Date: 12-09-2011

Case Style: Utica Place, LLC v. Cowen Construction IV, Inc.

Case Number: CJ-2008-7864

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Susan Huntsman, James L. Kincaid, Chris M. Warzecha and Michael Robert Pacewicz for Utica Place, LLC, Utica Place Condominium Assocaition and Rachel W. Zebrowski

Defendant's Attorney: Anthony Lee Allen, R. Thomas Seymour, Paige N. Shelton and P. Scott Hathaway for Cowen Construction IV, Inc.

Description: Utica Place, LLC, Utica Place Condominium Association and Rachel W. Zebrowski sued Cowen Construction IV, Inc. on fraud, breach of contract and breach of fiduciary duty theories.

Cowen counterclaimed on breach of contract, fraud, tortious interference with business relations, negligent misrepresenation, and unjust enrichment theories. Cowen also sought to foreclose a construction lien placed on Plaintiffs' property.

Outcome: CASE CALLED FOR JURY TRIAL. BOTH SIDES PRESENT IN OPEN COURT AND ANNOUNCE READY FOR TRIAL. PLAINTIFF JOHN BUMGARNER PRESENT AND REPRESENTED BY SUSAN HUNTSMAN, MICHAEL PACEWICZ, AND JAMES KINCAID. DEFENDANT JOHN COWEN PRESENT AND REPRESENTED BY THOMAS SEYMOUR, ANTHONY ALLEN, THOMAS LANDRUM, AND P. SCOTT HATHAWAY. THE JURORS ARE CALLED AND SWORN AS TO QUALIFICATIONS. THE JURY IS IMPANELED AND EXAMINED FOR CAUSE. THE FOLLOWING JURORS ARE EXCUSED FOR CAUSE: LARRY MOODY, JOHN PINGELTON, CHRISTIE HAY, CARMA GRIGSBY, DAVID HAGAMAN, WILLIAM LACKEY II, MATTHEW WARD, TERRY DAVIS, DANA SHELLEY, COURTNEY MOORE, JOHN VEITCH, ERIC AUERBACH, STEVEN PHELPS, RONALD SOBER, AND CORY RUBIN. THE JURORS ARE ACCEPTED FOR CAUSE.

PEREMPTORY CHALLENGES: PLAINTIFF: (1) JEFFREY SMITH (2) MARK ROBERTS (3) LANA THOMAS DEFENDANT: (1) LISA COMBS (2) EMILY ROBERTS (3) SUSAN KENT

THE FOLLOWING JURORS ARE ACCEPTED AND SWORN TO TRY THE CAUSE: (1) TERRI SKINNER (2) CURTIS CARSON, JR (3) SYLVIA WRIGHT (4) SHAREON JOSEPH (5) VICKI PHILLIPS (6) KRISTI HENSON (7) KEVIN LYTLE (8) GAIL SMITH (9) JUDY WAYLAND (10) JOHN JACOBS (11) KIMBERLY WILLIAMS (12) RAY SEAWRIGHT ALTERNATE: ANTHONY DAY


OPENING STATEMENTS ARE MADE. NINE (9) WITNESSES SWORN. RULE WAS NOT INVOKED. REPORTER DIANA CAVENAH REPORTED 11-28-11 AND 11-29-11. ROBERTA JOHNSON REPORTED IN THE MORNING AND DIANA CAVENAH REPORTED AFTER LUNCH ON 11-30-11. DIANA CAVENAH REPORTED IN THE MORNING AND KIM WHITE REPORTED IN THE AFTERNOON ON 12-6-11. DIANA CAVENAH REPORTED IN THE MORNING AND THEN UNTIL 3:30PM AND KIM WHITE REPORTED AFTER 3:30PM UNTIL THE END OF THE DAY ON 12-7-11. DIANA CAVENAH REPORTED UNTIL LUNCH AND KIM WHITE REPORTED AFTER LUNCH ON 12-8-11. DIANA CAVENAH REPORTED ON 12-9-11. PLAINTIFF PRESENTS EVIDENCE AND RESTS. DEFENDANT DEMURS AND DEMURRER IS OVERRULED. DEFENDANT PRESENTS EVIDENCE AND RESTS. DEFENDANT ASKED FOR A DIRECTED VERDICT AND IS OVERRULED. PLAINTIFF MOVES FOR DIRECTED VERDICT AND THE COURT GRANTED ON DEFENDANT'S NEGLIGENT MISREPRESENTATION. DEFENDANT DISMISSES TORTUOUS INTERFERENCE WITH A CONTRACT CLAIM. BOTH SIDES REST. THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THE SWEARING OF THE BAILIFF IS WAIVED AND ON 12-9-11 AT 5:45 P.M., THE JURY RETIRES FOR DELIBERATION IN CUSTODY OF THE BAILIFF. AT 9:50 P.M., JURY RETURNS INTO OPEN COURT WITH THEIR VERDICT, WHICH IS READ IN OPEN COURT, ORDERED RECORDED AND FILED, AND IS, TO WIT: “WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE DO UPON OUR OATHS FIND THE ISSUES FOR THE DEFENDANT, COWEN CONSTRUCTION, ON ITS BREACH OF CONTRACT CLAIM, AND THEREBY AWARD DEFENDANT, COWEN CONSTRUCTION DAMAGES IN THE AMOUNT OF $1,351,000.00 SIGNED THE FOREPERSON TERI SKINNER AND EIGHT (8) OTHER JURORS (BLUE VERDICT FORM). WE, THE JURY, EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE DEFENDANT, COWEN CONSTRUCTION, ON PLAINTIFF UTICA PLACE'S BREACH OF FIDUCIARY CLAIM, SIGNED THE FOREPERSON TERI SKINNER AND NINE (9) OTHER JURORS (PINK VERDICT FORM). WE, THE JURY, EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE DEFENDANT, COWEN CONSTRUCTION, ON PLAINTIFF UTICA PLACE'S BREACH OF CONTRACT CLAIM, SIGNED THE FOREPERSON TERI SKINNER AND NINE (9) OTHER JURORS (PINK VERDICT FORM). WE, THE JURY, EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, UTICA PLACE, ON ITS DECEIT CLAIM, AND THEREBY AWARD PLAINTIFF, UTICA PLACE ACTUAL DAMAGES IN THE AMOUNT OF $0.00. WE DO NOT FIND BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT, COWEN CONSTRUCTION, ACTED IN RECKLESS DISREGARD OF THE RIGHTS OF OTHERS. WE DO NOT FIND BY CLEAR AND CONVINCING EVIDENCE THAT THE PLAINTIFF, UTICA PLACE, LLC, ACTED INTENTIONALLY AND WITH MALICE TOWARDS OTHERS, SIGNED THE FOREPERSON TERI SKINNER (BLUE VERDICT FORM) WE, THE JURY, EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE DEFENDANT, COWEN CONSTRUCTION, ON ITS DECEIT CLAIM, AND THEREBY AWARD DEFENDANT, COWEN CONSTRUCTION ACTUAL DAMAGES IN THE AMOUNT OF $0.00. WE DO NOT FIND BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT, COWEN CONSTRUCTION, ACTED IN RECKLESS DISREGARD OF THE RIGHTS OF OTHERS. WE DO NOT FIND BY CLEAR AND CONVINCING EVIDENCE THAT THE PLAINTIFF, UTICA PLACE, LLC, ACTED INTENTIONALLY AND WITH MALICE TOWARDS OTHERS, SIGNED THE FOREPERSON TERI SKINNER AND EIGHT (8) OTHER JURORS (BLUE VERDICT FORM). JURY DISCHARGED.

WITNESSES SWORN: (1) JOHN BUMGARNER (2) VINSON CHAMPMAN (3) CHRISTINE ROBERTSON (4) CHRIS BUMGARNER (5) LARRY SWAGGERTY (6) PHIL HAMBURGER (7) LINK COWEN (8) JOHN COWEN (9) TERRY WESTEMEIR

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: This litigation was over the large building located immediately south of Utica Square.