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Date: 02-02-2013

Case Style: Premier Roofing and Constructions, LLC v. David Biesiada

Case Number: CJ-2011-6874

Judge: Thomas E. Prince

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: J. Clay Christensen and T.P. Howell

Defendant's Attorney: L. Matthew Dobson and Edward O. Lee for David Biesiada

Murry E. Abowitz for Hanover Insurance Company

Description: Premier Roofing and Constructions, LLC sued David Biesiada, Joi Biesiada and Hanover Insurance Company and Suntrust Mortgage, Inc. on negligence theories claiming:

1. Plaintiff Premier Roofing and Construction LLC (“Premier”) is
Oklahoma limited liability company with its main office in County, State of Oklahoma.

2. Defendant David Biesiada is a resident of Oklahoma County, State Oklahoma.

3. Defendant Joi Biesiada is a resident of Oklahoma County, State Oklahoma.

4. Defendant Hanover Insurance Company is an insurance company with offices and agents throughout Oklahoma and is the insuring company for the subject real property owned by David and Joi Biesiada (the “Biesiadas”).

5. Defendant Suntrust Mortgage Inc. holds certain mortgages on the subJct real property owned by David and Joi Biesiada.

6. The subject real property is located in this county at 4113 NW 145th Oklahoma City, Oklahoma 73134 (the “Property”).

7. The debt which is the subject of this action was made and intended to e repaid in Oklahoma County, State of Oklahoma.

8. This Court therefore has jurisdiction over the parties and the subj ct mailer of this action, and venue is proper.

FIRST CAUSE OF ACTION

(Breach of Contract)

9. On or about June 5, 2010, Premier entered into a contract (the “Contra ‘)
with the Biesiadas to perform repairs on the Property, which involved replacing the r of and the deck and repairing other items.

10. Premier thereafter fully performed its obligations under the Contract.

11. In the course of performing its obligations under the Contract, Premi r provided materials and labor.

12. The Property is insured by Hanover Insurance Company (‘Hanover”) a mortgaged to Suntrust Mortgage Inc (“Suntrust”).

13. Pursuant to the terms of the Contract, the Biesiadas agreed to p Premier Forty-Five Thousand Four Hundred Fifty and 87/100’s Dollars ($45,450.87).

14. Hanover later agreed to remit this amount to the Biesiadas so that th could pay Premier.

15. The Biesiadas represented to Premier and Hanover that the funds fro Hanover would be used to pay Premier for its work on the Property.

16. The Biesiadas have received the $45,450.87 from Hanover, but hae refused to pay Premier as agreed.

17. Premier is entitled to recover the $45,450.87 for its work on the property

WHEREFORE, Plaintiff prays for judgment on its First Cause of Action agai st Defendants David Biesiada and Joi Biesiada, jointly and severally, in the amount of Forty-Five Thousand Four Hundred Fifty and 87/100’s Dollars ($45,450.87), toget er with Plaintiffs’ costs, attorney fees, expenses, prejudgment and post-judgment intere and for such other relief as may be just and proper.

SECOND CAUSE OF ACTION

(Foreclosure)

18. On March 15, 2011, pursuant to Oklahoma law and the Contract betwee Premier and the Biesiadas, Premier filed a Materialman’s Lien Statement in the office of the Oklahoma County Clerk at Book RE 11707, Page 1259, which encumbers t e Property at issue, more particularly described as:
Lot Fifteen (15), LESS AND EXCEPT the East 8 feet, in Block Eight(s), of REMINGTON, SECTION 2, to Oklahoma City, Oklahoma County, Oklahoma, according to the recorded plat thereof.

A true and correct copy of the Lien Statement is attached as Exhibit A.

19. Because Premier has not been paid for the materials and labor it furnish for the improvements to the Property, it is entitled to foreclose its lien.

20. Defendant Suntrust may claim some right, title or interest in and to tlfie Property, and Premier asks that the Court determine the validity and priority of all lijis upon the Property, direct the sale of the Property, and distribute the proceeds in accordance with the lien priorities it determines.

