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`
`2 CIT ESERVE
`
`|
`4/30/2024 3:05 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Shunta Jackson DEPUTY
`
`CAUSE NO.
`
`DC-24-06371
`
`IN THE DISTRICT COURT
`
`116th
`
`JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`§ § § § § § § § § § §§ §
`
`§
`
`MORGAN SMITHAM and
`LINDSEY SMITHAM,bothIndividually
`and as Next Friend of B.S. and D.S.,
`minors
`Plaintiffs
`
`VS.
`
`AMLI RESIDENTIAL PROPERTIES,
`L.P. d/b/a AMLI ADDISON,
`PPF AMLI QUORUM DRLLC.d/b/a
`AMLI ADDISON,
`AMLI ADDISON
`Defendants
`
`PLAINTIFF'S ORIGINAL PETITION
`
`TO THE HONORABLE JUDGEOF SAID COURT:
`
`NOW COMES MORGAN SMITHAM and LINDSEY SMITHAM,both
`
`Individually and as Next Friend of B.S. and D.S., minors, hereinafter referred to as
`
`Plaintiffs, complaining of Defendants AMLI RESIDENTIAL PROPERTIES,L.P. d/b/a
`
`AMLI ADDISON, PPF AMLI QUORUM DR LLC d/b/a AMLI ADDISON, and
`
`AMLI ADDISONhereinafter referred to as Defendants, and for cause of action, Plaintiffs
`
`would respectfully show the Court and Jury as follows:
`
`I.
`DISCOVERY CONTROL PLAN LEVEL
`
`Plaintiff intends for discovery to be conducted under Level III pursuant to rule 190.1
`
`of the Texas Rules of Civil Procedure.
`
`Il.
`PARTIES AND SERVICE
`
`Plaintiffs Morgan Smitham and Lindsey Smitham andtheir children are residents of
`
`Dallas County, Texas.
`
`Plaintiffs’ Original Petition
`Morgan Smitham,et. al. vy. AMLI Residential Properties, L.P., et. al.
`
`Page 1 of 6
`
`

`

`Defendant, AMLI RESIDENTIAL PROPERTIES,L.P. d/b/a AMLI ADDISON
`
`is a limited partnership that does business in Texas and maybe served withcitation by
`
`and throughtheir registered agent for service, CT CORPORATION SYSTEM,1999
`
`BRYANST., SUITE 900 DALLAS, TX 75201.
`
`Defendant, PPF AMLI QUORUM DR LLC d/b/a AMLI ADDISONis a limited
`
`liability company and maybe served with citation by and through their registered agent
`
`for service, CT CORPORATION SYSTEM, 1999 BRYAN ST., SUITE 900
`
`DALLAS,TX 75201.
`
`Plaintiff includes “AMLI ADDISON” as the d/b/a for the apartment complex
`
`responsible for the injuries as further described below andspecifically pleads TRCP Rule 28
`
`and requests that upon motion of any Defendant, the true name for any Defendant be
`
`substituted in for any of the common names of the Defendant which have so been named in
`
`this petition.
`
`iil.
`JURISDICTION AND VENUE
`
`Venueis properin this court pursuant to Section 15.002 of the Civil Practices and
`
`Remedies Code. All or a substantial part of the events or omissions giving rise to this
`
`claim occurred in Dallas, Dallas County, Texas.
`
`IV.
`FACTUAL ALLEGATIONS
`
`Plaintiffs Morgan Smitham, his wife Lindsey Smitham, and their two 10-month-old
`
`twin boys B.S. and D.S.lived together in apartment #133 at the AMLI Addison apartment
`
`complex in Addison, Texas which is the apartment complex owned and operated by
`
`Defendants at all times relevant hereto. From May through September of 2022, the entire
`
`Plaintiffs’ Original Petition
`Morgan Smitham, et. al. v. AMLI Residential Properties, L.P., et. al.
`
`Page 2 of 6
`
`

