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CAUSE NO. 201724217
BARON REAL PROPERTYHOLDINGS IN THE DISTRICT COURT
LLC and TSQUARE APTS LLC
Plaintiffs,
HARRIS COUNTY, TEXAS
AMLI/BPMT TOWN SQUARE
PARTNERTHIP, AMLI RESIDENTIAL
PROPERTIES, L.P., AMLI
RESIDENTIAL PARTNERS LLC, and
AMLI MANAGEMENT COMPANY th JUDICIAL DISTRICT
Defendant.
PLAINTIFFS’ THIRD SUPPLEMENTAL OBJECTIONS
AND ANSWERS TO DEFENDANTS’ SECOND SET OF INTERROGATORIES
TO: Defendants, AMLI/BPMT Towne Square Partnership, AMLI Residential Properties, L.P.,
AMLI Residential Partners, LLC, and AMLI Management Company, by and through their
attorneys of record, Jeremy A. Fielding, KIRKLAND & ELLIS, LLP 1601 Elm Street,
27th Floor Dallas, Texas 75201.
COMES NOW, Plaintiffs, Baron Real Property Holdings LLC and TSquare Apts LLC, in
the above entitled and numbered cause and serves these Third Supplemental Objections and
Answers to Defendants’ Second Set of Interrogatories.
Respectfully submitted,
EWIS RISBOIS ISGAARD MITH LLP
/s/ William S. Helfand
WILLIAM S. HELFAND
State Bar No. 09388250
Bill.Helfand@lewisbrisbois.com
SHANE L. KOTLARSKY
State Bar No. 24083329
shane.kotlarsky@lewisbrisbois.com
24 Greenway Plaza, Suite 1400
Houston, Texas 77046
(713) 659-6767
(713) 759-6830
ATTORNEYS FOR PLAINTIFFS
4851-9841-1714.2
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
on all counsel of record pursuant to the TEXAS ULES OF IVIL ROCEDURE via e-serve, e-mail,
facsimile transmission, certified mail, regular mail, or hand delivery on this the 13 day of July,
2020:
Jeremy A. Fielding, P.C.
Email: Jeremy.fielding@kirkland.com
Michael Kalis
Email: Michael.kalis@kirkland.com
KIRKLAND & ELLIS, LLP
1601 Elm Street, 27th Floor
Dallas, Texas 75201
Telephone: (214) 972-1754
Facsimile: (214) 972-1771
Anna Rotman, P.C.
Email: Anna.rotman@kirkland.com
Sarah Williams
Email: Sarah.williams@kirkland.com
KIRKLAND & ELLIS, LLP
609 Main Street
Houston, Texas 77002
Telephone: (713) 836-3600
Craig Albert
Kartik Singapura
8350 North Central Expressway, Suite 1500
Dallas, Texas 75206
Tel.: 214-265-7007
Fax: 214-265-7008
Calbert@cplalaw.com
ksingapura@cplalaw.com
/s/ William S. Helfand
WILLIAM S. HELFAND
4851-9841-1714.2
SUPPLEMENT TO RESPONSES TO INTERROGATORIES
Identify the “substantial, material defects” that Plaintiffs contend “Defendants were fully
aware long before they offered the property for sale or entered into the PSA,” as alleged on
Page 4 of Plaintiffs’ First Amended Petition. Your answer should identify all facts of which
Plaintiffs are specifically aware that establish, demonstrate, or prove this contention,
including a detailed description of the “substantial, material defects.”
In addition to the answers already provided, and subject to Rule 197.1 which prohibits this
or any other interrogatory from requiring that Plaintiffs “marshal all of [their] available
proof of the proof [Plaintiffs] intend to offer at trial” and Rule 193.5(a)(2) because
Defendants have all of the documentary evidence available to Plaintiffs identifying the pre-
sale damage to the property generally referred to as the “substantial, material defects” –
indeed, it was Defendants who provided all or substantially of the documentation showing
Defendants’ own knowledge of and efforts to hide the degraded and poor conditions of the
property, generally alluded to as “defects” – Plaintiffs provide additional information in
their third supplemental answer as follows:
As an initial matter, the relevant portion of Page 4 of Plaintiffs’ petition upon which this
interrogatory is based lists a number of things AMLI failed to identify prior to the sale of
the property and failed to provide documentation regarding which puts the term
“substantial, material defects” in its proper context, despite Defendants’ efforts to re-define
it in complaining of Plaintiffs’ answer:
(1) Defendants’ efforts to control significant, widespread, and continual water leaks
and resulting damages, (2) wood destroying insect infestation and resulting damage,
and (3) substantial work Defendants did before listing the property for sale to hide
substantial, material defects of which Defendants were fully aware long before they
offered the property for sale or entered into the PSA.
