FILED MCLENNAN COUNTY 71212018 4:39 PM JON R. GIMBLE DISTRICT CLERK No, 2018-2388-5 Maxine Barton ISABEL ARANZAMENDI, As Next Friend § IN THE DISTRICT COURT OF of WILBER DIMAS § § Applicant § vs. § § ADOLFSON & PETERSON, INC., § McLENNAN COUNTY, TEXAS CORYELL COUNTY MEMORIAL § HOSPITAL AUTHORITY, doing business § as CORYELL MEMORIAL HEALTHCARE § SYSTEM, LOCHRIDGE-PRIEST, INC., § and ATMOS ENERGY CORPORATION § § Respondents § 414TH JUDICIAL DISTRICT MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER TO PROHIBIT ‘THE DESTRUCTION OF EVIDENCE AND REQUEST FOR HEARING ON (NJUNCTIVE RELIEF TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW, Isabel Aranzamendi, As Next Friend of Wilber Dimas, and files this application seeking a temporary restraining order to prohibit the destruction of physical evidence and Applicant's request for hearing on injunctive relief and would show the Court as follows: 1, Applicant Isabel Aranzamendi is a resident of Williamson County, Texas, and she is the natural mother and next friend of Wilber Dimas, who is a resident of Williamson County, Texas. 2, Respondent Lochridge-Priest, Inc., is a Texas corporation that does business in this state, and resides in McLennan County, Texas, where it has its principle place of business, and has its headquarters within McLennan County in Waco, Texas, and can be served with citation through its registered agent, Billy J. Akins, 2901 E. Industrial Blvd., Waco, Texas, 16108.Respondent Atmos Energy Corporation is a Texas corporation that does business in this state, and resides in Collin County, Texas, where it has its principle place of business, and can be served with citation through its registered agent, Corporation Service Company, Wb/a CSC-Lawyers Incorporating Service Company, 211 E. 7 Street, Suite 620, Austin, Texas 78701-3218. Respondent Adolfson & Peterson, Inc., is a Minnesota corporation that does business in this state of Texas, and resides in Dallas County, Texas, where it has its principle place of business in this state, and can be served with citation by serving its registered agent, CT Corporation System, 1999 Bryan St., Suite 900, Dallas, Texas 75201-3136. Respondent Coryell County Memorial Hospital Authority, doing business as Coryell ‘Memorial Healthcare System, is a governmental unit within the meaning of the Texas Civil Practices and Remedies Code that does business in this state, has its principal place of business in Coryell County, Texas, and can be served with citation its Chief Executive Office, David Byrom, or any other officer at its address of 1507 W. Main Street, Gatesville, Texas 76528 ‘This request is made pursuant to an explosion that occurred on June 26, 2018 at the site of Coryell Memorial Hospital in Gatesville, Texas. On that date, Applicant, Wilber Dimas, ‘was working at the site as an electrician when he was catastrophically injured, suffering ‘burns on over 70 percent of his body. See Exhibit A (sworn verification and affidavit). In the wake of this explosion, Respondents have retained control over the scene of the tragic injuries and multiple deaths, and they have issued press release comments confirming that they are in the process of altering the hospital premises where the explosion ‘occurred. These alterations to the explosion site are going forward despite the fact that theOccupation Safety and Health Administration and the Railroad Commission of Texas and ‘Texas Task Force 1 and others are investigating the explosion, and those investigations are not yet concluded. See Exhibit B (true and correct copies of news coverage about efforts to restore the explosion premises back to operations even before the investigation of the explosion has been completed). Applicant moves for a temporary restraining order to prohibit Respondents from destroying, altering, repairing, removing from the jurisdiction, or otherwise failing to preserve the site of the explosion without first obtaining an agreement with Applicant or an order from the Court setting guidelines sufficient to preserve the explosion scene as critical evidence in Applicant's anticipated litigation. ‘The purpose of a temporary restraining order is to keep the subject matter of the litigation in status quo until a hearing can be held on an application for a temporary injunction. See Cannan v. Green Oaks Apts., 758 S.W.24 753, 755 (Tex. 1988). The scene of the explosion is currently the primary physical evidence in the anticipated litigation, and if the evidence is modified, altered, or destroyed, Applicant will suffer irreparable harm and the case will be prejudiced beyond judicial repair. It is probable that Applicant will recover from Respondents because Respondents engaged in practices and policies that have ignored the known risks of a natural gas explosion, and Respondents are liable for such transgressions under both negligent activity and premises liability causes of action. See United Scaffolding, Ine. v. Levine, 537 8.W.3d 463, 471 (Tex. 2017) (discussing the elements of negligent activity and premises liability causes of action). Moreover, the explosion of the boilers necessitates an examination and investigation of the boilers to ascertain the product liability aspects of the Applicant's claims.10. ML. 13. 14, As discussed in Exhibits A and B, Applicant has made a prima facie showing that failure to preserve the evidence would cause irreparable harm to the Applicant as the physical evidence necessary to prove the established causes of action against Respondents (negligent activity and premises liability) as well as the evidence necessity to investigate the probable causes of action (product liability involving the boilers) is at imminent risk of being compromised in the absence of an order to preserve that evidence. See Karamchandi v. Ground Technology, Inc., 678 $.W.2d 580, 582 (Tex. App. - Houston [14th Dist.] 1984, writ dism'd), A temporary restraining order is necessary because Applicant has no other adequate remedy. Applicant's intent is to safeguard the evidence from any tampering, accidental alteration, or deterioration due to a lack of care in the preservation of the evidence. Applicant's request for access to the explosion site is for the purpose of inspecting, measuring, surveying, photographing, and examining the evidence as appropriate in advance of bringing claims * related to the catastrophe at issue. Applicant is willing to post a bond to preserve this evidence if the Court finds such a bond appropriate, See Tex. R. Civ. P. 684. Applicant requests a hearing on an injunction as soon as practical to prohibit the continuing, threat of irreparable harm as well as the spoliation of evidence. See Buinaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (the purpose of an injunction is to preserve the status quo of the subject matter of the litigation until a final hearing can be held on the merits of the case). WHEREFORE, PREMISES CONSIDERED, Applicant, Isabel Aranzamendi, As Next Friend of Wilber Dimas, respectfully prays that this Honorable Court find and hold:. That Applicant has made a prima facie showing of irreparable harm; .. That Applicant has shown a probability of success on the merits which would be unfairly undermined by the failure to preserve the scene of the explosion and all its contents, including the boilers; . That Respondents be ordered to cease and desist from transferring, altering, destroying, repairing, or otherwise failing to preserve the above-described evidence and that a temporary restraining order be issued and signed as submitted by Applicant; . That Applicant, his counsel and his experts be permitted to have supervised access to the secured evidence for inspection and testing; 9. That this Court set for hearing Applicant's request for an injunction; and . Grant Applicant all further relief he is justly entitled to at law or in equity. Respectfully submitted, ‘THE AMMONS LAW FIRM, L.L.P. {s/ Robert E. Ammons ROBERT E. AMMONS State Bar No. 01159820 ANDREA ZARIKIAN State Bar No. 24093411 andrea@ammonslaw.com 3700 Montrose Boulevard Houston, Texas 77006 Telephone: 713-523-1606 Facsimile: 713-523-4159 Email: rob@ammonslaw.com Email: andrea@ammonslaw.com Email: joy@ammonslaw.com Jim Dunnam State Bar No, 06258010 DUNNAM & DUNNAM, LLP. 4125 West Waco Drive P.O. Box 8418 Waco, Texas 76714-8418 Telephone: 254-753-6437 Facsimile: 254-753-7434 Email jimdunnam@dunnamlaw.com Email: nicole@dunnamlaw.comEmail: nicole@dunnamlaw.com Carlos Guerra State Bar No. 08574400 Guerra Law Group PLLC 4201 North McColl Road McAllen, TX 78504 Telephone: 956-618-3000 Email: carlos@guerralawgroup.com ATTORNEYS FOR APPLICANTEXHIBIT AAFFIDAV} THE STATE OF TEXAS toneon ton COUNTY OF HARRIS BEFORE me, the undersigned