When last I checked on the lawsuits brought by Elm Grove residents against Perry Homes, et. al., it was early August. The plaintiff’s lawyers had added Concourse Development to the lawsuits and the defendants’ lawyers were blaming everyone in sight, including the flood victims, for their problems.

Since August, both defendants and plaintiffs have filed another 122 documents, totaling hundreds of pages on the Harris County District Clerk’s website. Some make entertaining reading.

Now, for instance, the defendants’ lawyers argue that they shouldn’t be forced to produce resumes for people being deposed because experience has nothing to do with qualifications.

So here’s what’s happened since the last update.

Key Developments in August

• Double Oak Construction moved to quash plaintiffs’ “notice of intent” to take the oral depositions of ten individuals (8/17/2020)
• Figure Four Partners, LTD, PSWA, Inc., and Perry Homes, LLC moved to quash deposition notices and subpoenas duces tecum (subpoenas for documents) (8/18/2020)
• Concourse Development, Rebel Contractors, LJA Engineering, and Texasite LLC made similar but separate motions (8/19/2020)
• Plaintiffs’ move to compel depositions (8/20/2020)
• Defendants then requested an emergency status conference to discuss the motion to compel.
• Judge Lauren Reeder denied the emergency conference (8/24/2020)
• Defendants then contacted the plaintiff to set up depositions (8/25/2020). Depositions for 7 of 10 defendant employees were set up
• Plaintiff’s lawyers sent a letter to the court revoking the request to compel depositions for those 7 individuals (8/27/2020)
• Figure Four Partners objected to defendants’ request for production of documents, arguing among other things that the defendants had not adequately defined the word “person.” (8/31/2020). The defendants requested, among other things to see the defendants’ (plural) Joint Defense Agreement.
• Defendants fired off a blistering response the same day (8/31/2020). They argued that Figure Four previously admitted that defendants had a joint-defense agreement, that Figure Four was engaged in a “blatant attempt to mislead the court,” and that Figure Four had not found one mutually agreeable deposition date since April 1.

September Developments

Double Oak moved to transfer venue out of Harris County. They claimed third parties, not they, produced plaintiffs’ damages. (9/11/2020)

Plaintiffs filed “responses to the responses” of Double Oak, Rebel Contractors, Concourse Development, Figure Four, PSWA, and Perry Homes. Plaintiffs, for the most part, allege that defendants failed to be specific in their responses. For instance, when defendants’ alleged that plaintiffs’ damages were the result of prior or pre-existing conditions, they failed to specify what those pre-existing conditions were.

Defendants also alleged that, because they “acted with due care” and “complied with all applicable federal, state, and local law,” defendants’ claims should be barred. Plaintiffs took exception to that claim. They pointed out that defendants do not name “one statute, regulation, or common law requirement that they complied with so that Plaintiff’s claims would be barred.”

October Developments

On October 16, 2020, plaintiffs filed a seventh amended petition with 14 exhibits totaling 273 pages.

One of the major changes: the inclusion of “trespass” as a cause of action. Paragraph 54 under Count 7 on page 23 says, “A defendant commits trespass to real property where there is an ‘unauthorized entry upon the land of another, and may occur when one enters—or causes something to enter—another’s property.’” Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011).

Other sections of the amended petition appear to have minor changes and updates that address issues raised to date during the case. Rather than try to summarize them all here, I’ll simply provide a link to the amended petition.

Separately, Figure Four objected to the subpoena duces tecum for Richard Hale. Defendants had requested his resume and legal documents to prepare for his deposition (10/19/2020). Lawyers for Figure Four claim Mr. Hale’s experience is not relevant. That seems to asking defendants to take a lot on faith! Figure Four lawyers also claim that by asking for papers that Mr. Hale used to prepare for his deposition that defendants are violating attorney/client privilege.

Figure Four also filed an objection to Taylor Gunn’s subpoena duces tecum. They claimed the subpoena wasn’t a subpoena, that his experience was not relevant, and that the request violated attorney/client privilege.

Rebel and Double Oak also objected to documents they were expected to produce, claiming they didn’t have enough notice (10/26/2020).

November, December Developments

In November, not much happened. Defendants filed documents showing that they had a “Rule 11” agreement with Concourse. A rule 11 agreement refers to Rule 11 of the Texas Rules of Civil Procedures. Rule 11 says that an agreement between lawyers in a case is enforceable if the agreement is: A) in writing and B) filed in the papers of the court or C) unless it be made in open court and entered in the record.

In December, LJA filed an objection and response to the plaintiffs’ subpoena duces tecum for Taylor Baumgartner. LJA also argued that the subpoena violated attorney/client privilege. However, Baumgartner agreed to bring his resume to the deposition.

Status of Depositions, Discovery, Start of Trial

Both sides have done significant written discovery. Estimates range upwards of 20,000 pages of documents produced to date.  Depositions reportedly started in late October. Lawyers will schedule more in January/February.

The trial still appears to be scheduled for the two weeks beginning September 20, 2021. But that could be pushed back by COVID concerns.

Posted by Bob Rehak on 12/2/2020

1191 Days since Hurricane Harvey and 440 since Imelda

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.