`

`family suffered from chronic illness. As their collective sickness persisted, they noticed a
`
`water spot above the boys’ crib during their investigation of the cause of the sickness and
`
`the room smelled off. Morgan and Lindsey began to suspect that mold was the causeof their
`
`sickness, and hired a company called EnviroBiomics to perform an ERMI mold test on
`
`September 12, 2022. Unfortunately, their fears were realized, and the mold test came back
`
`positive on September 20", 2022, and it was recommended that they move out of the
`
`contaminated apartment until remediation takes place. (See mold test attached as Exhibit A)
`
`The next day on September 21", 2022, Plaintiffs informed AMLI Addison aboutthe positive
`
`moldtest.
`
`Initially, Addison AMLI dismissed their complaints out of hand and took noaction.
`
`Finally, after five days of unresponsiveness to the Smithams’ repeated calls for assistance,
`
`the AMLI staff took “moisture readings” and stated to the Smithams that there was no
`
`further need for testing. Not going to take chances with their sons’ health and relying on the
`
`expertise of the mold testing company, the Smithams moved outof their apartment and into
`
`Lindsey’s parents’ house. As a result of their exposure to mold, all four of the family
`
`members have incurred a varying degree of health conditions and resulting medicalbills,
`
`which have caused in the past, and continue to cause various chronic health problems which
`
`havestill not subsided.
`
`In addition to the injuries caused by the mold, the Smithams were forced to move
`
`out of their apartment, they had nearly 2 monthsleft on their lease and were unable to move
`
`back into their apartment. Furthermore, due to the exposure to mold, it was recommended
`
`by experts that they not retain any exposed furniture or items that could not be thoroughly
`
`washed in a washing machine, causing substantial property damageloss.
`
`Plaintiffs’ Original Petition
`Morgan Smitham, et. al. vy. AMLI Residential Properties, L.P., et. al.
`
`Page 3 of 6
`
`

`

`V.
`CAUSES OF ACTION AGAINST DEFENDANTS
`
`Defendants owed the Smithams a duty to provide a safe and habitable apartment
`
`free of mold and also to respond reasonably to remediate the mold damage,
`
`take
`
`appropriate tests, and to make appropriate accommodations to the Smithams to ensure
`
`their safety. Defendants were guilty of the following acts of negligence:
`
`a.
`
`In causing mold to occur in the apartment complex which they owned and
`operated and whichPlaintiffs resided;
`
`b.
`
`In failing to discover the mold in a timely manner;
`
`c.
`
`d.
`
`e.
`
`In failing to reasonably maintain the apartment complex thereby causing
`mold to grow in the apartment complex in which Plaintiffs resided;
`
`In failing to properly inspect the apartment complex to ensurethatit is
`free of mold; and
`
`In failing to reasonably makerepairsor take steps to remediate the mold
`upon receiving notice from Plaintiffs.
`
`VI.
`DAMAGES
`
`As a proximate result of the negligence as above described, Plaintiffs MORGAN
`
`SMITHAM and LINDSEY SMITHAM bothindividually and on behalf of their minor
`
`children B.S. and D.S., sustained personal injuries, all of which have caused them in the
`
`past and will cause them in the future, physical pain, mental anguish, physical impairment,
`
`and medical and hospital expenses, for which they should be compensated in accordance
`
`with the lawsof the State of Texas.
`
`Additionally, Plaintiffs have suffered loss of use damages for not being able to live in
`
`their apartment (despite still incurring rent) until their contract expired, property damage,
`
`Plaintiffs’ Original Petition
`Morgan Smitham, et. al. v. AMLI Residential Properties, L.P., et. al.
`
`Page 4 of 6
`
`

`

`moving expenses, cost of testing, and further incidental damages due to the negligence of
`
`Defendants.
`
`VII.
`REQUIRED DISCLOSURES
`
`Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants are
`
`required to provide the information or material described in Rule 194.2, 194.3, and 194.4
`
`within 30 days of Defendants’ Original Answer.
`
`VIII.
`TRCP RULE 193.7 NOTICE
`
`Plaintiff hereby gives notice pursuant to Tex. R. Civ. P. 193.7 that any documents
`
`or items produced by any party in this case may be used at any pretrial proceeding and/or
`
`trial in this matter.
`
`IX.
`PRAYER
`
`WHEREFORE, PREMISES CONSIDERED,Plaintiffs pray that Defendants be
`
`cited to appear and answerherein, and that upon final hearing hereof, Plaintiffs have
`
`judgment against Defendants for all damages to which they are entitled under the laws of
`
`the State of Texas, which monetary amount may exceed $200,000.00 but not more than
`
`$1,000,000.00 and is within the jurisdictional! limits of this Court; in the event a jury
`
`believes the value is lessor or greater than this statement, mandated by the Texas
`
`Supreme Court,
`
`the Plaintiff accepts this jury’s determination; and for pre-judgment
`
`interest in accordance with the law; for interest on the judgment; cost of suit; and for such
`
`other and furtherrelief, either at law or in equity, to which Plaintiffs may be entitled.
`
`Plaintiffs’ Original Petition
`Morgan Smitham, et. al. v. AMLI Residential Properties, L.P., et. al.
`
`Page 5 of 6
`
`

`

`Respectfully submitted,
`
`STRECK & DAVIS LAW
`5608 Malvey Avenue, Suite 400
`Fort Worth, Texas 76107
`(817) 332-3117 telephone
`(817) 549-8898 facsimile
`jackson.davis@streckdavislaw.com
`
`Teter 2.55
`
`JACKSON DAVIS
`State Bar No. 24068540
`
`ATTORNEYSFOR PLAINTIFF
`
`Plaintiffs’ Original Petition
`Morgan Smitham,et. al. v. AMLI Residential Properties, L.P., et. al.
`
`Page 6 of 6
`
`

`

`EXHIBIT A
`
`

`

`é.PSEnviroBiomics, Inc
`
`EnviroBiomics,Inc.
`Suite 105
`17550 1H 10 W.
`7
`an Antonio, Texas,
`78230
`Phone: 210 $70 2095
`Email: support@envirobiomics.com
`
`ERMI ANALYTICAL REPORT
`
`Client:
`
`Lindsey Smitham
`
`15250 Quorum Drive
`
`Addison
`
`TX
`
`75001
`
`US
`
`4692220542
`
`lindsey.smitham@gmail.com
`
`Sample by:
`
`Lindsey Smitham
`
`4692220542
`
`lindsey.smitham@gmail.com
`
`Site Address:
`
`15250 Quorum Drive
`
`Addison
`
`TX
`
`75001
`
`US
`
`Project Name:
`
`Lindsey Smitham
`
`Sample Location:
`
`None Provided
`
`Sample Type:
`
`Swiffer
`
`Status: Non Available
`
`Client References:
`
`Client Comments:
`
`Date of Sampling:
`Date Sample/s Received:
`Date of Report:
`
`September 12, 2022
`September 15, 2022
`September 20, 2022
`
`Reference N°
`
`P.O.
`
`EB Code
`
`Class N°
`
`Check N°
`
`125387
`
`39093
`
`125387
`
`QPCR/ERMI Analytical Report
`
`Page
`
`4
`
`

`

`EnviroBiomics,Inc.
`E:
`
`LSEgviroBiomics, Inc 11550 IH 10W,=Suite 105
`
`San Antonio, Texas. 78230
`Phone:210 570 2095
`Ermais: support@envirobiomics.com
`
`Group 2; CommonIndoor Molds
`
`
`
`
`
`SE/mg
`Species
`
`
`
`Alternaria alternata
`22
`
`Acremonium strictum
`5
`Aspergillus ustus
`ND
`
`
`Cladosporium cladosporioides1
`405
`Cladosporium cladosporioides2
`ND
`Cladosporium herbarum
`18
`
`
`Epicoccum nigrum
`154
`
`
`Mucor amphibiorum
`2
`
`
`Penicillium chrysogenum
`70 *
`
`
`Rhizopusstolonifer
`
`Sum of Logs
`
`ERMI RESULTS
`
`Group 1; Water Damage Molds
`
`Species
`Aspergillus flavus/oryzae
`Aspergillus fumigatus
`Aspergillus niger
`Aspergillus ochraceus
`Aspergillus penicillioides
`Aspergillus restrictus
`Aspergillus sclerotiorum
`Aspergillus sydowii
`Aspergillus unguis
`Aspergillus versicolor
`Aureobasidium pullulans
`Chaetomium globosum
`Cladosporium sphaerospermum
`Eurotium (Asp.) amstelodami
`Paecilomyces variotii
`Penicillium brevicompactum
`Penicillium corylophilum
`Penicillium crustosum
`
`SE/mg
`
`8
`ND
`53 *
`ND
`34
`ND
`ND
`ND
`ND
`ND
`310
`14
`33
`66
`14
`6
`ND
`ND
`
`Sum of Logs
`
`NO
`Penicillium purpurogenum
`NO
`Penicillium Spinulosum
`= Spore Equivalents
`SE
`4
`Penicillium variabile
`= SE/milligrams of sample
`SE/mg
`24
`Scopulariopsis brevicaulis/fusca
`
`
`Scopulariopsis chartarum Logs== LogarithmsND
`ND
`= None Detected
`Stachybotrys chartarum
`NO
`Trichoderma viride
`7
`Wallemia sebi
`23
`
`
`
`Sample Size
`
`ERMI Results= (G1-G2)
`
`
`
`10 fold higher than normal.
`(*)
`100 fold higher than normal.
`(*)
`(*** ) 1,000 fold higher than normal.
`
`125387
`
`QPCR/ERMI Analytical Report
`
`Page
`
`2
`
`

`

` z
`
`4Uy}
`
`EnviroBiomics, Inc
`
`EnviroBiomics,Inc.
`
`Suite 105
`11550 IH 10W.
`San Antoma, Texas. 79230
`Prone: 216 570 2095
`Email: supportgienvirobromics.com
`
`CONCLUSIONS
`
`The table shows the Spore Equivalent per milligram (SE/mg) detected for each of the 36
`environmental molds analyzed.
`
`The stars symbols on table above highlights the main molds (DNAs) detected in this
`report, which were selected based on their value being higher than ten fold ( * ), 100 fold
`(** ) and 1,000 folds ( *** ) of the geometric meanof the corresponding mold on the 2007
`USA survey of molds. [8]
`
`ERMI score was developed by the US governmentfor environmental mold safety (mold
`related asthma) and the score table is a general recommendation.
`
`in general, an ERMI score of 2 or less is considered
`For patients with CIRS condition,
`safe. For more information please consult with your doctor and an Indoor environmental
`professional for the best advice on how to interpret the results.
`
`The interpretation was made with reference to the following table:
`
`interpretation
`
`
`
`Environmental Relative Moldiness Index (ERMI
`
`
`
`
`
` o _ _ aa
`
`
`
`Comment
`
`Level
`
`ERMI
`Values
`
`Interpretation
`
`Relative
`
`Q1
`
`Q2
`
`Less than
`-4
`
`-Ato<0
`
`Q3
`
`Oto<5
`
`5 to < 20
`
`> 20
`
`Low Relative
`
`Moldiness Index
`
`Low - Medium
`Relative
`Medium- High
`Relative
`
`High Relative
`Moldiness Index
`
`Very High
`
`Further investigation is not needed to
`determine the sources of the mold.
`
`|
`
`Further investigation may be needed to determine the
`sourcesof the mold if occupants have beenreactive,
`sensitized, genetically predisposed or otherwise
`immuno-compromised.
`
`
`Source and cause of mold should be determined and
`remediation is undertaken, reducing the ERMI to levels
`below Q2.
`
`
`
`|
`
`125387
`
`QPCR/ERMI Analytical Report
`
`Page
`
`3
`
`

`

`EnviroBiomics, Inc.
`4Uys
`EnviroBiomics, inc VISSOIN GW,—Sullte 105
`
`San Antonio, Texas, 78230
`Phone: 240 $70 2095
`Email: suppom@envisobiomics.cam
`
`According to Vesper [9] ERMI Scores have a Standard Deviation (S.D.) of +/-3 and should
`be assessed with this in mind.
`
`Further assessment was performed by calculating the HERTSMI-2 score from this data,
`which was found to be:
`
`Species
`
`Spore E./mg
`
`Weighting
`
`|
`
`HERTSMI-2 Score =
`
`Aspergillus penicillioides
`
`Aspergillus versicolor
`
`Chaetomium globosum
`
`Stachybotrys chartarum
`
`Wallemia sebi
`
`The interpretation was made with reference to the following table:
`
`Color-coded interpretation "
`
`
`
`
`
`
`If 10 or below
`
`
`
`in only 1.7% of cases, re-occupancy of building following mold
`remediation has led to relapse of CIRS-WDB symptoms
`
`
`
`—
`
`Borderline. Further remediation and re-assessmentis indicated |
`
`Re-occupancyis ill-advised until further remediation
`and re-assessment are conclusive.
`
`A spore equivalent may reflect the presence of any other fungal structures (i.e.mycelia)
`containing the same number of target genes as a spore.
`
`11550 IH 10 W,
`san Antonio, Texas,
`
`Suite 105
`78230
`
`‘
`
`. fos.
`
`.
`
`a
`
`Gianni Rossini: Manager
`
`125387
`
`QPCR/ERMI Analytical Report
`
`Page
`
`4
`
`

`

`>
`
`4:
` =
`FEM iroBiomics, Inc
`Rare
`
`are
`
`EnviroBiomics,Inc.
`
`Suite 105
`11550 1H 10 W,
`San Antonio, Texas. 78230
`Phone: 210 570 2095
`Emaik support@envirobiomics.com
`
`Genetically close-related species may be detected in the indicator assay.
`
`
`
`Eurotium (Asp.) amstelodami
`
`E. chevalieri, E. herbariorum, E. rubrum and E. repens
`
`Penicillium spinulosum
`
`P. glabrum, P.lividum, P. pupurescens, and P. thomii.
`
`
`
`
`
`
`
`
`Trichodermaviride
`
`Aspergillus restrictus
`
`Mucor amphibiorum
`
`T. koningii and T.atroviride.
`
`A. caesillus and A. conicus.
`
`
`
`M. circinelloides, M. hiemalis, M. indicus,
`M. mucedo, M.racemosus, M. ramosissimus.
`
`
`
`
`
`
`
`repels ree
`Scopulariopsis brevicaulis/fusca
`
`
`
`
`
`
`
`
`
`
`
`
`The samples collected were referred under the chain of custody to our laboratory for
`analysis and reporting.
`
`The samples received were labeled and their condition on receipt wasintact.
`
`This is an Analytical Report only and may not be in a format acceptable forlitigation
`purposes becausedifferent Jurisdictions have differing requirements.
`
`In accordance with our Terms & Conditions, this document and its contents are intended
`for the Addressee only and contains opinions held by the Author whoprepared this report
`based on material available at the time of preparation and expressed for the purposes of
`consideration by the Addressee andis not for general publication without written consent.
`
`is retained by the Author and the Addressee is granted an
`Copyright of this report
`exclusive license to its contents and uses only when paymentfor this report is received in
`full. The sample/s collected was referred under the chain of custody to our laboratory for
`analysis and reporting.
`
`REFERENCES
`
`“WHO Guidelines for Indoor Air Quality - Dampness and Mould”, 2009 World Health
`Organization, Copenhagen, Denmark, ISBN 978 92 890 4168 3.
`
`“Development of an Environmental Relative Mouldiness Index” VesperS.et al,
`Occupational Env. Med. 2007,49:829-833.
`
`125387
`
`QPCR/ERMI Analytical Report
`
`Page
`
`5
`
`

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