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Date: 03-05-2013

Case Style: Todd N. Tipton v. Matt Wilson Custom Homes, LLC

Case Number: CJ-2010-5567

Judge: Roger H. Stuart

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Terry D. Kordeliski, II

Defendant's Attorney: Tim D. Cain and Kevin Michael Walos for Matt Wilson and Matt Wilson Custom Homes, LLC

Andrew M. Gunn and J. Logan Johnson for Rocky Stevens

John R. Woodard, III and Michael J. O'Malley for W & B Construction

John Walkup and Michael Woodson for Warren Smith Bingham

Description: Todd N. Tipton and Constance J. Tipton sued Matt Wilson Custom Homes, LLC and Matt Wilson who sued Curtis Symes, Concrete Development, Inc., Rocky Stevens, W & B Construction, Hope Lumber & Supply Company, Warren Keith Bingham and Estate of Kelly Bingham on fraud theories claiming:

1. Plaintiffs are residents of Oklahoma County, State of Oklahoma.

2. Defendant, Matt Wilson Custom Homes, L.L.C., is an Oklahoma limited liability company with its principal place of business in Oklahoma County,State of Oklahoma.

3. Upon inlbrrnation and belief. Defendant, Man Wilson, is an individual resident of Oklahoma County, State of Oklahoma.

4. This action concerns the sale of real property located in Oklahoma County, State of Oklahoma.

5. This Court has both subject matter jurisdiction and personal jurisdiction.

6. Venue is proper in Oklahoma County.

7. On or about July 18. 2008, Plaintiff purchased from Defendants certain residential real property commonly known as 1100 Shadow Wood Drive, Edmond, OK 73034 (“Residence”). The Residence is located in the Woody Creek subdivision in Oklahoma County. Upon information and belief, the Woody Creek subdivision is owned and being developed by Defendants.

8. Defendants represented and warranted to Plaintiffs that the Residence was constructed in a good and workmanlike manner and was free from defects or negligence. Plaintiffs relied to their detriment on Defendants’ home-building reputation, representations and warranties, express and implied, in making their decision to purchase the Residence.

9. Shortly after Plaintiffs purchased the Residence, they began experiencing significant and persistent problems with the Residence that interfere with their use and enjoyment of the Residence. These significant and persisteni problems adversely impact the value of the Residence.

10. Defendants have acknowledges the existence of the problems identified by Plaintiffs, and have unsuccessfully attempted multiple remedial measures consisting of cosmetic patches. Defendants’ attempts have wholly failed to address or remedy the underlying foundation problems.

11. Before Plaintiffs purchased the Residence, Defendants identified a substantial foundation crack and separation and “stitched” the crack. Defendanis did not disclose this significant foundation crack and related “stitching” to Plaintiffs prior to Plaintiffs’ purchase. Rather, Defendants concealed the “stitching” under tile floor covering.

12. The defects in the premises have adversely impacted Plaintiffs’ use and enjoyment of the Residence and significantly diminished the value of the residence.

FIRST CAUSE OF ACTION- FRAUD/DECEIT

13. Plaintiffs adopt, incorporate and re-allege the allegations contained in paragraphs numbered 1-12 above.

14. Defendants made a material representation to Plaintiffs that the Residence was constructed in a workmanlike manner and free of defects.

15. Said material representations were false.

16. Defendants knew that said representations were false. Defendants were aware of the defects in the foundation.

17. Defendants made these representations with the intention that Plaintiffs would act upon them.

18. Plaintiffs, in fact, did act upon Defendants representations.

19. Plaintiffs have suffered injury due to Defendants’ fraud/deceit.

SECOND CAUSE OF ACTION- NON-DISCLOSURE OR CONCEALMENT

20. Plaintiffs adopt, incorporate and re-allege the allegations contained in paragraphs numbered 1-19 above.

21. The Defendants concealed or failed to disclose the known defect in the foundation and the consequent “stitching.”
Defendants had a duty to disclose this fact because it was known to Defendants and Defendants knew the fact was peculiarly within their knowledge and that Plaintiffs were not in a position to discover the facts for themselves.

22. The existence of the defect in the foundation was material fact.

23. Defendants concealed or failed to disclose it with the intent of creating a false impression of the actual facts in the mind of Plaintiffs.

