Attorneys for owners of 304 flooded homes in Elm Grove have named Perry Homes, LLC and Concourse Development, LLC as additional defendants in their lawsuit. Plaintiff’s lawyers filed their 287-page, sixth amended petition on 6/16/2020. Today, they also filed a request for a new trial date of 3/1/2021.

For the complete 287-page filing, click here. For a summary, read below.

New Information May Tie Perry, Concourse Directly to Floods

Based on allegations made in the lawsuit, it appears that attorneys may now have evidence that Concourse (the developer of Woodridge Forest) was also part owner of Woodridge Village. Wording within the allegations also suggests that Perry Homes was directly involved in the actions of its subsidiaries PSWA and Figure Four Partners, which in turn were telling contractors what to do and not to do.

This is potentially good news for plaintiffs because companies, such as PSWA and Figure Four are only subsidiaries of Perry. Such subsidiaries often act as shell companies that shield the parent company from liability. With few assets, the subsidiaries simply declare bankruptcy if they lose a large lawsuit. Then, life goes on as normal for the parent company. However…

Both Perry Homes and Concourse Development have substantial assets. Perry claims to be close to a billion dollar company.

Concourse developed the adjacent Woodridge Forest, where Perry also built homes. It bought Woodridge Village land and then held it for six days before selling it to Perry. Evidently, they didn’t sell their entire interest. Before the May 7th flood, Concourse bragged about its role in Woodridge Village. But after the flood, the company removed all mentions of Woodridge from its web site.

Allegations in Sixth Amended Petition

The big news: The plaintiff’s sixth amended petition now names Perry and Concourse as additional defendants. Previous petitions named only Perry subsidiaries, contractors and LJA Engineering.

In the new petition, defendants allege that:

• LJA used an outdated version of Montgomery County’s Drainage Criteria manual when it designed drainage for Woodridge Village.
• Figure Four failed to properly review the plans, catch the error, oversee LJA, or make construction decisions.
• As a group, Figure Four, PSWA, Perry Homes and Concourse (referred to as “Developer Defendants” in the amended petition) hired contractors and directed them to fill in existing creeks and drainage channels, and to remove a levee or berm on the south side of Taylor Gully that had previously protected Elm Grove. The existence of this berm was not mentioned in LJA’s engineering plans, they say.
• Even after the first flood on May 7th, when developers were aware of the danger, they failed to take corrective actions that would have prevented the September 19th flood.
• As a direct consequence of their actions and inactions, the developers flooded hundreds of homes in Elm Grove.
• The inactions of Perry and Concourse following the May 7th flood justify punitive damages.

Key Elements of Agreement Between Developers

The petition also claims that the four developer defendants entered into an agreement that called for them to:

• Make exhaustive or continuous on-site inspections to check the quality and quantity of work
• Be responsible for the techniques and sequences of construction, and safety precautions
• Take responsibility AND liability for the contractors’ failure to construct the project in accordance with the contract documents.

However, the plaintiffs also accuse the developer defendants (through negligence or omissions) of:

1. Failing to make exhaustive or continuous on-site inspections to check the quality or quantity of the work
2. Failing to properly monitor the techniques and sequences of construction or the safety precautions to ensure Elm Grove would not flood during construction
3. Failing to ensure the contractors performed the construction work in accordance with the contract documents
4. Failing to incorporate drainage studies prior to initiating construction on the Development
5. Failing to properly direct and supervise the means, methods, and techniques of the sequence in which the contractors performed the work on the Development
6. Removing drainage from the Development
7. Removing a levee and/or berm from the Development
8. Failing to implement a proper construction schedule
9. Failing to follow the construction schedule
10. Blocking the drainage channels
11. Filling in existing drainage channels
12. Failing to properly install box culverts
13. Failing to create temporary drainage channels
14. Failing to allow adequate drainage after construction
15. Failing to install silt barriers
16. Allowing the Development to force rainfall toward Plaintiffs’ homes’
17. Diverting surface water towards Plaintiffs’ homes
18. Failing to pay proper attention
19. Failing to provide notice or warning
20. Failing to have a proper rain event action plan
21. Failing to have a proper storm water pollution prevention plan
22. Failing to follow a proper storm water pollution prevention plan
23. Failing to coordinate activities and/or conduct
24. Failing to supervise the activities of the Development and engineering
25. Failing to instruct in proper construction and/or drainage requirements
26. Failing to train in proper construction and/or drainage requirements
27. Failure to review engineering plans
28. Failing to comply with the Terracon Consultants, Inc. geotechnical report
29. Failing to construct the emergency release channel
30. Failing to timely implement the detention ponds
31. Allowing inadequate construction to take place
32. Failing to hire an adequate engineer to implement the project plan
33. Failing to protect runoff from flooding homes
34. Failing to protect Elm Grove from flooding during construction.

Basis for Exemplary Damage Claim

Paragraph 42 contains some of the strongest language in the complaint. It alleges that the Developer Defendants knew of the risks, and both the probability and magnitude of the potential harm to others. The complaint asserts, “These acts and omissions were more than momentary thoughtlessness, inadvertence, or error of judgment. Rather, the Developer Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”

“Such acts and/or omissions,” the paragraph continues, “were a proximate cause of the flooding and the resulting injuries and damages sustained by Plaintiffs. Accordingly, Plaintiffs hereby seek an award of exemplary damages.”

Having said all that, the plaintiffs seek BOTH ordinary and exemplary damages (defined below).

8 Defendants, 9 Counts, 2 Floods, 3 Degrees of Negligence

Altogether, the petition alleges nine counts against eight defendants in two floods. Spelling out who is being sued for what and why involves a lot of overlap and redundancy. But some of the Counts specify subsets of defendants, floods, allegations and degrees of negligence. So you may want to read the entire document.

The petition splits the defendants into three groups: Contractors, Developers, and LJA Engineering, with specific charges against each. The basis for charges sometimes varies also. For instance, charges against LJA include (in addition to many of those above) failure to:

• Adequately report the modeling
• Use the correct hydrology method
• Adequately model the development
• Notify the developers and contractors of the importance of the existing berm.

Plaintiffs say LJA was aware of the risks, but nevertheless proceeded with willful and conscious indifference to the rights safety and welfare of the victims.

As a result, plaintiffs are suing LJA for negligence, negligence per se and gross negligence for BOTH floods.

Differences Between Degrees of Negligence

Black’s Law Dictionary describes the differences:

• Negligence is the failure to do something which a reasonable and prudent man would do, or doing something which a reasonable and prudent man would not do.
• Negligence Per Se is the form of negligence that results from violation of a statute. The violation of a public duty enjoined by law for the protection of people and property. So palpably opposed to the dictates of common prudence that no careful person would be guilty of it.
• Gross Negligence is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is a conscious and voluntary act of omission which is likely to result in grave injury when in the face of clear and present danger of which the defendant is aware.

Nuisance Claim

In addition to negligence, plaintiffs also claim nuisance…”When Defendants unlawfully diverted … water onto Plaintiffs’ homes.”

Black’s Law Dictionary defines nuisance as “…that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another…and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.”

Seeking Damages, Exemplary/Punitive Damages

The ordinary damages, plaintiffs claim, consist of one or more of the following:

1. Cost of repairs to real property;
2. Cost of replacement or fair market value of personal property lost, damaged, or destroyed during such event;
3. Loss of use of real and personal property;
4. Diminution of market value of Plaintiffs’ properties;
5. Loss of income and business income;
6. Consequential costs incurred, inclusive of but not limited to alternative living conditions or accommodations and replacement costs;
7. Mental anguish and/or emotional distress;
8. Prejudgment interest;
9. Post judgment interest;
10. Attorneys’ fees
11. Costs of Court.

However, as a result of alleged gross negligence, plaintiffs also seek exemplary damages as punishment. Black’s Law Dictionary defines exemplary damages as “Damages on an increased scale awarded to a plaintiff over and above actual or ordinary damages, where wrong done to a plaintiff was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct.”

Defendants’ Responses Not Yet Filed

As of this writing, the Harris County District Clerk’s website does not show responses filed by either Perry or Concourse to new allegations.

March 1 Preferential Trial Date Requested

Because of the number of plaintiffs, expert witnesses, defendants and law firms involved in this case, the plaintiffs have requested a “preferential trial setting” of March 1, 2021. A preferential trial setting eliminates the possibility of numerous continuances due to scheduling conflicts between the court, parties, attorneys and witnesses.

The plaintiffs have also requested a proposed Amended Docket Control Order that shows alternative dispute resolution (mediation) happening on 1/29/2021.

Net: If the judge accepts the new timetable, it will likely be another 7 to 8 months before this case sees any resolution.

As new developments happen, read about them here.

Posted by Bob Rehak on 6/19/2020

1025 Days since Hurricane Harvey and 274 since Imelda