Date: 08-15-2013

Case Style: Raymond Brackett v. Cable Motors, Inc. d/b/a Cable Volkwagen

Case Number: CJ-2012-2581

Judge: Patricia G. Parris

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Louis M. Green and Leslie G. Sparks

Defendant's Attorney: Ronald A. Schaulat

Description: Raymond Brackett and Sarah Brackett sued Cable Motors, Inc. d/b/a Cable Volkwagen on an auto negligence theory claiming:

1. That the Defendant, an Oklahoma Corporation, was at the time of the filing of this Petition, a resident of Oklahoma County with its principal place of business in Oklahoma County, and Plaintiffs were residents of Pace, Santa Rosa County, Florida;

2. That the majority of the acts and incidents related hereto, occurred within the County of Oklahoma, Oklahoma;

3. That Defendant Cable Motors, the, is an Oklahoma Corporation; 4. That the Court has jurisdiction over the subject matter and the parties herein;

FIRST CAUSE OF ACTION

In support of their first cause of action, the Plaintiffs incorporate the statements made

above, and further alleges that:

1. During the month of January, 2011, Plaintiffs began experiencing transmission failure in their 2006 Jetta, TDI, 1.9 liter diesel, automatic DSG (“the Bracken’s Volkswagen”), specifically the vehicle would go into “False Neutral”, using Volkswagen manufacturer terminology. The vehicle had approximately 84,000 miles of odometer-recorded driving at that time,

2. Upon mechanic inspection of the BrackeWs Volkswagen, metal was found in the transmission fluid, 11w inspection was performed by Pete Moore Imports in Pensacola, Florida, near where the Bracketts resided at that time due to military transfer. The Service Manager of Pete Moore Imports stated that, “Change of the transmission fluid and filter in February, 2008, definitely could have prevented the situation that Mr. Brackett is in now”.

3. Prior to Plaintiffs’ move to Florida, Raymond Brackeft was stationed at Tinker Air Force Base and during that period of time the Bracketts’ Volkswagen was serviced on several occasions by Cable Volkswagen. On or about February IX, 2008, Sarah Braekett took the Braeketts’ Volkswagen to Cable Volkswagen for a “40,000 mile service” and other repairs. The Volkswagen maintenance bookletlowner’s manual states numerous vehicle components which need to be checked or replaced during a “40,000 mile service” and specifically lists “DSO transmission:

Change transmission fluid and filter”. Cable Volkswagen personnel documented that a 40,000 mile service was performed, however, the transmission filter and oil were not changed during this “40,000 mile service”.

4. Cable Volkswagen held itself out to be capable and having personnel knowledgeable of properly perfonning a “40,000 mile service” on the Bracketts’ Volkswagen. The Bracketts’ relied on Cable Volkswagen’s competency and the “40,000 mile service” provided by Cable Volkswagen. Cable Volkswagen’s failure to change the transmission fluid and filter in the Bracketts’ Volkswagen at the “40,000 mile service” caused substantial failure of the transmission. Cable Volkswagen created an implied warranty that the work it undertook would be of proper workmanship and reasonable fitness for its intended use. Cable Volkswagen breached its implied warranty and said breach has harmed Plaintiff financially.

5. Due to the nature of the auto service, the Bracketts did not and could not discover the transmission service had not been performed until they were informed by the mechanic at Pete Moore Imports in Pensacola, Florida.

SECOND CAUSE OF ACTION

The Plaintiffs reassert all of the allegations and facts heretofore stated and say further:

6. One who repairs a chattel of another is bound to exercise reasonable care not to cause damage to the othe?s property. Cable Volkswagen’s negligence in failing to change the transmission fluid and filter at the “40,000 mile service” of the Bracketts’ Volkswagen caused substantial failure of the vehicle’s transmission. Cable Volkswagen’s negligence has harmed Plaintiffs financially.

THIRD CAUSE OF ACTION

The Plaintiffs reassert all of the allegations and facts heretofore stated and say further:

7. Cable Volkswagen had a duty to inform the Bracketts, and the Bracketts had an underlying right to be correctly informed of the fact that Cable did not change the transmission fluid and filter when Cable performed the “40,000 mile service”. Constructive fraud was committed by Cable Volkswagen based on a negligent misrepresentation, that is, informing the Brackets that a “40,000 mile service” had been performed but failing to inform the Brackets that the change of transmission fluid and filter had not been included. Cable Volkswagen constructive fraud has harmed Plaintiffs financially.

FOURTH CAUSE OF ACTION

The Plaintiffs reassert all of the allegations and facts heretofore stated and say further:

8. Cable Volkswagen has engaged in a practice which is declared unlawful under the Oklahoma Consumer Protection Act, 15 OS. § 753 (A)(5). Cable Volkswagen led the Bracketts to believe that a proper “40,000 mile service” had been performed on the Bracken’s Vo1kswagen Failing to inform the Bracketts that Cable Volkswagen had not provided a change of transmission fluid and filter constituted a false representation as to Cable Volkswagen’s service performance. Such false representation by Cable Volkswagen was made knowingly or with reason to know. Cable Volkswagen’s false representation has harmed Plaintiffs financially.

FIFTH CAUSE OF ACTION

The Plaintiffs reassert all of the allegations and facts heretofore stated and say further:

9. The conduct of the Defendant Cable Volkswagen was intentional, malicious and calculated to, and has caused mental and emotional harm to Plaintiff Raymond Bracken.

10. For such conduct the Defendant Cable Volkswagen should be made to pay punitive damages as a lesson to itself and others that such reprehensible conduct will not be tolerated.

Wherefore, Plaintiffs pray that this Court enter judgment against Defendant in an amount as shown to be appropriate to compensate the Plaintiffs for their damage, which Plaintiffs allege to be in excess of $10,000, for Punitive Damages and for Orders of Restraint, for the intentional misconduct Attorney Fees, Costs, and for such other relief as may on presentation of the evidence appear appropriate.

Defendant appeared and answered as follows:

1. Defendant admits that Defendant Cable Motors, Inc. is an Oklahoma Corporation with its principal place of business in Oklahoma County, Oklahoma. Defendant is without knowledge or information sufficient to admit or deny the remaining unnumbered allegations and conclusions stated, and on that basis denies the same.

PLAINTIFFS’ FIRST CAUSE OF ACTION

Defendant incorporates the responses made above and thither states:

2. Defendant is without knowledge or information sufficient to admit or deny the allegations and conclusions stated and made in ¶ 1 of Plaintiffs’ Petition and on that basis denies the same.

3. Defendant is without knowledge or information sufficient to admit or deny the allegations and conclusions stated and made in ¶ 2 of Plaintiffs’ Petition and on that basis denies the same.

4. Defendant is without knowledge or information sufficient to admit or deny the allegations and conclusions stated and made in ¶ 3 of Plaintiffs’ Petition and on that basis denies the same.

5. Defendant denies the last sentence of ¶ 4 of Plaintiffs’ Petition. Defendant is without knowledge or information sufficient to admit or deny the remaining allegations and conclusion stated and made in ¶ 4 of Plaintiffs’ Petition and on that basis denies the same.

6. Defendant is without knowledge or information sufficient to admit or deny the allegations and conclusions stated and made in ¶ 5 of Plaintiffs’ Petition and on that basis denies the same.

PLAINTIFFS’ SECOND CAUSE OF ACTION

7. Defendant denies the last two sentences of Plaintiffs’ Second Cause of Action in Naintiffs’ Petition. Defendant is without knowledge or information sufficient to admit or deny the remaining allegations and conclusions stated and made in Plaintiffs’ Second Cause of Action in Plaintiffs’ Petition and on that basis denies the same.

PLAINTIFFS’ THIRD CAUSE OF ACTION

8. Defendant denies the last two sentences of Plaintiffs’ Third Cause of Action in Plaintiffs’ Petition. Defendant is without sufficient knowledge or information sufficient to admit or deny the remaining allegations and conclusions stated and made in Plaintiffs’ Third Cause of Action in Naintiffs’ Petition and on that basis denies the same.

PLAINTIFFS’ FOURTH CAUSE OF ACTION

9. Defendant is without knowledge or information sufficient to admit or deny the second sentence of Plaintiffs’ Fourth Cause of Action in Plaintiffs’ Petition and on that basis denies the same. Defendant denies the remaining allegations and conclusions made in Plaintiffs’ Fourth Cause of Action in Plaintiffs’ Petition.

PLAINTIFFS’ FIFTH CAUSE OF ACTION

10. Defendant denies the allegations and conclusions stated and made in Plaintiffs’ Fifth Cause of Action in Plaintiffs’ Petition.

AFFIRMATIVE DEFENSES

1. Plaintiffs’ Petition fails to state a claim upon which relief can be granted against Defendant.

2. Statute of limitations.

3. Estoppel and/or waiver.

4. Laches.

5. Unclean hands.

6. Acquiescence.

7. Assumption of risk.

8. Plaintiffs failed to mitigate their damages, if such damages exist.

9. Any alleged injury and/or damage to Plaintiffs was caused by Plaintiffs’ own actions or inactions and were avoidable by Plaintiffs.

10. None of the alleged action(s) of Defendant are of such character to give rise to exemplary damages.

11. Defendants deny any and all allegations of wrongdoing as stated in the Petition filed herein and will demand strict proof of all allegations in that regard.

12. Defendants reserve the right to assert any and all additional defenses, affirmative defenses, counterclaims, and cross-claims as discovery is still ongoing in this matter.

WHEREFORE, Defendants Cable Motors, Inc., d/b/a Cable Volkswagen respectfully request that this Court enter judgment in favor of Defendants and against Plaintiff, deny all prayers for damages and other relief, and award attorney fees and costs associated with the defense of this litigation to Defendants, as well as any other such relief this Court deems proper.

Outcome: COME NOW the Plaintiffs, Raymond L. Brackett and Sarah Brackett, by and through their counsel of record, and dismiss with prejudice to refihing their fifth Cause of Action for intentional and malicious acts of Defendant calculated to cause mental and emotional harm to Plaintiff Raymond Brackett

Plaintiff's Experts:

Defendant's Experts:

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