CAUSE NO.

______________
KATELYN MCCLELLAND AND

IN THE DISTRICT COURT OF

VALERIE PALMER
PLAINTIFFS
VS.

HARRIS COUNTY, TEXAS

BKR MEMORIAL, LLC, INDIVIDUALLY

AND D/B/A MEMORIAL HEIGHTS AT
WASHINGTON APARTMENTS AND THE
MIDWAY COMPANIES
DEFENDANTS

______ JUDICIAL DISTRICT

PLAINTIFFS ORIGINAL PETITION

COME NOW, Plaintiffs KATELYN MCCLELLAND and VALERIE PALMER, and file this Original
Petition against Defendants BKR MEMORIAL, LLC, INDIVIDUALLY, AND D/B/A MEMORIAL
HEIGHTS AT WASHINGTON APARTMENTS asserting causes of action for money damages under
the Texas Deceptive Trade PracticesConsumer Protection Act, Tex. Bus. & Com. Code 17.41 et
seq., due to false, misleading, or deceptive acts or practices, and in support of which Plaintiffs
respectfully show the following:

I. DISCOVERY CONTROL PLAN

1.

Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.3 of the Texas Rules of
Civil Procedure.
II. PARTIES

2.

Plaintiffs are residents of Harris County, Texas.

3.

Defendant BKR MEMORIAL, LLC is a Texas Limited Liability Partnership doing business in
Houston, Harris County, Texas at 201 S Heights Blvd, Houston, Texas. Defendant may be
served with process through its registered agent for service of process __________.

4.

Defendant MEMORIAL HEIGHTS AT WASHINGTON APARTMENTS is a Texas Limited

Liability Partnership doing business in Houston, Harris County, Texas at 201 S Heights Blvd,

Houston, Texas. Defendant may be served with process through its registered agent for service of
process __________.
5.

Defendant THE MIDWAY COMPANIES is a Texas Limited Liability Partnership doing business
in Houston, Harris County, Texas at 201 S Heights Blvd, Houston, Texas. Defendant may be
served with process through its registered agent for service of process __________.

III. JURISDICTION AND VENUE

6.

This Court has jurisdiction over the subject matter of this case because the amount in controversy
exceeds this Court's minimum jurisdictional requirements.

7.

This Court has personal jurisdiction over the Defendants because Defendants conducted business
in this state and Defendants committed one or more acts and practices which violated the Texas
Deceptive Trade PracticesConsumer Protection Act ("DTPA"), one of the Defendants is a Texas
corporation and all Defendants engaged in foreseeable, intentional, continuous, and/or systematic
contacts in the State of Texas.

8.

Venue for this case is proper in Harris County, Texas because pursuant to Chapter 15 of the
Texas Civil Practice and Remedies Code, Section 17.56 of the Texas Business and Commerce
Code, or otherwise all or a substantial part of the events or omissions giving rise to the claim
occurred in this county, the claims affect land located in this county, Defendant maintains its
principal office in this county, Defendant or its authorized agent solicited the transaction made
the subject of this action in this county.

IV. FACTS
9.

On January 13, 2015, Defendants owned and operated an apartment complex in Houston, Texas
known as MEMORIAL HEIGHTS AT WASHINGTON APARTMENTS (MEMORIAL
HEIGHTS), located at 201 South Heights Boulevard. On that date, McClelland and Palmer
executed a one year lease for Apartment #1421. The lease term was from February 4, 2015 to

February 3, 2016. At the time they signed the lease, Plaintiffs tendered a $1,455.00 security
deposit and paid the prorated rent of $1,308.04 for the month of February.
10.

On their first night in Apartment #1421, Plaintiffs were bitten numerous times by bed bugs.
Plaintiffs suffered numerous bed bug bites necessitating medical treatment within the first 48 hours
of their tenancy.

11.

Plaintiffs followed proper protocol and alerted Andrew Sullivan of Midway Properties of the
infestation. Mr. Sullivan blamed our clients for bringing the bed bugs into the apartment. Ms.
McClelland and Ms. Palmer personally paid for an exterminator inspector to inspect the premises
for bed bugs. The inspection revealed living and dead bed bugs along the baseboard perimeters of
the rooms. Additionally, shed exoskeletons of bed bugs were also found within the vicinity.
Ultimately, the inspector concluded that the infestation exceeded Plaintiffs residence in Apartment
#1421. Further, the bed that Plaintiffs brought into Apartment #1421 was new when it was
delivered to Apartment #1421 by Bell Furniture store.

V. CAUSES OF ACTION
Texas Deceptive Trade PracticesConsumer Protection Act DTPA
12.

Plaintiffs incorporate by reference the factual allegations contained in the preceding paragraphs.

13.

Defendant's conduct has violated the Texas Deceptive Trade PracticesConsumer Protection Act
("DTPA"). Specifically, Defendants have committed unconscionable acts or practices that
constitute violations of the DTPA which Plaintiffs relied to their detriment, and which are the
producing causes of Plaintiffs injuries and damages:
a.

Defendants caused confusion or misunderstanding as to the source, sponsorship,

approval, or certification of their goods or services; and/or

b.

Defendants used deceptive representations or designations of geographic origin in

connection with goods or services; and/or

c.

Defendants represented that their goods or services had sponsorship, approval,

characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person
had a sponsorship, approval, status, affiliation, or connection which he did not; and/or
d.

Defendants represented that their goods or services were of a particular standard, quality,

grade, style, or model, when, in fact, they were of another; and/or

e.

Defendants advertised goods or services with intent not to sell them as advertised; and/or

f.

Defendants represented that an agreement conferred or involved rights, remedies, or

obligations which [it did not have or involve and/or are prohibited by law]; and/or
g.

Defendants represented that a guarantee or warranty conferred or involved rights or remedies

which it did not have or involve; and/or

h.

Defendants failed to disclose information concerning goods or services which was known

to Defendant at the time of the transaction with the intent to induce Plaintiff into a transaction
into which Plaintiff would not have entered had the information been disclosed; and/or
Defendants engaged in the foregoing conduct knowingly and intentionally.
Breach of Implied Warranty of Habitability
6.

Plaintiffs incorporate by reference the factual allegations contained in the preceding paragraphs.

7.

Defendants owed Plaintiffs an implied warranty of habitability. Specifically, Defendants owed

Plaintiffs the duty to ensure that the property is safe, sanitary, and otherwise fit for human
habitation. In fact, the property was not fit for human habitation because of a preexisting bed bug
infestation in the habitable areas of the house

8.

Defendants created or allowed this defect in the property to exist. The defect was latent. The defect
made the residential property uninhabitable. Plaintiffs suffered injuries and damages as a result.

VI. DAMAGES

9.

Plaintiffs incorporate by reference the factual allegations contained in the preceding paragraphs.

10.

As a result of Defendant's knowing conduct, Plaintiffs have suffered economic damages in the form
of out-of-pocket in an amount not less than the minimum jurisdictional limit of this Court.

11.

As a result of Defendants knowing conduct, Plaintiffs have suffered mental anguish damages in
an amount not less than the minimum jurisdictional limit of this Court.

12.

As a result of Defendant's knowing and intentional conduct, Plaintiffs are entitled to recover
additional damages in [the amount of an amount "not less than" the maximum amount permitted by
applicable law based on the allegation of actual damages above.

13.

Pursuant to Section 17.50(d) of the Texas Business and Commerce Code, Plaintiffs are entitled
to recover their reasonable and necessary attorneys' fees and costs associated with prosecuting
this action.

14.

Plaintiffs are also entitled to recover pre-and post-judgment interest, at the statutory rate

VII. NOTICE
15.

On September 29, 2015, Plaintiffs by and through counsel, gave written notice to Defendants
advising them of Plaintiffs specific complaints and the amount of damages, including reasonable
attorneys' fees, incurred by Plaintiff as of the date of the letter. A copy of this written notice is
attached as "Exhibit A." Defendants inadequate response and denials left Plaintiffs with no
option other than to bring this suit.

VIII. PRAYER
16.

Accordingly, Plaintiffs respectfully request that Defendants be cited to appear, and that Plaintiffs
have judgment against Defendants, jointly and severally, for:
a.

economic damages in the amount of an amount not less than insert an amount "not less

than" the minimum jurisdictional limit of this Court

b.

mental anguish damages in an amount not less than the minimum jurisdictional limit of

this Court, as pleaded more specifically above;

c.

additional damages in an amount "not less than" the maximum amount permitted by

applicable law based on the allegation of actual damages above, as pleaded more specifically above;
d.

reasonable and necessary attorneys' fees equal to forty percent (40%) of the total of actual

and additional/exemplary damages awarded to Plaintiffs, as pleaded more specifically above;

e.

pre-judgment interest at the maximum rate of interest permitted by law, as pleaded more

specifically above;
f.

costs of suit;

g.

post-judgment interest, at the legal rate; and

h.

such other relief to which Plaintiffs may be entitled.

Respectfully submitted,
BRENT COON & ASSOCIATES
300 Fannin, Suite 200
Houston, Texas 77002
Telephone:
713-225-1682
Facsimile:
713-225-1785

By:
SIDNEY F. ROBERT
Texas State Bar No. 24074968
sidney@bcoonlaw.com
ROBERT A. SCHWARTZ
Texas State Bar No. 17869670
bob.schwartz@bcoonlaw.com
ATTORNEYS FOR PLAINTIFFS