FILED
DALLAS COUNTY
8/23/2016 4:54:15 PM
FELICIA PITRE
DISTRICT CLERK

3: CIT/NOT/TRO-ESERVE
1: CIT-SOS/NOT-SOS/TRO-SOS-ESERVE

Angie Avina

DC-16-10398
CAUSE NO. _ _ _ __

MARIELA PENA, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF FABIAN PENA,
DECEASED MINOR

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vs.
SOLANA RJDGE APARTMENTS,
SOLANA, LLC., MIGNEAULT
PROPERTIES, LP, and ATMOS
ENERGY CORPORATION

IN THE DISTRJCT COURT OF

DALLAS COUNTY, TEXAS

JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION, REQUESTS FOR DISCLOSURE
AND APPLICATION FOR TEMPORARY RESTRAINING ORDER
PlaintiffMariela Pena, Individually, and as Personal Representative of the Estate of Fabian
Pena, Deceased Minor, complaining of Solana Ridge Apartments, Solana, LLC, Migneault
Properties LP, and Atmos Energy Corporation, and would respectfully show unto the Court and the
jury as follows:

DISCOVERY CONTROL PLAN
1.

In accordance with Rule 190.1 , Plaintiffs intend to conduct discovery under Level 3.

RULE 194 REQUEST FOR DISCLOSURE
2.

Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants are requested to

disclose within fifty [50] days of this request, the information and material described in Rule 194.2
of the Texas Rules of Civil Procedure.

PARTIES AND SERVICE
3.

Plaintiff, Mariela Pena, Individually, and as Personal Representative of the Estate of Fabian

Pena, Deceased Minor, is an individual who resides in Dallas, County, Texas.

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 4.

Defendant, Solana Ridge Apartments, is a business entity doing business in Dallas, Texas.

Defendant may be served with process through the registered agent for this party' s managing
company, Migneault Properties LP. The registered agent is Kim L. Lawrence, 5720 LBJ Freeway,
Suite 470, Dallas, Texas 75240.
5.

Defendant, SOLANA, LLC, is a foreign limited liability corporation having sufficient

business contacts with the state of Texas to make it amenable to service of process, but does not
maintain a regular place of business or a designated agent upon whom service of process may be had
for causes of action arose out of business done in the state of Texas. For these reasons, service of
process shall to be made pursuant to§ 17.044 of the Tex. Civ. Prac. & Rem. Code, by serving the
Secretary of State ofTexas as agent for SOLANA, LLC. This matter arose out of business contacts
in this state, and under the circumstances, SOLANA, LLC has appointed the Secretary of State of
Texas as its agent upon whom service of process may be had in this action. The Secretary of State
is requested to forward a copy of the process with this petition to SOLANA, LLC through its
registered agent, Paracorp Incorporated, at its home office located at 2140 Dupont Hwy, Camden,
Delaware 19934.
6.

Defendant, MIGNEAULT PROPERTIES LP, is a domestic limited partnership licensed to

do business in the state of Texas and doing business in the state of Texas for the purpose of
accumulating monetary profit. Defendant may be served with process by serving its registered agent
for service of process, Kim L. Lawrence, 5720 LBJ Freeway, Suite 470, Dallas, Texas 75240.
7.

Defendant, ATMOS ENERGY CORPORATION, is a domestic corporation licensed to do

business in the state of Texas and doing business in the state of Texas for the purpose of
accumulating monetary profit. Defendant may be served with process by serving its registered agent
for service of process, Corporation Service Company, 211 East 7 1h Street, Suite 620, Austin, Texas
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 78701.

JURISDICTION AND VENUE
8.

Venue may be maintained in Dallas County, Texas because the events that form the basis

of this lawsuit occurred in Dallas County, Texas.
9.

Additionally, Plaintiff specifically invokes her rights under Tex. Civ. Prac. & Rem. Code §

71 .031 , which is commonly known as the "open forum" provision, and chooses to maintain this
action in the state district courts ofTexas.
10.

It is yet too early to ascertain the full extent of the damages sustained by Plaintiff, but they

are clearly within the jurisdictional limits of this Court. Although the fact-finder should determine
the monetary compensation for Plaintiffs injuries and damages, Plaintiff seeks monetary damages
for compensatory losses in an amount over $1 ,000,000.00, excluding any punitive damages,
interests, or costs.

FACTS
11.

This action arises from a fire that occurred on August 17, 2016 that caused Plaintiffs injuries

and damages, including the death of Fabian Pena, Deceased Minor. Plaintiff, Mariela Pena, is the
natural mother of Fabian Pena, Deceased Minor.

Plaintiff, Mariela Pena, brings this suit

individually and as the personal representative of the Estate ofFabian Pena, Deceased Minor. The
fire occurred at 8039 Chariot Drive, Dallas, Texas 75227 at the Solana Ridge Apartments. Fabian
Pena died August 18, 2016 as result of the injuries caused by the incident.

NEGLIGENCE
12.

Plaintiff and her deceased son resided at the SOLANA RIDGE APARTMENTS. The

Solana Ridge Apartments property is owned by Defendant, SOLANA, LLC, and managed by
Defendant, MIGNEAULT PROPERTIES LP.
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Before the fire occurred, the Solana Ridge

 Apartments had reported problems with gas leaks. Natural gas was provided by Defendant, ATMOS
ENERGY CORPORATION.
13.

On information and belief, Defendants' negligent acts or omissions caused a natural gas leak

at the apartment complex. Defendants failed to take reasonable and appropriate steps to remedy the
problem at the apartment complex in question.
14.

Defendants knew, or in the exercise of reasonable care should have known, that the

apartment complex in question was not reasonably safe. Defendants knew or should have known
about the presence of a dangerous natural gas leak. However, Defendants failed to take reasonable
and appropriate steps to remedy the problem or warn residents of the apartment complex.
15.

Defendants' negligent acts and omissions caused the fire, as well as Plaintiffs injuries and

damages.

GROSS NEGLIGENCE
16.

Defendants' conduct involved an extreme degree of risk, considering the probability and

magnitude of the potential harm to others. Defendants had actual subjective awareness of the risk
involved but nevertheless proceeded with conscious indifference to the rights, safety and/or welfare
of others. Defendants' conduct constitutes gross negligence as that term is defined under the Civil
Practice and Remedies Code. Plaintiff seeks exemplary damages.

WRONGFUL DEATH
17.

Plaintiff, Mariela Pena, is the surviving natural mother of Fabian Pena, Deceased Minor.

Defendants' negligence and gross negligence caused the loss of the companionship, assistance,
support, love, and affection that Plaintiff would have received from Fabian Pena if he would have
survived. Plaintiff, therefore, seeks to recover all damages pursuant to Tex. Civ. Prac. & Rem.
Code §71.002 for the wrongful death of Fabian Pena.
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 SURVIVAL CLAIM
18.

The incident in question caused Fabian Pena to suffer injuries that led to his death. At the

time of the incident made the basis of this suit, Fabian Pena, Deceased Minor, was a healthy, ablebodied child. As a result of the incident in question, Plaintiff, Fabian Pena, Deceased Minor,
suffered conscious physical pain and mental anguish. Plaintiff as the Personal Representative ofthe
Estate of Fabian Pena, Deceased Minor, seeks the recovery of damages for pre-death physical pain,
mental anguish, and medical expenses before the death of Fabian Pena. Plaintiff also seeks damages
for funeral and burial expenses. Plaintiff, therefore, seeks to recover all damages pursuant to Tex.
Civ. Prac. & Rem. Code §71.021 , as a result of the death of Fabian Pena.

BYSTANDER CLAIM
19.

Plaintiff, Mariela Pena, in her individual capacity, would show that she is entitled to recover

damages as a bystander as that cause of action is understood and applied under Texas law. Mariela
Pena suffered physical pain and mental anguish as a result of witnessing the events that caused the
death of her son, Fabian Pena, Deceased Minor. Defendants' negligence and gross negligence
caused Plaintiff's injuries and damages arising from the death of her son.

DAMAGES
20.

Plaintiff, Mariela Pena, in her individual capacity, suffered severe bodily injuries as a result

of the incident made the basis of this lawsuit. Plaintiff, therefore, seeks the recovery of the following
damages:
a.

Past and future physical pain;

b.

Past and future mental anguish ;

c.

Past and future physical impairment;

d.

Past and future physical disfigurement;
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 e.

Past loss of wages and household services;

f.

Future loss of earning capacity and household services; and

g.

Past and future medical expenses.

RECOVERY OF INTEREST
21.

