Date: 11-04-2011

Case Style: Grindstone Construction, Inc. v. Keith Construction Company, LLC

Case Number: CJ-2009-4928

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: John Edward Harper, Cori D. Powelll and Gerald Stamper, Tulsa, Oklahoma

Defendant's Attorney: Lawrence D. Taylor, Tulsa, Oklahoma

Description: Grindstone Construction, Inc. sued Keith Construction Company, LLC on a breach of contract theory.
Keith Construction accepted the bid of Grindstone Construction to perform the earthwork portion of the work involved in the creation of the John Hope Franklin Memorial Park in the Greenwood District. The parties executed a detailed written subcontract, and Grindstone Construction awaited instruction from Keith Construction to commence work. Without notice to Grindstone Construction, Keith Construction entered into another subcontract with a different contractor to perform the same work which had been let to Grindstone.

Grindstone Construction sued to recover the profit that it anticipated making by performing the subcontract. Keith Construction asserted the defense of “economic impracticability”, upon the contention that it would have cost more to have Grindstone perform the work than the price offered by another subcontractor.


Court Minute Re Trial:

"KUEHN, DANA: CASE CALLED FOR JURY TRIAL ON 10-3-11. BOTH SIDES PRESENT IN OPEN COURT AND ANNOUNCE READY FOR TRIAL. PLAINTIFF PRESENT AND REPRESENTED BY JOHN HARPER AND PETE STAMPER. DEFENDANT PRESENT AND REPRESENTED BY LAWRENCE TAYLOR. DIANA CAVENAH COURT REPORTER. THE JURORS ARE CALLED AND SWORN TO QUALIFICATIONS. THE JURORS ARE ACCEPTED FOR CAUSE.
PEREMPTORY CHALLENGES:

PLAINTIFF: STEVEN BENOIT, GEORGIA WYKOFF AND CHRISTINA LINNET

DEFENDANT: JOHN SENNER, MONCY VERGIS AND CLIFFORD BORUCKI

THE FOLLOWING JURORS ARE ACCEPTED AND SWORN TO TRY THE CAUSE:

LEE PARRISH, GERALD REED, BRENDA ORTEGA, ROY ELLER, MICHAEL BAY, SHAUNA HENRY, SONIA BURSI, OLGA MORALES-MATOS, DONALD DAVIS, DIANA GRAHAM, CALVIN CALDWELL JR., NIKKI EPPERSON.

ALT: KIEL WERNER

OPENING STATEMENTS ARE MADE. THREE (3) WITNESSES SWORN FOR PLAINTIFF. TWO (2) WITNESSES SWORN FOR THE DEFENDANT. RULE WAS INVOKED. PLAINTIFF PRESENTS EVIDENCE AND REST. DEFENDANT PRESENTS EVIDENCE AND REST. BOTH SIDES REST. THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THE SWEARING OF THE BAILIFF IS WAIVED ON 10-5-11 AT 10:35 A.M., THE JURY RETIRES FOR DELIBERATION AND IN THE CUSTODY OF GAYLA HEIN, BAILIFF. ON 10-5-11 AT 11:40 A.M., THE JURY RETURNS INTO OPEN COURT WITH THEIR VERDICT, WHICH IS READ IN OPEN COURT, ORDERED, RECORDED AND FILED, AND IS TO WIT: (BLUE VERDICT FORM) "WE, THE JURY, EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, GRINDSTONE CONSTRUCTION, AND FIX THE DOLLAR AMOUNT OF ITS DAMAGES IN THE SUM OF $51,141.00." SIGNED BY FOREPERSON, MICHAEL BAY. JURY DISCHARGED.

Outcome: Jury verdict in favor of Plaintiff in the amount of $51,141.00.

Plaintiff's Experts: Paul Kallenberger, CPA, with the Tulsa firm of Hartog, Kallenberger & Swarthout, CPA’s.

Defendant's Experts: Bob Hinton.

Comments: Editor's Note: The amount of the judgment, including interest, has been paid, and Grindstone Construction’s application for the award of attorneys’ fees is pending.