In a blow to the government’s arguments, Judge declines to throw Upstream cases out of court.
Government’s motion to dismiss not granted
The government asked the Judge to throw the upstream cases out of court, by filing what is called a “motion to dismiss.” The Judge held a hearing on the motion in Houston federal court on May 16, 2018, and issued an Order on May 24. In that order, the judge declined to throw the upstream cases out of court at this time. Here are some quotes from the Order:
- “the dams could impound water to flood thousands of additional acres of private property”
- “The Corps appears to have been long aware that its management plans could result in the flooding of private property”
- “the Addicks and Barker Reservoirs flooded 3,973 acres and 3,081 acres of private property”
- “The government acted when it built and then modified the dams in such a way that they could and did impound storm water behind the dams on both government and private property”
- Addressing the government’s legal argument about “frequency” - “the government is mistaken”
- “the Corps appeared indifferent to the risk to nearby private property owners, taking no action to reduce that risk or to obtain authorizations from those owners to impound water on their land”
The Judge concluded his Order by stating he is deferring any ruling on the motion to dismiss until trial. We continue to feel very good about our position that the cases should not be thrown out of court.
Click here to read the Order.
The case schedule
At the hearing, the Judge also discussed the case schedule. The Judge indicated the upstream test cases will go to trial in February 2019. This is still an expedited schedule, which is great news for all upstream flood victims.
“Class action” questions
The Judge was asked at the hearing if he is inclined to certify some type of class action in the upstream litigation, and his response was: “I’m not.” The Judge cited several “problems” he sees with addressing this litigation through a class action. In the May 24 Order, the Judge further confirmed: “The proceedings in both of these sub-master dockets have followed the pattern used for multi-district litigation.” This litigation is continuing to move forward as a group of individual cases, and not as a class action.
New York Times video features client of VB Attorneys
On Thursday, March 22, 2018, the New York Times published a powerful video story featuring one of our clients, Lisa Perez. Ms. Perez lives in Cinco Ranch Southpark, and her home was flooded by waters backing up from the Barker reservoir.
This story includes Judge Robert Hebert’s quote, referring to communities upstream of Addicks Barker: “Harvey didn’t flood them. The federal government flooded them.” Based on our work in this litigation, this statement is 100% true. The following information reported in this story is also true, based on our analysis:
- The federal government has known since 1940 that certain storms would flood thousands of upstream private properties (in fact, the reservoirs were designed to flood them); and
- The federal government could have purchased these properties, but chose not to, paving the way for the area to be fully developed with private residential homes.
Sadly, the story doesn’t end there. The federal government actually predicted in the days before peak flooding that over 15,000 private properties upstream of Addicks and Barker would flood due to the design and operation of those reservoirs, impacting almost 50,000 people. The government’s projection was correct, as this is precisely what happened as of August 30, 2017. Inexplicably, the federal government chose not to tell the public about its projections, robbing our community of any reasonable opportunity to at least save some valuable personal possessions before the destructive reservoir waters washed them all away forever.
Get Latest Updates by Watching a Video of Our March 5 Online Town Hall
On Monday, March 5, Vuk Vujasinovic, judge-appointed of counsel in the Addicks Barker litigation, gave an update on latest case developments and answered questions, via Facebook Live.
Vuk’s update on this litigation included a discussion of the following topics:
* Answer filed by Government
* Motion to Dismiss
* Test Cases
* Case Schedule
* Individual Case / Class Action
* Hydrology Mapping
* Flood Insurance / FEMA implications
* Post-Harvey home sale
Why hire VB Attorneys for your flood claim?
* Judge-appointed of counsel for Addicks Barker cases
* Board Certified over a decade
* Hundreds of millions recovered
* Nationally recognized
* Houston local over 20 years
* Free Consultations
* No fee unless and until you win
Vuk Vujasinovic of VB Attorneys appointed by Chief Judge as Of Counsel in Addicks & Barker Flood Litigation
On November 20, 2017, Chief Judge Susan G. Braden issued an Order in the Addicks & Barker reservoir flooding lawsuits which included an appointment of “Mr. Vuk Vujasinovic to serve as Of Counsel . . . to ensure the interests of individual plaintiffs who, at this point, do not seek class certification.” Judge Braden’s Order elaborated as follows:
“Mr. Vujasinovic graduated from the Houston Law Center where he received a Juris Doctor and was Editor of the Houston Law Review. Mr. Vujasinovic is a founding partner of Vujasinovic & Beckcom LLP, a Houston law firm specializing in complex civil litigation. Before co-founding VB Attorneys, Mr. Vujasinovic specialized in complex litigation at Shook, Hardy & Bacon. Mr. Vujasinovic is admitted to the bar of the United States Court of Federal Claims.”
Chief Judge Braden went on to specify that Mr. Vujasinovic satisfies “the criteria for selection, set out in the MANUAL FOR COMPLEX LITIGATION (4th ed. 2004) and MDL Standards and Best Practices, DUKE LAW SCHOOL CENTER FOR JUDICIAL STUDIES (Sept. 1, 2014).” The Order pertains to pre-trial jurisdiction discovery, the government’s motion to dismiss per certain court rules, and scheduling, and was entered in an upstream track of the litigation.
VB Attorneys is proud to have been appointed to this lead role in the litigation, and we are eager to continue our hard work protecting our clients’ property rights.
Addicks Barker Flood Litigation Updates
- Chief Judge issues calendar of deadlines (first case deadline is December 8, 2017).
- Chief Judge appoints leadership counsel to lead the litigation, including Vuk Vujasinovic of VB Attorneys.
- Chief Judge establishes two litigation tracks: downstream and upstream.
- Projection issued of 10,000 to 16,000 flood victims owning property upstream.
- Projection issued of 4,000 to 5,000 flood victims owning property downstream.
- Collective financial losses projected to exceed $1 Billion.
Do you own a home or business that was flooded by reservoir waters?
If so, you qualify to be included in our group of clients who are asserting their constitutional right to be compensated by the government for “taking” their property. We are accepting clients with properties downstream and upstream from the Addicks and Barker reservoirs. We are filing claims for a group of individual clients who will receive personalized attention.
On October 2 and December 5, 2017, we filed Complaints in the U.S. Court of Federal Claims on behalf of our large group of our clients seeking just compensation for the flooding of their properties by reservoir waters. We are continuing to accept clients.
Our current clients own properties in over 60 neighborhoods and complexes in and around Katy and Houston, including the following (if your neighborhood does not appear here, contact us and we will analyze for you):
Ashford Forest | Aspen Club Condominiums | Barker Court Townhomes | Barwood | Bear Creek Village | Canyon Gate Cinco Ranch | Charlestown Colony | Cinco at Willofork | Cinco Ranch Equestrian Village | Cinco Ranch Greenway Village | Cinco Ranch Meadow Place | Cinco Ranch Southpark | Concord Bridge | Equestrian Park | Fairways at Kelliwood | Fleetwood | Fonn Villages | Gaywood | Georgetown Townhomes | Grand Lakes | Grand Lakes Phase Three | Grand Mission | Greens at Willow Fork | Jamestown Colony | Kelliwood Greens | Kingsland Estates | Lakeside Forest | Marlborough Square | Mayde Creek Farms | Memorial Bend | Memorial Bend Place Condominiums | Memorial Drive Townhomes | Park Harbor Estates | Parklake Village | Parkway Villages | Pine Forest Village | Ria Ranch | River Forest | Shapard Trace | Somerset Place | Stone Gate at Canyon Gate | Tealwood | The Pines Condominiums | Walnut Bend | Woods on Memorial
We work on a contingency fee, so you do not owe us anything unless and until we win your case, at which time we would be paid a portion of your winnings. You have nothing to lose.
For a free consultation, complete the “Contact Us” form on this website. You may also call us at (888) 695-6993 or come see us at our offices in West Houston.
We are uniquely qualified to handle these cases
The Harvey inverse condemnation cases will likely turn in large part on the science of surface water resources engineering, hydrology and hydraulics. Our firm happens to be on the current forefront of these very hydrographic issues that will be presented by these Hurricane Harvey claims lawsuits based on work we did on a case last year in which we obtained a verdict of $17,720,000, resulting in a judgment of over $20,000,000. According to the Texas Lawyer, this was among the largest verdicts in Texas last year.
That case involved a fatality during construction of a bridge over Lake Brazos as part of the new Baylor football stadium project. One issue involved the application of marine law. This required us to analyze issues concerning reservoir use, water surface elevations, water flow levels, stream gages, USGS gage data, navigability, and passage of water over and through a dam.
These are precisely the issues we are currently analyzing with respect to the downstream release and upstream accumulation of water from the Addicks and Barker reservoirs. The dam in that case was even operated by the same government entity that operates the Addicks and Barker facilities: the U.S. Army Corps of Engineers.
We hired and worked with a registered civil engineer expert with over 30 years of experience in water resources engineering, modeling and evaluation of surface water resource systems, forensic hydrology and hydraulics, and alternative flood control measures. Our expert prepared a detailed hydrographic analysis for us, reducing it to a report.
We are conducting the same kind of hydrographic analysis in our cases concerning the downstream release and upstream accumulation of water from the Addicks and Barker reservoirs. We are uniquely equipped to do so because we conducted the same analysis as recently as last year in a very significant case. This benefits our clients because we already know how to confront these issues, which greatly increases our chances of success, and also saves costs because there is no need to re-invent the wheel.
The firm's founders, Vuk Vujasinovic and Brian Beckcom, have each been practicing law for approximately 20 years. Vuk and Brian are both Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization, and have been so certified for over a decade. In fact, three of the six lawyers at the firm hold this certification. The firm is highly experienced in handling large, high-stakes civil cases for large groups of clients, with an established track record of success.
What must be proven to win this kind of takings or inverse condemnation case?
There is legal authority under the constitutions of the United States and Texas, and under federal and state case law, that you have a potential “takings” claim (also called “inverse condemnation”) if the government chooses to flood your property, even if the flooding is temporary. You do not have to claim or show that the government did anything wrong. The government sacrificed your property for the greater public good, and you have the constitutional right to be compensated by the government because you took this bullet for the community.
According to the Supreme Court of the United States, "no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking," and "most takings claims turn on situation-specific factual inquiries." Courts have been instructed to consider the following factors in deciding the merits of a taking or inverse condemnation case:
- "The degree to which the invasion is intended or is the foreseeable result of authorized government action";
- "The character of the land at issue and the owner's 'reasonable investment-backed expectations regarding the land's use"; and
- "Severity of the interference."
Courts have also crafted some factors specifically for takings cases involving government flooding of properties:
- Property owners must "show that [the government] caused additional flooding beyond what would have occurred under the same conditions had the government not constructed [the reservoirs]"; and
- Challenge what the government must show: The "benefits of the [reservoirs] to each tract of land on the whole offsets the damages suffered to the individual tract under the relevant benefits test of [another case]."
So the bottom line is this: these claims are analyzed by courts on a fact-intensive case-by-case basis. Courts will look at where your neighborhood is located, which street you are on, as well as your specific, one-of-a-kind address. We are going to work with our experts in trying to establish a takings case for each case we accept, no matter where our client's property is located within the inundated areas.
We take the flooding caused by Hurricane Harvey personally, and stand ready to help you preserve your constitutional property rights
Our law firm is based on the west side of Houston, and most of our lawyers and other employees live in this area. Our firm's founders, Vuk Vujasinovic and Brian Beckcom, live with their families in west Houston. We have had a first-hand look at the devastation caused by the flooding brought on by Hurricane Harvey, and by the government's release of the Addicks and Barker reservoirs. Most of us suffered losses in the flooding. We have been busy helping our families, friends, and fellow citizens gut their homes to prevent mold so they can hopefully re-build. Vuk grew up in Kingwood, an area also hit hard by flooding, and still has close family and friends there.
Our investigation continues to uncover evidence we believe supports our clients’ constitutional property claims
One of the main items we must prove in these kinds of cases is that the government knew your property would be among those inundated with water and damaged by the release of water downstream from the Addicks and Barker reservoirs or by the accumulation of water onto private properties upstream. We are uncovering evidence supporting these claims.
The U.S. Army Corps of Engineers (“USACE”) analyzed the Addicks and Barker reservoirs almost 10 years ago. The purpose of this analysis was to understand and communicate “water inundation risks to stakeholders located in and around the reservoirs.” The government’s findings included:
- “there are significant residential encroachments within the footprints of the maximum reservoir flood pools”;
- “substantial residential neighborhoods and commercial developments are located upstream and adjacent to the federal project lands as well as along the channel below the dams and throughout the Buffalo Bayou watersheds”;
- “major thoroughfares crossing through the reservoirs are subject to inundation”; and
- the decision on when and how much to open or close the dams is a team effort of the” USACE.
A related analysis conducted by the USACE during the same time period focused on “assessment of potential flood damage” and concluded the following areas would be flooded at certain flow levels: “homes in the vicinity of West Beltway Bridge” and homes “between the bridges over Buffalo Bayou at North Wilcrest Drive … and Chimney Rock Road.”
Statements by Richard Long, Manager of the USACE responsible for operations of the Addicks and Barker reservoirs, support our clients’ claims:
- “This area [upstream properties] is designed to hold that water if necessary. It’s unfortunate for you all, but that’s how it’s designed.”
- “We know it’s putting people, making people hurt upstream, and we know it’s making people hurt downstream, but we have to ... operate the reservoirs for the entire population.”
- “We have opened the gates and we are actually flooding homes downstream now due to our releases.”
- “Did we know you would have five-foot of water in your home? We knew that if we got this event, there will be homes with water in them, yes.”
- “This is the first time we have flooded homes located adjacent to and upstream from the property.”
- “The Corps also can impound water on more land than it owns, so it could flood properties behind or beside the reservoirs.”
Some real estate documents also contain evidence supporting our clients’ claims that the government intentionally flooded private properties. For example, some plats for some of the Katy area upstream neighborhoods contain the following fine print: “subject to extended controlled inundation under the management of the U.S. Army Corps of Engineers.”