24. Defendants concealed or failed to disclose it with the intention that it would be acted upon by Plaintiffs.

25. Plaintiffs did, in fact, act in reliance upon it.

26. Plaintiff suffered injury due to Defendants concealment or failure to disclose.

THIRD CAUSE OF ACTION-RESCISSION

27. Plaintiffs adopt, incorporate and re-allege the allegations contained in paragraphs numbered 1-26 above.

28. Defendants obtained Plaintiffs’ consent to the contract through fraud.

29. Plaintiffs cannot be made whole without rescinding the contract and placing all parties in their pre-contract position.

FOURTH CAUSE OF ACTION- BREACH OF EXPRESS WARRANTY

30. Plaintiffs adopt. incorporate and re-allege the allegations contained in paragraphs numbered 1-29 above.

31. Defendants have breached express warranties set forth in the purchase contract and relating to the construction of the residence.

32. Defendants’ breach of the express warranties is the proximate cause of the losses suffered by Plaintiffs.

FIFTI-1 CAUSE OF ACTION- BREACH OF IMPLIED WARRANTY

33. Plaintiffs adopt, incorporate and re-allege the allegations contained in paragraphs numbered 1-32 above.

34. Defendants have breached implied warranties in failing to construct the Residence skillfully, carefully, diligently
and in a workman-like manner.

35. Defendants’ breach of the implied warranties is the proximate cause of the losses suffered by Plaintiffs.

SIXTH CAUSE OF ACTION- BREACH OF CONTRACT

36. Plaintiffs adopt, incorporate and re-allege the allegations contained in paragraphs numbered 1-35 above.

37. Plaintiffs and Defendant entered into a contract whereby purchased the Residence from Defendants.

38. Defendants breached the contract by failing to construct the Residence in a reasonable and workman-like manner.

39. Plaintiffs have been damaged by Defendants’ breach of contract.

SEVENTH CAUSE OF ACTION- NEGLIGENCE

40. Plaintiffs adopt, incorporate and re-allege the allegations contained in paragraphs numbered 1-39 above.

41. Defendants were negligent in the construction of the Residence by failing to exercise the reasonable degree of care, skill and knowledge that is ordinarily employed by a reasonable homebuilder.

42. Defendants’ negligent construction of the Residence was the proximate cause of the defects and resulting harm to Plaintiffs.

Wherefore, Plaintiffs respectfully request this Court enter judgment in Plaintiffs’ favor and against the Defendants for:

(A)Rescinding the contract and placing the parties back in their pre-contraet position.

(B)For money damages in an amount in excess of $75,000.00.

(C)For all attorney fees and costs incurred in prosecuting this action.

(D) any and all further relief this Court deems fair and just.

Defendants Matt Wilson and Wilson Custom Homes, LLC appeared and answered as follows:

I.

Defendant is without sufficient informal on to admit or deny the allegations as stated in Paragraph 1 of Plaintiffs’ Petition and therefore enies same and demands strict proof thereof.

II.

Defendant admits the allegations as state [in Paragraphs 2, 3, and 4 of Plaintiffs’ Petition.

III.

Defendant denies the allegations as stated n Paragraph 5 ofPlaintiffs’ Petition and demands strict proof thereof

IV.

Defendant admits the allegations as state L in Paragraph 6 of Plaintiffs’ Petition.


Petition and demands strict proof thereof

FIRST CAUSE OF ACTION-FRAUD/DECEIT

V. Defendant denies the allegations as state in Paragraphs 7, 8, 9, 10, 11 and 12 of Plaintiffs’


Defendant denies the allegations as state in Paragraphs 13, 14, 15, 16, 17, 18 and 19 of Plaintiffs’ Petition and demands strict proof then of

SECOND CAUSE OF ACTION -NON DISCLOSURE OR CONCEALMENT

VI.

Defendant denies the allegations as state I in Paragraphs 20, 21, 22, 23, 24, 25 and 26 of Plaintiffs’ Petition and demands strict proof ther of.

THIRD CAUSE OF ACTION-RESCISSION

VII.

Defendant denies the allegations as stated n Paragraphs 27, 28, and 29 ofPlaintiffs’ Petition and demands strict proof thereof.

FOURTH CAUSE OF ACTION-BI EACH OF EXPRESS WARRANTY

Defendant denies the allegations as stated in Paragraphs 30, 31 and 32 of Plaintiffs’ Petition
and demands strict proof thereof.

FIFTH CAUSE OF ACTION BREACH OF IMPLIED WARRANTY

Defendant denies the allegations as statec in Paragraphs 33,34 and 35 of Plaintiffs’ Petition and demands strict proof thereof.

