Date: 09-27-2011

Case Style: Diane Drawbaugh v. Redmond P. Kemether

Case Number: CS-2010-8808

Judge: Lisa Tipping Davis

Court: CS-2010-8809

Plaintiff's Attorney: Travis Smith and Warren Alarkon

Defendant's Attorney: Warren Alarkon

Description: Oklahoma City, OK - Civil trial lawyer Travis Smith represented Diane Drawbaugh who sued Redmond P. Kemether on a breach of contract theory.

The Pre-Trial Order entered by the court provided, in part:

The Plaintiff, Diane Drawbaugh, performed cleaning services for Defendant, Redmond Kemether’s household. Plaintiff thereafter entered into an agreement to purchase a vehicle from Defendant. Plaintiff claims a written agreement was made to purchase 1998 Chevrolet Suburban, but Defendant denies the authenticity of such writing. Defendant claims a mere oral agreement was made, but no consideration exchanged. Both parties agree that Plaintiff was in lawful possession of the vehicle (either by legal purchase, or by use with owner’s permission) in early 2010.
In the July or August of 2010, Plaintiff was driving the subject vehicle when another vehicle collided with her, causing both personal injury and total demolition of the Suburban. The tortfeasor’s insurance policy sent a check for the property damage, payable to the order of both Plaintiff and Defendant. Defendant maintained possession of the insurance check, and Plaintiff commenced this action to recover the value of the insurance proceeds.
3. PLAINTIFF’S CONTENTIONS:
1. Plaintiff entered into a written agreement with Defendant to purchase a vehicle from Defendant for $2,000.00.
2. Defendant’s wife, acting as an agent of Defendant, told Plaintiff that she could continue working at the hourly rate of $1 0.00/hour in consideration of the contract price. Plaintiff thereafter took possession of the car, with the expectation that Defendant would transfer the title to her after she performed 200 hours of housekeeping labor.
3. Oklahoma law permits parties to alter a contract in writing by an executed oral agreement. 15 OS. 237.
4. Plaintiff performed over 200 hours of housekeeping services, thus executing the oral agreement. The contract was performed and the ownership of the vehicle was vested in her.
5. Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein. Steenbergen v. First Fed. Say. & Loan ofChickasha, 19870K 122, ¶ 9.
6. Plaintiff became the lawful owner of the vehicle once her services were rendered. Therefore, the insurance proceeds for the total loss of the vehicle belonged to Plaintiff Defendant’s intentional dominion over the insurance proceeds is tortuous conversion of Plaintiffs property.
7. Alternatively, Plaintiff is entitled to the reasonable value of her services rendered to Defendant.
4. DEFENDANT’S CONTENTIONS! DEFENSES:
1. Defendant denies Plaintiffs allegations, specifically that he had a written contract with the Plaintiff, that Plaintiff performed services at Defendant’s home for which she was not compensated and that Defendant’s wife was acting as his agent. Defendant submits that Plaintiff simply failed to pay for the vehicle in question, and concocted these claims when she was experiencing financial difficulties.

Outcome: VERDICT FORM NO.3
We, the jury, empaneled and sworn in the above-entitled cause, do, upon our oaths, find the issues in favor of the plaintiff, Diane Drawbaugh, on her claims and against defendant, Redmond Kemether on her claims, and fix the dollar amount of her damages in the total sum of $3,OOO.00 AND we find the issues in favor of the defendant, Redmond Kemether, on his counter claims and against the plaintiff Diane Drawbaugh, on his counterclaims and fix the dollar amount of his damages in the total sum of $1,000.00.

Plaintiff's Experts:

Defendant's Experts:

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