The Texas 14th Court of Appeals has sided with the SJRA and against 85 plaintiffs who sued the SJRA for flooding their homes during Hurricane Harvey. This particular group of plaintiffs claimed that the Lake Conroe release resulted in the government unconstitutionally “taking” their property. However, the appeals court found that:
- Each of the properties would have flooded even if no water had been released from Lake Conroe.
- The case should be dismissed with prejudice for lack of subject-matter jurisdiction based on governmental immunity.
Expert Witness Went Unchallenged
The SJRA hired a hydrologist to produce a computer model showing what would have happened to the homes in question if no water had been released from the Lake Conroe dam. The model showed that the homes would have flooded from Spring and Cypress Creeks. The plaintiffs’ attorney did not challenge the SJRA’s expert witness. That meant the evidence was “undisputed” as a matter of law.
Summary of Findings
The appeals court stated in its conclusion, “We reverse the trial court’s order and render judgment dismissing with prejudice (1) all takings claims asserted by the Gonzalez Parties, (2) the Gonzalez Parties’ purported claims against the Authority for grossly negligent maintenance and operation of the Lake Conroe Dam; and (3) all nuisance claims asserted by the Gonzalez Parties.” (Such group lawsuits are typically named after the first party listed in the suit.)
Justice Randy Wilson signed the opinion for Chief Justice Christopher, Justice Zimmerer and himself.
Although one lawyer I talked to opined that the plaintiffs might appeal to the Texas Supreme Court, “dismissal with prejudice” bars the them from refiling the case in the same court.
What Ruling Means for Similar Cases
This may be a failure of the attorneys for the homeowners, but it is still a “win” for the SJRA. Several other groups of lawsuits in Kingwood and Atascocita are still undecided. The question now is, “How will this decision affect those?”
It may and it may not. Page 8 of the appellate opinion states that, “…the Authority asserts that it is physically impossible that any of the molecules of water released from Lake Conroe during Harvey would have reached any of the Gonzalez Parties’ homes because: (1) the Gonzalez Parties live several miles up two different streams––Cypress Creek and Spring Creek; and (2) to reach the Gonzalez Parties’ homes, water from Lake Conroe would have had to flow 41 miles south to its juncture with these creeks, and then several miles upstream against massive flooding coming the other way.”
However, the parties in Kingwood and Atascocita live directly in the path of water released from Lake Conroe. That’s a substantial difference. The SJRA cannot credibly claim that no water from Lake Conroe reached their homes. The decision in these other cases will more likely hinge on whether the increase in flow flooded homes that would otherwise not have flooded.
Decision in Gonzalez Case Contradicts Experience in Other Cases
One Kingwood homeowner I talked to typifies many others. He said, “Frankly that [appellate] conclusion contradicts what I witnessed. I survived the Harvey rain; my home didn’t flood until the release occurred.”
The SJRA cases are hard to follow because there are so many. But at least three (Medina, Burney and Argento) have been consolidated. Those cases already won an interlocutory appeal to the Supreme Court on the SJRA’s motion to dismiss based on governmental immunity.
In an interlocutory appeal, a ruling by a trial court is appealed while other aspects of the case are still proceeding.
The Supreme Court denied the River Authority’s motion to dismiss those cases. They are still undecided.
For more information, see the:
- Supreme Court decision in Medina, Burney and Argento, October 6, 2020
- 14th Court of Appeals Decision in Gonalez, October 6, 2022
- Final judgement in Gonzalez case, October 6, 2022.
Posted by Bob Rehak on 10/24/22 with thanks to Steven Selbe, Senior Counsel with Gordon Rees Scully Mansukhani for the heads up on Gonzalez decision
1882 Days since Hurricane Harvey
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.