Date: 03-22-2013

Case Style: Tulsa Shoe Rebuilders, LLC v. Tulsa Parking Authority

Case Number: CJ-2012-933

Judge: Linda G. Morrissey

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Keith Overton McArtor

Defendant's Attorney: Keith P. Connell for Phoenix Rising, Inc. and Subway Real Estate Corporation

Description: Tulsa Shoe Rebuilders, LLC sued the Tulsa Parking Authority; American Auto Parks, LLC; Phoenix Rising, Inc. and Subway Real Estate Corporation on negligence theories claiming:

1. Plaintiff is an individual doing business in Tulsa County, Oklahoma.

2. Defendant Tulsa Parking Authority (hereinafter TPA) is a public authority authorized by Oklahoma statutes. American Auto Parks, L.L.C., dba American Parking is the company hired by TPA to manage its property.

3. Phoenix Rising Inc. is an Oklahoma corporation doing business in the State of Oklahoma.

4. Defendant Subway Real Estate Corporation is a for profit business corporation doing business in the State of Oklahoma.

GENERAL AVERRMENTS

5. Paragraphs I through 4 are incorporated by referenee.

6. TPA owns the property on the Southeast corner of Fourth and Boulder in Tulsa, Oklahoma. The property is primanly a parking garage but there are businesses on the first floor
of which the Plaintiff and the co-defendants are tenants. American Parking, Inc. manages said parking garage and the leasehold estates therein.

7. The Plaintiff entered into a lease contract with TPA on November 1, 2007 to rent the premises at 6th West Fourth Street in Tulsa, Oklahoma. Since that time the Plaintiff has been a holdover tenant of TPA pursuant to the lease contract which is attached as Exhibit “A” and incorporated herein.

8. The Defendants Subway Real Estate Corporation and Phoenix Rising Inc., a sandwich franchisor and franchisee, respectively, equally are also tenants of TPA at 4 West Fourth Street in Tulsa, Oklahoma, next door to the Plaintiffs business.

9. Defendant Subways’ ice and soda machines are serviced by a sanitary sewer drain that when clogged overflows into the Plaintiffs property causing damage. This has happened on three different occasions, August 2008, November 27, 2010 and again on August 15, 2011. Subway compensated the Plaintiff for the first event in August 2008. However, Subway has disclaimed any liability for damages for the last two events, has failed to assume responsibility for the problem, and has reffised to acknowledge the Plaintiffs demands for compensation. Plaintiff incurred damages in the amount of$17,629.67 for the event that occurred on November 27, 2010. The estimated repair for the damages that occurred on August 15, 2011 amounts to
$5,004.00. In addition, this amount of money does not represent the time and thus money that the Plaintiff has lost due to having to close shop and clean up the damage.

10. Defendant Tulsa Parking Authority has failed to fulfill its obligation to the Plaintiff found in article 20 of the lease (Exhibit “A”) to assure the Plaintiff of his right of quiet enjoyment of the leasehold interest, Likewise, American Auto Parks, L.L.C. dba American Parking has failed to require Subway to fix and/or move the offending line; in addition, American Parking consistently failed to inform TPA of the said problem and has unduly delayed any resolution of the problem.

11. Furthermore, Defendants Subway are in breach of their lease with the TPA, of which the Plaintiff is a third-party beneficiary namely, “tenants shall keep the leased premises and all partitions, doors, fixtures, equipment and appurtenances therefore in good order, condition and repair.”

CLAIM I - TRESPASS

12. Paragraphs 1-4 and 5-11 are incorporated by reference.

13. Defendant Subway Real Estate Corporation and Phoenix Rising Inc. willfully and without authorization entered Plaintiffs’ property by means of its clogged sanitary sewer drain line and, in so doing, interfered with Plaintiffs’ right to exclusive possession of property.

14. Plaintiff is entitled to money damages as a result of Defendant’s trespass on his property.

CLAIM II- MAINTENACE OF A NUISANCE

15. Paragraphs 1-4, 5-11, and 12-14 are incorporated by reference.

16. The Defendant Subway Real Estate Corporation and Phoenix Rising Inc.’s failure to properly maintain its sanitary sewer line has created a nuisance that continues to interfere with Plaintiffs’ free use and comfortable enjoyment of his property.

17. Plaintiff is entitled to money damages as a result of said nuisance.
CLAIM III - NEGLIGENCE

18. Paragraphs 1-4, 5-11, 12-14, and 15-17 are incorporated by reference.

19. Defendant’s Subway Real Estate Corporation and Phoenix Rising Inc.’s use of
Plaintiffs lease hold estate as a dumping ground for its water is in total disregard of the
Plaintiffs property rights as well as evidencing the Defendant’s negligence. American Auto
Parks, L.L.C. dba American Parking and Tulsa Parking Authority are also negligent in failing to
require Subway and Phoenix Rising to repair the problem that has led to the flooding of
Plaintiffs leasehold.

20. Plaintiff is entitled to actual and punitive damages as a result of Defendant’s negligence.

CLAIM IV - BREACH OF CONTRACT

21. Paragraphs 1-4, 5-11, 12-14, 15-17, and 18-20 are incorporated by reference.

22. Defendants Subway Real Estate Corporation and Phoenix Rising Inc. have breached its contract to TPA of which the Plaintiff is a third-party beneficiary namely, that “tenant shall keep the leased premises and all partitions, doors, fixtures, equipment, and appurtenances therefore in good order, condition, and repair”.

23. Plaintiff is entitled to damages because Defendant Subway Real Estate Corp.’s breach of its contract to Tulsa Parking Authority.

CLAIM V - BREACH OF CONTRACT

24. Paragraphs 1-4, 5-11, 12-14, 15-17, 18-20, and 21-23 are incorporated by reference.

25. TPA is in breach of Article 22 of the lease with the Plaintiff that assures the Plaintiff the right of quiet enjoyment of his leasehold interest because TPA failed to enforce the lease against Defendant Subway Real Estate Corporation and Phoenix Rising Inc. in favor of the Plaintiff.

26. Plaintiff is entitled to money damages caused by TPA’s breach of its contract with Plaintiff

CLAIM VI- NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

27. Paragraphs 1-4, 5-11, 12-14, 15-17, 18-20, 21-23, and 24-26 are incorporated by reference.

28. Plaintiff has suffered emotional distress and physical injury as a result of the Defendants’ negligent disregard in failing to maintain its leased premises in good order, condition and repair and for failing to enable Plaintiff to enjoy his right to quiet enjoyment under the lease. Said distress and injury are the reasonable anticipated results of all the Defendants actions.

29. Plaintiff is entitled to money damages from all Defendants for his emotional
distress and physical injury.

CLAIM VII- PERMANENT INJUNCTION

30. Paragraphs 1-4, 5-11, 12-14, 15-17, 18-20, 21-23, 24-26 and 27-29 are incorporated by reference.

31. The offending drain has not been repaired or retrofitted to assure that no further backing up and leaking onto the Plaintiff’s leasehold estate will occur.

32. Plaintiff prays for a permanent injunction enjoining the Defendants Subway from further use of said drain unless and until the same has been repaired, retrofitted or otherwise removed.

CLAIM VI1I-NEGLIGENCE PER SE

33. Paragraphs 1-4, 5-11, 12-14, 15-17, 18-20, 21-23, 24-26, 27-29 and 30-32 are incorporated by reference.

34. The City of Tulsa Ordinances, Title 24, Section 100 defines a public nuisance as “the unlawifilly doing an act or omitting to perform a duty, which act or omission... annoys, injures or endangers the safety, health, comfort or response of them.”

35. The City of Tulsa Ordinance, Title 24 B. states that an industrial waste is hereby declared a health nuisance affecting public health that has been dumped, thrown, buried, spill or abandoned, unless permits have been obtained.

36. Section 101 A. 1 .of the City of Tulsa ordinance states that industrial wastes shall mean all liquid and water borne solid liquid or gaseous waters, resulting from industrial manufacturing, food processing operation, et al.

37. Defendants Subway have operated a nuisance in maintaining a drain line that floods into the Plaintiffs leasehold estate causing damage. The damages incurred by the Plaintiff are the direct result of the Defendants violation of an ordinance and thus are negligent per se.

WHEREFORE, Plaintiff demands judgment against all Defendants for a sum in excess of $75,000.00, punitive damages, attorney fees and costs, and for all other relief whether in law or in equity to which he may be entitled.

Defendant Subway Real Estate Corporation appeared and answered as follows:

1. Defendant generally and specificall.y denies each and every material allegation contained in the Petition filed on behalf of the Plaintiff except for those wbich may be specifically admitted hereinafter.

2. Defendant admits th© ailegations contained in Paragraphs 1, 2, 3 and 4 of the Plaintiffs Petition.

General Averments.

3. Defendant restates and incorporates by reference Paragraphs I througb 4 in response to Paragraph 5 of Plaintiffs Petition.

4. Defendant admits the allegations contained in Paragraph 6 of Plaintiffs Petition.

5. Defendant is without sufficient information, knowledge or belief to either admit or deny the allegations contained in Paragraph 7 of the Plaintiffs Petition; therefore, Defendant denies the same and demands strict proof thereof.

6. Defendant admits the allegations contained in Paragraph S of Plaintiff’s Petition.

7. Defendant admits that its ice and soda macblues are serviced by a sewer drain that when clogged overflows into the Plaintiff’s property causing damage, as stated in Paragraph 9 of maintiws Petition, Defendant, however, denies responsibility or liability for a common drain.

8. Defendant denies that the its ice and soda machine drain was clogged and caused damage in August of 2008, as stated in Paragraph 9 of Plaintiffs Petition, and demands strict proof thereof

9. Defendant is without sufficient infomiation, knowledge or belief to either admit or deny the remaining allegations of damages and costs contained in Paragraph 9 of the Plaintiji’s Petition; therefore, Defendant denies the same and demands strict proof thereof

10. Defendant is without sufficient information, knowledge or belief to either admit or deny the allegations contained in Paragraph 10 of the Plaintiff’s Petition; therefore, Defendant denies the same and demands strict proof thereof.

11. Defendant denies the allegations contained in Paragraph 11 of Plaintiff’s Petition, and demands strict proof thereof

Claim I - Trespass

12. Defendant restates and incorporates Paragraphs 1 through 11 in response to Paragraph 12 in Plaintiff’s Petition.

13. Defendant speci6cally denies the allegations contained in Paragraphs 13 and 14 of Plaintiff’s Petition, and demands strict proof thereof.

Claim U - Maintenance of a Nuisance

14. Defendant restates and incorporates Paragraphs 1 tough 13 in response to Paragniph 15 in Plaintiff’s Petition.

15. Defendant spccificafly denies the allegations contained in Paragraphs 16 and 17 of Plaintiffs Petition, and demands strict proof thereof.

Claim III - Negligence

16. Defendant restates and incorporates Paragraphs 1 through 15 in response to Paragraph 18 in Plaintiffs Petition.

17. Defendant specifically denies the allegations contained in Paragraphs 19 and 20 of Plajz)tjfi’s Petition, and demands strict proof thereof.

Claim IV - Breach of Contract

18. Defendant restates and incorporates Paragraphs 1 through 17 in response to Paragraph 21 of Plaintiff’s Petition.

19. Defendant specifically denIes the allegations contained in Paragraphs 22 and 23 of Plaintifi’s Petition, and demands strict proof thereof

Claim V - Breach of Contract

20. Defendant restates and incorporates Paragraphs 1 through 19 in response to Paragnqth 24 in Plaintiffs Petition.

21. Defendant is without sufficient infonnation, knowledge or belief to either admit or deny the allegations contained in Paragraphs 25 and 26 of the Plaintiff’s Petition; therefore, Defendant denies the same and demands stsict proof thereof

Claim VI - Negligence Infliction of Emotional Distress

22. Defendant restates and incorporates Paragraphs 1 through 21 in response to Paragraph 27 of Plaintiff’s Petition.

23. Defendant specifically denies the allegations contained in Paragraphs 28 and 29 of Plaintiff’s Petition, and demands strict proof thereof.

Claim Yll - Permanent Injunction

24 Defendant restates and incorporates Paragraphs 1 through 23 in response to Paragraph 30.

25. Defendant admits that the chain had not been retrofitted but does not have suflicient information, knowledge or belief to admit or deny the remainder of Paragraph 31, and therefore, denies the same and demands stñct proof thereof.

26. Defendant objects to a permanent injunction and denies Paragraph 32 of Plaintiil’s Petition, and demands strict proof thereof.

29. Defendant specicaJ1y denies Paragraph 37 of Plaintiff’s Petition, end demands strict proof thereof.

Afflnuative Defenses

1. Defendant denies causation and the nature and extent of injuries and damages.

2. The alleged damage was proximately caused or contributed to by the negligence of third parties.

3. The negligence of the Plaintiff was more than 50% the cause of this accident thereby preventing Plaintiff’s recovery herein against this Defendant A]ternatively, Defendant alleges that the negligence of the Plaintiff was a cause of this damage thereby reducing Plaintiff’s recovery herein against this Defendant

4. As to Defendant; the damage was unavoidable and occurred without negligence on its part

5. The accident was proximately caused or conthbuted to by the negligence of third parties over whom Defendant bad no control and no duty to control.

6. Failure to mitigate their damages.

7. Plaintiff has faDed to state a claim upon which relief can be granted.

8. Discovery in this case is just commencing, and Defendant reserves the right to amend its Answer to assert additional affirmative defenses as they may be ascertained.

WHEREFORE, premises considered, Defendant Subway Real Estate Corporation prays that Plainiiffs Petition be dismissed and Plaintiff take nothing thereby, and further,

Claim VIII - Negligence Per Se

27. Defendant restates and incorporates Paragraphs I through 26 in response to Paragraph 33.

28. Defendant does not have sufficient information, knowledge or belief to either admit or deny Paragraphs 34,35 and 36 of Plaintiff’s Petition, and demands strict proof thereof.

Defendant prays lbr costs of this action and for such other relief deemed to be fair and equitable by the Court.

Outcome: Plaintiff dismissed without prejudice as to Tulsa Parking Authority and American Auto Parks, LLC.

Settled and dismissed with prejudice as to Phoenix Rising, Inc. and Subway Real Estate Corporation

Plaintiff's Experts:

Defendant's Experts:

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