Tag Archive for: victim-blaming

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.

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.