Date: 11-18-2013

Case Style: David Hemsoth v. Allegiance Title & Escrow, LLC

Case Number: CJ-2012-1985

Judge: Rebecca B. Nightingale

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Stephen Scott Mathis

Defendant's Attorney: William T. McKee

Description: David Hemsoth sued Allegiance Title & Escrow, LLC on a negligence theory claiming:

1. David Hemsoth is an individual who resides in Tulsa County, Oklahoma.

2. Upon information and belief Allegiance Title & Fscrow, LLC is a limited liability company doing business in Tulsa County, Oklahoma.

3. The contract which form the basis of this lawsuit were entered into by and between David Hemsoth and Allegiance Title and Escrow, LLC, in Tulsa County, Oklahoma.

4. Jurisdiction and venue are appropriate in this Court.

First Cause of Action - Breach of Aareement

For his first cause of action Plaintiff incorporates paragraphs 1 through 4 herein by reference and further alleges and states:

5. On or about August 1, 2009, David Hemsoth (“Mr. 1-lemsoth”) entered into a Uniform Contract for Sale of Real Estate to purchase real property located at 1314 Terrace Drive, Tulsa, Oklahoma (the “Property”) from Diana J. Behm.

6. Tn or about August, 2009, Mr. Hemsoth entered into an Agreement (“the Agreement”) with Allegiance Title & Escrow, LLC (“Allegiance’) whereby Allegiance agreed to perform a title examination of the Property to ensure Mr. Hemsoth would purchase marketable title to the Property.

7. In the Title Insurance Commitment issued by Allegiance to Mr. Hemsoth, Allegiance stated, “The estate or interest in the land described or referred to in this commitment and covered herein is Fee Simple and title hereto is at the effective date hereof [July 30, 2009 at 7:30 a.m.] vested in: Diana J. Behm.”

8. Mr. Hemsoth relied to his detriment on the affirmative assurances made by Allegiance that he was purchasing marketable title in the Property.

9. Allegiance failed to inform Mr. 1-lemsoth that the existence of a sewer main under the Property and the related easement rendered the title to said Property tmmarketable.

10. On or about October 10, 2010, Mr. Hemsoth listed the house for sale.

11. On or about April 20, 2011, Mr. Hemsoth received an offer to purchase the house.

12. On or about May 24,2011, Mr. Hemsoth was notified by the realtor for the proposed buyers that Mr. Hemsoth did not have marketable title for the Property and the proposed buyers were withdrawing their offer to purchase the Property.

13. Mr. Hemsoth is entitled to judgment against Allegiance, in the principal amount of
$186,000.00, plus interest, accrued and accruing, at the statutory rate, plus attorney fees and costs.

Second Cause of Action - Negligence

For his second cause of action Mr. Hemsoth incorporates paragraphs 1 through 13 herein by reference and further alleges and states:

14. Allegiance had a contractual duty to perform its investigation of the title to the Property in a manner which would identifj any potential problems with the title of said Property and to ensure that, based on documents recorded with the Tulsa County Clerk, the Seller had marketable title to convey to Mr. Hemsoth.

15. Allegiance breached the duty referenced in paragraph 13 above.

16. The breach of the duty referenced in paragraph 13 above caused Mr. Hemsoth to suffer damages in the amount of $186,000.00.

17. As a result of Allegiance’s negligence, Mr. Hemsoth is entitled to judgment against Allegiance, in the principal amount of $186,000.00, plus interest, accrued and accruing, at the statutory rate, plus attorney fees and costs.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Plaintiff, David Hemsoth, respectfully requests this Court grant judgment in his favor and against Defendant, Allegiance Title & Escrow, LLC, in the principal amount of $186,000.00, attorney fees, costs and any other damages the Court deems just and equitable.

Allegiance Title & Escrow, LLC appeared and answered as follows:

1. Defendant admits the allegations contained in paragraph 1 of Plaintiffs Petitfon

2. Defendant admits the allegations contained in paragraph 2 of Plaintiffs Petition

3. Defendant expressly denies the allegations contained in paragraph 3 of Piaintif?’s Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

4. Defendant admits that jurisdiction and venue are proper before this Court.

FIRST CAUSE OF ACTION - BREACH OF AGREEMENT

5. Defendant admits the allegations contained in paragraph 5 of Plaintiffs Petition.

6. Defendant expressly denies the allegations contained in paragraph 6 of Plaintiffs
Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.
Defendant admits the allegations contained in paragraph 6 of Plaintiffs Petition.

7. Defendant admits the allegations contained in paragraph 7 of Plaintiffs Petition.

8. Defendant expressly denies the allegations contained in paragraph 8 of Plaintiff’s
Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

9. Defendant expressly denies the allegations contained in paragraph 8 of Plaintiffs
Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

10. Defendant has insufficient information to either admit or deny the allegations
contained within paragraph 10 of Plaintiff’s Petition and, therefore, denies same, demanding
strict proof thereof by a preponderance of the evidence.

11. Defendant has insufficient information to either admit or deny the allegations contained within paragraph 11 of Plaintiffs Petition and, therefore, denies same, demandingstrict proof thereof by a preponderance of the evidence.

12. Defendant has insufficient information to either admit or deny the allegations contained within paragraph 12 of Plaintiffs Petition and, therefore, denies same, demanding strict proof thereof by a preponderance of the evidence.

13. Defendant expressly denies the allegations contained in paragraph 13 of Plaintiff’s Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

SECOND CAUSE OF ACTION - NEGLIGENCE

14. Defendant expressly denies the allegations contained in paragraph 13 of Plaintiffs Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

15. Defendant expressly denies the allegations contained in paragraph 15 of Plaintiffs
Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

16. Defendant expressly denies the allegations contained in paragraph 16 of Plaintiffs
Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

17. Defendant expressly denies the allegations contained in paragraph 16 of Plaintiffs Petition and, therefore, demands strict proof thereof by a preponderance of the evidence.

AFFIRMATIVE DEFENSES

1, Plaintiffs damages, if any, were causedby the negligence of Plaintiff, and were not the result of any action/inaction of this Defendant.

2. Plaintiffs claims against the Defendant are barred because any damages were caused by persons, entities or things other than Defendant.

3. The acts and omissions of persons, entities or things other than this Defendant, over whom this Defendant has no and had no control, and for whom this Defendant has no liability, were intervening and supervening causes of Plaintiffs alleged injuries, costs and damages, if any.

4. Any damages plaintiff may have suffered, which damages are specifically denied, are divisible and segregable, both in cause and in effect.

5. Plaintiff has failed to state a claim against this Defendant upon which relief may be granted.

6. Plaintiffs claims are barred, in whole or in part, by operation ofthe equitabledocttine of estoppel and laches.

7. Plaintiffs claims are barred, in whole or in part, by operation of the statute of limitations.

8. Plaintiff has failed to join an indispensible party in whose absence a complete andjust adjudication will be impossible.

9. Plaintiff failed to mitigate his damages.

10. Defendant specifically reserves the right to amend this Answer and defenses presented herein through the conclusion of discovery.

WHEREFORE, premises considered, Defendant Allegiance respectibily prays this Court enter judgment in its favor, and against Plaintiff, and that Plaintiff take nothing by way of this action. Defendant further prays that this Court enter an order awarding it its reasonable attorney fees and costs and for any such other further relief as this Court may deem just under the circumstances.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: