Tag Archive for: elm grove

Imelda’s Third Anniversary Brings Clearcutting into Focus

Today is the third anniversary of the day Tropical Storm Imelda flooded approximately 600 homes in Elm Grove and North Kingwood Forest. A major contributing factor: clearcutting 268 acres immediately upstream. Here are several pictures and videos that people sent me.

Looking NW at Woodridge Village days before Imelda. During the storm, water flowed toward the circle, bottom right, with little to slow it down. Overflow went into surrounding streets. See video below taken from ground level.
September 19, 2019. Sheet flow from the Woodridge Village development flows down Village Springs in Elm Grove.
Family evacuating through North Kingwood Forest.
Car submerged during Imelda at the end of Village Springs adjacent to Woodridge.
People living in campers while restoring their homes from the May 7, 2019 flood were flooded again.
Security cam time lapse footage in Elm Grove on east side of Taylor Gully.
Depth of flood in Elm Grove was about two feet at this house.
Elm Grove debris pile after Imelda flood.
Abel Versa had to grab his car to avoid slipping in ankle-deep muck on Village Springs.
The bridge over Taylor Gully at Rustling Elms in Elm Grove caught debris flowing downstream.

Before the clearcutting, these areas had not flooded – even during Hurricane Harvey.

Lessons Lost

Lawsuits against the Woodridge Village developer and its contractors quickly followed. And flood victims won a major settlement. But the clearcutting lessons learned in court seem to be lost on other developers.

Lately, it seems that developers all around northern Harris, southern Montgomery, and Liberty Counties have employed clearcutting.

These represent just a few of the clearcutting stories I’ve covered in the last few months. So far, they’ve been lucky. We haven’t had any tropical storms like Imelda.

But still, risk remains. You’d think developers would hedge that risk by leaving some trees. They reduce erosion. Suck up rainwater. Slow down runoff. And filter water that may overflow detention basins.

But it’s their property. And your problem if we get another Imelda.

Posted by Bob Rehak on September 19, 2022

1847 Days since Hurricane Harvey and 3 years since Imelda

Woodridge Village Detention Ponds Passed Sunday Test, But…

On Sunday morning, Jeff Miller, an Elm Grove resident who lives near Woodridge Village, reported 5.5 inches in his rain gage. That compares to a 6.24 inch rain that fell on Woodridge on May 7, 2019, when hundreds of homes in Elm Grove and North Kingwood Forest flooded. Also, Woodridge falls about 40% short of current Atlas-14 standards required to hold back floodwater from a 100-year storm.

So you can understand how nervous Elm Grove and North Kingwood Forest residents felt, especially considering that excavation of additional detention ponds on Woodridge Village has not yet started. Regardless, Woodridge did not flood homes across the county line this time. Here’s why.

Important Factors to Consider

Other important factors came into play last weekend that should relieve some of residents’ anxiety and help explain what happened.

First, remember that on May 7, 2019, Perry Homes’ contractors had clearcut 268 acres, but had barely begun work on detention ponds. Only one of five was complete.

Second, the intensity of the May 7, 2019 rain was higher than last weekend’s. On May 7, 6.24 inches fell in 5 hours. Last weekend, 5.5 inches fell in 9 hours.

Third, in 2019, the S2 detention area had been partially excavated but didn’t have any outflow control restrictions installed yet. So it didn’t really function as a detention pond.

Fourth, contractors had destroyed a berm between Elm Grove and Woodridge, and filled in a natural stream on Woodridge. Both have since been replaced.

Fifth, by current standards, last weekend we had a 5-year storm. But the detention ponds were designed to hold what today would be classified as a 25-year storm.

Photos Taken Sunday Morning

I took the photos below Sunday morning between periodic sprinkles, several hours after heavy rain stopped. They show how the current Woodridge Village detention handled the storm. All ponds were well within their banks. One was empty.

The triangular pond on the left is N2. N1 is out of sight above it. The two ponds on the right are S1 (foreground) and S2 beyond it. N3 is out of sight at the top of the frame.
S2 was about halfway to two-thirds full.
The tail of S2 is already silting in but had plenty of room to spare.
N3 Pond on eastern edge of property was supposed to have had an outflow control device but never got one.
The Junction where water from all five ponds comes together before flowing into Taylor Gully. N3 is at top of frame.
Reverse angle shot of the Junction with Taylor Gully in the background. Note how high the detention ponds are compared to the gully. The areas that flooded so badly in 2019 are just beyond the ponds.
Water coming from the big trianglar N2 pond now has to go through these twin culverts which were almost completely inundated.
Wider shot shows volume of water backed up in N2.
Only N1 in the NW corner of Woodridge was totally dry. The outflow capacity is much greater than the inflow. So this pond provides no detention benefit whatsoever. Local resident Jeff Miller says he has NEVER seen standing water in this pond.

Big Test and Additional Excavation Yet to Come

So the Perry-installed detention passed another test. But it was far from what college students would call a final exam.

Flood Control purchased this site last year and plans to turn it into a regional detention basin by more than doubling the detention capacity. However, the excavation contract lets the contractor take the dirt when it can be sold, while only meeting minimum monthly requirements which have not yet kicked in.

Posted by Bob Rehak on 1/11/2022

1596 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.

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.

TCEQ Commissioners to Consider Agreed Order With Double Oak Construction on Woodridge Village Enforcement Action

The month after Woodridge Village flooded Elm Grove Village and North Kingwood Forest for the first time in May, 2019, the TCEQ investigated construction practices there. In the ensuing months, six investigations found 13 violations on the Woodridge site.

More than two years later, the charges against Double Oak Construction will finally be heard by TCEQ Commissioners in their September 9 meeting. This is basically a water quality case that has to do with pollution of Taylor Gully, the San Jacinto East Fork and Lake Houston. Charges include failure to:

  • Prevent sediment-laden discharge
  • Prepare a Stormwater Pollution Prevention Plan
  • Correctly identify receiving waters for the discharge
  • Implement and maintain effective best management practices.

On TCEQ Commissioners Docket for September 9

Item 29 on their docket reads:

No. 2019-1513-WQ-E. Consideration of an Agreed Order assessing administrative penalties and requiring certain actions of Double Oak Construction, Inc. in Montgomery County; RN110478583; for water quality violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Tex. Admin. Code ch. 60.

Water samples taken by the investigators showed that at the outfall:

  • Total Suspended Solids were 70 times higher compared to upstream
  • Total Dissolved Solids were almost 18 times higher.

Double Oak had been hired to clear and grub the site. That means removing trees and roots.

Unchecked erosion from site polluted water downstream with suspended solids 70 times higher than upstream.
Abel Vera had to grab his car to avoid slipping in ankle-deep sediment on Village Springs. Vera lives next to Woodridge.

Definition of Agreed Order

This enforcement action by the TCEQ falls into a category called an “Agreed Order.” A website called USLegal.com defines an agreed order as: “An Agreed Order refers to a written agreement submitted by the parties to a case resolving the issues between them. Once the agreed order is approved by the court and entered in its minutes, it becomes the order or decree of the court with all of the force and effect that any order would have after a full hearing prior to adjudication.” 

However, they add: “…until then, an ‘agreed order’ is no order at all, but merely an agreement of the parties. It has no significance … until a judicial … decision gives it significance.” TCEQ Commissioners will take that step on September 9.

Double Oak Penalties Unclear

Documents supplied in response to a FOIA request did not discuss what the penalties might entail for Double Oak. The company left the construction site long ago. It has since been sold to Harris County Flood Control and the City of Houston for a regional stormwater detention basin and sewage treatment plant. So it’s not as if Double Oak can make good by simply agreeing to clean up its act.

Typically, such cases involve a modest fine. The significance in this case: Double Oak apparently is admitting wrongdoing before a decision or settlement has been reached in hundreds of homeowner lawsuits downstream. More on those at a later date.

For More Information

For more on what led to the lawsuits, see:

Elm Grove Residents Look for Answers and Don’t Have to Look Far

What Went Wrong Part 1

What Went Wrong Part 2

What Went Wrong Part 3

What Went Wrong Part 4

What Went Wrong Part 5

Posted by Bob Rehak on 8/31/2021

1463 Days after Hurricane Harvey and 712 Days 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.

Harris County, City of Houston Finally Close on Purchase of Woodridge Village Property

Today, almost two years after Perry Homes’ Woodridge Village development first contributed to flooding Elm Grove Village and North Kingwood Forest in Kingwood, Harris County and the City of Houston finally purchased the aborted, ill-conceived development.

Current plans are for the City of Houston to build a wastewater treatment plant on the northern portion. Harris County Flood Control District will use the southern portion to build a regional floodwater detention center. The latter should alleviate flooding problems adjacent to the development as well as other areas farther downstream on Taylor Gully.

Exact Plans for Additional Detention Capacity Not Yet Developed

It is not immediately clear how much additional detention pond capacity HCFCD will build on the property or where. However, on February 9, 2021, HCFCD hired an engineering company to develop preliminary plans.

A press release issued today by Harris County Flood Control said, “The next step is to undergo an engineering analysis to maximize stormwater detention volume, quantify the benefit to the community and determine project cost and funding. Additional community engagement will be scheduled to gather input from area residents on the proposed project and to present project alternatives.”

History of Flooding

The flooding problems began on May 7, 2019 when approximately 200 homes flooded from sheet flow coming from the development. Two to three times that number of homes flooded on September 19th, 2019 during Imelda.

Contributing factors included:

Eventually, Perry Homes, its subsidiaries and contractors managed to build five detention ponds, but their capacity still fell about 40% short of Atlas-14 requirements. Thus, the development would have posed a risk forever after had Harris County and the City not stepped in.

Photos of Property Just Purchased

Here are pictures of Woodridge Village taken on 3/3/2021 from several different angles.

Woodridge Village looking SW from the NE corner of the property in Montgomery County. The diagonal near the top of the frame and the detention pond is the Harris/Montgomery County line. Ford Road is on left.
Looking SE from the NW corner over Webb Street in Porter. The land slopes from the corner in the foreground to the detention pond in the background. Taylor Gully starts just beyond the detention pond.
Looking west along the northern boundary. The City portion of the property will border the tree line on the left and extend into the small area at the top.
Looking east along the southern border. Camera position was over Kingwood Park High School.
Looking NE from the southern border over Sherwood Trails Village in Kingwood.
Looking north up Village Springs Drive in Elm Grove. Taylor Gully starts on the right at the county line just below the concrete junction.
Looking NW from over North Kingwood Forest. Taylor Gully is on bottom right. The land slopes toward the camera position.

More About the Sale

All of the 267.35 cleared acres fall within Montgomery County. But a provision within the 2018 Flood Bond allows Harris County to purchase land in other counties if it helps control flooding in Harris.

The Harris County Flood Control District and the City of Houston jointly purchased the property for approximately $14 million. The Flood Control District is using funds from the 2018 Bond Program (Bond ID Z-02) to acquire the land. The City of Houston contributed approximately $3.8 million dollars for the use and ownership of 73 acres on the northern part of the property.

Reaction from Government Officials

“This is a great example of government doing what government is supposed to do – listening to the people who live in those neighborhoods and working to protect them from future flooding,” said Harris County Precinct 4 Commissioner R. Jack Cagle, who pushed this project through against opposition in Commissioner’s Court.

Houston Mayor Pro Tem Dave Martin also worked tirelessly to make the deal happen. It involved trading City land to the County for flood control projects and getting the City to adopt the County’s flood control standards. “This purchase is integral for investment in the future of the Kingwood area as well as many homes along the county line. Collaboration like this is essential in providing a sense of security to residents who have endured so much uncertainty these last few years,” said Mayor Pro Tem Dave Martin.

Congressman Dan Crenshaw lauded Cagle, Martin, and community support. “This is an important step forward in building a more resilient community,” he said.

State Senator Brandon Creighton said, “This type of partnership and investment will make Kingwood and surrounding areas better protected.”

State Representative Dan Huberty complimented the City and County for working together. “This is a great example of different areas of government working together to achieve the best outcomes for local residents,” he said.

Additional detention ponds are not yet built, but this is a huge step forward. A big “thank you” and “whew” to all involved.

Posted by Bob Rehak on 3/3/2021

1283 Days since Hurricane Harvey and 532 since Imelda

How Much Rain Would It Take To Flood Elm Grove Again?

As Tropical Storm Beta bears down on the Houston Area, many people in the Elm Grove/North Kingwood Forest area worry that they might flood again. How likely is that, given the current predictions of 6-10 inches? After all, on May 7 last year, Elm Grove flooded on what was officially a six inch rain according to the nearest gage at West Lake Houston Parkway and the West Fork.

Additional Detention in Woodridge Village Now…

First of all, understand that upstream conditions have changed. On May 7th, only about 11% of the planned detention pond capacity had been constructed. And only 23% was constructed by Imelda. Today, 100% is in place.

…But Detention Based on Pre-Atlas 14 Rainfall Rates

Even though that’s far more than Woodridge Village had during the May or September floods, the detention calculations by LJA Engineering were based on pre-Atlas 14 rainfall rates. A 100-year rainfall then was about 40% less than the official 100-year rainfall now.

So, the questions is, “How much rain would Beta have to dump on Woodridge Village before it overwhelmed the detention ponds that exist today?”

Figures Used by LJA

The chart below shows the rainfalls that the ponds were designed to hold without flooding. The bench mark its the 24-hour, hundred year rain.

These figures come from the hydrology report submitted by LJA to Montgomery County. A table buried on page 32 of the PDF shows that they based their analysis on a pre-Atlas 14, 100-year storm that dropped 12.17 inches of rain in 24 hours.

From Page 2.1 of LJA Hydrology Report Addendum, 8/28/2018 (page 32 of pdf.)

The ponds should also hold any of the shorter-duration rainfalls in the last column above.

Assumptions Underlying the Answer

To answer the question – How much would it take to flood Elm Grove again? – we need to make several assumptions:

With those caveats in mind, it would take 12+ inches of rain in 24 hours to exceed the capacity of the detention ponds currently on Woodridge Village. After that, water would start to overflow.

Short, High-Intensity Downpours Can Cause Different Type of Flooding

However, consider the other durations in the chart above. Seven inches in three hours or nine inches in six hours could also exceed the capacity.

Actually, as you get into these short-duration, high-intensity rainfalls, you introduce the risk of flooding from a second source: overwhelming the capacity of storm drains.

Storm Drains Designed for 2″ Per Hour

The storm drains in Kingwood are designed to convey about two inches of rain per hour. When you exceed that, water begins to back up in the streets. Exceed it enough, and water could actually enter homes – without sheet flow from Woodridge Village.

NHC Rainfall Prediction Spans 5 Days

The six-to-ten inch prediction issued by the National Hurricane Center for Beta spans five days. That’s good news. If ten inches were evenly spread out over five days, the streets, drains and ditches could easily handle two inches per day.

But those short, high intensity rainfalls – when you get two inches in five or ten minutes – represent a real danger. There’s just nowhere for the water to when it comes down that quickly.

Perhaps the Biggest Danger

Even if we got the predicted 6-10 inches all in one day, that’s still, at most, about 80% of the old 100-year rain which the detention was designed for.

I suspect the biggest danger from Beta may be those short, high-intensity cloud bursts or training feeder bands that dump a couple inches in five or ten minutes.

So keep your eye on the rain gage. Sign up for alerts at the Harris County Flood Warning System. Also, keep your eye on the forecasts; uncertainty still exists with Beta, its track and rainfall potential.

Posted by Bob Rehak on 9/19/2020

1117 Days after Hurricane Harvey and 1 year after Imelda

Harris County Commissioners Approve Negotiation of Earnest Money Contract for Woodridge Village

Harris County Commissioners Court just approved a motion authorizing negotiation of an earnest money contract with Figure Four Partners, Ltd. (Item 14G on today’s agenda). The contract will lock in the purchase price of 267.35 acres in Montgomery County for the Woodridge Village stormwater detention basin. The amount: $14,019,316 – $5,100,770 below the appraised value.

However, this is not yet a decision to purchase the property.

Conditions Must Still Be Met Before Purchase

The City of Houston still must meet certain conditions and commitments before the actual purchase comes up for a vote. Within 120 days, the City must:

  • Enter into an inter-local agreement with the County to purchase the property.
  • Contribute half the purchase price in cash or land
  • Agree to share equally in the cost of development and maintenance
  • Adopt Atlas 14 and update fill mitigation requirements at least as stringent as the County’s.

Ellis Tried to Add More Conditions

In at least five previous meetings, Precinct One Commissioner Rodney Ellis successfully delayed the vote by adding new conditions to the motion.

True to form, he tried again today. He wanted to use the purchase as leverage to get the City to adopt his “equity” guidelines. Those guidelines rank flood bond projects in his district above those in others.

Harris County Precinct One Commissioner Rodney Ellis

Garcia Also Wanted to Add New Condition

Precinct 2 Commissioner Adrian Garcia also wanted to add a new condition. He wanted to get the City to give Harris County Flood Control District (HCFCD) a place on the City’s planning commission. At this point in the meeting, it looked like the motion could die again.

However, Houston Mayor Pro Tem DAVE MARTIN assured Precinct 2 Commissioner Adrian Garcia that he would fight to get HCFCD a place on the Planning Commission. Garcia then decided to vote for the motion. Earlier this month, the two jointly requested the Planning Commission to consider higher flood mitigation standards in their planning decisions.

How Vote Went Down

Garcia emphasized that he didn’t like the Woodridge Village motion per se, but that he trusted Martin to get the County a seat on the planning commission. Thus, he would vote for the Woodridge earnest money proposal.

Veteran observers of Commissioners Court say this was the first time Ellis, Hidalgo and Garcia contemplated splitting their vote. Previously, they have always voted as a block.

Commissioners Jack Cagle and Steve Radack had already voted for the motion. When Garcia flipped, Ellis and Judge Lina Hidalgo read the handwriting on the wall. They also voted for the Woodridge earnest money contract at that point. The final vote: 5-0.

What Comes Next

At this point, final language of the Inter-Local Agreement with the City must be hammered out in the next 120 days. The City must also agree to the conditions listed above by:

  • Identifying land worth half the purchase price
  • Contributing assets or cash equal to half the purchase and development costs
  • Updating certain regulations affecting flood plain development

It also seems to me that the County must develop plans for Woodridge so that it can estimate costs and how much the City will have to contribute.

Finally, Perry Homes and its subsidiary, Figure Four Partners, must agree to all the conditions and sign the earnest money contract.

There is still a long road ahead for this deal. But today was a great step forward. At least we’re on the road now, thanks in large part to Commissioner Jack Cagle and Houston Mayor Pro Tem Dave Martin who refused to let this deal die.

Posted by Bob Rehak on 9/15/2020

1113 Days after Hurricane Harvey and 362 since Imelda

More Delays, Denials, and Victim-Blaming in Elm Grove Lawsuit

Defendants in the Elm Grove flood lawsuit have filed more than 20 new documents with the Harris County District Clerk since mid-July. The big news: The addition of Concourse Development, LLC to the lawsuit has pushed back the trial date from March to September next year. It has also triggered more victim-blaming plus claims and cross-claims among the defendants.


In 2019, runoff from 268 clear-cut acres under development by Perry Homes contributed to flooding in Elm Grove, not once, but twice. Victims sued two subsidiaries of Perry Homes who were developing the property. They also sued several contractors, and LJA, the engineering company.

Screen capture from video taken by Cogdill family during May 7th flood of 2019 shows water streaming out of Woodridge Village into Elm Grove.

In June 2020, lawyers for plaintiffs added Perry Homes and Concourse Development to the lawsuit.

Perry promptly responded, blaming the victims for their own damages.

Perry Homes is the parent company of subsidiaries PSWA and Figure Four Partners, who were originally sued.

Many Elm Grove Families had to be rescued.

Concourse Development bought the property now known as Woodridge Village on 1/12/2018 and sold it to Perry Homes six days later.

Five developers owned the Woodridge Property before Figure Four Partners, LTD, a Perry Homes subsidiary. Concourse owned it for six days before flipping it to Figure Four. Source: Montgomery County Appraisal District.

Concourse is also the developer of Woodridge Forest, immediately west of Woodridge Village. Approximately one year before the purchase and quick sale, Concourse reportedly told Woodridge Forest residents at a community meeting that the Woodridge Village property would never be developed because it was “just too wet.” USGS classified large parts of the area as wetlands and multiple streams converged there.

Where Case Stands Now

The addition of Concourse to the lawsuit prompted multiple requests by Concourse and other defendants to delay the trial again – until September 20, 2021. Concourse said it didn’t have enough time for discovery and preparation. Given that the case was already almost a year old, Concourse claimed it had a lot of catching up to do. In their response to the plaintiffs’ sixth amended petition, Concourse also pointed some fingers at other defendants. One then filed a cross-claim against Concourse (see below).

Concourse Blames Victims and Almost Everyone in Sight

Defendant Concourse Development LLC denied each and every claim in Plaintiff’s latest petition. This is called a General Denial.

Concourse then lists eight pages of defenses. They repeat the phrase “Pleading further, and in the alternative, if such be necessary and subject to the foregoing pleas and without waiving same…” a grand total of twenty times. That means, “If the general denial doesn’t work, we reserve the right to claim X. And if X doesn’t work, we reserve the right to claim Y. Etc.”

More Than 20 Defenses Asserted

With that as a preface, Concourse also pleaded that:

  1. Concourse was not the immediate or sole cause of the flooding and damages.
  2. “Acts, omissions, fault, negligence and other conduct of the Plaintiffs” were the immediate and sole cause, in whole or in part, of the flooding and their damages. (They do not explain why they believe that, though.) Said another way, the victims caused their own damages.
  3. Other defendants caused the damages.
  4. New and independent third parties caused the damages.
  5. Other people caused the damages.
  6. Concourse had no obligation to the victims.
  7. Concourse’s conduct was reasonably prudent.
  8. The flooding was an unavoidable accident.
  9. Plaintiffs failed to mitigate their damages.
  10. Their contract (presumably with Perry) gives them indemnity.
  11. Any payments made by other parties (not a part of the litigation) to Defendants should offset any liability Concourse may have. (Presumably, they’re talking about insurance companies.)
  12. Any award against Concourse must be reduced by the percentage of fault attributable to others, including the Plaintiffs themselves, and third parties.
  13. Flooding was caused by an intervening, but unspecified cause.
  14. Plaintiffs’ claims fail to state a claim upon which relief can be granted.
  15. To the extent that Plaintiffs allege lost wages or loss of earning capacity, recovery should be limited to post-tax earnings or net earnings.
  16. Plaintiffs’ damages resulted from prior or pre-existing conditions over which Concourse had no control and did not cause.
  17. God caused the damages.
  18. Any punitive damages awarded in the case should be reduced in proportion to Plaintiffs’ own negligence.
  19. Plaintiffs’ claims should be barred because Concourse acted with due care and complied with all laws and regulations.
  20. Plaintiffs’ assumed the risk that resulted in their “alleged” damages.
  21. Punitive damages violate the Due Process and Equal Protection provisions of the Fourteenth Amendment of the US. Constitution and the Double Jeopardy Clause of the Fifth Amendment.
  22. Punitive damages violate Chapter 41 of the Texas Civil Practice and Remedies Code, the Texas Constitution, and the United States Constitution.
  23. Prejudgment interest should be limited under Texas Law.
  24. Plaintiffs have not fulfilled all the conditions necessary to maintain the lawsuit.
  25. The One Satisfaction Rule should govern any awards.

The last point means that a plaintiff should only recover once for a particular injury. It applies when several defendants commit the same act or when multiple defendants commit different acts that result in one injury.

Defendants Now Fighting Among Themselves

If many of those points sound contradictory, they are. But Concourse has covered all its bases.

