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3 join Heights flood lawsuit

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Posted: Saturday, May 13, 2006 12:00 pm | Updated: 3:16 pm, Wed Aug 15, 2012.

By Robert Nathan

Killeen Daily Herald

HARKER HEIGHTS – Three more plaintiffs officially joined the nine area residents who are suing developers they say are responsible for flooding that damaged their homes last August.

Bell County district court records state that on Aug. 9-10, 2005, substantial amounts of collected storm water on Morgan Construction Co.'s 12-acre building site was diverted into Frontier Trail, which effectively turned the street into a fast-moving channel that directed a large volume of water onto the residents' properties, flooding and damaging their homes. The building site is located northwest of the individual residents on Frontier Trail and Lynx Circle.

"These guys started grading the construction site by taking away ground covering," plaintiff attorney Michael Klein said in a Feb. 22 interview. "This accelerates the flow of any storm waters on the property. The water drained off too fast into the street and it has been a disaster for them."

On Aug. 31, 2005, the original nine plaintiffs asked the court to require developer Rocky Morgan of Morgan Construction Co. and Morgan Commercial Property, along with partners Ricky Atchison and Jerry Atchison, to pay them for damage to their homes and property.

Since August, however, three more plaintiffs joined the legal battle. Defendants Rocky Morgan, Ricky Atchison and Jerry Atchison have all been served with citations and have entered an appearance in this case.

The plaintiffs argue the defendants consciously ignored the likelihood that nearby properties would incur substantial damages in the event that even normal rainfall occurred while the site was being developed.

Bell County district court records show some plaintiffs were experiencing flooding on July 30, 2005, before the August flood that produced about 3.9 inches of rain per hour, equal to a 50-year storm event.

After the storm on July 30, at least one of the plaintiffs spoke to Rocky Morgan and urged him to do something to prevent the diverted surface water from flooding the plaintiff's property, court records show. The plaintiff warned Morgan that additional rain could cause substantial damage to their homes. Even after personally witnessing the results of the July 30 storm, the defendants allegedly continued to illegally operate without the required permits, and failed to implement sufficient stormwater control measures.

"I still have my sandbags sitting out here," one of the plaintiffs said, adding that he has not experienced any substantial flooding since last summer.

The plaintiffs charged that the defendants were warned at least once by a plaintiff and also neglected to consult the city's drainage officials and their drainage study.

"This basin also contains large areas of undeveloped land," Otto Wiederhold, the city's consulting engineer told the plaintiffs. "Much of this currently vacant land is zoned for commercial or light industrial development. Drainage flooding and safety problems are potentially very high if the area fully develops."

The property on which the allegedly illegal construction activity took place was originally purchased by Rocky Morgan, Jerry Atchison and Ricky Atchison. The day after the Aug. 10 flooding, some defendants allegedly planned to transfer title to the property on which the construction had taken place, in violation of the Uniform Fraudulent Transfer Act, court records show.

After the flood, the Atchisons and Morgan created an entity known as RRJ Investments, a limited liability company. Jerry Atchison, Ricky Atchison and Rocky Morgan are listed as the managers of this company.

According to Bell County deeds records, Ricky Atchison and his wife, Judith Atchison, transferred their interest in the property to the Atchison Family Revocable Trust. The property was then transferred from Rocky Morgan, the Jerry Atchison Family Trust and The Atchison Family Revocable Trust to RRJ Investments by General Warranty Deed.

According to the sworn testimony of Rocky Morgan, this transfer to RRJ Investments was not part of the original plan to develop the property, but was done in an effort to avoid any liability that might arise as a result of the flood damage, plaintiffs charged.

Before the plaintiffs' amended pleading, Rocky Morgan as an individual, Morgan Construction Company and Morgan Commercial Property along with partners Ricky and Jerry Atchison were being sued.

With the plaintiff's new findings, the Jerry Atchison Family Trust, The Atchison Family Revocable Trust and RRJ Investments are now being sued.

Kelly Hinton, the attorney representing Rocky Morgan and Jerry Atchison, declined to comment. In a Feb. 23 interview, however, Hinton said this was not the first time the area has flooded. Jason Wietjes, one of the attorneys representing Ricky Atchison, was not available for comment.

Contact Robert Nathan at ranathan@kdhnews.com

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