Date: 10-03-2014

Case Style: Jimmy H. Campbell and Janice K. Campbell v. Concept Builders, Inc.

Case Number: CJ-2011-2079

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Jon Neff

Defendant's Attorney: Cori Powell and Tim Rogers

Description: Tulsa, OK - Jimmy H. Campbell and Janice K. Campbell sued Concept Builders, Inc. on breach of contract theories.

On or about March 17, 2007, Plaintiffs and Concept executed a Contract oT.a1e of Real Estate (“Contract”) for the purchase of a residence located at 1410 N. Old Noah Piace, Sand Springs, OK (“Property”). See Ex. “A”, Contract.
2. Tinder the Contract, Concept was to perform certain work to a retaining wall on the Property. Sec Ex, “A”, Contract, Section 21.
3. On or about April 3,2007, Plaintiffs and Concept executed a Home Builder’s One Year Limited Warranty Agreement (“Express Warranty”) for the Property. See Ex. “B”, Express Warranty. The Express Warranty is valid and binding upon the parties. See Ex. “C”, February
14, 2014 OK COCA Opinion, 12 & 13 (finding Plaintiffs execution of the Limited Warranty
Agreement acknowledgement demonstrates the parties’ intent to be bound by the terms of the
Express Warranty).
4. Section 2 of the Express Warranty titled “Disclaimer of Other Warranties”, states in big bold letters:
BUILDER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF
HABITABILITY. FURTHER, THIS WARRANTY DOES NOT COVER
CONSEQUENTIAL OR INCIDENTAL DAMAGES.
See Ex. “B”, Express Warranty.
5. On or about April 27, 2007, Concept conveyed the Property to Plaintiffs. See Ex. “D”, General Warranty Deed; Ex. “E”, Settlement Statement.
6. On or about March 31, 2008, Plaintiffs emailed Concept outlining issues with the back porch slab, drainage with the yard, retaining wall and driveway slab for which they requested repairs. See Ex. “F”, March 31, 2008 Email.
7. On or about October 1, 2008, Plaintiffs obtained a report from Herndon Engineering, Inc. (“Herndon Report”). The Hemdon Report alleges the “[retaining] wall is unstable,”“[retaining] wall did not meet the minimum standards or local building codes” and recommends rebuilding the retaining wall, removing and repairing the patio, and site drainage improvements. See Ex. “G”, Flerndon Report.
8. On or about April 12, 2010, Concept offered to replace the retaining wall and perform warranty repairs to the patio and driveway on the Property, or in the alternative, pay Plaintiffs for the reasonable costs of the replacement of the retaining wall and repairs as provided in the Express Warranty. See Ex. “H”, April 12, 2010 Letter from Lawrence Taylor to Jon Neff. Plaintiffs refused Concept’s proposal for addressing the alleged warranty items.
9. On April 21, 2011, Plaintiffs filed their Petition against Concept alleging breach of express warranties, breach of implied warranties, gross negligence and intentional or negligent representation, See Ex. “I”, Petition.
0. In their breach of implied warranties cause of action, Plaintiffs allege Concept “breached the implied warranties of fitness and habitability” and “breached the implied warranty that the improvements to the property would be built in a good and workmanlike manner and free from material defects.” See Ex. “I”, Petition.
11. In their gross negligence cause of action, Plaintiffs allege Concept “negligently failed to conform to the applicable standard of care in the construction of the earth work, retaining walls, foundation of the home and other aspects of the construction which resulted in the major defects in the improvement to the property.” See Ex. “I”, Petition.
12, In their intentional or negligent misrepresentation, allege Concept “intentionally or negligently misrepresented facts to the [Plaintiffsl through affirmative statements or omissions, including misrepresenting that the property and all improvements to the property met all applicable building codes and that Concept would complete further improvements to the property in a good and workmanlike manner and in accordance with all applicable building codes See Ex, “I”, Petition.
13. In accordance with the February 14, 2014, Court of Civil Appeals Opinion, Plaintiffs’ cause of action for breach of express warranties is subject to arbitration pursuant to the terms of the Express Warranty. See Ex. “C”, February 14, 2014 OK COCA Opinion, ¶ 15.

06-24-2014 CTFREE - 90476224 Jun 24 2014 4:46:35:997PM - $ 0.00
NIGHTINGALE, REBECCA: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS GRANTED. PLAINTIFFS' GROSS NEGLIGENCE AND INTENTIONAL OR NEGLIGENT REPRESENTATION CAUSE OF ACTION ARE BARRED BY THE STATUTE OF LIMITATIONS. PLAINTIFFS' WARRANTY CLAIMS ARE SUBJECT TO THE AGREEMENT TO ARBITRATE WARRANTY CLAIMS AND THEREFORE DISMISSED. WRITTEN ORDER TO BE CIRCULATED AND SUBMITTED BY DEFENDANT. THE BREACH OF CONTRACT CLAIM WILL PROCEED UNDER THE CURRENT SCHEDULING ORDER. NOTICE TO CORI POWELL, TIMOTHY ROGERS, AND JONATHAN NEFF.

Outcome: 10-03-2014 DISPCVDMWP 1 CONCEPT BUILDERS INC 91521009 Oct 3 2014 3:59:16:280PM - $ 0.00
DISMISSAL WITH PREJUDICE
10-03-2014 DISPCVDMWP 2 CONCEPT BUILDERS INC 91521010 Oct 3 2014 3:59:16:430PM - $ 0.00
DISMISSAL WITH PREJUDICE

Plaintiff's Experts:

Defendant's Experts:

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