In #3 above, Concourse pointed the finger of blame at other defendants in the case. Evidently, Double Oak Construction, Inc., one of the other defendants didn’t like that. So…

On 8/6/2020, Double Oak filed a cross-claim against Concourse. Double Oak alleges that Concourse should be held directly liable to plaintiffs for any and ALL damages they suffered. Double Oak also wants a jury to decide Concourse’s percentage of liability.

Why is that? Double Oak alleges that “…the Developer Defendants hired Concourse on May 8, 2019, the day after the extreme weather event on May 7, 2019, to inspect the Development and that Concourse did not advise the Developer Defendants to make any changes to the detention.” Nor, they claim, did Concourse advise Double Oak or the other Contractor Defendants to make any changes to their work after the inspection.

Therefore, Double Oak further alleges, Concourse is liable to Plaintiffs for damages and any award levied against Double Oak.

Double Oak Objects to Concourse Production of Documents

In its response to the Plaintiffs, Concourse also gave “notice to all parties that any and all documents produced during discovery may be used against such parties at any pre-trial proceeding and/or trial … without the necessity of authenticating the document.”

Double Oak objected to this. Double Oak claims it doesn’t know what specific documents Concourse intends to use, therefore Double Oak is handicapped in its defense.

Trying to anticipate every single document produced by any party would cause an undue hardship, claims Double Oak. Double Oak reserved its right to authenticate any and all documents that Concourse produces as part of discovery.

Woodridge MUD Fights Subpoena for Documents

In other news on the case, the Woodridge Municipal Utility District (MUD) is fighting production of documents that have been subpoenaed.

The Woodridge MUD claims that the Plaintiffs’ subpeona is “overly broad and seeks to inquire into matters subject to the attorney-client privilege.” They also claim that some of the requested documents involve matters discussed during executive sessions of the Woodridge MUD board.

The MUD also refuses to produce documents anywhere other than at the offices of its counsel.

Posted by Bob Rehak on 8/10/2020

1077 Days after 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.

The Long, Hard Road from Vietnam to Elm Grove for John Hulon

This is the story of a Vietnam veteran and former police officer who has lived in Elm Grove for more than 25 years. John Hulon’s troubles started when he was laid off from his job after brain surgery. Then he had a stroke. Followed by a heart attack. After being forced into retirement, he discontinued his flood insurance to save money. Then he flooded. Twice. John spent his life savings to restore his home and replace two vehicles. Now, a planned mitigation project that could protect his home from future flooding has become a political football. Regardless, he focuses fondly on his neighbors and the 12 volunteers from Second Baptist Church who helped him in his darkest hours. 

Interview with John Hulon

Rehak: How badly did the 2019 floods affect you?

Hulon: We lost everything.

Gutting the Hulon Residence after May Flood

Rehak: Why did you buy your house in this neighborhood?

Hulon: We always wanted to buy a house. So, we started looking around. A real-estate lady, who was an ex-Marine, took good care of us and showed us some homes.

You can tell immediately as you walk in a house if you like it. My wife fell in love with this one instantly. And then the real estate agent opened the curtains and we saw the home had a swimming pool. That was the icing on the cake. So, we bought it. And we’re still in love with it.

No Flood Insurance

Rehak: Did you pay off the mortgage before it flooded? 

Hulon: Yes. 

Rehak: Is that why you didn’t have flood insurance? 

Hulon: Flood insurance was a condition of the mortgage. But after paying the mortgage off, I dropped the insurance because, in the history of Elm Grove, it had never flooded here. And at that point, all we had was Social Security and military retirement. I couldn’t afford the insurance anymore.

Swollen doors and waterlogged studs.

High School Graduation Trip…to Vietnam

Rehak: What branch of the military were you in? 

Hulon: Air Force. In security.

Rehak: Was that back during Vietnam?

Hulon: Yeah, for my high school graduation trip, I went to Vietnam. 

You could say I grew up over there. I went when I was eighteen. In 1967.

Rehak: How long were you in the Air Force?

Hulon: Twenty years. I retired in 1987.  

Preserving the Uniform. The Army uniform belonged to Hulon’s father. He died of Agent Orange after serving in WWII, Korea and VietNam where he was also wounded.

Rehak: Were you in combat?

Hulon: Minor. Mostly I guarded airplanes. 

Switch to Law Enforcement

Rehak: What did you do when you came back?

Hulon: I was stationed at March Air Force Base in Riverside, California. And then I got out of the Air Force for a while after initially serving four years and went back to Louisiana, where my parents lived. I got a job as a city policeman in Leesville, Louisiana. And while there, I met an Air Force recruiter. He persuaded me to rejoin the Air Force. I told him I’d rejoin if he could get me changed from security to law enforcement, which he did. Then after I got out of the Air Force the second time, I started working in retail as a loss prevention manager. And later in IT.

Loss Prevention Manager Who Lost Everything

Rehak: Loss prevention! That makes a good transition to Elm Grove. You lived there for decades. Did you flood in May or just in September of 2019?

Hulon: I flooded in both. In the first flood, we only had to tear out half the walls. But we also had to buy all new furniture, new beds, new everything. We’d just finished that when it flooded again in September.

Rehak: How much of the house did you have restored before it flooded again?

Heirlooms lost to sediment-laden floodwater

Hulon: Walls and floors. We were in the process of repairing the cabinets. We had brand new cabinets before the first flood and they’re still here. They were still usable after the first flood. But after the second flood, they wouldn’t close. They still need to be redone, but we haven’t redone them yet.

Rehak: Will you tell me a little bit about your medical history. 

“I Died in the Back of That Ambulance”

Hulon: I was sitting at my desk working and I started feeling really funny and I knew something was wrong. My co-workers wanted to call an ambulance. But instead I drove my truck home. My wife and daughter were going to take me to the hospital. But we only got to the end of the street before they had to turn around. They called 911. By the time the ambulance came, I was pretty much out of it. They put me on the stretcher. 

In my mind, I died in the back of that ambulance.

John Hulon

Rehak: Why do you say that?

Hulon: I had an out-of-body experience. I was actually looking down at myself from above somewhere while they worked on me. When I got to the hospital, they did a brain scan and thought I had cancer. Turned out it was an abscess. The surgeon told me, “I just barely touched it and it popped.” So, I’m very lucky. They did the surgery and I stayed in the hospital for about two months.

Stroke and Heart Attack

Rehak: And then?

Hulon: Then I had a stroke.

Rehak: When did you have your heart attack, John?

Hulon: About two years ago. After Harvey.

Rehak: What triggered that? 

Hulon: I don’t really know. I was just sitting watching TV when I started feeling funny and had a lot of pain in my back. It wasn’t normal. I was injured pretty bad in Vietnam. So, I’m used to back pain, but not like this. I laid down on the couch and I knew something was wrong. I called 911. They came and said I was having a heart attack.

Rehak: Did you need a bypass or a stent?

Hulon: No, they just put me on a blood thinner and some blood pressure medication. 

Floods Used up Entire Life Savings

Rehak: Rebuilding your house twice must have cut into your life savings. 

Hulon: Used up every penny of it. Everything had to be redone. Everything. In the first flood, they only had to go up about four feet on the sheetrock. But in the second flood, they had to replace everything up to the ceiling, all rooms. 

Rehak: How far are you from the Perry site?

Hulon: About three blocks.

Rehak: Did the water come from that direction?

Hulon: Yes, through yards and down the street.

Rehak: Was it clear or a muddy?

Hulon: Very muddy. 

Dog encounters glove

Rehak: Was there a current going down the street?

Hulon: The water was flowing like a river.

“This is What I Could Do in My Life”

Rehak: What went through your mind as the water came up?

Hulon: I said to myself, “Look at everything we’ve built 40 years of marriage on!” Believe it or not, I was very calm at the time. I just said, “This is what I could do in my life.” 

Paid Contractor Up Front for Work Not Completed

Rehak: Were you able to find a good contractor?

Hulon: We found one that wanted $5000 upfront. They did 90 percent of the work and never showed up again.

Rehak: So sad.

Thinks About Volunteers from Second Baptist All the Time

Hulon: Yeah, but, you know, before that, volunteers from the Second Baptist Church came over. They’re great people there. They sent 12 people to our house when my daughter called. They stripped the walls for us. Wow. They were in and out in like a couple of hours, men and women. And I was so impressed.

Rehak: Incredible.

Hulon: And they kept coming back for a month after that. Every day. They brought us hot meals!

Rehak: That’s amazing.

I think about their kindness all of the time. 

John Hulon

Rehak: This was such a beautiful neighborhood before it flooded.

“These Were All Nice Houses Out Here”

Hulon: It still is, considering all the devastation. People on the internet talk about how this area is so poorly maintained. That’s a bunch of crap. These were all nice houses out here.

“We lost everything.”

Rehak: What do you hope will happen at this point?

Hulon: I hope we can recover some of our life savings and complete the work that we still need to do. I’m not getting any younger. We just need a little cash. I don’t want to leave my wife with nothing. 

“It Would Probably Kill Me”

Rehak: How do you feel about having invested your life savings in restoring a house that may flood again?

Hulon: (Choking up) I don’t know. If we flood again, I’ll probably move to Louisiana and live with my sister. Jesus, I can’t live through that again, I’ve got flood insurance now, but I don’t, I don’t, I don’t know. I’ll probably move to Louisiana. I don’t want to. But I don’t think I could take another flood. I mean, it would probably kill me.

Everybody Helping Everybody

Rehak: Is there anything else you want to tell me, John?

Hulon: How our little neighborhood came together. I mean, it was just amazing. Everybody on the street was just like family. Everybody was helping everybody. But of course, all of Kingwood is that way. That’s what makes this such a great community.

Posted by Bob Rehak on August 07, 2020

1074 Days since Hurricane Harvey and 323 Since Imelda

Perry Homes Blames Elm Grove Flood Victims

In a court document filed today, Perry Homes LLC has answered Elm Grove flood victims and says the damages suffered by flood victims were their own fault.

Last month, lawyers for flood victims named Perry Homes LLC as an additional defendant. (Previously, only Perry’s subsidiaries and contractors had been named as defendants.)

Today, Perry Homes filed its “original answer” to the defendants’ claims in Harris County’s 234th Judicial District Court. Perry’s answer is anything but original. Not one of the twenty “cut and paste” defenses mentions anything specific to the case. And many blame the victims for their own damages.

Hopes and dreams of many Elm Grove families were dragged to the curb twice in 2019. This home was blocks from Taylor Gully. It flooded when sheet flow from Perry Homes’ property entered the streets of Elm Grove.

Perry Homes Asserts Claims Not True

Perry Homes is asking the Court to enter a judgment and let the Plaintiffs take nothing. The company claims plaintiffs’ allegations are not true and has issued a general denial.

In addition, Perry claims that:

  • Plaintiffs’ damages are a result of pre-existing conditions.
  • Damages resulted from an act of God.
  • Damages resulted from independent causes for which Defendant is not legally responsible
  • Damages were caused by acts, omissions, or negligence of third parties over which Defendant had no control
  • Plaintiffs shared the fault and therefore Perry shouldn’t be held wholly responsible.
  • Plaintiffs claims should be barred because Perry acted with care and complied with all laws.
  • Plaintiffs’ claims should be barred because plaintiffs somehow failed to mitigate their own damages (presumably decades before the damages occurred).
  • Plaintiffs have not fulfilled all conditions necessary to maintain the lawsuit.
  • Plaintiffs’ recovery, if any, should be subject to the one-satisfaction rule. (Under Texas law, the one-satisfaction rule states that a plaintiffs can only recover damages once. For instance they can’t recover total damages from Perry and then again from LJA Engineering, which was also named as an additional defendant).
  • Plaintiffs’ claim for pre-judgment interest is limited by the dates and amounts set forth in Chapter 304 of the Texas Finance Code. (The law specifies that the prejudgment interest rate is equal to the post-judgment interest rate applicable at the time of judgment. It also specifies that interest may not compound and when interest charges may start.)
  • Even if Perry is found to be at fault, damages should be limited according to Chapter 41 of the Texas Civil Practice and Remedies Code. Chapter 41 specifies standards of proof for exemplary damages.
  • Again, even if they are at fault, Perry should not be fined for exemplary or punitive damages. Exemplary and punitive damages, they claim, violate:
    • The Fifth, Sixth, Eighth and Fourteenth Amendments of the U.S. Constitution
    • Article 1, Sections 3 and 19 of the Texas Constitution
    • Due process and equal protection under the law

In regard to the last point, Perry Homes makes no mention of the laws that allow exemplary or punitive damages. Nor do they reference cases that point to standards of proof for exemplary or punitive damages.

For the complete text of Perry Homes’ “Original Answer,” click here.

Pleads “Further and In the Alternative” Thirteen Times

The lack of specificity in Perry Homes’ filing makes it difficult to decipher what the claims actually mean. However, Perry uses the phrase, “Pleading further, and in the alternative, and without waiving the foregoing…” 13 times. Basically that means, “If the judge or jury won’t buy X, we still reserve the right to plead Y.”

This is more than a shotgun defense; it’s a blunderbuss defense. But why would lawyers who get paid $1000/hour want to get to the point, tip their hand, or limit their client’s options?

Victim Blaming At Its Finest

There’s an undercurrent of victim blaming in much of Perry Homes’ points.

Perry subsidiaries have previously claimed that many Elm Grove homes were in the floodplain. Claiming victims should have somehow prevented flooding in homes that were built 40 years earlier – when they never flooded until Perry clearcut land immediately upstream from them – is the height of chutzpah.

I use that term in the sense of “brazenness” or “audacity.”

It’s like pleading that the shooting victim was at fault because he failed to get out of the way of the gunshot.

It ignores the fact that someone pulled a trigger. Collectively, Perry, its subsidiaries and contractors violated Section 9.2 of the Montgomery County Drainage Criteria Manual.

Section 9.2 states that “Pursuant to the official policy for Montgomery County, development will not be allowed in a manner which will increase the frequency or severity of flooding in areas that are currently subject to flooding or which will cause areas to flood which were not previously subject to flooding.”

Perry Homes’ victim blaming shows how Perry now thinks. Their bizarre logic – and the hollow claim that they followed all laws – explain a lot about why Elm Grove flooded. Perry today is a far cry from the company that Bob Perry founded in 1968.

Posted by Bob Rehak on 7/13/2020

1049 Days since Hurricane Harvey and 298 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.