WHEREFORE, Plaintiff prays for judgment in rem against Defendants Da id Biesiada, Joi Biesiada and Suntrust Mortgage Inc., foreclosing Plaintiffs lien, directi g that the lien be declared to be a valid lien on the Property in the amount stated abo e, determining its priority, directing the sale of the subject property with appraisem nt according to Oklahoma law, and distributing the proceeds in accordance with t e priorities established by the Court.

THIRD CAUSE OF ACTION

(Unjust Enrichment)

21. Premier has performed repairs on the Property which have increased t e value of the Property in the amount of Forty-Five Thousand Four Hundred and Fifty a d 87/100’s Dollars ($45,450.87).

22. The increased value of the Property has benefited David Biesiada, oi Biesiada and Suntrust.

23. Premier has not been compensated by David Biesiada, Joi Biesiada r Suntrust for the benefits received by them.

WHEREFORE, Plaintiff prays for judgment in quantum meruit against Suntru t Mortgage Inc. in the amount of Forty-Five Thousand Four Hundred Fifty and 87/10 ‘s Dollars ($45,450.87), together with Plaintiffs’ costs, attorney fees, expense prejudgment and post-judgment interest; and for such other relief as may be just a d proper.

FOURTH CAUSE OF ACTION

(Constructive Trust)

24. The Biesiadas have collected Forty-Five Thousand Four Hundred Fi and 87/100’s Dollars ($45,450.87) from Hanover to pay for repairs to the Property.

25. The Biesiadas have not paid Premier for the repairs it made to t e Property.

26. In such circumstances, the Biesiadas may not in good conscience retEin the beneficial interest in those funds, and equity should convert the Biesiadas i to trustees for the amount stated above.

27. Hanover and Suntrust may have some right, claim or interest in s id funds. However, any such right would be inferior to Plaintiffs rights.

WHEREFORE, Plaintiff prays for judgment on its Fourth Cause of Action agai st
Defendants David Biesiada, Jol Biesiada, Suntrust Mortgage, Inc., and Hanov r
Insurance Company that the amount of Forty-Five Thousand Four Hundred Fifty a d
87/100’s Dollars ($45,450.87) plus prejudgment and post-judgment interest, be deem d
to be held in trust for the benefit of Plaintiff, and subject to disbursement as furth r
ordered by this Court.


Defendants David Biesiada and Joi Biesiada appeared and answered as follows:

1. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in paragraph 1 of Plaintiffs Petition and therefore must deny the same, and fUrther demands strict proof thereof.

2. Defendants admit the allegations contained in paragraph 2 of Plaintiff’s Petition.

3. Defendants admit the allegations contained in paragraph 3 of Plaintiffs Petition.

4. Defendants admit the allegations contained in paragraph 4 of Plaintiff’s Petition to the extent that Hanover Insurance Company has at one time or another insured the Property.

5. Defendants admit the allegations contained in paragraph 5 of Plaintiffs Petition.

6. Defendants admit the allegations contained in paragraph 6 of Plaintiff’s Petition.

7. Defendants deny the allegations contained in paragraph 7 of Plaintiffs Petition.

8. Defendants admit that this Court hasjurisdiction over the parties and venue is proper in Oklahoma County.

9. Defendants admit the allegations contained in paragraph 9 of Plaintiff’s Petition to the extent that Plaintiff, Premier Roofing and Construction, LLC, was hired by Defendants to perform certain repairs on the Property pursuant to a verbal contract.

10. Defendants deny the allegations contained in paragraph 10 of Plaintiffs Petition, and demand strict proof thereof.

11. Defendants admit the allegations contained in paragraph 11 of Plaintiffs Petition to the extent that Plaintiff; Premier Roofing and Construction, LLC, did in fact provide some material and labor, but deny that the materials used and/or labor were those agreed to by the parties and further demand strict proof thereof.

12. Defendants admit the allegations contained in paragraph 12 of Plaintiffs Petition to the extent that the Property was at one time or another insured by Hanover Insurance Company.

