1

22ND JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY

STATE OF LOUISIANA

NO. 2008-10737 C/W 2008-11536 DIVISION "I"

JANET SHEA WIFE OF/AND ALPHONSE SHEA v.

SUN CONSTRUCTION, L.L.C.; SUNRISE CONSTRUCTION AND DEVELOPMENT, L.L.C.; PENN MILL LAKES, L.L.C.; COOPER

ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION and

PATRICIA GRANT WIFE OF/AND RICHARD GRANT, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

v. SUN CONSTRUCTION, L.L.C., PENN MILL LAKES, L.L.C., SUNRISE

CONSTRUCTION AND DEVELOPMENT, L.L.C., AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION,

FILED: _________________________ ______________DEPUTY CLERK

THIRD AMENDED CLASS ACTION PETITION FOR DAMAGES JOINING JAMES (RED) THOMPSON, JEAN THIBODEAUX, INSURANCE COMPANY OF THE STATE

OF PENNSYLVANIA, ZURICH NORTH AMERICA/MARYLAND CASUALTY COMPANY, RESILIRE ENGINEERING AND CONSULTING, LLCAND LEON LOWE

AND SONS, INC. AS ADDITIONAL DEFENDANTS

Plaintiffs, Patricia Grant, individually and as Independent Executrix of the Succession of

Richard Grant; Deborah Lascari, individually and as Testamentary Executrix of Daniel John

Lascari, Sr.; Gayle and James Ayo; Lynell and Alvin Rowan; Sheron and Vernon Sprawls; Diane

and Johnny White; and JoAnn and William Youngblood, appearing through undersigned counsel,

all persons of the full age of majority and all present or former residents and domiciliaries of St.

Tammany Parish, Louisiana, who file this petition on their own behalf and on behalf of all persons

similarly situated, respectfully represent that they desire to join as additional defendants all

persons, parties, and insurers named and identified in Paragraph 4, infra., and to substitute the

following for the allegations of the original, first amended, and second amended petitions:

1.

Plaintiffs bring this action because of damages — past, present, and future — caused by

inadequate drainage, flooding, loss of resale value, the likelihood of excessive flood insurance

premiums, and other problems described hereinafter and arising from their present or former

ownership of property in the Penn Mill Lakes Subdivision (“Penn Mill Lakes”). These damages

were caused, inter alia, by the following:

2

a. Failure to protect plaintiffs from the back flooding from the Little Tchefuncte River and Horse Branch that was known to Lawrence A. Kornman (“Kornman”), Leroy J. Cooper, P.E. (“Cooper”), James A. (Red) Thompson (“Thompson”), and Jean Thibodeaux, P.E. (“Thibodeaux”), and known by them to cause the Penn Mill Lakes subdivision applications, unless modified, to violate the Parish Ordinances that Thompson and Thibodeaux were mandated to uphold, and was intentionally suppressed by said defendants;

b. Failure of the STPG1 to enforce and require compliance by Penn Mill Lakes, L.L.C. (“Penn Mill”), Sun Construction, L.L.C. (“Sun”), and Kornman2 with, inter alia, the St. Tammany Parish Flood Hazard Area Ordinance, Parish Ordinance Sec. 7-016.00, et seq. (“Flood Ordinances”) and St. Tammany Parish Code of Ordinances Subdivision Regulatory Ordinance No. 499 (Appendix B, Chapter 40) (“Subdivision Regulation Ordinances”)3;

c. The conspiracy among these defendants and Leroy J. Cooper (“Cooper”)4 to deprive the plaintiffs, then potential purchasers of property in Penn Mill Lakes, of compliance by the developer/design defendants with the Subdivision/Flood ordinances, and of the honest services of Parish Engineer Thibodeaux and of the St. Tammany Department of Development/Planning (“Development/-Planning”), and of the informed oversight of the St. Tammany Parish Planning/Zoning Commission (“Planning Commission”);

d. Failure to warn the plaintiffs and other potential and actual purchasers of property in Penn Mill Lakes that the property that they were considering purchasing and actually purchased was property that would flood because it was in the flood basin on Little Tchefuncte River and its tributary Horse Branch Creek.

2.

The desired and accomplished result of the conspiracy described in ¶ 1 and the actions

taken in furtherance of this conspiracy was the securing of administrative approval of Penn Mill

Lakes by the STPG and the Planning Commission that was necessary for the issuance of

development and work permits for the initial and subsequent phases of Penn Mill Lakes. The most

damaging consequence of this successful conspiracy has been that Penn Mill Lakes has

unnecessarily suffered from the serious flooding problems described hereinafter that would have

been avoided or ameliorated had the St. Tammany Parish defendants (STPG, Thompson, and

Thibodeaux) required that the developers construct and bear the cost of backwater protection,

1 Thompson, Thidodeaux, and the STPG are sometimes hereinafter referred to as the “St. Tammany Parish defendants.”

2 Penn Mill, Sun, and Kornman are sometimes hereinafter referred to as the “developer defendants.”

3 The St. Tammany Parish Flood Hazard Area Ordinance, Parish Ordinance Sec. 7-016.00, et seq. (“Flood Ordinances”) and St. Tammany Parish Code of Ordinances Subdivision Regulatory Ordinance No. 499 (Appendix B, Chapter 40) (“Subdivision Regulation Ordinances”) are sometimes hereinafter referred to as the “Subdivision/-Flood Ordinances.”

4 CEI and Cooper are sometimes hereinafter referred to as the “design defendants.” Penn Mill, Sun, Kornman, CEI, and Cooper are sometimes hereinafter referred to as the “developer/design defendants.”

3

levees, and other measures required by the Subdivision/Flood Ordinances as are described in the

March 13, 2003 letter5 from Thibodeaux to Cooper and the May 6, 2009 email from Paul Carroll,

STPG drainage engineer.6

3.

These facts (¶¶ 1-2) were concealed from the plaintiffs, then prospective and now current

and former homeowners of Penn Mill Lakes property. Plaintiffs were deliberately not warned that

they would be purchasing property that flooded in a subdivision that now has the reputation of one

that floods. Rather this information was intentionally not provided to the plaintiffs. This failure to

warn continues to the present as the Penn Mill Lakes web site contains no information as to past

or potential flooding and, on information and belief, the past, present, and likely future flooding is

not otherwise disclosed.

4.

Made defendants herein are:

a) SUN CONSTRUCTION, L.L.C. (“Sun”), a limited liability company organized

under the laws of the State of Louisiana and doing business in the Parish of St. Tammany, State of

Louisiana;

b) PENN MILL LAKES, L.L.C. (“Penn Mill”), a limited liability company organized

under the laws of Louisiana and doing business in the Parish of St. Tammany, State of Louisiana;

c) LAWRENCE A. KORNMAN (“Kornman”), of majority and a resident of this

Parish and State. At all times mentioned herein, Kornman was the Manager of Sun and Penn Mill;

d) CLARENDON AMERICA INSURANCE COMPANY (“Clarendon”), a New

Jersey corporation that has its administrative offices in New York. Clarendon underwrites

commercial liability insurance;

e) INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, a foreign

insurance company affiliated with AIG which underwrites insurance, including both primary and

excess commercial liability insurance;

5 CEI1-0871-0872; 0975-0976. Copy to Earl Magner. This was also Exhibit 1 to the Second Amended Petition, Letter of March 13, 2003 from Jean M. Thibodeaux to Leroy J. Cooper, STP1-000241-42.

6 STP1000015.

4

f) COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING

CORPORATION (“CEI”), a Louisiana corporation licensed and doing business in the Parish of

St. Tammany, State of Louisiana, and LEROY J. COOPER P.E. (“Cooper”), its former owner.

Cooper was succeeded in the ownership of CEI by Joshua R. Norman, who changed the name of

CEI to Resilire Engineering and Consulting, LLC, whose purchase and continuation of the

business of CEI results in successor liability for fault of CEI and Cooper and the damage caused

thereby, so that Resilire Engineering and Consulting, LLC is also made a defendant herein;

g) RESILIRE ENGINEERING AND CONSULTING, LLC, a Louisiana limited

liability company, authorized to do and doing business in the State of Louisiana; the successor of

Cooper Engineering, Inc.

h) ZURICH NORTH AMERICA/-MARYLAND CASUALTY COMPANY, a

foreign insurer authorized to and conducting business in Louisiana. This defendant underwrites

general liability insurance;

i) LEON LOWE & SONS, INC. (“Lowe”), is a Louisiana corporation domiciled and

with its principal place of business in this Parish and State;

j) ST. TAMMANY PARISH GOVERNMENT (“STPG”), a public entity which is

vicariously liable for the intentional/negligent acts of its employees, officers, and agents in aiding

and abetting the permitting of an obviously poorly drained subdivision;

k) JAMES A. (RED) THOMPSON (“Thompson”), of majority and a resident of this

Parish and State. Thompson is and was the parish councilman for the geographic area that includes

Penn Mill Lakes;

l) JEAN M. THIBODEAUX, P.E. (“Thibodeaux”) of majority and a resident of this

Parish and State. At the time of the initial Penn Mill Lakes subdivision applications, Thibodeaux,

then an employee of the STPG, was the STPG Director of Engineering and Parish Engineer.

5

5.

Throughout the subdivision development application process and construction, substantial

portions of Penn Mill Lakes were and are located in FEMA flood zones. Current FEMA flood

maps designate many other portions of the subdivision as FEMA flood zones.

6.

Defendant Penn Mill and former defendant Sunrise Construction and Development, LLC

(“Sunrise”) were and are the developers of Penn Mill Lakes. Penn Mill originally owned the

entirety of the land area of the subdivision. Sun is and has been general contractor/builder on the

construction of the subdivision. Sun was one of the parties responsible for the design and was the

party responsible for construction and installation of those portions of the drainage system that

included the drainage pipes, drain lines, sewers, retention ponds, drainage ditches, culverts,

driveways and yards of the plaintiffs’ properties and other onsite and offsite improvements.

Kornman, as “manager” of Penn Mill and Sun, used these defendants as well as Cooper, and CEI

to circumvent the Subdivision/Flood Ordinances intended to require that the subdivision developer

pay for the public works necessary to prevent such subdivisions in St. Tammany Parish, including

Penn Mill Lakes, from being susceptible to flooding and from actually flooding. With the essential

assistance of at least Thompson and Thibodeaux and perhaps of other agents and employees of the

STPG, the developer/designer defendants also subverted one of the stated intents of the

Subdivision/Flood ordinances -- to prevent the STPG from becoming provider of last resort of

flood protection that the Subdivision/Flood ordinances mandate be provided by subdivision

developers.

7.

CEI and Cooper were responsible for the Drainage, Paving, Sewer and Water Profile and

Detail Plans for Penn Mill Lakes Subdivision, St. Tammany Parish, Louisiana, which CEI

completed and filed in the official records of the Clerk of Court for St. Tammany Parish, Louisiana

as well as Hydrologic Report(s) for Penn Mill Lakes - Phases 1 and 2.

8.

All plaintiffs are present or former homeowners in Penn Mill Lakes located in St. Tammany

Parish, Louisiana.

6

FIRST CAUSE OF ACTION

THE COMPREHENSIVE REGULATORY SCHEME ESTABLISHED BY THE ST. TAMMANY PARISH COUNCIL, NOT “ENFORCED” BY THE

STPG, AND SUBVERTED BY THE DEVELOPER/DESIGN DEFENDANTS

9.

The St. Tammy Parish Council and its predecessor, the St. Tammany Parish Police Jury,

in order to ensure adequate planning, to prevent unwise subdivision development in areas of known

and likely flooding, and to prevent prospective purchasers in regulated subdivisions from

purchasing lots and homes in flood-prone areas without notice and disclosure, developed two sets

of ordinances to regulate such activities and to accomplish those purposes, to wit: The St.

Tammany Parish Flood Hazard Area Ordinance, Parish Ordinance Sec. 7-016.00, et seq. (“Flood

Ordinances”) and St. Tammany Parish Code of Ordinances Subdivision Regulatory Ordinance No.

499 (Appendix B, Chapter 40) (“Subdivision Regulation Ordinances”).

10.

In 2002 and 2003, enforcement of and compliance with the Flood/Subdivision Regulations

ordinances required that a detailed subdivision development application be submitted to the

Department of Development/Planning, the STPG regulatory agency that “is responsible for

guiding the orderly growth and development of St. Tammany Parish.” This application included

an “ENVIRONMENTAL ASSESSMENT DATA FORM.” Question 1(g)(6) of that form asked,

“(1) Does the proposed development: (g) Breach national, state or local standards relating to: (6)

Flooding.”7 The St. Tammany Parish Code of Ordinances, Article II, St. Tammany Parish Flood

Hazard Area Ordinance, Section 7-016.00, et seq. contained one of the “local standards relating to

flooding.” The applications prepared, signed, and submitted by the developer/design defendants

falsely answered that question in the negative.

11.

According to Section 40-060.0 and “as a prerequisite for preliminary approval” of the

preliminary subdivision review, the developer was required to provide the following information

7 The first such application, submitted on the 280-acre Simpson Sod farm which is now the Penn Mill Lakes Subdivision, CEI1-1673-83, untruthfully answered this question in the negative as did all later applications.

7

“16. designated flood areas (show on plat with demarcation lines or shading)” and according to

“Section 40-061.0 Additional Requirements To Preliminary:”

1. In addition to the preliminary subdivision plats and sewer and water plans; eighteen (18) separate paving and drainage plats shall be submitted providing the following information:

1. topography of the area to be developed with the contour lines at one foot vertical intervals

2. vicinity map

3. proposed street cross-sections and surfacing

4. areas subject to inundation at flood stage.

12.

Contained within the subdivision application packet received by CEI, Cooper, and the

developer defendants was a copy of the St. Tammany Parish Council amendment to the Flood

Ordinance amending the Subdivision Regulations by creating 40-037.05 and amending 40-037.048

in order to define, inter alia, the submittal by the developer:

1. The initial plan must be submitted in accordance with the requirements of this ordinance. Applicant shall submit a survey plot plan that depicts the minimum elevations necessary to determine the average elevation of the construction area; for example the lot corners and maybe an intermediate elevation in between corners could be used. The survey must state the flood zone.9

13.

A truthful subdivision application for Penn Mill that included all of the required submittals

and that complied with the Subdivision/Flood ordinances and other applicable regulations would

have disclosed the back-flow of the Little Tchefunte River and Horse Branch and the effect of this

back-flow on the proposed subdivision. Had this disclosure been made, which it was not, the STPG

and its departments and agencies and the Planning Commission would have required a levee of a

height of five feet or more above the then current elevation of Horse Branch Road as well as a

pumping station and additional retention areas, all of which the developer defendants would have

had to provide at their expense. A levee would have been and is still required because water backs

up into Penn Mill Lakes from the Little Tchefuncte River and its tributary Horse Branch, an

8 CEI1-1148-1152.

9 CEI1-1151.

8

intermittent stream,10 during significant rainfall events, either (a) through culverts installed by a

paving contractor for the STPG or (b) by overtopping Horse Branch Road.

14.

The entire Penn Mill Lakes watershed drains to Horse Branch by way of the culverts under

Horse Branch Road and, as such, this set of culverts would define the downstream boundary

conditions for any hydrologic analysis performed, especially for the purpose of designing the

subdivision’s interior drainage system. In this case, providing a 10-year drainage design level of

protection would require consideration of 10-year conditions at the downstream boundary, which

is standard civil engineering procedure. This was not done, although the design/developer

defendants as well as the STPG defendants knew that the proposed subdivision was in the flood

basin of the Little Tchefuncte River and Horse Branch. The entire Penn Mill Lakes drainage system

is, hydrologically, a “backwater” flow system. This means that all flow capacities and conditions

in the upstream channels (and ponds) are determined by the drainage system’s downstream water

levels. If downstream water levels are high, then the upstream system becomes submerged and

cannot function as intended.

15.

If the downstream water levels, vis-à-vis the subdivision, can be kept low or prevented

from entering the interior drainage system of Penn Mill Lakes (for instance by blocking the

backwater effects with a levee and flap gates), then the entire upstream system should drain as

designed. However, for this to actually work, onsite retention and a pump station will also be

needed. The combination of a levee of adequate height, flap gates, onsite retention, and a pump

station will, on information and belief, solve all of the numerous drainage problems experienced

within Penn Mill Lakes. These issues were raised by Thibodeaux in his March 13, 2003 letter.

However, for this to actually work, onsite retention and a pump station will also be needed. The

combination of a levee of adequate height, flap gates, onsite retention, and a pump station should

solve the numerous drainage problems experienced within Penn Mill Lakes.

10 This is a stream that does not necessarily contain flow at all times of the year and may, in fact, be found to be dry on occasion.

9

16.

Subdivision development applications had to be approved by the Parish Engineer, then

defendant Thibodeaux, prior to their submission by the Department of Development/Planning to

the Planning Commission, the entity charged with issuing subdivision approvals, work permits,

and other permits necessary for the developer to begin construction of the proposed development.

17.

Despite the false denials of flooding problems in the subdivision applications and the

failure of the design/developer defendants to disclose the known flooding and flooding hazards or

the location of the proposed subdivision in the backwater flood plain of the Little Tchefuncte River

and Horse Branch, defendant Thibodeaux was well aware of these problems as he detailed them

in his letter to Cooper of March 13, 2003:11

The project may affect Flood Zone A and Flood zone A may affect this project. I am concerned about how the flood zone may cause water to back up into the subdivision and affect the flow rates. The ponds may take up to 5 days to drain and may conflict with the peak of the Tchefuncte River. Back flow prevention may be required. * * * *

18.

The developer/design defendants, who already knew of flooding problems that would have

prevented approval of the subdivision application as submitted, and understanding that

Thibodeaux would be a problem, enlisted the aid of defendant Thompson, the councilman for the

District 3, the geographic area that included Penn Mill Lakes, to subvert the honest services of

Engineer Thibodeaux. This became more urgent when Thibodeaux demonstrated an intent in his

March 13, 2003 letter that there be full disclosure of flooding and there be an undertaking by the

developer/design defendants to furnish the public works necessary to prevent flooding and to

protect against the backflow of the Little Tchefuncte/Horse Branch as a preliminary and

prerequisite to recommendation of approval by Thibodeaux to the Department of

Development/Planning and by that Department to the Planning Commission.

11 CEI1-0871-0872; 0975-0976. Copy to Earl Magner. This was also Exhibit 1 to the Second Amended Petition, Letter of March 13, 2003 from Jean M. Thibodeaux to Leroy J. Cooper, STP1-000241-42.

10

19.

As he was requested to do by the developer/design defendants, Thompson successfully

prevented Thibodeaux from obtaining hydrological studies Thibodeaux had requested from

Cooper and CEI that would have confirmed his March 13, 2003 engineering conclusions.

Thompson also successfully prevented Thibodeaux from truthfully reporting regulatory non-

compliance and the serious flooding issues to the Department of Development/Planning and

thereby prevented such information from being provided by that Department to the Planning

Commission. These unlawful actions resulted in approval of phases of the subdivision by a

Planning Commission that was deliberately and intentionally kept ignorant of the violations of the

Subdivision/Flood ordinances by the developers and designers, the subversion of Thibodeaux, and

the flooding problems (known to exist, inevitable, and which have actually happened). This illegal,

unlawful, but ultimately successful conspiracy, in which all of these defendants participated,

forfeited governmental immunity since compliance with the Subdivision/Flood ordinances is not

discretionary, and there is no governmental immunity protection from fraudulent, corrupt, or

illegal actions. Rather Thompson and Thibodeaux failed and refused to adhere to and enforce the

Subdivision/Flood ordinances that were intended to prevent construction of subdivisions in flood

plains and to prevent developers from concealing known flooding from regulators and from

prospective and actual homeowners in order to avoid the additional expense of providing levees,

pumping stations, and the other needed flood-prevention works needed for the subdivision

development, here Penn Mill Lakes.

20.

The STPG vicariously and Thompson and Thibodeaux individually and as parish officials

are guilty of continuing breaches of mandatory duties established by law in favor of the plaintiffs

and the members of the class. These breaches of duty began at the time that the STPG, through

Thibodeaux, understood that there would or may be serious drainage and flooding problems in

Penn Mill Lakes, that the Subdivision/Flood ordinances were not being followed in the

submissions made by the design defendants on behalf of the developer defendants, and that the

developers had the obligation, which should have been enforced by the governmental defendants,

to notify the Planning Commission of known flooding and of the necessity, as stated in

11

Thibodeaux’s March 13, 2003 letter, that the developer/design defendants comply with Parish

Subdivision ordinances whose intent was denial of approval of subdivisions which may or would

flood without extensive public works that would be installed at the cost of the developer.

21.

Furthermore and despite the knowledge, inter alia, as expressed by its Director of

Engineering and quoted in ¶ 17, supra, the STPG, through Thompson, Thibodeaux, and others,

were successfully convinced not to cause these flooding and river backwater issues to be remedied

at all much less at the cost of the developers. Rather, on information and belief, this critical

information was not presented to the Planning Commission, who, in the absence of information

about flooding, flood plain, and flood basin problems, approved and/or caused to be approved the

initial development and later Penn Mill Lakes phases and issued and continued to authorize the

issuance of building permits for construction of homes for resale to the public in a subdivision

known by the developers and the STPG defendants to flood. Moreover, the STPG ultimately

accepted the dedication of the streets, swales, drainage system, and retention ponds into

Parish/public ownership and maintenance thereby inheriting the problems created by the

developers in construction of this STPG-approved subdivision. Inasmuch as STPG has accepted

perpetual maintenance, despite knowledge of the design defects and the flooding problems by

parish officials, STPG is a party needed for just adjudication (La. C.C.P. Art. 641).

