Tag Archive for: Elm Grove lawsuits

Elm Grove Lawsuits Settled!

Jason Webster, lead attorney for hundreds of Elm Grove, North Kingwood Forest and Porter plaintiffs in lawsuits arising from two floods in 2019, confirmed for ReduceFlooding.com that the defendants have reached a settlement agreement with plaintiffs. Defendants in the Elm Grove lawsuits included Perry Homes; Figure Four Partners LTD.; PSWA, Inc; LJA Engineering; Double Oak Construction, Inc.; Rebel Contractors, Inc.; Texasite, LLC; and Concourse Development, LLC.

Settlement Comes Two Years After Second Flood

Confirmation of the settlement comes almost two years to the day after sheet flow from Woodridge Village flooded Elm Grove and North Kingwood Forest for the second time in five months.

Elm Grove debris pile from Imelda, two days after sheet flow from Woodridge Village flooded the area.

Webster says the settlement agreement prohibits disclosure of the terms, but he did say that it was “…resolved to our satisfaction.” Webster says he and co-counsel Kimberley Spurlock, who also represented plaintiffs in the lawsuits, “…still have to communicate with the clients on this and we have not done so yet as far as amounts. That has to be determined by a special master which has been appointed to administer the settlement.”

However, Webster added, “All plaintiffs who participated in the lawsuit will receive a settlement offer.”

Hints of Movement Toward an Agreement in Early August

I first caught wind of a potential settlement from updates to the Harris County District Clerks’ website when Webster and Spurlock moved to establish an Elm Grove Settlement Fund and appoint a Master-in-Chancery in early August. Then, on August 16, Judge Lauren Reeder approved both the Fund and the Chancery motions. However, two defendants, LJA and Rebel, still objected. Interestingly, the Rebel objection contained a reference that it was not a party to a global settlement with the other defendants.

Then yesterday, an unsigned trial preparation order showed up on the District Clerk’s website. I emailed Webster and later that day, he confirmed the settlement.

Motion to set trial was to be heard on 9/20/2021. That should no longer be necessary.

Facing a trial on the merits of the case often brings defendants to the settlement table when they realize delays are no longer possible. I have been on jury panels for several cases over the years. Interestingly, in every single instance, the defendants chose to settle when the jury panel walked into the room to begin the selection process.

The settlement should come as a welcome relief for many plaintiffs who were devastated financially by the repeat floods.

Elm Grove activist Jeff Miller had this to say about the settlement. “I am thrilled for those that suffered greatly and hope that this settlement will discourage future negligence by bad actors.” 

Posted by Bob Rehak on 9/10/2021

1473 Days since Hurricane Harvey and 722 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.

Kathy Perry Britton Fights Being Deposed on Elm Grove Flooding

Lawyers for Perry Homes CEO, Kathy Perry Britton, have filed a motion for a protective order to quash a request for her deposition. The motion involves lawsuits against her company and its subsidiaries for two 2019 floods that affected hundreds of homeowners in Kingwood’s Elm Grove Village and North Kingwood Forest. Ms. Britton’s basic argument: it’s beneath her.

Catch-22: Claims No Unique or Personal Knowledge

Ms. Britton’s attorneys claim she is an “apex-level” official and cannot be deposed without showing that she has “unique or personal knowledge” of discoverable information. This puts hundreds of plaintiffs in a Catch-22 situation – a paradoxical situation from which an individual cannot escape because of contradictory rules or limitations.

In essence, Ms. Britton says defendants can’t depose her because she doesn’t have anything worth knowing. But without deposing her, how could they know that?

Talking Is Too Intrusive

Ironically, her lawyers assert that plaintiffs must learn what she knows through “less intrusive methods” than talking to her. Her lawyers maintain that CEOs live by different rules than the rest of us, and cite seven pages of legal precedents to support their opinion.

Duh!!!!!!!! Making the Case for Negligence?

To reinforce her argument, Ms. Britton personally claims:

  • “I have no first-hand, personal knowledge of any relevant facts…”
  • “I have no first-hand, personal knowledge of the flooding events…”
  • “I have no first-hand, personal knowledge of the construction or engineering practices followed by Perry Homes, Figure Four Partners, Ltd., PSWA, Inc., or any of the subcontractors hired to work on the Woodridge Village Development.”
  • “I have no first-hand, personal knowledge of the selection, hiring, retention, training, or supervision of any of the subcontractors on the Woodridge Village Development.”
  • “I have no first-hand, personal knowledge of any engineering or design requirements for the Woodridge Village Development.”
  • “I have no first-hand, personal knowledge of the engineering design or plans implemented or created for the Woodridge Village Development, including whether and how such plans were approved or followed.”
  • “I have no first-hand, personal knowledge as to whether the work performed at the Woodridge Village Development was properly supervised.”
  • “I have no first-hand, personal knowledge as to what work was performed (or not performed) at the Woodridge Village Development…”

Perhaps this is why so many people flooded! In my opinion, it seems Ms. Britton just admitted negligence.

What’s Proper Response for CEO?

One might think that after approximately 200 homes flooded in Elm Grove and North Kingwood Forest on May 7, 2019, that any competent CEO would have been all over this situation to make sure it didn’t happen again. After all, hundreds of lives were disrupted and the damages could involve tens of millions of dollars. It doesn’t seem like a good time to stick your head in the sand.

If I were the CEO, I would at least investigate to see if my companies had any liability.

Bob Rehak

But no! Ms. Britton now lays bare the problem. The CEO kept her distance. It wasn’t her problem. And then it happened again.

Two to three times as many homes flooded during Imelda – only five months later. For the same reasons. And, if we take her at her word, she still kept her distance.

The floods were important enough for the Harris County Judge Lina Hidalgo; Dave Martin, the Mayor Pro Tem of the City of Houston; and US Congressman Dan Crenshaw to visit Elm Grove. But not Kathy Perry Britton.

Talk About Intrusiveness!

Sitting for a deposition in a comfortable conference room seems far “less intrusive” than having several feet of muddy floodwater invade your home, destroy your belongings, and ruin your vehicles. (Ms. Britton, if you want to know what “intrusive” is, see below.)

Abel and Nancy Vera live next to Woodridge Village (in the background beyond the trees). They burned out two power washers trying to get several inches muck off their driveway after Imelda.
Vehicle destroyed in Imelda flood. Vera neighbor on Village Springs in Elm Grove.
Water in Keith Stewart's home on Shady Maple after May 7th flood in 2019.
Water in Keith Stewart’s home on Shady Maple after May 7th flood in 2019.
The hopes and dreams of children were dragged to the curb for the second time in five months after the September 19th flood in Elm Grove.
US Congressman Dan Crenshaw talking with Elm Grove residents whose homes were destroyed in the September 2019 flood.

It’s curious that a US Congressman took the time to get personal, first-hand knowledge of the floods in Elm Grove and North Kingwood Forest. But Kathy Perry Britton could not. Perhaps picking wallpaper for her new model homes was more important.

I hope the judge in this case quashes the protective order. Read the full text of Ms. Britton’s Motion for a Protective Order here.

Read Plaintiff’s latest amended petition here.

For more about the history of the Woodridge Village fiasco see:

Posted by Bob Rehak on 4/24/2021

1334 Days after Hurricane Harvey and 583 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.

Webster, Spurlock Add Storm Water Solutions to Lawsuit for Elm Grove Plaintiffs

On December 17, 2020, Jason Webster and Kimberley Spurlock, lawyers for the plaintiffs in the 2019 Elm Grove lawsuits, added a ninth defendant in their eighth amended petition. The defendant is Storm Water Solutions, LLC at 16110 Hollister Street in Houston.

Complete List of Defendants

Defendants now include:

  • Developers:
    • Perry Homes, LLC
    • Figure Four Partners, LTD
    • PSWA, Inc.
    • Concourse Development, LLC
  • Contractors:
    • Rebel Contractors, Inc.
    • Double Oak Construction, Inc.
    • Texasite LLC
  • LJA Engineering, Inc.
  • Storm Water Solutions, LLC

Who Was Responsible for What and When

The eighth amended petition provides an overview of who allegedly did what and when, before Elm Grove flooded on May 7th and September 19th last year when water from Woodridge Village invaded Elm Grove and flooded up to 600 homes.

The developer defendants hired LJA, which had prepared the drainage plans for Woodridge Village, to prepare bid documents, plans and specifications, all of which required a stormwater pollution prevention plan (SWPPP) for all potential contractors. The developer defendants and LJA, through the municipal utility district, hired Rebel, Double Oak, and Texasite. Rebel and Double Oak then obtained the necessary permits for the SWPPP.

Bombshell Allegations

Here’s where it gets interesting. Sometime after that, the developers hired Storm Water Solutions to implement the SWPPP. However, they allegedly told Rebel and Double Oak that they did not have to comply with the specifications in the SWPPP.

The southern part of Woodridge Village on May 9 from a drone. Elm Grove is on left. Note lack of any perimeter sediment controls. Screen capture from Jim Zura video.

One day after the May 7th flood, the developers hired Concourse to inspect the detention ponds on the development. Plaintiffs allege that Concourse did not advise the developer defendants to makes any changes. The plaintiffs also contend that ALL defendants failed to comply with the SWPPP. The TCEQ cited both Rebel and Double Oak for violations of their permits after the May 7th flood for failure to install sediment controls.

The suit alleges that the developer defendants failed to supervise and ensure Storm Water Solutions complied with the SWPPP.

Twin culverts at the county line were severely constricted by sediment after the May 7th flood. Note lack of sediment controls such as gabions (wire baskets filled with rock).

Specific Allegations against Storm Water Solutions in Lawsuit

Storm Water Solutions website claims the company provides “complete storm water regulatory compliance to land developers, commercial and residential builders, general contractors, and utility districts.”

But in Count 10, Paragraph 76, the suit charges Storm Water Solutions with Negligence, Negligence Per Se and Gross Negligence for both the May and September floods. Specifically, the alleged negligence includes failing to:

  1. Create an adequate storm water pollution prevention plan;
  2. Implement a storm water pollution prevention plan;
  3. Comply or follow the Storm Water Pollution Prevention Plan;
  4. Install reinforced filter fabric fences around the Development;
  5. Install adequate reinforced filter fabric fences around the Development;
  6. Comply with Texas Pollutant Discharge Elimination System Construction General Permit No. TXR150000;
  7. Supervise the Contractor Defendants’ compliance with the Storm Water Pollution Prevention Plan;
  8. Enforce the provisions of the Storm Water Pollution Prevention Plan;
  9. Enforce and/or implement the best management practices under the Storm Water Pollution Prevention Plan for the Development;
  10. Implement the proper control measures on the Development;
  11. Ensure a sedimentation basin was constructed at the Development;
  12. Inspect the Development for failure to comply with the Storm Water Pollution Prevention Plan;
  13. Modify the best management practices after the May 7, 2019 occurrence;
  14. Comply with the plans and specifications for the Development;
  15. Pay proper attention;
  16. Provide notice or warning; and,
  17. Coordinate activities and/or conduct.

It also alleges they allowed:

  1. Storm water runoff into Plaintiffs’ properties;
  2. Discharge of storm water from the Development.

Stormwater Pollution Prevention Plan Requirements, Objectives

The EPA provides this easy to follow document about what a SWPPP should include. SWPPP requirements include a site map, description of pollutant sources, controls to reduce pollutants, and maintenance and inspection procedures. Plans should also describe who:

  • Is on the stormwater pollution prevention team?
  • Will install structural stormwater controls?
  • Will supervise and implement good housekeeping programs, such as site cleanup and disposal of trash and debris, hazardous material management and disposal, vehicle and equipment maintenance, and so on?
  • Will conduct routine inspections of the site to ensure all BMPs are being implemented and maintained?
  • Will maintain the BMPs?
  • Is responsible for documenting changes to the SWPPP?
  • Is responsible for communicating changes in the SWPPP to people working on the site?
State of the S2 detention pond on May 9, 2019.

Plan objectives typically include:

  • Site stabilization ASAP
  • Protecting slopes and channels
  • Promoting infiltration of stormwater
  • Controlling the perimeter of the site
  • Protecting receiving waters adjacent to the site (Taylor Gully)
  • Following pollution prevention measures.
  • Minimizing the area and duration of exposed soils.
The southern part of Woodridge Village on May 9 from the ground.

For the complete text of the Eighth Amended Petition, click here.

Posted by Bob Rehak on 12/25/2020 with thanks to Jim Zura

1214 Days after Hurricane Harvey and 461 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.

Defendants, Plaintiffs Latest Legal Wrangling in Elm Grove Lawsuits

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.

In September, 2019, residents on Village Springs Dr. in Elm Grove we’re still living in trailers from the May 7th flood when they were struck again. Woodridge Village is immediately to the right, just out of frame. Shown here: sheet flow coming from Woodridge.

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. 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.