Tag Archive for: Figure Four Partners

Porter Residents File Lawsuit Against Perry Homes, Its Subsidiaries, Contractors

In the continuing saga of the Woodridge Village fiasco, lawyers Jason Webster and Kimberley Spurlock have filed a new lawsuit on behalf of approximately 50 Porter residents who flooded on May 7th and/or September 19th in 2019. Webster and Spurlock previously filed lawsuits on behalf of Elm Grove and North Kingwood Forest residents who flooded on those same days.

Beating Statute of Limitations

Webster and Spurlock filed the new suit on May 5th, 2021. Normally, a two-year statute of limitations applies in such cases, according to one lawyer I talked to. So these plaintiffs just beat the deadline.

Documents filed yesterday with the District Clerk of Harris County make many of the same allegations made in the Elm Grove and North Kingwood Forest flooding cases, with one crucial addition. These residents, who live on the west side of Woodridge Village, also claim that the defendants blocked drainage coming out of their neighborhoods, thus backing water up.

Contractors built Woodridge Village (right) up about 3 feet relative neighbors (left) without providing a path for water to drain. Note ponding water on left where plaintiff Chris Yates lives. Photo courtesy of Yates.

Legal Basis for Claims

Defendants allege that the proximate cause of flooding to their homes was an illegal impoundment of surface water caused by defective construction practices. They cite Section 11.086 of the Texas Water Code. It states that “No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.”

In relation to the alleged “defective construction practices, plaintiffs claim “Negligence, Negligent Retention, Negligent Supervision, Negligence Per Se, and Gross Negligence for the May 7, 2019 floods.” Pages 14 and 15 of their complaint claim 34 separate failures.

Plaintiffs also claim Negligence, Negligence Per Se and Gross Negligence against the developer defendants for the September 19th flood. In regard to those claims, they list 29 separate failures relating to inadequate construction.

Plaintiffs further allege defendants created a nuisance and “trespassed” on their property. From a legal point of view, trespass includes “causing something to enter another’s property.” In this case, the something was water.

List of Defendants

Defendants in the lawsuit include the developers, engineering company and contractors. They include:

  • Perry Homes, LLC (developer)
  • Figure Four Partners, LTD (a Perry Subsidiary)
  • PSWA, Inc. (another Perry Subsidiary)
  • LJA Engineering Inc.
  • Rebel Contractors, Inc.
  • Double Oak Construction, Inc.
  • Texasite, LLC
  • Concourse Development, LLC

LJA Played Central Role

LJA played a central role in the flooding. Perry and its subsidiaries hired LJA to engineer the development and help supervise contractors to ensure they were working to plan. Plaintiffs allege LJA:

  • Failed to follow the correct drainage guidelines for Montgomery County
  • Failed to enforce the construction schedule
  • Failed to provide adequate drainage
  • Failed to adequately model the development
  • Removed drainage channels
  • Caused water elevations to increase downstream
  • Failed to design adequate detention ponds
  • Failed to use the correct hydrology method
  • Failed to design emergency overflows
  • Failed to comply with the soil report produced by Terracon Consultants, Inc.
  • Failed to protect water runoff from flooding Plaintiff’s homes
  • Violated the contractors duty and standard of care.

Plaintiffs Seeking Compensation For…

Plaintiffs seek compensation for damages including:

  • Cost of repairs
  • Cost of replacement or fair market value of personal property lost, damaged, or destroyed
  • Loss of use of personal property
  • Loss of income and business income
  • Consequential costs incurred such as hotel accommodations and replacement costs
  • Mental anguish and/or emotional distress
  • Prejudgment interest
  • Post judgment interest
  • Attorneys’ fees
  • Court costs
  • Exemplary and punitive damages

Finally, the plaintiffs seek a jury trial to decide issues of fact in the case.

For Text of the Full Case and Expert Witness Report

For the full 32-page complaint, click here.

For the 253-page certificate of merit in the case, click here.

Posted by Bob Rehak on 5/6/2021

1346 Days since Hurricane Harvey and 595 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.

Houston City Council Unanimously Approves Motion to Purchase Woodridge Village from Perry Homes

This morning, Houston City Council unanimously approved the purchase of Perry Homes’ 268-acre Woodridge Village tract in Montgomery County.

The 268 acres of Woodridge Village could soon become public property to be used for stormwater detention, parks and wastewater treatment.

The ordinance that passed also included approval of an Interlocal Agreement between the City and Harris County Flood Control (HCFCD) that will govern the use and maintenance of the property as well as the terms of its purchase and development. See below.

As this deal wound its way through city and county political systems for the last 20 months, it morphed several times.

Terms of Deal that City Approved This Morning

Here’s what the City Council approved this morning:

  • Total purchase price = $14,019,316.00.
  • Of that, the City will contribute $4,021,500.00 in cash.
  • And of that, $3,830,000.00 will go toward sole ownership of 73 acres within the 268 acres that the City will use to build a new wastewater treatment plant.
  • The two parties will co-own, co-develop and co-maintain the rest of the property to be used for stormwater detention and parks.
  • The parties will split the cost of the remaining property 50:50 which will be jointly owned, developed, operated and maintained.
  • For its portion of the remaining cost, the City will donate property worth approximately $5,150,000 to HCFCD that the County can then use for flood control projects in areas of the City that flood.
  • The City will also, at a minimum, match Harris County’s detention and fill mitigation requirements.
  • The City will adopt and enforce NOAA’s new higher Atlas-14 Precipitation Frequency standards within the City and in the City’s extra-territorial jurisdiction.
  • The City agreed to require a minimum detention rate of 0.55 acre-feet per acre.
  • All this must happen within 120 days.
  • If the sale falls through, nothing in the terms of the agreement obligates the seller to perform additional flood mitigation.

County Must Now Approve on December 15

Harris County Commissioners Court must still approve the Interlocal Agreement in its December 15 meeting before it becomes effective.

Woodridge Village contributed to flooding hundreds of homes in Elm Grove Village and North Kingwood Forest twice last year, because of insufficient detention.

No Mention of Lawsuits

Nothing in the terms of the sale or interlocal agreement mentions the hundreds of lawsuits that arose out of that flooding. They should not be affected.

Pace of Development To Depend on Speed of Funding

The Parties (City and County) agreed to jointly fund the cost of designing and constructing flood mitigation facilities on the Land and to work cooperatively to secure funding. They targeted completion of the project within five years.

Both Parties agree the Land can stay in its current condition until funds are jointly secured to build the project, which may be built in phases based upon available funding.

Any Project on the Land will involve gravity detention. In other words, no pumps will be involved. Perry Homes has already constructed approximately 60% of the required detention.

Stormwater Detention To Be Based on Current Needs

The amount of the Stormwater Detention allotted to each Party will be based on its pro rata share of costs contributed to the Project. The Parties agree that the Stormwater Detention shall only be used for mitigation of existing flood risks, and not to mitigate the flooding risks of any new developments that arise after the execution of this Agreement.

Martin Thanks Turner for Being Mayor for “All the People”

Mayor Pro Tem Dave Martin sponsored the ordinance that council approved this morning and worked to align support. Mayor Turner supported the agreement despite the fact that the majority of Kingwood voted for his opponent in the last mayoral election. In his presentation, Martin specifically commented on that and thanked the Mayor. He said that Turner promised after the election that he wanted to be mayor for all the people. Martin said this was proof that he was good to his word.

Posted by Bob Rehak on 12/9/2020

1198 Days since Hurricane Harvey and 447 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.

Woodridge Village Purchase on Wednesday’s Houston City Council Agenda

Houston City Council will consider two items Wednesday that could ultimately pave the way for the purchase of Woodridge Village from Perry Homes. Woodridge Village twice contributed to the flooding of hundreds of homes in Kingwood’s Elm Grove Village last year. For more than a year, the City, Harris County Flood Control and Perry Homes’ subsidiary Figure Four Partners, LTD have discussed purchasing the property and turning it into a regional flood-control detention basin.

268 acres currently owned by Perry Homes could be turned into a regional floodwater detention basin if the purchase is approved by Houston City Council tomorrow and Harris County Commissioners Court on December 15.

If successful, the City and HCFCD would work together to reduce the volume of water flowing out of the headwaters of Taylor Gully.

$4 Million in Cash from City Plus Land

The two agenda items are #59 and #65. They call for an interlocal agreement between the City and HCFCD to jointly purchase the property. According to an article in the Houston Chronicle, the purchase price would total approximately $14 million. The City would pay approximately $4 million of that in cash. However, in the past, the City has also discussed the contribution of land to make up its 50% of the purchase price.

The City has also said in the past that it hopes to acquire a portion of the site outright in order to consolidate several wastewater treatment facilities in Kingwood outside of the San Jacinto floodplain. Presumably, the City’s cash would go toward the purchase of that part of the site. Both sides previously agreed to share equally in the purchase, operation, development, and maintenance of the rest of the 268 acres.

Requirements Imposed by Draft ILA from May

Earlier this year, I obtained a draft copy of the interlocal agreement by a FOIA request, which the State Attorney General partially redacted. In May, the City provisionally agreed to:

  • Adopt Atlas-14 precipitation frequency tables
  • Require a minimum detention rate of 0.55 acre-feet per acre of detention for any new development on tracts one acre or larger in size
  • Prohibit the use of hydrographic timing (flood-routing studies) as a substitute for any detention requirements, unless the project emptied directly into Galveston Bay.
  • Enforce these provisions both within the City and its extraterritorial jurisdiction.

The volume of detention ponds currently on Woodridge Village is about 40% short of what the new higher Atlas-14 requirements dictate. The current detention was approved and construction started before Atlas 14 became effective in Montgomery County.

The use of flood-routing studies in Montgomery County to avoid building detention ponds has long been a controversial practice that downstream residents have fought.

Next Steps in Terms of Flood Mitigation

If Council approves the money and ILA tomorrow for the Woodridge Village purchase, Harris County Commissioners would take up the issue at their next meeting on December 15. Approval by both bodies certainly would make Christmas much merrier and more hopeful for hundreds of Kingwood families devastated by flooding last year.

Kudos to Mayor Pro Tem Dave Martin for pushing this forward.

The outcome of the votes could affect projects considered in the Kingwood Area Drainage Analysis. If the purchase goes through, it could reduce or eliminate the need for widening and deepening Taylor Gully itself. It is not immediately clear whether the City and County have set deadlines for the design and construction of the detention basin.

Posted by Bob Rehak on 12/8/2020

1197 Days since Hurricane Harvey and 446 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.

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.

Elm Grove Lawsuit Names Perry, Concourse Development As New Defendants; Trial Delayed

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.

Screen Capture from Concourse Development website before lawsuits filed.

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).

Location of plaintiffs’ flooded homes in relation to Perry/Concourse property.

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

County Approves Elm Grove Deal with Two Conditions

Harris County Judge Lina Hidalgo conducting virtual discussion of the purchase of Woodridge Village Property.

In another marathon session that lasted more than 12 hours Tuesday, Harris County Commissioners finally approved a deal to purchase Perry Homes/Figure Four Partners’ Woodridge Village Property for $14 million. Woodridge contributed to flooding Elm Grove Village twice last year.

Two Conditions Still on Deal

The offer will be made to Perry Homes immediately. However, it will be with the understanding that the City of Houston must:

  1. Adopt Atlas 14 rainfall standards, including within its extra territorial jurisdiction.
  2. Deed $7 million worth of other land (unrelated to this deal) to the Harris County Flood Control District to help complete other flood mitigation projects.

If the City fulfills the conditions, the Perry land would be used to create regional flood-control detention.

Commissioner Cagle Optimistic

Immediately after the meeting, Commissioner Jack Cagle spoke with City of Houston Mayor Pro Tem Dave Martin who also serves as City Council Member for Elm Grove/Kingwood. According to aids, Cagle was optimistic that the City could meet the conditions.

The County treasurer doesn’t yet have permission to write a check, but this is progress.

Commissioner Cagle made the motion. Commissioner Garcia seconded. The motion carried unanimously.

Money for the purchase would come out of Flood Control District bond funds allocated for drainage improvements in the San Jacinto watershed.

Listen to the Commissioners Here

For a complete recording of the discussion and vote, click here. The “Russ” referred to in the audio is Russ Poppe, executive director of Harris County Flood Control District.

Posted by Bob Rehak on 4/29/2020

974 Days after Hurricane Harvey

LJA Denies Responsibility for Elm Grove Flooding; Says They Owed No Duty to Victims

On February 27, 2020, lawyers for flooded Elm Grove residents listed LJA Engineering as an additional defendant in the Perry Homes’ Woodridge Village flooding case. Defendants’ amended petition included 14 documents, with specific allegations. On March 16, 2020, LJA filed a general denial and requested a jury trial.

LJA’s drainage design forces floodwater to make six turns within the space of about 200 yards. The areas at the left and top of the frame flooded during May and September last year when water overflowed.

Hints of Defense Strategy

However, in answering the allegations, LJA’s lawyers did hint at their defense strategy. In addition to their general denial, they claim that:

  1. Plaintiffs’ damages were solely caused by the negligence of third parties over whom LJA has no control.
  2. Plaintiffs did not hire LJA and therefore LJA owed no duty to the plaintiffs.
  3. Intervening and superseding conduct on the part of third parties or other parties, persons or entities, acts as a total bar to plaintiffs’ claims.
  4. The incident in question was an Act of God.

Here is their entire answer to the plaintiffs’ claims. LJA’s lawyers filed it with the Harris County District Clerk on 3/16/2020.

Opinions of Claims

  1. Third parties in the case include several contractors, AND Figure Four Partners, a Perry Homes’ subsidiary of another subsidiary. Engineers, in my experience, often blame problems on contractors that didn’t follow plans. In this case, according to the drainage impact analysis submitted by LJA to Montgomery County, contractor(s) should have cleared only 30 acres on the northern portion of the site and 58 acres on the southern portion during Phase 1. See page 1, paragraph 2 of LJA’s Drainage Impact Analysis. However, Google Earth shows that about half of the 182-acre northern section and all of the 86-acre southern section were cleared by February 23, 2019. That was six weeks before the May 7th flood. Images taken of the northern portion of the site shortly after the May 7th flood show it was virtually clear except for piles of uprooted trees. Helicopter images show that substantially all of the northern section was cleared about the time of the Imelda flood. Construction documents also show that an engineer should have been supervising construction.
  2. No duty! This seems to run contrary to professional engineers’ code of ethics and state law. See section §137.55 ENGINEERS SHALL PROTECT THE PUBLIC.
  3. I’m not sure what they mean by “intervening” conduct. It sounds like interference from above. Hmmmm. Could they be pointing a finger at Perry Homes’ Figure Four Partners or Perry Homes itself? It will be interesting to see what happens with this one.
  4. It will also be interesting to see how they justify the Act-of-God claim. Figure Four Partners claimed the same defense initially. However, the nearest official rain gages say the rainfall should have been within the design parameters of the site, especially for the May flood.

Trial Still Set for July, But…

The District Clerk’s website shows no other activity on the case since LJA filed this document. Harris County Civil Courts will operate on a restricted schedule until further notice due to the corona virus. Hours of operation are from 7 a.m. to 6 p.m. Monday through Thursday. They are closed Friday through Sunday.

Judge Lauren Reeder months ago set a trial date of 7/13/2020, at 08:30 a.m. However, the corona virus could delay the start of any trial in this case.

New Discovery in MoCo Drainage Criteria Manual

In the meantime, I discovered one other interesting potential violation of the Montgomery County Drainage Criteria Manual. Section 9.1.2 Flood Plain Development Guidelines and Procedures says that when planning a development within the 100-year flood plain, construction within the floodway is limited to structures which will not obstruct the 100-year flood flow unless fully offsetting conveyance capacity is provided.

“Where such a potential exists, offsetting conveyance capacity must be provided to eliminate the increased potential for flood damage.”

The potential violation? The twin culverts shown in the photo above. They were built when only one of five detention ponds was even partially complete. And they’re right at the county line. LJA’s own maps show these culverts to be within feet of the Taylor Gully floodway and floodplain on the Harris County side of the county line.

If LJA intends to argue that May 7th or September 19th were greater-than-100-year rains, it then seems to me that they should have halted construction of the culverts until fully offsetting detention was in place. To this date, only 23% of the intended detention capacity has been constructed.

Posted by Bob Rehak on 3/28/2020

942 Days since Hurricane Harvey and 191 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.