Birch Company, LLC v. Act House, Inc.

IN THE DISTRICT COURT OF TULSA COUNTY STATE OF OKLAHOMA) BIRCH COMPANY, LLC, HARRISON ENERGY PARTNERS, AND KAZAR SECURITY, LLC Plaintiff, v. ACT HOUSE, INC. AND DOMINICK ARD Defendants. ) ) ) ) Case No. CJ-2026-00662 JURY TRIAL REQUESTED PETITION Plaintiffs Birch Company, LLC, Harrison Energy Partners, and Kazar Security, LLC (collectively, "Plaintiffs"), for their causes of action against Defendants Act House, Inc. and Dominick Ard ("Defendant" or "Act House"), allege as follows: 1) This is an action for breach of contract and related torts arising from Defendant's failure to pay $220,764 owed to Plaintiffs despite multiple demands. JURISDICTION AND VENUE 2) This Court has subject-matter jurisdiction over this civil action pursuant to the Oklahoma Constitution and statutes because the claims sound in contract and tort and the amount in controversy exceeds $10,000, exclusive of interest, costs, and fees. 3) Venue is proper in Tulsa County, Oklahoma, because a substantial part of the events giving rise to the claims occurred in Tulsa County, the contracts were to be performed in Tulsa County, and Defendant transacts business in Tulsa County. 4) Personal jurisdiction over Defendant is proper because Defendant is authorized to do business in Oklahoma and/or purposefully availed itself of conducting business within Oklahoma related to the transactions at issue. PARTIES 5) Plaintiff Birch Company, LLC is a limited liability company organized under the laws of the State of Oklahoma, with its principal place of business in Tulsa County. 6) Plaintiff Harrison Energy Partners is a partnership organized under the laws of Arkansas, with its principal place of business in Hot Springs, Arkansas, and conducts business in Arkansas and Oklahoma. 7) Plaintiff Kazar Security, LLC is a limited liability company organized under the laws of the State of Oklahoma, with its principal place of business in Tulsa County. 8) Defendant Act House, Inc. is a corporation organized under the laws of Oklahoma, with its principal place of business in Tulsa, Oklahoma, and at all relevant times conducted business in Oklahoma, including in Tulsa County. 9) Defendant Dominick Ard, in information and belief, is a resident of Oklahoma living in Tulsa County. FACTUAL BACKGROUND: 10) Plaintiffs and Defendant entered into one or more agreements under which Plaintiffs provided goods, services, and construction management to Defendant, and Defendant agreed to pay for such goods and/or services pursuant to agreed terms and conditions of the agreements (See Exhibit “A”). 11) Plaintiffs fully performed, or were ready, willing, and able to perform, their obligations under the agreements, including timely delivering the agreed goods and/or services to Defendant. 12) Under the agreements, Defendant became obligated to pay Plaintiffs for the goods and/or services provided in the total aggregate amount of $220,764. 13) Despite due dates having passed, and despite multiple written and oral demands for payment made by Plaintiffs on and after the contractual due date for such payments, Defendant has failed and refused to pay the $220,764 owed. 14) Defendant has not disputed the invoices or grounds for payment, and has not identified any contractual or legal basis for withholding payment. 15) As a direct and proximate result of Defendant’s nonpayment, Plaintiffs have suffered damages, including the unpaid principal amount of $220,764, consequential losses, and the costs of collection. CAUSES OF ACTION Count I – Breach of Contract 16) Plaintiffs re-allocate and incorporate by reference paragraphs 1 through 15 as if fully set forth herein. 17) Valid and enforceable contracts existed between Plaintiffs and Defendant under which Defendant was obligated to pay Plaintiffs for the goods and/or services provided. 18) Plaintiffs performed all conditions, covenants, and obligations required of them under the contracts, or such performance was excused. 19) Defendant materially breached the contracts by failing to pay the $220,764 due and owing after multiple demands. 20) As a direct and proximate result of Defendant’s breach, Plaintiffs have sustained damages in an amount no less than $220,764, plus prejudgment interest at 5%, and other legally recoverable damages. Count II – Account Stated 21) Plaintiffs re-allocate and incorporate by reference paragraphs 1 through 20 as if fully set forth herein. 22) Plaintiffs rendered statements of account to Defendant reflecting sums due totaling $220,764. 23) Defendant received and retained the statements of account for a reasonable time without objection and, upon information and belief, acknowledged the correctness of the amounts due, thereby creating an account stated. 24) Defendant has failed and refused to pay the account stated balance of $220,764, damaging Plaintiffs in that amount, plus 5%. Count III – Unjust Enrichment (Pled in the Alternative) 25) Plaintiffs re-allege and incorporate by reference paragraphs 1 through 24 as if fully set forth herein. 26) To the extent no enforceable contract is found to govern some or all of the amounts at issue, Defendant has been unjustly enriched by receiving the benefit of Plaintiffs’ goods and/or services without paying for them. 27) It would be inequitable for Defendant to retain the benefits conferred without compensating Plaintiffs the reasonable value thereof, in an amount no less than $220,764. Count IV – Fraudulent Misrepresentation 28) Plaintiffs re-allege and incorporate by reference paragraphs 1 through 27 as if fully set forth herein. 