Date: 07-06-2013

Case Style: RBD Construction Co. v. Stone Creations, LLC

Case Number: CJ-2011-5958

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Robert E. Applegate ad David C. Senger

Defendant's Attorney: A. Mark Smiling for Stone Creations, LLC and Hector Del Bosque

Andrew J. Enlow and Eric Mitchel Daffern for Performance Roofing, Inc.

Description: RBD Construction Co. sued Stone Creations, LLC, Hector Del Bosque, Performance Roofing, Inc., dba A-Best Roofing and Ron Demaree on negligence theories and breach of contract theories claiming:

1. R.B.D. Construction is an Oklahoma corporation with its principal place of business in Tulsa County, Oklahoma.

2. The original Petition in this Case was filed October 21, 2011.

3. Jurisdiciion is proper in this Court pursuant to Okla. Stat. tit. 12, § 2004(F).

4. Plaintiff R.B.D. Construction was hired as the contractor for construction of a new residence, located at 11436 S. Louisville Place East, located in Tulsa, Oklahoma (the “residence”).

5. R.B.D. Construction entered into an oral contract with Defendant Stone Creations, the subcontractor, under which Defendant Stone Creations was to provide masonry services in connection with construction of the residence.

6. At the time the contract was entered into, Defendant Hector Del Bosque was the controlling member of Defendant Stone Creations.

7. After Stone Creations completed masonry services and throughout the course of subsequent construction to the residence, R.B.D. Construction noticed water leakages caused by Stone Creations’ defective masonry services.

8. R.B.D. Construction entered into an oral contract with Defendant A-Best Roofing, the subcontractor, under which A-Rest Roofing was to provide roofing services in connection with the construction of the residence.

9. After A-Best Roofing completed roofing services and throughout the course of subsequent construction to the residence, R.B.D. Construction noticed water leakages caused by A-Best Roofing’s defective roofing services and repairs.

10. That Plaintiff incurred damages in excess of $75,000 to repair the masonry defects and other damage to the residence.

NEGLIGENCE

11. Plaintiff re-alleges and incorporates paragraphs 1- 8.

12. That Stone Creations and Hector Del Bosque breached their duty of care to Plaintiff to properly perform the masonry services.

13. That A-Best Roofing breached its duty of care to Plaintiff to properly perform the roofing services.

14. Plaintiff incurred damages in excess of $75,000 in repairs to the masonry and other damages to the residence as a result of Defendants’ breach as stated in the allegations above.

BREACH OF CONTRACT

15. Plaintiff re-alleges and incorporates paragraphs 1- 8.

16. Stone Creations has breached its contract by failing to perform the masonry services under the contract in a good and workmanlike manner, free and clear of any defects with materials and/or workmanship.

17. A-Best Roofing has breached its contract by failing to perform the roofing services and repairs under the contract in a good and workmanlike manner, free and dear of any defects with materials and/or workmanship.

18. Plaintiff expended an amount in excess of $75,000 as a result of Defendants’ conduct as stated in the allegations above.

WHEREFORE, Plaintiff, R.B.D. Construction Co., demands Judgment against Defendants for all damages, plus interest, attorney fees and the costs of this action.


Performance Roofing, Inc. courterclaimed on breach of contract, quantum meruit, interference with contract and quasi contract theories.

Stone Creations, LLC appeared and answered as follows:

1. Defendants are without sufficient knowledge to admit allegations contained therein and demand strict proof thereof.

2. Defendants deny allegations contained therein and demand strict’proof thereof

3. Defendants are without sufficient knowledge to admit alIegations contained therein and demand strict proof thereof.

4. It is admitted that an oral agreement was reached between the Plaintiff and the Defendants, but Defendants are without sufficient knowledge to admit the remaining allegations contained therein and demands strict proof thereof.

5. Admitted.

6. Defendants deny allegations contained therein and demand strict proof thereof.

7. Defendants deny allegations contained therein and demand strict proof thereof.

8. Defendants restate all admissions and denials in Paragraphs I through 7 above, and incorporate by reference as if fully set out herein.

9. Defendants deny allegations contained therein and demand strict proof thereof.

10. Defendants deny allegations contained therein and demand strict proof thereof.

11. Defendants restate all admissions and denials in Paragraphs I through 10 above, and incorporate by reference as if fully set out herein.

12. Defendants deny allegations contained therein and demand strict proof thereof.

13. Defendants deny allegations contained therein and demands strict proof thereof.

14. General denial of negligence.

15. General denial of damages.

16. General denial of the nature and extent of Plaintiff’s alleged damages.

17. General denial of the causal connection upon any work performed by this Defendant and Plaintiff’s cause of damages.

AFFIRMATIVE DEFENSES

18. Statute of limitations.

19. Accord and satisfaction.

20. Mitigation of Damages.

21. Statute of repose.

22. Comparative negligence.

23. Such damages as alleged by Plaitniff are a result of comparative negligence of the Plaintiff, or due to other parties negligence or workmanship over which these Defendants had no control.

24. Discovery is not yet commenced nor completed, and these Defendants reserve the right to amend their Answer and Affirmative Defenses upon completion of discovery and reserves the right to assert a third party petition in event discovery so warrants.

WHEREFORE, having answered the Petition of the Plaintiff, Defendants pray that Plaintiff take nothing by way of its Petition, and Defendants be awarded their attorney fees, costs, and any other relief that the Court may deem just and equitable.

R.B.D. Construction responded to A-Best Roofing's counterclaim as follows:

1. R.B.D. Construction admits that a contract existed between it and A-Best Roofing for roofing and sheet metal repairs for a house being constructed at 11436 S. Louisville Place East, Tulsa, Oklahoma as referenced in Paragraph 31 of A-Best’s Counterclaim.
R.B.D. Construction neither admits nor denies the remaining allegations contained within Paragraph 31 and states that the contract between the parties speaks for itself.

2. R.B.D. Construction admits that A-Best submitted an invoice for services rendered as asserted in Paragraph 32 of A-Best’s Counterclaim, R.B.D. Construction denies the remaining allegations contained within paragraph 32 and, further, incorporates by reference all allegations pled by R.B.D. Construction against A-Best Roofing in its First Amended Petition and all of its affirmative defenses pled herein.

3. In response to Paragraph 33, RB .D. Construction incorporates by reference all of its affirmative defenses pled herein and all allegations pled by it against A-Best Roofmg in its First Amended Petition and would assert A-Best Roofing is not entitled to recover due to its material breach of the contract and failure to complete its work according to the customs and standards in the industry.

4. In response to Paragraph 34, R.B.D. Construction incorporates by reference all of its affirmative defenses pled herein and all allegations pled by it against A-Best Roofing in its First Amended Petition and would assert A-Best Roofing is not entitled to recover due to its material breach of the contract and failure to complete its work according to the customs and standards in the industry.

5. In response to Paragraph 35, R.B.D. Construction incorporates by reference all of its affirmative defenses pled herein and all allegations pled by it against A-Best Roofing in its First Amended Petition and would assert A-Best Roofing is not entitled to
recover due to its material breach of the contract and failure to complete its work according to the customs and standards in the industry.

6. In response to Paragraph 36, R.B.D. Construction incorporates by reference all of its affirmative defenses pled herein and all allegations pled by it against A-Best Roofing in its First Amended Petition and would assert A-Best Roofing is not entitled to recover due to its material breach of the contract and failure to complete its work according to the customs and standards in the industry.

7. In response to Paragraph 37, R.B.D. Construction incorporates by reference all of its affirmative defenses pled herein and all allegations pled by it against A-Best Roofmg in its First Amended Petition and would assert A-Best Roofing is not entitled to recover due to its material breach of the contract and failure to complete its work according to the customs and standards in the industry.

8. In response to Paragraph 38, R.B.D. Construction incorporates by reference all of its affirmative defenses pled herein and all allegations pled by it against A-Best Roofing in its First Amended Petition and would assert A-Best Roofing is not entitled to recover due to its material breach of the contract and failure to complete its work according to the customs and standards in the industry.

9. A-Best Roofing, in unnumbered paragraphs, re-incorporated by reference certain numbered paragraphs of its Counterclaim. To that extent, R.B.D. Construction hereby reincorporates by reference its response to these numbered paragraphs.

10. Unless expressly admitted herein, R.B.D. Construction hereby denies each and every allegation contained within the Counterclaim of A-Best Roofing.

11. R.B.D. Construction reserves the right to amend this Answer as discovery is in its infant stages.

AFFIRMATIVE DEFENSES

The following affirmative defenses are asserted as likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, and are asserted without waiving R.B.D. Construction’s right to supplementation.

1. A-Best’s Counterclaims fail to state a claim against R.B.D. Construction for which relief maybe granted.

2. The claims asserted by A-Best are barred by accord and satisfaction.

3. The claims asserted by A-Best are barred by the doctrine of waiver.

4. The claims asserted by A-Best are barred by the doctrine of estoppel.

5. The claims asserted by A-Best are barred by the doctrine of unclean hands.

6. The claims asserted by A-Best are barred by release.

7. The claims asserted by A-Best are subject to setoff in connection with the claims asserted by R.B.D. Construction.

8. The claims asserted by A-Best are barred due to its failure to complete its work according to customs and standards in the industry.

9. The claims asserted by A-Best are barred by its breach of the agreement between it and R.B.D. Construction.

10. The claims asserted by A-Best are bared by the applicable statute of limitations.

11. Failure of consideration.

12. Laches.

13. Statute of Frauds.

14. A-Best’s quantum meruit claim is mutually exclusive to its claim for breach of contract as there are no damages
being sought outside the contract itself and, therefore, the quantum meruit claims is barred.

15. R.B.D. Construction reserves the right to supplement its Affirmative Defenses as discovery progresses in this matter.

WHEREFORE, Plaintiff, R.B.D. Construction Co., respectfully requests that this Court:

(i) deny A-Best’s Counterclaims in their entirety; (ii) award R.B.D. Construction judgment pursuant to its First Amended Petition; (iii) award R,B.D. Construction a reasonable attorney’s fee and ail costs incurred in this litigation; and, (iv) award R.B.D. Construction all other relief to which it is entitled.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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