Thomas K. Ball v. Mark Close Roofing and Construction, Inc.

COMES NOW Thomas K. Ball, Trustee of the Pamela G. Ball Revocable Trust (hereinafter "Plaintiff”), and for its causes of action against Mark Close Roofing and Construction Inc., an Oklahoma Corporation (hereinafter "Defendant”) alleges and states as follows:

THE PARTIES

1. Plaintiff is an Oklahoma Revocable Trust dated March 5, 1999 and this petition is brought by the Trustee.

2. Defendant is a corporation incorporated under the laws of the State of Oklahoma.

BACKGROUND

3. The real property at issue, an office building located in Oklahoma County at the following address: 1616 South Boulevard Street, Edmond, Oklahoma, 73013 (hereafter "Property”) is owned by the Plaintiff.

4. Thomas K. Ball (hereafter "Mr. Ball”) is the Trustee for the Pamela G. Ball Revocable Trust and manages the Property. He is also a dentist who has his practice in the Property.

5. On or about February 1, 2010, the Property's roof (hereafter "Roof') began to leak in multiple locations when it would rain.

6. On or about August 2, 2010, Plaintiff and Defendant entered into a valid and written contract for Defendant to seal the Roof for a sum of Fifteen Thousand Nine Hundred Fifty Dollars ($15,950.00) (hereafter "Contract”), a copy of the Contract is attached hereto as Exhibit "A”.

7. Mark Close was the employee of Defendant that Mr. Ball primarily dealt with when discussing the Roof.

8. After Defendant performed the work, Plaintiff paid Defendant in full. A copy of the statement is attached hereto as Exhibit "B”.

9. The Contract warranted the material used for ten (10) years, and the labor performed for five (5) years.

10. In January or February of 2011, Mr. Ball noticed that the Roof was again leaking when it would rain.

11. Mr. Ball promptly reported the leaks to Defendant.

12. Defendant sent an employee who went up on the Roof briefly and may have performed some brief work, but the employee left before talking to Mr. Ball about the leak or any repairs he may have done.

13. In October or November 2011, after a signifant drought, it began to rain and the Roof experienced multiple significant leaks, causing problems for the tenants of the Property.

14. Mr. Ball promptly reported the leaks to Defendant.

15. Mark Close did not respond to Mr. Ball's reports until early December 2011, many weeks after the initial report. No reason was given for the slow response.

16. Referencing the Contract, Mi. Ball told Defendant that he needed to repair the leaks in the Roof.

17. Defendant sent an employee named Robert to the Property. Mr. Ball showed Robert the locations in the office where the Roof was leaking water. He also highlighted the green shingles on the Roof where Defendant had leaked white sealant.

18. Robert did some temporary repair work on the Roof and said that he would have to return later to do something more permanent.

19. The Roof continued to leak.

20. Neither Robert nor any other employee of Defendant returned to do the permanent repair or repair the white stained green shingles. Additionally, they gave no indication that they planned on returning.

21. Due to Defendant's failure to uphold the Contract, in December 2011, Plaintiff had three roofing companies evaluate the Roof. They all stated that Defendant's work was poorly performed and would need to be redone.

22. Plaintiff weighed his options and decided to replace the Roof, except for the outer green-shingled border. Plaintiff paid Forty Six Thousand Dollars ($46,000.00) for the new roof.

23. Additionally, Plaintiff had to replace a majority of ceiling tiles inside three of the office spaces for a cost of about Four Hundred and Twenty Five Dollars ($425.00).

24. Plaintiff has not yet replaced the green shingles that were negligently sprinkled with white sealant. The estimated cost for the repairs is Six Thousand Two Hundred and Seventy Eight Dollars ($6,278.00).

25. After the main portion of the Roof was replaced, Plaintiff called Defendant and talked to Mark Close. Plaintiff asked Mark Close to refund the Fifteen Thousand Nine Hundred Fifty Dollars ($15,950.00) because their work was below standard and did not seal the Roof.

26. Mark Close was belligerent and argumentative during the conversation. However, near the end of the conversation he said that they might be able to come to some sort of compromise.

27. Weeks later, Mark Close emailed Plaintiff and asked for pictures of the damaged Roof.

28. Plaintiff replied to the email by sending two evaluations from the roofing companies that inspected the Roof along with a few pictures showing minor damage to the outer portion of the Roof. He also sent pictures of the partially white stained green shingles.

29. Plaintiff asked for a response by March 2012. Defendant did not respond.

30. Defendant has not refunded the Fifteen Thousand Nine Hundred Fifty Dollars ($15,950.00).

FIRST CAUSE OF ACTION: BREACH OF WARRANTY

31. Paragraph 1-30 are incorporated by reference.

32. Defendant warranted the labor and materials in the Contract. However, before the expiration of the warranty, the Roof leaked. Plaintiff reported the leaks and Defendant failed to uphold the warranty. Therefore, Plaintiff was forced to repair the Roof using another company.

33. As a direct result of Defendant's breach of warranty, Plaintiff has been damaged in an amount in excess of Ten Thousand Dollars ($10,000).

