Tania B. King v. Phoenix Residential Construction, LLC, Brad Boone, McGraw Davisson Stewart, LLC d/b/a McGraw Realtors, Sherri Sanders and Robert Curnutt

Tulsa, OK - Tania B. King sued Phoenix Residential Construction, LLC, Brad Boone, McGraw Davisson Stewart, LLC d/b/a McGraw Realtors, Sherri Sanders and Robert Curnutt on breach of contract, recission, fraud, negligence and other theories claiming:



For her claims against Defendants Phoenix Residential Construction, LLC (�Phoenix�) and Brad Boone (�Boone�), collectively (�Defendants�), Plaintiff Tania B. King (�King�) represents and states as follows:



GENERAL ALLEGATIONS



1. Tania B. King is a resident of the State of California and the owner of the home and real property located on Lot 15, Block 1, Aberdeen Lake, an Addition to the City of Jenks, Tulsa County, State of Oklahoma; also known as 1430 East 122nd Court, Jenks, Oklahoma.



2. Phoenix Residential Construction, LLC is an Oklahoma Limited Liability. Company conducting business in Oklahoma.

3. Brad Boone is a resident of Oklahoma, is a principal or officer of Phoenix Residential Construction, LLC, and individually and through that entity does business in Oklahoma.

4, The conduct of the Defendants which gives rise to Plaintiffs� claims occurred in whole or in part in Tulsa County, Oklahoma.

5. Venue is proper in Tulsa County and this Court has jurisdiction.

FACTS COMMON TO ALL CLAIMS

6. In or about November 2010, King began to inquire about purchasing the home and real property known as Lot 15, Block I, Aberdeen Lake, an Addition to the City of Jenks, Tulsa County, State of Oklahoma; also known as 1430 East 122nd Court, Jenks, Oklahoma (the �Home�).

7. The Defendants had previously purchased the Home from the original builder who upon information and belief had sold the unfinished home to the Defendants at a significant discount because of financial difficulties.

8. The Defendants completed construction on the Home and offered it for sale to the public, while representing themselves as professional, experienced and competent homebuilders.

9. Throughout the review and purchase process, King dealt directly with Boone and a real estate agent representing the Defendants. At all times during sales negotiations, Boone and his agent represented himself to King to be a homebuilder and someone competent to construct the Home.

10. A contract to purchase the Home was executed by King on November 30,

2010 and by Boone on December 4, 2010. (Exhibit 1)

11. The closing on the Home was held on January 7, 2011, whereby King took title to the Home.

12. As an added inducement to get King to purchase the Home, the Defendants offered King a creative financing opportunity. A �Purchase Money Wrap Real Estate Mortgage� (Exhibit 2) and �All-Inclusive Wrap Around Promissory Note� (Exhibit 3) were signed by King and Boone on January 7, 2011. These documents obligated King to make payments on an existing mortgage held by the Defendants.

13. King and the Defendants executed a �New Home Limited Warranty� (�Warranty�) dated January 7, 2011 (Exhibit 4).

14. At all times prior to and at the time of sale, the Defendants represented the Home to be a properly constructed structure and habitable for living.

15. In reliance upon the representation that she had purchased a well- constructed home that was safe and habitable, King made substantial upgrades and additions to the Home between the closing date and the time she discovered the substantial construction defects, water damage and toxic mold. These upgrades and additions have cost King over $150,000. Additionally, King incurred substantial moving expenses to relocate from California to Oklahoma.

16. Soon after purchasing the Home, King hired contractors to complete some upgrades to the Home. A contractor installing tile in the lower level discovered water damage that appeared to have pre-dated King�s ownership of the Home.

17. Due to upgrades being completed in the Home and a cross-country moving schedule, King did not move in and begin to occupy the Home until on or about March

31, 2011.

18. Immediately after moving into the Home, and continuing to the present, King and other people occupying the Home have experienced significant health problems which have resulted in medical treatment. These illnesses are ongoing and occur each time King and other people stay in the home. These health problems have been diagnosed as resulting from the toxic mold.

19. On or about April 11, 2011, the first significant rainfall occurred since King had been occupying the Home. During this rainfall, King discovered significant water was leaking into various areas of the first floor of the Home.

20. On or about April 25, 2011, King discovered the presence of toxic mold in the basement walls of the Home. Based on the nature, extent and growth phase of the toxic mold, these defects were present prior to King�s purchase of the Home.

21. On or about April 25, 2011, King discovered significant water damage in the home. Based on the condition of the water damage, these defects were present prior to King�s purchase of the Home.

22. Upon further investigation, it was discovered that the concrete retaining wall forming part of the basement was constructed improperly and the Home�s yard elevation was set improperly, thereby allowing water to enter the basement wall and promoting the presence and growth of toxic mold and significant water damage.

23. The Defendants knew or should have known that these significant construction defects existed.

24. In a rush to induce King to purchase the Home, the Defendants failed to properly construct the Home and make its condition habitable.

25. The Home is not habitable due to the presence of toxic mold. King and others have suffered continued health complications from the presence of the toxic mold and the Home is not habitable.

26. On or about April 11, 2011, King notified Boone of the problems and construction defects associated with the Home.

27. On or about April 25, 2011, Boone personally visited the Home, inspected the damage and assured King that the problems would be addressed and corrected.

28. At the time Boone inspected the Home on or about April 25, 2011, Boone indicated to King that he had attempted to fix some drainage problems by installing some surface drains on the front side of the Home. These surface drains are located near the area where water has infiltrated the basement walls. This drainage work was completed by the Defendants prior to King purchasing the Home.

29. The Defendants had knowledge of the drainage problems and faulty construction related to the concrete retaining wall and basement area prior to the sale of the Home to King, but failed to properly address the problem, merely covering it up and failing to inform King prior to her purchase.

30. Since being notified of the problems with the Home, the Defendants have failed to take any effort to remedy the problems and construction defects.

31. After unsuccessffil attempts to get the Defendants to remedy the problems and construction defects with the Home, King submitted her �Notice of Defects� under the Warranty to the Defendants dated November 4, 2011. Per the Warranty, the Defendants were required to submit a written response to King within fifteen (15) days.

32. The Defendants have failed to respond to the �Notice of Defects� and have breached the Warranty.

33. Based upon information and belief, Phoenix is a corporate entity established by Boone for the sole purpose of purchasing, completing and selling the Home.

34. Phoenix is a shell, instrumentality or conduit of Boone.

35. Based upon information and belief., Phoenix lacks corporate assets and is undercapitalized to perform the purposes for which it was established.

36. The Defendants have used Phoenix in furtherance of fraud by selling King the Home that was known to contain toxic mold or recklessly and negligently failing to properly construct the Home.

37. The Defendants have used Phoenix in ffirtherance of fraud by selling King the Home and recklessly and negligently misrepresenting the Home was of sound construction and habitable for safe occupation.

38. As a result of the activities of Boone, Phoenix may be said to be the alter ego and/or instrumentality of Boone.

COUNT I

BREACH OF CONTRACT: THE REAL ESTATE CONTRACT

(AGAINST PHOENIX AND BOONE)

39. King incorporates all prior paragraphs of the Petition as though fully set forth herein. Phoenix and Boone breached the sales contact (Exhibit 1) in the following respects:

40. Failing to provide King with a safe and habitable residence.

41. Failing to provide King with a marketable residence.

42. Failing to properly complete the construction of the residence prior to reselling it to King.

43. Selling King the Home that was known by or should have been known by the Defendants to contain significant construction defects, water damage and presence of toxic mold.

44. King has been damaged by the failures of the Defendants in an amount in excess of $10,000.

COUNT II

RESCISSION OF THE REAL ESTATE CONTRACT

(AGAINST PHOENIX AND BOONE)

45, King incorporates all prior paragraphs of the Petition as though fUlly set forth herein.

46. On or about November 30, 2010 King executed the real estate contract to purchase the Home and on or about December 47. 2010, the Defendants executed the real estate contract to sell the Home (Exhibit 1). The purchase price of the Home was $850,000.

47. On or about January 7, 2011, the closing was held and the Home was purchased by King from the Defendants.

48. At the time of executing the contract and closing on the Home, King believed the Home was properly constructed, free of structural defects and habitable.

49. As previously noted prior paragraphs, King discovered significant construction defects, water damage and toxic mold in the Home soon after occupying the Home.

50. On or about April 25, 2011, King notified the Defendants of the presence of the toxic mold and water damage and requested that the Defendants purchase the Home back from her.

51. The Defendants have refused to purchase the Home back from King and have further refused to provide any remedy to the construction defects and presence of toxic mold.

52. King continues to offer to sell the Home back to the Defendants.

53. King has been damaged by the failures of the Defendants in an amount in excess of $10,000 and demands judgment against the Defendants to rescind the real estate contract and require the Defendants to purchase the Home back from King.

COUNT III

RESCISSION OF THE PURCHASE MONEY Wit&r MORTGAGE

(AGAINST PHOENIX AND BOONE)

54. King incorporates all prior paragraphs of the Petition as though fully set forth herein.

55. On or about January 7, 2011, King and the Defendants executed a �Purchase Money Wrap Mortgage� (Exhibit 2) and �All-Inclusive Wrap Around Promissory Note� (Exhibit 3).

56. The purpose of these documents was to facilitate the purchase of the Home and to induce King to complete the sale.

57. Per these documents, King is obligated to the Defendants and the Bank to pay an amount that includes the remainder of the existing mortgage that the Defendants hold on the Home.

58. At the time of executing these documents, King believed the Home to be properly constructed, free of structural defects and habitable.

59. Soon after executing these documents and purchasing the Home, King discovered significant structural defects and toxic mold present in the Home, thus rendering the home un-inhabitable.

60. In or about April 2011, King notified the Defendants of the presence of the toxic mold and requested that the Defendants purchase the Home back from her.

61. The Defendants have refused to purchase the Home back from King and have further refused to provide any remedy to the construction defects and presence of toxic mold.

62. King continues to offer to sell the Home back to the Defendants and seek release from the Purchase Money Wrap Mortgage and All4nclusive Wrap Around Promissory Note from the Defendants.

63. King has been damaged by the failures of the Defendants in an amount in excess of $10,000 and demands judgment against the Defendants to rescind the Purchase Money Wrap Mortgage and All-Inclusive Wrap Around Promissory Note and require the Defendants to purchase the Home back from King and release this mortgage and obligation.

COUNT IV

FW4UD

(AGAINST PHOENIX AND BOONE)

64. King incorporates all prior paragraphs of the Petition as though fUlly set forth herein.

65. The Defendants represented to King that they were competent, experienced homebuilders and that the Home was of sound construction and habitable for safe occupation.

66. After purchasing the Home, King discovered significant construction defects, water damage and the presence of toxic mold in the Home, rendering it uninhabitable and unsafe.

67. In addition to the presence of toxic mold, numerous other construction defects exist in the Home that serve to diminish its value and will require King to pay for substantial repairs and reconstruction.

68. The Defendants� material representations regarding the home were false.

69. The Defendants made these material representations while either knowing they were false or made these material representations recklessly and negligently without knowledge of the truth.

70. Based on information and belief, the Defendants were aware of the construction defects and water damage issues prior to selling the Home to King.

71. Defendants made these material representations with the intent that King act upon them and purchase the Home and commit to the Purchase Money Wrap Mortgage.

72. King relied on the representations of the Defendants and purchased the Home and has been materially damaged.

73. King has been damaged by the fraud of the Defendants in an amount in excess of$1O,000.

COUNT V

NEGLIGENCE

(AGAINST PHOENIX AND BOONE)

74. King incorporates all prior paragraphs of the Petition as though fully set forth herein.

75. The Defendants purchased the Home as a distressed property hoping to complete the construction and sell the Home for a profit.

76. The Defendants had a duty to inspect the Home, complete construction of the Home and make any repairs or modifications to make it safe, habitable and appropriate for sale.

77. The Defendants knowingly failed to properly complete construction of the home in an appropriate manner and sold the Home to King with substantial construction defects, water damage and the presence of toxic mold.

78. When the Defendants sold the Home to King, the Defendants knew or should have known that construction defects, water damage and toxic mold existed.

79. As a result of the Defendants negligence, King has suffered loss in an amount in excess of$10,000.

COUNT VI

BREACH OF WARRANTY

(AGAINST PHOENIX AND BOONE)

80. King incorporates all prior paragraphs of the Petition as though fully set forth herein.

81. King and the Defendants executed a New Home Limited Waif anty (�Warranty�) dated January 7, 2011 (Exhibit 4).

82. Provisions of the Warranty require specific actions by both parties to be in compliance with claims under the Warranty.

83. On November 4, 2011, King submitted via Certified Mail to the Defendants, her �Notice of Defects� (�Notice�). On November 14, 2011, Boone accepted receipt of the Notice, and per the strict provisions of the Warranty, was required to submit to King a written response within 15 days, or by November 29, 2011.

84. Boone failed to submit a response to King by November 29, 2011, and has failed to submit any response as of the filing date of this Petition.

85. By violating the express terms of the Warranty, Boone has voided his right to arbitration under the Warranty.

86. Defects exist in the Home under the following sections of the Warranty and should be addressed and remedied by the Defendants: Warranty Section B, Subsections

1-0-2; 2-4-1; 2-5-2; 4-3-1; 4-3-2; 4-4-1; 4-4-4; 4-4-5; 4-5-27; 6-6-2; 7-2-1; 9-1-1; 9-1-8;

9-4-3; 9-4-4; 9-4-7; 9-4-8; 9-4-9; 9-5-4; 11-4-2; 11-4-4.

87. On January 5, 2012, King submitted via Certified Mail to the Defendants, her �Second Notice of Defects� (�2 Notice�), which was received on January 6, 2012. The following defects in the Home are detailed in that Notice should be addressed and remedied by the Defendants: Warranty Section E, Subsections 2-5-4 and 3-1-1.

88. King has been damaged by the breach of warranty by the Defendants in an amount in excess of $10,000.

COUNT VII

PIERCING THE CORPORATE VEIL/ALTER EGO INSTRUMENTALITY

(AGAINST PHOENIX AND BOONE)

89. King incorporates all prior paragraphs of the Petition as though fully set forth herein.

90. Based upon information and belief, Phoenix Residential Construction, EEC is a corporate entity established by Boone for the sole purpose of purchasing, completing and selling the Home.

91. Based upon information and belief, Phoenix Residential Construction, LLC is not adequately funded or capitalized to provide an equitable remedy to King, and such undercapitalization was done with the intent of avoiding liability.

92. Phoenix Residential Construction, LLC has operated as an entity solely controlled by Boone and is a shell, instrumentality or conduit of Boone.

93. As a result of the fraudulent conduct of Boone in selling King the misrepresented, damaged and uninhabitable Home, the intermingled relationship between Phoenix and Boone is such that the corporate veil should be pierced.

94. The Defendants have used Phoenix Residential Construction, LLC in furtherance of fraud by selling King the Home that was known to be of faulty construction and contain toxic mold, or knowingly, recklessly and negligently failing to properly construct the Home.

95. The Defendants have used Phoenix Residential Construction, LLC in furtherance of fraud by selling King the Home by knowingly, recklessly and negligently misrepresenting to King the Home was of sound construction and habitable for safe occupation.

96. Boone is the alter ego and/or instrumentality of Phoenix, and in the interest of justice, King should be allowed to recover any damages in this case from Boone, individually, as well as Phoenix.

PRAYER FOR RELIEF

WHEREFORE, the King prays for judgment as follows:

Count I - Breach of Contract: The Real Estate Contract (Against Phoenix and Boone)

a. Judgment for compensatory damages in an amount in excess of $10,000, to be determined at trial;

b. Rescission of the Real Estate Contract;

c. An award of costs in this action, including reasonable attorney fees; and;

d. Such additional and further relief as is just and proper in the circumstances.

Count II � Rescission of the Real Estate Contract (Against Phoenix and Boone)

a. Judgment for compensatory damages in an amount in excess of $10,000, to be determined at trial;

b. Rescission of the Real Estate Contract;

c. An Order for the Defendants to purchase the Home back from King for the original contract price plus upgrade and improvement costs incurred by King;

d. An award of costs in this action, including reasonable attorney fees; and;

e. Such additional and further relief as is just and proper in the circumstances.

Count III � Rescission of the Purchase Money Wrap Mortgage (Against Phoenix and Boone)

a. Judgment for compensatory damages in an amount in excess of $10,000, to be determined at trial;

b. Rescission of the Purchase Money Wrap Mortgage and All-Inclusive Wrap Around Promissory Note;

c. Full release of King from the Purchase Money Wrap Mortgage and All-Inclusive Wrap Around Promissory Note;

d. An Order for the Defendants to purchase the Home back from King for the original contract price plus upgrade and improvement costs incurred by King;

e, An award of costs in this action, including reasonable attorney fees; and

f. Such additional and further relief as is just and proper in the circumstances.

Count IV � Fraud (Against Phoenix and Boone)

a. Judgment for compensatory damages in an amount in excess of $10,000, to be determined at trial;

b. Judgment for punitive damages in an amount to be determined at trial;

c. An award of costs in this action, including reasonable attorney fees; and

d. Such additional and further relief as is just and proper in the circumstances.

Count V � Negligence (Against Phoenix and Boone)

a. Judgment for compensatory damages in an amount in excess of $10,000, to be determined at trial;

b. Judgment for punitive damages in an amount to be determined at trial;

c. An award of costs in this action, including reasonable attorney fees; and

d. Such additional and further relief as is just and proper in the circumstances.

Count VII - Breach of Warranty (Against Phoenix and Boone)

a. Judgment for compensatory damages in an amount in excess of $10,000, to be determined at trial;

b. Declaration that Defendants have breached the Warranty and waived their right to arbitration under the Warranty;

c. An award of costs in this action, including reasonable attorney fees; and;

d. Such additional and flirther relief as is just and proper in the circumstances.

Count VII� Piercing the Corporate Veil/Alter Ego Instnimentality (Against Phoenix and Boone)

a. Declaration from the Court that Boone is the alter ego and/or instrumentality of Phoenix;

b. Declaration from the Court that the corporate veil of Phoenix be pierced;

c. Declaration from the Court that King should be allowed to recover any damages in this case from Boone, individually, as well as Phoenix;

d. An award of costs in this action, including reasonable attorney fees; and

e. Such additional and flirther relief as is just and proper in the circumstances.





Answer for Phoenix Residential Construction



1. Phoenix is without knowledge or information sufficient to form a belief as to the state ofPlainti ffs residence. Otherwise, Phoenix admits the allegations of Paragraph 1.

2. Admitted.

3. It is admitted that Brad Boone is a resident of Oklahoma and an officer of Phoenix. It is denied that Brad Boone �does business� through that entity.

4. Phoenix denies that any conduct on the part of defendants gave action in favor of Plaintiff

5. Admitted.

6. Admitted.

7. Phoenix, but not Brad Boone, had previously purchased the Home from the prior owner. Otherwise, the allegations are admitted.

8. Phoenix, but not Brad Boone, completed construction of the Home and offered it for sale. Phoenix denies any representations regarding its status as a homebuilder,

9. Phoenix admits that Plaintiff dealt with Brad Boone and Phoenix�s real estate agent. Otherwise, Phoenix denies the allegations of Paragraph 9.

10. Phoenix admits a contract for the purchase of the Home by Plaintiff from Phoenix was executed on November 30, 2010. Brad Boone was not a party to said contract.

11. Admitted.

12. Denied.

13. It is admitted that Phoenix and Plaintiff, but not Brad Boone, executed a �New Home Limited Warranty.�

14. Denied.

15. Denied.

16. Denied.

17. Phoenix is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 17.

18. Denied.

19. Denied.

20. Denied.

21. Denied.

22. Denied.

23. Denied.

24. Denied.

25. Denied.

26. Denied.

27. Denied.

28. Denied.

29. Denied.

30. Denied.

31. Denied.

32. Denied.

33. Denied.

34. Denied.

35. Denied.

36. Denied.

37. Denied.

38. Denied.

39. Denied.

40. Denied.

41. Denied.

42. Denied.

43. Denied.

44. Denied.

45. Denied.

46. Phoenix admits that it executed with Plaintiff the real estate contract to purchase the Home as alleged in Paragraph 46, but denies that Brad Boone was a party to said contract.

47, Phoenix admits that Phoenix closed on the sale on the Home to Plaintiff on January

7, 2011, but denies that Brad Boone was a party to such closing.

48. Phoenix is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 48.

49. Denied.

50. Denied.

51, Denied.

52. Phoenix is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 52.

53. Denied.

54. Denied.

55. Phoenix admits that Plaintiff executed in favor of Phoenix the PromissoryNote and Mortgage referred to in Paragraph 55 but denies that Brad Boone was a party to said documents.

56. Denied.

57. The Promissory Note and Mortgage executed by Plaintiff in favor of Phoenix speak for themselves. Phoenix denies any further allegations of Paragraph 57.

58. Phoenix is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 58.

59. Denied.

60. Denied.

61. Denied.

62. Phoenix is without knowledge or information sufficient to form a belief as to the allegations of Paragraph 62.

63. Denied.

64. Denied.

65. Denied.

66. Denied.

67. Denied.

68. Denied.

69. Denied.

70. Denied.

71. Denied.

72. Denied.

73. Denied.

74. Denied.

75. Denied.

76. Denied.

77. Denied.

78. Denied.

79. Denied.

80. Denied.

81. Phoenix admits that Phoenix and Plaintiff executed a New Home Limited Warranty but denies that Brad Boone was a party to such agreement.

82. The provisions of the New Home Limited Warranty speak for themselves.

83. Denied.

84. Denied.

85. Denied.

86. Denied.

87. Denied.

88. Denied.

89. Denied.

90. Denied.

91. Denied.

92. Denied.

93. Denied.

94. Denied.

95. Denied.

96. Denied.

AFFIRMATIVE DEFENSES

As and for Affirmative Defenses herein, Phoenix alleges and states as follows:

1. The New Home Limited Warranty agreement between Phoenix and Plaintiffrequired that any claims or disputes be determined by binding arbitration. Phoenix makes demand for such arbitration and requests that this case be dismissed in deference to such arbitration.

2. The allegations fail to state a claim for which relief can be granted.

3. The Plaintiffs claims are barred by the equitable legal doctrines of estoppel and laches.

4. Plaintiffs own actions caused any damages of which the Plaintiff complains in Plaintiffs Petition herein. Such claims are barred by Plaintiffs contributory negligence.

WHEREFORE, having answered, Phoenix requests that the Court dismiss Plaintiffs cause of action, refer Plaintiffs claims to arbitration, and award Phoenix its costs of defense, including attorneys� fees, incurred herein.



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



2. GENERAL STATEMENT OF FACTS:

Plaintiff is a resident of the State of California and the owner of the home and real property located on Lot 15, Block 1, Aberdeen Lake, an Addition to the City of Jenks, Tulsa County, State of Oklahoma; also known as: 1430 East l221 Court, Jenks, Oklahoma. Phoenix Residential Construction, LLC, is an Oklahoma Limited Liability Company, conducting business in Oklahoma. Brad Boone is a resident of Oklahoma and is the Manager of Phoenix Residential Construction, LLC. The Robert B. Boone Revocable Trust is an Oklahoma Trust and Member of Phoenix Residential Construction, LLC. McGraw, Davisson, Stewart, LLC, is an Oklahoma Limited Liability Company, doing business as McGraw Realtors in Oklahoma. Sherri Sanders is a resident of Oklahoma, and was an agent of McGraw Realtors, during all relevant times. Robert Curnutt is a resident of Oklahoma, and was an agent of McGraw Realtors, during all relevant times. At all relevant times, Sherri Sanders and Robert Curnutt operated as independent contractors through real estate broker, McGraw Davisson Stewart, LLC, and were licensed real estate agents. Johnny Woolman is the Former President and current Chairman of the Board of McGraw Davisson Stewart, LLC, who lives and does business in Oklahoma.

This controversy arises from Plaintiffs purchase of the home from Phoenix Residential

Construction, LLC, on January 7, 2011, during which Robert Cumutt acted as the Real Estate

Agent for Plaintiff, and Sherri Sanders acted as the Real Estate Agent for Defendant, Phoenix

Residential Construction, LLC.

3. PLAINTIFF�S CONTENTIONS:

The McGraw Defendants object to the entirety of Plaintiffs fact specific Contentions as stated herein and identified as Paragraphs A) through UU) as an improper designations for a Pretrial Order.

A. During November of 2010, King began to inquire about purchasing the home and real property, known as Lot 15, Block 1, Aberdeen Lake, an addition to the City of Jenks, Tulsa County, State of Oklahoma; also known as: 1430 East 122nd Court, Jenks, Oklahoma (�Home�).

B. Phoenix and Boone had previously purchased the property from the original builder, who had sold the unfinished home to Phoenix and Boone at a significant �fire sale� discount, because of financial difficulties.

C. Phoenix and Boone hired a general contractor, that completed construction on the Home and property. Phoenix and Boone then offered the Home and Property for sale to the public, while falsely representing themselves as professional, experienced and competent homebuilders. In fact, neither have ever built a Home at any time, either before or since this transaction.

D. Throughout the review and purchase process, King dealt directly with Boone and Real Estate Agents of the Defendants, Sanders and Curnutt, who were Agents of McGraw. At all times during sales negotiations, Boone, Sanders, Curnutt and McGraw represented to King that Boone was the homebuilder, and someone who was competent to construct the Home. This material representation was false. Furthermore, all of the Defendants conspired with each other to sell this �fire sale� defective home to Plaintiff, while divulging confidential information to Woolman, who was a guarantor on the loan and part owner of the home, in spite of the conflicts of interest and illegalities involved, all without Plaintiffs knowledge. The Defendants also failed to divulge the fact that the home was previously owned and only partially built by Woolman�s brother�s company, before it became insolvent, and sold to Woolman�s Co-Director on the Board of ONB Bank, Boone, who has never built a home or anything else in his life.

E. A contract to purchase the Home was executed by King on November 30, 2010, and by Boone on December 4, 2010.

F. The closing was held on January 7, 2011, whereby King took title to the property.

G. The Defendants conspired to concoct, in ftirtherance of their fraud, and as an added inducement for King to purchase the Home, an alleged �creative financing opportunity.� The Defendants offered Plaintiff a �Purchase Money Wrap Real Estate Mortgage� and �All-Inclusive Wrap Around Promissory Note�, which were signed by King and Boone on January 7, 2011. These documents obligated King to unknowingly make payments on an existing mortgage that was held by Boone and Phoenix and guaranteed by Woolinan.

H. King and the Defendants also executed a �New Home Limited Warranty�, dated January 7, 2011, which turned out to be a fraudulent and worthless sham.

I. At all times prior to and at the time of sale, the Defendants represented that the Home was properly constructed and habitable for living. These material misrepresentation were false.

J. In reliance upon the representations that she had purchased a well constructed Home and that both Home and property were safe and habitable, King made and continues to make substantial upgrades and repairs to the Home, upon discovery of defects, water damage and toxic mold. These upgrades and repairs have cost King several hundred thousand dollars. Furthermore, several hundred thousand dollars remain to again repair the Home, as a result of defects that were present therein since inception. King has also incurred other substantial expenses and damages, including, but not limited to moving expenses to relocate from California to Oklahoma, and as a result of her return to California, where she now lives.

K. Soon after purchasing the Home, King hired contractors to complete some upgrades to the Home. A contractor who was installing tile in the lower level discovered water damage that pre-dated King�s ownership of the Home.

L. Due to upgrades being completed in the Home and a cross-country moving schedule, King did not move into and begin to occupy the Home until on or about March 31,

2011.

M. Immediately after moving into the Home and thereafter, King and other people occupying the Home began experiencing health problems, which have caused medical treatment. King�s illnesses were ongoing and occurred when King and other people stayed in the Home. These health problems have been diagnosed as the result of TOXIC MOLD.

N. During April of 2011, the first significant rainfall occurred since King occupied the Home. During this rainfall, King discovered that significant water was leaking into various areas of the first floor of the Home.

0. In April of 201 1, King then discovered the presence of toxic mold in the basement walls of the Home. Based upon the nature, extent and growth phase of the toxic mold, these defects were present prior to King�s purchase of the Home, as determined by experts upon inspection.

P. In April of 2011, King also discovered significant water damage in the Home. Based upon the condition of the water damage, these defects were present prior to King�s purchase of the Home.

Q. Upon further investigation, it was discovered that the concrete retaining wall, which formed a part of the basement, was constructed improperly, while the Home�s yard elevation was constructed improperly, thereby allowing water to enter the basement wall. This defect promoted the presence and growth of toxic mold and significant water damage.

R. The Defendants knew or should have known that these significant construction defects existed.

S. In a rush to induce King to purchase the Home, the Defendants, Boone and Phoenix, failed to properly construct the Home and make its condition habitable.

T. The Home was not habitable due to the presence of toxic mold for a lengthy period of time.

U. In April of 2011, King notified Boone of the problems and construction defects associated with the Home.

V. In April of 2011, Boone personally visited the Home, inspected the damage and assured King that the problems would be addressed and corrected.

W. Thereafter, Boone indicated to King that he had attempted to fix some drainage problems by installing surface drains on the front side of the Home. These surface drains are located near an area where the water has infiltrated the basement walls. However, this drainage work was completed prior to King�s purchase of the property.

X. The Defendants knew or should have known of the drainage problems and faulty construction related to the concrete retaining wall and basement area, prior to the sale of the Home to King, but failed to properly disclose the problems, merely covering them up and failing to inform King, prior to her purchase, which caused additional and increasing toxic mold build up.

Y. Since being notified of the problems with the Home, Boone, Phoenix and Trust have failed and refused to remedy the problems and construction defects.

Z. After unsuccessful attempts to convince Boone and Phoenix to remedy the problems and construction defects with the Home, King submitted her �Notice of Defects� pursuant to the Warranty, dated November 4, 2011, within which Boone and Phoenix were required to submit a written response to King within fifteen (15) days.

AA. Boone and Phoenix have never responded to the �Notice of Defects� and have breached the Warranty.

BR. Phoenix is a corporate entity, which was established by Boone for the ci purpose of purchasing, completing and selling this Home.

CC. Phoenix is a shell, instrumentality or conduit of BOONE and TRUST.

PD. Phoenix lacks corporate assets and is undercapitalized to perform the purpose for which it was established.

EE. Boone, Phoenix and Trust have used Phoenix in furtherance of their fraud, by selling the Home to Plaintiff, which contained toxic mold, while willfully, recklessly and negligently failing to properly construct the Home.

FF. Boone, Phoenix and Trust have used Phoenix in furtherance of fraud, by selling King the Home, while willfully, recklessly and negligently misrepresenting that the Home was of sound construction and habitable for safe occupation.

GG. As a result of the conduct of Boone, Phoenix and Trust, these entities may be said to be the alter egos and/or instrumentalities of each other.

IIH. In May of 2013, during significant and substantial repairs that were ongoing on the Home, King learned, for the first time, that Defendants, McGraw, Sanders and Curnutt, (hereinafter �Realtors�) made material misrepresentations that were false when they knew them to be false, and made them as reckless assertions without any knowledge of their truth, with the intention that they be acted upon by Plaintiff, who relied upon these misrepresentations and suffered damages.

II. King alleges that Realtors concealed and failed to disclose past and present facts that they had a duty to disclose and that these facts were material. King alleges that Realtors concealed or failed to disclose these facts with the intent of creating a false impression of the actual facts in the mind of King, and that they concealed or failed to disclose them with the intention that they be acted upon by King, who relied upon these Defendants and thereby suffered damages.

JJ. King alleges that Realtors made false representations of past and present facts by words and conduct, which created an untrue and misleading impression of the actual past or present facts in the minds of King. King further alleges that these Defendants had a duty to disclose defects in the property and other material facts concerning the property because of their fiduciary and other relationships.

KK. Finally, King alleges that these Defendants deceived her by suggesting facts about the property, which were untrue and about which the Defendants had no reasonable grounds for believing their truth. Finally, King alleges that the Defendants suppressed facts that they were bound to disclose and instead, provided information about facts, which were likely to mislead and did mislead the Plaintiff the result of which she suffered damages.

LL. Defendant, CURNUTT, was King�s Realtor. However, he misrepresented his level of expertise with regard to the size and financial complexity of the transaction and his ability to handle the transaction. Thereafter, he intentionally concealed material facts relating to beneficial interests in the home concerning individuals who owned, were employed by and otherwise associated with McGRAW.

MM. More specifically, CURNUTT did not disclose the fact that he spoke on a regular basis with the President and part owner of McGraw, John Woolman, currently the Chairman of the Board, regarding this transaction, whom King has now learned is the brother of the original owner of this Home, guaranteed the construction loan and was a part owner of the property, who conspired with the other Defendants to unload this defective �fire sale �property upon Plaint

RR. CURNUTT failed to obtain information concerning BOONE/PHOENIX�s original transaction with First National Bank, despite King�s request to do so. CURNUTT breached his fiduciary duties of loyalty to King as a client, by not acting in her best interests, by misrepresenting himself, concealing material facts concerning the defective home, and breaching his duty to avoid impropriety or perception of a conflict of interest, all of which compromised his loyalty to King.

CURNUTT breached his duty of obedience as a real estate agent, and did not obey or promptly and efficiently follow King�s instructions. CURNUTT violated subchapter 15, Section 605, 10-15-1 of the Oklahoma Real Estate License Code and Rules, regarding disclosure of beneficial interests or referrals, wherein at D.2, he should have disclosed the existence of beneficial interests, but instead, misrepresented and concealed all of these facts.

SS. Defendant, SANDERS, was the Agent for the Sellers and misrepresented her status as the Listing Agent. She concealed the fact that although she was one of McGRAW�s top producing Agents, the President and now, Chairman of the Board of McGRAW, John Woolman, encouraged her to take the listing of the home as opposed to selecting the listing pursuant to the normal process. She concealed from King material facts relating to beneficial interests in the home of individuals who owned, were employed by and had ownership interest in McGRAW, and misrepresented Co-Defendant, BOONE, as the �builder� of the home, when in fact, he was not the builder, is incompetent, dishonest, and has never built anything. She concealed and misrepresented work that had been performed on the property and other work that had not been performed, and parties involved in the home�s various transactions, including the fact that her son worked for the roofing company, Prestige Roofing and Remodeling, LLC, the history of the property, and significant defects, about which she knew or should have known.

SANDERS failed to disclose material financial matters relating to the property, including a bankruptcy proceeding that involved the home and prior liens against it. She falsely assured Plaintiff, in a very similar fashion to King�s own Agent, CURNUTT, that King should proceed with the Purchase Money Mortgage and Promissory Note, indicating that the bank was reputable, that BOONE and PHOENIX were reputable and trustworthy, that all of this performance was done to �accommodate King�, who should not delay the closing.

SANDERS lied about the Guarantors for BOONE�s loan, and falsely advised King that only BOONE and PHOENIX were involved with the original loan, when in fact, Woolman, her boss, was the guarantor and part owner of this property. SANDERS further lied about the financial history of the home, indicating that BOONE had bought it for �close to the selling price� when in fact, this allegation is completely false, and was made with further intent to deceive the King. In fact, this home was previously described as a �fire sale� in documents produced after the lawsuit was filed.

SANDERS concealed documents relating to prior transactions associated with the home that were represented as �private transaction documents,� when they should have been disclosed to Plaintiff.

SANDERS assured King that the Purchase Money Wrap and Note were standard documents, commonly used in Oklahoma, giving the example of a man who purchased property for his mistress in order to keep it confidential. SANDERS further assured Plaintiff that she should not worry about the transaction and that it was her only option.

SANDERS violated the Oklahoma Real Estate Commission Disclosure Guidelines and breached her duties and responsibilities, all of which are mandatory and may not be waived. She failed to be honest with King concerning the real facts pertaining to the Home, failed to disclose relevant information concerning the property under the Residential Property Condition Disclosure Act and failed to comply with the Oklahoma Real Estate Code.

SANDERS violated Section 836 concerning her duties as a real estate licensee and purposely failed to disclose defects to the property that were known or should have been known by her as an Agent for the Seller.

SANDERS concealed the fact that her son�s company, Prestige Roofing and Remodeling, LLC, would be hired to replace the roof on the home following the close of the transaction, another example of self-dealing and non-disclosure of related party interests in the transaction, all in violation of her fiduciary and other duties.

SANDERS failed to disclose that she was asked by the supervising Broker for the benefit of the President and now CEO of McGraw to cut her commission to 1%, in order to benefit the financial interest of her superiors and Defendants, to which she agreed, all without advising King. CURNUTT was similarly approached but declined to cut his commission, due to fraudulent and unethical conduct during the negotiations, helping to close this fraudulent transaction.

SANDERS, made misrepresentations concerning the Residential Property Disclosure Statements, which were replete with misrepresentations and inaccuracies.

TT. MCGRAW is vicariously liable for the actions of the two Agents, as previously described. In addition, John Woolman, the President and now CEO of McGRAW, had an interest in and history with the property, none of which was disclosed to King. Both SANDERS and CURNUTT knew of this fact, yet no one within McGRAW or otherwise made proper disclosures. Instead, McGRAW intentionally withheld material information from King, none of which was provided to her in order to consummate the sale. McGRAW violated the Seller�s Residential Property Condition Disclosure Statements, knowing that BOONE and PHOENIX had performed work on the property, in order to modify the drainage and other matters, without disclosing this fact to King.

McGRAW did not answer questions truthfully or correctly and was in a position to know the full history of the Home, including its design flaws, defects and substandard construction, all of which was a motive to conceal its history and chain of ownership.

UU. In June of 2015, as a result of heavy rainfalls, Plaintiff�s Home was again substantially damaged by water infiltration due to the defects in the Home, which existed since it was slowly and defectively constructed over the years. It remains uninhabited, unlivable, and in substantial need of reconstruction and repairs.

Further, Phoenix, Boone, and the Trust deny that Phoenix was an instrumentality of fraud or that Phoenix is alter ego of Boone and the Trust. Phoenix was established for a legitimate business purpose, was sufficiently capitalized, and conducted business with all necessary formalities. At all relevant times Boone and the Trust acted in their capacities as manager and member, respectively, of Phoenix. Boone in no way acted in an individual capacity.

Additionally, King alleges all defendants conspired with each other to sell King a defective home. King makes this allegation despite the fact that Phoenix walked away from negotiations with King because the parties� could not initially agree to pricing terms. Phoenix, Boone, and the Trust deny they conspired with any other defendants.

Finally, King alleges Phoenix breached the home warranty executed by the King and Phoenix at closing. Phoenix denies it breached the home warranty. None of the items identified in King�s warranty demand letters were covered by the warranty.

5. DEFENDANTS, MCGRAW, SANDERS, CIJRNUTT AND WOOLMAN�S

CONTENTIONS:

A) The McGraw Defendants deny each and every allegation of Plaintiffs First, Second, Third and Fourth Amended Petitions alleging improper action by these Defendants and/or any of their agents or representatives.

B) The McGraw Defendants deny any wrongdoing in their actions and/or omissions regarding the subject Home as alleged by Plaintiff.

C) The McGraw Defendants deny they engaged in any acts of fraud/false representatiorilnondisclosure or concealment/deceit against Plaintiff with respect to the subject Home as alleged by Plaintiff.

D) The McGraw Defendants deny they engaged in any acts of civil conspiracy against Plaintiff with respect to the subject Home as alleged by Plaintiff.

E) The McGraw Defendants are not the proximate cause of any alleged injury or damages to Plaintiff.

F) Any damages or harm suffered by Plaintiff was caused by the actions and omissions of Plaintiff herself or by parties other than the McGraw Defendants.

G) Plaintiff is not entitled to an award of punitive and/or exemplary damages and her claim for punitive damages is unconstitutional.

H) The McGraw Defendants complied with all the duties and obligations of a real estate licensee and/or broker with regards to Plaintiffs purchase of the subject Home.

I) The McGraw Defendants did not violate any applicable provision of the Oklahoma Real Estate License Code and Rules effective at all relevant time periods with respect to the listing, sale and subsequent purchase of the subject Home by Plaintiff.

J) Plaintiffs claims against the McGraw Defendants are governed by the Oklahoma Residential Property Condition Disclosure Act effective at the time of Plaintiffs purchase of the home.

K) The McGraw Defendants did not violate any provision of the Oklahoma Residential Property Condition Disclosure Act effective at the time of Plaintiffs purchase of the home.

The McGraw Defendants further refer to and incorporate herein any and all of their Defenses as set forth in Section 8 of this Pre-trial Conference Order.

6. PLAINTIFF�S CLAIMS: Plaintiff hereby incorporates and re-alleges all of her claims contained within her Fourth Amended Petition, except those which have been dismissed, which are summarized below as follows:

A. Breach of Contract (against Phoenix, Boone and Trust)

B. Fraud (against Phoenix, Boone and Trust)

C. Negligence (against Phoenix, Boone and Trust)

D. Breach of Warranty (against Phoenix, Boone and Trust)

E. Piercing of the Corporate Veil/Alter Ego Instrumentality (against Phoenix, Boone and Trust)

F. Fraud/False RepresentationfNondisclosure or Concealment/Deceit (against all Defendants)

G. Violations of the Consumer Protection Act (�OCPA�) (against Phoenix, Boone, Trust.

H. Civil Conspiracy (against all Defendants)

DAMAGES

Plaintiff alleges entitlement to unspecified Actual and Punitive Damages, interest, court costs and attorney fees.

Defendants Phoenix Residential Construction, LLC, Brad Boone, and the Robert B. Boone Revocable Trust deny Plaintiff is entitled to an award of actual or punitive damages,

interest, court costs, and attorney fees against them.

Defendants McGraw Realtors, Sanders, Curnutt and Woolman deny that Plaintiff is entitled to any award of actual and punitive damages, interest, court costs or attorney fees and further state that an award of damages, if any, is governed and limited by the Oklahoma Residential Property Condition Disclosure Act, Okla. State. Tit. 60 Sec. 83 1-839 (2011).

The McGraw Defendants further object to Plaintiff�s reference to �unspecified� damages herein as improper and vague in this Pre-trial Order.

7. DEFENDANTS PHOENIX RESIDENTIAL CONSTRUCTION, LLC, BRAD

BOONE, AND THE ROBERT B. BOONE REVOCABLE TRUST�S DEFENSES:

Theories of Defense

Authority

Plaintiffs claims for relief are barred, in whole or in part, by the equitable doctrine of laches.

Common law

Plaintiffs claims for relief are barred, in whole or in part, because she has failed to state a claim upon which relief may be granted.

Common law

Plaintiffs claims for relief are barred, in whole or in part, by the equitable doctrine of estoppel.

Common law

Plaintiffs claims for relief are barred, in whole or in part, by the doctrine of waiver.

Common law

Plaintiffs claims for relief are barred, in whole or in part, by the applicable statute(s) of limitation.

Common law

Plaintiff s recovery is barred or reduced by her own breaches of contract or of the duty of good faith and fair dealing.

Common law

Plaintiffs recovery is barred or reduced by these Defendants� right of setoff.

Common law

Plaintiffs claims are barred, in whole or in part, by the express terms of a written contract.

Common law

Plaintiffs claims are barred, in whole or in part, due to Plaintiffs spoliation of evidence.

Common law

Plaintiff s claims are barred, in whole or in part, for lack of the requisite intent on the part of these Defendants.

Okla. State. Tit. 15 � 58, 59; Common law

Plaintiff fails to state facts sufficient to support an award of compensatory damages, exemplary or punitive damages, injunctive relief, accounting and/or attorneys� fees against these Defendants.

Common law

Plaintiffs recovery in this action is barred, in whole or in part, by her failure to exercise reasonable care and diligence to mitigate any alleged damages.

Common law

Plaintiffs claims are barred in whole or in part by the Doctrine of Assumption of Risk.

Okia. State. Tit. 23 � 12; Common law

Plaintiff�s claims are barred in whole or in part by the Doctrine of Caveat Emptor.

Common law

Plaintiffs claims are barred in whole or in part by these Defendants� compliance with applicable statutes.

Okla. State. Tit. 23 � 12; 60 O.S. 2011 � 831, et seq.; Common law

Plaintiffs claims are barred in whole or in part by these Defendants� lack of actual or constructive knowledge.

Okla. State. Tit. 60 � 835 (B) (2); Okia. State. Tit. 15 � 752, 753; Common law

Plaintiffs claims are barred in whole or in part, or should be reduced, based upon Plaintiffs comparative and/or contributory negligence.

Okia. State. Tit. 23 � 13, 14; Common law

Plaintiffs claims are barred in whole or in party, or should be reduced, based upon the comparative and/or contributory negligence of non-parties.

Okla. State. Tit. 23 � 13, 14; Common law

No conduct by or attributable to the Defendants was the cause of any injury or damages to Plaintiff.

Common law; Okia. State. Tit. 23 � 15

Plaintiffs claims are barred because they are brought against the wrong party, Plaintiff has failed to join an indispensable party, and Plaintiff has failed to assert her claims against the real party at interest.

Okia. State. Tit. 12 � 2017, 2019; Common law

Plaintiff s alleged contract damages, in whole or in part, are not recoverable due to a lack of proximate cause or likelihood of result and are not clearly

Okla. State. Tit. 23 � 21; Common law

ascertainable in nature and origin.

8.

Plaintiff�s claims for punitive damages

Common law; Fifth and Fourteenth

are unconstitutional and violate the due

Amendment to the U.S. Constitution; Article 2,

process clauses of the Fifth and

Sec. 7 and 9 of the Oklahoma Constitution.

Fourteenth Amendments of the United

States Constitution, and of Article II,

Sections 7 and 9 of the Oklahoma

Constitution.

DEFENDANTS MCGRAW, SANDERS, CURNUTT AND WOOLMAN�S

(collectively referred to herein as the �McGraw Defendants�) DEFENSES:

Theories of Defense Authority

A) The McGraw Defendants deny each

Common Law

and every allegation of Plaintiffs

First, Second, Third and Fourth

Amended Petitions alleging improper

action by these Defendants andlor

any_of their_agents_or_representatives.

B) Each of the claims asserted in

Common Law

Plaintiffs First, Second, Third and

Fourth Amended Petitions as to the

McGraw Defendants fail to state a

claim for which relief may be

granted.

C) The claims alleged in Plaintiffs

Common Law

First, Second, Third and Fourth

Amended Petition are barred in

whole or in part for failure to plead

allegations of fraud with sufficient

particularity.

D) Plaintiff has failed to plead her civil

Common Law

conspiracy claim with the

particularity required_by_law.

E) Plaintiff cannot establish any of the

Common Law

necessary elements required to

maintain any civil conspiracy claim

against the McGraw Defendants.

F) Plaintiffs claims are barred by the

Common Law

doctrines of laches, estoppel and

waiver.

G) All of Plaintiffs claims as to the

Common Law; Okla. Stat. tit. 12 Sec.

McGraw Defendants are barred by

95(A)(3) (2011)

the applicable statute of limitations.

H) The McGraw Defendants are not the proximate cause of any alleged injury or damages to Plaintiff.

Common law; Okla. State. Tit. 23 Sec. 15;

I) Plaintiff cannot establish any of the necessary elements required for any claim of fraud or false representation against the McGraw Defendants.

Common Law; OUJI 18.2 (Supp. 2014)

J) Plaintiff cannot establish the elements required for any claim of nondisclosure/concealment or deceit against the McGraw Defendants.

Common Law

K) Plaintiff has not incurred or suffered any damages for which she is entitled to any recovery or relief against the McGraw Defendants.

Common Law

L) To the extent Plaintiff seeks any equitable relief against the McGraw Defendants, all such claims are barred by the doctrine of unclean hands.

Common Law

M) Any damages or harm suffered by Plaintiff was caused by the actions and omissions of Plaintiff herself, or by parties other than the McGraw Defendants

Common law

N) Plaintiff has failed to state facts sufficient to support her claim for punitive damages and an award of compensatory damages, injunctive relief, accounting andlor attorney fees against these Defendants.

Common law

0) Plaintiffs claim for punitive damages is unconstitutional and violates the due process clauses of the Fifth and Fourteenth Amendment to the United States Constitution and Article 2, Sees. 7 and 9 of the Oklahoma_Constitution.

Common law; Fifth and Fourteenth

Amendment to the U.S. Constitution;

Article 2, Secs. 7 and 9 of the Oklahoma

Constitution.

P) The McGraw Defendants had no actual knowledge of the presence of �mold� or �construction defects� at the subject home as alleged by Plaintiff prior to the discovery of

Okia. State. Tit. 60 Secs. 831-839; Common Law

same by Plaintiff in April, 2011, and notice to the McGraw Defendants upon service of the subject lawsuit.

Q) The McGraw Defendants did not perform any construction of the subject home.

Common law

R) The McGraw Defendants never resided in the home at anytime prior or subsequent to Plaintiffs purchase of the home.

