Date: 05-13-2015

Case Style: Steve Carroll and Brenda Carroll v. Probuild Services, LLC, William S. Bell, Patrick A. White and John W. Pawloski, III

Case Number: CJ-2014-3584

Judge: Caroline Wall

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Michael R. Pacewicz

Defendant's Attorney: Mike King

Description: Tulsa, OK - Steve Carroll and Brenda Carroll sued Probuild Services, LLC, William S. Bell, Patrick A. White and John W. Pawloski, III on breach of contract theories claiming:

1. Plaintiffs are individuals residing within Tulsa County, Oklahoma.
2. Defendant ProBuild Services, LLC (“ProBuild”) is an Oklahoma limited liability
company with its principal office located within Tulsa County, Oklahoma.
3. Defendant William S. Bell (“Bell”) is an individual residing within Tulsa CounyE<
Oklahoma.
4. Defendant Patrick A, White (“White”) is an individual residing within Tulsa
County, Oklahoma.
5. This Court has jurisdiction over the claims asserted in this Petition and the parties
to this Petition. Venue is proper with this Court.
BACKGROUND FACTS
6. On or about January 6, 2014, Plaintiffs and ProBuild entered into an agreement
(“Agreement”) for the repair and remodeling of Plaintiffs home located at 11719 South 87th East
Avenue, Bixby, Oklahoma (the “Residence’). A copy of the Agreement is attached hereto as
Exhibit “1”.
7. Pursuant to the Agreement, ProBuild was to provide labor and materials and perform certain remodeling projects at the Residence in exchange for a maximum fixed price of $60,050.00. See Exh. “1”, p. 1.
8. Pursuant to the Agreement, ProBuild was to perform all work in a professional, workmanlike manner. ProBuild was to deliver all labor and material necessary to complete the repair and remodeling. See ii
9. Pursuant to the Agreement, ProBuild was to make diligent efforts to keep the job site clean. See Id.
10. Pursuant to the Agreement, ProBuild was to pay a daily penalty fee of $75.00 if the repairs and remodeling were not completed within five (5) weeks, plus a one-week grace period, following the pouring of concrete. See id., p. 2
11. On or about March 6, 2014, ProBuild ceased work on the Residence, abandoned the job site and removed all tools and materials.
12. On or about April 10, 2014, Plaintiffs and ProBuild entered into an amendment to the Agreement (“Amendment”). A copy of the Amendment is attached hereto as Exhibit “2”.
13. Pursuant to the Amendment, ProBuild was to complete the repairs and remodeling of the Residence. See Id.
14. Upon information and belief, at the time Plaintiffs and ProBuild entered into the Agreement, ProBuild was a d!b/a utilized by Bell and White to conduct a home building and remodeling business.
15. Upon infonnation and belief, ProBuild was organized under Oklahoma law as a limited liability company on or about March 12, 2014.
16. Upon information and belief, Bell and White are the members of ProBuild.
COUNT I - BREACH OF CONTRACT
17. Plaintiffs re-allege and incorporate paragraph 1-16 above as if fully set forth herein.
18. Defendants have wholly failed and refused to deliver all labor and material necessary to complete the repairs and remodeling set forth in the Amendment and Agreement.
19. Defendants have wholly failed and refused to perform the repairs and renovations in a workmanlike manner.
20. Defendants have wholly failed and refused to make diligent efforts to keep the job site clean.
21. Defendants have wholly failed and refused to complete the repairs and remodeling set forth in the Agreement and Amendment.
22. The actions and inactions of Defendants described above constitute material breaches of the Agreement and Amendment and Defendants’ obligations thereunder.
23. Due to the material breaches by Defendants of the Agreement and Amendment and their obligations thereunder, Plaintiffs have been required to obtain substitute bids and contractors in order to complete the repairs and renovations to the Residence.
24. As of the date of the filing of this Petition, Plaintiffs have suffered actual damages resulting from Defendants’ material breaches of the Agreement and Amendment in the amount of $8,519.30, plus the late charge of $75.00 per day accrued and accruing, Because the repairs and renovations have yet to be completed, Plaintiffs’ damages resulting from Defendants’ material breaches of the Agreement and Amendment continue to accrue.
COUNT II- VIOLATION OF OKLAHOMA HOME REPAIR FRAUD ACT
(15 O.S. § 765.1, etseq.)
25. Plaintiffs re-allege and incorporate paragraphs 10-24 above as if fully set forth herein.
26. At the time they entered into the Agreement, Defendants did not intend to perform all their obligations or knew that all their obligations thereunder would not be performed.
27. At the time they entered into the Amendment, Defendants did not intend to perform all their obligations or knew that all their obligations thereunder would not be performed.
28. Defendants employed deception, false pretense and false promises in order to induce Plaintiffs into entering into the Agreement and Amendment.
29. As of the date of the filing of this Petition, Plaintiffs have suffered actual damages resulting from Defendants’ violations of the Oklahoma Home Repair Fraud Act in the amount of $8,519.30, plus the late charge of $75.00 per day accrued and accruing. Because the repairs and renovations have yet to be completed, Plaintiffs damages resulting from Defendants violations of the Oklahoma Home Repair and Fraud Act continue to accrue. Additionally, Plaintiffs have suffered inconvenience, annoyance and discomfort due to the Defendants’ violations of the Oklahoma Home Repair Fraud Act.
COUNT Ill - UNJUST ENRICHMENT
30. Plaintiffs re-allege and incorporate paragraphs 1-29 above as if fully set forth herein.