SECOND CAUSE OF ACTION: BREACH OF CONTRACT

34. Paragraph 1-33 are incorporated by reference.

35. Implicit in the Contract was the covenant to perform the repairs in a skilled and workmanl Ike mamier. Defendant has breached this covenant as revealed when the Roof began to leak rainwater into the office spaces below less than six months after the repairs were made, as revealed by the three different roofing companies telling Plaintiff that the repairs were poorly performed and must be redone.

36. Further, the Defendant breached the Contract by its failure to uphold the promised warranty.

37. As a direct result of Defendant's breach of contract, Plaintiff has been damaged in an amount in excess of Ten Thousand Dollars ($10,000).

THIRD CAUSE OF ACTION: NEGLIGENCE

38. Paragraph 1-37 are incorporated by reference. 39. Based upon the Contract, Defendant had a legal duty to use due care when repairing Plaintiff's Roof. Defendant breached that duty by not performing the repairs in a skilled and workmanlike manner. This was revealed when the Roof began to leak rainwater into multiple office spaces below, less than six months after the repairs were made. The opinions of the three different roofing companies' further support this claim.

40. As a result of Defendant's poor repairs, the Roof leaked in multiple places when it rained, and Plaintiff was forced to repair the Roof using a new company. Despite the substandard performance, Defendant has failed to return the Fifteen Thousand Nine Hundred and Fifty Dollars ($15,950) that he was paid.

41. As a direct result of Defendant's negligence, Plaintiff has been damaged in an amount in excess of Ten Thousand Dollars ($10,000).

RELIEF REQUESTED

WHEREFORE, Plaintiff requests judgment against Defendant as follows:

(1) For actual damages in a sum in excess of Ten Thousand Dollars ($10,000.00).

(2) For interest thereon as provided by law;

(3) For a reasonable attorney's fee;

(4) For such other and further relief as the Court deems appropriate.

Defendant Mark Close Roofing & Construction, mc, hereafter "Defendant”) hereby makes this Answer to the Petition of the Plaintiff Thomas K. Ball, as Trustee of the Pamela 0. Ball Revocable Trust dated March 5, 1999, by and through its attorney of record, David Forbes.

1. The Defendant is without sufficient information to admit or deny the allegations set out in paragraph I of the Petition.

2. The Defendant admits the allegations set out in paragraph 2 of the Petition.

3. The Defendant is without sufficient information to admit or deny the allegations set out in paragraphs 3, 4, and 5 of the Petition.

4. The Defendant denies the allegations set out in paragraph 6 of the Petition that it entered into any contract with the Plaintiff.

5. The Defendant denies the allegations set out in paragraphs 7 through 30, or the Defendant is without sufficient information to admit or deny those allegations.

6. The Defendant denies the allegations set out in paragraphs 32 and 33 and specifically denies that it breached any warranty to the Plaintiff or that the Plaintiff was damaged thereby.

7. The Defendant denies the allegations set out in paragraphs 35 through 37 and specifically denies that it entered into any contract with the Plaintiff or that it breached any contract with the Plaintiff or that the Plaintiff was damaged thereby.

8. The Defendant denies the allegations set out in paragraphs 39 through 41 of the Petition and specifically denies that the Defendant was negligent in any respect or that Plaintiff was damaged thereby.

AFFIRMATIVE DEFENSES

9. Plaintiffs Petition and the Causes of Action set out therein fail to state any claim upon which relief can be granted.

10. Plaintiffs claims for damages are barred, in whole or in part, by Plaintffs failure to mitigate damages, and by one or more of the doctrines of laches, waiver, ratification, and/or estoppel.

11. Plaintiffs claims are without merit and fail strictly as a matter of law.

12. Plaintiff's damages, if any, were the result of Plaintiffs own actions; Plaintiff suffered no damages as a result of any action taken or not taken by Defendant.

13. Plaintiff is not the proper party plaintiff and lacks privity with the Defendant on the contract which is the subject of this lawsuit.

14. Plaintiff commenced this action only after taking action explicitly designed to cover up or destroy any evidence of the Defendant's work on the building identified in the Plaintiff's Petition and without giving any advance notice to the Defendant to enable it to hire experts or investigators of its own to evaluate the Plaintiff's complaints, to photograph the roof and to preserve evidence for the purpose of mounting a defense.

WHEREFORE, the Defendant prays that the Plaintiff take nothing by his Petition and that Defendant be awarded its costs incurred and attorney fees.

Now on January 21,2014, the captioned matter came before this Court for trial, the parties waived their rights to ajuiy trial. Present were plaintilt Thomas K. Ball, Trustee, and his attornc’s, Bow Bottomly and David Moxe, and defendant, Mark Close Roofing and Roofing represented by Mark Close, and his attorney David Forbes. The Court, after hearing the evidence of witnesses and arguments of counsel, finds in favor of p1aintiff Thomas K. Ball, Trustee, on Plaintiff’s claim of Negligence, for the amount of $5,750.00, and in favor of the Defendant, Mark Close Roofing and Construction, on the Plaintiff’s claims fbr Breach of Contract and Breach of Warranty.

IT IS THEREFORE ORDERED, ADJUDGED AM) DECREED that plaintiff, Thomas K. Ball, have and recover judgment of and from defendant, Mark Close Roofing and Construction Inc., (br the sum of $5,750•00, together with the cost of this action and for attorney’s fees.