Common law; Okia. State. Tit. 60 Secs.

831-839

S) Defendant Johnny Woolman had no financial or beneficial interest in the subject home at the time of Plaintiffs_purchase_of same.

Common law; Okia. Stat. tit. 60, Secs. 1, 21, 331; Okla. Stat. tit. 22 Sec. 1402.

T) Pursuant to applicable Oklahoma law in effect at the time a real estate licensee has no duty to the seller or the purchaser to conduct an independent inspection of the property and has no duty to independently verify the accuracy or completeness of any statement made by the seller in the disclaimer or disclosure statement completed by the_seller.

Okla. Stat. tit. 60 Secs. 83 1-839

U) Plaintiff was provided the Disclaimer Statement of the Seller prior to her purchase of the subject home pursuant to applicable Oklahoma law in effect at that time.

Okla. Stat. tit. 60 Sec. 836

V) None of the actions of the McGraw Defendants as alleged by Plaintiff are illegal_or_unlawful.

Okla. Stat. tit. 60 Sec. 83 1-839

W) The McGraw Defendants did not violate, in any marmer, any applicable provision of the Oklahoma Real Estate License Code and Rules effective at the time of the listing, sale and subsequent purchase of the_subject home_by_Plaintiff.

Okia. Stat. tit. 59 Sec. 858-101 to

858-609.

X) Plaintiffs claims against the McGraw Defendants are governed by the Oklahoma Residential Property Condition Disclosure Act, Okia. Stat.

Okla. Stat. tit. 60, Secs. 831-839

tit. 60 Sec. 831-839 effective at the time of Plaintiffs purchase of the property which dictates that the sole remedy under the Act is for �actual damages, including the cost of repairing the defect, suffered by the purchaser as a result of the defect existing in the property as of the date of acceptance by the seller of an offer to purchase and shall not include the remedy of exemplary damages.�; Further, the Act �applies to, regulates and detennines rights, duties, obligations and remedies at common law or otherwise of the seller, the real estate licensee and the purchaser with respect to disclosure of defects in property and supplants and abrogates all common law liability, rights, duties, obligations and remedies therefore.�

Y) Plaintiffs claims against the

McGraw Defendants are time barred

pursuant to the Oklahoma

Residential Property Condition

Disclosure Act, Okia. Stat. tit. 60

Sec._831-839.

Okia. Stat. tit. 60, Sec. 837; Common law

Z) The McGraw Defendants did not violate, in any manner, any provision of the Oklahoma Residential Property Condition Disclosure Act effective during the relevant time period. Okia. Stat. tit. 60 Sec.

831-839.

Okla. Stat. tit. 60, Sec. 83 1-839.

.

AA) Pursuant to applicable Oklahoma law effective at the time of Plaintiffs purchase of the property, a real estate licensee has the duty to disclose to the purchaser any defects in the property actually known to the licensee prior to the acceptance of an offer to purchase and which were not included in the disclosure statement provided to the

Okia. Stat. tit. 60, Sec. 836

purchaser.

BB) Plaintiff may recover in a civil action only in the event of the failure of the real estate licensee to disclose to the purchaser any defects in the property actually known to the real estate licensee prior to the acceptance of an offer to purchase and which were not included in the disclosure statement provided to the purchaser.

law in that Oklahoma law has abrogated all forms of vicarious liability for real estate brokers and licensees.

Okia. Stat. tit. 60, Sec. 837(A)(3), (F)

CC) Plaintiff�s claim against McGmw iitnr fiik camittr cf

Okla. Stat, tit. 59 Sec. 858-360; Common

1 w

DD) McGraw Realtors cannot be liable to Plaintiff as a matter of law because neither Defendants Sherri Sanders, Robert Cumutt, nor Johnny Woolman are liable to Plaintiff.

Common law

EE) McGraw Realtors, as a legal entity, cannot conspire with any of its employees or agents.

15A C.J.S. Conspiracy, Secs. 21, 34 (2015); Common law

FF) As a broker, pursuant to applicable Oklahoma law effective at the time of Plaintiffs purchase of the property, the duties and responsibilities of McGraw Realtors are set forth in the Oklahoma Real Estate License Code and are exclusive and replace any fiduciary or other duties at common law.

OkIa. Stat. tit. 59 Secs. 858-35 1 - 858-360

GG) The McGraw Defendants complied with all of the requirements of the Oklahoma Real Estate License Code, applicable at the time of Plaintiffs purchase of the property, during the entire home purchase transaction involving Plaintiff.

Okla. Stat. tit. 59 Sec. 858-101 to

858-609.

HH) The McGraw Defendants had no duty

to Plaintiff to disclose the previous owners

of the Home at issue, or the financial

transaction history of the Home prior to her

purchase of same, Plaintiff received clear

and marketable title to the subject property

Okla. Stat. tit. 60 Sec. 831 et seq.; Okla. Stat. tit. 59 sec. 858-35 1 � 858-360.

II) Plaintiffs claims are barred, in whole or in part, due to Plaintiffs spoliation of evidence.

Common law

JJ) Plaintiffs claims are barred, in whole or in part, for lack of the requisite intent on the part of these Defendants,

Common law

1(K) Plaintiffs recovery in this action is barred, in whole or in part, by her failure to exercise reasonable care and diligence to mitigate any alleged damages.

Common law; OUJI 3d.

LL) Plaintiffs claims are barred in whole or in part by the Doctrine of Assumption of the Risk

Okia. Stat. tit. 23 Sec. 12; Common law

MM)Plaintiffs claims are barred in whole or in part by the Doctrine of Caveat Emptor

Common law

NN)Plaintiffs claims are barred in whole or in part, or should be reduced, based upon Plaintiffs comparative and/or contributory negligence.

Okla. Stat. tit. 23 Sec. 13, 14; Coimmon law; OUJI 3�

OO)Plaintiffs claims are barred in whole or in part, or should be reduced, based upon the comparative and/or contributory negligence of non-parties.

Olda. Stat. tit. 23 Sec. 13, 14; Common law; OUJI

PP) Plaintiffs claims are barred because they are brought against the wrong party; Plaintiff has failed to assert her claims against the proper party.

12 Okla. Stat. Ann. Sec. 2017, 2019, Common law



* * *

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

1 WOOLMAN, JOHNNY

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

4 BOONE, BRAD

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

4 PHOENIX RESIDENTIAL CONSTRUCTION LLC

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

5 BOONE, BRAD

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

5 PHOENIX RESIDENTIAL CONSTRUCTION LLC

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

6 BOONE, BRAD

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

6 PHOENIX RESIDENTIAL CONSTRUCTION LLC

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

7 BOONE, BRAD

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

7 PHOENIX RESIDENTIAL CONSTRUCTION LLC

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

8 CURNUTT, ROBERT

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

8 MCGRAW DAVISSON STEWART LLC

11-30-2015 DISPCVDM



SELLERS, JEFFERSON D.: PER PHONE CALL WITH JENNIFER ANNIS JURY TRIAL STRICKEN AS SETTLED.

8 SANDERS, SHERRI

James M. Atkinson, P.E., Roger A. Palmer, P.E.

Larry Miller, mould, Michael C. Herndon, P.C.