SIXTH CAUSE OF ACTIOIN -BREACH OF CONTRACT

X.

Defendant denies the allegations as state 1 in Paragraphs 36, 37, 38 and 39 of Plaintiffs’ Petition and demands strict proof thereof.

SEVENTH CAUSE OF I CTION-NEGLIGENCE

XI.

Defendant denies the allegations as stated Paragraphs 40, 4t and 42 of Plaintiffs’ Petition and demands strict proof thereof.

XII.

Defendant denies Plaintiffs’ prayer for relief.

AFFIRMATIVE DEFENSES

I.

Plaintiffs’ Petition fails to state a claim.

II.

Plaintiffs’ damages, if any, were caused by a third party over whom this Defendant exercised no authority or control.

III.

Plaintiffs were negligent and such neglige ice on the part ofthe Plaintiffs proximately caused or contributed to Plaintiffs’ damages, if any, such negligence on the part of the Plaintiffs comparatively were greater than any alleged negligence of the Defendant, therefore, Plaintiffs are not entitled to recover herein.

IV.

The conditions the Plaintiffs complain of their house are the result of normal wear and tear and not defects in the construction of the house.

V.

The conditions the Plaintiffs complain o at their house are the result of settlement and/or earth movement and not defects in the constructi n of the house.

VI.

The conditions the Plaintiffs complain of t their house are the result of water movement or other natural phenomenons and not defects in th construction of the house.

VII.

Plaintiffs have failed to mitigate their d ages, if any.

VIII.

Plaintiffs’ claim for punitive damages vio tes the Oklahoma and United States Constitution.

IX.

Plaintiffs’ Petition fails to state a claim f r fraud with particularity.

X.

Plaintiffs’ claims are barred by the doc e of waiver, estoppel and/or release.

WHEREFORE, having fully answered, efendant prays Plaintiffs take nothing by way of their Petition and Defendant be awarded its atto ey fees and costs associated with this matter and such other relief the Court deems just and prope

Matt Wilson Custom Homes, LLC filed a third-party petition which alleged the following:

1. On July 6, 2010, the Plaintiffs filed their Petition alleging certain problems with their house. Defendant denies Plaintiffs’ allegations.

2. Plaintiffs’ Petition alleges foundation problems with their house.

3. The Plaintiffs specifically allege the concrete slab has cracked.

4. Third-PartyDefendant, Concrete Development, The. was responsible forpouring the concrete slab.

5. Plaintiffs also allege the method and maimer in which the native soil was cut, filled and compacted may be contributing to some of the issues at the house.

6. Third-PartyDefendant, Curtis Symes, was responsible for cutting, filling and compacting the native soil for the pad.

7. The Plaintiffs have also alleged there are problems with their brick veneer.

8. Third-Party Defendant, Rocky Stevens was the brick mason who layed the brick veneer at the Plaintiffs’ house.

9. The Plaintiffs have also alleged cracks have developed in the walls and ceilings of their house. The cracks may relate to framing issues with the house.

10. Third-Party Defendant, W & B Construction framed the house.

11. Defendant/Third-Party Plaintiff, Matt Wilson Custom Homes, LLC denies Plaintiffs’ house
was negligently constructed. However, if an adverse judgment is entered, Matt Wilson
Custom Homes, LLC is entitled to indemnity and/or contribution from Third-Party
Defendants, Curtis Symes, Concrete Development, Inc., Rocky Stevens and W & B
Construction for the work they performed at the house.

WHEREFORE Defendant/Third-Party Plaintiff, Matt Wilson Custom Homes, LLC prays for a judgment against the Third-Party Defendants, Curtis Symes, Curtis Symes, Concrete Development, Inc., Rocky Stevens and W & B Construction for indemnity andlor contribution and for attorney fees and costs associated with this matter.

Third-Party Defendant Concrete Development, Inc. appeared in an answered as follows:

1. Concrete Development, Inc. admits the allegations in ¶1 of the Third-Party Petition.

2. Concrete Development, Inc. admits the allegations inf2 of the Third-Party Petition.

3. Concrete Development, Inc. admits the allegations in ¶3 of the Third-Party Petition.

4. Concrete Development, Inc. admits the allegations in ¶4 of the Third-Party Petition.

5. Concrete Development, Inc. is unable to admit or deny the allegations in ¶5 of the
Third-Party Petition.

6. Concrete Development, Inc. is unable to admit or deny the allegations in ¶6 of the Third-Party Petition.

7. Concrete Development, Inc. is unable to admit or deny the allegations in ¶7 of the Third-Party Petition.

8. Concrete Development, Inc. is unable to admit or deny the allegations in ¶8 of the Third-Party Petition.

9. Concrete Development, Inc. is unable to admit or deny the allegations in ¶9 of the Third-Party Petition.

10. Concrete Development, Inc. is unable to admit or deny the allegations in ¶10 of the Third-Party Petition.

11. Concrete Development, Inc. denies the allegations in ¶11 of the Third-Party Petition.

AFFIRMATIVE DEFENSES

12. Concrete Development, Inc. alleges the Plaintiffs have failed to mitigate their damages.

13. Concrete Development, Inc. alleges that any defect with the house is the result of naturally occurring settlement, shrinlcage, or expansion.

14. Concrete Development, Inc. asserts that the damages sustained by the Plaintiffs are the result of intervening or superseding causes.

15. Concrete Development, Inc. assets that any damages to the house were due to the fault of parties other than Concrete Development, Inc.

16. Concrete Development, Inc. prays that the Court dismiss this action against it and grant it all other just relief to which it is entitled.

Third-Party Defendant Curtis Symes appeared and answered as follows:

1. Admitted.

2. Admitted.

3. Admitted only that the Plaintiffs allege the concrete slab had cracked and that the crack had been repaired by “stitching”, all of which had occurred prior to the Plaintiffs’
purchasing the home; otherwise, denied.

4. Admitted.

5. Denied.

6. Admitted only that this party did the pre-construction dirt work; otherwise, denied.

7. Neither admitted nor denied, this party being without sufficient knowledge so as to form a belief as to the truth of the averment.

8. Neither admitted nor denied, this party being without sufficient knowledge so as to form a belief as to the truth of the averment.

9. Neither admitted nor denied, this party being without sufficient knowledge so as to form a belief as to the truth of the averment.

10. Neither admitted nor denied, this party being without sufficient knowledge so as to form a belief as to the truth of the averment.

11. Admitted only that DefendantlThird-Party Plaintiff, Matt Wilson Custom Homes,
LLC, denies Plaintiffs’ house was negligently constructed. Denied that Matt Wilson Custom
Homes, LLC is entitled to indemnity and/or contribution from Third-Party Defendant
Curtis Symes. Otherwise, neither admitted nor denied as to the allegations against Concrete
Development, Inc., Rocky Stevens and W & B Construction, this party being without
sufficient knowledge so as to form a belief as to the truth of the averment.

AFFIRMATIVE DEFENSES

1. Curtis Symes denies that his work was negligently performed.

2. Curtis Symes denies that any of his work was the proximate cause of any property damage to the Residence.

3. Curtis Symes denies that any of his work was the proximate cause of any of the damages for which Plaintiffs seek judgment against the Defendant/Third-Party Plaintiff.

4. The damages, if any, for which Plaintiffs seek judgment against the Defendant/Third- Party Plaintiff, were caused, in whole or in part, by third-persons over whom this party had no supervision, control or right to control.

5. The damages, if any, for which the Defendant/Third-Party Plaintiff seeks indemnity from this party were caused by naturally occurring phenomenon, drought, shifting of land-mass and other Acts of God over which this party had no control or right to control and for which this party is not liable.

6. This party is not liable to indemnify Third-Party Plaintiff for its own acts or omissions which may be shown to have proximately caused damages sought by plaintiff.

7. The Third-Party Petition fails in whole or in part to state a cause of action under the laws of the State of Oklahoma by which judgment may be obtained against this Third-Party Defendant.

8. Although the negligence of this answering party is denied, to the extent that this party may be determined to be negligent, then the negligence of the Third-Party Plaintiff serves to bar or reduce recovery.

9. The incident complained of was caused by a sudden emergency and/or unavoidable casualty.

WHEREFORE, Third-Party Defendant, Curtis Symes, prays that the Third-Party Petition be dismissed with costs, attorney fees and all other appropriate relief to which this Third-Party Defendant is entitled.

Matt Wilson Custom Homes, LLC filed a third-party petition which alleged:

1. On July 6, 2010, the Plaintiffs filed their Petition. (See Petition, attached hereto as Exhibit ‘‘1 h)

2. Plaintiffs’ Petition alleged foundation problems with their house.

3. Plaintiffs specifically allege a crack has occurred in the concrete slab of their house.

4. Plaintiffs also allege cracks have developed in the sheetrock of their house.

5. Kelly Bingham Foundation and Stemwalls constructed the footings and stem walls of the foundation.

6. Kelly Bingham recently passed away and there is a pending probate of her estate. Warren Keith Bingham has been appointed Special Administrator of the Estate of Kelly Bingham.

7. Warren Keith Bingham, as Special Administrator of the Estate of Kelly Bingham is authorized to accept service on behalf of the Estate of Kelly Bingham for the work done at the house by Kelly Bingham Foundation and Stemwalls.

8. Plaintiffs allege a large crack has developed in the sheetrock of their family room. An engineering report from Bob Zahl indicated a glulam beam in the family room may be undersized. Hope Lumber & Supply Company engineered the glulam beam and the truss system of the house. (See engineering report of Bob Zahl dated March 18, 2010, attached hereto as Exhibit “2”).

9. Defendant/Third-Party Plaintiff, Matt Wilson Custom Homes, LLC denies Plaintiffs’ house was negligently constructed. However, if an adverse judgment is entered against it, Matt Wilson Custom Homes, LLC is entitled to indemnity and/or contribution from Third-Party Defendants Warren Keith Bingham as Special Administrator for the Estate ofKelly Bingham and Hope Lumber and Supply Company for the work they performed at Plaintiffs’ house.

WHEREFORE Defendant/Third-Party Plaintiff, Matt Wilson Custom Homes, LLC prays
for ajudgment against the Third-Party Defendants Warren Keith Bingham as Special Administrator of the Estate of Kelly Bingham and Hope Lumber & Supply Company for indemnity and/or contribution and for attorney fees and costs associated with this matter.

Third-Party Defendant Hope Lumber & Supply Company appeared and answered as follows:

1. ProBuild admits that Plaintiffs filed a Petition on or about JUly 6, 2010 in the above and entitled captioned cause. The remaining allegations contained in Paragraph 1 of the Third-Party Petition are denied.

2. ProBuild admits that Plaintiffs Residence and those allegations are set forth Plaintiff has answered the Third-Party Petition

3. ProBuild admits that Plaintiffs Residence and those allegations are set forth Plaintiff has answered the Third-Party Petition

4. ProBuild admits that Plaintiffs Residence and those allegations are set forth Plaintiff has answered the Third-Party Petition have filed a Petition alleging problems with the in the Petition. The Defendant and Third-Party and denied in whole or in part those allegations. have filed a Petition alleging problems with the in the Petition. The Defendant and Third-Party and denied in whole or in part those allegations. have filed a Petition alleging problems with the in the Petition. The Defendant and Third-Party and denied in whole or in part those allegations.

5. ProBuild is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 5 of the Third-Party Petition.

6. ProBuild is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 6 of the Third-Party Petition.

7. ProBuild is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 7 of the Third-Party Petition.

8. ProBuild admits that an engineering report was submitted by Bob Zalil. ProBuild denies that any beam or truss system designed or sold by it was defective.. ProBuild denies that the engineering report of Bob Zahl was attached as Exhibit 2 to the Third-Party Petition. A copy of said report, however, was provided by counsel for Third-Party Petition. All remaining allegations contained in Paragraph 8 of the Third-Party Petition are denied.

9. ProBuild admits that Third-Party Plaintiff has denied that Plaintiffs’ home was negligently constructed. ProBuild denies the remaining allegations contained in Paragraph 9 of the Third-Party Petition with respect to ProBuild and is without sufficient knowledge or information to form a belief as to the truth of those allegations with respect to the other Third- Party Defendants. All remaining allegations contained in the Third-Party Petition not specifically admitted above are hereby denied.

AFFIRMATIVE DEFENSES

1. The Third-Party Petition fails to state a claim for which relief may be granted against ProBuild for indemnity andlor contribution.

2. The Third-Party Plaintiffs’ claims arc barred in whole or in part by the applicable statute of limitations. ProBuild denies that any acts or omissions on the part of ProBuild give rise to any of the claims or causes of action set forth in the Petition. All remaining allegations set forth in Paragraph 2 of the Third-Party Petition are denied.

3. The Plaintiffs’ Petition sets forth allegations alleging Fraud/Deceit, Nondisclosure or Concealment and Rescission which are based on allegations of action or inaction on the part of Third-Party Plaintiff unrelated to any alleged acts of ProBuild. As a result, to the extent Plaintiffs prevail on theft Petition for those causes of action, ProBuild is not liable in indemnity or contribution to Third-Party Plaintiff. ProBuild denies that any acts or omissions on the part of ProBuild give rise to any of the claims or causes of action set forth in the Petition. All remaining allegations set forth in Paragraph 3 of the Third-Party Petition are denied.

4. Plaintiffs’ claims are barred in whole or part by the applicable statute of limitations. ProBuild denies that any acts or omissions on the part of ProBuild give rise to any of the claims or causes of action set forth in the Petition.
All remaining allegations set forth in Paragraph 4 of the Third-Party Petition arc denied.

5. Certain of Plaintiffs’ claims against the Third-Party Plaintiffs are barred in whole or part by the Economic Loss Rule and therefore fail to state a claim. As a result, Third-Party Plaintiff may not hold ProBuild liable for those claims.

6. Plaintiff and subsequently Third-Party Plaintiffs’ cause of actions for breach of implied and/or express warranty are barred for failure to give proper notice.

7. Plaintiff and subsequently Third-Party Plaintiffs’ claims are barred in whole or part under theories of comparative fault.

8. ProBuild denies that any of its work was the proximate cause of any damage to the Plaintiffs andlor the Residence.

9. The damages, if any, for which Plaintiffs seek judgment against the Third-Party Plaintiff were caused in whole or in part by parties over whom ProBuild had no control or responsibility.

10. Plaintiff and/or Third-Party Plaintiff have failed to mitigate their damages.

11. Third-Party Plaintiffs’ claims are barred in whole or in part due to a superseding or intervening cause or causes.

12. ProBuild reserves the right to amend its Answer as discovery takes place.

Wherefore, having filly answered, ProBuild prays that Defendant and Third-Party Plaintiff take nothing on its Third-Party Petition and that ProBuild be granted all relief to which it may show itself to be entitled including but not limited to its cost including a reasonable attorney’s fee.

W & B Construction appeared and answered as follows:

Third-Party Defendant, W&B Construction, for its Answer states:

1. Admit.

2. Third-Party Defendant admits that Plaintiffs have made certain allegation concerning their house. W&B Construction is without information to admit or deny the substance of Plaintiff’s allegations and therefore denies the same.

3. Third-Party Defendant admits that Plaintiffs have made certain allegation concerning their house. W&B Construction is without information to admit or deny the substance of Plaintiffs allegations and therefore denies
the same.

4. The allegations contained in this paragraph are not directed toward W&B Construction and therefore no answer is required. To the extent an answer is required W&B Construction states that it is without information to admit or deny this allegation and therefore denies the same.

5. Third-Party Defendant admits that Plaintiffs have made certain allegation concerning their house. W&B Construction is without information to admit or deny the substance of Plaintiff’s allegations and therefore denies
the same..

6. The allegations contained in this paragraph are not directed toward W&B Construction and therefore no answer is required. To the extent an answer is required W&B Construction states that it is without information to admit or deny this allegation and therefore denies the same.


7. Third-Party Defendant admits that Plaintiffs have made certain allegation concerning their house, W&B Construction is without information to admit or deny the substance of Plaintiffs allegations and therefore denies
the same.

8. The allegations contained in this paragraph are not directed toward W&B Construction and therefore no answer is required. To the extent an answer is required W&13 Construction states (hat it is without information to admit or deny this allegation and therefore denies the same.

9. Denied.

10, Admit.

11. Denied.

AFFIRMATJVE DEFENSES

1. Third-Party Plaintiff has failed to state a claim upon which relief can be granted

2. The alleged damages caused to the subject property were caused by the acts and/or omissions of Matt Wilson Custom Homes and/or third parties over whom W&B Construction had no control and by reason thereof the Third-Party Plaintiff’s claims against W&B Construction are barred.

3. Through its lack of care performing work upon the subject home, Man Wilson Custom Homes is responsible for any damages caused to the home and the acts and omissions of Man Wilson Custom Homes constitute a full and complete bar to their right of recovery.

4. The alleged damages were caused by an act of God and are therefore not the responsibility of W&B Construction.

5. W&B Construction reserves the right to supplement and amend its Answer upon completion of discovery and prior to the pre-trial conference.

Having fully answered, W&B Construction prays that the Third-Party Plaintiff’s Petition be dismissed and that W&B Construction recover its costs expended herein.

Outcome: Judgment in favor of Third-Party Defendant, Warren Keith Bingham as Special Administrator of the Estate of Kelly Bingham. W&B Construction dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts: Robert Zahl, foundation defects; Terracon Counsultants, Inc., defects; Travis Huffman, cost of repairs

Comments:



 
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