The Houston [1st] Court of Appeals has declined the opportunity to impose a new common law duty on a developer of a residential subdivision that years after the construction of its homes suffered a catastrophic flood resulting from Hurricane Harvey.
Jason Alexander, et al. v. The Woodlands Land Development Company L.P. (No. 01-22-00827-CV ; December 16, 2025) arose from a flood event in October 1994, which swamped a residential subdivision in The Woodlands. The storm dropped between 20 and 30 inches of rain in the vicinity of Timmaron, a yet-to-be-built planned housing complex, producing a 500-year event. After the flood subsided, The Woodlands Land Development Company and the Howard Hughes Corporation began to develop Timmaron. In their seventh amended petition, Plaintiffs, all of whom own homes in the Timmaron complex, alleged that Defendants knowingly built sections of Timmaron in the 500-year flood plain. They further alleged that both companies “set a standard policy and criteria for determining the minimum elevation of a house relative to its geographic location and that location’s risk of flooding by stating that all house slabs shall be at least [six] inches above the October 1994 [storm flood level].” The engineers used the policy prepared by Defendants and “then prepared plans showing that minimum elevation for each of the homes to be built…” Plaintiffs contended that the information given to the engineers about the minimum elevation for the plats was actually a foot lower than the October 1994 storm, therefore making the plats not high enough to prevent flooding. In 2017, Hurricane Harvey hit the Timmaron area, causing several homes to flood, displacing Plaintiffs from their homes. Plaintiffs brought claims for negligence, gross negligence, and negligent undertaking.
Defendant Howard Hughes Corporation moved for summary judgment, arguing that it was entitled to do so because no evidence existed for the claims against it. According to Hughes, Plaintiffs could not establish “the elements of duty or breach against [Hughes].” Additionally there was no evidence to support proximate cause because Howard Hughes did not have full control of The Woodlands Land Development Company at the time of the flooding, or at the time the slab elevations were decided. The trial court granted the motion and dismissed Hughes from the case.Woodlands and the engineers moved for summary judgement on the basis that they “met all of Harris County’s regulatory standards in place at the time, including a requirement that structures in the 100-year floodplain be built [eighteen] inches above the 100-year floodplain.” Woodlands then recommended that houses in Timmaron should be “six inches above the flood of record level” from the October 1994 flood. To determine the flood of record level they contracted another engineering firm, which determined the six inch minimum slab elevation. These measurements were then given to the design engineers to set the minimum slab elevation. The summary judgement motion further explained that in any event Woodlands did not sell any properties to Plaintiffs. All properties were bought from various third party builders. Woodlands did not construct slabs for the appellants’ houses and did not determine “the final lot grading or slab heights for any of [appellants’] properties.” The engineers explained further that they “did not determine the final lot grading or slab heights for any of [appellants’] properties.” The trial court granted Woodlands’ and the engineers’ motions and dismissed the case.
In an opinion by Justice Guerra, the court of appeals affirmed. For the negligence and gross negligence claims, Plaintiffs argued that Woodlands had a “duty to exercise reasonable care in developing Timmaron, particularly with regard to the flood-mitigation efforts it undertook.” They based their duty argument on SCOTX’s opinion in Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995), which the court found inapposite. In Parkway, SCOTX was asked to decide “whether a real estate development company [had] violated the [DTPA]…,” not to determine whether the company owed a negligence duty to Plaintiffs. That decision, consequently, did not create a new negligence duty owed by developers.
The next question involved whether the court of appeals should create a new duty. To determine whether a duty should be recognized, courts weigh “the risk involved, the foreseeability of the risk, and the likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the the burden on the defendant (the “Phillips factors”).” The court upheld the summary judgment finding that no recognized duty that a developer owes existed under the circumstances of this case. As the court opined, “foreseeability is a necessary but not sufficient basis on which to recognize a new common-law duty. Thus, even if we were inclined to recognize at the intermediate appellate stage a new common-law duty that has no existence in established law, we could not do so based solely on evidence that the flooding of appellants’ homes was foreseeable.”
As for the negligent undertaking claim, Woodlands undertook every precaution they were required to, and Plaintiffs did not present any evidence raising a genuine issue of material fact as to whether Woodlands exercised reasonable care in preforming what it undertook to accomplish. Therefore, the court ruled that the trial court did not err in granting summary judgment on that claim. It likewise determined that the trial court did not err in granting summary judgement on the negligence and gross negligence claims against the engineers because the two companies did not breach any duties. Plaintiffs summarily stated that the engineers did not “articulate arguments about how [they] lacked as duty as a matter of law” and that their “discussion of case law supporting [their] ‘no duty’ argument solely focused on whether a developer owes a duty; there was no discussion of case law addressing engineers.” The court of appeals opined that the argument was waived due to inadequate briefing. As the suit pertains to Howard Hughes, the appellants did not challenge the merits of Hughes’s no-evidence summary judgement motion. The court thus affirmed the trial court’s ruling.
TCJL Legal Intern George E. Christian researched and drafted this article.