authority, on this day personally appeared ANDREA ZARIKIAN, who, after being duly swom, on her oath did depose and say the following: “My name is ANDREA ZARIKIAN. I am over twenty-one (21) years of sg, of sound mind, and am competent to make this Affidavit and the statements here On June 26, 2018, an explosion occurred at the site of Coryell Memorial Hospital in Gatesville, Texas. On that date, Applicant, Wilber Dimas, was working at the site as an electrician when he was catastrophically injured, suffering bums on over 70 percent of his body. In the wake of this explosion, Respondents have retained control over the scene of the tragic injuries and multiple deaths, and they have issued press release comments confirming that they are in the process of altering the hospital premises where the explosion occurred, These alterations to the explosion site and going forward despite the fact that the Occupation Safety and Health Administration and the Railroad Commission of Texas and ‘Texas Task Force 1 and others are investigating the explosion, and those investigations are not yet concluded. ‘The scene of the explosion is currently the primary physical evidence in the impending litigation, and if the evidence is modified, altered, or destroyed, Wilber Dimas will suffer irreparable harm and the case will be prejudiced beyond judicial repair. It is probable that Wilber Dimas will recover from Respondents because Respondents engaged in practices and policies that have ignored the known risks of a natural gas explosion, and Respondents are liable for such transgressions under both negligent activity and premises liability causes of action as recognized by Texas law. Moreover, the explosion of the boilers necessitates ‘an examination and investigation of the boilers to ascertain the product liability aspects of Wilber Dimas’s claims. If this evidence is altered or otherwise removed from access, Wilber Dimas will be at an unfair and legally intolerable risk that he may not obtain the evidence necessary to pursue product liability claims or the evidence necessary to adequately and fairly differentiate between the negligent activity and premises liability causes of action, On July 1, 2018, I viewed news coverage stories regarding the efforts to restore the explosion premises back to operations even before the investigation of the explosion has been completed. Printed attachments enclosed as Exhibit B are true and correct copies of the news coverage content I observed at each of the following websites:hitp://www.kxxv.com/story/3851393 I/state-fire-marshals-office-forensic-examination- concluded-investigation-still-ongoing http:/vww-kwtx.com/content/news/Coryell-Memorial-Hospital-released-back-to-staff- investigation-ongoing-486984941 html As the explosion scene is the primary and critical physical evidence in Applicant’s anticipated litigation, Applicant moves for a temporary restraining order to probibit Respondents from destroying, altering, repairing, removing from the jurisdiction, or otherwise failing to preserve the site of the explosion, This being given, if the evidence of the explosion scene is modified, altered, or destroyed, Applicant will suffer irreparable harm and the case will be prejudiced beyond judicial repair because Texas law recognizes only very limited and inadequate remedies for the spoliation of such critical evidence,. 1 have personal knowledge of the facts and statements recorded in the foregoing Application for Temporary Restraining Order and Temporary Injunction. J hereby state and affirm that each and every statement made herejn is true and correct.” ANDREA ZARIKIAN: SWORN AND SUBSCRIBED to before me, the undersigned authority, by legal duty affiant on suly 2M 1018, to which certify my hand and official seal. Printed Name of Notary: My Commission Expires:_ Ole} 14 / 2024EXHIBIT Bon Suse) open pagar uoponzsucy «sm en sene»pu LORE Asan oN a POULSpL Ts evntay sn ot oe Avadond ua pastops poe vomeonst Seu) A PEPE wonensann 220 seusien 2 21 241 vone son 26% pur UO Ue SURENpLND aie Ka "aNSEIED Ua 0 appa 21a pai asomsisom voronasue 20 vBsiNe oma oe OP 24 “ya on 9 209§ oe voowaye Repeura Ue sau se paaturons sey Usp eHOSOH ROMAN GaRIO9 BAJO WRAY“ UOOXL KINAOD THABOD ‘as save waen ea “aq ser fe 1 ws Mar fi ay ss a a ee Suloguo |]Ns UoeSYsaAu! ‘papnpuo? 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