9/21/2018 12:43 PM

Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-18-004613 D-1-GN-18-004613
Nancy Rodriguez

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KARL SUTTERFIELD AND DEONA JO § IN THE DISTRICT COURT

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SUTTERFIELD, as Next Friends of §

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ZACHARY SUTTERFIELD, MIGUEL §
ORTIZ AND GINA ORTIZ, Individually and §

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on behalf of the Estate of DAVID ORTIZ, §
deceased, and BRIAN FRIZZELL AND §

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MICHELE FRIZZELL, Individually and on §

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behalf of the Estate of HALEY FRIZZELL, §
deceased §

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Plaintiffs, § TRAVIS COUNTY, TEXAS

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SAN MARCOS GREEN INVESTORS, LLC, §
ELEVATE MULTIFAMILY, LLC, AND §

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DEBORAH JONES tri§
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Defendants. § 201ST JUDICIAL DISTRICT
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PLAINTIFFS’ FIRST AMENDED PETITION

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______________________________________________________________________________

TO THE HONORABLE COURT:

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COMES NOW Karl Sutterfield and Deona Jo Sutterfield, as Next Friends of Zachary
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Sutterfield, Miguel Ortiz and Gina Ortiz, Individually and behalf of the Estate of David Ortiz,
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deceased, and Brian Frizzell and Michele Frizzell, Individually and on behalf of the Estate of
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Haley Frizzell, deceased (“Plaintiffs”) complaining of San Marcos Green Investors, LLC,
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Elevate Multifamily, LLC, and Deborah Jones (hereinafter referred to collectively as

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“Defendants”) and would respectfully show unto the Honorable Court the following:
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PLAINTIFFS’ FIRST AMENDED PETITION PAGE 1

 I.
DISCOVERY CONTROL PLAN

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Pursuant to Rules 190.1 and 190.3 of the Texas Rules of Civil Procedure, Plaintiffs

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respectfully request that discovery in this cause is intended to be conducted under Level 3 given

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that this is a complex, multi-party case.

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II.
PARTIES

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Plaintiffs Karl Sutterfield and Deona Jo Sutterfield are the biological parents of Zachary

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Sutterfield. Plaintiffs Karl Sutterfield and Deona Jo Sutterfield are citizens of Texas and reside

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in San Angelo, Texas. Zachary Sutterfield was a student at Texas State University who was

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severely injured in the Iconic Village apartment fire in San Marcos, Texas on July 20, 2018.
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Zachary Sutterfield is currently hospitalized in San Antonio, Texas.
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Plaintiffs Miguel Ortiz and Gina Ortiz are the biological parents of David Ortiz. Plaintiffs
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Miguel Ortiz and Gina Ortiz are citizens of Texas and reside in Pasadena, Texas. David Ortiz
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was a student at Texas State University who was killed in the Iconic Village apartment fire in
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San Marcos, Texas on July 20, 2018.

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Plaintiffs Brian Frizzell and Michele Frizzell are the biological parents of Haley Frizzell.
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Plaintiffs Brian Frizzell and Michele Frizzell are citizens of Texas and reside in San Angelo,
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Texas. Haley Frizzell was a student at Texas State University who was killed in the Iconic
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Village apartment fire in San Marcos, Texas on July 20, 2018.

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Defendant San Marcos Green Investors, LLC is a Texas limited liability company with a
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principal place in Chicago, Illinois. The Court has personal jurisdiction over San Marcos Green
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Investors, LLC as it performs a substantial amount of business in Texas. San Marcos Green
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Investors, LLC’s continuous and systematic contacts with Texas justify the exercise of general

PLAINTIFFS’ FIRST AMENDED PETITION PAGE 2

 jurisdiction. Moreover, this Court has specific personal jurisdiction over Defendant as its

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contacts with Texas arise out of the horrible incident made the basis of this lawsuit. Counsel for

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Defendant San Marcos Green Investors, LLC has accepted service of this lawsuit but has not

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filed their answer with this Court.

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Defendant Elevate Multifamily, LLC is a Texas limited liability company with its

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principal place of business in Boston, MA. The Court has personal jurisdiction over Defendant

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Elevate Multifamily, LLC as it performs a substantial amount of business in Texas. Defendant

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Elevate Multifamily, LLC’s continuous and systematic contacts with Texas justify the exercise

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of general jurisdiction. Moreover, this Court has specific personal jurisdiction over Defendant as

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its contacts with Texas arise out of the horrible incident made the basis of this lawsuit. Counsel
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for Defendant Elevate Multifamily, LLC has accepted service of this lawsuit but has not filed
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their answer with this Court.

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Defendant Deborah Jones is an individual and resident and citizen of Texas who resides
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in Travis County, Texas. Counsel for Defendant Deborah has accepted service of this lawsuit but
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has not filed their answer with this Court.

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III.
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JURISDICTION AND VENUE

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Venue is proper in this district as Defendant Deborah Jones resided in Travis County,
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Texas at the time the causes of action accrued. TEX. CIV. PRAC. & REM. CODE § 15.002(a)(2). As
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such, venue is proper against all Defendants in Travis County, Texas. This Court has jurisdiction
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over this action pursuant to Article V Section 8 of the Texas Constitution and section 24.007 of
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the Texas Government Code. This Court has subject matter jurisdiction over all claims asserted
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in this action because they are common law and/or statutory causes of action existing under

PLAINTIFFS’ FIRST AMENDED PETITION PAGE 3

 Texas law by which Plaintiffs seek damages that are within the jurisdictional limits of this Court.

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All conditions precedent to the bringing of this action against Defendants have been met.

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IV.

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STATEMENT OF FACTS

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In the early morning hours of July 20, 2018, a horrible fire tore through the Iconic Village

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and Vintage Pads apartments in San Marcos, Texas, killing five people, including David Ortiz

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and Haley Frizzell, injuring many more, including Zachary Sutterfield, and displacing

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approximately 200 Texas State University students from their homes. According to the San

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Marcos Fire Chief, the apartment fire was the deadliest blaze in San Marcos’s history.

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Zachary Sutterfield, 20, was a student at Texas State University and resided at the Iconic
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Village apartments and was horribly burned by the fire. While the blaze tore through the
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apartment complex, the fire and smoke alarms failed to effectively activate to warn the residents

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 and occupants. The apartment complex did not have functioning fire sprinklers or any other fire

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suppression system. Zachary Sutterfield suffered head trauma and third-degree burns over 70

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percent of his body. He remains in critical condition after having undergone several surgeries

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and skin grafts at the U.S. Army Institute of Surgical Research Burn Center in San Antonio.

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David Ortiz was a student at Texas State University and resided at the Iconic Village

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apartments. He was unable to escape and was tragically killed by the blaze of the fire. David

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Ortiz was 21 years old.

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Haley Frizzell was a student at Texas State University and was staying in her brother’s

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apartment at the Iconic Village apartments when the fire broke out. Tragically, she too was

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unable to escape. Haley Frizzell was only 19 years old.
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V.
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CAUSES OF ACTION
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A. NEGLIGENCE – ALL DEFENDANTS

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In operating and managing the apartment complex, Defendants owed Plaintiffs Zachary
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Sutterfield, David Ortiz, and Haley Frizzell the duty to exercise that ordinary care that would be
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exercised by a reasonable and prudent property owner, manager, and landlord. In addition to
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other acts of negligence that may be identified as discovery progresses, Plaintiffs would show
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that Defendants breached their duties to Plaintiffs by one or more of the following particulars:
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1. Failing to provide and maintain a safe premises and living environment for the
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residents of the apartment complex;

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2. Failing to adequately inspect and test the fire alarms in the apartments;
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3. Failing to provide a fire sprinkler system;

4. Failing to adequately inspect and test fire prevention or warning systems;

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 5. Failing to promulgate and implement adequate safety protocols, policies, and

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procedures;

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6. Failing to properly train employees of the apartment complex on fire prevention;

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7. Failing to warn of the dangerous hazards at the apartment complex;

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8. Failing to properly hire, retain, and supervise employees of the apartment

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complex;

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9. Failing to provide sufficient safety equipment;

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10. Failing to follow applicable City, State, and federal regulations; and

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11. Other acts of negligence that will be identified as discovery progresses.

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Plaintiffs would show that Defendant’s breach of duty to Plaintiffs Zachary Sutterfield,
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David Ortiz, and Haley Frizzell in the manner set forth above, constitutes negligence, and that
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such negligence was the proximate cause of the injuries and damages suffered by Plaintiffs as
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more specifically described herein. Plaintiffs are, therefore, entitled to recover from Defendants
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such sums as would properly and appropriately compensate them for such injuries and damages.
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B. NEGLIGENCE PER SE – ALL DEFENDANTS

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Both federal and state laws impose duties and obligations on landlords and property
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managers such as Defendants. Failure to comply with these regulations constitutes negligence as
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a matter of law.
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Defendants knew or should have known that its inspection, maintenance, service,
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modification, installation, repair or other work on the premises was unsafe and created a
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dangerous premise for Plaintiffs and the other residents. Plaintiffs did not know or have reason to
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know of the risk involved; and, Defendants knew or had reason to know of the condition and
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realized or should have realized the risk and had reason to know that the lessees would not

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 discover the condition or recognize the risk. These acts and/or omissions were singularly and/or

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severally a proximate cause of the occurrence in question and the severe injuries suffered by

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Plaintiffs.

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C. PREMISES LIABILITY – ALL DEFENDANTS

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Upon information and belief, Defendants owned, managed, and controlled the apartment

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complex where Plaintiffs Zachary Sutterfield, David Ortiz, and Haley Frizzell resided and/or

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occupied and were injured. The condition of the area where Plaintiffs were injured posed an

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unreasonable risk of harm, and Defendants had actual knowledge or reasonably should have

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known of the unreasonably dangerous condition. Plaintiffs did not have actual knowledge of the

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unreasonably dangerous condition. tri
Because Plaintiffs were residents or occupants of the apartment complex, Defendants had
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a duty to either warn Plaintiffs of the unreasonably dangerous condition or make the
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unreasonably dangerous condition reasonably safe. Defendants failed to warn Plaintiffs of this
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known unreasonably dangerous condition and failed to make the unreasonably dangerous
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condition reasonably safe. Defendants’ breach proximately caused Plaintiffs’ severe injuries and
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deaths.
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D. GROSS NEGLIGENCE – ALL DEFENDANTS

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The acts and/or omissions of Defendants, when viewed objectively from the standpoint of
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Defendants at the time of the occurrence, involved an extreme risk, considering the probability,
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magnitude and potential harm to others; and, of which, Defendants had actual, subjective
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awareness of the risks involved; but, nevertheless, proceeded with conscious indifference to the
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rights, safety, and welfare of the public, including Zachary Sutterfield, David Ortiz, and Haley
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Frizzell. Further, gross negligence can be imputed to Defendants because: the grossly negligent

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 acts were committed by Defendants’ employees/agents; and/or Defendants were reckless in

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hiring and/or retaining incompetent employees and/or agents. This grossly negligent conduct was

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a proximate cause of the occurrence in question and the resulting severe injuries of Plaintiff

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Zachary Sutterfield, and the death of David Ortiz and Haley Frizzell.

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VI.

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DAMAGES

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As a direct and proximate result of the occurrences made the basis of this lawsuit,

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Plaintiffs seek all damages to which they are entitled to recover as well as exemplary damages.

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As a direct and proximate result of Defendants’ acts and/or omissions, Plaintiff Zachary

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Sutterfield is entitled to recover the following damages including, but not limited to:

• Past and future medical expenses; ct

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Past and future loss of earning capacity;
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• Past and future pain and suffering;

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• Past and future mental anguish;

• Loss of enjoyment of life;

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• Physical impairment;
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• Disfigurement; and
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• Exemplary damages.
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As a direct and proximate result of Defendants’ acts and/or omissions, Plaintiffs Miguel
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Ortiz and Gina Ortiz, as the surviving parents of David Ortiz, and statutory beneficiaries under
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the Wrongful Death Statute, are entitled to bring this cause of action for all damages that they
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have suffered as a result of the wrongful death of David Ortiz, pursuant to Section 71 of the
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Texas Civil Practice and Remedies Code. Such wrongful death damages include:

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 • Pecuniary loss in the past and future, including but not limited to the loss of care,

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maintenance, guidance, nurture, support, services, advice, counsel, inheritance,

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and reasonable contributions of pecuniary value;

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Loss of companionship and society in the past and future, including but not

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limited to the loss of positive benefits flowing from the love, comfort,

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companionship, and society that would have been received from David Ortiz, had

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he lived;

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• Mental anguish in the past and future, including but not limited to the emotion

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pain, torment, and suffering experienced in the past, and to be experienced in the

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future, because of the death of David Ortiz; and
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• Any other forms of damages available to wrongful death beneficiaries.
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As the representatives of the Estate of David Ortiz, Miguel and Gina Ortiz seek to
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recover the following elements of wrongful death and survival damages:

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• Pain and mental anguish, including the conscious physical pain and emotional
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pain, torment, and suffering experienced by David Ortiz before his death;
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• Medical expenses; and

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• Funeral and burial expenses.

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As a direct and proximate result of Defendants’ acts and/or omissions, Plaintiffs Brian
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and Michele Frizzell, as the surviving parents of Haley Frizzell, and statutory beneficiaries under
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the Wrongful Death Statute, are entitled to bring this cause of action for all damages that they
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have suffered as a result of the wrongful death of Haley Frizzell, pursuant to Section 71 of the
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Texas Civil Practice and Remedies Code. Such wrongful death damages include:
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PLAINTIFFS’ FIRST AMENDED PETITION PAGE 9

 • Pecuniary loss in the past and future, including but not limited to the loss of care,

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maintenance, guidance, nurture, support, services, advice, counsel, inheritance,

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and reasonable contributions of pecuniary value;

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Loss of companionship and society in the past and future, including but not

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limited to the loss of positive benefits flowing from the love, comfort,

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companionship, and society that would have been received from Haley Frizzell,

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had she lived;

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• Mental anguish in the past and future, including but not limited to the emotion

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pain, torment, and suffering experienced in the past, and to be experienced in the

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future, because of the death of Haley Frizzell; and
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• Any other forms of damages available to wrongful death beneficiaries.
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As the representatives of the Estate of Haley Frizzell, Brian and Michele Frizzell seek to
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recover the following elements of wrongful death and survival damages:

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• Pain and mental anguish, including the conscious physical pain and emotional
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pain, torment, and suffering experienced by Haley Frizzell before her death;
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• Medical expenses; and

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• Funeral and burial expenses.

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VII.
PRE-JUDGMENT INTEREST
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Plaintiffs seek recovery for pre-judgment interest at the highest legal rate allowed by law.
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VIII.
DOCUMENTS TO BE USED
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Pursuant to Rule 193.3(d) of the Texas Rules of Civil Procedure, Plaintiffs intend to use
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all documents exchanged and/or produced between the parties including, but not limited to,

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 correspondence and discovery responses, during the trial of the above-entitled and numbered

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cause.

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IX.
JURY DEMAND

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Plaintiffs demand a trial by jury and have paid the appropriate fee.

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X.
PRAYER

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Plaintiffs pray that the Defendants be summoned to appear and answer herein and that

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upon a full and final hearing of this case, Plaintiffs have judgment of and from the Defendants,

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as follows:

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• All actual and special damages, both past and future, as prayed for herein;
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• Exemplary damages;
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• Plaintiffs’ cost of court and attorneys’ fees;

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• Pre-judgment interest at the highest legal rate and for the longest period of time allowed
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by law on all elements of damages claimed herein;

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• Post-judgment interest at the highest legal rate allowed by law on the amount of the
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judgment entered by the Court from the date of judgment until collected; and
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• Such other further relief, both general and specific, at law or in equity, to which Plaintiffs
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are entitled.
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PLAINTIFFS’ FIRST AMENDED PETITION PAGE 11

 Dated: September 21, 2018 Respectfully submitted,

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STECKLER GRESHAM COCHRAN PLLC

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/s/ Bruce Steckler
Dean Gresham

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Texas Bar No. 24027215
Bruce Steckler

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Texas Bar No. 00785039

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Kirstine Rogers
Texas Bar No. 24033009

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Stuart Cochran
Texas Bar No. 24027936

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12720 Hillcrest Rd., Suite 1045

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Dallas, Texas 75230
972-387-4040

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dean@steckler.law.com
bruce@stecklerlaw.com

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krogers@stecklerlaw.com
stuart@stecklerlaw.com
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THE LAMBERT FIRM, PLC
Hugh P. Lambert, T.A. (La. Bar No. 7933)
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[Pending Admission Pro Hac Vice]

Cayce C. Peterson (La. Bar No. 32217)
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[Pending Admission Pro Hac Vice]

701 Magazine Street
New Orleans, Louisiana 70130
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Telephone: (504) 581-1750

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Facsimile: (504) 529-2931

hlambert@thelambertfirm.com
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cpeterson@thelambertfirm.com
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LAW OFFICE OF S. C. NALLIE-COURTNEY

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S. Chris Nallie-Courtney
Texas State Bar No. 24004836
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Kyle Courtney
Texas State Bar No. 00798119
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P.O. Box 1973

Friendswood, TX 77546
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Telephone: (281) 648-4358

Facsimile: (281) 648-4364
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nallie-courtney@sbcglobal.net
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klcourtneylaw@yahoo.com

PLAINTIFFS’ FIRST AMENDED PETITION PAGE 12

 OF COUNSEL:

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CUMMINGS & CUMMINGS, LLC

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John Cummings (La. Bar No. 4652)

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[Pending Admission Pro Hac Vice]
416 Gravier Street

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New Orleans, Louisiana 70118
Telephone: (504) 586-0000

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Facsimile: (504) 522-8423

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ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE
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I hereby certify that a true and correct copy of the foregoing document was served in
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accordance with Rule 21a of the TEXAS RULES OF CIVIL PROCEDURE on all counsel of record on
September 21, 2018.
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/s/ Bruce Steckler

Bruce Steckler
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PLAINTIFFS’ FIRST AMENDED PETITION PAGE 13