31. Throughout the time that Defendants were working on the Residence, Plaintiffs made timely and complete progress payments as required by the Agreement and Amendment. Defendants have retained all such sums remitted to them by Plaintiffs.
32. Plaintiffs conferred a benefit upon Defendants by making timely and complete progress payments, yet Defendants failed to complete work on the Residence, failed to complete work in workman like manner, and failed to keep the Residence clean.
33. Defendants have retained the progress payments at the expense of Plaintiffs. Defendants’ retention of the progress payments constitutes unjust enrichment.
34. It would be inequitable to permit Defendants to retain all sums paid to them by Plaintiffs under the circumstances present. Defendants should be required to return all progress payment sums to which they are not entitled.
COUNT IV - NEGLIGENT DAMAGE TO PROPERTY
35. Plaintiffs re-allege and incorporate paragraph 1-34 as if fully set forth herein.
36. During the time that Defendants were working on the Residence, Defendants negligently caused damage to Plaintiffs property. Such damage includes but is not limited to:
A. An incorrectly installed pet door;
B. Damage to a sliding door separating the kitchen from the laundry area;
C. Damage to drywall behind an electrical outlet;
D. Damage to stonework;
E. Roof damage; and
F. Front yard damage.
37. Defendants’ negligent damage of Plaintiffs’ property has caused Plaintiffs to obtain substitute contractors and pay additional sums in order to remedy the damage caused by Defendants’ negligence. Plaintiffs are entitled to recover all sums related to the repair of the Defendants’ negligent damage to Plaintiffs’ property.
COUNT V - DECEIT AND FRAUD
38. Plaintiffs re-allege and incorporate paragraphs 1-37 above as if fully set forth herein.
39. On or about December 27, 2013, Defendants provided Plaintiffs with a proposal (“Proposal”) to perform repairs and renovations on the Residence, In the Proposal, Defendants
represented to Plaintiffs that Defendants would perform such renovations and repairs for a fixed price of $58,350.
40. At the time they provided the Proposal, Defendants knew or should have known that they could not or would not complete the repairs and renovations described therein.
41. Plaintiffs relied upon the representations in the Proposal to their detriment.
42. At the time Defendants entered into the Agreement with Plaintiffs, Defendants knew or should have known that they could not or would not complete the repairs and renovations described therein. Additionally, Defendants knew or should have known that they could not complete the repairs and renovations in the time allotted.
43. Plaintiffs relied upon Defendants’ representations in the Agreement to their detriment,
44. At the time Defendants entered into the Amendment with Plaintiffs, Defendants knew or should have known that they could not or would not complete the repairs and renovations described therein.
45. Plaintiffs relied upon Defendants’ representations in the Amendment to their detriment.
46. At various times after Defendants entered into the Agreement with Plaintiffs, and again after Defendants entered into the Amendment with Plaintiffs, Defendants made representations to Plaintiffs concerning, among other items:
A. The dates and times when subcontractors would be on the Residence to perform repairs and renovations, including but not limited to:
(a) Representing to Plaintiffs the dates upon which a floor crew would be present to perform work and
(b) Representing to Plaintiffs the dates upon which carpenters would be present to perform work
B. The date upon which all the repairs and renovations would be completed;
C. The pricing of certain materials and services; and
D. The status of orders for certain fixtures such as cabinets.
47. Defendants knew or should have known at the time they made such representations that they were false and misleading.
48. Plaintiffs relied upon Defendants representations to their detriment.
49. Defendants actions constitute deceit and fraud.
50. As a result of Defendants deceit and fraud, Plaintiffs have been required to obtain substitute contractors and to expend additional sums in order to complete the repairs and renovation of the Residence. Additionally, Plaintiffs have suffered inconvenience, annoyance and discomfort due to the Defendants representations and failure to complete the repairs and renovations on time and in a workmanlike manner, as promised. Plaintiffs are entitled to recover actual and punitive damages from Defendants in an amount determined at trial.
COUNT VI- NEGLIGENCE
51. Plaintiffs re-allege and incorporate paragraphs 1-50 above as if fully set forth herein.
52. Defendants owed a duty to Plaintiffs to ensure that the repairs and renovations were completed in a timely, reasonable, workmanlike and defect-free manner.
53. Defendants breached their duty to Plaintiffs by, among other things:
A. Failing to properly oversee the repairs and renovations and the subcontractors providing material and labor;
B. Failing to adhere to timelines and to ensure the repairs and renovations were completed in timely manner; and
C. Failing to ensure that the repairs and renovations were completed in a workmanlike manner.
54. As a direct result of Defendants’ negligence, Plaintiffs have been required to obtain substitute contractors and to expend additional sums in order to complete the repairs and renovation of the Residence. Additionally, Plaintiffs have suffered inconvenience, annoyance and discomfort. Plaintiffs are entitled to recover actual and punitive damages from Defendants in an amount determined at trial.

Docket
Date Code Description Count Party Amount
09-17-2014 TEXT

Civil relief more than $10,000 Initial Filing.
1
09-17-2014 CONTRACT

BREACH OF AGREEMENT - CONTRACT

09-17-2014 DMFE

DISPUTE MEDIATION FEE
$ 2.00
09-17-2014 PFE1

PETITION

Document Available (#1027002929)
$ 163.00
09-17-2014 PFE7

LAW LIBRARY FEE
$ 6.00
09-17-2014 OCISR

Oklahoma Court Information System Revolving Fund
$ 25.00
09-17-2014 CCADMIN02

Court Clerk Administrative Fee on $2 Collections
$ 0.20
09-17-2014 OCJC

Oklahoma Council on Judicial Complaints Revolving Fund
$ 2.00
09-17-2014 OCASA

Oklahoma Court Appointed Special Advocates
$ 5.00
09-17-2014 CCADMIN04

Court Clerk Administrative Fee on Collections
$ 0.50
09-17-2014 LTF

Lengthy Trial Fund
$ 10.00
09-17-2014 SMF

Summons Fee (Clerks Fee)
$ 5.00
09-17-2014 SMIMA

Summons Issued - Mailed by Attorney

09-17-2014 TEXT

OCIS has automatically assigned Judge Chappelle, Carlos to this case.

09-17-2014 ACCOUNT

Receipt # 2014-2934094 on 09/17/2014.
Payor:CROWE & DUNLEVY Total Amount Paid: $218.70.
Line Items:
CJ-2014-3584: $168.00 on AC01 Clerk Fees.
CJ-2014-3584: $6.00 on AC23 Law Library Fee.
CJ-2014-3584: $0.70 on AC31 Court Clerk Revolving Fund.
CJ-2014-3584: $5.00 on AC58 Oklahoma Court Appointed Special Advocates.
CJ-2014-3584: $2.00 on AC59 Oklahoma Council on Judicial Complaints Revolving Fund.
CJ-2014-3584: $2.00 on AC64 Dispute Mediation Fees.
CJ-2014-3584: $25.00 on AC79 OCIS Revolving Fund.
CJ-2014-3584: $10.00 on AC81 Lengthy Trial Fund.

09-22-2014 S

Party has been successfully served. PROBUILD SERVICES LLC SERVED / CERT MAIL / SIGNED BY DAVID DRYER / ON 9-19-14 BY PS

Document Available (#1027197355)
PROBUILD SERVICES LLC
09-29-2014 SMF

Summons Fee (Clerks Fee) -2-
$ 10.00
09-29-2014 SMIMA

SUMMONS ISSUED - MAILED BY ATTORNEY

09-29-2014 ACCOUNT

Receipt # 2014-2941581 on 09/29/2014.
Payor:CROWE AND DUNLEVY Total Amount Paid: $10.00.
Line Items:
CJ-2014-3584: $10.00 on AC01 Clerk Fees.

10-02-2014 S

Party has been successfully served. WILLIAM S BELL SERVED / CERT MAIL / SIGNED BY A. BELL? / NO DEL DATE

Document Available (#1027418519)
BELL, WILLIAM S
10-06-2014 EAA

ENTRY OF APPEARANCE / MICHAEL JAMES KING ENTERS FOR PROBUILD SERVICES LLC AND WILLIAM S BELL / CERT OF MAILING / COVER SHEET

Document Available (#1027419218)
PROBUILD SERVICES LLC
10-30-2014 SMF

ALIAS Summons Fee (Clerks Fee)
$ 5.00
10-30-2014 ASMIP

ALIAS SUMMONS ISSUED PRIVATE PROCESS SERVER

10-30-2014 ACCOUNT

Receipt # 2014-2962740 on 10/30/2014.
Payor:CROWE & DUNLEVY Total Amount Paid: $5.00.
Line Items:
CJ-2014-3584: $5.00 on AC01 Clerk Fees.

11-06-2014 A

ANSWER / TO THE PETITION OF THE PLAINTIFF / CERTIFICATE OF SERVICE /

Document Available (#1027775978)
PROBUILD SERVICES LLC
11-17-2014 APLI

UNOPPOSED APPLICATION TO FILE AMENDED PETITION / A2J

Document Available (#1027829508)
CARROLL, STEVE
11-18-2014 CTFREE

CHAPPELLE, CARLOS; GRANTED/ORDER; APPLICATION TO FILE AMENDED PETITION GRANTED.

11-19-2014 O

ORDER

Document Available (#1027833450)

11-20-2014 AMP

FIRST AMENDED PETITION

Document Available (#1027832840)
CARROLL, STEVE
11-25-2014 R

PLAINTIFFS' REPLY TO COUNTERCLAIM OF DEFENDANTS PROBUILD SERVICES LLC AND WILLIAM S BELL

Document Available (#1027977986)
CARROLL, STEVE
12-02-2014 SMF

ALIAS Summons Fee (Clerks Fee)-1-
$ 5.00
12-02-2014 SMIP

Summons Issued - Private Process Server-1-

12-02-2014 ACCOUNT

Receipt # 2014-2981680 on 12/02/2014.
Payor:CROWE & DUNLEVY Total Amount Paid: $5.00.
Line Items:
CJ-2014-3584: $5.00 on AC01 Clerk Fees.

12-08-2014 S

Party has been successfully served. ALIAS SUMMONS TO JOHN W PAWLOSKI III / CERT MAIL / SIG ILLEGIBLE / NO DEL DATE

Document Available (#1028043259)
PAWLOSKI, JOHN W III
12-30-2014 MODJ

MOTION FOR DEFAULT JUDGMENT / A TO J / CERTIFICATE OF MAILING

Document Available (#1028262277)
CARROLL, STEVE
01-06-2015 CTFREE

CHAPPELLE, CARLOS; GRANTED/ORDER; MOTION FOR DEFAULT JUDGMENT AGAINST PROBUILD SERVICES, LLC, WILLIAM S BELL & JOHN W PAWLOSKI III IS SET 2/19/15 AT 9:00 A.M.

01-06-2015 RESP

DEFENDANTS' RESPONSE TO MOTION FOR DEFAULT AND MOTION FOR LEAVE TO FILE ANSWER OUT OF TIME

Document Available (#1028259381)
PROBUILD SERVICES LLC
01-07-2015 O

ORDER

Document Available (#1028259539)

01-07-2015 CM

CERTIFICATE OF MAILING / MOTION FOR DEFAULT JUDGMENT

Document Available (#1028259585)
CARROLL, STEVE
01-23-2015 NO

NOTICE OF SERVICE OF SUMMONS BY PUBLICATION / C TO LN

Document Available (#1028390269)

01-23-2015 AFD

AFFIDAVIT OF SERVICE OF SUMMONS BY PUBLICATION UPON DEFENDANT PATRICK A WHITE

Document Available (#1028390261)

02-04-2015 TEXT

PARTIAL WITHDRAWAL OF MOTION FOR DEFAULT JUDGMENT / A2J

Document Available (#1028543233)

02-19-2015 CTFREE

CHAPPELLE, CARLOS; JOINT APPLICATION FOR SETTLEMENT CONFERENCE; SETTLEMENT CONFERENCE ORDER MAILED TO LEILANI ARMSTRONG.

02-19-2015 CTFREE

CHAPPELLE, CARLOS; CASE COMES ON FOR HEARING. MICHAEL PACEWICZ APPEARS FOR PLAINTIFF; CRAIG PITTMAN APPEARS FOR DEFENDANT. MOTION FOR DEFAULT GRANTED ON PAWLOSKI; JOURNAL ENTRY TO BE SUBMITTED; DEFENDANT'S BELL & PROBUILD TO FILE AN ANSWER WITHIN 7 DAYS. PARTIES GOING TO EARLY SETTLEMENT.

02-19-2015 DISPCVDJ

CHAPPELLE, CARLOS; CASE COMES ON FOR HEARING. MICHAEL PACEWICZ APPEARS FOR PLAINTIFF; CRAIG PITTMAN APPEARS FOR DEFENDANT. MOTION FOR DEFAULT GRANTED ON PAWLOSKI; JOURNAL ENTRY TO BE SUBMITTED; DEFENDANT'S BELL & PROBUILD TO FILE AN ANSWER WITHIN 7 DAYS. PARTIES GOING TO EARLY SETTLEMENT.
1 PAWLOSKI, JOHN W III
02-20-2015 A

ANSWER TO FIRST AMENDED PETITION / CERTIFICATE OF SERVICE

Document Available (#1028753210)
PROBUILD SERVICES LLC
02-26-2015 PP

PROOF OF PUBLICATION ( TBLN )($188.00)

Document Available (#1028258241)

02-26-2015 S

CLERKS NOTE: THIS IS NOT AN INSTRUMENT- THIS IS TO SHOW SERVICE ON PATRICK A WHITE
WHITE, PATRICK A
02-26-2015 #PSC

PUBLICATION SERVICE CHARGE (WITH POUNDAGE)
$ 186.12
02-26-2015 POUND

POUNDAGE
$ 1.88
02-26-2015 ACCOUNT

Receipt # 2015-3037292 on 02/26/2015.
Payor:CROWE & DUNLEVY Total Amount Paid: $188.00.
Line Items:
CJ-2014-3584: $1.88 on AC01 Clerk Fees.
CJ-2014-3584: $186.12 on AC40 Publication Payment.

02-26-2015 ACCOUNT

Requested voucher in amount of 186.12 to COMMUNITY PUBLISHERS INC from account AC40. Disbursement Number 10045358.

02-26-2015 DISBURSED

Voucher# 454856 printed to Community Publishers Inc, which includes $ 186.12 from this case for AC40 - Publication Payment. Total amount of voucher: $ 186.12.

05-13-2015 DWP

PLAINTIFFS DISMISSAL WITH PREJUDICE OF PROBUILD SERVICES LLC AND WILLIAM S BELL

Document Available (#1029613442)
PROBUILD SERVICES LLC
05-13-2015 DISPCVDMWP

Outcome:
DISMISSAL WITH PREJUDICE
1 BELL, WILLIAM S
05-13-2015 DISPCVDMWP

DISMISSAL WITH PREJUDICE
1 PROBUILD SERVICES LLC
06-11-2015 TEXT

Administratively Reassigned by AOC MIS per Help Desk Incident 43676

06-16-2015 MO

MOTION FOR ENTRY OF DEFAULT JUDGMENT

Document Unavailable (#1029995985)
CARROLL, STEVE

Plaintiff's Experts:

Defendant's Experts:

Comments: