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Phyllis M. Nation v. Dandy Homes, Inc.

Date: 02-20-2014

Case Number: CJ-2012-7685

Judge: Barnard M. Jones

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Terry L. Pierce and Candee Wilson

Defendant's Attorney: Maurcie G. Woods, II, Robert Nash Thomas



Evan Gatwood for National American Insurance Company

Description:
COMES NOW the Plaintiff, Phyllis M. Nation, by and through her counsel, Terry L. Pierce and Candee Wilson, and for her cause of action against the Defendants, alleges and state as follows:

Background



1. 72 year old Phyllis M. Nation (Mrs. Nation) currently resides in Stonewall Oklahoma and has resided there for the last four (4) years.



2. Dandy Homes, Inc. (Dandy) is an Oklahoma corporation that sells manufactured homes with a principal place of business in Oklahoma City, Oklahoma County, Slate of Oklahoma.



3. Mr. Rick Garrett (Garrett) is an officer, owner, and agent of Dandy, and lists his address as 6300 S. Shields, Oklahoma City, Oklahoma County, State of Oklahoma.



4. National American Insurance Company (Nat'l American) is an Oklahoma corporation, whose principal address is in the town of Chandler, Lincoln County, State of Oklahoma.



5. Nat'l American has bonded Dandy for the sum Thirty-thousand dollars ($'O,OOO.OO) pursuant to 47O.S. §583.E,l.e to assure Dandy's proper conduct under the provisions of the Oklahoma Used Motor Vehicle and Parts Dealers Act (the Act).



6. Based upon its bond, Nat'l American, per Yaffe v. Bank of Chelsea, 271 Pfld 365 (Olcla.

1974) is jointly and severally liable for the fraudulent acts of Dandy.



7. Garrett had personal knowledge of and control over Dandy's contract with Mrs. Nation.



8. The acts of Garrett were his personal acts and the acts of Dandy, and vice versa.



9. Mrs. Nation lost her husband to an illness in December 2010 and, thereafter, had to surrender her brick home that she and her late husband had financed through a lease/purchase.



10. On August 5, 2011 Mrs. Nation signed a purchase agreement on a 1998 Fleetwood Carriage Hill 40x28 mobile home (the Fleetwood) from Dandy.



11. The base price of the Fleetwood was $26,900.00.



12. Mrs. Nation also traded a smaller mobile home (the trade-in) to Dandy as part of the deal.



CAUSE OF ACTION - FRAUD



13. All of the foregoing paragraphs are incorporated into this cause of action.



14. The Fleetwood, in its condition at the time of the sale, was not worth $26,900.00.



15. Dandy promised Mrs. Nation, that upon delivery, the Fleetwood would look like a "doll house”.



16. Dandy specifically promised Mrs. Nation that, upon delivery, the Fleetwood would have new carpet, tiling, and paint inside and out.



17, Dandy orally promised that the Fleetwood would be transported, delivered and connected in the above-described condition within 10 days of August 5, 2011.



18. By past experience, Dandy knew on August 5, 2011, before Mrs. Nation signed the purchase agreement that the Fleetwood would neither be delivered in the promised condition, nor by the promised time.



19. Dandy intended that Mrs. Nation would rely on the above promises, so that she would sign a purchase agreement, pay Dandy $15,000, and convey her trade-in to Dandy on August 5,2011.



20. Mis. Nation did, in fact, rely on Dandy's above promises.



21. Mrs. Nation's reliance on Dandy's promises caused her to lose $15,000.00 and the value

of her trade-in, as:



a. the Fleetwood was delivered late,



b. the tile and file installation was sub-par,



c. the paint inside and out fell below any professional standard of workmanship,



d. the Fleetwood was delivered in an uninhabitable condition,



e. the Fleetwood was not, by any decent standard, the "doll house” it was promised to be,



f. the value of the Fleetwood is far less than the cost necessary to put it into habitable condition.



22. At the time Mrs. Nation signed the purchase agreement, Dandy knew that all of the things stated in ¶21 would be this way when the Fleetwood was delivered.



23. The fraud committed by Dandy has caused direct financial loss to Mrs. Nal ion in excess of $10,000.00.



24. The fraud committed by Dandy has caused Mrs. Nation to suffer emotionally and physically, for which she should be compensated in excess of $10,000.00.



25. The fraud was perpetrated by Dandy in a wiliffil and wanton manner, for which Dandy should pay punitive damages in excess of $10,000.00.



WHEREFORE, Plaintiff, Phyllis Nation, prays for judgment against Dandy Homes, Inc., Rick Garrett, and National American Insurance Company, for all of the aforementioned damages, for Mrs. Nation's attorney fees to be assessed to the Defendants, for all of her costs, and other proper relief.



COMES NOW the Defendant, National American Insurance Company, and for its Answer to the Petition filed herein by the Plaintiff, alleges and states as follows:



1. The Defendant admits the allegations contained in Paragraphs 1, 2, 3, 4, and 5 of Plaintiffs Petition.



2. Paragraph 6 of the Plaintiffs Petition is admitted to the extent that the Petition is referring to Yaffe v. Bank of Chelsea, 271 P.2d 365 (Okla. 1954).



3. The Defendant denies the allegations contained in Paragraphs 7 and 8 of Plaintiffs Petition and demands strict proof thereof.



4. The Defendant denies the allegations contained in Paragraphs 9, 10, 11, and 12 of Plaintiffs Petition.



5. Paragraph 13 of the Plaintiffs Petition is a recital paragraph and does not require a response. To the extent that a response is required, Paragraph 13 of the Plaintiffs Petition is denied and Defendant demands strict proof thereof.



6. The Defendant denies the allegations contained in Paragraphs 14, 15, 16, 17, 18,

19, 20, 21, 21(a), 21(b), 21(c), 21(d), 21(e), 21(f), 22, 23, 24, and 25 of Plaintiffs Petition and demands strict proof thereof.



AFFIRMATIVE DEFENSES



7. The incident complained of in the Plaintiffs Petition was the direct result of the negligence of the Plaintiff in a degree to either prohibit or lessen any recovery thereunder.



8. The injuries/damages complained of by the Plaintiff were not the proximate result of any actions of Defendant.



8. The Plaintiff sustained no injury/damages or was not injured as severely as alleged as a result of the incident in this suit.



9. Plaintiff voluntarily assumed the risk of a known danger and is not entitled to recover herein.



10. The Plaintiffs Petition fails to state a claim upon which relief can be granted.



11. The Defendant reserves the right to amend or abandon any or all of the allegations stated.



12. It is anticipated that additional affirmative defenses will become known through the discovery process; therefore, this Defendant reserves the right to plead them as they are discovered.



WHEREFORE, the Defendant, National American Insurance Company, prays that judgment be rendered in its favor, that it be awarded its costs and attorney fees, and any and all other relief the Court deems just and equitable.



AMENDED ANSWER, COUNTERCLAIM AND TifiRD-PARTY

PETITION OF NATIONAL AMERICAN INSURANCE COMPANY



Defendant, National American Insurance Company ("NAICO”), for its amended answer, counterclaim and third-party petition states as follows:



1. Defendant admits the allegations contained in Paragraph 1,2,3,4 and 5 of plaintiffs petition.



2. Paragraph 6 of plaintiff's petition is admitted to the extent that the petition is referring to Yaffe v. Bank of Chelsea, 271 P.2d 365 (Okia. 1954).



3. NAICO denies the allegations contained in Paragraphs 7 and 8 of plaintiff's petition and demands strict proof thereof.



4. NAICO denies the allegations contained in Paragraphs 9, 10, 11 and 12 of plaintiff's petition.



5. Paragraph 13 of plaintiff's petition is a recital paragraph and does not require a response. To the extent that a response is required, Paragraph 13 of plaintiff s petition is denied and NAICO demands strict proof thereof.



6. NAICO denies the allegations contained in Paragraph 14 thru 25 of plaintiff s petition and demands strict proof thereof.



AFFIRMATIVE DEFENSES



1. The incident complained of in the plaintiff's petition was the direct result of the negligence of the plaintiff in a degree to either prohibit or lessen any recovery thereunder.



2. The injuries/damages complained of by the plaintiff were not the proximate result of any actions of defendant.



3. The plaintiff sustained no injury/damages or was not injured as severely as alleged as a result of the incident in this suit.



4. Plaintiff voluntarily assumed the risk of a known danger is not entitled to recover herein.



5. The plaintiffs petition fails to state a claim upon which relief can be granted.



6. Plaintiffs claims, if any, are barred by the doctrines of waiver, laches and estoppel and any applicable statute of limitations.



7. The defendant reserves the right to amend or abandon any or all of the allegations stated.



8. It is anticipated that additional affirmative defenses will become known through the discovery process; therefore, this defendant reserves the right to plead them as they are discovered.



WHEREFORE, the defendant, National American Insurance Company, prays that judgment be rendered in its favor, that it be awarded its costs and attorney fees, and any and all other relief the Court deems just and equitable.