29) On multiple occasions since June 2024, Defendant, by and through its agents, made specific representations to Plaintiffs that Defendant would timely pay for the goods and/or services provided, and/or that payment had been or would imminently be made, knowing such representations were false or with reckless disregard for their truth. 30) Defendant intended for Plaintiffs to rely on these representations to continue performing and to forbear from immediate collection efforts. 31) Plaintiffs reasonably relied on Defendant’s representations to their detriment by continuing to provide goods and/or services and by deferring collection, and suffered damages, including the unpaid $220,764, costs of collection, and other consequential damages. Count V – Negligent Misrepresentation [pled in the alternative] 32) Plaintiffs re-allege and incorporate by reference paragraphs 1 through 31 as if fully set forth herein. 33) In the course of business, Defendant supplied false information to Plaintiffs regarding material facts relating to payment status and/or ability and intent to pay, for the guidance of Plaintiffs in their business transactions, and failed to exercise reasonable care or competence in obtaining or communicating the information. 34) Plaintiffs justifiably relied on such information and suffered pecuniary loss, including the unpaid $220,764 and associated damages. Count VI – Conversion 35) Plaintiffs re-allege and incorporate by reference paragraphs 1 through 34 as if fully set forth herein. 36) To the extent specific funds were held in trust or were specifically identifiable for payment to Plaintiffs, Defendant wrongfully exercised dominion and control over those funds in a manner inconsistent with Plaintiffs’ rights. 37) As a direct and proximate result, Plaintiffs suffered damages, including the value of the funds converted in an amount to be determined but not less than $220,764. DAMAGES 38) As a direct and proximate result of Defendant’s conduct, Plaintiffs have suffered damages including: (a) the principal amount of $220,764; (b) prejudgment interest at the statutory rate of 5%; (c) consequential and incidental damages reasonably flowing from Defendant’s breach and misconduct to be determined at trial; and (d) costs of this action including attorney fees and such other relief as permitted by law and equity. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor and against Defendant as follows: a) For damages for breach of contract in the principal amount of $220,764; b) In the alternative or in addition, for damages on the account stated in the principal amount of $220,764; c) In the alternative, for restitution in the amount of unjust enrichment, not less than $220,764; d) For damages for fraudulent and/or negligent misrepresentation in an amount to be proven at trial; e) For prejudgment and post-judgment interest to be determined; f) For costs of suit and attorney fees as allowed by law; and g) For such other and further relief as the Court deems just and proper. VERIFICATION I, Angus Martin, being duly sworn, state that I am the CEO of Birch Company, LLC, and with the authority and permission of Harrison Energy Partners and Kazar Security, hereby state that I have read the foregoing Petition, and that the facts stated therein are true and correct to the best of my knowledge, information, and belief. Date: 2/12/26 Angus Martin Respectfully submitted, Kevin V. Cox, Esq. By: ____________________________ Kevin V. Cox, OBA No. 20970 320 S Boston Ave #320 Tulsa, OK 74103 (918) 984-2410 [email protected] Attorney for Plaintiffs Harrison Energy Partners, Birch Company, LLC, and Kazar Security, LLC THIS CONSTRUCTION CONTRACT ("Contract"), dated this _12th_ day of June 2024, is by and between THE BIRCH CO, LLC (hereinafter, "BIRCH") and ACT HOUSE, INC." (hereinafter, "Owner"). The project consists of the performance of certain construction work located 625 S Detroit Ave. Tulsa, OK 74120 (hereinafter, referred to as the "Project"). ARTICLE I. CONTRACT DOCUMENTS 1.1 Contract Documents. For purposes of this Contract, "Contract Documents" shall mean this Contract, all drawings, specifications, addenda issued prior to the execution of this Contract, and referenced as "Inclusions" in Exhibit "A" hereto, and any and all modifications issued after execution of this Contract. A "modification", as the term is used herein, shall be (1) a written amendment to the Contract signed by both parties, or (2) a written Change Order as defined herein. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by BIRCH. 1.2 The Work. Except to the extent specifically indicated in the Contract Documents, the term "Work" shall have the meaning set forth on Exhibit "A", attached hereto, and incorporated by reference herein. Exhibit "A" shall also provide which party shall be responsible for securing and paying for all necessary licenses, permits, approvals, easements, assessments and charges required to complete the Work. 1.3 Date of Commencement and Substantial Completion. The date of commencement of the Work shall be July 15th, 2024 and BIRCH and Owner expect the project to be Substantially Completed on or before December 15th, 2024 (the "Substantial Completion Date"), subject to Section 3.3 and any adjustments agreed upon by the parties hereto. BIRCH will use its best efforts to meet the Substantial Completion Date. For purposes of this Contract, "Substantially Completed" shall mean the stage in the progress of the Work when the Work is sufficiently complete in accordance with the Contract Documents so that the Owner may occupy or utilize the Work for its intended use. Warranties, if any, required by the Contract Documents shall commence on the Substantial Completion Date, unless such date is extended by a Change Order. ARTICLE II. PERFORMANCE 2.1 Contract Sum and Payment. The total amount to be paid by Owner to BIRCH (the "Contract Sum") and the specific terms of payment shall be as set forth on Exhibit "B" attached hereto and incorporated by reference herein. 2.2 Labor & Materials. Unless otherwise provided in the Contract, BIRCH shall provide and pay for all labor, materials, equipment, tools, utilities, transportation, and other services necessary for proper execution and completion of the Work. 2.3 Owner’s Responsibilities. A. Information. BIRCH shall be entitled to rely on the accuracy of all information furnished by the Owner. B. Access to Site. Owner shall provide clear and unfettered access to the Project site. C. Timely Decisions. Owner shall be timely in all decision making process consistent with the provisions of Exhibit “B”. D. Safety. Owner shall exercise proper precautions relating to the safe performance of the Work at the Project site. E. Insurance. Upon request of BIRCH, Owner shall provide certificates of insurance coverage for their general liability policy and workers compensation policy, if applicable. 2.4 BIRCH’s Responsibilities. A. Information. Owner shall rely upon the adequacy, accuracy and completeness of all information furnished by BIRCH. B. Review of Contract Documents By BIRCH. BIRCH shall review the Contract and other information furnished by the Owner before commencing any Work. C. Supervision and Construction Procedures. BIRCH shall supervise and direct the Work and the construction means, methods, techniques, sequences and procedures, and coordinate all portions of the Work. D. Safety. BIRCH shall exercise proper precautions relating to the safe performance of the Work. E. Cleaning Up. BIRCH shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. F. Insurance. Upon request of Owner, BIRCH shall provide certificates of insurance coverage for their general liability policy and workers compensation policy. ARTICLE III. TERMS 3.1 Changes in the Work. A. Change Orders. After execution of the Contract, changes in the Work may be requested by Change Order. The Owner, without invalidating the Contract, may request changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions. A “Change Order” as used and defined herein shall be a written order to BIRCH signed and agreed to by the Owner and BIRCH to change the Work, Contract Sum and/or the Substantial Completion Date. Every Change Order will have an agreed upon change in the Contract Sum and Substantial Completion Date. B. Unknown Conditions. If concealed or unknown physical conditions are encountered at the project site that differ materially from those indicated in the Contract Documents, any information furnished by the Owner to BIRCH or from those conditions ordinarily found to exist, the Contract Sum and Substantial Completion Date shall be subject to the Change Order process set forth in Section 3.1(A). 3.2 Warranty. So long as Owner is not in breach of any provision of this Contract, including but not limited to breach of any payment terms listed in Exhibit “B”, BIRCH shall then warrant to the Owner for one (1) year from the Substantial Completion Date, that: (1) materials and equipment furnished under the Contract will be new and of good quality except where otherwise required or permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Contract Documents. BIRCH further warrants all labor provided by it for one (1) year following the Substantial Completion Date. Materials provided by BIRCH shall be subject to any manufacturers’ warranty. 3.3 Time; Force Majeure. Time is of the essence regarding performance of this Contract; provided, however, BIRCH shall not be responsible for any delay, damage or failure caused by or occasioned by, weather, the Owner or a Force Majeure Event. As used in this Agreement, “Force Majeure Event” includes: acts of God, action of the elements, warlike action, insurrection, revolution or civil strife, piracy, civil war or hostile action, strikes, acts of public enemies, changes in federal or state laws, rules and regulations of any governmental authorities having jurisdiction or of any other group, organization or informal association (whether or not formally recognized as a government. Delays due to the above causes, or any of them, including those caused by the Owner or any delays caused by weather, shall not be deemed to be a breach of or failure to perform under this Contract and BIRCH may, in such event extend the Substantial Completion Date by Change Order for such time as reasonably necessary, consistent with industry standard. 3.4 Correction of Work. Upon BIRCH receiving written notice, BIRCH shall use its best efforts to correct all Work reasonably rejected by the Owner as failing to conform to the requirements of the Contract Documents. Work shall take place within the timeframe allowed consistent with industry standards. 