Burggraf Services, Inc. v. Terry Len Heilig

COMES NOW Burggraf Services, Inc. ("Burggraf' hereafter), and for its

claims against the Defendant, Terry Heilig, alleges and states as follows:

PARTIES ANT) JURISDICTION

1. Burggraf is an Oklahoma corporation with its principal place of business in the City of Tulsa, Tulsa County, State of Oklahoma.

2. Upon information and belief, Defendant is a resident of McIntosh County, Oklahoma, residing at RR 5 Box 207, Eufaula Oklahoma 74432.

3. The agreement for services, which is the subject of this action, provides for exclusive jurisdiction in Tulsa County, Oklahoma, and venue is proper in this County.

FIRST CAUSE OF ACTION

(Breach of Contract for Services Performed)

4. Burggraf adopts and incorporates paragraphs 1 through 3 as if set forth herein in full.

5. At the request of the Defendant, Burggraf performed certain services including structural repairs and cleaning on the Defendant's property or at the Defendant's residence.

6. The Defendant has failed and refused to pay Burggraf for the services it provided to him in violation of the terms of the written contract between the parties.

7. Defendant currently owes Burggraf for the services related to structural repairs in the amount of $81,108.86 including contractual interest accrued and accruing from 10/11/09 to 6/30/12 at the rate of 1.75% per month.

8. Burggraf has incurred attorney's fees and cost as the direct result of the Defendant's failure and refusal to satisfy his obligations to Burggraf. Plaintiff is entitled to an award of its reasonable attorney's fees and costs pursuant to Title 12 0. S. § 936 et seq. and pursuant to the terms of the contract.

SECOND CAUSE OF ACTION

(Quantum Meruit)

9. Burggraf adopts and incorporates paragraphs 1 through 8 as if fully set forth herein.

10. Burggraf performed services and br provided goods and materials at the Defendant's request and for the direct benefit of the Defendant for which Burggraf has not been compensated.

11. The reasonable value of the services and materials provided to the Defendant by Burggraf is $81,108.86, including interest on the unpaid balance at the rate of 1.75% per month.

12. Plaintiff should be awarded the reasonable value of the services and materials provided to the Defendant, along with its reasonable attorney's fees and costs pursuant to Title 12 0. S. § 936 et. seq.

WHEREFORE, Burggraf prays for judgment against the Defendant, Terry Heilig, in the amount stated above, plus interest as allowed by law and contract; for an award of its reasonable attorney's fees and court costs; and for such other and further relief as the Court deems just and equitable.



COMES NOW Defendant Terry Heilig ("Heilig”) and, for his Answer, Defenses and Affirmative Defenses to Plaintiff Burggraf Services, Inc.'s ("Burggraf”) Petition, states as follows:

Answer

1. On information and belief, Heilig admits the allegations contained in paragraph I of BurggraVs Petition.

2. Heilig admits the allegations contained in paragraph 2 of Burggraf's Petition.

3. Heilig admits the allegations and legal conclusions contained in paragraph

3 of Burgraff's Petition.

4. Heilig hereby reincorporates and restates his responses to paragraphs I

through 3.

5. Heilig admits that Burggraf performed certain services on his property. Heilig denies the remaining allegations contained in paragraph 5 of Burgraffs Petition.

6. Heilig denies the allegations and legal conclusions contained in paragraph

6 of Burgraffs Petition.

7. Heilig denies the allegations contained in paragraph 7 of Burgraff's Petition.

8. Heilig denies the allegation and legal conclusions contained in paragraph

8 of Burg raffs Petition.

9. Heilig hereby reincorporates and restates his responses to paragraphs I through 8.

10. Heilig denies the allegations and legal conclusions contained in paragraph

10 of Burgrafrs Petition.

11. Heilig denies the allegations and legal conclusions contained in paragraph

11 of Burgraff's Petition.

12. Heilig denies the allegations and legal conclusions contained in paragraph

12 of Burgratfs Petition.

13. Heilig denies that Burgraff is entitled to any of the relief it seeks in its Petition.

14. Heilig denies each and every allegation not specifically admitted herein.

15. Heilig reserves the right to revise, amend and/or supplement his answer to Burgrafrs Petition so as to include any other facts, admissions or denials he deems warranted.

ll

Defenses & Affirmative Defenses

For his defenses and affirmative defenses to the allegations contained in Burgraffs Petition, Heilig states as follows:

1. Burgraffs Petition fails to state any claim against Heilig for which relief can be granted.

2. Burgraffs claims, if any, fail because Burgraff breached its contract with Heilig.

3. Burgrafrs claims, if any, are barred by applicable statutes of limitations and the doctrines of waiver, laches and/or estoppel.

4. Burgraffs claims, if any, are barred by the doctrine of unclean hands.

5. Burgraff's claims, if any, are barred by payment and release.

6. Burgraff's claims, if any, are barred by its having failed to mitigate the damages, if any, it alleges to have suffered.

7. The proximate cause of Burgrafrs alleged damages, if any, was its own negligence, breaches of its contract with Heilig and/or the acts or omissions of third parties over whom Heilig exercised no control.

8. Burgratfs claims are barred by its own admissions and conduct.

9. Burgraff failed to fully perform all of its duties and obligations to Heilig.

10. If there are any material allegations which Heilig has not denied and which adversely affect Heilig's rights, Heilig here and now denies them.

11. Heilig expressly reserves the right to add defenses and affirmative defenses.

III.

Prayer

WHEREFORE, having fully answered, Heilig respectfully prays that Burgraff take nothing by way of its petition, that Burgraffs Petition against Heilig be dismissed, that Heilig recover his reasonable and necessary attorneys' fees and costs and that the Court grant Heilig such other and further relief as It deems appropriate.

IV.

Counterclaim

COMES NOW Defendant, Counter-Claimant, Terry Heilig ("Heilig”), for his counterclaim against Plaintiff, Burgraff Services, Inc. ("Burg raff”) states as follows:

A.

Parties, Venue and Jurisdiction

1. Heilig is a resident of Mcintosh County, Oklahoma.

2. On information and belief, Burgraff is an Oklahoma corporation doing business in Tulsa County, Oklahoma.

3. The Court has personal jurisdiction over the parties pursuant to 12 OS.

2011, § 2004(F) and venue is proper in Tulsa County, Oklahoma pursuant to 12 OS.

2011, § 134 and 143.

B.

Facts Common to All Claims

4. Heilig incorporates herein and adopts the preceding paragraph nos. I through 3.

5. Based upon an insurance estimate, Heilig entered into a contract with Burgraff for certain remediation and construction work at his property located at RR 5, Box 207, Eufaula, OK.

6. Burgraff breached the contract by, including, but not limited to: negligent supervision of subcontractors, faulty workmanship, failing to pay all subcontractors, failing to adhere to the estimate/budget, damaging Heilig's property and intentionally installing a lower grade carpet.

C.

First Cause of Action

Breach of Contract

7. Heilig realleges and incorporates paragraphs 1-6 above.

8. Burgraff breached its contract with Heilig.

9. Heilig is entitled to judgment against Burgraff for breach of contract in an amount in excess of $10,000.00, plus prejudgment and post-judgment interest, costs and attorneys' fees.

D.

Prayer

WHEREFORE, Defendant, Counter-Claimant, Terry Heilig, prays that the Court enter judgment in his favor and against Plaintiff, Burgraff Services, Inc. in an amount in excess of $10,000.00, plus prejudgment and post-judgment interest, in addition to his attorneys' fees and costs, accrued and accruing and for any such additional relief as the Court deems just and equitable.



COMES NOW Burggraf Services, Inc., Plaintiff herein, by and through its attorney of record, Grant E. Cheadle of Cheadle & Associates, Inc., and in response to Defendant Terry Heilig's Answer, Defenses, Affirmative Defenses & Counterclaim states as follows:

IN RESPONSE TO AFFIRMATIVE DEFENSES

1. Plaintiff denies all affirmative defenses claimed in Defendant's answer and puts Defendant on strict proof thereof.

IN RESPONSE TO COUNTERCLAIMS

1. Plaintiff admits the allegations contained within paragraphs 1, 2 and

2. Paragraph 4 is a reincorporation that requires no response.

3. Plaintiff denies the allegations contained within paragraphs 5 and 6 and puts Defendant on strict proof thereof.

4. Paragraph 7 is a reincorporation that requires no response.

5. Plaintiff denies the allegations contained within paragraphs 8 and 9 and puts Defendant on strict proof thereof.

WHEREFORE, Plaintiff, Burggraf Services, Inc., prays that Terry Heilig's Affirmative Defenses and Counterclaims be dismissed accordingly; that judgment be awarded to Plaintiff as previously plead; and for such other relief that is just and proper.

Settled for an undisclosed sum and dismissed with prejudice.