Date: 03-06-2013

Case Style: Mountain Top Enterprises, LLC d/b/a Saratoga Roofing & Construction v. Al N. Dowell

Case Number: CJ-2011-4817

Judge: Bill Gtaves

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Tracy W. Robinett and Charles R. Swartz

Defendant's Attorney:

Description: Mountain Top Enterprises, LLC d/b/a Saratoga Roofing & Construction sued Al N. Dowell, Myrietta Dowell and New Century Mortage Corporation on breach of contract theories claiming:

Plaintiff Mountain Top Enterprises, LLC d/b/a Saratoga Roofing & Construction (“Saratoga”), for its Petition against the above-referenced Defendants, states:

1. Saratoga is an Oklahoma entity with its principal place of business in Oklahoma County, Oklahoma.

2. Al N. Dowell, is an individual residing, upon information and belief, in Oklahoma County, Oklahoma.

3. Myrietta Dowell is an individual residing, upon information and belief, in Oklahoma County, Oklahoma.

4. The contract that is the subject of this action was entered into and performed in Oklahoma County, Oklahoma.

5. The real property subject to this action is located in Oklahoma County, Oklahoma, and described as follows: Lot Fourteen (14) in Block Twenty-two (22) of WILLOW BEND SECTION 6, to Oklahoma City, Oklahoma County, Oklahoma, according to the recorded plat thereof a/k/a 8849 NW. l2Pt Street, Oklahoma City, Oklahoma, (the “Property”).

Defendants did not appear or answer.

First Cause of Action - Breach of Contract

For its first cause of action, Saratoga incorporates paragraphs 1 through 5 herein by reference and further states:

6. Saratoga entered into a contract with Al N. Dowell whereby Saratoga agreed to supply labor and materials in connection with a roofing project at the Property (the “Contract”); a copy of the Contract is attached hereto as Exhibit A.

7. Al N. Dowell agreed to remit payment to Saratoga pursuant to the terms of the Contract and invoices submitted in connection with the labor and materials supplied by Saratoga.

8. Al N. Dowell has failed and refused to pay Saratoga the outstanding balance owed for the work it performed in the sum of $11,784.07 and has therefore breached the Contract; a copy of Saratoga’s invoice is attached hereto as Exhibit B.

9. Saratoga should therefore be entitled to judgment inpersonam against Al N. Dowell in the sum of $11,784.07, plus attorney’s fees, costs and interest accrued and accruing from the invoice due date at the statutory rate until paid.

Second Cause of Action - Lien Foreclosure

For its second cause of action, Saratoga incorporates paragraphs 1 through 9 herein by reference and further states:

10. Because Al N. Dowell failed to pay Saratoga the $11,784.07 due under the Contract, Saratoga filed Mechanic’s or Materialmen’s Lien No. 20110418010461870 in the office of the Oklahoma County Clerk against the Property in the sum of$12,284.07 (the “Lien”); a copy of the Lien is attached hereto as Exhibit C.

11. The Lien is valid and enforceable.

12. Al N. Dowell remitted several payments reducing the amount owed from $12,284.07 to $11,784.07.

13. Myrietta Dowell is the record owner of the Property and should be required to appear herein and establish her interest, if any.

14. New Century Mortgage Corporation is a mortgage holder on the Property and should be required to appear herein and establish its interest, if any.

15. Saratoga should therefore be entitled to judgment in rem against the Property in the sum of$ 11,784.07, plus attorney’s fees, costs and interest accrued and accruing from the Lien filing date of April 18, 2011. Third Cause of Action - Violation of Oklahoma Construction Trust Fund Statutes For its third cause of action, Saratoga incorporates paragraphs 1 through 15 herein by reference and further states:

16. Upon information and belief, Al N. Dowell and Myrietta Dowell exercised control over monies which constituted trust ifinds for the payment of Saratoga’s work at the Property.

17. Upon information and belief, Al N. Dowell and/or Myrietta Dowell utilized such monies forpurposes other than the payment of Saratoga’s lien claim; as a result, Al N. Dowell and/or Myrietta Dowell have violated 42 O.S. § § 152, 153 bymisappropriating those finds to the detriment of Saratoga.

18. Saratoga should therefore be entitled to judgment inpersonam against Al N. Dowell and Myrietta Dowell, jointly and severally, in the sum of$1 1,784.07, plus attorney’s fees, costs and punitive damages in excess of $10,000.00. WHEREFORE, Mountain Top Enterprises, LLC d/b/a Saratoga Roofing & Construction respectfUlly requests the Court enter judgment as follows:

(a) inpersonam against Al N, Dowell in the principal sum of$1 1,784.07, with interest thereon at the statutory rate plus attorney’s fees and costs;

(b) in rem against the Property in the sum of $11,784.07 with interest thereon at the statutory rate from the lien filing date of April 18, 2011, plus attorney’s fees and costs; and

(c) in personam against Al N. Dowell and Myrietta Dowell, jointly and severally, on its construction trust fund claim in the principal sum of$1 1,784.07, plus attorney’s fees, costs and punitive damages in excess of $10,000.00.

Outcome: 1. Defendant Al N. Dow11 currently owes Plaintiff Mountain Top Encerpiises, LLC cf/b/a Saratoga Roofing & Construction the principal sum of $1 [.784.07 pursuant to a contract between the parties.

2. Mountain Top Enterpiises, LLC d/b/a Saratoga Roofing & Construction filed Mechanics or Materialmen’s LienNo. 20 L 10418010461870 againstpropety owned by Myriotta DoweL[ located at 8849 N.W. [21 Street, Oklahoma City, Oklahoma, described a follows Lot Fourteen (14) in Block Twerity4wo (22) of WILLOW BENI) SECTION, to Oklahona City, Ot(lahornn Couiay, Oktahoiua, according to the recorded plat thereof; ii7c/a 8849 NW. t21 Street Oklahoma City, Oklahoma,

3, Mountain Top Enterprises, LLC &b/a SarLoga Roofing & Construction’s Mechanic’s or Materiahuen’s Lien is valid mid enforceable.

4.The parties agree that judgment hi personcsm should be entered in favor of Mountain Top Enterprises, UC diblo Saratoga Roofing & Construction against Defendant's Al N. Dowell in the amount of $l1,784.07, pIus costs in tue sum of $286.00, and attorney’s thes in the sum of $1,000.00.

5. The parties agree that judgment in rein should be entered in favor of Mountain ‘Cop Enterprises, LLC d/b/cz Saratoga Roofing & Construction and against the subject property in the amount of$ II ,784.07 plus costs in the sum of $286.00, and attoracy’s fees in the sum ofl 1,000.00.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the CourtthatPIaintiff Mountain Top Enterprises, USC d/hIa Saratoga Roofing& Construction have and recoverjudgeinent in personain against Defendant AL N. Dowell in the principal sum ol’ 511,784.07, costs in the sum of $286.00, and attorney’s fees in the sum of $ I ,000.00.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff Mountain Top Enterprises, USC dibia SaratogaRoofing & Construction have and recovcrjudgcntent in rem against the subject property in the principal sum of S 11,784.07, costs in the sum of $286.00, and attorney’s fees in the stun of S 1,000.00.

Plaintiff's Experts:

Defendant's Experts:

Comments: