Addicks/Barker Reservoirs Flooding Damages

Home or property owners near the Addicks / Barker reservoirs whose property was flooded due to the actions of the Army Corps of Engineers on August 27-28, 2017, this applies to you.

2022 CASE UPDATES

houston flooding attorney

December 29, 2022

UPSTREAM – Government Files Appeal

We write to report that, as expected, the government just filed its notice of appeal. This officially begins the appeals process.

This case will be appealed to the United States Court of Appeals for the Federal Circuit in Washington, D.C. We do not yet know the names of the three judges who will be appointed to the case, and we do not expect to find out until a few days before oral arguments of the case is held.

For the purpose of comparison: the Downstream case just went through an appeal recently. Based on that experience, we would expect this appeal to take about 1-1/2 to 1-3/4 years to resolve (the Downstream appeal was filed in late October, 2020; a decision was rendered in June of 2022).

We will continue to monitor the status of the case, while the Upstream team prepares to address the government’s appeal.

Reminder: Deadline is Approaching

We would like to remind those who have not yet joined the case that the deadline to join the case is approaching. By 2023, the statute of limitations – the time limit to seek compensation – will expire (we expect the actual deadline to be in late August – by the 6th anniversary of government-induced flooding).

While the appeal is pending, there is still time to join. We encourage everyone who has not yet done so to join as soon as they can, so that they do not miss out on an opportunity for monetary compensation. Please contact us at 713-864-4000, or reach us at: txlaw@lawtx.com if you would like more information.

As always, please feel free to contact us with any questions or comments.

December 29, 2022

DOWNSTREAM – Case Moves Forward

As we are wrapping up the year, we would like to wish everyone an early happy 2023. We are working hard to prepare to respond to the government’s motion for summary judgment, while countering with our own motion.

Meanwhile, a copy of the government’s motion is available here.

Reminder: Deadline is Approaching

We would like to remind those who have not yet joined the case that the deadline to join the case is approaching. By 2023, the statute of limitations – the time limit to seek compensation – will expire (we expect the actual deadline to be in late August – by the 6th anniversary of government-induced flooding).

At the present time, there is still time to join. We encourage everyone who has not yet done so to join as soon as they can, so that they do not miss out on an opportunity for monetary compensation.

As always, please feel free to contact us with any questions or comments.

November 16, 2022

DOWNSTREAM – Case Schedule

We write to report that Judge Smith has entered an order that established various schedules for the Downstream case, as follows:

Nov. 18, 2022: Government files its motion for summary judgment

Jan. 10, 2023: Plaintiffs file their response to government’s motion; and the Plaintiffs’ cross-motion for summary judgment

Feb. 9, 2023: Defendant files its reply (in support of its motion for summary judgment), and response to Plaintiffs’ motion for summary judgment

Mar. 11, 2023: Plaintiffs file their reply (in support of Plaintiffs’ motion for summary judgment)

Upon the completion of these legal briefings, Judge Smith will schedule a date for oral argument for the various motions, and make a decision.

Most of the discovery phase of the case has already been conducted previously. And, for the most part – there are not much disputes between the government and us concerning what happened. As such, there should be enough evidence for the judge to render a decision through the exchange of these case dispositive motions (motion for summary judgment), without the need of a trial. The Downstream litigation team will do our best to point out to the judge our legal position and the plain truth – that the government was responsible for the flooding of the Downstream area. With the instructions from the appeals court, we hope for a favorable result this time around. We will continue to share the legal motions as they become available.

November 3, 2022

UPSTREAM – Judge Lettow Issues A Decision on Damages

We write to report that Judge Lettow just issued a decision on the damages phase of the case – much earlier than expected. This decision – which is 44 pages in length – addressed each area of the Plaintiffs’ damages in great detail. You can find a copy of the decision here.

Essentially, Judge Lettow granted the following elements of recovery for the homeowners:

  1. Real property damages,
  2. Personal property damages,
  3. Displacement (relocation costs).

The judge reviewed expert testimony and evidence presented by both sides, and awarded an amount for each of the three categories to the six “test property” Plaintiffs – or, case representatives. Then, he deducted the amount of FEMA payments received by the Plaintiffs. The net amount was then awarded to each of the six “test property” Plaintiffs accordingly.

Real Property Damage

Of the three categories of damages, the real property damage is the largest category. It addresses the reduction in property value and damage to structures. However, the 44-page decision by the judge did not contain a formula that explains how the Judge came up with his assessment. We anticipate filing post-judgment briefs, and request clarification from the Court.
While the judge did not explain his methodology or formula, we compared the amount awarded to four of the Plaintiffs with the value of their pre-flood property value, as follows:

Plaintiffs: | % of real property award compared to pre-flood home value:
Mr. and Mrs. Banker | appx: 37%
Ms. Burnham | appx: 31%
Ms. Micu | appx: 24%
Mr. Sidhu (unit 603) | appx: 48%

Additionally, Judge Lettow explained that for Ms. Burnham, Ms. Micu, and Mr. Sidhu – their recovery was reduced by 50% to reflect their proportional ownership interest. This suggests that their spouse would also be entitled to recover an additional 50% of the value. Therefore, if your spouse did not sign the contract with us, please have them do so, so that we can make sure you two capture 100% of the recovery for your property.

Personal Property Damage

The personal property damage is the next category. The Plaintiffs each submitted extensive lists of lost or damaged personal property to substantiate their claims. We previously provided an Excel spreadsheet for everyone to use – we are attaching another copy here for your convenience. In his decision, Judge Lettow wrote that the property owner: “must show actual damages ‘with reasonable certainty,’ which requires ‘more than a guess, but less than absolute exactness.’” And, “all costs claimed must have supporting documentation.” Additionally, a tenant is entitled to recover lost personal properties, too.

Interest

In addition, Judge Lettow also awarded interests on the judgment – at 3.62% (compounded semi-annually), starting from August 30, 2017. This would increase the total recovery by another 19-20%.

What’s Next:

The above is a short summary of what the judge awarded. While the Court did not give us everything asked for, Judge Lettow did grant the homeowners substantial reliefs.

Please note that the case is not over, and we do not expect the government to start making payments any time soon. Next – we expect some post-decision motions to be filed for clarifications, which could take a few more months for the Court to decide on. Thereafter – we will see whether the government plans to file an appeal to this decision (we believe it will likely do so). If an appeal is filed, that would add a few more years to the case. There is still work to be done. We will continue to report as the case develops.

October 10, 2022

FINAL ARGUMENT HEARING

Jack McGehee from our office (Downstream Co-Lead Counsel) attended the Upstream final argument before the Court of Federal Claims in Washington, D.C. on September 29, 2022. We wanted to provide this supplement to our September 30, 2022 update with information from the hearing.

Overall, the Upstream trial team did an excellent job. During final arguments, the Upstream team argued two major points. First, that damages in the case had been proved by comparing circumstances surrounding the properties before-and-after the flooding. Second, that offsets to the damages model argued by the government should be limited, if any.

As it relates to the before-and-after property value analysis, Plaintiffs asked the Court to limit the government’s flowage easement to allow for future compensation in relation to government controlled flooding. While the Court rejected this argument, noting that the market is for risk-takers, the Upstream team further argued that the property owners now own the risk of flooding due to the government’s permanent flowage easement. Further, factors such as willing buyer’s knowledge and the government’s right to maximum the use of the properties increase Plaintiffs’ alleged damages, and that these elements were proven by Plaintiffs’ experts at trial. The Upstream team also argued that property owners should be compensated for the value of lost use of enjoyment of the property, lost personal property, and the value of a new permanent flowage easement attached to each property that is superior to the prior fee simple ownership. Counsel further noted that knowledge of potential flooding by homeowners does not equate to knowledge of the government’s permanent flowage easement on their properties. To counter the government’s position, Upstream team also argued that the government’s expert opinions were flawed due to the fact that the government’s experts appraised the wrong property interests when comparing property values before-and-after the flooding, and that the government’s regression analysis relating to damages was faulty.

As it relates to damages offsets, the Upstream team argued that only direct benefits (e.g. a road through an owner’s property) should be considered when evaluating offsets. Further, that general benefits awarded to everyone should not be an offset.

September 30, 2022

UPSTREAM POST-TRIAL PHASE COMPLETE – Awaiting Ruling

The post-trial phase of the case is now officially complete. The Upstream team and the government exchanged several rounds of post-trial briefings, followed by the final closing arguments conducted before Judge Lettow (before the Court of Federal Claims in Washington D.C.). Unfortunately, it was not available for listening to the general public. The post-trial phase for the “just compensation” for the Upstream property owners is now over. The trial of the case is now done.

The only thing left to do at this point is to wait for a ruling from Judge Lettow. We are hoping for a decision sometime in late fall/winter. Once we receive it, we will report the ruling ASAP.

As always, please do not hesitate to contact us with any questions or comments.

August 26, 2022

Remembering This Day

In the blink of an eye, we are entering the fifth year following Harvey, the ensuing flooding, and the unnatural disaster that impacted tens of thousands of homes in our community. We would like to use this chance to commemorate the anniversary of this incident, and the legal battle that we’ve fought for the past five years.

The long legal journey is still continuing. As reported recently – the trial of the case is concluded, although there are several post-trial events that remain to be completed. Below is a list of upcoming schedules:

Plaintiffs’ opening post-trial brief – August 1st, 2022

Defendant’s responsive brief – September 9th, 2022

Plaintiffs’ reply brief – September 23rd, 2022

Post trial argument – September 29th, 2022 @ 2:30pm

Once the post-trial argument concludes, we expect Judge Lettow to render a decision – which outlines the amount of damages that the homeowners are entitled to. We hope to receive the ruling by the end of the year. Please stay tuned for that.

It has been a long and arduous five years, but we will continue the good fight for justice. We want to reiterate that we stand with our community in this journey, and the pursuit for just compensation continues. On the eve of this day when the government took countless properties and livelihoods – we take the time to remember what happened to our community and our city, and vow to fight on.

June 10, 2022

UPSTREAM TRIAL CONCLUDED, RULING TO BE MADE IN THE COMING MONTHS

This afternoon, the trial for the “just compensation” for the Upstream property owners is concluded. This is the part of the case to determine the amount of compensation that should be paid to the flooded property owners. Although the trial is concluded, the case is not yet over. Post-trial legal briefings will be submitted. Final closing arguments will be presented before Judge Lettow in Washington D.C. in a few months. We expect a decision to be rendered by the Court thereafter – probably sometime in late fall / winter.

The Upstream litigation team did an outstanding job in prosecuting the case. The scale of the trial, the amount of legal work, and the sophistication of this trial – which covers multiple disciplines of science and engineering – is enormous. The legal battle was long and arduous, although, for now, the hardest part of the case is over. We will patiently await a ruling from Judge Lettow, who presided over the 11-day trial here in downtown Houston division in an efficient and precise manner.

We will continue to report as the “just compensation” part of the case continues to its final stage. As always, please feel free to contact us with any questions or comments.

June 2, 2022

BREAKING – DOWNSTREAM – Case Reversed and Remanded

We are pleased to report that this morning, the Court of Appeals for the Federal Circuit issued an opinion that reversed the lower court’s ruling. As everyone recalls – the lower court issued a decision that dismissed our case in 2020, finding that the Downstream property owners did not have a cognizable property interest (in what it referred to as “perfect flood control”). Today, the Court of Appeals reversed the lower court’s decision – finding that a cognizable property interest does exist. We won the appeal!

The Court of Appeals’ decision is a “reverse and remand” – which means that the case will go back to the lower court for further proceedings. The lower court will now have to determine whether a “taking” of the Downstream properties has occurred, and whether the government’s other defense (such as necessity) will be applicable. The fight will continue on.

Nonetheless, this decision by the Court of Appeals means that our case is now alive again. The Downstream team will study this decision and carefully prepare our case as it returns to the lower court. We will continue the good fight for justice for our community.

A copy of the Court of Appeals’ opinion is available at this link.

As always, please do not hesitate to contact us with any questions or comments.

May 07, 2022

UPSTREAM: Trial Scheduled

We write to report that Judge Lettow hosted another conference on March 3, 2022, and issued a new Scheduling Order thereafter. Based on this order, trial is now officially scheduled for May 31, 2022, and will last until June 10, 2022. We are scheduled to have a Pre-Trial conference on May 23, 2022, with two more status conferences in March and May.

The long-awaited trial is now officially scheduled. We will prepare and gear up for the upcoming battle!

As always, please do not hesitate to contact us with any questions or comments.

May 02, 2022

UPSTREAM: Trial Moves Forward

We write to remind everyone that the trial for the case is scheduled to start on May 31, 2022, and will last until June 10, 2022. We just attended a conference before Judge Lettow this afternoon, as the Court and the parties continue to move forward in preparation for the upcoming trial – set to take place here in the Federal Courthouse in downtown Houston.

The Court will be hosting a final pre-Trial conference on May 23, 2022, the week before the trial commences, to finalize any loose ends. We will attend the conference and report back any development or instruction from the Court. (Again: unless you have been specifically notified, you do not need to appear for the trial.) As always, please do not hesitate to contact us with any questions or comments.

February 11, 2022

UPSTREAM: Trial Postponed Again

We attended a telephone conference before the Court this afternoon. Unfortunately, due to availability issues (location, counsel, witnesses), the trial has been postponed again, now tentatively to be held during May 31 to June 10 of this year.

We are disappointed in yet another delay in the trial setting. Although, Judge Lettow has reiterated his interest and intention to get the trial started and finished as soon as possible. We hope this is the last time that the trial is pushed back.

The trial will be held here in Houston, at the Southern District of Texas courthouse in downtown. Judge Lettow advised that while he will permit some witnesses to testify remotely, he expects the majority of the witnesses to testify live in person.

As always, please do not hesitate to contact us with any questions or comments.

January 12, 2022

DOWNSTREAM: Oral Argument Concluded

The oral argument of the case is concluded today. Mr. Russell Post did an excellent job representing the Downstream team. He outlined the reasons why a reversal of the lower court’s ruling was warranted, while forcefully refuted each of the government’s claims and defenses. He also articulated the fundamental premise of our case – that private property may not be taken by the government without compensation – even if the government was exercising its police power, or fulfilling the so-called greater good.

For those who did not have a chance to listen to the oral arguments this morning, a copy of the recording is available for download at this link (under: 01/12/202221-1131Milton v. US (mp3) )

The judges on our panel were: Judge Alan D. Lourie, Judge Raymond T. Chen, and Judge Tiffany P. Cunningham.

By now, the case is officially submitted to the Court. We expect an opinion to be issued within anywhere from three to six months. We will advise as soon as we receive it from the Court. Also: the oral argument today was covered by Houston Chronicle, see this link.

As always, please do not hesitate to contact us with any questions or comments.

January 7, 2022

UPSTREAM: Trial Scheduled (tentatively)

We write to report that after much back and forth, we now have a trial setting – scheduled for March 21 to April 1, 2022 – to be held here in Houston, at the Southern District of Texas courthouse in downtown. Although, Judge Lettow advised that this will remain a tentative trial setting, pending Covid status by then. We remain hopeful that trial will take place as scheduled.

A reminder – this is the trial for the second phase – the “damages” phase of the case. Judge Lettow had already held that the government is responsible for the flooding of the Upstream properties. This trial will determine the amount of “damages” that the flooded property owners are entitled to recover.

Also: unless you have been specifically notified, you will not need to personally attend the trial.

Below is a list of other dates provided by the Court today:
February 3, 2022: Meeting of Counsel and Exchange of Preliminary Witness and Expert Lists
February 4, 2022: Meeting of Counsel Certification
February 11, 2022: Plaintiffs’ Pretrial Memorandum, Witness List, and Expert List, and any RCFC Appendix A motions for leave
March 4, 2022: Defendant’s Pretrial Memorandum, Witness List, and Expert List, and any RCFC Appendix A motions for leave
March 14, 2022: Pretrial Conference 02:30 PM (Telephonic)
March 21 to April 1, 2022: Trial As always, please do not hesitate to contact us with any questions or comments.

 

DOWNSTREAM: Trial Scheduled (tentatively)

We write to remind everyone that the oral argument for the Downstream appeal will take place next Wednesday, January 12, 2022. We expect our case to be heard by (about) 9:30 a.m. (Central; or 10:30 a.m. Eastern). Our case appears on the Court’s docket as: Milton v. US (21-1131), and will be in Courtroom 201.

Oral argument can be heard via YouTube, at the Court’s channel

We have been advised that, due to Covid restrictions, the arguments will be presented telephonically instead. Mr. Russell Post will be presenting the arguments on behalf of the Downstream team. Both sides (our side, and the government’s sides) are given 15 minutes each to argue (for a combined total of 30 minutes).

As always, please do not hesitate to contact us with any questions or comments.

Contact Us For a Free Consultation

Your Name

Phone Number

Your Email

Your Message