22.

The STPG, through its representatives and employees including Thompson and

Thibodeaux, knew that Penn Mill Lakes as proposed violated Subdivision/Flood Ordinances and

that the subdivision application should not have been approved, deliberately withheld flooding

information from the Planning Commission, and permitted a subdivision to be approved by the

Planning Commission that has exhibited the flooding characteristics and has flooded as Thompson

knew would happen and as predicted by Thibodeaux in his letter of March 13, 2003 and predicted

or demonstrated in other documents referenced below.

23.

Although Thompson knew that Penn Mill did not meet the criteria established by the

Subdivision/Flood Ordinances, he either conspired with the developer/design defendants and

12

Thibodeaux or allowed himself to be convinced by these defendants to interfere with and derail

the administrative processes wherein the Engineering Department was mandated to prevent

approval of a subdivision so unequivocally in violation of the Subdivision/Flood Ordinances. On

information and belief, none of this detrimental information was disclosed to the Planning

Commission who issued the various subdivision permits because its members were intentionally

kept ignorant of the ordinance violations and the factual misrepresentations in the subdivision

applications and environmental assessment forms. Moreover, the STPG, Thompson, and

Thibodeaux did not enforce requirements in the Subdivision/Flood Ordinances that developers

must develop and pay for backwater protection measures to prevent flooding from the backwater

conditions that were known to exist and to this day still regularly occur within Penn Mill Lakes.

24.

Despite the foregoing and other knowledge of the certainty of flooding, the STPG did not

warn prospective purchasers that their property was in a flood zone or cause the developers to give

such warnings and did not cause the developers/designers to correct those concerns expressed by

its engineering department which accurately predicted the flooding that has since happened. To

date STPG has not taken any steps to do so despite the acknowledgement by drainage engineer

Paul Carroll quoted in ¶ 63 that these flooding conditions continue to exist. Furthermore, the

proposed remedy back flow protection not implemented by the STPG or the developer before

approval of the subdivision has not been built.

25.

Despite this knowledge of the certainty of flooding, the STPG issued the initial and

subsequent subdivision permits for Penn Mill; entered into development agreements with the

developer defendants; ultimately assumed ownership of and responsibility for perpetual

maintenance of roads, lakes, and other common areas of the subdivision; received drainage

complaints; and at all times knew that the fundamental and almost exclusive cause of the flooding

problems in the subdivision was the defective and insufficient design of Penn Mill Lakes.

13

CHRONOLOGY FROM CONCEPT THROUGH APPROVAL OF PHASE II

26.

The first submission to the STPG by CEI, entitled “Simpson Sod Property,” was submitted

and signed by Cooper12 on July 22, 200213 and was addressed to Ron Keller of

Development/Planning. In response to Question 1(g)(6), “(1) Does the proposed development: (g)

Breach national, state or local standards relating to: (6) Flooding,” the answer was “NO.”14

27.

In his letter of September 11, 2002, Kornman wrote to Cooper confirming that “You and I

will talk with Red Thompson about applying a portion of the impact fees to improvements of the

culverts as [at] Horsebranch Road.”15

28.

In her October 18, 2002 letter to Kornman, with a copy to Cooper, Nelwyn C. McInnis of

the Nature Conservancy of Louisiana stated:16

1) Changes in hydrology

The Lake Ramsay Conservation Area is a very special wetland habitat that is considered seasonal wetlands. It is flat and poorly drained, with a high water table. Surface and subsurface hydrology is thought to be an important factor in habitat quality and maintenance. An increase or decrease in water flow onto the area may have a significant impact. In addition, due to flooding in the area of Horse Branch Road, an increase in flooding may initiate the parish to conduct flood control measures on our property, which may negatively impact the site.

29.

A “Tentative Approval Check List,” dated November 19, 2002, on “Penn Mill Lakes

Subdivision,” signed by Cooper, 17 was submitted to Development/Planning.18 “NO” was again

12 CEI1-1683. This bates stamp refers order in which the 4,828 pages were received

13 CEI1-1673-83.

14 CEI1-1681-82.

15 CEI1-1707.

16 CEI1-1411.

17 CEI1-1353.

18 CEI1-1353-1359.

14

stated in response to the question: (g) Breach national, state or local standards relating to: (6)

Flooding.”19

30.

On December 2, 2002, CEI submitted a traffic impact analysis containing the statement

that,20 “There is an existing flooding problem where Horse Branch crosses the roadway. This

problem will be addressed during drainage design for the development.”

31.

On February 14, 2003, Cooper signed21 and sent an additional “preliminary Subdivision

Application” for Penn Mill Lakes to Thibodeaux22 that contained that same misrepresentation. On

February 24, 2003, Thibodeaux resent a list of twenty-four (24) items to Cooper23 that were to be

addressed so as to be received by Thibodeaux “prior to February 28, 2003 (changed to March 6,

2003), so that our report to the Planning Commission can be complete.”24 This list included:

(19.) You are hereby advised that a detailed review of the hydrologic study for this development may be conducted by a licensed civil engineer. Therefore, you will be required to cooperate in this review process;25

32.

This February 14, 2003 letter also included a copy of the St. Tammany Parish Council

amendment to the Flood Ordinance amending the Subdivision Regulations by creating 40-037.05

and amending 40-037.0426 to, inter alia, require the following submittal:

1. The initial plan must be submitted in accordance with the requirements of this ordinance. Applicant shall submit a survey plot plan that depicts the minimum elevations necessary to determine the average elevation of the construction area; for example the lot corners and maybe an intermediate elevation

19 CEI1-1357.

20 CEI1-1330.

21 CEI1-1186-1188

22 CEI1-1182-1190.

23 CEI1-1143-1152.

24 CEI1-1143, 1145.

25 CEI1-1146.

26 CEI1-1148-1152.

15

in between corners could be used. The survey must state the flood zone.27

Cooper responded on February 28, 2002,28 stating as to “19. We shall fully cooperate.”29

33.

On March 1, 2003, Cooper emailed Kornman and stated: 3) I want to complete our

negotiations with Mr. Thompson to better ascertain what he expects and also to get a time table as

to when he expects this work to be performed.”30 Kornman responded on March 3, 2003 and stated,

“I will be meeting with you on Wednesday. Lets ascertain the scope of the work that Red wants. i

will work out the timing and process.”31 [sic]

34.

On March 6, 2003, Cooper addressed a letter to Kornman which he stated that:32

I met with Councilman Thompson on Penn Mill Road, south of the project area. The location is one that traditionally floods during heavy rainfall events. Mr. Thompson was very familiar with the local problems. Flooding is the result of backwaters from the Tchefuncte River, located on the west side of the roadway. Waters crossing beneath the roadway from the east side that flows to the river are not the problem. Mr. Thompson also indicated the limits of the flooding. This information allows us to determine a flood elevation for the existing conditions.33

35.

On March 13, 2003, Thibodeaux responded to Cooper and stated:34

I have had the opportunity to further review the Hydrologic Analysis for Penn Mill Lakes. Below are additional comments that I would like to discuss and possibly address prior to the Planning Commission meeting. * * * *

The project may affect Flood Zone A and Flood zone A may affect this project. I am concerned about how the flood zone may cause water to back up into the subdivision and affect the flow rates. The ponds may take up to 5 days to drain and may conflict with the peak of the Tchefuncte River. Back flow prevention may be required. * * * *

Thank you for the opportunity to allow for further comment. Please contact

27 CEI1-1151.

28 CEI1-1131-1132.

29 CEI1-1132.

30 CEI1-1048.

31 CEI1-1045.

32 CEI1-0990-0991

33 CEI1-0990.

34 CEI1-0871-0872; 0975-0976. Copy to Earl Magner. See also ¶ 17 and note 11.

16

me at your earliest convenience to discuss this project. A follow up letter may be in order to address these concerns.

36.

The first fruit of the conspiracy to obtain approval of Penn Mill Lakes, a subdivision that

flooded and otherwise did not meet the letter or the spirit of the applicable Parish Ordinances, was

the letter of March 20, 2003, whereby Thibodeaux “officially” notified PML, LLC that PML,

Phase I:35

received Preliminary Approval at the March 18, 2003 Planning Commission meeting. Please make sure that all requirements established by the Planning Commission are incorporated in your process henceforth.

37.

On March 26, 2003, Cooper wrote to Thibodeaux:36

Attached please find a profile of the existing section of Penn Mill Road at its crossing with, to our knowledge, an unnamed waterway located between Horse Branch Road and Pruden Creek. The low area shown in the profile of Penn Mill/Horse Branch Road historically floods.

The elevations shown are relative and not to a universally recognized datum. As the first order of work, we met with Councilman Thompson, who is a tremendous source of knowledge regarding his district. He was very aware of the flooding problem and described what occurs. He also indicated the historic high water elevation being at the closest driveway located to the south of the low point of the crossing. This would be at about relative elevation 103.00. He also stated that there is not a problem with upstream run-off that flows into the Tchefuncte River. He prefers that additional culverts not be added to allow more backwaters into the developed property. There is no development between Penn Mill Road and the Tchefuncte River. Problems result from backwaters of the nearby Tchefuncte River.

Penn Mill Lakes, LLC, has entered into a developmental agreement with the Parish. They intend to use a portion of the developmental agreement funds to raise the elevation of the roadway above the historic flood stage.

We request a meeting with your office to review the site, and to discuss what requirements for design will be mandated to accomplish the construction to raise the road's elevation. Please contact our office to schedule a meeting. With best regards,

35 CEI1-3772.

36 CEI1-2637.

17

38.

On April 3, 2003, Thibodeaux wrote to Cooper with copies to Thompson, Charles E.

Williams, Kornman, and engineer, Earl Magner:37

Reference is made to your letter dated march 26, 2003 regarding increasing the height of a segment of Penn Mill Road at the location of an unnamed tributary to the Tchefuncte River.

Before this office could recommend increasing the height, it will be necessary that a hydrologic study be made of the site to determine the effect, if any, this would have on the upstream area.

Upon review of this study, we could then discuss the acceptable methods of construction to accommodate the purpose of raising the roadway to provide access during high water events.

39.

On April 7, 2003, Cooper wrote to Kornman:38

This is to advise that I met with Mr. Earl Magner and Mr. Eddie Williams, Engineers with St. Tammany Parish.

They are to meet with Mr. Thibodeaux, but stated that the Parish will likely want the following to be included in the design:

1. Remove and replace existing cross-culverts.

2. Do a hydrological study of Horse Branch and perhaps the Tchefuncte River in this vicinity to assure no negative impact and to properly size new culverts.

3. Construct full width shoulders on raised roadway.

There was much agreement on such things as no need to relocate utilities, and design road elevation. We walked the site several times to review all concerns.

As stated, Mr. Thibodeaux will write a letter to formalize all of their requests. We cannot finalize design until we receive this information.

40.

Truthful compliance by the developer/design defendants with the requirements of the April

7, 2003 letter would have constituted public acknowledgement that Penn Mill could not meet and

actually violated the Subdivision/Flood Ordinances and that final approval by the Planning

Commission could not be obtained without substantial and costly flood protection at the cost of

the developers.

37 CEI1-3752.

38 CEI1-2636.

18

41.

On April 15, 2003, Cooper, in an effort to prevent such disclosure, wrote to Thibodeaux as

follows:39

Prior to beginning design, I would like to know the points of interest for the hydrologic design. At this point, we assume it is a study of the upstream basin to determine the peak flow beneath the roadway. What design storm do you want us to address in this study?

Likewise, we assume that there is some interest in the flow line elevation of the Tchefuncte River, based upon a certain design storm. Can you please define this storm?

Finally, we also assume that the flow estimates and elevations can be based upon contours available from Quadrangle Maps and that detailed surveying is not required. Again, is this acceptable? Please understand that we have no information on the Tchefuncte River at this point. If you have data, then we ask that it be made available.

If there are other particulars that you want us to address, then please define. As always, your attention and assistance is most appreciated. With best regards,

42.

On April 24, 2003 at 9:16 AM, Cooper emailed Kornman to inform him that the efforts to

subvert Engineer Thibodeaux would likely succeed and that Thibodeaux would not provide honest

engineering services or report his “flooding concerns” to the Planning Commission:40

I spoke to Red Thompson. He asked what he could do to help. I told him to get the Parish to back off on detailed Drainage studies if he could. He said that he did not want or need a study, he just needed the road raised. The kind of study that they implied, which is why I wanted a full explanation, could easily cost $5,000 to $10,000. They were talking not only about a basin study for the crossing, but a study of the tchefauncte River basin and its backwater effects. This is why I have not yet quoted a price for design. Red said that he wil try to talk them out of this. He then joked about how engineers can screw things up. I agreed, and asked him to help us simplyfy the project. [Emphasis added. Sic.]

43.

On April 24, 2003 at 9:20 AM, Cooper emailed Kornman to provide him with further

details of the likely success of this aspect of the conspiracy to subvert the honest services of the

STPG Engineering Department in general and of defendant Thibodeaux in particular:41

Red Thompson called to say that he had a tentative meeting set for 10 am on Wednesday, April 30 At Koop Drive. He will call if that changes. We are to

39 CEI1-2635.

40 CEI1-2633.

41 CEI1-2634.

19

discuss the project with Mr. Thibodeaux and Mr. Thompson. [sic.]

44.

On May 9, 2003, Kornman wrote to Keller with copies to Sidney Fontenot, Director of

Planning, Thompson, Thibodeaux, and Cooper:42

We are in receipt of your letter April 17, 2003 relative to the development agreement between the Parish and Penn Mill Lakes. ln accordance with your instructions, I met with Councilman Thompson to discuss the development agreement between Penn Mill Lakes, L.LC. and the Parish.

45.

On June 11, 2003, Cooper wrote Thibodeaux in response to his conversation with Mr.

Magner and responding to “outstanding item listed for Penn Mill Lakes, Phase I” that did not

include a hydrologic report or refer to one or the need for one.43

46.

On July 22, 2003, Cooper wrote to Thibodeaux with copies to Thompson and Kornman

and enclosed calculations and other submittals that he knew were totally inadequate, insufficient,

and non-compliant with the applicable ordinances:44

Attached are the calculations of the drainage basin, and the flow beneath Penn Mill Road, at the location that we are proposing to raise as a part of the roadway improvements that we met with Mr. Magner and Mr. Tisdale to discuss.45

We have used the recent tropical storm and heavy rainfalls to document high water marks on the existing roadway, to determine the elevation that will satisfactorily keep the roadway accessible during extreme high water events.

The existing culverts beneath the crossing, as shown, consists of 2-51" diameter concrete culverts. The peak run-off, assuming a type 3, 25-year storm, is 136.5 cfs. Each culvert has a flow capacity of 95 cfs, or a total capacity of 190 cfs. Therefore, just as described by Mr. Thompson, the culverts are sufficient to handle the downstream run-off. The over-flow on the roadway is caused by backwaters as observed in the high water events.

We are completing the design for raising the roadway at this time, and will forward for your review.

Preliminarily, we wanted to forward a copy of the drainage study for you to review with a request that you please contact our office if there are any questions

42 CEI1-3678.

43 CEI1-0856.

44 CEI1-2623.

45 The attached drainage calculations are CEI1-2624-2630.

20

or if further discussion is necessary. With best regards,

47.

On October 10, 2003, Cooper wrote to Thibodeaux with a copy to Thompson and

Kornman:46

Attached are plans for a proposed improvement to raise the low area of Penn Mill Road, that frequently floods, for your information and review.

On October 28, 2003, Thibodeaux wrote to Cooper with copies to Thompson, Keller, Magner, and Kornman:47

2. Show datum used for elevation control on subdivision plat and drainage plan,

3. Minimurn floor elevation must be shown for Flood Zone A-4, [sic]

4. Provide sufficient documentation to prove that the 50 year frequency storm for 2, 6, and 12 hour duration rainfalls were considered in the design

5. Provide more details for the 160 acre property to the north. How were the flows for this area determined. Provide calculations and the basin delineation.

THE SUBSEQUENT AND INEVITABLE FLOODING PROBLEMS

48.

On August 29, 2006, Andrew Hastings, E.I.T (“Hastings”) wrote to Joseph M. Gustafson,

P.E., Director of Engineering (“Gustafson”) concerning the drainage complaint of Leo Favre on

PML Phase 2-B concerning Penn Mill Lakes Boulevard and Huseman Lane and recommendation

to the developer on “how to alleviate the problem.”48 This letter was forwarded to Favre on August

30, 2006 with copies to Magner and Sunrise Construction.49

49.

On October 27, 2006, Hastings wrote to Mark Luna concerning the street flooding

occurring on Huseman Lane (6 inches or more water pooling) that “will undermine your roads as

well as bring up red flags with the Parish.” Favre’s complaints are to be addressed.50

46 CEI1-2616.

47 CEI1-4557-4558.

48 CEI1-0135.

49 CEI1-0137.

50 CEI1-0140.

21

50.

On November 3, 2006, Gustafson wrote to Favre closing the matter:51

Please be advised that the Engineering Department has again inspected the site accompanied by the developer's licensed professional Civil Engineer and find that the work accomplished by the developer is acceptable and conforms to the approved hydraulic [hydrologic] study. [sic]

51.

On November 9, 2006, Favre wrote to Gustafson:52

Mr. Gustafson thanks for taking the time to reply to my email dated October 16, 2006. I have been out of town and would have responded sooner.

I have made copies of your letter and passed them among the neighbors that were concerned about the street flooding along Penn Mill Lakes Blvd. We were all amazed that you stated in your letter that this matter is considered closed. Our only comfort with that statement will be that the Parish of St Tammany will be responsible for any flooding of residences in the area.

I was involved with Jean Thibodeaux for over one and a half years over a similar drainage problem that he refused to fix. I finally waited until we had Hurricane Bill come thru and took video tape of all of the flooding along Plantation St and Shady Lane. I took the tape and went to see Kevin Davis and sent a copy of the tape to FEMA. Kevin Davis was a little upset because Jean Thibodeaux told him I was the only one that had a problem .

Mr. Gustafson I had the displeasure of being stuck here during Katrina. We only had nine and one quarter inches of rain in a fifteen hour period. Thanks to the good Lord it was spread over a long period of time. This place was virtual lake all up front by the sales office and the traffic circle and the construction office and heading north what is now Penn Mill Lakes was a lake. I only wish I had not taped over that tape so I could show it to you. Horse Branch Rd was flooded. The water on my comer was within just a few feet of my house.

I will wait until the right rainfall and take pictures and hope that no one is affected by that rainfall. I am sorry you feel this matter is closed I know it is not. Some one needs to take a second look at this drainage plan and do some home work oμt here there are more problems than Penn Mill Lakes Blvd and Huseman Ln.

52.

On November 14, 2006, Cooper wrote to Magner referencing the Favre residence:53

We do not want to engage in a debate or rebut Mr. Favre. We understand his concerns about flooding, particularly during a hurricane, such as Katrina. A nine and one-half inch rainfall in 15 hours is a 100-year storm rainfall event. The effect of a rainstorm cannot be measured by the amount of rain alone.

51 CEI1-0142.

52 CEI1-1615.

53 CEI1-1614.

22

Almost all drainage in the Parish is by gravity into streams that ultimately flow into Lake Ponchartrain. When southerly winds are strong, the lake tides rise on the northshore, therefore, these streams do not flow well and they back up and water surface levels rise. This is the primary cause of backwater flooding, such as described by Mr. Favre. I am sure that all of the surrounding area had similar flood waters. We do not know how to explain to Mr. Favre that because a street floods for a short period of time in extremely heavy rainfall events it does not mean that his home is in danger. When Horse Branch fills up there is nothing that anyone can do to expedite run-off until the creek goes down. However, the water surface level that it obtains at its highest level is not calculated by FEMA as being capable of flooding Mr. Favre's residence.

We shall continue to monitor the development to look for ways to improve drainage and to avoid water from entering anyone's home. In the meantime, if there are any questions, please do not hesitate to contact our office. With best regards,

53.

On November 15, 2006, Cooper wrote to Luna addressing the Favre complaint:54

Just a note to advise that on the morning of Wednesday, November 15, 2006, we rode through the subdivision, particularly to observe the Favre residence during the heavy rains that occurred during the night and during our site visit. All of the run-off was contained in the ditches and they were flowing as designed.

Later in the day, we spoke to Mr. Magner, with the Parish Engineering office. He too had independently driven through the area and reported that the system was functioning satisfactorily, as designed. He said the Parish does not plan to further address Mr. Favre's correspondence.

54.

On January 31, 2007, Hastings wrote to Gustafson stating that, “work is being done to

correct deficiencies in the drainage flow at the above referenced phase [Phase 2-B] of Penn Mill

Lakes Subdivision. Specifically, some of the driveways in this phase were not placed at the correct

elevations to function properly with the drainage pattern.”55

55.

CEI1-2896-2698 is a nola.com prediction of the Tchefuncte cresting from 16.5 feet, past

flood stage of 20.0 feet, and expected crest of 22 feet.56

54 CEI1-1612.

55 CEI1-0143.

56 On the weekend of June 1, 2014, the Tchefuncte River at the Covington station crested at 25.48 feet. According to http://water.weather.gov/ahps2/hydrograph.php?wfo=lix&gage=cusl1, the highest crest historically was (1) 32.00 ft

on 02/03/1988 and (4) 27.34 ft on 07/01/2003 (which was during the middle of the subdivision application process and demonstrated to the developers and the St. Tammany Parish defendants the extent of the flooding that was suppressed and not made known to the Planning Commission).

23

56.

On February 1, 2008, Cooper wrote Magner Re: PML Subdivision as follows:57

Last night, there was a reported 100-year rain storm event (3 inches of rain in 30 minutes). This event resulted in the usual street and ditch flooding in the areas normally anticipated after such a severe event. Normally after such events, we review various areas to determine if there are any unusual problems. When reviewing Penn Mill Lakes, portions of Horse Branch Road, near the "90 degree curve", that turns toward the east, was flooded and unpassable. Further review indicated that the outfall ditch, through the Nature Conservancy, that flows into Horse Branch was not flowing and was apparently blocked. This, of course, inhibited the drainage flow out of the subdivision. The lake levels within the subdivision rose higher than normal because the water could not escape the subdivision, leaving two distinct areas of street flooding that historically did not flood in the past.

Our concerns is that either Horse Branch or the outfall ditch from Penn Mill, across Horse Branch Road, is blocked, likely by beaver dams on Nature Conservancy property. As you know, this has been a historic problem for these waterways.

This blockage is resulting in back water causing some street flooding within the subdivision and the Nature Conservancy property. This flooding is spreading to overtop portions of Horse Branch Road in the bend.

We request a joint review with you and perhaps representatives of the Nature Conservancy as soon as possible to see what can be done to alleviate this situation.

Please contact our office to let us know how we can assist you to resolve this apparent problem. Thank you as always for your prompt attention and cooperation. With best regards,

57.

On February 11, 2008, Hastings, replying to Luna’s email of the same date, stated:58

As discussed I was able to meet with Mr. Earl on site to discuss a few different items. Regarding the high water levels across the entire Covington area, the weather forecasts expected the Tchefuncte River and the Bouge Falaya River to surpass their flood stage levels. On February 1st, our inspection revealed yard and street flooding in areas across Hwy 1077, Horse Branch Road, and Lake Ramsey Road. As you know, there were two distinct areas of street flooding in Penn Mill Lakes due to the water being unable to escape.

The outfall to Penn Mill Lakes goes to a ditch that runs west and under Horse Branch Road. The water level of this ditch just outside of the subdivision was very high and drainage was not being allowed to flow out of the subdivision. In fact, it seems likely that the outfall ditch and the subdivision were actually receiving some backwaters from the flooding of the river and surrounding areas. Hence, the level of the ponds rose and the lowest areas of street drainage were holding water.

57 CEI1-0911.

58 CEI1-1505.

24

The Parish did confirm that a 100 year storm event occurred that night (3 inches of rain in 30 minutes). No homes inside of Penn Mill Lakes subdivision flooded, although there have been reports of some home flooding in other areas in the Parish. Unfortunately, with these intense rainfall events, some street flooding is expected until the river and tributary water levels decrease and the subdivision drainage can flow out.

If we receive any further information from the Parish I will be sure to pass it on to you. Thanks,

58.

On August 11, 2008, Cooper wrote to Luna re: PMLS – Phase 2-C Steeple Chase Court:59

As previously discussed, the only real solution to minimize flooding in the cul-de-sac at the end of Steeple Chase Court is to raise the roadway. Recent surveys indicate that the roadway was constructed much lower in elevation than the design grade.

Although this is apparently acceptable to the Parish, it does create a periodic problem for the residents of the cuI-de-sac. The reason is that historically, under extreme rain conditions, the Tchefuncte River backs up into Horse Branch and backwaters from Horse Branch flood the grounds in the immediate vicinity of the cul-de-sac. As a result, the original design required that the roadway be raised several feet to minimize the occurrence of flooding. Of course, traditionally your homes are constructed such that the first floor elevation is about a foot higher than the street and, therefore, the homes are also protected with the design.

As constructed, the home sites are constructed to the anticipated elevation, however, the cul-de-sac was not elevated as proposed. As a result, the roadway floods and because of the difference greater than normal between the slab elevations and the road elevations, it is not practical to construct a connection to the driveways that will not flood under severe conditions. The only solutions is to raise the elevation of the cul-de-sac.

The contractor apparently either made the decision to not follow the plan on his own or he did not have the correct benchmarks. The parish has approved the road as constructed, however, they have not yet accepted into their maintenance system. Complaints from the residents could jeopardize that acceptance, but in any case, the residents do have a legitimate complaint as to the roadway flooding.

59.

On January 5, 2009, Magner wrote re Steeple Chase Road:

ANSWER TO [Rep] SCHRODER’S QUESTION:

During certain rain events the water surface elevation rises and presents the detention pond from draining out. The detention pond will then “back up” and water exits the pond and drains in a reverse direction into the roadside ditches and eventually into the Roadways.

When the Tchefuncte River basin recedes, the road way & roadside ditches drain into the pond then the pond drains into the Tchefuncte River basin.

59 CEI1-4069.

25

60.

On February 27, 2009, Peggy Naquin prepared a note to the file of her conversation with

Natalie Culpepper of Sunrise Home concerning the February 12, 2009 draft of a letter to her that

she was using to compose a new letter from her office:60

It is our understanding that some homeowners have expressed concerns that the depth of the exposed perimeter bank above the lakes is not uniform in all locations above the surface elevations of the lakes. We reviewed the site, as requested. We offer the following information to help explain the situation.

It was not practical to fill the ground for all of the original project (±187 acres) to the same elevation. Therefore, ground elevations and lake surface elevations vary throughout the project. The storage capacity for the lakes, however, were calculated using the lower elevation of the ground surrounding the lakes. The rainfall storage capacity for the lakes throughout the development, using the low bank elevation, totals 94.44 ac/ft. The total net required rainfall detention required for the project is 43.04 ac/ft.

In this project, 11.20 acres of ground was classified as Flood Zone "A" as designated by FEMA prior to development. The designation means that this portion of the land is subject to flooding from backwaters that flow through the Tchefuncte River and Horse Branch and their tributaries during times of extreme rainstorms both at the site of the development and also to properties over the whole Tchefuncte River basin to the north of the development. Suitable excavation from the new lakes created in the subdivision was used to raise these particular areas in elevation such that the homes and driveways are safe from even the highest combination of rain events that result in highest predicted flood stages from the river, even if a 100-year flood stage occurs at the same time as a severe rain storms within the subdivision. However, during some events, some of the lower elevated rear yards or roadways that surround a lake in lower elevated properties designated as flood zones may temporarily flood until such time that the river stage is lowered.

Street drainage is designed for 10-year rainstorms. However, housing within the subdivision is protected from flooding for 100-year design storm. The Parish assures this through the required storm water detention (in this case, lakes), as previously referenced. In the case of Penn Mill Lakes, homes are protected from intense rainstorms calculated to occur less often than even once every hundred years.

However, even with these safeguards, residents can anticipate some inconvenience, in that they may experience some similar problems as most homeowners do throughout the Parish. South Louisiana sometimes has such intense rainfalls that physically it is impossible for the run-off to reach a discharge point without first accumulating on the relatively flat ground. In such a case, temporary short-term yard and street flooding can be anticipated. Again, this usually lasts for a relatively short term because such intensities seldom last for hours, and when the intensities become lower then the lawns and streets run-off, usually in a short span of time.

A second event can occur when the rainfall intensities are not as great as described above, but are greater than a 10-year design storm. In such instances, the subdivision is designed so that the swales, a portion of the yards, and the roadways

60 CEI1-1529-1536 are the faxed copy of the letter and several pages of flooding pictures.

26

may experience some flooding. Again, this is typical through the Parish until such time that the roadside system can handle the rainfall intensities, again once the intense rainfall slackens. This may last for a longer time, but again once the rainfall intensity is lowered, the system will recov7er and exit the run-off fairly quickly.

A third occurrence results from high backwaters from the Tchefuncte River. Almost all of the drainage in St. Tammany Parish, like most of the nation, is gravity drainage into natural waterways. Unlike areas on the southshore, because of this bowl configuration that requires the run-off to be pumped out into lakes and rivers, the run-off in St. Tammany generally flows overland to ditches and tributaries into a river that eventually flows into the lake.

According to the latest proposed FEMA Flood Designation Maps, the backwaters from the Tchefuncte River and Horse Branch and their tributaries can obtain a high water elevation at a high flood stage of about± 35.7 ft/ MSL. at the discharge outfall for the lakes at Penn Mill Lakes.

When this occurs, water from the river backflows into all tributaries, including the lakes in Penn Mill Lakes Subdivision. The water is level in all basins and reaches the elevation of about 35.7. Without getting too complicated, it should be understood that the physics and hydrology of the situation is still such that while the elevation of the lakes and backwaters in the yards may appear to not be draining at such high points, this is really not the case. Water continues to drain, but the elevation in the lakes and yards remains at the high elevation until the river and the tributaries between Penn Mill Lakes and the river lower their elevations. All of these tributaries will reach the same high water stage at their connection point as the Tchefuncte River. Water from the river back up into the connecting waterway (backwaters) and the water would "seek its level" through the system. All water levels are lowered as the river stage is lowered under such extreme circumstances.

Again, without detailed discussions of hydrology and physics, the water really cannot rise higher then the level in the river, no matter the combination of rainfall and the flood stages occurrences, which means that all home sites, garages, driveways, etc., in Penn Mill Lakes that are higher in elevation are safe from flooding. However, as constructed, there are a few areas within the subdivision where portions of the street and where some yards may receive some temporary flooding from such extreme river stages.

As a final note, the FEMA Flood Maps that existed at the time of project construction indicate that the area of Lakeview Lane that we reviewed was designated as Flood Zone "B" and "C", not subject to flooding as determined by FEMA during extremely high flood stages of the Tchefuncte River. The new proposed Flood Zone Maps for this same area now indicate that FEMA has placed this area into a flood zone. Therefore, under extreme conditions, especially in the river, some street and yard flooding can occur.

Ordinarily, such flood occurrences are very rare, however, because of some unusual weather patterns in the last several years, there have been several occurrences where the river (and the tributaries) reached this extreme flood stage elevation. There is no way to predict the future, but statistically this may not occur for years to come. In any case, temporary road flooding is common throughout the Parish when this occurs, but it is important to know that all homes within Penn Mill Lakes are safe.

27

61.

On March 19, 2009, Cooper wrote to Magner re: PML, Phase 2-C, Steeple Chase Drive

Cul-de-sac:61

The improvement to Steeple Chase Drive, as previously proposed to your office, is now completed. An "AsBuilt” of the improvement for the cul-de-sac on Steeple Chase, as surveyed by Mr. Bonneau, is attached.

We have reviewed the work and it appears satisfactory. The elevation of the roadway is now raised to design grade, and the driveways are raised accordingly and have been reconstructed. Culverts were installed where necessary. The flow with the existing drainage swale inverts have been maintained and is anticipated to continue to perform satisfactorily.

This work was undertaken by the developer to protect the area from future localized flooding of the cul-de-sac, (no homes or cars) that resulted from backwaters of the Tchefuncte River and Horse Branch that flowed into Penn Mill Lakes when the river and its tributaries reached high flood stages. The developer wanted to minimize and/or eliminate the inconvenience to residents in the cul-de-sac. In our opinion, this improvement will accomplish that objective.

62.

On May 6, 2009 at 12:35 AM, Jason Schock emailed Elizabeth D. Smythe with a copy to

Paul Carroll; Larry Dixon; and Colleen H. Hattaway concerning “Additional Drainage Issues in

Penn Mill Lakes Subdivision:’62

My name is Jason Schock and I am a resident of Penn Mill Lakes subdivision in Covington. Our subdivision has a major drainage issue that really needs some attention before either my house or one of my neighbor's houses floods. According to Mark Luna, a representative from our builder - Sunrise Homes, the issue is currently in the hands of the st. Tammany Dept. of Engineering and is no longer the responsibility of the builder. As I understand it, when we have a storm in which there is a strong south wind, water is pushed northward from Lake Ponchartrain into the Tchefuncte and its surrounding tributaries. Horse Branch Creek is one of these surrounding tributaries and just happens to be the ONLY outlet for drainage from our subdivision. As Mark describes it, all water drains naturally (the land elevation is approximately 10 feet higher at the north entrance than itis near my house on Lakeview Lane) from the north entrance to the Horse Branch Creek at the intersection of Penn Mill Lakes Blvd. and Lakeview Lane via the lakes in the subdivision. When the Horse Branch Creek fills up due to this south wind and additional rainfall, the water backs up into the lake adjacent to it and the two lakes behind the residents on the western end of Lakeview Lane. As those lakes fill up, water is NOT pushed back towards the northern entrance as it should mainly due to improper elevation differences between the lakes. As the water takes the path of least resistance, it backflows into the drains on Lakeview Lane and out into the street. The volume of backflow is enough to trap residents into their houses and will no doubt one day flood these same residences (see attached pictures). My area of expertise is not civil engineering, but I'm wondering if a pair of one-way valves

61 CEI1-4059. The letter of even date from Luna and the “as built” from Bonneau is CEI1-4060-4061.

62 STP1-000015-000016.

28

could be installed between the lakes on either side on Lakeview Lane and the drains that are experiencing the backflow to force the water "uphill" into the lakes towards the north end of the subdivision (i.e. increase the resistance so that the water chooses the correct path). Either way, we need to come up with a solution and preferably before the next occurence of the issue which has arisen on at least two occasions since I've lived here (2/1/2008 and 3/27/2009). I put in a work order with the parish the last time this issue reared its head and have not heard back from anyone as of yet. Please contact me by either responding to this e-mail or via my cell phone at 256-683-2417 to discuss this matter further.

63.

STPG Drainage Engineer Paul Carroll responded on May 6, 2009 at 10:20 AM:63

Regarding the flooding of the retention ponds, this is expected behavior. There are 2 main reasons. The most frequent reason is that this area msut drain into a tribytary of Horse Branch which runs through Lake Ramsey - Savannah Wildlife Management Refuge. During a flood after the subdivision was built, Leroy Cooper and Doug Creasp (the subdivision engineers) rode around and came to conclusion that the lateral they drained into was undersized. The obvious attempt to solve this would be to pump down the "lakes" in the subdivision, but that would damage the aesthetics of the subdivision. Another may be to buy some of the lightly developed land north of Spur Ct and install retention.

Before any recommendations are ready to present, we would have to study the benefits either in house or using a consultant. This would not reduce the risk of home flooding from river floods.

A less frequent, but potentially more damaging cause for flooding would be a Tchefuncte River flood where the preliminary DFIRM Map shows that you may get 2' to 4' of flooding above the pre-developed grade on this street. See the attached map. The solution to this would be to either raise the houses which are too low or to install a levee protecting Penn Mill Lakes and install a large retention pond (likely pumped) North of Spur Ct. Either option is hugely expensive.

Wind should not have a significant impact. This development is sufficiently high in elevation that tidal influences should be insignificant.

I do not believe that flap gates/valves would make any improvements to this drainage system.

64.

Jason Schock responded on May 6, 2009 at 1:25 PM:64

My understanding is that the lightly developed land north of Spur Ct. is protected and development is not an option.

As for wind not having a significant impact, let me elaborate. I'm not necessarily saying that the wind pushes water from Lake Pontchartrain into our subdivision, but rather it pushes it far enough up the food chain that it impedes our natural drainage flow. Whether that's due to an undersized lateral or not, I won't

63 STP1000015.

64 STP1-000017.

29

argue, but I will say that the wind is definitely a factor.

We have had rain events that are much much worse than the two occurrences of the issue I mentioned in my initial e-mail and not only did we not have flooding in our subdivision, but the water that was there due to the rainfall drained off quickly. In fact, our street and driveways were completely dry at 7:00 PM after the first rain event during the afternoon of February 1,2008. I came home from work around then. It was not until 10:00 PM that night that the water begin to drain from Lake Ramsey Rd into our subdivision down to Horse Branch Creek through the retention ponds with no additional rainfall. At that point, the lakes behind Lakeview Lane began to fill up as the water had no where to go. NOTE

THAT THE LAKES FLOWING INTO THOSE BEHIND LAKEVIEW LANE WERE

NOT OVERFLOWING. The water then began searching for outlets. It's designed flow was downhill, but that was backed up, so it began looking for an uphill path. The easiest uphill path was out the drains on Lakeview Lane and not backflow into the lakes that feed into it. I don't see how adding resistance to this path by installing some sort of single-direction flow mechanism would not aid in drainage improvements. It would essentially force the water to backflow from where it is coming from and equalize the burden across all of the retention ponds rather than just those behind the west Lakeview Lane residences. Not that when this situation occurs, 98% of the subdivision is dry and a large percentage of the lakes are NOT filled to the brim. There is room to give, but no way for the water to get there. Can you elaborate on why you feel flap gates / valves would not make any improvements to the drainage issue as I don't see sufficient basis in your initial response? (or maybe I'm just missing something)

As for a Tchefuncte flood event, that's a whole 'nother story that I'm not concerned with at this point in time. At least if a river tops its banks and my house floods due to the proximity of it to the river, I can justify it. My house flooding from poor drainage design due to a few inches of rainfall and a strong south wind are not acceptable to me however.

Your response doesn't seem to indicate that there really is a plan to deal with this issue - other than those that might be "hugely expensive." It also appears from your response as though the issue has been known by the parish for quite some time which deeply concerns me as a voter and a taxpayer. Please tell me that I am mistaken and that a course of action will be taken to address this situation in a timely manner. The Parish agreed to take over these issues from Sunrise and although they didn't design the system, the problems are now theirs as I understand it.

65.

The “off site drainage entering the subdivision,” the effect on Flood Zone A on this project,

“the flood zone” causing “water to back up into the subdivision and affect the flow rates,” the long

time needed to drain the ponds, the “conflict with the peak of the Tchefuncte River,” and the

requirement of “back flow prevention,” all raised by defendant Thibodeaux, are precisely or

substantially the same as those acknowledged to exist by STPG drainage engineer Paul Carroll in

his e-mail quoted in ¶ 63, infra.

30

SECOND CAUSE OF ACTION BREACHES OF OBLIGATIONS BY THE DEVELOPER/DESIGN DEFENDANTS

66.

Defendants, Sun Construction, Penn Mill, Kornman, CEI, and Leroy J. Cooper have

breached contractual, delictual, and other obligations and warranties due plaintiffs, have failed to

disclose their knowledge of the inadequate and defective drainage and failed to warn of the

likelihood of flooding, have violated St. Tammany Parish ordinances mandating such disclosure,

have failed to remedy the defective and inadequate drainage, and have failed to inform and protect

plaintiffs and the members of the class against these known hazards and conditions despite

knowledge of the consequences to plaintiffs and other present and future home purchasers. Instead,

they have represented these homes and lots to be “high and dry” and exempt from Federal Flood

Insurance protection under past FEMA guidelines. The Flood Map proposed by FEMA, pursuant

to which most of Penn Mill Lakes is designated as the flood zone AE, would severely raise the

cost of flood insurance if it is required. Moreover, as set forth hereinabove, the developer/design

defendants actively sought to cause and were successful in causing Thompson and Thibodeaux to

violate positive prohibitory law, to misrepresent the true facts to the Planning Department and to

Planning Commission, and to breach their obligations to the STPG and to the public to provide

honest service in their governmental positions.

67.

The homes purchased by the plaintiffs and the other members of the class were undertaken

and built for a certain stipulated price, “work by the job” that included labor and material. The

drainage problems/flooding related to the retention ponds and their levees are causing them to “fall

into ruin” on account of “badness” of design and/or workmanship and also failure to do work that

was contracted to be done. The developer defendants undertook as to the plaintiffs and the

members of the class an obligation of result, property which did not flood, which result was not

attained.

68.

Defendant, Sun acquired much of the land in the subdivision from defendant, Penn Mill,

with full warranty by act of cash sale dated May 30, 2005 recorded in Instrument #1498415

31

following Cooper’s completion of and submission to the STPG of the defective plans and drainage

study. Penn Mill is responsible for Cooper’s negligence under respondeat superior, in addition to

its own liability as set forth herein.

69.

CEI and Cooper are responsible unto plaintiffs under LSA-C.C. Arts. 2315-2317 and La.

Civ. Code Arts. 2758, et seq. because, as licensed professional engineers in charge of the design

and planning of drainage that was supposed to be adequate, they were responsible to ensure that

there was drainage adequate to keep the land and streets drained and to ensure that standing and/or

running water did not routinely impede access and egress. Instead of addressing the known

flooding problems on account of the Little Tchefuncte River and Horse Branch and the concerns

expressed in the March 13, 2003 Thibodeaux letter, CEI and Cooper not only subverted the

regulators but advanced drainage criteria, using solely the water generated within the subdivision,

which they knew to be insufficient because they purposely avoided consideration of the location

of Penn Mill in the Little Tchefuncte River/Horse Branch flood basin.65

70.

Despite knowledge of the flooding issues resulting from the proximity of Penn Mill to the

Little Tchefuncte River and Horse Branch, the actual flooding that was likely and/or has actually

taken place on account of the design and implementation of Penn Mill Lakes, and their subversion

of the regulatory process, the developer defendants failed to disclose the inevitability of flooding

to the plaintiffs and the members of the class. While the LSA-R.S. 9:3195-3199 disclosure form,

which includes flooding information,66 was not required to be part of the conveyance of property

from Penn Mill to the original owners of homes in the subdivision, this exemplifies information

65 An example of such an obviously insufficient or untrue drainage criteria is found at the sixth page, numbered page 3, of the June 6, 2010 Krebs, LaSalle, LeMieux Consultants, Inc. report, as follows:

This report evaluates the existing drainage system at Penn Mill Lakes, based on the 10 year – 2 hour storm event. The storm event evaluated in this report is to satisfy internal drainage criteria only. The evaluation of stormwater detention per St. Tammany Parish criteria is beyond the scope of this report.

66 4. Has any flooding, water intrusion, accumulation, or drainage problem been experienced with respect to the land? (If yes, indicate the nature and frequency of the defect at the end of this section.) YES _ NO _ KNOWLEDGE _ 5. What is/are the property’s flood zone classification(s)? ________ What is the source and date of this information? (Check all that apply.) _ Survey (Date) _____ _ Flood Elevation Certificate (Date) _____ _ Flood Insurance Rating Map (Date) ______ Flood Insurance Policy (Date) _____ _ Other _____________________________________ (Date) _____

32

of which the plaintiffs and the other members of the class of the drainage should have been

informed and were required to be informed pursuant to, inter alia, STPG Ordinance § 7-018.00,

to wit: the flooding issues of which the developer/design defendants and the STPG were aware.

Furthermore, plaintiffs are informed and believe that all residents of Penn Mill Lakes who have

been sold property by the original owners are explicitly or implicitly subrogated to the rights

against the developer defendants and other defendants.

71.

As is demonstrated by the careful documentation in the CEI files, Penn Mill and Kornman

were fully apprised of the actions of CEI and Cooper, encouraged CEI and Cooper to submit plans

and hydrologic studies that failed to disclose the known flooding issues, knew of and encouraged

Cooper’s efforts with Thompson, and were aware of the Thibodeaux letter and the matters therein

raised and therefore cannot transfer liability for any independent knowledge and negligence back

to Cooper by indemnity, contribution, or otherwise. All defendants are solidarily liable for their

own negligence and intentional acts under La. Civ. Code Art. 2324(A) and for the resulting damage

thereby caused.

72.

CEI and Cooper knew that the furnishing of inadequate drainage studies, plans, and

specifications to a builder/owner/developer and to the STPG would impair normal use of the lots

such that purchasers, such as plaintiffs, would suffer flooding and associated damages on account

of the effects of the allegations made herein.

THIRD CAUSE OF ACTION BREACH OF ACTUAL AND IMPLIED WARRANTIES

73.

For the aforementioned reasons. the design/developer defendants are liable to the plaintiffs

for breaches of warranties both actual and implied for the defects in Penn Mill Lakes that have

caused the flooding and the other damages to the plaintiffs and the other members of the various

classes.

33

FOURTH CAUSE OF ACTION FRAUD AND CONSPIRACY TO DEFRAUD AND TO PREVENT THE HONEST

PROFESSIONAL AND OTHER SERVICES BY THE STPG AND ITS OFFICIALS

74.

Every developer/design defendant as well as Thompson and Thibodeaux knew that the

subdivision development applications and other submissions made by the design/developer

defendants included statements, parameters, and assumptions that were false and misleading, that

there was a failure to disclose and otherwise to take into consideration the location of the proposed

subdivision within the Little Tchefuncte River/Horse Branch flood basin. These defendants knew

the CEI hydrologic studies for Phase I (page 2) and Phase II (pages 2-5) did not disclose this or

take this into consideration. These defendants (including Thompson and Thidodeaux) knew that

backwater flooding protection was required in order to meet the provisions of the

Subdivision/Flood ordinances and knew that the CEI/Cooper hydrolysis studies were both

insufficient and deliberately misleading. These defendants conspired together to withhold

appropriate disclosures to Development/Planning and/or to the Planning Commission in order to

prevent the misrepresentations in the subdivision development applications from being brought to

the attention of the Planning Commission and conspired to issue and/or cause to be issued permits

for a development that all these defendants knew did not meet STPG requirements and all

defendants knew would backflood on account of being located in a flood basin. They also knew

there were and would be other drainage problems that could have been avoided by full disclosure

and compliance with the applicable ordinances of St. Tammany Parish and applicable laws and

regulations.

75.

These same defendants, knowing of the provisions of Article II of the St. Tammany Parish

Flood Hazard Area Ordinance, including but not limited to § 7-018.00, its “Statement of Purpose,”

conspired to cause Penn Mill not to meet those enumerated purposes and, in particular, knew that

potential buyers were not (7) “notified that property is in a flood area.”

34

INSURANCE COVERAGE AND DEFENDANT INSURERS

76.

Defendant, Clarendon America Insurance Company (“Clarendon”) issued general liability

and indemnity policies Nos. DSA017014 [effective January 15, 2006 to January 15, 2007] and

DSA020751 [effective January 15, 2007 to January 15, 2008] (collectively the “Clarendon

Policies”) that provide insurance coverage to Sunrise, Penn Mill, and Kornman, the developer

defendants, so that Clarendon is liable, jointly, severally and in solido, with the developer

defendants, to the extent of its policy coverage and policy limits.

77.

At pertinent times mentioned herein, Insurance Company of the State of Pennsylvania had

in full force and effect policy No. 72775242 providing excess insurance to defendant, Sunrise

Construction and Development, that does or may also provide insurance coverage to the developer

defendants, so that Insurance Company of the State of Pennsylvania is liable, jointly, severally and

in solido, with the developer defendants, to the extent of its policy coverage and policy limits.

78.

On account of their policies of comprehensive general liability insurance for CEI and

Cooper under policy No. PAS 001441957 issued by Zurich North America/Maryland Casualty

Company, defendant Zurich North America/Maryland Casualty Company, is liable, jointly,

severally and in solido, with CEI and Cooper, to the extent of its policy coverage and policy limits.

79.

Pursuant to the contractual specifications for the various phases of Penn Mill, Lowe was

required in § 24.00 “Insurance” of the Specifications for each Phase of Penn Mill Lakes to obtain

all insurance therein described and required that the owner, Penn Mill Lakes, LLC, and the

engineer, CEI, be made additional insureds with policies of liability insurance being such as to

provide primary coverage for any loss or damage covered under said policy. However, no such

policy of insurance was provided for CEI and, on information and belief, for Penn Mill Lakes,

LLC. Accordingly Lowe is liable to CEI and to plaintiffs for any loss or damage that would be

provided by said policy had such policy of insurance been obtained. Plaintiffs are further informed

35

that such a policy was obtained with Sunrise named as an additional insured so that there is an

actual policy of insurance by which Lowe’s failure of performance can be measured.

INJUNCTIVE RELIEF

80.

Although petitioners and others similarly situated may be entitled to monetary

compensation for their special and general damages in an amount determined to be just in the

premises by this Honorable Court on account of present and future damages, petitioners and others

similarly situated continue to suffer irreparable harm and injury from the effect of the illegal and

intentional actions of the defendants that is not compensable in money, so that the plaintiffs and

other persons similarly situated are entitled to injunctive relief.

81.

Petitioners seek a mandatory injunction requiring that the defendants construct and/or pay

for the construction of a FEMA-approved levee, pump station, and retention pond that will protect

the properties owned by them and by other members of the class from flooding from the Little

Tchefuncte River/Horse Branch waterways and will remove them from the AE flood zone

designation, the newer FEMA flood designations, and all problems attendant thereto including the

requirement of flood insurance for plaintiffs and other homeowners within Penn Mill Lakes.

REMEDIES AND ACTUAL DAMAGES

82.

Plaintiffs and the members of the class are further entitled to attorney’s fees, pursuant to

the provisions of LSA-C.C. arts. 1958 and 2545 against the developer defendants and against those

other defendants who conspired with them to defraud plaintiffs and the members of the class and

to defeat the purpose of the applicable provisions of the St. Tammany Parish Flood Hazard Area

Ordinance and other applicable ordinances, including but not limited to St. Tammany Parish Code

of Ordinances § 40-000.0, et seq. governing subdivision development.

83.

The design/developer defendants and the STPG should be compelled to redesign and refit

the drainage system in Penn Mill Lakes as required by the ordinances and regulations identified

above and as articulated by Thibodeaux, Carroll, and plaintiff’s hydrology expert so as to prevent

36

further flooding and to thereby bring the drainage system and flood protection into compliance

with the Parish Code, proper design specifications and practices, the engineering representations

made by the developer defendants, and the FEMA flood rules necessary to remove all portions of

Penn Mill Lakes from the “AE” or other enhanced flood insurance categories.

84.

As a further consequence of the location of Penn Mill Lakes and its permitting by the

STPG, the provisional FEMA flood map, as interpreted by the LSU Ag Center study,67 places most

of Penn Mill Lakes into the “AE” or other enhanced flood insurance category. Such category or

categories could or will raise the cost of flood insurance so as to be unaffordable. Moreover, some

proposals for premium rate relief to existing homeowners do not extend that relief to purchasers

from existing homeowners.

85.

Unless a FEMA-approved 100 year flood protection levee, a retention pond, and a pumping

station per the recommendation of STPG drainage engineer Paul Carroll and plaintiff’s expert is

built, the value of every or almost every home and home site in Penn Mill Lakes will decline by

thousands of dollars on account of the fault of the STPG, Thompson, Thibodeaux, and the

developer/design defendants. Alternatively, said properties will be effectively taken out of

commerce and thus unsalable without construction of this levee and the other listed improvements.

86.

Defendants are responsible to pay petitioners and other persons similarly situated the actual

damages caused by their actions in an amount deemed by the Court to be reasonable in the

premises.

87.

On account of the wrongful and illegal actions of the developer/design defendants and

those of the governmental defendants, the driveways of many plaintiffs flood from backflow from

the Tchefuncte and Horse Branch so that they must park in the street, wade to their homes, and

cannot use the provided driveways to access and egress their garages because of standing water

67 Exhibit 3.

37

which routinely collects between their homes and the street due to poor drainage. Many plaintiffs

must wade through water to collect their mail and access garbage pick-up.

88.

The actual damages suffered by petitioners, among others to be shown at trial, include:

a. Loss of use of the plaintiffs’ properties during times of flooding caused by the defective drainage system and offsite improvements;

b. Loss of value of the plaintiffs’ properties from lack of appreciation and/or from depreciation due to poor drainage, flooding, and the reputation of Penn Mill Lakes as one having drainage and flooding problems;

c. Damages for loss of enjoyment of the plaintiffs’ properties and for mental anguish on awaiting a major rain event which surely will come;

d. Non-pecuniary losses and emotional distress;

e. Consequential damage to personal property;

f. Out of pocket expenses incurred by the plaintiffs; and

g. The additional costs, loss of value, decrease in saleability or resale, and the other adverse effects of being placed in an AE or other enhanced-premium flood zone on proposed FEMA flood maps.

CLASS ACTION ALLEGATIONS

89.

Plaintiffs bring this action on behalf of themselves and all others similarly situated in

accordance with La. C.C.P. Arts. 591, et. seq.

90.

The classes and subclasses of past and present Penn Mill Lakes Subdivision homeowners

are as follows:

Tier 6

All purchasers of property from the developer defendants who were not notified that the property that they purchased in the Penn Mill Lakes Subdivision was or is in a flood area.

Tier 5

All residents of the Penn Mill Lakes Subdivision who have suffered a diminution in value that is common to all homes in the subdivision and is consequent to the stigma of living in a flood-prone development.

Tier 4

All owners of property in the Penn Mill Lakes Subdivision who are in the proposed AE flood zone.

38

Tier 3

Particular residents who share common problems with ingress and egress to and from the neighborhood during frequent rain events because of street flooding.

Tier 2

Those families who purchased homes on the most severely affected streets (e.g., portions of Lakeview Lane, Penn Mill Lakes Blvd., Huseman Lane, Jessica Way, Mare Court, Foal Court, and Steeplechase) whose swale driveways and yards flood, cutting off access to and agress from their homes, cars, and mailboxes.

Tier 1

All persons whose properties will experience flooding inside of their homes and/or garages due to backflow flooding from the Little Tchefuncte River and/or Horse Branch based on the FEMA flood criteria and/or the flooding which could be prevented by a levee, pump, and retention pond such as that proposed by plaintiffs’ expert and by STPG drainage engineer, Paul Carroll, proposed by STPG Engineering Director Jean M. Thibodeaux after his initial review of the design proposal and prior to STPG approval.

91.

The members of the class are so numerous that joinder of all members is impracticable.

Plaintiffs do not know the exact number of class members, but are informed and believe that the

number of members of the class and subclasses 5, 4, and 1 exceeds several hundred, assuming one

to two homeowners per lot sold in the subdivision.

92.

There are common questions of law and fact affecting the class members, including but not

limited to:

a. Whether the developer/design defendants failed to comply with good practices of engineering, construction and design, as well as the St. Tammany Code of Ordinances in the design, construction, and installation of the drainage system components;

b. Whether the developer defendants committed fraud and intentional delicts with regard to the failure to disclose that the Penn Mill Lakes subdivision did or would suffer flooding from the Little Tchefuncte River and Horse Branch;

c. Whether the defendants conspired with each other to defraud the plaintiffs;

d. Whether the design/developer defendants are liable for damages and attorney’s fees under LSA-C.C. arts. 1958 and 2545;

e. Whether the design/developer defendants and the governmental defendants are liable for actual damages caused to members of the class;

f. Whether the defendants’ actions amount to negligence or were intentional;

i. Whether the design/developer defendants should be enjoined from continuing their practices;

39

j. Whether the defects in the premises, including poor drainage, can be remedied or improved by levees, retention ponds, and pumping stations constructed at defendants’ expense;

k. The impact of the proposed FEMA flood map and flood designation on the members of the class;

l. Whether the flooding problems can be prevented or ameliorated by the proposed levee and other improvements;

m. Whether all of the flooding problems in the Penn Mill Lakes Subdivision come from a common cause;

n. Whether the loss and damage to the plaintiffs and the member of the class could have been prevented had the governmental defendants complied with the Subdivision Development and Flood Ordinances and insisted that the developer/design defendants do likewise instead of failing to comply and hiding this non-compliance from the Planning Commission.

93.

The claims of the representative plaintiffs, all of whom are or were homeowners in the

subdivision and members of the proposed class, are typical of the claims of the Class as a whole,

and plaintiffs have each and all suffered harm due to the acts and/or omissions of the defendants.

94.

The representative plaintiffs will fairly and adequately protect the interests of the Class.

The interests of the representative plaintiffs are consistent with and not antagonistic to the interests

of the Class. The named plaintiffs have retained counsel experienced in the handling and

prosecution of class actions.

95.

The prosecution of separate actions by individual members of the Class would create the

risk that inconsistent or varying adjudications with respect to individual members of the Class

could occur and would substantially impair or impede the interests of the other members of the

Class to protect their interests.

96.

This Class Action is superior to other available methods for the fair and efficient

adjudication of the controversy between the parties. Plaintiffs are informed and believe and, upon

such information and belief, allege that the interests of the members of the Class in individually

controlling the prosecution of separate actions is low, in that most Class members would be unable

to individually prosecute any action at all. Plaintiffs are informed and believe and, upon such

40

information and belief, allege that the amounts at stake for many individual Class Members may

be too small to be prosecuted individually and that for most or all Class members separate suits

would be impracticable, and also most members of the Class would be unable to find competent

counsel to represent them. Plaintiffs are further informed and believe and, upon such information

and belief, allege that it is desirable to consolidate all litigation into one forum because it will

promote judicial efficiency to resolve the common questions of law and fact in one forum, rather

than in multiple courts over varying periods of time.

97.

Individual litigation also presents a potential for inconsistent and/or contradictory

judgments. By contrast, the Class Action device presents far fewer management difficulties, allows

the hearing of claims that might otherwise not be addressed because of the relative expense of

bringing individual lawsuits, and provides the benefits of single adjudication, economies of scale,

and comprehensive supervision by a single court.

98.

As the proposed Class consists entirely of homeowners in Penn Mill Lakes, nearly all (if

not all) Class members also reside in that same subdivision, such that identifying, locating, and

contacting all Class Members is an achievable goal. Furthermore, to the extent that any

homeowners may not live in the subdivision, plaintiffs are informed and believe that the records

and files of defendants contain, in computer and/or otherwise readable format, identifying

information for all Class Members, and information necessary and convenient to locate and

identify Class Members, determine their damages and prosecute this case expeditiously as a Class

Action.

WHEREFORE, plaintiffs, individually and on behalf of all others similarly situated, pray

that an order issue herein allowing:

a. This third amended class action petition for damages joining James ((Red) Thompson, Jean Thibodeaux, Lawrence A. Kornman, Insurance Company of the State of Pennsylvania, Zurich North America/Maryland Casualty Company, Resilire Engineering and Consulting, L.L.C., and Leon Lowe and Sons, Inc., as defendants, along with all prior named defendants, Sun Construction, L.L.C., Penn Mill Lakes, L.L.C., Cooper Engineering, Inc., and Leroy J. Cooper, P.E., and substituting in its entirety for the original, first amended, and second amended petitions, be filed and served, as prayed for and according to law;

b. All defendants be duly cited and served with a copy of this Third Amended Class Action Petition for Damages and be required to appear and answer the same within the delays allowed by law; and,

c. After all due proceedings had, the class be certified by the Court and that there be judgment rendered herein in favor of the plaintiffs and against the defendants, jointly and in solido, in an amount of damages as shown by the evidence that is just and reasonable, together with attorney's fees, costs, and legal interest from the date of judicial demand until paid in full.

d. Following the trial on the merits plaintiffs further pray for an injunction as set forth hereinabove and for all orders and decrees necessary in the premises and for such other and further equitable relief as this court may deem appropriate.

TFULL Y SUBMITTED: EUR, LTD.

AND:

ADA 3531 Plymouth ace New Orleans, I'.A 70131 Tel. (504) 433-0289 Fax (504) 433-0840 Email: LSULawyer@aol.com Web: www.LSULawyer.com

AND:

KOERNER LAW FIRM

By:~ OSR:KOemer:Jr. Louisiana Bar 7817 1204 Jackson Avenue New Orleans, Louisiana 70130-5130 P.O. Box 4297 Houma, Louisiana 70361-4297 (985) 580-0350 (Houma) (504) 581-9569 (New Orleans) (504) 405-1411 (Cell) (504) 324-1798 (Fax) koemer@koemer-law.com URL: www.koemer-law.com Co-counsel for plaintiffs

41

42

22ND JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY

STATE OF LOUISIANA

NO. 2008-10737 C/W 2008-11536 DIVISION "I"

JANET SHEA WIFE OF/AND ALPHONSE SHEA v.

SUN CONSTRUCTION, L.L.C.; SUNRISE CONSTRUCTION AND DEVELOPMENT, L.L.C.; PENN MILL LAKES, L.L.C.; COOPER

ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION and

PATRICIA GRANT WIFE OF/AND RICHARD GRANT, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

v. SUN CONSTRUCTION, L.L.C., PENN MILL LAKES, L.L.C., SUNRISE

CONSTRUCTION AND DEVELOPMENT, L.L.C., AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION,

FILED: _________________________ ______________DEPUTY CLERK

ORDER

Considering the foregoing,

IT IS ORDERED that:

a. This third amended class action petition for damages joining James (Red) Thompson, Jean Thibodeaux, Lawrence A. Kornman, Insurance Company of the State of Pennsylvania, Zurich North America/Maryland Casualty Company, Resilire Engineering and Consulting, L.L.C., and Leon Lowe and Sons, Inc., as defendants, along with all prior named defendants, Sun Construction, L.L.C., Penn Mill Lakes, L.L.C., Cooper Engineering, Inc., and Leroy J. Cooper, P.E., and substituting in its entirety for the original, first amended, and second amended petitions, be filed and served, as prayed for and according to law;

b. All defendants be duly cited and served with a copy of this Third Amended Class Action Petition for Damages and be required to appear and answer the same within the delays allowed by law/

Covington, Louisiana, this ___ day of ___________, 2014.

_________________________ J U D G E

43

PLEASE SERVE:

1. Sun Construction, L.L.C. Through its counsel of record Loeb Law Firm Jonas Baker 1180 West Causeway Approach Mandeville, LA 70471

2. Penn Mill Lakes, L.L.C. Through its counsel of record Loeb Law Firm Jonas Baker 1180 West Causeway Approach Mandeville, LA 70471

3. Cooper Engineering, Inc. Through its counsel of record Ashley Inabnet Inabnet & Jones 1331 W. Causeway Approach Mandeville, LA 70471

4. Leroy J. Cooper Through his counsel of record Ashley Inabnet Inabnet & Jones 1331 W. Causeway Approach Mandeville, LA 70471

5. St. Tammany Parish Government, Through its counsel of record Thomas Anzelmo McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch LLC 909 Poydras Street, Suite 1000 New Orleans, LA 70112

6. Clarendon Insurance Company, Through its counsel of record Glen E. Mercer Salley, Hite, Mercer & Resor, LLC One Canal Place, Suite 1710 365 Canal Street New Orleans, LA 70130

7. Lawrence A. Kornman 62250 West End Blvd. Slidell, LA 70461 (Serve personally)

8. Resilire Engineering and Consulting, LLC, Through its agent for service of process National Registered Agents, Inc. 5615 Corporate Blvd., Ste. 400B Baton Rouge, LA 70808

44

9. Insurance Company of the State of Pennsylvania Through the Secretary of State of Louisiana 8585 Archives Ave. Baton Rouge, LA 70809 10. Zurich North America/Maryland Casualty Company, Through the Secretary of State: 8585 Archives Ave. Baton Rouge, LA 70809 11. James A. (Red) Thompson 78111 J&B Drive Folsom, Louisiana 70437 (Serve Personally) 12. Jean M. Thibodeaux 20707 Thibodeaux Rd. Covington, LA 70435 (Serve Personally) 13. Leon Lowe & Sons, Inc., Through its agent for service of process Toby J. Lowe 38266 Highway Department Road Pearl River, LA 70451