve the right to claim Y. Etc.”
More Than 20 Defenses Asserted
With that as a preface, Concourse also pleaded that:
- Concourse was not the immediate or sole cause of the flooding and damages.
- “Acts, omissions, fault, negligence and other conduct of the Plaintiffs” were the immediate and sole cause, in whole or in part, of the flooding and their damages. (They do not explain why they believe that, though.) Said another way, the victims caused their own damages.
- Other defendants caused the damages.
- New and independent third parties caused the damages.
- Other people caused the damages.
- Concourse had no obligation to the victims.
- Concourse’s conduct was reasonably prudent.
- The flooding was an unavoidable accident.
- Plaintiffs failed to mitigate their damages.
- Their contract (presumably with Perry) gives them indemnity.
- Any payments made by other parties (not a part of the litigation) to Defendants should offset any liability Concourse may have. (Presumably, they’re talking about insurance companies.)
- Any award against Concourse must be reduced by the percentage of fault attributable to others, including the Plaintiffs themselves, and third parties.
- Flooding was caused by an intervening, but unspecified cause.
- Plaintiffs’ claims fail to state a claim upon which relief can be granted.
- To the extent that Plaintiffs allege lost wages or loss of earning capacity, recovery should be limited to post-tax earnings or net earnings.
- Plaintiffs’ damages resulted from prior or pre-existing conditions over which Concourse had no control and did not cause.
- God caused the damages.
- Any punitive damages awarded in the case should be reduced in proportion to Plaintiffs’ own negligence.
- Plaintiffs’ claims should be barred because Concourse acted with due care and complied with all laws and regulations.
- Plaintiffs’ assumed the risk that resulted in their “alleged” damages.
- Punitive damages violate the Due Process and Equal Protection provisions of the Fourteenth Amendment of the US. Constitution and the Double Jeopardy Clause of the Fifth Amendment.
- Punitive damages violate Chapter 41 of the Texas Civil Practice and Remedies Code, the Texas Constitution, and the United States Constitution.
- Prejudgment interest should be limited under Texas Law.
- Plaintiffs have not fulfilled all the conditions necessary to maintain the lawsuit.
- The One Satisfaction Rule should govern any awards.
The last point means that a plaintiff should only recover once for a particular injury. It applies when several defendants commit the same act or when multiple defendants commit different acts that result in one injury.
Defendants Now Fighting Among Themselves
If many of those points sound contradictory, they are. But Concourse has covered all its bases.
In #3 above, Concourse pointed the finger of blame at other defendants in the case. Evidently, Double Oak Construction, Inc., one of the other defendants didn’t like that. So…
On 8/6/2020, Double Oak filed a cross-claim against Concourse. Double Oak alleges that Concourse should be held directly liable to plaintiffs for any and ALL damages they suffered. Double Oak also wants a jury to decide Concourse’s percentage of liability.
Why is that? Double Oak alleges that “…the Developer Defendants hired Concourse on May 8, 2019, the day after the extreme weather event on May 7, 2019, to inspect the Development and that Concourse did not advise the Developer Defendants to make any changes to the detention.” Nor, they claim, did Concourse advise Double Oak or the other Contractor Defendants to make any changes to their work after the inspection.
Therefore, Double Oak further alleges, Concourse is liable to Plaintiffs for damages and any award levied against Double Oak.
Double Oak Objects to Concourse Production of Documents
In its response to the Plaintiffs, Concourse also gave “notice to all parties that any and all documents produced during discovery may be used against such parties at any pre-trial proceeding and/or trial … without the necessity of authenticating the document.”
Double Oak objected to this. Double Oak claims it doesn’t know what specific documents Concourse intends to use, therefore Double Oak is handicapped in its defense.
Trying to anticipate every single document produced by any party would cause an undue hardship, claims Double Oak. Double Oak reserved its right to authenticate any and all documents that Concourse produces as part of discovery.
Woodridge MUD Fights Subpoena for Documents
The Woodridge MUD claims that the Plaintiffs’ subpeona is “overly broad and seeks to inquire into matters subject to the attorney-client privilege.” They also claim that some of the requested documents involve matters discussed during executive sessions of the Woodridge MUD board.
The MUD also refuses to produce documents anywhere other than at the offices of its counsel.
Posted by Bob Rehak on 8/10/2020
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The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.