COUNTERCLAIM



NAICO, for its counterclaim against plaintiff, alleges and states as follows:



1. NAICO, as surety, and Dandy Homes, Inc. ("DHI”), as principal, executed Manufactured Home Dealer Surety Bond No. CV4882 in the penal sum of $30,000.00 (the "Bond”). A copy of the Bond is attached as Exhibit "A.”



2. The Bond is conditioned as follows:



THE CONDITION OF THIS OBLIGATION is such that if the Principal shall conduct its business as a manufactured home dealer without practicing fraud or making fraudulent representations, and without violating any of the provisions of the oklahoma used motor vehicle and parts laws (47 O.S. Supp. 1992 § 58 1-587) or any amendments thereto, and if the Principal shall indemnify and reimburse any person for any loss or damage suffered by reason of said fraud, fraudulent representations or otherwise by the issuance of a certificate of title by the Principal, then this obligation shall be void; otherwise to remain in full force and effect.



3. Plaintiff and third-party defendants claim an interest in and to the proceeds of the Bond. The total sum of the claims asserted against the Bond exceed the penal sum of the Bond.



4. NAICO's liability, if any, to the claims of plaintiff and third-party defendants is limited to $30,000.00. However, the claims of plaintiff and third party defendants are such that NAICO is or may be exposed to double or multiple liability.



5. NAICO denies plaintiff's claims against the Bond and, pursuant to 12 O.S. § 2022, seeks an adjudication of any and all claims asserted against the Bond.



WHEREFORE, NAICO prays for ajudicial determination of the amount, if any, of the bond proceeds to which plaintiff is entitled, and for a court order limiting its liability to the penal sum of the Bond in accordance with 12 O.S. § 2022.



THIRD-PARTY PETITION



NAICO, for its third-party petition against third-party defendants, Bartlett Martin, Leonard Mason and Tammie Mason and James Bates, alleges and states as follows:



1. NAICO incorporates by reference the allegations set forth in its counterclaim Paragraphs 1 thru 5 as if ftilly set forth herein.



2. Venue and jurisdiction are proper with this Court.



3. Third-Party Defendants each claim an interest in and to the proceeds of the Bond and have asserted claims in total which exceed the penal sum of the Bond.



4. NAJCO's liability to plaintiff and third-party defendants is limited to $30,000.00. However, plaintiff and third-party defendants' claims are such that NAICO is or may be exposed to double or multiple liability.



5. NAICO denies the claims of third-party defendants because the claims asserted by third-party defendants involved the sale of real property and such transactions are not covered by the Bond.



WHEREFORE, NAICO prays for ajudicial determination of the amount, if any, of the bond proceeds to which plaintiff and third-party defendants are entitled, and for a court order limiting its liability to the penal sum of the Bond in accordance with 12 O.S. § 2022.



ANSWER TO COUNTERCLAIM OF NAICO



COMES NOW the Plaintiff, Phyllis M. Nation, by and through their counsel, Terry L.

Pierce and Candee Wilson, and for her Answer the Counterclaim of NAICO, states as follows:



1. Plaintiff does not have sufficient information to admit or deny the allegations of Paragraphs 1, 2, and 4 of NAICO's counterclaim; thus, denied.



2. Though Plaintiff claims an interest in and to the proceeds of the Bond referenced in NAICO's counterclaim, she does not have sufficient information to admit or deny the remainder of Paragraph 3; thus, the remainder is denied.



3. Paragraph 5 of NAICO's counterclaim is denied.



WHEREFORE, Plaintiff, Phyllis Nation, prays that NAICO take nothing by way of its

Counterclaim, for Mrs. Nation's attorney fees to be assessed to the Defendants, for all of her costs, and other proper relief.

Outcome:
Default judgment against Dandy Homes, Inc. and Rick Garrett
Plaintiff's Experts:
Defendant's Experts:
Comments:

About This Case

What was the outcome of Phyllis M. Nation v. Dandy Homes, Inc.?

The outcome was: Default judgment against Dandy Homes, Inc. and Rick Garrett

Which court heard Phyllis M. Nation v. Dandy Homes, Inc.?

This case was heard in District Court, Oklahoma County, Oklahoma, OK. The presiding judge was Barnard M. Jones.

Who were the attorneys in Phyllis M. Nation v. Dandy Homes, Inc.?

Plaintiff's attorney: Terry L. Pierce and Candee Wilson. Defendant's attorney: Maurcie G. Woods, II, Robert Nash Thomas Evan Gatwood for National American Insurance Company.

When was Phyllis M. Nation v. Dandy Homes, Inc. decided?

This case was decided on February 20, 2014.