13. Defendants deny the allegations contained in paragraph 13 of Plaintiffs Petition and further demand strict proof thereof.

14. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in paragraph 14 of Plaintiffs Petition and therefore must deny the same, and further demands strict proof thereof.

15. Defendants deny the allegations contained in paragraph 15 of Plaintiffs Petition, and demand strict proof thereof

16. Defendants deny the allegations contained in paragraph 16 of Plaintiffs Petition, and demand strict proof thereof

17. Defendants deny the allegations contained in paragraph 17 of Plaintiffs Petition, and demand strict proof thereof

18. Defendants deny the allegations and requests for relief contained in the “WHEREFORE” clause of Plaintiffs First Cause of Action in its Petition and demands strict proof thereof.

19. Defendants admit that Plaintiff, Premier Roofing and Construction, LLC, caused a lien to be filed as alleged in paragraph 18 of Plaintiff’s Petition, but deny the validity and demand strict proof thereof. To the extent that Defendants’ response requires a legal conclusion, no response is required.

20. Defendants deny the allegations contained in paragraph 19 of Plaintiffs Petition, and demand strict proof thereof
To the extent that Defendants’ response requires a legal conclusion, no response is required.

21. Defendants lacks sufficient knowledge or information to admit or deny the allegations contained in paragraph 20 of Plaintiff’s Petition and therefore must deny the same, and further demands strict proof thereof To the extent that Defendants’ response requires a legal conclusion, no response is required.

22. Defendants deny the allegations and requests for relief contained in the “WHEREFORE” clause of Plaintiff’s Second Cause of Action in its Petition and demands strict
proof thereof To the extent that Defendants’ response requires a legal conclusion, no response is
required.

23. Defendants admit that Plaintiff attempted repairs on the Property, but deny the remaining allegations contained in paragraph 21 of Plaintiffs Petition, and demand strict proof thereof.

24. Defendants deny the allegations contained in paragraph 22 of Plaintiff’s Petition, and demand strict proof thereof.

25. Defendants deny the allegations contained in paragraph 23 of Plaintiffs Petition to the extent they address David and Joi Biesiada, but lack sufficient knowledge or information to admit or deny the allegations in regards to Suntrust and therefore they must deny the same and fhrther demand strict proof thereof.

26. Defendants deny the allegations and requests for relief contained in the “WHEREFORE” clause of Plaintiffs Third Cause of Action in its Petition and demands strict proof thereof.

27. Defendants deny the allegations contained in paragraph 24 of Plaintiff’s Petition, and demand strict proof thereof.

28, Defendants deny the allegations contained in paragraph 25 of Plaintiff’s Petition, and demand strict proof thereof.

29. Defendants deny the allegations contained in paragraph 26 of Plaintiff’s Petition, and demand strict proof thereof. To the extent that Defendants’ response requires a legal conclusion, no response is required.

30. Defendants lacks sufficient knowledge or information to admit or deny the
allegations contained in paragraph 27 of Plaintiff’s Petition and therefore must deny the same, and
further demand strict proof thereof. To the extent that Defendants’ response requires a legal conclusion, no response is required.

31. Defendants deny the allegations and requests for relief contained in the “WHEREFORE’ clause of Plaintiffs Fourth Cause of Action in its Petition and demands strict proof thereof. To the extent that Defendants’ response requires a legal conclusion, no response is required.

AFFIRMATIVE DEFENSES

In addition to the factual admissions and denials contained herein, the following represents Defendants’ Affirmative Defenses to the allegations contained in Plaintiffs Petition:

1. Plaintiffs claims are barred by the applicable statue of limitations or repose;

2. Plaintiffs are not the real parties in interest;

3, Plaintiffs claims may be barred and precluded by application of the doctrines of estoppel and waiver;

4. Plaintiffs claims are barred by laches;

5. Plaintiffs claims may be barred by their own comparative negligence, contributory negligence, and/or their own
conduct;

6. Plaintiffs have failed to mitigate any damages;

7. For purposes of avoiding issue preclusion, Defendants further plead the following defenses in the event that further evidence may render them relevant: (1) Failure to state a claim upon which relief can be granted; (2) Lack of capacity of party to sue; (3) accord and satisfaction; (4) Resjudicata; (5) Release; and (6) Payment.

8. Defendants reserve the right to amend their answer and affirmative defenses, and to assert additional cross-claims, counter-claims, or third-party claims as discovery progresses.

WHEREFORE, premises considered, having fully and answered Plaintiffs Petition, Defendants, David and Joi Biesiada, pray that Plaintiff take nothing by way of its Petition and that these Defendants be dismissed from this action together with all costs, attorney fees and other such relief which the Court deems equitable and just.

COUNTER-CLAIMS
AND THIRD PARTY PETITION

COME NOW the named Defendants, David and Joi Biesiada, and by way of their claims and demands against the Plaintiffs, Premier Roofing and Construction, L.L.C. (“Premier”) and Brian Webb, individually, allege and state the following matters:

PREDICATE FACTS:

COME NOW the named Defendants and Third Parties Plaintiff, David and Joi Biesiada, and allege the following facts which are common to all claims set forth herein below:

1. That your Defendants are residents of Oklahoma County, State of Oklahoma.

2. That your Defendants own certain improved real property located within the City of Oklahoma City, Oklahoma and described as Lot Fifteen (15), less and except the East eight (8) feet in Block Eight (8) of REMINGTON, SECTION TWO Addition to The City of Oklahoma City, Oklahoma County, State of Oklahoma a/Ic/a 4113 N.W. 145th Street, Oklahoma City, Oklahoma.

3. That the above described real property is the home of your Defendants in which they have resided since approximately February of 2004.

4. That in the Spring of 2010 the improvements at the above described real property were damaged as a result of storms and in particular, the roof components of the property were damaged.

5. That the Plaintiff herein through its owner and the Third Party Defendant herein, Brian Webb, held itself out to be experts in the repair of the types of damages done to the
Defendants’ property and therefore, were retained for the purpose of repairing those damages that had occurred. That in light of the representations made concerning the Plaintiff’s expertise the Plaintiff was also hired to construct additional components to the Defendants’ property. That therefore, and or about June 5th, 2010 a contract was entered into which had as its purpose the repair of the damage to the Defendants’ home and construction of certain components including, though not limited to, a concrete patio area.

6. That the price which your Defendants agreed to pay to the Plaintiff for the repairs and construction to be performed was predicated in large part by the estimates that were prepared by the Plaintiff’s owner, Brian Webb.

7. That on or about December 1, 2010 work at the Defendants’ home was substantially completed and the Plaintiff through its owner, Brian Webb, filed a notice of completion of improvements and repairs with the Defendants’ insurer, dated December 9, 2010. A true copy of this certificate of completion is attached to this Counter-Claim as Exhibit I.

8. That subsequently, your Defendants determined that the work performed by the
Plaintiff was grossly substandard in material respects. By way of illustration, the concrete patio structure was ineptly constructed in such a way that rain water and moisture drained from the back of the patio towards the main structure in such fashion as to subject the main structure to damage including, risk of flooding and mold.

9 That your Defendants made demand upon the Plaintiff to remedy this defect and, subsequent to numerous complaints and demands being made, the Plaintiff entered upon the Defendants’ property on or about May 25th, 2011 for the sole and limited purpose of removing the concrete components of the defectively constructed patio surface. That no other work was performed.

10. That by the date that the Plaintiff was required to come onto the Defendants’ property to remove the defectively constructed patio, these Defendants had become suspicious of the costs included inthe Plaintiffs’ estimate of repairs which were subsequently incorporated into the contract between the Plaintiff and the Defendants. Simply by way of illustration, it appears that the Plaintiffs representative, Brian Webb, who holds himself out to be an expert in roofing and roofing repair identified the “slope” of the roof on the improvements to be at a grade of 9.5 whereas in actuality, the grade of this roof is a mere 7.5. That such error would have resulted and did result in an inflation of the estimated costs of repairs equivalent to in excess of Two Thousand & No/100’s Dollars; that it further subsequently appeared that a number of other defects and omissions had occurred including, without limitation, failing to replace pipes and vent caps although charging for such labor; failing to flash and caulk certain components of the roof although charging for such labor.

11. That by reason of the defects in construction and the aforementioned instances of fraud, misrepresentation and omissions, your Defendants advised the Plaintiff and the Third Party Defendant that they would not allow any further work to be completed on their property but would agree to pay the reasonable value of the services, labor and material that had been properly performed.

12. That the Plaintiff and the Third Party Defendant wholly refused and insisted upon payment of the entire contract price notwithstanding that the price was based upon fraudulent misstatements concerning the quality/quantity of materials or labor required or that the work had been omitted or had been so poorly performed as to require complete removal. That thereafter, the Plaintiff and the Third Party Defendant caused a false and fraudulent lien affidavit to be filed against these Defendants’ property which lien affidavit falsely claimed the entire contract amount to be due and further falsely proclaimed the date of work last performed to be the date that the defective concrete patio had been removed.

13. That as a result of such false lien filing your Plaintiffs were unable to quali for refinancing oftheir residence at a rate at least two hundred basis points less than their current mortgage rate.

14. That the Plaintiff is an Oklahoma limited liability company. That the Plaintiff’s sole owner and controlling party is believed to be the Third Party Defendant, Brian Webb;

15. That your Defendants would allege and state that the Third Party Defendant, Brian Webb, does cause the Plaintiff to be operated as an independent entity and among other things commingles company monies with his personal monies; causes the Plaintiff to be substantially under-capitalized such that it would be unable to respond to a judgment in favor of a legitimate creditor if one would be granted and in other respects treats the Plaintiff as an alter ego.

COUNT I

BREACH OF CONTRACT/BREACH OF WARRANTY

COME NOW your Defendants and Third Parties Plaintiff, David and Joi Biesiada, and by way of their first claim and demand against the named Plaintiff, Premier Roofing and Construction, L.L.C. and Brian Webb, individually, allege and state the following:

16. That each and every allegation and averment above set forth is incorporated herein as if fully written forth.

17. That inherent in each and every contract for construction of repairs and
improvements is an implied warranty that the work will be perfornied in a good and workmanlike fashion and that the contract will be performed in good faith.

18. That by reason of the provision of sub-standard materials, labor and supplies as above set forth the Plaintiff has breached its contract with the Defendants.

19. That by reason of the provision of sub-standard materials, labor and supplies as
above set forth, the Plaintiff has breached warranties of workmanlike performance and good faith performance.

20. That your Defendants have suffered damages as a result thereof including, without limiting the generality of the foregoing, the necessity ofprocuring alternate services to remedy, repair and replace defective workmanship and materials and to construct improvements required by the original contract which were never properly constructed.

21. That your Defendants’ damages exceed the sum of Ten Thousand & No/I 00’s Dollars ($10,000.00).

WHEREFORE, your Defendants pray the Court enterjudgment against the named Plaintiff, Premier Roofing and Construction, L.L.C. and Third Party Defendant, Brian Webb, individually, jointly and severally, for and in the amount of such sums in excess of Ten Thousand & No/l 00’s Dollars as may be appropriate the circumstances considered and grant such other and farther relief as may be appropriate including, without limitation, an award of attorney’s fees and court costs.

COUNT II

FRAUDULENT INDUCEMENT/RESCISSION

COME NOW the Defendants and Third Parties Plaintiff, David and Joi Biesiada, and by way of their second claim and demand against the named Plaintiff, Premier Roofing and Construction, L.L.C. and the Third Party Defendant, Brian Webb, individually, allege and state the following matters:

22. That each and every allegation and averment above set forth are restated herein as if
fully written forth.

23. That your Defendants were induced to enter into the contract for repairs and
improvements and to agree to the price charged therein by reason of materially false misrepresentations which were made by the Plaintiff and the Third Party Defendant which misrepresentations included, without limitation, representations concerning the amount of materials needed for completion which were based upon knowingly false estimates and by false misrepresentations concerning the Plaintiffs expertise and abilities.

24. That your Defendants relied upon such false mis-representations and were induced to enter in to the contract by reason thereof.

25. That your Defendants have been damaged by reason of such false mis-representations as is set forth herein above in amounts in excess of the sum of Ten Thousand & No/100s Dollars
($10,000.00).

26. That by reason of the false, intentional and willful nature of the conduct of the
Plaintiff and Third Party Defendant, Brian Webb, your Defendants are entitled to an award of punitive damages in an amount at least equal to the sum of all actual damages awarded.

27. That in the alternative, your Plaintiffs are entitled to an equitable decree of rescission of the contractual agreements fraudulently obtained.

WHEREFORE, your Defendants prayjudgment against the named Plaintiff, Premier Roofing and Construction, L.L.C. and Third Party Defendant, Brian Webb, individually,jointly and severally, for and in such sums in excess of Ten Thousand & No/lOO’s Dollars ($10,000.00) as may be appropriate the circumstances considered with an equivalent award ofpunitive damages to deter such conduct in the future. Alternatively, your Defendants pray the court enter an equitable decree of rescission and for such other and further relief as may be appropriate the circumstances considered.

COUNT III

SLANDER OF TITLE/INJUNCTIVE RELIEF

COME NOW your Defendants and Third Parties Plaintiff, David and Joi Biesiada, and by way of their third claim for relief against the named Plaintiff, Premier Roofing and Construction, L.LC. and the Third Party Defendant, Brian Webb, individually, allege and state the following:

28. That each and every allegation and averment above contained are restated herein as if fhlly written forth.

29. That as set forth above, the Plaintiff at the instance and behest of the Third Party Defendant, Brian Webb, did cause to be filed a false and fraudulent lien affidavit against the real property and improvements above described which is the home of these Defendants.

30. That the said lien affidavit, a copy of which is attached hereto as Exhibit 2, is false and fraudulent in at least two respects: First, it asserts a claim for more than is owed upon even the amount of labor and services which were provided; Second, it assets that work was last performed on a date which is known to be false and was several months subsequent to the completion of the last task for which the Plaintiff was retained.

31. That the alleged date of work last performed was so falsely stated in order to allow Plaintiff the appearance of
properly complying with the statutes governing the perfection of mechanic’s and materialman’s lien statements in Oklahoma and the Plaintiff and Third Party Defendant, Brian Webb, were aware that such statement was false and fraudulent when made.

32. That the filing of a knowingly false lien affidavit in Oklahoma is a felony pursuant to the provisions of Title 42 O.S. 2011 §142.4; that the filing of a knowingly false lien affidavit by the Plaintiff and Third Party Defendant, Brian Webb, has slandered title to these Defendants’ real property and improvements.

33. That these Defendants are, as alleged, the owners of the real property and improvements above described; that the statements of the amounts owed and the date of work last performed in the lien affidavit are false and were knowingly false when published by recordation in the Official Records of the Oklahoma County Clerk; that the publication of this false lien affidavit was done maliciously and with the specific intent to harm these Defendants and to preclude their quiet and peaceflil enjoyment of their property; that as alleged above, your Defendants have been damaged by reason of such false and malicious publication by the loss of the opportunity to refinance the mortgage loan secured by their property at rates drastically lower than those currently being applied to the indebtedness outstanding thereon.

34. That notwithstanding the right of these Defendants to seek recovery in money damages for the slanderous publication of the false lien affidavit, the maintenance of this palpably false lien affidavit results in continuing harm to your Defendants in as much as it creates a continuing cloud upon their title to the real property; precludes their free and unfettered use and enjoyment of it and continues to prevent their ability to re-finance their mortgage loan.

35. That there is no adequate remedy at law which will recti& the continuing and deleterious impact of the publication of this false lien affidavit. That the only proper relief is an order enjoining the immediate removal of the lien affidavit.

36. That given the certainty of Oklahoma law and the palpably false nature of the lien affidavit, the right çf these Defendants to the injunctive relief herein sought is clear.
WHEREFORE, your Defendants praythe Court set an immediate hearing; that noticethereof be provided to the named Plaintiff, Premier Roofing and Construction, L,L.C. and to its owner and controlling officer, Brian Webb, individually, and that upon receipt of the evidence and testimony
to be there adduced, this Court issue an Order and Decree enjoining the immediate release and removal of the aforementioned false and fraudulent lien affidavit without further necessity of delay and without necessity for a final judgment upon the other claims asserted in this case by Plaintiff and these Defendants. Defendants further pray that upon the conclusion of such hearing, that this Court provide and decree such other and further relief as the testimony and evidence there provided shall warrant including an award of fees and expenses incurred in the presentation thereof.

COUNT IV

VIOLATION OF HOME REPAIR FRAUD ACT

COME NOW your Defendants and Third Parties Plaintiff; David and Joi Biesiada, and by way of their third claim for relief against the named Plaintiff, Premier Roofing and Construction, L.L.C. and its owner and controlling person, Brian Webb, individually, allege and state the following:

37. That each and every allegation and averment set forth herein above are restated herein as if fully written forth.

38. The conduct complained of occurred in furtherance of the business engaged in by the named Plaintiff, Premier Roofing and Construction, L.L.C. and Third Party Defendant, Brian Webb, individually.

39. That these unlawful practices by the Plaintiff and Third Party Defendant, Brian Webb, have caused damages to these Defendants as set forth herein above.

40. That the submission of a false estimate for purposes of inflating the costs of materials necessary to complete repairs at your Defendants’ real property as well as the publication of knowingly false lien affidavit seeking to compel the payment of monies not earned by performance and falsely stating the date of work last performed violate the provisions of Title 15 O.S. 2011 §753
including, without limitation, subsection (20) thereof.

41. A violation of any provision of Oklahoma’s Consumer Protection Act in the course of performing repairs to a consumer’s home constitutes a violation of the Oklahoma Home Repair Fraud Act,

42. Therefore, these Defendants are entitled to recover damages of and from Plaintiff and Third Party Defendant, Brian Webb, for violations of Oklahoma’s Home Repair Fraud Act.

WHEREFORE, in addition to recovery of actual damages as alleged herein above, your Defendants seek imposition of those civil penalties and damages specifically authorized by Title 15 O.S. 2011 §761.1 including, without limitation, all reasonable fees and court costs incurred in the prosecution hereof,

COUNT V

VIOLATION OF OKLAHOMA’S CONSUMER PROTECTION ACT

COME NOW your Defendants and Third Parties Plaintiff, David and Joi Biesiada, and for their fifth claim and demand against the named Plaintiff, Premier Roofing and Construction, L.L.C. and Third Party Defendant, Brian Webb, individually, allege and state the following:

43. That each and every allegation and averment set forth herein above are restated herein as if hilly written forth.

44. That the submission of a false estimate for purposes ofinflating the costs of materials necessary to complete repairs at your Defendants real property as well as the publication of knowingly false lien affidavit seeking to compel the payment of monies not earned by performance and falsely stating the date of work last performed violate the provisions of Title 15 O.S. 2011 §753 including, without limitation, subsection (20) thereof

45. That these acts were undertaken by the Plaintiff and Third Party Defendant,
Brian Webb, in the course of and in furtherance of their business enterprise.

46. That as alleged herein above, your Defendants have been damaged specifically by reason of such wrongful conduct in violation of Oklahoma’s Consumer Protection Act.

47. Therefore, these Defendants are entitled to recover damages of and from Plaintiff and Third Party Defendant, Brian Webb, for violations of Oklahoma’s Consumer Protection Act.

WHEREFORE, in addition to recovery of actual damages as alleged herein above, your Defendants seek imposition of those civil penalties and damages specifically authorized by Title 15 O.S. 2011 §761.1 including, without limitation, all reasonable fees and court costs incurred in the prosecution hereof.



Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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