Plaintiff seeks the recovery of pre-judgment interest, if applicable, and post-judgment

interest. Plaintiff, therefore, requests that she recover pre-judgment interest, if applicable, and postjudgment interest as provided by law.

APPLICATION FOR TEMPORARY RESTRAINING ORDER
22.

Plaintiffs application for temporary restraining order is authorized by Tex. Civ. Prac. &

Rem. Code § 65.011(2) and/or Tex. Civ. Prac. & Rem. Code § 65.011(3).

Plaintiffs seek to

preserve the subject matter of this lawsuit, and to preserve all evidence related to the explosion and
fire that caused Decedent's death and Plaintiffs injuries, until this suit may be reso lved by a final
judgment.
23.

Plaintiff asks the Court to prevent Defendants, their agents, assigns, representatives, or any

others acting in concert with them from doing any action or inaction that may result in the
destruction of all material evidence relating to fire and explosion that caused Decedent 's death and
Plaintiffs injuries. This includes, but is not limited to the following: (1) preserving the scene of the
fire and explosion "as-is" until such time as Plaintiffs representatives and expetis may inspect the
scene, apartment, apartment complex, natural gas line, and all components parts of the relevant
subject matter; (2) prevent Defendants and anyone acting on Defendants' behalf or at Defendants'
request from disposing or discarding or destroying any materials, including building materials,
electronics, consumer products, furniture, clothes, other personal belongings and components related
to the fire and explosion at Solana Ridge Apartments, 8039 Chariot Drive, Dallas, Texas 75227 on
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 August 17, 2016; (3) prevent Defendants from deleting or discarding any emails, text messages,
voice mails or recordings, or other forms of correspondence or communication (whether written or
oral) relating to the fire and explosion at Solana Ridge Apartments, 8039 Chariot Drive, Dallas,
Texas 75227 on August 17, 2016. Plaintiffs request that the Court order Defendants, their agents,
assigns, and representatives, to preserve any all emails, text messages, or other forms of
communication regarding natural gas service at Solana Ridge Apartments from January I, 2016
to present. This includes any communications between maintenance personnel at Solana Ridge
Apartments and Defendant Atmos Energy and residents of the apartment complex; (4) prevent
Defendants from discarding, deleting, or disposing of any documents or communications relating
to their investigation regarding the cause of the fire and explosion at Solana Ridge Apartments, 8039
Chariot Drive, Dallas, Texas 75227 on August 17, 2016. This includes all emails, documents, or
other communications with the Dallas Fire-Rescue Department; (5) prevent Defendants from testing,
altering, destroying, or removing any property or material from the scene of fire until Plaintiffs
representatives have had an opportunity to examine and document the scene; and, (6) direct
Defendants to allow Plaintiff's representatives to enter the property, Solana Ridge Apartments, and
restrain all persons from preventing Plaintiff's agents or representatives to conduct an investigation
of the fire scene.
24.

It is probable that Plaintiff will recover from Defendants after a trial on the merits because

one or more ofDefendants, individually or collectively, caused the incident and will be responsible
for Plaintiff's injuries and damages.
25.

If Plaintiff's application is not granted, imminent harm will occur because critical and

material evidence related to this cause may be lost forever. See Affidavit, attached as Exhibit A.
The harm that will result if the temporaty restraining order is not issued is irreparable because, once
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 lost or destroyed, Plaintiffs will be unable to recover material evidence relating to this cause. This
evidence should be preserved until this lawsuit may be resolved by a final judgment.
26.

Plaintiff has no remedy at law because once the evidence is lost or destroyed, it cannot be

replaced and will cause irreparable injury to Plaintiffs and impede their prosecution of this suit.
27.

Plaintiffs are willing to post a bond should the Court deem necessary.

28.

There is not enough time to serve notice on defendant and to hold a hearing on this

application because, on information and belief, remediation activities may already be underway
which may materially change the scene of the fire and explosion.
29.

Plaintiff asks the Court to set their application for temporary injunction for a hearing and,

after the hearing, issue a temporary injunction against Defendants for the pendency of this lawsuit
regarding the relief requested herein.

PRAYER
30.

WHEREFORE, Mariela Pena, Individually, and as Personal Representative of the Estate of

Fabian Pena, Deceased Minor, Plaintiff, prays that the Temporary Restraining Order be granted, that
Defendants be cited to appear and answer this lawsuit, that judgment be entered against Defendants,
that Plaintiff recover her damages in accordance with the evidence, that Plaintiff recover her costs
of court, that Plaintiff recover interest to which she is entitled under the law, and for all other just
and equitable relief.

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 Respectfully submitted,

STEVENSON & MURRAY
By:

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JOHN W. STEVENSON, JR.
State Bar No. 19196050
JEREMY NEWELL
State Bar No. 24013230
24 Greenway Plaza, Suite 750
Houston, Texas 77046
(713) 622-3223
(713) 622-3224 (FAX)
j stevenson@stevensonmurray. com
jnewell@stevensonmurray.com

CARRIGAN, McCLOSKEY & ROBERSON, L.L.P.
By:

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MARK A. CARRIGAN
State Bar No. 03875200
JON R. ALWORTH
State Bar No. 01133070
945 Heights Boulevard
Houston, Texas 77008
(713) 868-5581
(713) 868-1275 (FAX)
mcarrigan@cmrllp.com
jalworth@cmrl lp.com

GEISLER LAW FIRM
By:

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LAURA BENITEZ GEISLER
State Bar No. 24001722
3800 Turtle Creek Boulevard, Suite 1400
Dallas, Texas 75210
(214) 651-4200
(888) 408-6583 (FAX)
laura.geisler@lbglawfirm.com

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 JEE LAW, PLLC.

By:~~
ANDREW JEE
State Bar No . 24047532
3811 Turtlecreek Boulevard, Suite 1400
Dallas, Texas 75219
(214) 965-0011
(214) 572-7297 (FAX)
ajee@andrewjee.com

ATTORNEYS FOR PLAINTIFF

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 CAUSE NO. _ _ _ __
MARIELA PENA, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF FABIAN PENA,
DECEASED MINOR

vs.
SOLANA RIDGE APARTMENTS,
SOLANA, LLC., MIGNEUALT
PROPERTIES, LP, and ATMOS
ENERGY CORPORATION

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IN THE DISTRICT COURT OF

DALLASCOUNTY,TEXAS

JUDICIAL DISTRICT

AFFIDAVIT
1.

My name is Jeremy Newell. I am one of the attorneys who represents Mariela Pena in this
lawsuit. The information in this affidavit is based on my personal knowledge and is true and
correct.

2.

I reviewed Plaintiff's Application for Temporary Restraining Order. According to published
news articles, on August 17, 2016, a fire occurred at the Solana Ridge Apartments located
in Dallas, Texas. On August 22, 2016, my office sent a written letter to Jennifer Lopez at
the Solana Ridge Apartments. On August 23, 2016, my office also sent a written letter to
Louis Peyton of Atmos Energy Corporation. Each letter requested that the fire scene and all
potential evidence and artifacts be preserved for inspection by Plaintiff's counsel. None of
the named parties contacted my office about preserving the fire scene and physical evidence.

3.

Since the fire occurred on August 17,2016, immediate and irreparable injury and harm will
occur to Plaintiff, Mariela Pena, because vital and necessary physical evidence related to the
cause of the fire may be lost forever. Accord ing to published news articles, a natural gas leak
may have caused the fire. Therefore, Plaintiff's abi lity to obtain necessary evidence will be
lost without access to the scene. According to published news articles, employees, agents,
and representatives of Atmos Energy Corporation already accessed the fire scene to
investigate the cause of the fire. Employees, agents, and representatives of other parties to
this lawsuit have likely already accessed the fire scene for the same reason. Since Solana
Ridge Apartments is an apartment complex, numerous residents and guests will also have
access to the scene and physical evidence. Without the ability to secure physical evidence
related to the fire, the parties may be prevented from identifying causes of the fire or to
eliminate other possible cause of the fire.

4.

On behalf of Plaintiff, Mariela Pena, in her individual capacity, and as personal
representative of her deceased son, Fabian Pena, the Court should grant Plaintiff's
Application for Temporary Restraining Order to preserve the fire scene and physical
evidence that may have caused, or contributed to cause, the fire on August 17, 2016.
...,;

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EXHIBIT

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 Signed on August 23, 2016.

Subscribed and sworn to before me on August 23, 2016.

LINDA KRISTON

My Notary 10 # 363305
Expirta July 8, 2020

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