Contrary to AMLI’s contrived assertions otherwise, in generally referring to system
damages on the property of which AMLI has admitted it was aware, Plaintiffs do not allege
any of what Plaintiffs labeled in the pleading as substantial, material defects caused any
leaks, termite damage, or other conditions. Despite AMLI’s efforts to place their own self-
serving spin on the Plaintiffs’ pleadings, Plaintiffs have never alleged the numerous and
system sources of water leaks or termite damage are “symptoms” of the numerous, poor
conditions of the property of which AMLI has admitted it was aware in using the term
substantial, material defects.
Rather, as AMLI has agreed, AMLI was required under the PSA to provide Plaintiffs
records showing the existence and any repair of the defects of which AMLI knew. This
clear contractual obligation is completely without regard to how the defects of which AMLI
has admitted it was aware occurred. Plaintiffs are suing AMLI for defects about which
AMLI has admitted it was aware pre-sale, but which AMLI actively hid and AMLI has
also admitted it failed to disclose despite AMLI’s acknowledged contractual duty and
Numbering inserted for clarity.
4851-9841-1714.2
regular practice in other sales to do so. The existence of the conditions AMLI’s pre-sale
knowledge of those conditions, AMLI’s efforts to hide those known conditions, and AMLI’s
obstruction of Plaintiffs’ efforts to learn of those conditions, not whether those conditions
were the specific cause(s) of problems AMLI hid and about which AMLI hid and destroyed
records it was obligated to produce is the basis of Plaintiffs’ claims.
Defendants are well aware of what these conditions are and where they are located. Under
the parties’ agreement, Defendants and their experts, including Mr. Tony Childress were
permitted to tour the property before Plaintiffs began repair and remediation work. After
that, Plaintiffs’ counsel invited Defendants’ counsel and Defendants’ experts to the
property to investigate all revealed conditions every time Pie and Plaintiffs’ contractors
found new issues, so as to allow AMLI and its experts to make their own review of the
nature and extent of the conditions before Plaintiffs’ contractors did any repair and
remediation work in such areas. Every one of these more than 30 communications
identified the location of the conditions Pie uncovered and, once again, invited Defendants’
counsel and Defendants’ expert to investigate on their own before Plaintiffs’ contractors
began their repairs. If AMLI now claims it doesn’t know where these conditions existed or
the nature or extent of the conditions – a truly dubious assertion in light of the thousands of
pages of documents and photos produced – AMLI has only itself to blame as it and its
experts had full access to every location on the property at which such conditions were
found by Plaintiffs’ contractors to allow AMLI and its experts to do whatever inspection,
photographing, sampling, or testing AMLI and its experts chose.
AMLI also requested, and Plaintiffs permitted AMLI’s counsel and AMLI’s experts to visit
the storage of all of the compromised materials that PIE retained from the site.
Furthermore, every time Plaintiffs’ counsel invited Defendants’ counsel and experts to the
site, Plaintiffs’ counsel also provided photo evidence of all of Pie’s findings of the conditions
on the property. As Defendants well know considering their expert has reviewed every
photo, every single photo individually identifies the issue and the location. The following is
simply one example of the thousands of photos of conditions, with identifying location
information Plaintiffs provided to AMLI years ago:
4851-9841-1714.2
These photos are labeled TSquare 36175-36227, 36239-37150, and 37156-39393.
Beyond these over 3000 photos, Pie kept repair work logs, which also indicate the nature of
all of Pie’s findings and the location of those findings. Those documents are labeled
TSquare 36164-36174 and 36228-36238.
The location of these “substantial, material defects” is also evidenced by the work done and
documented by Plaintiffs’ contractors, BluSky and, subsequently, SpawGlass. Details
regarding the location of the work performed by BluSky and by SpawGlass are clearly
listed in TSquare 39489-39492 and TSquare 40629-41088, respectively.
Second supplemental answer: AMLI was already fully aware of every single condition
Plaintiffs contend constituted defects long before AMLI sent this interrogatory because,
under an agreement between Plaintiffs and AMLI, AMLI received notice of every defect
AMLI had hidden as Plaintiffs became aware of them beginning as early as December 1,
2015 when Plaintiffs repeatedly invited AMLI to come to the property and AMLI’s lawyers
and purported experts, including Tony Childress, who is still serving as an expert witness
for Defendants in this matter, came to the property and inspected and analyzed the
defective conditions for themselves to their own satisfaction. These on-site inspections of
4851-9841-1714.2
defective conditions by AMLI’s own designated personnel continued as Plaintiffs located
additional defective conditions, all of which Plaintiffs invited AMLI to review as Plaintiffs’
engineering experts found them and before Plaintiffs undertook to remediate them. AMLI
229247-233534, AMLI 234834-235127. Thus, AMLI and its own purported experts have
had and undertaken the opportunity to visualize for themselves and analyze to AMLI’s
satisfaction all defects as Plaintiff located them, from December 1, 2015 through the
completion of repairs on the property.
Childress testified he reviewed every single photograph Pie took of the property – several of
which Childress made comments on – and read every report from Pie. Deposition
Transcript of Tony Childress, at 51:1-21, 57:13-15, 115:7-12. Childress also created a
spreadsheet where he addressed every photograph and action Pie took. AMLI 235074-
235127. Clearly Defendants had sufficient information about the substantial, material
defects on the property to designate an expert and have that expert create a report.
