A defendant’s motion to dismiss more than 200 lawsuits brought by two local lawyers, Jason Webster and Kimberly Spurlock, on behalf of flooded Elm Grove residents has been tabled by agreement of the lawyers involved. A hearing on the motion to dismiss was scheduled for Monday, July 15th at 4PM in Harris County Judge Lauren Reeder’s 234th Judicial District Court.

Background: Lawsuits and Motion to Dismiss

Here’s a brief chronology of events in the case to date:

• On May 7, 2019, approximately 200 homes in Elm Grove and North Kingwood Forest flooded.
• May 14, 2019, the first wave of plaintiffs filed suit against two subsidiaries of Perry Homes (PSWA, Inc. and Figure Four Parters, LTD) and Rebel Contractors, Inc. The suits allege that will clearing land for a new development called Woodridge Village, adjacent to the homes that flooded, the defendants altered drainage, causing homes to flood that had never flooded before. The suits allege negligence, gross negligence and negligence per se in the development of the new subdivision.
• May and June – In the month that followed, two more batches of lawsuits were filed on behalf of additional victims that retained Webster and Spurlock.
• On June 17, the defendants filed a motion to dismiss the suit. The basis of the motion: that Webster and Spurlock had not filed a certificate of merit against LJA Engineers with the initial suit. They claimed that filing such a certificate is a requirement under Texas law when suing engineers.

Motion to Consolidate, Change Venue and Counterclaims

That same day (June 17):

• Plaintiffs filed a motion to consolidate all three batches of lawsuits.
• Rebel Contractors demanded a jury trial and a change of venue to Montgomery County. They also filed a counterclaim.
• PSWA and Figure Four Partners also filed a motion to change venue to Montgomery County and a counterclaim against the defendants.

On June 24, 2019, the lawyers for both sides agreed to consolidate the cases and Judge Reeder signed an order consolidating them.

On June 27th, the plaintiffs filed a request to enter the defendant’s property to inspect it.

Plaintiffs’ Response to Motion to Dismiss

July 8 – Defendants responded to the plaintiff’s motion to dismiss the case(s). They cited the facts that they were NOT suing LJA Engineers, nor were they alleging any defect in their engineering plans or designs. Their claims, they said, related solely to construction practices. Specifically, they cited:

• a. Blocking the drainage channels;
• b. Filling in existing drainage channels;
• c. Failing to properly install box culverts;
• d. Failing to create temporary drainage channels;
• e. Failing to allow adequate drainage after construction;
• f. Failing to install silt barriers;
• g. Allowing the Development to force rainfall toward Plaintiffs’ homes;
• h. Failing to pay proper attention;
• i. Failing to provide notice or warning; the filling in of creeks
• j. Failing to have a proper rain event action plan;
• k. Failing to have a proper storm water pollution prevention plan;
• l. Failing to follow a proper storm water pollution prevention plan;
• m. Failing to coordinate activities and/or conduct;
• n. Failing to supervise the activities of the Development;
• o. Failing to instruct in proper construction and/or drainage requirements;
• p. Failing to train in proper construction and/or drainage requirements,
• q. Failing to construct the emergency release channel; and,
• r. Failing to timely implement the detention ponds.

On that same day, July 8, Webster and Spurlock filed an amended petition specifying points A-R above.

Lawyers Agree to Table Motion to Dismiss … Subject to Conditions

Last Friday, July 12, the lawyers for both plaintiffs and defendants filed a Rule 11 Agreement. It specifies that Figure Four and PSWA “pass” the scheduled July 15th hearing on the motion to dismiss, but retain their right to refile under certain conditions.

No Rulings Yet on Venue, Access or Trial Date

Judge Reeder has not yet ruled on the change of venue motion or access to the property. Nor has she set a trial date.

Meanwhile, Back at the Construction Site…

Meanwhile, construction on the job site in the last week continued but at a slower pace. According to Elm Grove resident Jeff Miller who has closely monitored construction progress:

• Rebel Contractors widened a ditch leading down the eastern side of the development adjacent to North Kingwood Forest.
• They deepened the channel connecting that ditch with the S2 detention pond.
• The installed culverts under a road that will connect the north and south sides of the project.
• They continued clearing land, moving dirt and building up portions of the northern section.

No More Obvious Progress on Expansion of Detention Capacity

It appears that no additional detention ponds have yet been excavated beyond S2, according to Miller. Therefore, my last estimate of approximately 25% completion of detention has not changed.

Had Hurricane Barry dropped the kind of water here that it did on Louisiana and Mississippi, Elm Grove and North Kingwood Forest residents would almost surely have flooded again.

LJA Engineers designed the onsite detention to hold a little more than a foot of rainfall. But with only an estimated 25% of the detention functioning at this point, 3″ of water could produce another flood (assuming my estimate is accurate).

Posted by Bob Rehak on July 15, 2019

685 Days since Hurricane Harvey and 9 weeks since May 7

All thoughts expressed in this post represent my opinions on matters of public interest and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas