Date: 02-03-2014

Case Style: Shawn Smith v. Wayne Griffith Homes, Inc.

Case Number: CJ-2010-2529

Judge: Bernard M. Jones

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Kevin Donelson and Bryan King

Defendant's Attorney: Tim Cain and Kevin M. Walos for Wayne Griffith Homes, Inc. and Moss Construction Specialties, LLC

Larry G. Ball for Oklahoma Millworks, Inc.

Kenneth A. Brokaw and George W. Dahnke for Homes by Nomes, Inc.

George H. Brown, Anthony D. Gould and Joshua C. Stockton for Four Generations Roofing

David H. Cole and Stephanie L. Khoury for P. Talbott, LLC

Gary D. Hammond for Wilkins Design and Landscape, Inc.

Loyal J. Roach for Full House Construction

Daniel K. Zorn for Window Innovations, L.L.C.

Robert A. Manchester for Acoustic Designs, Inc.

Description: Plaintiffs, Michael S. and Jill Smith ( “Plaintiffs” or “Smiths”), for their claims against Defendants, Wayne Griffiths Homes, Inc. (“WGHI”) and Wayne Griffiths (“Mr. Griffiths”), hereby allege and state as follows: THE PARTIES

I. Plaintiffs are residents of Oklahoma County, Oklahoma.

2. Defendant, WGHI, is an Oklahoma corporation engaged in the business of constructing houses in, among other places, Oklahoma County, State of Oklahoma.

3. Upon information and belief, Defendant, Mr. Griffiths, is an individual residing in Newcastle, Oklahoma, and is the owner and principal of WGHI.

4. The Court has jurisdiction of the parties and venue is proper in Oklahoma County pursuant to 12O.S. § 131 FACTS COMMON TO ALL CLAIMS

5. On May 12, 2004, Plaintiffs and WGHI entered into a contract (the “Contract”) for a new home to be constructed by WGHI on that certain parcel ofreal property located at 6608 Coffee Creek Rd., Edmond, Oklahoma 73034.

6. Pursuant to the Contract, Defendants agreed to custom build a home for the Smiths on the subject property (the “Smiths’ Home”). The Contract was a “cost plus” arrangement. The Smiths paidDefendants throughout construction. The Smiths paid a total of$ 1,546,770.54 for actual construction costs, plus a builder’s fee of $152,477.11, for a total of $1,699,247.65.

7. Under the Contract and based on express and implied representations, WGHI was required to construct the Smiths’ Home with the reasonable and customary skill and expertise found in the luxury home building market in the Oklahoma City metro area and would use the contractors and subcontractors to ensure the Smiths’ Home was of the finest quality and free of defects.

8. Mr. Griffiths originally represented to the Smiths that construction would be completed in October 2005. It was not.

9. Mr. Griffiths then assured the Smiths that construction would be completed by Christmas in December 2005. Based on Mr. Griffiths’ assurance, the Smiths listed the house they were living in for sale.

10. Construction of the Smiths’ Home was not completed in December 2005, as Mr. Griffiths had represented.

11. In early 2006, the house the Smiths were living in sold. The Smiths consulted with Mr. Griffiths before establishing a closing date on the house they were selling. Mr. (3riffiths assured the Smiths that construction would be completed by March 3, 2006. Based on this representation, the Smiths agreed to set March 3, 2006 as the closing date for the house they were selling so that they would only have to incur moving expenses one time.

12. Although Mr. Griffiths had represented construction would be completed by March 3, 2006, it was not. Notwithstanding Defendants’ failure to timely complete construction, Mr. Griffiths induced the Smiths to go forward with the scheduled closing and take possession of the Smiths’ Home.

13. Mr. Griffiths acknowledged that, despite the Smiths taking possession of the Smiths’ Home, construction was not complete. Mr. Griffiths acknowledged numerous tasks remaining to be perfonned and represented to the Smiths that Defendants would complete those tasks even after the Smiths moved in.

14. Shortlyafter takingpossession, it became apparent that several aspects of construction also needed to be corrected or repaired. Mr. Griffiths represented to the Smiths ihat Defendants would make these corrections and repairs in addition to completing the tasks which had not yet been performed.

15. The unfinished tasks to be performed and flaws to be corrected even after the Smiths took possession included, for example:

a. The balconies had no decking;

b. Plumbing was faulty;

c. Cabinet doors would not shut and the wood surfaces were rough and unplaned; d, Veneer across shelving was already separating;

e. Sheet rock panels were misaligned; I Texturing did not match; and g. Cabinet doors in the study were not complete.

16. Mr. Grifflths represented and assured the Smiths he would remedy these problems. The Smiths reasonably relied on Mr. Grifflths’ representations.

17. The problems and defects with the Smiths’ Home increased and the Smiths notified Defendants of each defect. Mr. Griffiths repeatedly represented to the Smiths that he would “take care of it” and fix or remedy all the defects. However, the remedies offered and attempted by Defendants were frequently unsatisfactory and tardy, if provided at all.

18. In many instances, the Smiths were forced to hire contractors themselves due to the Defendants’ delay andlor refusal to correct problems with Defendants’ work which Defendants represented they would remedy, but did not.

19. On or about May 25, 2006, the Smiths noticed water coming in through the dining room window, a bedroom window, balcony doors in another bedroom, the playroom ceiling, and the hallway outside the master bedroom. The Smiths contacted Mr. Griffiths immediately.

20. Mr. Griffiths sent Four Generations, a roofing contractor, to check the water leakage. The roofers determined that nail holes and shingles were causing the leaks and patched them.

21. Mr. Griffiths sent Window knovations to examine the leakage around the windows. They blamed a poor window seal and poorly dcsignedJconstructed thresholds and weep holes for the leakage. The balcony door threshold was eventually removed and was represented to be the solution.

22. Additional rains led to the discovery of additional water intrusion within the home. Each time, the Smiths immediately contacted Defendants about these problems and Defendants routinely made representations and provided assurances that the water intrusion would be remedied.

23. Despite Defendants’ representations and assurances, the dining room window continued to leak and water continued to enter through the ceiling in the hallway outside the master bedroom.

24. Defendants sent the roofing contractor back to re-examine the roof which led to a discovery of improperly installed flashing around the chimney. Four Generations fixed the flashing and the problem was presumably resolved.

25. In July 2006, more rain led to additional water intrusion through and around the window casing in the dining room. Defendants represented to the Smiths that the problem was the balcony doors and ordered new custom doors to replace the old ones. However, Defendants never replaced the balcony doors, and eventually, the Smiths had to replace the them at their personal expense, only to see this theory of Defendants’ also fail.

26. Thereafter, more rains led to continuing water intrusion. Mr. Griffiths told Plaintiffs that the rock around the dining room window was permitting water to enter the house. Defendants caulked between the rocks and resealed around the window with silicone. Mr. Griffiths represented that this would solve the leakage, but again, it did not.

27. Once again, it rained. Once again, it leaked. Once again, the Smiths contacted Defendants. This time, Mr. Griffiths advised that water could be entering through the copper flashing around the balcony. He dispatched the copper installer who found that the balcony had not been properly flashed, evidenced by water stains beneath the copper. Again, Defendants andlor those sent by Defendants represented that the problem had been discovered and solved.

28. During late 2006 and early 2007, winter snows produced more water intrusion. The Smiths continued to noti’Defendants ofthe ongoing water problem. Mr. Grifflths continued to tell the Smiths that something needed to be done, including removing the entire front balcony, but he never followed through with his own recommendation.

29. In May 2007, as the dining room window continued to leak, Defendants sent Perry Talbot Stoneworks back to reseal the rock. At that time, rocks had begun falling ftom the portecochere archway. Mr. Griffiths had Perry Talbot Stoneworks reconstruct the archway because, as he informed the Smiths, he knew that the original contractor he had hired, Excalib ur Stoneworks, had not done it correctly.

30. During the summer of2007, rains continued to produce leaks. Each time, the Smiths contacted Defendants. During 2007, the Smiths asked Mr. Griffiths whether the continuous water intrusion might be causing mold. Mr. Griffiths told the Smiths he was certain there was not any mold.

31. By this time, the continued rains and water intrusion were causing the window casings to warp. Trim carpenters removed the window casing and opined that water was coming from the balcony and traveling to the dining room.

32. Despite his own previous recommendation that the balcony be removed, and notwithstanding the evidence that water was in fact entering through the balcony, Mr. Griffiths failed to rectif5e the situation. He continued to give the Smiths assurances that he would resolve the problem, but cited his busy schedule for the delay and!or blamed other contractors.

33. In the spring and summer of 2008, rain water continued to enter the Smiths’ Home. Tn July 2008, the Smiths noticed that the wood floors outside the master bedroom and in another bedroom were warping.

34. Again, the Smiths contacted Defendants to advise of the water damage. The Smiths voiced their concern about the shower pan and plumbing in the master bathroom. ]n response, Mr. Griffiths made two representations to the Smiths: (i) that he would come to the Smiths’ Home to examine the shower and determine the cause; and (ii) that the showers he installs never leak. Time would prove both representations false.

35. During the third week ofAugust 2008, Mrs. Smith opened the closet beneath the front staircase in the Smiths’ Home. Smelling a moldy odor, she examined the walls iii the closet and discovered black mold growing up the wall. Mrs. Smith contacted Mr. Griffiths immediately.

36. Mr. Griffiths sent a thermal imaging technician to look for the leak. Thermal imaging revealed that water was actually entering all three of the turret windows as well as other parts of the exterior of the turret which was causing a significant amount of water to run down the inside of the wall.

37. Through August 2008, the Smiths reasonably relied on the representations and assurances of Defendants that the balcony and roofwere primarily responsible for the water intrusion and that the necessary steps to remedy the problem had been or were being taken.

38. Mrs. Smith’s serendipitous discovery in the closet under the front staircase provided new revelations that (a) contradicted Defendants’ representations; (b) confirmed widespread, undetected water damage throughout the Smiths’ Home; (c) revealed that the chronic water damage had escalated into a mold problem; and (d) expanded the problem from one of inconvenience, emotional distress and financial strain, to one that also included health concerns.

39. At Mrs. Smith’s urging, the thermal imaging technician examined the dining room window and upstairs bedroom balcony and doors in a self-help measure to diagnose other unknown sources of water intrusion, The thermal imaging detected additional water intrusion.

40. Defendants sent a sheet rock contractor to the Smiths’ Home to remove and replace sheet rock in the closet below the turret windows which had visible water damage and mold.

41. With additional heavyrains in September 2008, the Smiths discoveredwater entering the house through the ceiling of the porte-cochere and the powder bathroom ceiling. The dining room window continued to leak and the warping of the wood floors worsened.

42. Defendants sent Perry Talbot Stoneworks to examine the exterior rock as a potential source of water intrusion. The stone masons had to bring scaffolding to access the rock, necessitating the removal of a significant amount of landscaping. At the Smiths’ request, Defendants sent a landscaper to remove and transplant the landscaping.

43. Mr. Griffiths assured the Smiths that (a) the landscaping could be safely removed and replaced; and (b) if the landscaping was damaged, he would take full responsibility of replacing it at no cost to the Smiths. The landscaping did not survive, and Defendants did not pay for its replacement.

44. Perry Talbot Stoncworks removed some of the exterior stone from the house and discovered one of the significant problems was a missing brick.

45. During mid-September 2008, more rains led to more water intrusion, Again, the Smiths notified Defendants of the problems. This time, Mr. Griffiths sent a different roofing contractor, Osborne Roofing, to examine the roof

46. Marty Peterson (“Mr. Peterson”) of Osborne Roofing discovered multiple areas of incorrectly constructed flashing and repaired them. Mr. Peterson also advised the Smiths that the window sills were all constructed and installed incorrectly and that the Smiths’ Home — a stacked stone house — was not moisture resistant because Defendants had failed to use the correct moisture barrier for stacked stone construction.

47. In September 2008, for the first time, Mr. Griffiths told the Smiths that stacked stone houses have a real problem with moisture. He flirther admitted to the Smiths that he had built other stacked stone houses and used a different moisture barrier than he used on the Smiths’ Home.

48. Upon hearing this confession regarding Defendants’ use of an inferior moisture barrier, the Smiths asked Defendants to remove all of the exterior rock on the curved turret and put a barrier under it before replacing the stones. Mr. Griffiths reftised to do this and assured the Smiths that “it will be fine.”

49. At approximately the same time, the Smiths began noticing that the wood floors in the master closet (which backs up to the shower) were beginning to warp. The Smiths informed Mr. Griffiths of this new problem and Mr. Griffiths began to suspect the shower pan to be the problem, notwithstanding his earlier insistence and assurances to the contrary.

50. At the same time that portions of rock were being removed from the exterior of the house, Defendants had a sheet rock contractor remove some, but not all, of the sheet rock below the turret windows and in the closet under the staircase. The contractor only removed any noticeably wet sheet rock.

51. Mrs. Smith specifically inquired of Mr. Griffiths whether mold could be present throughout the walls due to the water intrusion. Mr. Griffiths represented to Mrs. Smith that there was absolutely no mold in dry areas that were adjacent to the wet areas.

52. Upon the removal of only those visibly wet pieces of sheet rock, water stains in the fiberboard and studs of the wall could be seen. Mr. Griffiths represented to the Smiths that he would treat the inside of those walls by spraying bleach water.

53. Mrs. Smith again voiced her concern to Mr. Griffiths that water might be entering from higher in the turret wall where sheet rock had not been removed. Mr. Griffiths assured her that was not the case and did not remove additional sheet rock to confirm.

54. While the sheet rock contractor was at the Smiths’ Home, Mrs. Smith asked him to remove the sheet rock on the wall at the backside of the shower in the master bathroom in an effort to discover what was causing the wood floors to warp in that area. The contractor removed the sheet rock in that location and discovered significant black mold growing inside that wall. Further, the floors inside the wall were extremely wet.

55. With this new discovery, the sheet rock contractor contacted Mr. Griffiths immediately. Mr. Griffiths had Jay Welchel of Homes by Nomes remove the onyx-tiled shower floor which revealed a small hole in the shower pan.

56. Mr. Griffiths surmised that a mouse had chewed a hole in the shower pan liner and that he would not assume responsibility for it. He ifirther represented that the problem had nothing to do with the shower valve.

57. Throughout October and November 2008, the sheet rock on the staircase, inside the closet under the staircase, and outside the master bedroom remained removed in an attempt to dry the walls.

58. During this same time frame, the landscaper who had removed the landscaping earlier to make room for the stone masons’ scaffolding returned to reinstall the landscaping. Within months, plants died. Contrary to his representations, Mr. Griffiths did not pay to replace them. The Smiths bore this expense themselves.

59. In lateNovember2008, the insulation and sheetrock inside the damaged walls around the staircase and closet were replaced. Mrs. Smith asked Mr. Griffiths if thermal imaging should be performed following another rain to make sure all the leaks had been fixed. Mr. Griffiths represented that thermal imaging was unnecessary because he as certain that the problem was fixed.

60. Mrs. Smith also inquired of Mr. Griffiths whether anything else needed to be done to make sure the mold problem had been resolved. Once again, Mr. Griffiths represented that the problem had been solved and assured her that there was no mold.

61. Also inNovember 2008, the shower valvebegan leaking into the shower. The Smiths noticed that water was coming out ofthe shower valve when the water was not turned on. This water ran under the wood floors and into the carpet in the master bedroom. The Smiths notified Defendants.

62. The water damage from the shower valve was so extensive that the wood floor in the master closet buckled and the carpet in the master bedroom had to be pulled up for water remediation.

63. The following week, a plumber examined the problem and determined that the shower valve — the same valve Mr. Griffiths had previously assured was not the problem — was leaking and needed to be replaced. The contractor ordered the new valve.

64. More than a month later, a new shower valve was installed. The Smiths paid for the shower valve and to replace the wood floor ruined by the faulty shower valve.

65. In February 2009, the Smiths noticed more water intrusion from the shower in the master bathroom. The wood floors — which the Smiths had paid to replace only a few weeks earlier — began to warp again. The Smiths had to stop using theft shower again.

66. In May2009, the Smiths noticed that the wood in the study was warping. The wood on the wall and bookcases in the study abutted the closet where water intrusion and mold had been discovered earlier. The Smiths contacted Mr. Griffiths once again.

67. Mr. Griffiths told the Smiths that the warped wood in the study was due to the water intrusion in the closet which had been rectified.

68. The Smiths asked if they could have the entire house examined by thermal imaging because they were beginning to fear that water was entering from unlcnown sources.

69. When Mr. Griffiths did not approve that request, the Smiths removed the wood panel on the wall of the study themselves to see if they could locate water damage. Inimediately, they saw water stains on the fiberboard. Further, the inside of the wall was soaking wet.

70. Again, the Smiths contacted Defendants about the water intrusion problem in the study and their fear of the existence of new leaks.

71. On this occasion, Mr. Griffiths told the Smiths that the water intrusion was likely caused by the sprinkler system outdoors spraying on the exterior wall of the house. Mr. Griffiths sent Groom’s Irrigation to examine the sprinicler system.

72. Mr. Griffiths and Travis Groom of Groom’s Irrigation determined that the soil level against the house was too high on the wall and that this was causing water intrusion. At that time — and for the first time — Mr. Griffiths told Mrs. Smith that even as he was building the house, he knew there would be water problems caused by the soil and landscaping being too high. Mr. Griffiths further confessed that he told the landscaping contractor to lower the soil level, but the landscaper did not and Mr. Griffiths did not require it.

73. Also during the spring of 2009, the Smiths advised Defendants that Ihe closet under the staircase where water damage and mold had been discovered continued to emit a powerful moldy odor. Rather than investigate whether new leaks existed, Defendants simply instructed the Smiths to get an air freshener for the closet.

74. In late May 2009, exasperated by the numerous representations and assurances from Defendants which had proven false and/or unfulfilled, the Smiths contacted another builder, Jeff Gibbs (“Mr. Gibbs”), about the water intrusion problem.

75. Upon a cursory examination of the Smiths’ Home, Mr. Gibbs discovered numerous defects in construction including:

a. Locations where water was coming through holes where the stucco and stone meet and had not been correctly sealed;

b. Extreme amount of “nail pops” on the roof that a new home should not have;

c. Complete absence of flashing on the roof where flashing is required;

d. Improper location and installation of shingles; and

e. linproper and woefluly insufficient water barrier installed behind the stacked stone exterior of the house.

76. With these new revelations, Mr. Smith contacted Mr. Griffiths in June 2009 and demanded that Mr. Griffiths rectify the problem caused by his use of an improper water barrier.

77. Mr. Griffiths represented to the Smiths that he would remove all the rock from the house, if necessary to correct the problem. To date, Defendants have failed and refused to do this.

78. In September 2009, Groom’s Irrigation repaired and replaced the landscaping at the Smiths’ personal expense.

79. In late January2010, the smell of mold inside the Smiths’ Home increased following snowfall.

80. At their own expense, the Smiths had thermal imaging performed on the entire house. The thermal imaging revealed the presence of water intrusion from numerous locations which had never been discovered before.

81. On February 23, 2010, Envirocare Consulting performed mold testing and found mold to be inside the walls of the Smiths’ Home and in the air within the Smiths’ Home.

82. Defendants have not remedied the water intrusion and mold, and have failed to deliver on numerous representations and assurances they provided the Smiths.

83. Theproblems withthe Smiths’ Home are the result ofDefendants’ failure to construct the Smiths’ Home in a good and workmanlike manner, failure to cure the defects Defendants knew or should have known about, failure to cure the defects even once they were identitied, and failure to take reasonable measures to diagnose and resolve the numerous insufficient and incorrect techniques, labor and materials used in the construction of the Smiths’ Home.

84. Each time Plaintiffs learned of a defect, they notified Defendants of the defect and requested that Defendants make necessary repairs to correct the defect. The limited, partial, tardy, and insufficient actions Defendants took to remedy the defects have proven ineffective and the defects remain.

85. At all times, Mr. Griffiths was acting within the scope of his actual and apparent authority as the agent of WGHI.

86. WGHI is the alter ego of Mr. Griffiths, thereby making Defendants jointly and severally liable.

COUNT I

(BREACH OF CONTRACT)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs I through 86 herein.

87. As a material breach of the Contract entered by the parties, Defendants failed to construct the Smiths’ Home in accordance with the plan specifications and further failed to construct the Smiths’ Home in a good and workmanlike manner.

88. As a result of Defendants’ failure to complete the Contract in a good and workmanlike manner, the construction of the Smiths’ Home is faulty, inadequate and substandard.

89. As a direct and proximate result of Defendants’ breach, Plaintiffs have incurred damages for repairs, inspection and investigation into the problems with their home, for the anticipated repair and/or reconstruction of Defendants’ faulty and inadequate construction work; diminution in value of their property; incidental and/or consequential damages, all in excess of $10,000.

COUNT II

(NEGLIGENCE)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs 1 through 89 herein.

90. Defendants owed Plaintiffs a duty to perform the construction contract with skill, care, diligence and in a good and workmanlike manner.

91. In breach of this duty, Defendants failed to perform the contract with the skill, care and competence reasonably expected in the performance of such contracts.

92. Defendants’ acts and omissions constitute negligence.

93. As a direct result of Defendants’ negligence and breach of these duties, Plaintiffs have incurred damages in excess of $10,000.

COUNT III

(BREACH OF EXPRESS WARRANTY)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs 1 through 93 herein.

94. As part ofthe agreement between the parties, Defendants warranted the materials and workmanship of the Smith’s Home would be free from defect. Further, Defendants warranted that it would repair, replace or correct defects in material and workmanship to the Smiths’ Home upon notice by Plaintiffs.

95. On numerous occasions during the warranty period, and continuing beyond the warranty period, Plaintiffs provided Defendants notice of substantial defects in material and workmanship used in the construction of the Smiths’ Home. Further, Plaintiffs asked Defendants to make repairs as warranted.

96. Inbreach of the warranty, and contradictory to the numerous representations and assurances Defendants provided Plaintiffs that they would make all necessary repairs, Defendants have failed to make repairs to correct the defects in the Smiths’ Home.

97. As a direct result of Defendants’ breach of the express warranty provided on the Smiths’ Home, Plaintiffs have incurred damages in excess of$lO,000.

COUNT IV

(BREACH OF IMPLIED WARRANTY)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs 1 through 97 herein.

98. Accompanying every home construction contract in Oklahoma is an implied warranty that when the house is completed, it will be completed in a workmanlike manner and reasonably fit for occupancy. In breach of this warranty, Defendants constructed a home for the Plaintiffs which is materially lacking in material and workmanship resulting in significant defects.

99. As a direct result of Defendants’ breach of these implied warranties. Plaintiffs have incurred damages in excess of$l0,000.

COUNT V

(CONSTRUCTIVE/ACTUAL FRAUD)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs 1 through 99 herein.

100. As described in detail above, Defendants made material representations to Plaintiffs including: a. That Defendants would complete those aspects ofconstruction which had not been performed at the time the Smiths took possession; b. That Defendants would correct the construction flaws which existed at the time the Smiths took possession and shortly thereafter;

c. That Defendants would correct and/or had corrected the water intrusion at the balcony;

d. That Defendants would correct and/or had corrected the water intrusion at the window in the younger son’s room;

e. That Defendants would correct and/or had corrected the water intrusion in the dining room;

f. That Defendants would correct and/or had corrected the water intrusion in the powder bathroom;

g. That Defendants would correct and/or had corrected the water intrusion at the turret window

h. That Defendants would correct and/or had corrected the water intrusion allowed through the roof;

i. That Defendants would correct and/or had corrected the water intrusion in the master closet and master bathroom;

j. That Defendants would correct and/or had corrected the water intrusion in the closet under the front staircase;

k. That Defendants would correct and/or had corrected the water intrusion in the study;

1. That Defendants would replace the balcony doors so that the doors would swing outward rather than inward;

m. That Defendants would correct and/or had corrected the mold problem;

n. That Defendants would take full responsibility and pay for the damaged landscaping;

o. That no mold existed;

p. That no mold existed beyond that which Defendants visualized upon Plaintiffs’ discovery; and

q. That Defendants would remove all the exterior stone on the Smiths’ Home in order to correct the failed and insufficient moisture barrier.

101. Defendants made material representations, including but not limited to those set forth above, in order to induce Plaintiffs to maintain confidence in Defendants, to conceal known defects, and to delay repairs in an attempt to avoid responsibility and shift blame.

102. Defendants knew their representations, including but not limited to those set forth above, were false and/or made them in reckless disregard of their truth or falsity.

103. Defendants failed to disclose to Plaintiffs material facts and known perils to Plaintiffs — including facts and perils known during construction of the Smiths’ Home — and concealed such information even when confronted with direct inquiries designed to elicit the disclosure of such facts and perils.

104. Plaintiffs relied on the material representations of Defendants to their detriment.

105. Plaintiffs suffered damages as a direct consequence of Defendants’ fraudulent representations.

106. The misrepresentations of Defendants were either intentional or made with such reckless disregard for the truth that punitive damages are warranted to deter such conduct in the future.

COUNT VI

(NEGLIGENT MISREPRESENTATION)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs 1 through 106 herein.

107. Defendants negligently made misrepresentations and!or omissions regarding the construction of the Smiths’ Home and the correction of defects in the Smiths’ Home. The Smiths detrimentally relied on the misrepresentations andlor omissions.

108. As a result of this conduct, the Smiths have been damaged in an amount in excess of $10,000.

COUNT VII

(UNJUST ENRICHMENT)

Plaintiffs hereby adopt and re-allege each and every allegation set forth in Paragraphs 1 through 108 herein. 109. As a result of their conduct, as more fully described above, Defendants have been unjustly enriched in an amount exceeding $10,000 and should be required to disgorge their wrongful gains.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that judgment be granted in their favor and against Defendants as follows:

a) Damages in excess of $10,000 to compensate Plaintiffs for repair and/or reconstruction of the Smiths’ Home caused by Defendants’ breach of the Contract and Defendants’ breach of the actual and implied warranties attaching to the Smiths’ Home, and its failure to perform the contract in a good and workmanlike manner;

b) Damages in excess of$1O,000 to compensate Plaintiffs for the diminution and value of their property resulting from Defendants’ breach of the Contract and breach of the actual and implied warranties attaching thereto;

c) Plaintiffs’ incidental and consequential damages caused by Defendants’ breach ofthe Contract and Defendant’s breach ofthe actual and implied warrantied attaching thereto;

d) Damages in excess of$I 0,000 to compensate Plaintiffs for damages resulting from Defendants’ negligence and negligent misrepresentation;

e) Damages in excess of$1 0,000 to compensate Plaintiffs for damages resulting from Defendants’ actual and/or constructive fraud;

0 Disgorgement of the monies paid by Plaintiffs to Defendants for the improper construction of the Smiths’ Home; and

g) Plaintiffs’ attorney fees, costs, and such other relief as this Court may deem just and proper.

ANSWER OF WAYNE GRIFFITHS, AN INDIVIDUAL TO PLAINTIFFS’ AMENDED PETITION

COMES NOW the Defendant Wayne Griffiths, an Individual and for his Answer to Plaintiffs’ Amended Petition alleges and states as follows:

THE PARTIES

I.

Defendant is without sufficient information to admit or deny the allegations as stated in paragraph 1 ofPlaintiffs’ Amended Petition, therefore, denies same and demands strictproofthereof.

II.

Defendant admits the allegations as stated in paragraph 2 of Plaintiffs’ Amended Petition.

III.

Defendant admits Wayne Griffiths is an individual who resides in Newcastle, Oklahoma and is the President of Wayne Griffiths Homes, Inc. as stated in paragraph 3 of Plaintiffs’ Amended Petition. Defendant denies the remaining allegations ofparagraph 3 of Plaintiffs’ Amended Petition and demands strict proof thereof

IV.

Defendant denies he is a proper party to this litigation as stated in paragraph 4 of Plaintiffs’ Amended Petition and demands strict proof thereof Defendant admits that jurisdiction and venue are proper as to the other parties as stated in paragraph 4 of Plaintiffs’ Amended Petition.

FACTS COMMON TO ALL CLAIMS

V.

Defendant admits the allegations as stated in paragraph 5 of Plaintiffs’ Amended Petition.

VI.

Defendant admits that Defendant Wayne Griffiths Homes, Inc. agreed to build a custom home for the Smiths and that the contract was a “cost plus” arrangement. Defendant also admits that the Plaintiffs paid the Defendant Wayne Griffiths Homes, Inc. throughout the construction. Defendant is without sufficient information to admit or deny the remaining allegations as stated in paragraph 6 ofPlaintiffs’ Amended Petition, therefore, denies same and demands strict proofthereof.

VII.

Defendant admits Wayne Griffiths Homes, LLC agreed to construct a house for the Plaintiffs using acceptable standards and practices in the new home construction industry and that subcontractors were used in the construction process as stated in paragraph? ofPlaintiffs’ Amended Petition. Defendant denies the remaining allegations as stated in Paragraph? ofPlaintiffs’ Amended Petition and demands strict proof thereof.

VIII.

Defendant denies paragraph 8 of Plaintiffs’ Amended Petition and demands strict proof thereof.

Ix.

Defendant denies paragraph 9 of Plaintiffs’ Amended Petition and demands strict proof thereof

x.

Defendant denies paragraph 10 of Plaintiffs’ Amended Petition and demands strict proof thereof

XI.

Defendant denies paragraph 11 of Plaintiffs’ Amended Petition and demands strict proof thereof.

XII.

Defendant denies paragraph 12 of Plaintiffs’ Amended Petition and demands strict proof thereof

XIII.

Defendant admits the Smiths took possession of the house prior to its completion and that Wayne Griffiths Homes, Inc. agreed to complete the house as stated in paragraph 13 of Plaintiffs’ Amended Petition. Defendant denies the remaining allegations as stated in paragraph 13 of Plaintiffs’ Amended Petition and demands strict proof thereof

XIV.

Defendant denies paragraph 14 of Plaintiffs’ Amended Petition and demands strict proof thereof

XV.

Defendant denies paragraph 15 and its subparts a - g of Plaintiffs’ Amended Petition and demands strict proof thereof

XVI.

Defendant denies paragraphs 16-73 of Plaintiffs’ Amended Petition and demands strict proof thereof

XVII.

Defendant denies he made any false or any unfulfilled representations or assurances to the Plaintiffs as stated in paragraph 74 ofPlaintiffs’ Amended Petition and demands strict proofthereof Defendant is without sufficient information to admit or deny the remaining allegations as stated in paragraph 74 of Plaintiffs’ Amended Petition, therefore, denies same and demands strict proof thereof.

XVIII.

Defendant denies there are any defects in the construction of the Plaintiffs’ house as stated in paragraph 75 and its subparts ‘a’ through ‘e’ of Plaintiffs’ Amended Petition and demands strict proofthereof The Defendant is without sufficient information to admit or denywhat Mr. Gibbs may have observed at the house, therefore, denies same and demands strict proof thereof

XIX.

Defendant denies paragraphs 76 and 77 of Plaintiffs’ Amended Petition and demands strict proof thereof

Xx.

Defendant admits paragraph 78 of Plaintiffs’ Amended Petition.

XXI.

Defendant denies paragraph 79 of Plaintiffs’ Amended Petition and demands strict proof thereof

XXII.

Defendant is unable to admit or deny the allegations as stated in paragraph 80 of Plaintiffs’ Amended Petition, therefore, denies same and demands strict proof thereof.

XXIII.

Defendant is unable to admit or deny the allegations as stated in paragraph 81 of Plaintiffs’ Amended Petition, therefore, denies same and demands strict proof thereof

XXIV.

Defendant denies paragraphs 82 - 86 of Plaintiffs’ Amended Petition and demands strict proof thereof

COUNT I

(BREACH OF CONTRACT)

Defendant reasserts its admissions and denials to paragraphs 1-86 as if fully set forth herein.

XXV.

Defendant denies paragraphs 87 - 89 of Plaintiffs’ Amended Petition and demands strict proof thereof

COUNT H

(NEGLIGENCE)

Defendant reasserts its admissions and denials to paragraphs 1-89 as if fully set forth herein.

XXVI.

Defendant denies paragraphs 90 - 93 of Plaintiffs’ Amended Petition and demands strict proof thereof

COUNT III

(BREACH OF EXPRESS WARRANTY)

Defendant reasserts its admissions and denials to paragraphs 1-93 as if fully set forth herein.

XXVII.

Defendant denies paragraphs 94 - 97 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT IV

(BREACH OF IMPLIED WARRANTY)

Defendant reasserts its admissions and denials to paragraphs 1-97 as if fully set forth herein.

XXVIII.

Defendant denies paragraphs 98 - 99 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT V

(CONSTRUCTIVE/ACTUAL FRAUD)

Defendant reasserts its admissions and denials to paragraphs 1-99 as if fully set forth herein.

XXIX.

Defendant denies paragraph 100 and its subparts ‘a’ through ‘q’ of Plaintiffs’ Amended Petition and demands strict proof thereof.

m.

Defendant denies paragraphs 101- 106 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT VI

(NEGLIGENT MISREPRESENTATION)

Defendant reasserts its admissions and denials to paragraphs 1-106 as if fully set forth herein.

XXXI.

Defendant denies paragraphs 107- 108 of Plaintiffs’ Amended Petition and demands strict proof thereof

COUNT VII

(UNJUST ENRICHMENT)

Defendant reasserts its admissions and denials to paragraphs 1-108 as iffully set forth herein.

XXXII.

Defendant denies paragraph 109 of Plaintiffs’ Amended Petition and demands strict proof thereof. PRAYER FOR RELIEF

XXXIII.

Defendant denies Plaintiffs’ prayer for relief and further moves to strike Plaintiffs’ prayer for an amount in excess of $10,000.00 and demands that Plaintiffs specify the amount of damages as required by 12 O.S. § 2008(A)(2).

AFFIRMATIVE DEFENSES

I.

Plaintiffs’ Amended Petition fails to state a claim for relief.

II.

Plaintiffs’ damages, if any, were caused by a third party over whom this Defendant exercised no authority or control.

III.

Plaintiffs were negligent and such negligence on the part of the Plaintiffs proximately caused or contributed to the Plaintiffs’ damages, if any, and such negligence on the part of the Plaintiffs comparatively were greater than any alleged negligence of the Defendant, therefore, Plaintiffs are not entitled to recover herein.

Iv.

The conditions the Plaintiffs complain of at their house are the result of normal wear and tear and not defects in the construction of the house.

V.

The conditions the Plaintiffs complain of at their house are the result of settlement andlor earth movement arid not defects in the construction of the house.

VI.

The conditions the Plaintiffs complain of at their house are the result of water movement or other natural phenomenons and not defects in the construction of the house.

VII.

The Plaintiffs have failed to mitigate their damages, if any.

VIII.

The Plaintiffs’ claim for punitive damages violates the Oklahoma and United States Constitution.

Ix.

Plaintiffs’ Amended Petition fails to state a claim for fraud with particularity.

X.

Plaintiffs’ claims are barred by the doctrines of waiver, estoppel andlor release.

XI.

Any delays in construction were caused by changes to the house made by the Plaintiffs.

XII.

Wane Griffiths acted solely within his capacity as President of Wayne Griffiths Homes, Inc. and thus he has no individual liability to the Plaintiffs.

XIII.

Discovery is ongoing. Defendant reserves its right to amend its Answer as discovery progresses.

WHEREFORE, having fully answered, Defendant prays Plaintiffs take nothing by way of their Amended Petition and Defendant be awarded his attorneys fees and costs associated with this matter and such other relief the Court deems just and proper.

THIRD-PARTY PETITION

COMES NOW Defendant/Third-Party Plaintiff, Wayne Griffiths Homes, Inc. and for its Third-Party Petition alleges and states as follows:

I.

On June 17, 2010, Plaintiffs filed an Amended Petition against the Defendant/Third-Party Plaintiff (See Plaintiffs’ Amended Petition, attached hereto as Exhibit “1”). Plaintiffs allege a number of problems with their house.

II.

Plaintiffs allege in their Amended Petition that there is water intrusion into the house.

III.

Acoustic Designs, Inc. installed some security camera which maybe causing or contributing to the alleged water intrusion issue at the house.

IV.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding water intrusion. However, Acoustic Designs, Inc. may be liable to the Defendant/Third- Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

V.

Plaintiffs have also alleged in their Amended Petition that there is water intrusion into the house through the upstairs balcony door.

VI.

Window Innovations, LLC was the installer of the upstairs balcony door.

VII.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition as regarding the installation of the upstairs’ balcony door. However, Window Innovations, LLC may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

VIII.

Plaintiffs have also alleged in their Amended Petition that there are plumbing leaks at the house. Minards Plumbing was the plumbing contractor at the house.

IX.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the plumbing. However, Minards Plumbing. may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

X.

Plaintiffs have also alleged in their Amended Petition a problem with the sheetrock and texturing done at the house.

XI.

Larry Denton was the sheetrock contractor and did the texturing at the house.

XII.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding sheetrock and texturing. However, Larry Denton may be liable to the Defendant/ThirdParty Plaintiff for indemnity and/or contribution as a result of his work performed at the house.

XIII.

Plaintiffs also allege in their Amended Petition a problem with water intrusion through the windows. Plaintiffs also allege a problem with the manner in which the Tyvek wrap was installed at the house.

XIV.

Full House Construction was the installer of the windows and Tyvek wrap at the house.

xv.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation of the windows and Tyvek wrap. However, Full House Construction may be liable to the Defendant/Third-Party Plaintiff for indemnity andlor contribution as a result of its work performed at the house.

XVI.

Plaintiffs also allege in their Amended Petition problems with roof leaks at the house.

XVII.

Four Generations Roofing was the installer of the roof on the house.

XVIII.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the alleged roof leaks. However, Four Generations Roofing may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

XIX.

Plaintiffs also allege in their Amended Petition a problem with a leak from the geothermal heating and air unit.

XX.

C & S Heating and Air Conditioning, Inc. was the installer of the geothermal heating and air unit at the house.

XXI.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation of the geothermal heating and air unit. However, C & S Heating and Air Conditioning, Inc. may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

XXII.

Plaintiffs also allege in their Amended Petition a problem with water intrusion through the brick veneer. Plaintiffs also allege a problem with the manner flashing was installed at the house. Plaintiffs also allege that a brick archway was improperly constructed.

XXIII.

Excalibur Stoneworks, LLC was the brick mason at the house and installed the brick veneer and flashing at the house. Excalibur Stoneworks, LLC also constructed the brick archway the Plaintiffs complain about at the house.

XXIV.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation ofthe brick veneer, installation of the flashing and construction of the brick archway. However, Excalibur Stoneworks, LLC may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

xxv.

Plaintiffs also allege in their Amended Petition a problem with the installation of the stucco or dryvit at the house.

XXVI.

Moss Construction Specialties, LLC was the installer of the stucco or dryvit at the house.

XXVII.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation of the stucco or dryvit. However, Moss Construction Specialties, LLC may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

XXVIII.

Plaintiffs also allege in their Amended Petition problems with the installation of a number of cabinets throughout the house. Plaintiffs also allege that a number of cabinets were damaged during installation.

XXIX.

Oklahoma Millworks, Inc. constructed and installed the cabinets at the house.

XXX.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the construction and installation of the cabinets at the house. However, Oklahoma Miliworks, Inc. maybe liable to the Defendant/Third-PartyPlaintiff for indemnity and/or contribution as a result of its work performed at the house.

XXXI.

Plaintiffs also allege in their Amended Petition a problem with water intrusion through the stack stone veneer.

xxxii.

P. Talbott, LLC was the installer of the drystack stone veneer at the house.

XXXIII.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation of the drystack stone veneer. However, P. Talbott, LLC maybe liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

XXXIV.

Plaintiffs also allege a problem with the installation of some soil and sprinklers installed as part of the landscaping of the house. Plaintiffs have alleged that the soil level of the landscape was too high and that the sprinklers sprayed water directly onto the drystack stone veneer, which caused water intrusion into the house and damage to the interior of the hosue.

XXXV.

Wilkins Design and Landscape, Inc. was the installer of the soil and sprinkler system, which is part of the landscaping of the house.

XXXVI.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation of the soil and sprinkler system as part of the landscaping of the house. However, Wilkins Design and Landscape, Inc. maybe liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

XXXVII.

Plaintiffs also allege in their Amended Petition a problem with the installation of a shower pan at the house, which caused a water leak and damage to the interior of the house.

XXXVIII.

Homes by Nomes, Inc. was the installer of the shower pan at the Plaintiffs’ house.

XXXIX.

Defendant/Third-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the installation of the shower pan at the house. However, Homes by Nomes, Inc. may be liable to the Defendant/Third-Party Plaintiff for indemnity and/or contribution as a result of its work performed at the house.

WHEREFORE Defendant/Third-Party Plaintiff Wayne Griffiths Homes, Inc. prays for a Judgment against the Third-Party Defendants, Acoustic Designs, Inc.; Window Innovations, LLC; Minards Plumbing; Larry Denton; Full House Construction, Four Generations Roofing; C & S Heating and Air Conditioning, Inc.; Excalibur Stoneworks, LLC; Moss Construction Specialties, LLC; Oklahoma Millworks, Inc.; P. Talbott, LLC; Wilkins Design and Landscape, Inc.; Homes by Nomes, Inc. for indemnity and/or contribution and for its attorneys fees and costs associated with this matter.

THIRD-PARTY DEFENIANT, FOUR GENERATIONS ROOFING’S, ANSWER TO THIRD PARTY PETITION

COMES NOW Third Party Defendant, Four Generations Roofing (“Four Generations”), by and through its counsel of record, George H. Brown, Tony Gould and Joshua C. Stockton of BROWN & GOULD, PLLC, and for its Answer to the Third Party Petition of Defendant/Third-Party Plaintiff, Wayne Griffiths Homes, Inc. (“WGHI”), states as follows:

1. Four Generations admits the allegations of Paragraph I of the Third Party Petition.

2. Four Generations admits the allegations of Paragraph II of the Third Party Petition.

3. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph III of the Third Party Petition and therefore denies same.

4. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph IV of the Third Party Petition and therefore denies same.

5. Four Generations admits the allegations of Paragraph V of the Third Party Petition.

6. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph VI of the Third Party Petition and therefore denies same.

7. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph VII of the Third Party Petition and therefore denies same.

8. Four Generations admits the allegations set forth in the first sentence of Paragraph VIII, but is without sufficient evidence to either admit or deny the allegations set forth in the second sentence of Paragraph VIII of the Third Party Petition and therefore denies same.

9. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph IX of the Third Party Petition and therefore denies same.

10. Four Generations admits the allegations of Paragraph X of the Third Party Petition.

11. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XI of the Third Party Petition and therefore denies same.

12. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XII of the Third Party Petition and therefore denies same.

13. Four Generations admits the allegations of Paragraph XIII of the Third Party Petition.

14. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XIV of the Third Party Petition and therefore denies same.

15. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XV of the Third Party Petition and therefore denies same.

16. Four Generations admits the allegations of Paragraph XVI of the Third Party Petition.

17. Four Generations admits the allegations of Paragraph XVII of the Third Party Petition.

18. Four Generations denies the allegations of Paragraph XVIII of the Third Party Petition.

19. Four Generations admits the allegations of Paragraph XIX of the Third Party Petition.

20. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XX of the Third Party Petition and therefore denies same.

21. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXI of the Third Party Petition and therefore denies same.

22. Four Generations admits the allegations of Paragraph XXII of the Third Party Petition.

23. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXIII of the Third Party Petition and therefore denies same.

24. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXIV of the Third Party Petition and therefore denies same.

25. Four Generations admits the allegations of Paragraph XXV of the Third Party Petition.

26. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXVI of the Third Party Petition and therefore denies same.

27. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXVII of the Third Party Petition and therefore denies same.

28. Four Generations admits the allegations of Paragraph XXVIII of the Third Party Petition.

29. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXIX of the Third Party Petition and therefore denies same.

30. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXX of the Third Party Petition and therefore denies same.

31. Four Generations admits the allegations of Paragraph XXXI df the Third Party Petition.

32. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXXII of the Third Party Petition and therefore denies same.

33. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXXIII of the Third Party Petition and therefore denies same.

34. Four Generations admits the allegations of Paragraph XXXIV of the Third Party Petition.

35. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXXV of the Third Party Petition and therefore denies same.

36. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXXVI of the Third Party Petition and therefore denies same.

37. Four Generations admits the allegations of Paragraph XXX VII of the Third Party Petition.

38. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXXVIII of the Third Party Petition and therefore denies same.

39. Four Generation is without sufficient evidence to either admit or deny the allegations set forth in Paragraph XXXIX of the Third Party Petition and therefore denies same.

AFFIRMATIVE DEFENSES

I. WGHI has failed to state a cause of action for which relief can be granted.

2. Estoppel.

3. Laches.

4. Waiver.

5. Statute of Limitation.

6. To the extent any loss or injury was caused by the negligence, intentional conduct or other act or omission of WGHI, such as modifying or altering the roof, WGHI is responsible and liable for any such loss or injury and not Four Generations.

7. To the extent any loss or injury was caused by the negligence, intentional conduct or other act or omission of any third party, including, without limitation, Plaintiffs, said party is responsible and liable for any such loss or injury and not Four Generations.

8. Four Generations reserves the right to amend this Answer to Third Party Petition as discovery is ongoing.

WHEREFORE, having fully answered the Third Party Petition, Four Generations prays that Defendant/Third-Party Plaintiff, Wayne Griffiths Homes, Inc., take nothing by way of its Third Party Petition; that Four Generations recover its costs; and that this Court enter such other and further relief in favor of Four Generations as it deems just and equitable.

DEFENDANT’S ANSWER TO THIRD-PARTY PETITION OF WAYNE GRIFFITHS HOMES, INC.

COMES NOW the Third-Party Defendant Moss Construction Specialties, LLC, and for its Answer to the Third-Party Petition of Wayne Griffiths Homes, Inc., denies any and allegations made by Third-Party Plaintiff in its Third-Party Petition unless specifically admitted in Third-Party Defendant’s Answer and ffirther alleges and states as follows:

1. Plaintiffs’ Petition speaks for itself

2. Plaintiffs’ Amended Petition speaks for itself

3. Third-Party Defendant is without sufficient infomiation to admit or deny Paragraph 3 of Third-Party Plaintiffs Third-Party Petition.

4. Third-Party Defendant is without sufficient information to admit or deny Paragraph 4 of Third-Party Plaintiffs Third-Party Petition.

5. Plaintiffs’ Amended Petition speaks for itself

6. Third-Party Defendant is without sufficient information to admit or deny Paragraph 6 of Third-Party Plaintiffs Third-Party Petition.

7. Third-Party Defendant is without sufficient information to admit or deny Paragraph 7 of Third-Party Plaintiffs Third-Party Petition.

8. Plaintiffs’ Amended Petition speaks for itself Third-Party Defendant is without sufficient information to admit or deny the balance of Paragraph 8 of Plaintiffs Third-Party Petition.

9. Plaintiffs’ Amended Petition speaks for itself

10. Plaintiffs’ Amended Petition speaks for itself

11. Third-Party Defendant is without sufficient infonnation to admit or deny Paragraph 11 of Third-Party Plaintiffs Third-Party Petition.

12. Third-Party Defendant is without sufficient information to admit or deny Paragraph 12 of Third-Party Plaintiff’s Third-Party Petition.

13. Plaintiffs’ Amended Petition speaks for itself

14. Third-Party Defendant is without sufficient information to admit or deny Paragraph 14 of Third-Party Plaintiffs Third-Party Petition.

15. Third-Party Defendant is without sufficient information to admit or deny Paragraph 15 of Third-Party Plaintiffs Third-Party Petition.

16. Plaintiffs’ Amended Petition speaks for itself.

17. Third-Party Defendant is without sufficient information to admit or deny Paragraph 17 of Third-Party Plaintiff’s Third-Party Petition.

18. Third-Party Defendant is without sufficient information to admit or deny Paragraph 18 of Third-Party Plaintiffs Third-Party Petition.

19. Plaintiffs’ Amended Petition speaks for itself

20. Third-Party Defendant is without sufficient information to admit or deny Paragraph 20 of Third-Party Plaintiffs Third-Party Petition.

21. Third-Party Defendant is without sufficient information to admit or deny Paragraph 21 of Third-Party Plaintiffs Third-Party Petition.

22. Plaintiffs’ Amended Petition speaks for itself

23. Third-Party Defendant is without sufficient information to admit or deny Paragraph 23 of Third-Party Plaintiff’s Third-Party Petition.

24. Third-Party Defendant is without sufficient information to admit or deny Paragraph 24 of Third-Party Plaintiffs Third-Party Petition.

25. Plaintiffs’ Amended Petition speaks for itself

26. Third-Party Defendant admits to performing work on the stucco or dryvit on the house in question.

27. Third-Party Defendant denies the allegations and averments in Paragraph 27 of Third-Party Plaintiff’s Third-Party Petition with respect to any liability for indemnity andlor contribution.

28. Plaintiffs’ Amended Petition speaks for itself

29. Third-Party Defendant is without sufficient information to admit or deny Paragraph 29 of Third-Party Plaintiff’s Third-Party Petition.

30. Third-Party Defendant is without sufficient information to admit or deny Paragraph 30 of Third-Party Plaintiffs Third-Party Petition.

31. Plaintiffs’ Amended Petition speaks for itself

32. Third-Party Defendant is without sufficient information to admit or deny Paragraph 32 of Third-Party Plaintiffs Third-Party Petition.

33. Third-Party Defendant is without sufficient information to admit or deny Paragraph 33 of Third-Party Plaintiffs Third-Party Petition.

34. Third-Party Defendant is without sufficient information to admit or deny Paragraph 34 of Third-Party Plaintiffs Third-Party Petition.

35. Third-Party Defendant is without sufficient information to admit or deny Paragraph 35 of Third-Party Plaintiff’s Third-Party Petition.

36. Third-Party Defendant is without sufficient information to admit or deny Paragraph 36 of Third-Party Plaintiff’s Third-Party Petition.

37. Plaintiffs’ Amended Petition speaks for itself.

38. Third-Party Defendant is without sufficient information to admit or deny Paragraph 38 of Third-Party Plaintiffs Third-Party Petition.

39. Third-Party Defendant is without sufficient information to admit or deny Paragraph 39 of Third-Party Plaintiffs Third-Party Petition.

AFFIRMATIVE DEFENSES

40. The Third-Party Defendant asserts the following affirmative defenses to the Third- Party Plaintiff’s claims:

i. Statute of Limitations

ii. Estoppel

iii. Latches

iv. Contributory Negligence

v. Release

vi. Waiver

WHEREFORE, premises considered, Third-Party Defendant prays that judgment be entered by this Court that Third-Party Plaintiff takes nothing by their suit and that all costs and expenses of said suit, including Third-Party Defendant’s attorney’s fees, be taxed and adjudged against Third- Party Plaintiff. Third-Party Defendant further prays for all other relief as maybe appropriate under the circumstances.

ANSWER OF THIRD-PARTY DEFENDANTS HOMES BY NOMES, INC. Third Party Defendant, Homes By Nomes, Inc. (“Homes”) for Answer to Third Party

Plaintiffs Third-Party Petition, states:

1. Homes admits the allegations in Paragraph I of Third-Party Plaintiffs Third-Party Petition.

2. Homes admits the allegations in Paragraph II of Third-Party Plaintiffs Third-Party Petition.

3. Homes has insufficient knowledge to admit or deny the allegations in Paragraph III of Third-Party Plaintiffs Third-Party Petition.

4. Homes has insufficient knowledge to admit or deny the allegations in Paragraph IV of Third-Party Plaintiffs Third-Party Petition.

5. Homes admits the allegations in Paragraph V of Third-Party Plaintiffs Third-PArty Petition.

6. Homes has insufficient knowledge to admit or deny the allegations in Paragraph VI of Third-Party Plaintiffs Third-Party Petition.

7. Homes has insufficient knowledge to admit or deny the allegations in Paragraph VU of Third-Party Plaintiffs Third-Party Petition.

8. Homes has insufficient knowledge to admit or deny the allegations in Paragraph VIII of Third-Party Plaintiffs Third-Party Petition.

9. Homes has insufficient knowledge to admit or deny the allegations in Paragraph IX of Third-Party Plaintiffs Third-Party Petition.

10. Homes has insufficient knowledge to admit or deny the allegations in Paragraph X of Third-Party Plaintiffs Third-Party Petition.

11. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XI of Third-Party Plaintiffs Third-Party Petition.

12. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XII of Third-Party Plaintiffs Third-Party Petition.

13. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XIII of Third-Party Plaintiff’s Third-Party Petition.

14. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XIV of Third-Party Plaintiff’s Third-Party Petition.

15. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XV of Third-Party Plaintiffs Third-Party Petition.

16. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XVI of Third-Party Plaintiffs Third-Party Petition.

17. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XVII of Third-Party Plaintiffs Third-Party Petition.

18. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XVIII of Third-Party Plaintiff’s Third-Party Petition.

19. Homes has insufficient knowledge to admit or deny the allegations in Paragraph )UX of Third-Party Plaintiffs Third-Party Petition.

20. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XX of Third-Party Plaintiffs Third-Party Petition.

21. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXI of Third-Party Plaintiffs Third-Party Petition.

22. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXII of Third-Party Plaintiffs Third-Party Petition.

23. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXIII of Third-Party Plaintiffs Third-Party Petition.

24. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXIV of Third-Party Plaintiffs Third-Party Petition.

25. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXV of Third-Party Plaintiffs Third-Party Petition.

26. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXVI of Third-Party Plaintiffs Third-Party Petition.

27. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXVII of Third-Party Plaintiffs Third-Party Petition.

28. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXVIII of Third-Party Plaintiffs Third-Party Petition.

29. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXIX of Third-Party Plaintiffs Third-Party Petition.

30. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXX of Third-Party Plaintiffs Third-Party Petition.

31. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXI of Third-Party Plaintiffs Third-Party Petition.

32. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXII of Third-Party Plaintiffs Third-Party Petition.

33. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXIII of Third-Party Plaintiffs Third-Party Petition.

34. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXIV of Third-Party Plaintiffs Third-Party Petition.

35. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXV of Third-Party Plaintiffs Third-Party Petition.

36. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXVI of Third-Party Plaintiffs Third-Party Petition.

37. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXX VII of Third-Party Plaintiffs Third-Party Petition.

38. Homes has insufficient knowledge to admit or deny the allegations in Paragraph XXXVIII of Third-Party Plaintiffs Third-Party Petition.

39. Homes denies the allegations in Paragraph XXXIX of Third-Party Plaintiffs Third- Party Petition. AFFIRMATIVE DEFENSES

40. Third Party Plaintiffs Third Party Petition fails to state a claim upon which relief can be granted against Homes by Nomes, Inc.

41. Homes properly installed the shower pan in the bathroom at Plaintiffs’ home and it worked properly for two years. Thereafter, the shower pan began leaking. Upon investigation, Homes found that a mouse had chewed through the shower pan causing it to leak.

42. Homes reserves the right to plead additional defenses as those become apparent through discovery.

WHEREFORE, having fully answered, Homes prays that Third Party Plaintiff take nothing by way of its Third Party Petition.

ANSWER OF THIRD-PARTY DEFENDANT ACOUSTIC DESIGNS, INC.

Comes now the Third-Party Defendant, Acoustic Designs, Inc. (“Acoustic”) and for its answer to the allegations contained in the Plaintiff’s Third-Party Petition, alleges and states as follows:

1. With respect to the allegations contained in ¶1 of Defendant/Third-Party Plaintiff’s Third-Party Petition, Third Party Defendant, Acoustic, is without knowledge or information sufficient to form a belief as to the truth of said allegations.

2. With respect to the allegations contained in ¶2 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

3. Third-Party Defendant Acoustic admits the allegations contained in ¶3 of Third-Party Petition as they pertain to its conducting business in Oklahoma County, Oklahoma. With respect to the remaining allegations contained in ¶3 of Defendant/Plaintiff’s Third-Party Petition, Acoustic denies the allegations and demands strict-proof thereof.

4. Third-Party Defendant Acoustic denies the allegations contained in ¶4 of Third-Party Petition, and demands strict proof thereof.

5. With respect to the allegations contained in ¶5 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

6. With respect to the allegations contained in ¶6 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

7. With respect to the allegations contained in ¶7 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

8. With respect to the allegations contained in ¶8 of Defendant/Third-Party Plaintiff’s Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

9. With respect to the allegations contained in ¶9 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

10. With respect to the allegations contained in ¶ 10 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

11, With respect to the allegations contained in ¶11 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to fonn a belief as to the truth of said allegations.

12. With respect to the allegations contained in ¶12 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

13. With respect to the allegations contained in ¶13 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

14. With respect to the allegations contained in ¶14 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

15. With respect to the allegations contained in ¶15 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

16. With respect to the allegations contained in ¶16 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

17. With respect to the allegations contained in ¶17 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

18. With respect to the allegations contained in ¶18 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

19. With respect to the allegations contained in ¶19 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

20. With respect to the allegations contained in ¶20 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

21. With respect to the allegations contained in ¶21 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

22. With respect to the allegations contained in ¶22 of Defendant/Third-Party Plaintiff’s Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

23. With respect to the allegations contained in ¶23 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

24. With respect to the allegations contained in ¶24 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

25. With respect to the allegations contained in ¶25 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

26. With respect to the allegations contained in ¶26 of Defendant/Third-Party Plaintiff’s Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

27. With respect to the allegations contained in ¶27 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

28. With respect to the allegations contained in ¶28 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

29. With respect to the allegations contained in ¶29 of Defendant/Third-Party Plaintiff’s Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

30. With respect to the allegations contained in ¶30 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

31. With respect to the allegations contained in ¶31 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

32. With respect to the allegations contained in ¶32 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

33. With respect to the allegations contained in ¶33 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

34. With respect to the allegations contained in ¶34 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

35. With respect to the allegations contained in ¶35 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

36. With respect to the allegations contained in ¶36 of Defendant/Third-Party Plaintiff’s Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

37. With respect to the allegations contained in ¶37 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

38. With respect to the allegations contained in ¶38 of Defendant/Third-Party Plaintiffs Third-Party Petition, Third-Party Defendant is without knowledge or information sufficient to form a belief as to the truth of said allegations.

39. Third-Party Defendant Acoustic admits that venue is proper in Oklahoma County as contained in ¶4 of Plaintiffs Amended Petition.

AFFIRMATIVE DEFENSES

1. Any negligent or improper action(s) of Third-Party Defendant was exceeded by the individual and combined negligence of Defendant/Third Party Plaintiffs, Plaintiffs and third parties.

2. Plaintiffs have failed to mitigate their damages.

3. There is an insufficiency of process and service of process against these Defendants. The petition and process were not properly and timely filed, issued, and sewed, and this case should be dismissed for failure of the court to properly have personal jurisdiction over these Defendants.

4. Any claim by Plaintiffs is barred by laches and/or the applicable statute of limitations.

5. The actions of Plaintiffs give rise to estoppel.

6. The actions of Plaintiffs give rise to a waiver.

7. Plaintiffs’ Petition fails to state a cause of action against these Defendants.

8. The Plaintiffs have improperly joined the parties.

9. The Plaintiffs have failed to join all proper parties.

10. Defendants deny that the Plaintiffs have the legal capacity to sue; improper party Plaintiffs.

11. The Defendants are not proper parties to this action and are immune from suit in this case.

12. This Court lacks subject matter jurisdiction of the case.

13. Defendants reserve the right to amend this Answer and add additional defenses, including additional affirmative defenses, as more information becomes available through discovery.

WHEREFORE, having answered, Third-Party Defendant Acoustic Designs, kc., premises considered, pray that DefendantJlhird-Party Plaintiff take nothing and that udgment be entered in their favor and for such other and further relief as the Court deems just and proper, inclusive of all associated legal fees and costs.

ANSWER OF THIRD-PARTY DEFENDANT OKLAHOMA MILLWORKS. INC.

Third-Party Defendant, Oklahoma Miliworks, Inc. (“Miliworks”), for its Answer to the Third-party Petition of Third-party Plaintiffs, (“Third-party Plaintiffs”), specifically denies each and every allegation set forth in the Third-party Petition except as specifically admitted in this Answer. Further answering, per the paragraphs of the Third-party Petition:

1. The allegations contained in Paragraph 1 of the Third-party Petition are admitted.

2. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 2 of the Third-party Petition, and hence, same are denied.

3. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 3 of the Third-party Petition, and hence, same are denied.

4. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 4 of the Third-party Petition, and hence, same are denied.

5. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 5 of the Third-party Petition, and hence, same are denied.

6. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 6 of the Third-party Petition, and hence, same are denied.

7. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 7 of the Third-party Petition, and hence, same are denied.

8. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 8 of the Third-party Petition, and hence, same are denied.

9. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 9 of the Third-party Petition, and hence, same are denied.

10. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 10 of the Third-party Petition, and hence, same are denied.

11. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 11 of the Third-party Petition, and hence, same are denied.

12. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 12 of the Third-party Petition, and hence, same are denied.

13. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 13 of the Third-party Petition, and hence, same are denied.

14. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 14 of the Third-party Petition, and hence, same are denied.

15. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 15 of the Third-party Petition, and hence, same are denied.

16. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 16 of the Third-party Petition, and hence, same are denied.

17. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 17 of the Third-party Petition, and hence, same are denied.

18. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 18 of the Third-party Petition, and hence, same are denied.

19. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 19 of the Third-party Petition, and hence, same are denied.

20. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 20 of the Third-party Petition, and hence, same are denied.

21. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 21 of the Third-party Petition, and hence, same are denied.

22, Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 22 of the Third-party Petition, and hence, same are denied.

23. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 23 of the Third-party Petition, and hence, same are denied.

24. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 24 of the Third-party Petition, and hence, same are denied.

25. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 25 of the Third-party Petition, and hence, same are denied.

26. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 26 of the Third-party Petition, and hence, same are denied.

27. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 27 of the Third-party Petition, and hence, same are denied.

28. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 28 of the Third-party Petition, and hence, same are denied.

29. The allegations contained in Paragraph 29 of the Third-party Petition are admitted.

30. Millworks admits that DefendantlThird-Party Plaintiff denied the allegations of Plaintiffs’ Amended Petition regarding the construction and installation of the cabinets at the house. Millworks denies all other allegations contained in Paragraph 30 of the Third-party Petition.

31. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 31 of the Third-party Petition, and hence, same are denied.

32. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 32 of the Third-party Petition, and hence, same are denied.

33. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 33 of the Third-party Petition, and hence, same are denied.

34. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 34 of the Third-party Petition, and hence, same are denied.

35. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 35 of the Third-party Petition, and hence, same are denied.

36. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 36 of the Third-party Petition, and hence, same are denied.

37. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 37 of the Third-party Petition, and hence, same are denied.

38. Millworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 38 of the Third-party Petition, and hence, same are denied.

39. Miliworks is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 39 of the Third-party Petition, and hence, same are denied.

AFFIRMATIVE DEFENSES

Millworks reserves the right to amend this Answer to plead any affirmative defenses it may deem applicable as discovery progresses herein.

The Pre-Trial Order provided in part:

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2. GENERAL STATEMENT OF FACTS: Plaintiff:

This case arises from the existence of significant water intrusion and negligent and unrepaired construction defects existing in a home built for the Smiths by Defendants. The Smith commenced this case with the filing of their Petition on March 25, 2010. By virtue of their Amended Petition, the Smiths have pled causes of action for breach of contract, negligence, and breach of express warranty and breach of implied warranty.

On or about March 12, 2004, the Smiths entered into a real estate purchase contract (“the Contract”) with WGHI for a new home to be constructed by Defendant on approximately 10 acres of land located at 6608 Coffee Creek Rd. in Edmond, Oklahoma (the “Smiths’ Home”). Pursuant to the Contract, Defendant agreed to custom build a home for the Smiths on the subject property. The Contract was a “cost plus” arrangement. The Smiths paid Defendant throughout construction $1,546,770.54 for actual construction costs, plus a builder’s fee of $152,477.11, for a total of $1,699,247.65. Shortly after taking possession in March of 2006, it became apparent that several aspects of construction needed to be corrected or repaired. Mr. Griffiths represented to the Smiths that Defendant would make these corrections and repairs in addition to completing the tasks which had not yet been performed and the Smiths relied on Mr. Griffiths’ representations.

The problems and defects with the Smiths’ Home increased and the Smiths notified Defendants of each defect. Mr. Griffiths repeatedly represented to the Smiths that he would “take care of it” and fix or remedy all the defects. However, the remedies offered and attempted by Defendant were frequently unsatisfactory and tardy, if provided at all. In many instances, the Smiths were forced to hire contractors themselves due to the Defendant’s delay and/or refusal to correct problems with Defendant’s work which Defendants represented they would remedy, but did not.

In late May 2009, exasperated by the numerous representations and assurances from Defendant which had proven false and/or unfulfilled, the Smiths contacted another builder, Jeff Gibbs (“Mr. Gibbs”), about the water intrusion problem.

To this day, Defendant have not remedied the water intrusion, nor have they taken the steps necessary to discovery and remedy other areas of mold, and they have failed to deliver on numerous representations and assurances they provided the Smiths. The problems with the Smiths’ Home are the result of Defendant’s failure to construct the Smiths’ Home in a good and workmanlike maimer, failure to oversee the work of subcontractors hired by Defendants, failure to cure the defects Defendant knew or should have known about, failure to cure the defects even once they were identified, and failure to take reasonable measures to diagnose and resolve the numerous insufficient and incorrect techniques, labor and materials used in the construction of the Smiths’ Home. At all times, Mr. Griffiths was acting within the scope of his actual and apparent authority as the agent of WGHI. Defendant/Third Part’ Plaintiff, Wayne Griffiths Homes, Inc.:

On May 12, 2004, the Plaintiffs Shawn and Jill Smith and Wayne Griffiths Homes, Inc. entered into a contract for the construction of a new house to be built on Plaintiffs’ land located at 6608 Coffee Creek Road, Edmond, OK 73034. The contract was a “cost plus” arrangement. The Smiths paid Wayne Griffiths Homes, Inc. throughout the construction, $1,546,770.54 for actual construction costs, plus a builder’s fee of $152,477.11, for a total of $1 ,699.247.65. The builder offered a one year limited warranty on the house.

Plaintiffs allege there are ongoing water intrusion problems at the house. Defendant made repairs to the house during the warranty period. Plaintiffs allege those repairs were inadequate and there are still ongoing problems with the house. Defendant denies these allegations. Plaintiffs allege the Defendant was negligent in construction of the house and it has breached expressed and implied warranties. Defendant denies these allegations. Defendant claims that it constructed the house in a workman like manner consistent with general construction practices in the new house construction industry. Defendant used subcontractors to construct the house. Plaintiffs hired some contractors of their own choosing to construct certain portions of the house. The Defendant alleges it is entitled to indemnity and/or contribution from the Third-Party Defendants should an adverse judgment be rendered against it.


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Outcome: 01-28-2014 CTFREE - 77316665 Feb 3 2014 1:36:30:737PM - $ 0.00

JUDGE DAVIS: CASE COMES ON JURY TRIAL. PLAINTIFF APPEARS WITH ATTORNEYS KEVIN DONELSON AND BRYAN KING. TIM CAIN AND KEVIN WALOS APPEAR WITH DEFENDANT. BOTH SIDES ANNOUNCE READY. (29) JURORS SWORN TO ANSWER QUESTIONS. (22) JURORS CALLED TO THE BOX. COURT INQUIRES OF THE BOX. PROSPEVTIVE JURORS EXCUSED FOR CAUSE. PEREMPTORY CHALLENGES. ALL CHALLENGES CALLED. 14 JURORS SWORN TO TRY CASE. COURT'S INSTRUCTION #1. OPENENG STATEMENTS MADE BY PLAINTIFF AND DEFENDANT. PLAINTIFF CALLS WITNESS, SWORN TESTIMONY TAKEN, EXHIBITS OFFERED. COURT ADMONISHES JURY AND IS IN RECESS UNTIL 1/29/2014 @ 9AM 01-29-2014 CTFREE - 77316841 Feb 3 2014 1:44:28:357PM - $ 0.00

JUDGE DAVIS; JURY TRIAL CONTINUES AFTER NIGHT'S RECESS. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. COURT ADMONISHES JURY AND IS IN RECESS UNTIL 1/30/2014 @ 9AM

01-30-2014 CTFREE - 77316957 Feb 3 2014 1:48:28:377PM - $ 0.00

JUDGE DAVIS; JURY TRIAL CONTINUES AFTER NIGHT'S RECESS. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. COURT ADMONISHES JURY AND IS IN RECESS UNTIL 1/31/2014 @ 1:30PM

01-31-2014 CTFREE - 77318429 Feb 3 2014 2:28:24:257PM - $ 0.00

JUDGE DAVIS; JURY TRIAL CONTINUES AFTER NIGHT'S RECESS. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. PLAINTIFF RESTS. DEMURRER GRANTED IN PART OVERRULED IN PART. DEFENDANT CALLS WITNESS, SWORN TESTIMONY HEARD, EXHIBITS OFFERED. COURT ADMONISHES JURY AND IS IN RECESS UNTIL 2/3/2014 @ 9:00AM

02-03-2014 DISPJP 1 Wayne Griffiths Homes, Inc. 77325749 Feb 4 2014 9:38:17:397AM - $ 0.00

JUDGE DAVIS: JURY TRIAL CONTINUES AFTER NIGHT'S RECESS, ALL PARTIES RETURN. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. DEFENDANT RESTS. COURT'S INSTRUCTION TO THE JURY. CLOSING ARGUMENTS HEARD BY PLAINTIFF AND DEFENDANT. JURY RETIRES TO DELIBERATE, RETURNS WITH VERDICT, AND FINDS JUDGMENT FOR PLAINTIFF IN THE AMOUNT OF $475, 000.00. ALTERNATE JUROR IS EXCUSED, JURY DISCHARGED, CLERK DIRECTED TO FILE AND RECORD VERDICT ACCORDINGLY.

Plaintiff's Experts: Jon Reinger, Oklahoma City, Oklahoma, industrial hygienist

Defendant's Experts: Ryan Allen, Oklahoma City, Oklahoma, mold remediation; Jim Hoyt, Oklahoma City, Oklahoma, appraiser; Gary Copeland, Warr Acres, Oklahoma, construction

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