Childress also testified during his deposition that the substantial, material defects included
“lack of flashing, lack of what's called head wall flashing, lack of weeps. Really what it
means is, is that if water gets behind the wall, there was no way for the water to get out.
And you always have to assume that water can get past the wall. There was no base
flashing at the bottom, so moisture could go up from the bottom very easily. The EIFS
bands that go around the building, they had a flat shelf. They're supposed to be tapered so
water will run off. They weren't. So water had nowhere to go.” at 191:20-192:4; see also
id. at 114:2-13. Childress also identified defects with balconies that allowed water
infiltration, including, among other things, a lack of flashing. Id. at 143:12-25; 185:22-24.
“This building has no flashing. It has no weep holes.” Id. at 126:18-19.
In addition to AMLI’s and AMLI’s purported experts’ own on-site and hands-on
inspection of all defective conditions, as stated in Pie Consulting & Engineering’s August 2,
2015 and April 5, 2016 letters, the substantial, material defects about which Defendants
were aware prior to offering the property for sale or entering into the PSA were the
“exterior sheathing, OSB and exterior gypsum, installed without a weather resistive
barrier within the field of the wall.” TSquare 000001-000024, TSquare 22636-22637; see
also Deposition Transcript of Jessica Thiebout, at 146:12-19; Deposition Transcript of
Chris Moulder, at 28:4-15, 29:5-13. Pie also identified both “polyethylene sheeting [that
was nailed onto sheathing corners, resulting in punctured sheeting” and the exterior
insulation and finishing system (EIFS) banding “installed directly onto metal lath without
stucco or a weather resistive barrier behind” as well. See, TSquare 22636-22637; Thiebout
Deposition, at 143:9-145:4, 148:18-21, 170:17-24; Moulder, Deposition at 37:11. Pie also
identified a lack of flashings at windows, doors, and balconies, a lack of flashing on the flat
roofs intersections with the building walls and air conditioning pads, and “open
penetrations” on the flat roof that were not adequately sealed as additional substantial,
material defects. Thiebout Deposition, at 102:12-18, 107:8-14; Moulder Deposition, at
24:22-25:17. Finally, Pie also identified termite damage as a substantial, material defect.
TSquare 000001-000024, TSquare 36164-39393; Thiebout Deposition at 157:2-6, 158:9-19.
BluSky and Spaw Glass employees, who were intimately involved with the investigation of
conditions and necessary repairs on the property identified the same defects as did
Moulder and Thiebout. See, Deposition Transcript of John Tripp, at 37:25-38:9;
4851-9841-1714.2
Deposition Transcript of Garrett Fox, at 17:2-20; Deposition Transcript of Wayne
Beckham, at 33:7-11, 68:18-69:6; Deposition Transcript of Cliff Thuot, at 41:7-12.
Indeed, Defendants’ own witnesses and documents also show Defendants knew of these
material defects prior to and at the time of the sale. AMLI’s repair records from entities
like LKM Services, Needham Roofing, and Envirotrol Pest Solutions, among others,
demonstrate AMLI was well-aware of ongoing defects that necessitated repair. TSquare
011921-012012, TSquare 021920-023445. In 2011, Lone Star Roofing was hired to replace
the air conditioning pads on the flat roofs, because of roof leaks:
AMLI 14973-14974. Then, even after Lone Star Roofing replaced the air condition pads
and attempted to fix the flat roof, AMLI continued to have roof leaks, of which AMLI’s
own employees were not only aware, they hid them from Plaintiffs’ and Plaintiffs’
independent inspector. Just one week prior to Plaintiffs’ visits to the property to conduct
due diligence, Defendants received a letter from Needham Roofing stating, “we have
serious concerns about the installation of these roofs and determined that all six of the
leaks on the upper roofs were flat roof leaks. After reviewing the pictures and discussing
the problems with our repairman, I would anticipate many more problems to come from
these flat roofs as the scope, details and installation are poor.” AMLI 31212-31231. The
letter continued:
tw
have been
4851-9841-1714.2
AMLI’s property manager, Starla Kelso admitted under oath that she was aware of this
very defect problem. Deposition Transcript of Starla Kelso, at 253:23-254:11.
AMLI also knew of the repeated problem of leaks coming from balconies on the property,
which caused substantial wood damage that was so bad it resulted in the need for AMLI to
reconstruct portions of numerous apartments. For example, when asked “Where would
you rank water damage and mold of the property balcony/patio storage closets in your list
of the most significant problems -- maintenance problems on the property when you were
the Property Manager?,” Kelso responded, “I mean, it would be high. It would be an
important repair.” Kelso Deposition, at 265:12-18; see also Deposition Transcript of Walter
Guzman, at 39:10-15, 34:13-20, 145:10-24. AMLI 25848-25849, AMLI 27040-27041, AMLI
27671-27674, AMLI 27859-27862, AMLI28280-28281, AMLI 29100-29105, AMLI 49261,
AMLI 49274. In fact, Kelso could not think of a “more significant problematic issue” than
leaks that caused substantial interior wood damage, Kelso Deposition, at 266:6-14, of which
AMLI was thus obviously well-aware but which AMLI hid from Plaintiffs. Ms. Kelso also
admitted Defendants had replaced 82 decorative urns around the property because they
were leaking. Id. at 234:14-15; AMLI 25848-25849, AMLI 49255, AMLI 49259. In fact,
AMLI was well-aware the urns caused such widespread water damage that Kelso
recommended AMLI remove every single one of them in advance of showing the property
to Plaintiffs’ representatives. The property’s maintenance supervisor Walter Guzman
further testified window leaks were the biggest maintenance problem he dealt with at the
property, deposition, at 138:7-140:2, AMLI was quite well-aware of those and their
locations long before Plaintiffs found the hidden damage. Termites were a known defect on
the property, as well. Brenda Holden, Kelso’s immediate supervisor, stated in an email on
March 26, 2012 that the property “has had numerous termite issues in the past and the
exterminators are recommending more.” AMLI 24643-51, AMLI 12292-12297.
First supplemental answer: While Plaintiffs have no obligation to supplement their answer
to this interrogatory because this “information has been made known to the other parties
in writing, on the record at a deposition, or through other discovery responses,” Tex. R.
Civ. P. 193.5(a)(2), and, under Tex. R. Civ. P. 197.1, interrogatories “may not be used to
require the responding party to marshal all of its available proof or the proof the party
intends to offer at trial,” Plaintiffs supplement this interrogatory response to include
additional information responsive to this interrogatory, which identifies at least part of the
facts supporting Plaintiffs’ contention.
As also set out in Plaintiffs’ motion for summary judgment, Defendants failed to inform
anyone from Plaintiffs about the existence of what one AMLI employee called a “big issue
[with termites] at this property due to all the water penetration we have had.” See AMLI
6784 – AMLI 6785; AMLI 12292 – AMLI 12297, AMLI 25848 – AMLI 25850, AMLI 24643
– AMLI 24651, AMLI 49267 – AMLI 49269, AMLI 49274, AMLI 63716, AMLI 66827 –
AMLI 66829, AMLI 75589 – AMLI 75611; Deposition Transcript of Starla Kelso, at
284:23-285:7, 360:16-19; Deposition Transcript of AMLI Corporate Representative Traci
Hall, at 126:8-127:15, 192:14-17, 194:3-6; Deposition Transcript of Sonya Sampson, at
166:1-168:1.
4851-9841-1714.2
Defendants also knew about water leaks around the property necessitating, among other
things, repairs to balconies and removing decorative urns, but failed to inform Plaintiffs
about the existence of any of these issues. and failed to inform any replaced rotted wood
from leaks around the property, including on balconies. See AMLI 3596 – AMLI 3598,
AMLI 3618 AMLI 14107 – AMLI 14117 AMLI 49254 – AMLI 49255, AMLI 49259, AMLI
49261; Kelso Deposition, at 80:17-81:5, 81:8-21, 84:24-87:16, 187:6-14, 192:6-8, 189:15-21,
205:9-206:6, 234:14-235:2, 237:10-13, 249:15-250:25, 254:23-254:11, 265:12-267:1, 300:7-
301:14, 341:4-347:2, 360:16-19, 362:13-16; Sampson Deposition, at 50:17-51:5, 66:15-74:25,
77:7-79:5, 120:17-121:24, 128:14-129:5; Hall Deposition, at 81:16-19, 117:22-24, 191:22-24,
193:3-6.
Mere weeks before Plaintiffs began their due diligence on whether to purchase the
property, Defendants had to replace all of the air conditioning unit pads because they were
leaking into the attic spaces below, but Defendants failed to inform Plaintiffs of this issue or
subsequent repair. AMLI 079272 – AMLI 079273, AMLI 31212 – AMLI 31231; Hall
deposition, at 87:13-93:24, 210:15-19, 210:24-211:7; Kelso Deposition, at 341:4-347:2,
300:7-301:14; Sampson Deposition, at 66:15-74:25, 77:7-79:5.
There are likely additional substantial, material defects about which Defendants knew but
failed to inform Plaintiffs additional. However, because Defendants deleted all property-
level emails, Plaintiffs will never know what those defects were.
Moreover, and as Defendants have testified on multiple occasions, Defendants’ Leak Log,
Pest Control Binder, OneSite Maintenance database, Capital Improvements Binder, and
RMIT database all contained on-site property records. No one from Defendants ever
informed anyone from Plaintiffs of the existence, let alone made available to Plaintiffs
during Plaintiffs’ due diligence as required by the PSA. Kelso Deposition, at 70:4-74:10,
129:8-132:12, 189:2-192:12, 311:3-18, 315:9-319:17, 320:8-321:21, 327:24-328:6, 326:22-
327:23, 346:15-347:2; Hall Deposition, at 46:11-15, 55:22-56:2, 194:11-14, 195:1-12;
Sampson Deposition, at 81:8-83:24, 123:21-127:17, 148:4-149:11, 203:25-206:17.
4851-9841-1714.2
Preview
CAUSE NO. 201724217 BARON REAL PROPERTYHOLDINGS IN THE DISTRICT COURT LLC and TSQUARE APTS LLC Plaintiffs, HARRIS COUNTY, TEXAS AMLI/BPMT TOWN SQUARE PARTNERTHIP, AMLI RESIDENTIAL PROPERTIES, L.P., AMLI RESIDENTIAL PARTNERS LLC, and AMLI MANAGEMENT COMPANY th JUDICIAL DISTRICT Defendant. PLAINTIFFS’ THIRD SUPPLEMENTAL OBJECTIONS AND ANSWERS TO DEFENDANTS’ SECOND SET OF INTERROGATORIES TO: Defendants, AMLI/BPMT Towne Square Partnership, AMLI Residential Properties, L.P., AMLI Residential Partners, LLC, and AMLI Management Company, by and through their attorneys of record, Jeremy A. Fielding, KIRKLAND & ELLIS, LLP 1601 Elm Street, 27th Floor Dallas, Texas 75201. COMES NOW, Plaintiffs, Baron Real Property Holdings LLC and TSquare Apts LLC, in the above entitled and numbered cause and serves these Third Supplemental Objections and Answers to Defendants’ Second Set of Interrogatories. Respectfully submitted, EWIS RISBOIS ISGAARD MITH LLP /s/ William S. Helfand WILLIAM S. HELFAND State Bar No. 09388250 Bill.Helfand@lewisbrisbois.com SHANE L. KOTLARSKY State Bar No. 24083329 shane.kotlarsky@lewisbrisbois.com 24 Greenway Plaza, Suite 1400 Houston, Texas 77046 (713) 659-6767 (713) 759-6830 ATTORNEYS FOR PLAINTIFFS 4851-9841-1714.2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served on all counsel of record pursuant to the TEXAS ULES OF IVIL ROCEDURE via e-serve, e-mail, facsimile transmission, certified mail, regular mail, or hand delivery on this the 13 day of July, 2020: Jeremy A. Fielding, P.C. Email: Jeremy.fielding@kirkland.com Michael Kalis Email: Michael.kalis@kirkland.com KIRKLAND & ELLIS, LLP 1601 Elm Street, 27th Floor Dallas, Texas 75201 Telephone: (214) 972-1754 Facsimile: (214) 972-1771 Anna Rotman, P.C. Email: Anna.rotman@kirkland.com Sarah Williams Email: Sarah.williams@kirkland.com KIRKLAND & ELLIS, LLP 609 Main Street Houston, Texas 77002 Telephone: (713) 836-3600 Craig Albert Kartik Singapura 8350 North Central Expressway, Suite 1500 Dallas, Texas 75206 Tel.: 214-265-7007 Fax: 214-265-7008 Calbert@cplalaw.com ksingapura@cplalaw.com /s/ William S. Helfand WILLIAM S. HELFAND 4851-9841-1714.2 SUPPLEMENT TO RESPONSES TO INTERROGATORIES Identify the “substantial, material defects” that Plaintiffs contend “Defendants were fully aware long before they offered the property for sale or entered into the PSA,” as alleged on Page 4 of Plaintiffs’ First Amended Petition. Your answer should identify all facts of which Plaintiffs are specifically aware that establish, demonstrate, or prove this contention, including a detailed description of the “substantial, material defects.” In addition to the answers already provided, and subject to Rule 197.1 which prohibits this or any other interrogatory from requiring that Plaintiffs “marshal all of [their] available proof of the proof [Plaintiffs] intend to offer at trial” and Rule 193.5(a)(2) because Defendants have all of the documentary evidence available to Plaintiffs identifying the pre- sale damage to the property generally referred to as the “substantial, material defects” – indeed, it was Defendants who provided all or substantially of the documentation showing Defendants’ own knowledge of and efforts to hide the degraded and poor conditions of the property, generally alluded to as “defects” – Plaintiffs provide additional information in their third supplemental answer as follows: As an initial matter, the relevant portion of Page 4 of Plaintiffs’ petition upon which this interrogatory is based lists a number of things AMLI failed to identify prior to the sale of the property and failed to provide documentation regarding which puts the term “substantial, material defects” in its proper context, despite Defendants’ efforts to re-define it in complaining of Plaintiffs’ answer: (1) Defendants’ efforts to control significant, widespread, and continual water leaks and resulting damages, (2) wood destroying insect infestation and resulting damage, and (3) substantial work Defendants did before listing the property for sale to hide substantial, material defects of which Defendants were fully aware long before they offered the property for sale or entered into the PSA. Contrary to AMLI’s contrived assertions otherwise, in generally referring to system damages on the property of which AMLI has admitted it was aware, Plaintiffs do not allege any of what Plaintiffs labeled in the pleading as substantial, material defects caused any leaks, termite damage, or other conditions. Despite AMLI’s efforts to place their own self- serving spin on the Plaintiffs’ pleadings, Plaintiffs have never alleged the numerous and system sources of water leaks or termite damage are “symptoms” of the numerous, poor conditions of the property of which AMLI has admitted it was aware in using the term substantial, material defects. Rather, as AMLI has agreed, AMLI was required under the PSA to provide Plaintiffs records showing the existence and any repair of the defects of which AMLI knew. This clear contractual obligation is completely without regard to how the defects of which AMLI has admitted it was aware occurred. Plaintiffs are suing AMLI for defects about which AMLI has admitted it was aware pre-sale, but which AMLI actively hid and AMLI has also admitted it failed to disclose despite AMLI’s acknowledged contractual duty and Numbering inserted for clarity. 4851-9841-1714.2 regular practice in other sales to do so. The existence of the conditions AMLI’s pre-sale knowledge of those conditions, AMLI’s efforts to hide those known conditions, and AMLI’s obstruction of Plaintiffs’ efforts to learn of those conditions, not whether those conditions were the specific cause(s) of problems AMLI hid and about which AMLI hid and destroyed records it was obligated to produce is the basis of Plaintiffs’ claims. Defendants are well aware of what these conditions are and where they are located. Under the parties’ agreement, Defendants and their experts, including Mr. Tony Childress were permitted to tour the property before Plaintiffs began repair and remediation work. After that, Plaintiffs’ counsel invited Defendants’ counsel and Defendants’ experts to the property to investigate all revealed conditions every time Pie and Plaintiffs’ contractors found new issues, so as to allow AMLI and its experts to make their own review of the nature and extent of the conditions before Plaintiffs’ contractors did any repair and remediation work in such areas. Every one of these more than 30 communications identified the location of the conditions Pie uncovered and, once again, invited Defendants’ counsel and Defendants’ expert to investigate on their own before Plaintiffs’ contractors began their repairs. If AMLI now claims it doesn’t know where these conditions existed or the nature or extent of the conditions – a truly dubious assertion in light of the thousands of pages of documents and photos produced – AMLI has only itself to blame as it and its experts had full access to every location on the property at which such conditions were found by Plaintiffs’ contractors to allow AMLI and its experts to do whatever inspection, photographing, sampling, or testing AMLI and its experts chose. AMLI also requested, and Plaintiffs permitted AMLI’s counsel and AMLI’s experts to visit the storage of all of the compromised materials that PIE retained from the site. Furthermore, every time Plaintiffs’ counsel invited Defendants’ counsel and experts to the site, Plaintiffs’ counsel also provided photo evidence of all of Pie’s findings of the conditions on the property. As Defendants well know considering their expert has reviewed every photo, every single photo individually identifies the issue and the location. The following is simply one example of the thousands of photos of conditions, with identifying location information Plaintiffs provided to AMLI years ago: 4851-9841-1714.2 These photos are labeled TSquare 36175-36227, 36239-37150, and 37156-39393. Beyond these over 3000 photos, Pie kept repair work logs, which also indicate the nature of all of Pie’s findings and the location of those findings. Those documents are labeled TSquare 36164-36174 and 36228-36238. The location of these “substantial, material defects” is also evidenced by the work done and documented by Plaintiffs’ contractors, BluSky and, subsequently, SpawGlass. Details regarding the location of the work performed by BluSky and by SpawGlass are clearly listed in TSquare 39489-39492 and TSquare 40629-41088, respectively. Second supplemental answer: AMLI was already fully aware of every single condition Plaintiffs contend constituted defects long before AMLI sent this interrogatory because, under an agreement between Plaintiffs and AMLI, AMLI received notice of every defect AMLI had hidden as Plaintiffs became aware of them beginning as early as December 1, 2015 when Plaintiffs repeatedly invited AMLI to come to the property and AMLI’s lawyers and purported experts, including Tony Childress, who is still serving as an expert witness for Defendants in this matter, came to the property and inspected and analyzed the defective conditions for themselves to their own satisfaction. These on-site inspections of 4851-9841-1714.2 defective conditions by AMLI’s own designated personnel continued as Plaintiffs located additional defective conditions, all of which Plaintiffs invited AMLI to review as Plaintiffs’ engineering experts found them and before Plaintiffs undertook to remediate them. AMLI 229247-233534, AMLI 234834-235127. Thus, AMLI and its own purported experts have had and undertaken the opportunity to visualize for themselves and analyze to AMLI’s satisfaction all defects as Plaintiff located them, from December 1, 2015 through the completion of repairs on the property. Childress testified he reviewed every single photograph Pie took of the property – several of which Childress made comments on – and read every report from Pie. Deposition Transcript of Tony Childress, at 51:1-21, 57:13-15, 115:7-12. Childress also created a spreadsheet where he