Date: 04-28-2015

Case Style: Apax Galss, Inc. v. WZ Associates Property Tulsa, LLC, Schweiger Construction Company, J. Dennis Semler, Treasurer of Tulsa County, Board of County Commissioners of Tulsa County and Fidelity ^ Deposit Company of Maryland

Case Number: J-2014-1901

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Bruce Spencer

Defendant's Attorney: Scott Hathaway for Schweiger Construction Company and Fidelity & Deposit Company of Maryland

John Luton for Tulsa County

Description: Tulsa, OK - Apax Galss, Inc. sued WZ Associates Property Tulsa, LLC, Schweiger Construction Company, J. Dennis Semler, Treasurer of Tulsa County, Board of County Commissioners of Tulsa County and Fidelity and Deposit Company of Maryland on a mechanics lien foreclosure theoies claiming:

1 Plaintiff, APAX GLASS, INC., (referred herein as “APAX” or “Plaintiff’) is an Oklahoma
Corporation with its principle place of business located in Tulsa County, state of
Oklahoma.
2 Defendant, WZ ASSOCIATES PROPERTY TULSA, LLC, (herein referred to as” WZ” or “Defendants”) are the owners of real property located in Tulsa County, Oklahoma, upon which the lien was filed for labor, materials and service provided by Plaintiff upon the Defendant’s real property located at 110 W. 7th Street Tulsa, OK 74119 with a legal description: BLOCK-i, Section: 01 Township: 19 Range: 12, Subdivision: CITIES SERVICE-BLOCK ONE OF B175 OF TULSA, County of Tulsa, State of Oklahoma, according to the recorded plat thereof.
3 Defendant, SCHWEIGER CONSTRUCTION COMPANY, (referred herein as “SCHWEIGER”) is a General Contractor who entered into a contract and open account relationship with APAX whereby APAX provided labor, materials and services to SCHWEIGER upon the real property owned by WZ in consideration of SCHWEIGER promise to pay APAX’s invoices in a timely fashion.
4 The property in which this suit is based is located in Tulsa County, pursuant to 42 O.S.
172, jurisdiction and venue is proper in Tulsa County, State of Oklahoma.
MATERIAL FACTS
5 That the Plaintiff provided labor, material and services as a sub-contractor to the Defendants, SCI-IWEIGER, upon contract and open account whereby APAX provided labor, materials and services to SCHWEIGER upon the real property owned by WZ in consideration of SCHWEIGER promise to pay APAX’s invoices in a timely fashion.
6 Defendants SCHWEIGER paid a portion of the total amount invoiced.
7 Despite demand for payment by APAX, SCHWEIGER failed to deliver payment for the final invoices.

8 The labor, material and services provided by APAX to SCHWEIGER was used specifically to improve the following described real property currently owned by
Defendant, WZ: (“Property”)
BLOCK-I, Section: 01 Township: 19 Range: 12, Subdivision: CITIES
SERVICE-BLOCK ONE OF B175 OF TULSA, County of Tulsa, State of
Oklahoma, according to the recorded plat thereof.
110 W. 7th Street Tulsa, OK 74119
9 As a result of SCHWEIGER failure to pay APAX for the labor, material and services
furnished to the Property, APAX filed a Mechanic’s or Materialmen’s Lien on May 23,
2013, under Document No. 2013007005, in the records of the Tulsa County Clerk,
Oklahoma against the Property in the sum of $23,776.25 (the “Lien.”)
10 That SCHWEIGER made a partial payment after the lien was filed and a amended lien was filed on January 30, 2014 under Document No. 2013007005, in the records of the Tulsa County Clerk, Oklahoma against the Property in the sum of $18,283.59 (the
“Amended Lien.”)
11 A complete copy of the Lien is attached hereto as Exhibit A.
12 A complete copy of the Amended Lien is attached hereto as Exhibit B.
13 The Pre-lien Notice Compliance affidavit is attached to Exhibit A
14 The outstanding balance due and owing to Plaintiff from the Defendants is the amount of
$18,283.59 as of the date of filing the Amended lien. (Refer Exhibit B)
15 The Lien is valid and enforceable.
16 APAX is entitled to judgment in rem against the Property in the principal sum of
$18,283.59, plus attorney’s fees, costs and interest accrued and accruing.
17 APAX is entitled to judgment against SCHWEIGER in the principal sum of $18,283.59, plus attorney’s fees, costs and interest accrued and accruing.
18 Defendant, WZ claims or may claim some right, title, lien or interest in and to the Property; but any such right, title or interest in and to the Property is junior and inferior to APAX interest by virtue of the Lien, and said Defendant should appear herein and set forth any rights it may have in the Property or forever be barred from asserting the same.
19 Defendant, SCHWEIGER, claims or may claim some right, title, lien or interest in and to the Property; but any such right, title or interest in and to the Property is junior and inferior to APAX interest by virtue of the Lien, and said Defendant should appear herein and set forth any rights it may have in the Property or forever be barred from asserting the same.
20 Defendant, J. Dennis Semler, County Treasurer of Tulsa County, Oklahoma claims or may claim some right, title, lien or interest in and to the Property by virtue of ad valorem taxes levied and assessed against the Property. APAX would show the Court that Defendant, J. Dennis Semler, County Treasurer of Tulsa County, Oklahoma, should appear herein and assert any right, title, lien or interest that the County Treasurer has or may have in and to the Property, so that the same might be properly determined in these proceedings.
21 Defendant, Board of County Commissioners of Tulsa County, Oklahoma, is joined in this action pursuant to the provisions of 19 OICLA. STAT. § 4(1991).
22 Plaintiff has filed its lien in accordance with Oklahoma Law Pursuant to 42 O.S. § 141, and 142.
23 Plaintiff is filing this suit within one year pursuant to 42 O.S. § 149.
24 Such lien shall have priority over any and all other liens mortgages or encumbrances pursuant to 42 O.S. § 141.
25 Additionally, APAX is entitled to a judgment for the amount of attorney’s fees incurred to enforce the Lien pursnant to 42 OKLA. STAT. § 176.
FIRST CLAIM - FORECLOSURE ON MATERIAL AND MECHANICS LIEN
1 Each and every allegation contained in the above is incorporated herein by reference.
2 Pursuant to 42 O.S. § 141, and 142 (OSCN 2001), Plaintiff filed its lien claim against the Defendants and suit was brought within one year pursuant to 42 O.S. § 149 (OSCN 2001) attached hereto. Said lien was recorded as lien documents number #2013007005 recorded on May 23, 2013 with the clerk of the County of Tulsa, State of Oklahoma, against the real property of the Defendant, as described herein.
3 Labor, materials and services were performed by the Plaintiff on Defendants property.
4 Such lien shall have priority over any and all other liens, mortgages or encumbrances pursuant to 42 O.S. § 141.
5 The Defendants and all other persons, or entities who would claim some right, title or interest in and to the above-described real property, should come forward to assert any such right, title or interest so that the same may be determined herein, or forever barred from asserting any such right, title or interest.
6 Plaintiff is entitled to foreclose its lien thereon; that said property be ordered sold, according to law, the proceeds of said sale used to satisf’ the amount now due and owing to Plaintiff, and the residue, if any be applied as the Court may direct.
7 Plaintiff has been damaged in excess of $10,000.00.
SECOND CLAIM - COLLECTION ON OPEN ACCOUNT
8 Each and every allegation contained in the above and foregoing claims and allegations are incorporated herein by reference.
9 Defendants are indebted on open account to the Plaintiff in the sum of $18,283.59 as of date of filing the Amended Lien for labor, material and services furnished to the property of the Defendants, herein described.
10 After demand for payment, Defendants have refused to make payment to Plaintiff for amount owed and Plaintiff prays for judgment in his favor for the amount due and owing to Plaintiff.
11 Plaintiff has been damaged in excess of $10,000.00.
WHEREFORE Plaintiff, APAX GLASS, Inc. prays that this court grant judgment in favor of the Plaintiff in the amount of $18,283.59 plus prejudgment and post judgment interest, in the first and second claims against the Defendants and foreclose Plaintiff’s lien against the property of the Defendants, that said property be ordered sold, according to law, the proceeds of said sale used to satisfy the amount now due and owing to Plaintiff, with pre-judgment and post- judgment interest and the residue, if any be applied as the Court may direct.
Furthermore the Plaintiff, respectfully requests that it be granted such other and further relief as the Court may deem just and proper, including its reasonable attorneys fees and costs of this action.

Court docket entries:

Date Code Description Count Party Amount
05-15-2014 TEXT

Civil relief more than $10,000 Initial Filing.
1
05-15-2014 AUTONEG

AUTO NEGLIGENCE

05-15-2014 DMFE

DISPUTE MEDIATION FEE
$ 2.00
05-15-2014 PFE1

PETITION

Document Available (#1024729721)
$ 163.00
05-15-2014 PFE7

LAW LIBRARY FEE
$ 6.00
05-15-2014 OCISR

Oklahoma Court Information System Revolving Fund
$ 25.00
05-15-2014 CCADMIN02

Court Clerk Administrative Fee on $2 Collections
$ 0.20
05-15-2014 OCJC

Oklahoma Council on Judicial Complaints Revolving Fund
$ 2.00
05-15-2014 OCASA

Oklahoma Court Appointed Special Advocates
$ 5.00
05-15-2014 CCADMIN04

Court Clerk Administrative Fee on Collections
$ 0.50
05-15-2014 LTF

Lengthy Trial Fund
$ 10.00
05-15-2014 SMF

Summons Fee (4)(Clerks Fee)
$ 20.00
05-15-2014 SMIP

Summons Issued - Private Process Server

05-15-2014 TEXT

OCIS has automatically assigned Judge Fitzgerald, Mary to this case.

05-15-2014 ACCOUNT

Receipt # 2014-2850907 on 05/15/2014.
Payor:SPENCE LAW Total Amount Paid: $233.70.
Line Items:
CJ-2014-1901: $183.00 on AC01 Clerk Fees.
CJ-2014-1901: $6.00 on AC23 Law Library Fee.
CJ-2014-1901: $0.70 on AC31 Court Clerk Revolving Fund.
CJ-2014-1901: $5.00 on AC58 Oklahoma Court Appointed Special Advocates.
CJ-2014-1901: $2.00 on AC59 Oklahoma Council on Judicial Complaints Revolving Fund.
CJ-2014-1901: $2.00 on AC64 Dispute Mediation Fees.
CJ-2014-1901: $25.00 on AC79 OCIS Revolving Fund.
CJ-2014-1901: $10.00 on AC81 Lengthy Trial Fund.

05-22-2014 EAA

ENTRY OF APPEARANCE OF DEFT TULSA COUNTY TREASURER (JOHN DAVID LUTON ENTERS AS COUNSEL) / CERTICIATE OF MAILING

Document Available (#1025504600)
TREASURER OF TULSA COUNTY OKLAHOMA
05-22-2014 A

ANSWER OF DEFT DENNIS SEMLER, TULSA COUNTY TREASURER / CERTIFICATE OF MAILING

Document Available (#1025504604)
TREASURER OF TULSA COUNTY OKLAHOMA
05-23-2014 SMF

Summons Fee (Clerks Fee)
$ 5.00
05-23-2014 SMIMA

SUMMONS ISSUED - MAILED BY ATTORNEY

05-23-2014 AMP

AMENDED PETITION FOR FORECLOSURE ON MECHANIC'S & MATERIALMEN'S LIEN& COLLECTION ON AN OPEN ACCOUNT SUBSTITUTED SURETY BOND

Document Available (#1025504725)
APAX GLASS INC
05-23-2014 CM

CERTIFICATE OF MAILING (AMENDED PETITION)

Document Available (#1025504729)
APAX GLASS INC
05-23-2014 DWOP

DISMISSAL WITHOUT PREJUDICE BY PLF AGAINST DEFS

Document Available (#1024729226)
WZ ASSOCIATES PROPERTY TULSA LLC
05-23-2014 DISPDWOP

DISMISSAL WITHOUT PREJUDICE
1 BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY
05-23-2014 DISPDWOP

DISMISSAL WITHOUT PREJUDICE
1 TREASURER OF TULSA COUNTY OKLAHOMA
05-23-2014 DISPDWOP

DISMISSAL WITHOUT PREJUDICE
1 WZ ASSOCIATES PROPERTY TULSA LLC
05-23-2014 ACCOUNT

Receipt # 2014-2856651 on 05/23/2014.
Payor:SPENCE LAW OFFICE Total Amount Paid: $5.00.
Line Items:
CJ-2014-1901: $5.00 on AC01 Clerk Fees.

06-04-2014 S

Party has been successfully served. FOR SCHWEIGBER CONSTRUCTION CO / BY CERT MAIL, SIGNED R BANARD,

Document Available (#1025766558)
SCHWEIGER CONSTRUCTION COMPANY
06-04-2014 S

Party has been successfully served./ FOR FIDDLITY AND DEPOSITI COMPANY OF MARYLANDY / BY CERT MAIL, SIGNED CELESTE DELLS / ON 5-28-14

Document Available (#1025766554)
FIDELITY & DEPOSIT COMPANY OF MARYLAND
06-09-2014 AC/C

ANSWER & COUNTERCLAIM OF DEFTS FIDELITY & DEPOSIT COMPANY OF MARYLAND & SCHWEIGER CONSTRUCTION COMPANY (P. SCOTT HATHAWAY ENTERS AS COUNSEL - COVERSHEET ATTACHED) / CERTIFICATE OF SERVICE

Document Available (#1026064928)
FIDELITY & DEPOSIT COMPANY OF MARYLAND
06-24-2014 A

ANSWER OF PLAINTIFF TO COUNTER CLAIMS OF DEFENDANT SCHWEIGER CONSTRUCTION COMPANY AS TO THE AMENDED PETITION FOR FORECLOSURE ON MECHANIC'S AND MATERIALMEN'S LIEN AND COLLECTION ON AN OPEN ACCOUNT SUBSTITUTED SURETY BOND / C2J

Document Available (#1026255389)
APAX GLASS INC
07-16-2014 CERTS

CERTIFICATE OF SERVICE BY MAIL / OKLAHOMA INSURANCE DEPT,

Document Available (#1026480765)

02-18-2015 CTFREE

FITZGERALD, MARY: SCHEDULING CONFERENCE IS SET ON 3-26-2015 AT 2:30. NOTICES SENT TO BRUCE SPENCE AND JOHN LUTON AND SCOTT HATHAWAY

02-18-2015 TEXT

SCHEDULING CONFERENCE DOCKET / AFD OF MAILING

Document Available (#1028666633)

03-11-2015 DWP

JOINT DISMISSAL OF ALL CLAIMS WITH PREJUDICE

Document Available (#1028987211)

03-11-2015 DISPCVDMWP

JOINT DISMISSAL WITH PREJUDICE
1 FIDELITY & DEPOSIT COMPANY OF MARYLAND
03-11-2015 DISPCVDMWP

JOINT DISMISSAL WITH PREJUDICE
1 SCHWEIGER CONSTRUCTION COMPANY
03-11-2015 DISPCVDMWP

JOINT DISMISSAL WITH PREJUDICE
2 SCHWEIGER CONSTRUCTION COMPANY
03-11-2015 JE

JOURNAL ENTRY SUSTAINING THIRD PARTY PLAINTIFF'S APPLICATION FOR ATTORNEY'S FEES AND COSTS

Document Available (#1028987207)

03-26-2015 CTFREE

FITZGERALD, MARY: SCHEDULING CONFERENCE NOT HELD, CASE DISMISSED

Outcome: Joint dismissal of all claims.

Plaintiff's Experts:

Defendant's Experts:

Comments: