Tag Archive for: lawsuits

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.

Background

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.

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.

Woodridge Village Pre-Cristobal Detention Pond Update

Perry Home’s new contractors have excavated the vast majority of virtually all three detention ponds on the north section of Woodridge Village. That means they have almost completed 77% of the detention pond capacity for the whole site in two months. The previous contractors completed only 23% in approximately twenty months.

That represents approximately a 30x increase in productivity.

Overview of Woodridge Village Detention Pond Capacity

The pie chart below shows how that capacity breaks down. And the map shows where it is.

Percentage of detention pond capacity in acre feet for each of the five Woodridge Village ponds. Source: LJA Drainage Addendum.
General layout of detention ponds on Perry Homes’ property.

Contractors Scurry as Cristobal Churns in Gulf

Tropical Storm Cristobal could be a game changer next week if it hits Houston. It’s track is far from certain at this point, but the National Hurricane Center still puts Houston within the cone of uncertainty.

Cristobal has the potential to create massive erosion and set the work schedule back. The aerial photos below taken on 6/2/2020 show the current “pre-storm” status of construction for the three northern detention ponds. The two southern detention ponds were completed earlier this year.

N1 Nearing Completion of Excavation

N1 Starts at the northern boundary of the site and runs halfway down the western edge to Mace Street.

Looking north at N1 from Mace Street in Porter to the northern boundary.
The area between the culverts will eventually become an extension of Mace Street (top of photo) which will traverse the entire subdivision to Ford Road on the eastern side.
While some contractors continue excavating, others work on installing concrete pilot channels. Shown here, the pilot channel near Ivy Ridge in Porter.
The northern part of N1 is not yet complete. Contractors still use the Webb Street entrance (upper left as their main access point to the site. Note how height of road dwarfs excavator in pit.

Still Widening and Deepening N2 Pond

The area left of the diagonal road is the expansion of N2. The area near the diagonal embankment is deep enough to conceal trucks and excavators. However, the grassy triangle in the middle left was a previous detention pond constructed my Montgomery County in the early 2000s.
Contractors are deepening the MoCo pond a small amount to create additional storage capacity. The dirt is being used to build up other portions of the site.
Looking north along the western boundary from the southern part of the grassy triangle. Much work remains to extend the N1 channel south to N2. Jeff Miller reported today that contractors started working on this this morning.
On 6.3.20, contractors were removing dirt from the northward extention of N2 with three dump trucks running in a relay fashion. Photo courtesy of Jeff Miller.
Twin culverts installed in Taylor Gully will control outflow rates from N1 and N2.

N3 All Excavated

N3 cuts down the eastern side of Woodridge Village and joins Taylor Gully right above S2.

Looking north. Excavation of N3 appears complete although few of the finishing touches have yet been installed.
Looking south at the main body of N3.
N3 widens out about halfway down the eastern border.
Then it narrows down again to help control outflow speed as it approaches the junction with Taylor Gully.
Water from the entire site converges here. Erosion patterns, fence damage and grass matting show this is where the overflow started that contributed to the flooding of Elm Grove (right) and North Kingwood Forest (left) twice last year.

The pile of dirt in the picture above could be shoved into the connecting channel in the event that Cristobal should strike Houston. That would then help retain water in N3 until after the storm.

All the runoff from the approximately 200-acre northern portion of the site converges here and tries to make its way through a 3-foot culvert at the end of the concrete channel.

Uncertain Still Surrounds Corner of Chaos

Some Elm Grove and North Kingwood Forest residents have called the complex flow patterns in the photo above “The Corner of Chaos.”

Overflow from the concrete lined channel is supposed to go into the kite-shaped S2 pond, and then through the twin culverts into Taylor Gully. However, a hydrology consultant for the plaintiffs in flooding lawsuits contends that floodwaters went the other way. They escaped out of the inflow channel, he says. He further claims that LJA Engineering failed to model the performance of that connecting channel.

Diagram from consultant’s report.

If the design of the flow at this “Corner of Chaos” is flawed, there’s little contractors can do to fix that at this point without some major re-engineering.

In that regard, we should also remember that LJA designed these ponds before Atlas 14, so they will only hold approximately 60% of a 100-year rainfall as defined by Atlas 14 standards adopted in Harris County.

How Contractors are Temporarily Funneling Water into Ponds

Because storm drains are not yet installed, contractors are relying on temporary channels to intercept runoff and direct it to detention ponds.

Small ditches like one on right catch runoff and direct it to ponds for the time being.

Next Steps in Completing Detention Ponds

A modest amount of excavation remains to complete the full detention pond capacity.

But the capacity already in place should reduce flood risk compared to last year by more than 3X for storms equivalent to May 7 and September 19, 2019.

As some crews focus on completing excavation, others are putting the finishing touches on ponds. Those include concrete pilot channels, backslope interceptor swales, drain pipes, and culverts to control the rate of outflow.

Racing Against Hurricane Season

At this point, contractors are racing against time and the hurricane season. Cristobal underscores the risk of having waited for months to begin the three northern detention ponds in April. Had they begun them immediately after J. Carey Gray’s letter to Mayor Turn in October, they could easily have finished by now.

Posted by Bob Rehak on 6/4/2020 with thanks to Jeff Miller

1010 Days after Hurricane Harvey and 258 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.

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.

Right Before LJA Sued, LJA Employs County Engineer Who Approved LJA Plans

Mark Mooney, PE, the long-time Montgomery County Engineer whose office approved LJA plans for Woodridge Village and Artavia, and whose office oversaw LJA’s investigation of itself, has joined LJA Engineering as a “business development representative.” (Usually that means “sales.”)

A February 17, 2020, press release about Mr. Mooney’s appointment appears on LJA’s Facebook page. According to insiders, Mr. Mooney actually started working part time with LJA shortly after his retirement from MoCo. That happened after the May floods in 2019. However, the release now implies the relationship is full time. It appeared just days before LJA was named as an additional defendant in the Elm Grove flooding case. Below is the entire release verbatim:

MARK MOONEY, PE JOINS LJA AS BUSINESS DEVELOPMENT REPRESENTATIVE

After 34 years with Montgomery County, during which most of the time he served as the County Engineer, Mark Mooney, PE has joined LJA Engineering.

During his tenure, he had oversight of all major road initiatives through numerous bond elections; provided advice, direction, and consultation to 5 different County Judges and 17 different County Commissioners; oversaw the review and approval of over 3500 residential and commercial subdivision plats; oversaw the review, approval and inspection of over 1300 miles of road construction; and, provided daily services to a population that grew from 160,000 residents to over 600,000 residents in the 34-year span.

“I have known and respected Mark for many, many years. When the opportunity presented itself, I knew he was a perfect fit for LJA. We have four offices within Montgomery County and are personally and professionally vested in the growth and success of our employee-owners and clients there. Mark has dedicated his career to this community, and we want him to keep doing what he does best, serving Montgomery County,” said Jeff Cannon, Senior Vice President.

Mark was a Member of the City of Houston planning commission from February 1998 to May 2019. He is a Member of the Texas Association of County Engineers and Road Administrators (TACERA) since 1998; having served as President from 2005-2006, and he has been a Member of the National Association of County Engineers (NACE) since 1998.

Joining LJA, Mark explained, “It was the confidence that I felt between myself and Calvin Ladner (LJA President), that began when we were both a lot younger back in the mid-eighties, that sealed the deal. My responsibilities as the Montgomery County Engineer were made much easier by the honesty I had with Calvin initially and then with so many of the staff at LJA throughout the years. In my 34 years in this business, it always came down to trust as being the most important aspect as a public official. At LJA, I am ready to further develop my industry relationships utilizing the same playbook that worked for me for so many years as Montgomery County’s engineer.”

End of Release

Revolving Door Between Government and Business

[Rehak here again.] Before retirement, I frequently saw how the revolving door worked between government and business. I knew a man who went to Washington and worked for the EPA in a high level position “to get his ticket stamped.” Those were his words, not mine. After working in D.C. for several years, he returned to private industry where he made considerably more money, thanks to the insights he gave clients about how the EPA worked.

Personal connections provide knowledge of agency priorities; understanding of personal hot buttons; insights into procedures; and relationships with decision makers. They all prove valuable to companies whose sales depend on public-sector approval.

Fine Line Between Harmless and Harmful

There’s nothing illegal or immoral about this per se. On the innocent side, sometimes, if projects get bogged down, a call to an old friend can:

  • Move plans from the bottom of a pile to the top in an emergency.
  • Determine what the agency’s concerns about a set of plans might be so the concerns can be addressed quickly.
  • Speed up slow approval processes that run up costs.

Cases like these harm no one. They represent a form of social engineering or influence peddling that has been around as long as governments. However, what is normal and accepted in principle can sometimes turn sour in practice.

For instance, private-sector engineers/consultants might urge decision makers who are old friends on the government side to:

Between these two extremes, between legal and illegal, infinite shades of gray exist.

Public’s Presumption of Oversight

Cases like those in the latter category can mislead the public and have devastating consequences. The public presumes the government is overseeing development (or at least the permitting of plans). In fact, government may not be. Those plans and stamps and dazzling arrays of figures may create the appearance of professional oversight when none exists.

Families may invest their life savings in homes based on the presumption of government oversight. Officials are supposed to ensure that there is no adverse downstream impact from a new development. But as we’ve seen in Elm Grove and elsewhere, that’s often not the case.

Bad Optics for Ethics

Exerting influence can sometimes cross moral, ethical and legal lines. I’m not saying it happened with Mr. Mooney. I have no evidence to even lead me to suspect such a thing. By all accounts, Mr. Mooney is honest and reputable.

Apparent Conflict of Interest In Elm Grove Investigation

However, it was on Mr. Mooney’s watch as County Engineer that the TCEQ referred a complaint about Woodridge Village involving LJA to Montgomery County for investigation.

Mooney’s department had LJA on retainer to investigate such complaints. So LJA wound up investigating itself.

To inspire public confidence in the outcome of the investigation, you would think that LJA would have recused itself or the county engineer would have hired another company for this particular investigation. Neither thing happened.

Certifying No Need for Detention Ponds in 2,200-Acre Development

Mooney’s department also vetted the LJA Drainage Impact Analysis for Artavia. It certified no detention ponds were necessary for the 2,200 acre development because it would have no impact on the West Fork San Jacinto. However, the report did not examine the impact on:

  • Surrounding homes whose drainage has been blocked
  • The impact on downstream flooding, i.e., loading Lake Houston before floodwaters arrive.
Approving Dead-End Drainage
Artavia’s Drainage Ditch stops before reaching the San Jacinto West Fork. The company hopes to work out some environmental and drainage easement issues that would allow the ditch to cross the LMI mine in the background.

Mr. Mooney’s department also took LJA’s word for the fact they would find a way to get Artavia runoff to the West Fork, despite the fact that illustrations in the approved Drainage Impact Analysis showed the main drainage ditch stopping short of the river.

A year after LJA received approval of their plans, the LMI sand mine at the base of the ditch flooded. LMI blamed Artavia’s ditch overflow for causing a massive breach in LMI’s dikes that allowed 56 million gallons of white gunk to escape into the West Fork.

LMI also blames Artavia’s alleged overflow for flooding a deep pit where they are doing dry mining. A large part of the pit remains flooded; disrupting LMI’s normal operations, according to a company spokesperson. (More on this in a future post.)

Supposedly dry pit that LMI says was flooded by Artavia drainage ditch overflow.

Meanwhile, Artavia is building homes and the developments drainage ditch still does not reach the river.

Certifying “No Adverse Impact” for Woodridge Village Right Before 400 Homes Flood

Under Mooney’s watch, county engineers certified that LJA plans would have no adverse impact on Elm Grove…right before 400 homes in Elm Grove flooded.

MoCo Engineers office certified “No adverse impact” for Elm Grove where hundreds of homes flooded twice in five months last year.
Accepting Job With LJA Right Before LJA Sued by Flooded Elm Grove Residents

Now, LJA finds itself at the heart of lawsuits by hundreds of flooded homeowners in Kingwood. And the former county engineer who could have provided insight into the county’s position has taken a job with the engineering company at the heart of the lawsuits. Think that might slant his testimony? Who wants to testify against his employer?

The optics of these incidents sure don’t inspire trust and confidence in LJA, Mr. Mooney, or Montgomery County developers. In future posts I will dig into more of the details behind these incidents.

Calls to LJA’s project manager for Artavia went unanswered for days before this post. If LJA wishes to submit a response to this post, I will publish it verbatim.

Posted by Bob Rehak on 3/19/2020

934 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.

Army Corps Finds Wetlands on Perry Homes Woodridge Village Property Did Not Fall Under Corps’ Jurisdiction; What Next?

Today, the U.S. Army Corps of Engineers released the findings of its investigation into the wetlands on Perry Homes’ Woodridge Village property. The Corps said that the wetlands do NOT fall under its jurisdiction. Therefore, there was no violation of Section 404 of the Clean Water Act when Perry wiped out wetlands without first seeking the Corps’ permission.

Congressman Dan Crenshaw’s office released this text of an email the Corps sent to them today.

Text of Corps Email to Congressman Crenshaw

“This e-mail is in response to your request (on the behalf of Congressman Crenshaw) to be updated on our investigation into activities on the Figure Four properties located in Porter, Montgomery County, Texas.  (Investigation file SWG-2019-00745).” [Editor’s note: Figure Four is the development arm of Perry Homes.]

“As discussed on the phone earlier today, the Corps of Engineers has finalized our investigation into this matter and did NOT find a violation of Section 404 of the Clean Water Act (Section 404).”  

“We did confirm the presence of uplands and wetlands on the tract. Some of the wetlands had fill material placed into them. Based on the facts associated with this specific location and per federal regulation these wetlands were determined to “isolated.” They lacked any known nexus to interstate commerce. As such, they are not “waters of the United States” and are not subject to federal jurisdiction under Section 404. In accordance with federal regulation the jurisdictional status (determination) of these wetlands was coordinated with the Environmental Protection Agency prior to finalizing.”     

“The property owner has been notified of the federal government’s findings and the investigation closed.”

Wetlands Question Now Moot from Legal Point of View

Normally, in cases where a question exists, developers consult the Corps before destroying the wetlands. When I asked the Corps last August whether Perry had sought a “jurisdictional determination,” the Corps answered that Perry had not.

Perry later claimed that it had hired a private consultant to determine whether the wetlands were jurisdictional. However, to my knowledge, Perry never publicly released the results of the survey. Today’s ruling by the Corps makes that whole controversy moot.

Regardless of the Corps’ rulings on the jurisdictional question, the fact remains that the Corps found wetlands on the property and they found Perry Homes had attempted to fill them in.

Wetlands Question Still Explosive from Business Point of View

Let’s see how well that worked out for Perry and its subsidiaries.

If Perry Homes tries to build on the land after all the publicity surrounding this case, any homeowner whose foundation cracks would have a ready-made court case.

Woodridge Village “wetlands” on March 6, 2020. Water has ponded there for months.

This land appears to be unsafe, unstable, unbuildable, unsaleable, and a menace to downstream homeowners in its current state.

Plaintiff’s Engineer Points to High Hurdles for Perry to Clear

David Givler, PE, a consultant for plaintiffs in the Elm Grove flooding case found that LJA Engineering, a Perry Homes’ contractor:

  • Seriously underestimated the amount of runoff from this property.
  • Used outdated rainfall statistics that led to underestimating the amount of detention capacity needed.
  • Constructed the overflow spillway between Taylor Gulley and detention pond S2 at a height that would cause North Kingwood Forest to flood.

When You’re In a Hole, Stop Digging. Literally.

It may be possible to fix some of these problems. But at what cost? Will the development ultimately be economic when residential lots are used to increase the size of detention ponds?

Five developers previously bought this land, studied it, and sold it rather than develop it. Maybe Perry should do the same. Maybe they should transfer it to Harris County Flood Control to create a giant detention facility.

How Perry Could Exit Without a Loss, Mitigate Flooding, Limit Long-Term Liability

A Houston Chronicle article quotes Houston Mayor Pro Tem Dave Martin as saying that Perry quoted a price for the land that covered their acquisition cost PLUS the labor they have into it. That led Harris County to ask CoH to share the cost.

When CoH refused, Perry dropped the price to $14 million (the alleged purchase price) from $23 million, according to Community Impact newspaper. The Montgomery County Appraisal District values the land at only a little more than $1 million.

It will be very hard for Perry to sell the land and even harder to develop it. So why doesn’t Perry just donate the land to Harris County Flood Control to help them mitigate flooding?

According to a national real estate tax expert that I talked to, Perry could then write off the value of the land PLUS the value of the labor they have in it. For a billion dollar company, the tax deduction could easily EQUAL or come close to the price they are currently asking for the land.

It would also:

  • Give Perry a chance to recoup some shred of its once proud image.
  • Let Harris County Flood Control move forward quickly with a detention project that could truly mitigate flooding.
  • Help protect Perry from additional future flooding claims.

Posted by Bob Rehak on 5/10/2020

924 Days since Hurricane Harvey and 173 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.

Elm Grove Lawsuits: New Defendant, New Charges, Amended Petition and More

Court documents filed with the Harris County District Clerk show that the tempo of the Elm Grove lawsuits against Perry Homes, its subsidiaries and contractors is increasing. Litigants have filed 20 new documents in the last three weeks. The judge has set a trial date for July 13, 2020. That’s about three months from now.

Plaintiffs File Fifth Amended Petition

The big news: Plaintiffs filed their fifth amended petition. LJA Engineering Inc. has been brought into the suit and named as an additional defendant.

Plaintiffs allege that LJA, when designing the drainage for Woodridge Village, used an outdated Montgomery County Drainage Criteria Manual. LJA went by the 1989 version when an updated 2014 version existed. Since then, MoCo has revised the documents yet again. A 2019 version now exists that took effect before Imelda last year. (Note: the link above leads to the updated manual, however, MoCo did not update the date on the cover page. So this gets very confusing.)

List of Charges Expands

Plaintiffs’ lawyers have added negligent retention and negligent supervision to the list of charges. They now accuse defendants of:

  • a. Removing drainage from the Development;
  • b. Removing a levee from the Development site;
  • c. Blocking the drainage channels;
  • d. Filling in existing drainage channels;
  • e. Failing to properly install box culverts;
  • f. Failing to create temporary drainage channels;
  • g. Failing to allow adequate drainage after construction;
  • h. Failing to install silt barriers;
  • i. Allowing the Development to force rainfall toward Plaintiffs’ homes;
  • j. Failing to pay proper attention


Plaintiffs argue that “the Contractor Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”

The streets of Elm Grove are still littered with trash from reconstruction of their homes after Imelda – the second flood in 2019. This image was taken on Village Springs in February of 2020.

Accusations Specific to LJA

The amended petition also lists charges specific to LJA.

  • a. Failing to follow the correct drainage guidelines in Montgomery County;
  • b. Failing to provide adequate drainage in the Development;
  • c. Failing to adequately model the Development;
  • d. Failing to adequately report the modeling;
  • e. Removing drainage channels;
  • f. Causing post-development discharges and water surface elevation to increase downstream of the Development;
  • g. Failing to design detention ponds with adequate capabilities for rain events;
  • h. Failing to use the correct hydrology method;
  • i. Failing to design emergency overflows for the detention ponds;
  • j. Failing to notify the Developer Defendants and Contractor Defendants of the importance of the existing levee; and,
  • k. Other ways described the consulting engineer’s report.

Plaintiffs Seek Exemplary Damages and Mandatory Injunction

The plaintiffs now seek exemplary damages and a mandatory injunction that forces defendants to return the property to its prior condition, wherein the surface water runoff properly flows into the drainage ditch.

Defendants also filed the reports of two expert witnesses: an engineer from Pennsylvania, who examined LJA’s performance, and another expert, who will testify about the magnitude of rainfalls on May 7th and September 19th. More on those in a future post.

No Response Yet from Defendants to Specific Charges

We still have yet to see the defendants’ specific responses to any of these charges except for the general denials they made last year.

Posted by Bob Rehak on 3/6/2020

920 Days after Hurricane Harvey and 169 since Imelda

Update on Webster, Spurlock Elm Grove Lawsuits; Woodridge Construction

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

Background: Lawsuits and Motion to Dismiss

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

Motion to Consolidate, Change Venue and Counterclaims

That same day (June 17):

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

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

Plaintiffs’ Response to Motion to Dismiss

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

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

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

Lawyers Agree to Table Motion to Dismiss … Subject to Conditions

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

No Rulings Yet on Venue, Access or Trial Date

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

Meanwhile, Back at the Construction Site…

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

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

Culverts being installed under future road, but not yet functioning
More culverts ready to install under future roads
Future roadway with 3-4 story brush piles in background
More brush piles near future road

No More Obvious Progress on Expansion of Detention Capacity

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

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

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

Posted by Bob Rehak on July 15, 2019

685 Days since Hurricane Harvey and 9 weeks since May 7

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

More than 40 Additional Plaintiffs Join Webster, Spurlock Lawsuits Against Woodridge Developers and Contractor for May 7th Flooding

Jason Webster and Kimberly Spurlock, two local lawyers, have teamed up to represent Elm Grove and North Kingwood Forest (NKF) flood victims. On May 7th, video captured floodwater streaming out of the 268-acre site north and west of those two subdivisions. The contractor had already clearcut most of the land for the developer’s new Woodridge Village. However, the contractor had not yet excavated the key detention pond next to the people who flooded. As a result, it appears that runoff from the mostly clay soils in the new development compounded street flooding already in progress. That’s when the volume of water became more than the streets could handle and hundreds of homes flooded.

Third Wave of Lawsuits Filed Last Week

The third wave of lawsuits filed by Webster and Spurlock against defendants Figure Four Partners, LTD; PSWA, Inc.; and Rebel Contractors, Inc. brings the total of plaintiffs they represent to more than 200.

This is not a class action suit. Each plaintiff suffered different amounts of damage. It is a series of individual lawsuits. Here is the first wave of plaintiffs, the second, the third and the basis for the claims.

The lawsuits allege negligence, negligence per se, gross negligence, nuisance, and violation of Section 11.086 of the Texas Water Code. Plaintiffs seek exemplary damages and a permanent injunction among other things.

Figure Four and LJA Engineering Response

A statement by Figure Four Partners, LTD, claims the flood was an act of God and that many of the detention ponds were already complete. However, LJA Engineering, which had been hired by Figure Four to design drainage for the new development, later said that none of the detention ponds was complete. One one was fully excavated, but not yet completed, they said.

Natural Drainage Filled Near Highest Concentration of Flooded Homes

Only about 1% of the homes in Kingwood flooded on May 7th. Of those, almost all were adjacent to the land that Figure Four and Rebel Contractors clearcut. They also sloped the land toward the flooded homes – without first excavating critical detention ponds needed to prevent flooding.

New development slopes toward Elm Grove on right.

According to numerous residents, the contractor also filled in existing streams and wetlands while grading the property. Partially as a result, homes that never flooded before suddenly flooded during what Harris County meteorologist Jeff Lindner characterized as a 2-year to 50-year rain event. Plans show that if the detention ponds had been constructed, they should have held a 100-year rain.

Next Steps in Lawsuits

District court record searches indicate that no other law firm has yet filed suit against these defendants for the Elm Grove and NKF flooding. However, they may. At least two other law firms have held meetings with residents.

Meanwhile, the court has scheduled oral arguments for the temporary injunction against Figure Four Partners, LTD; PSWA, Inc.; and Rebel Contractors for July 8 at 2:30 PM in the 11th Judicial District Court. This is for the second batch of plaintiffs.

Previous Problems Surface for Rebel Contractors

A search of Harris County District Court records found a separate lawsuit against Rebel Contractors for a different incident. Harris County and the State of Texas (on behalf of the TCEQ) sued the company for its practice of burning trees while clearing land. The plaintiffs claimed the practice added to air pollution and harmed health. The County and State won an injunction against Rebel Contractors. Rebel agreed to stop its burning.

“Rainxiety” Sets In

A new term is floating around: rainxiety. That’s the anxiety flood victims feel whenever rain is forecast. Dozens of residents have told me that they sweat, their hearts race, and they begin to panic whenever it rains. One even begins humming Creedence Clearwater Revival’s “Who’ll Stop the Rain?” That should become the theme song for Elm Grove and North Kingwood Forest.

“Still the rain kept pourin’,
Fallin’ on my ears.
And I wonder, Still I wonder
Who’ll stop the rain.”
By John Fogarty

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

Posted by Bob Rehak on 5/29/2019 with help from Jeff Miller

638 Days since Hurricane Harvey