addressed every photograph and action Pie took. AMLI 235074- 235127. Clearly Defendants had sufficient information about the substantial, material defects on the property to designate an expert and have that expert create a report. Childress also testified during his deposition that the substantial, material defects included “lack of flashing, lack of what's called head wall flashing, lack of weeps. Really what it means is, is that if water gets behind the wall, there was no way for the water to get out. And you always have to assume that water can get past the wall. There was no base flashing at the bottom, so moisture could go up from the bottom very easily. The EIFS bands that go around the building, they had a flat shelf. They're supposed to be tapered so water will run off. They weren't. So water had nowhere to go.” at 191:20-192:4; see also id. at 114:2-13. Childress also identified defects with balconies that allowed water infiltration, including, among other things, a lack of flashing. Id. at 143:12-25; 185:22-24. “This building has no flashing. It has no weep holes.” Id. at 126:18-19. In addition to AMLI’s and AMLI’s purported experts’ own on-site and hands-on inspection of all defective conditions, as stated in Pie Consulting & Engineering’s August 2, 2015 and April 5, 2016 letters, the substantial, material defects about which Defendants were aware prior to offering the property for sale or entering into the PSA were the “exterior sheathing, OSB and exterior gypsum, installed without a weather resistive barrier within the field of the wall.” TSquare 000001-000024, TSquare 22636-22637; see also Deposition Transcript of Jessica Thiebout, at 146:12-19; Deposition Transcript of Chris Moulder, at 28:4-15, 29:5-13. Pie also identified both “polyethylene sheeting [that was nailed onto sheathing corners, resulting in punctured sheeting” and the exterior insulation and finishing system (EIFS) banding “installed directly onto metal lath without stucco or a weather resistive barrier behind” as well. See, TSquare 22636-22637; Thiebout Deposition, at 143:9-145:4, 148:18-21, 170:17-24; Moulder, Deposition at 37:11. Pie also identified a lack of flashings at windows, doors, and balconies, a lack of flashing on the flat roofs intersections with the building walls and air conditioning pads, and “open penetrations” on the flat roof that were not adequately sealed as additional substantial, material defects. Thiebout Deposition, at 102:12-18, 107:8-14; Moulder Deposition, at 24:22-25:17. Finally, Pie also identified termite damage as a substantial, material defect. TSquare 000001-000024, TSquare 36164-39393; Thiebout Deposition at 157:2-6, 158:9-19. BluSky and Spaw Glass employees, who were intimately involved with the investigation of conditions and necessary repairs on the property identified the same defects as did Moulder and Thiebout. See, Deposition Transcript of John Tripp, at 37:25-38:9; 4851-9841-1714.2 Deposition Transcript of Garrett Fox, at 17:2-20; Deposition Transcript of Wayne Beckham, at 33:7-11, 68:18-69:6; Deposition Transcript of Cliff Thuot, at 41:7-12. Indeed, Defendants’ own witnesses and documents also show Defendants knew of these material defects prior to and at the time of the sale. AMLI’s repair records from entities like LKM Services, Needham Roofing, and Envirotrol Pest Solutions, among others, demonstrate AMLI was well-aware of ongoing defects that necessitated repair. TSquare 011921-012012, TSquare 021920-023445. In 2011, Lone Star Roofing was hired to replace the air conditioning pads on the flat roofs, because of roof leaks: AMLI 14973-14974. Then, even after Lone Star Roofing replaced the air condition pads and attempted to fix the flat roof, AMLI continued to have roof leaks, of which AMLI’s own employees were not only aware, they hid them from Plaintiffs’ and Plaintiffs’ independent inspector. Just one week prior to Plaintiffs’ visits to the property to conduct due diligence, Defendants received a letter from Needham Roofing stating, “we have serious concerns about the installation of these roofs and determined that all six of the leaks on the upper roofs were flat roof leaks. After reviewing the pictures and discussing the problems with our repairman, I would anticipate many more problems to come from these flat roofs as the scope, details and installation are poor.” AMLI 31212-31231. The letter continued: tw have been 4851-9841-1714.2 AMLI’s property manager, Starla Kelso admitted under oath that she was aware of this very defect problem. Deposition Transcript of Starla Kelso, at 253:23-254:11. AMLI also knew of the repeated problem of leaks coming from balconies on the property, which caused substantial wood damage that was so bad it resulted in the need for AMLI to reconstruct portions of numerous apartments. For example, when asked “Where would you rank water damage and mold of the property balcony/patio storage closets in your list of the most significant problems -- maintenance problems on the property when you were the Property Manager?,” Kelso responded, “I mean, it would be high. It would be an important repair.” Kelso Deposition, at 265:12-18; see also Deposition Transcript of Walter Guzman, at 39:10-15, 34:13-20, 145:10-24. AMLI 25848-25849, AMLI 27040-27041, AMLI 27671-27674, AMLI 27859-27862, AMLI28280-28281, AMLI 29100-29105, AMLI 49261, AMLI 49274. In fact, Kelso could not think of a “more significant problematic issue” than leaks that caused substantial interior wood damage, Kelso Deposition, at 266:6-14, of which AMLI was thus obviously well-aware but which AMLI hid from Plaintiffs. Ms. Kelso also admitted Defendants had replaced 82 decorative urns around the property because they were leaking. Id. at 234:14-15; AMLI 25848-25849, AMLI 49255, AMLI 49259. In fact, AMLI was well-aware the urns caused such widespread water damage that Kelso recommended AMLI remove every single one of them in advance of showing the property to Plaintiffs’ representatives. The property’s maintenance supervisor Walter Guzman further testified window leaks were the biggest maintenance problem he dealt with at the property, deposition, at 138:7-140:2, AMLI was quite well-aware of those and their locations long before Plaintiffs found the hidden damage. Termites were a known defect on the property, as well. Brenda Holden, Kelso’s immediate supervisor, stated in an email on March 26, 2012 that the property “has had numerous termite issues in the past and the exterminators are recommending more.” AMLI 24643-51, AMLI 12292-12297. First supplemental answer: While Plaintiffs have no obligation to supplement their answer to this interrogatory because this “information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses,” Tex. R. Civ. P. 193.5(a)(2), and, under Tex. R. Civ. P. 197.1, interrogatories “may not be used to require the responding party to marshal all of its available proof or the proof the party intends to offer at trial,” Plaintiffs supplement this interrogatory response to include additional information responsive to this interrogatory, which identifies at least part of the facts supporting Plaintiffs’ contention. As also set out in Plaintiffs’ motion for summary judgment, Defendants failed to inform anyone from Plaintiffs about the existence of what one AMLI employee called a “big issue [with termites] at this property due to all the water penetration we have had.” See AMLI 6784 – AMLI 6785; AMLI 12292 – AMLI 12297, AMLI 25848 – AMLI 25850, AMLI 24643 – AMLI 24651, AMLI 49267 – AMLI 49269, AMLI 49274, AMLI 63716, AMLI 66827 – AMLI 66829, AMLI 75589 – AMLI 75611; Deposition Transcript of Starla Kelso, at 284:23-285:7, 360:16-19; Deposition Transcript of AMLI Corporate Representative Traci Hall, at 126:8-127:15, 192:14-17, 194:3-6; Deposition Transcript of Sonya Sampson, at 166:1-168:1. 4851-9841-1714.2 Defendants also knew about water leaks around the property necessitating, among other things, repairs to balconies and removing decorative urns, but failed to inform Plaintiffs about the existence of any of these issues. and failed to inform any replaced rotted wood from leaks around the property, including on balconies. See AMLI 3596 – AMLI 3598, AMLI 3618 AMLI 14107 – AMLI 14117 AMLI 49254 – AMLI 49255, AMLI 49259, AMLI 49261; Kelso Deposition, at 80:17-81:5, 81:8-21, 84:24-87:16, 187:6-14, 192:6-8, 189:15-21, 205:9-206:6, 234:14-235:2, 237:10-13, 249:15-250:25, 254:23-254:11, 265:12-267:1, 300:7- 301:14, 341:4-347:2, 360:16-19, 362:13-16; Sampson Deposition, at 50:17-51:5, 66:15-74:25, 77:7-79:5, 120:17-121:24, 128:14-129:5; Hall Deposition, at 81:16-19, 117:22-24, 191:22-24, 193:3-6. Mere weeks before Plaintiffs began their due diligence on whether to purchase the property, Defendants had to replace all of the air conditioning unit pads because they were leaking into the attic spaces below, but Defendants failed to inform Plaintiffs of this issue or subsequent repair. AMLI 079272 – AMLI 079273, AMLI 31212 – AMLI 31231; Hall deposition, at 87:13-93:24, 210:15-19, 210:24-211:7; Kelso Deposition, at 341:4-347:2, 300:7-301:14; Sampson Deposition, at 66:15-74:25, 77:7-79:5. There are likely additional substantial, material defects about which Defendants knew but failed to inform Plaintiffs additional. However, because Defendants deleted all property- level emails, Plaintiffs will never know what those defects were. Moreover, and as Defendants have testified on multiple occasions, Defendants’ Leak Log, Pest Control Binder, OneSite Maintenance database, Capital Improvements Binder, and RMIT database all contained on-site property records. No one from Defendants ever informed anyone from Plaintiffs of the existence, let alone made available to Plaintiffs during Plaintiffs’ due diligence as required by the PSA. Kelso Deposition, at 70:4-74:10, 129:8-132:12, 189:2-192:12, 311:3-18, 315:9-319:17, 320:8-321:21, 327:24-328:6, 326:22- 327:23, 346:15-347:2; Hall Deposition, at 46:11-15, 55:22-56:2, 194:11-14, 195:1-12; Sampson Deposition, at 81:8-83:24, 123:21-127:17, 148:4-149:11, 203:25-206:17. 4851-9841-1714.2