Marie Ogle v. Willow Creek I Neighborhood Association, Inc.

Marie Ogle v. Willow Creek I Neighborhood Association, Inc., Budd Proffitt, Tom Cox and Mary Ann Spencer



1. Marie Ogle is the owner of a condominium located at Unit 278 Bldg. A14, 4660 East 68th Street, Tulsa, Oklahoma in Willow Creek Condominium I ("Ogle Property”).

2 Willow Creek Condominium I ("Willow Creek I”) is a suspended Oklahoma

3

corporation and has been suspended by the Oklahoma Tax Commission for approximately 13

years Willow Creek us the owner of the condominium complex located in Tulsa, Oklahoma

wherein the Ogle Property is located.

3. Willow Creek NA is an Oklahoma non-profit corporation, the affairs of which are managed by its Board of Administrators ("Board”). The principal office of Willow Creek NA is located in Tulsa, Oklahoma. Willow Creek NA is responsible for all of the common elements of Willow Creek I and manages, operates, administers, and governs the Willow Creek I

condominium units and business affairs in accordance with the Declaration of Unit Ownership Estates of Willow Creek I, the Bylaws, and the administrative rules and regulations of Willow Creek NA.

4. Cox is a resident of Oklahoma, the President of the Board of Willow Creek NA, and at all times relevant herein, has been a director or administrator of the Board of Willow Creek NA. Cox, in his capacity and role as President or Board member of the Willow Creek NA, has an affirmative duty to carry out the obligations and duties of Willow Creek NA in the best interests of the association.

5. Spencer is a resident of Oklahoma, the former President of the Board of Willow Creek NA, and at all times relevant herein, has been a director or administrator of Willow Creek NA. Spencer, in her capacity and role of President or Board member of Willow Creek NA, has an affirmative duty to carry out the obligations and duties of Willow Creek NA in the best interests of the association.

6. Proffitt is a resident of Oklahoma, and at all relevant times hereto, has been the property manager of Willow Creek I.

7. The Court has jurisdiction over the parties and the subject matter in this action.

8. Venue in Tulsa County is proper pursuant to Okla. Stat. tit. 12, § 133 and 134.

FACTUAL BACKGROUND

9. Ogle reasserts and realleges Paragraphs I through 8 of this Petition.

10. Ogle is the owner of the Ogle Property in Willow Creek I, and is a dues paying member of Willow Creek NA.

11. Willow Creek NA is a unit owner's association organized under the Unit Ownership Estate Act, Okia. Stat. tit. 60, § 501-530 (the "Act”).

12. Willow Creek NA is comprised of a Board whose responsibility is to carry out the duties and responsibilities of Willow Creek NA on behalf of its members.

13. Cox is currently the President of Willow Creek NA and has been a member of the Board during all relevant times herein.

14. Spencer is a former President of Willow Creek NA and has been a member of the Board during all relevant times herein.

15. Willow Creek NA and its Board, including Cox and Spencer, each have or had a fiduciary relationship with all members of Willow Creek NA. The fiduciary relationship imposes obligations of trust and confidence in favor of Willow Creek NA and its members, which require the Board to act in good faith and in the best interests of the members of Willow Creek NA. Willow Creek NA and the Board are required to exercise due care and diligence when acting for the community.

16. On or about January 29, 1978, the Board executed the Bylaws of Willow Creek NA ("Bylaws”) which are binding upon and inure to the benefit of all unit owners in Willow Creek I, including the unit owners' respective grantees, mortgagees, lessees, tenants, employees, sublessees or subtenants.

17. The Bylaws require the Board of Willow Creek NA to exercise all powers and duties necessary to administer the affairs of Willow Creek NA and for the operation and maintenance of a first class residential unit ownership estate at Willow Creek I. These duties include, inter alia, the duty "[tjo maintain and keep in good state and repair all of the general and limited common elements defined in the Declaration.”

18. The Declaration of Unit Ownership Estate for Willow Creek I ("Declaration”) defines general common elements as, inter alia, the foundations, columns, girders, beams,

supports, doors, main and bearing walls and floors and roofs of all buildings in the condominium unit.

19. Pursuant to the Bylaws, the Board is required to "establish, determine, levy and collect the monthly asessments for common expenses... .to levy and collect special assessments whenever necessary in the opinion of the Board, it is necessary to do so in order to meet increased operating of maintenance expenses or costs, or additional capital expenses or because of emergencies

20. The Bylaws also require the Board to employ any personnel as may be necessary for the maintenance, upkeep and protection of the buildings and the general or limited common elements of Willow Creek I.

21. The Bylaws and Declaration require the Board to procure and maintain all insurance necessary to insure and protect all of the general and limited common elements against risk and losses, including general comprehensive liability insurance for the protection of Willow Creek I and its unit owners and covering the entire premises in amounts not less than $100,000.00 per person and $300,000.00 per accident and $10,000.00 in property damage for the benefit of insuring all property acquired by Willow Creek land its members.

22. The Bylaws also require the Board to do all things "necessary and reasonable” and "to do all acts and perform all functions reasonably implied in the unit ownership estate form of property ownership.”

23. In this regard, the Bylaws specifically require the Board of Willow Creek NA to "care for, maintain and keep in a good state of repair all of the general and limited common elements as defined in the Declaration.” The Board is responsible for protecting the common elements by insurance or otherwise against risk of loss due to damage by the elements and windstorm. The Board is authorized under the Bylaws to employ such personnel as may be necessary to adequately maintain, repair and protect the general and limited common elements.

24. The Bylaws provide that any required maintenance, replacement, or repairing of the common elements "shall be performed by [Willow Creek NA] as a common expense” and that Willow Creek NA is required to employ a maintenance foreman or superintendent to handle all maintenance, upkeep and repair or the common elements,

25. The Bylaws expressly provide that "[a]ll repairs and maintenance of the exterior of [Willow Creek I], specifically including, but not limited to painting, maintaining and repairing

and roofs of the units shall be done by [Willow Creek NA] and shall be deemed a common expense as defined by Article XV of the Declaration of Unit Ownership Estate of Willow Creek Condominium, I.”

26. The Willow Creek NA is also responsible for repairing and replacing roofs and repairing any leaks coming from the exterior of the buildings pursuant to its administrative rules and regulations.

27. Ogle has paid, and continues to pay, monthly unit owner association dues to Willow Creek NA as required by the Bylaws.

28. On or about September 30, 2000, the Board levied monthly assessments in the amount of $38.46 per month for the repair of roofs to various unit owners at Willow Creek I. The total assessment levied against Ogle was $1,384.45.

29. On or about May 21, 2007, the Willow Creek NA Board levied another assessment to all unit owners in the amount of $57.69 per month to repair and replace at least 46 roofs, which were damaged due to weather and storms, and to replace and repair additional roofs as needed. The total assessment levied against Ogle was $2,768.90.

30. Ogle paid all monthly assessments levied against her for the alleged roof repairs and replacement.

31. Ogle has owned the Ogle Property for more than 14 years and during this time, the Ogle Property has experienced on-going roof leaks.

32. The most recent event which lead to damage to the Ogle Property occurred on or about February 13, 2013, during which the Ogle Property sustained significant damages to the exterior of the Ogle Property as well as significant internal damage to the unit including mold, water damage to the exterior roof and to thq interior of the condominium, and to the carpet, The extent of damage to the Ogle Property gets worse every day as a result of Willow Creek NA's failure to repair the roof and Ogle Property.

33. On or about December 7, 2012, Ogle had leased her unit to a lessee for the monthly rental amount of $720.00 a month for total rental payments of $8,640.00. Ogle's tenant lived in the Ogle Property until after February 13, 2013, when the Ogle Property sustained significant damage which forced the Ogle tenant to move out of the Ogle Property to allow for the completion of repairs to the damaged property which have been estimated to cost more than

$25,000.00.

34. To date, Willow Creek NA has failed to and refused to repair the significant damage to the Ogle Property and the Ogle Property has been, and continues to be, uninhabitable.

35. As a direct result of the leaking roof, Ogle has sustained damages including, but not limited to, costs of repairing the ceiling, carpet, walls, and other surfaces within the unit, replacement costs for damage to personal items, lost rental, and other damages.

36. Ogle has directly and continually complained about the leaking common element roof (and the damage proximately resulting therefrom) to Willow Creek NA, its Board including, but not limited to, Cox, Spencer, and Proffitt. Despite Ogle's multiple and various reports and complaints, the common element roof continues to leak, thereby resulting in further damage to the ceiling and other surfaces within the Ogle Property.

37. Further, as a result of the fact that Willow Creek NA, Cox, Spencer, other members of the Board, and Proffitt have continued to ignore Ogle's complaints and requests for assistance, Ogle continually fears future leaks and damage to her property. As a result of Defendants' actions and omissions, Ogle has suffered and continues to suffer emotional and psychological pain and suffering.

38. Because of damages to the Ogle Property and Willow Creek NA's refusal to repair the Ogle Property as required, Ogle has been unable to rent out the Ogle Property since February 13, 2013, and has lost significant rental income as a result of Defendants' actions.

FIRST CLAIM OF RELIEF

(Breach of Contract - Willow Creek NA)

39. Ogle reasserts and realleges Paragraphs I through 38 of this Petition.

40. By its actions described herein, Willow Creek NA has breached its obligations to Ogle under the Declaration, Bylaws, and rules and regulations of Willow Creek NA.

41. As a result of Willow Creek NA's breaches, Ogle has been damaged in an amount to be proven at trial, but believed to be in excess of $50,000.00.

SECOND CLAIM OF RELIEF

(Breach of Fiduciary Duty - Willow Creek NA, Cox and Spencer)

42. Ogle reasserts and realleges Paragraphs 1 through 41 of this Petition.

43. Under Oklahoma state law and the Bylaws of Willow Creek NA, Willow Creek NA, Cox, Spencer, and other members of the Board owed (and continues to owe) a fiduciary duty to Ogle and the Ogle Property and the contents therein.

44. Specifically, Willow Creek NA, Cox, Spencer, and other members of the Board owed a fiduciary duty to Ogle and the other unit owners to keep the common elements, including the roof of the Ogle Property, in a state of good repair, and to remove/correct any deficiencies in said common elements which have caused, or may cause damage or injuries to the unit owners or their property.

45. Through their actions described above, Willow Creek NA, Cox, Spencer, and other members of the Board have breached their fiduciary duty to Ogle by allowing the common element roof to fail and cause damage to Ogle and her property.

46. As a direct and proximate result of the breach of fiduciary duty by Willow Creek NA, Cox, Spencer, and other members of the Board, Ogle has been damaged in an amount to be proven at trial, but believed to exceed $50,000.00.

THIRD CLAIM OF RELIEF

(Negligence - Proffitt)

47. Ogle reasserts and realleges Paragraphs 1 through 46 of this Petition.

48, By virtue of his contractual relationship with the Willow Creek NA and/or Willow Creek I, Proffitt owed (and continue to owe) a duty of care to the Willow Creek NA, its members and the property he was assigned to manage, including the Ogle Property.

49. Specifically, Proffitt owed a duty of care to Ogle and other unit owners to keep the common elements of the property in question in a state of good repair, and to remove/correct any deficiencies in said common elements which may cause damage or injury to the unit owners or their property.

50. Through his actions described above, Proffitt has breached his duty of care to Ogle and the Ogle Property by allowing the common element roof to fail and cause damage to Ogle and her property.

51. As a direct and proximate result of Proffitt's breach of his duty of care, Ogle has been damaged in an amount to be proven at trial, but believed to exceed $50,000.00.

FOURTH CLAIM OF RELIEF

(Negligence - Willow Creek NA, Cox, and Spencer)

52. Ogle reasserts and realleges Paragraphs 1 through 51 of this Petition.

53. By statute as well as contract, Willow Creek NA, Cox, Spencer, and other Board member owed (and continue to owe) a duty of care to the Ogle Property, as well as the Willow Creek members, including Ogle.

54. Specifically, Willow Creek NA, Cox, Spencer, and other members of the Board owed a duty of care to Ogle and other unit owners to keep the common elements of the property in question in a state of good repair, and to remove/correct any deficiencies in said common elements which may cause damage or injury to the unit owners or their property.

55. Through their actions described above, Willow Creek NA, Cox, Spencer, and other Board members have breached their duty of care to Ogle by allowing the common element roof to fail and cause damage to the Ogle Property and all contents therein.

56. As a direct and proximate result of the breach of fiduciary duty, Ogle by Willow Creek NA, Cox, Spencer, and other Board members has been damaged in an amount to be proven at trial, but believed to exceed $50,000.00.

PRAYER FOR RELIEF

WHEREFORE, Ogle requests the Court enter a judgment in favor of Ogle and against the Defendants, Willow Creek NA, Tom Cox, Mary Ann Spencer, and Bud Proffitt, as follows:

(a) Actual and compensatory damages in an amount to be proven at trial, but believed to be in excess of $50,000.00;

(b) Punitive damages;

(c) Pre- and post-judgment interest;

(d) Attorneys' fees and costs incurred by Ogle as a result of this lawsuit; and

(e) Any other relief this Court deems appropriate. DATED this 29th day of October, 2013,



Key Words: Home Owners Association, Condominium Law

Dismissed as to Bud Proffitt only.