3.5 Termination of the Contract. A. Termination by BIRCH. If the Owner fails to make payment when due or substantially breaches any other obligation of this Contract, following fourteen (14) calendar days’ written notice to the Owner, BIRCH may terminate the Contract and recover from the Owner payment for all Work performed. BIRCH shall further be entitled to recover its reasonable attorney’s fees and costs incurred to collect and recover said amounts due or enforce the provisions of this Contract. B. Termination by the Owner. 1. If BIRCH: a. persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; b. persistently disregards laws, ordinances, or rules, regulations or order of a public authority having jurisdiction; or c. fails or neglects to carry out the Work in accordance with the Contract Documents; and fails to commence and continue correction of any such default or neglect, the Owner may, after five (5) calendar days following delivery of written notice to BIRCH thereof, terminate BIRCH's right to perform the remainder of this Contract and may finish the Work by whatever reasonable method the Owner may deem expedient. Owner shall further be entitled to recover its reasonable attorney's fees and costs incurred to collect and recover said amounts due or enforce the provisions of this Contract. 3.6 Miscellaneous A. Governing Law. The interpretation and construction of this Contract, and all matters relating hereto, shall be governed by the laws of the State of Oklahoma. Any lawsuit involving any dispute or matter arising under this Contract may only be brought in a state or federal court located in Tulsa, Oklahoma, having jurisdiction over the subject matter of the dispute or matter. Parties hereby consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding. B. Counterparts. This Contract may be executed in counterpart originals, each of which taken together shall constitute one agreement. Facsimile and scanned/emailed signatures shall be given the same legal affect as an original signature. C. Entire Agreement. This Contract together with the other Contract Documents contains the entire understanding of the parties with respect to the subject matter contained herein and the Transactions. This Contract supersedes all prior agreements and understandings among the parties. D. Construction of Contract. Each party has consulted counsel and contributed to the preparation of this Contract, none of the parties hereto shall be deemed exclusively the "drafter" of this Contract for the purposes of interpreting or construing any of the provisions hereof, and this Contract shall not be construed in favor of or against any signatory hereto. E. Binding Effect. This Contract shall be binding upon, and shall insure to the benefit of, the parties and, except as otherwise prohibited, their respective successors and assigns. F. Limitation of Damages. BIRCH shall not be liable to the Owner nor the Owner liable to BIRCH for special, punitive, incidental, indirect or consequential damages (including but not limited to lost profits) arising from performance or non-performance of this Contract, regardless of whether such damages are based in contract, tort, equity or any other legal theory. G. Severability. It is the intent of the parties that the provisions contained in this Contract shall be severable. Should any provisions, in whole or in part, be held invalid as a matter of law, such holding shall not affect the other portions of this Contract, and such portions that are not invalid shall be given effect without the invalid portion. H. Mandatory Mediation of Disputes. Any dispute or difference of opinion between the parties, arising out of or in connection with this Contract, the parties shall use their best efforts to settle such dispute or difference of opinion amicably by negotiation. If such disputes, controversies or differences cannot be first amicably settled in good faith by such negotiation among the parties within thirty (30) days, then the parties agree to submit such dispute to mediation in Tulsa, Tulsa County, Oklahoma. In the event the parties cannot agree on a mediator, the parties agree that Dispute Resolution Consultants, Inc. ("DRC") shall assign a mediator experienced in the issues in question. The parties shall participate in good faith in the mediation, unless the dispute is resolved in less time. All costs of the mediation will be split evenly among the parties. Each party will be responsible for their own attorney’s fees, expert fees, and costs involved arising out of the mediation. If a dispute is not settled through mediation as herein provided, then the parties may, subject to Section 3.6(A), exercise any rights and pursue any remedies the party may have at law or in equity, including, without limitation, litigation before a court of competent jurisdiction. I. Captions. All article and section captions in this Contract are for convenience only. They shall not be deemed part of this Contract and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to “Articles” and “Sections” are to Articles and Sections of this Contract. J. Pronouns and Plurals. Whenever the context may require, any pronoun used in this Contract shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. K. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Contract or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition. L. Assignment of Contract. Neither party hereto shall assign this Contract in whole or in part without prior written consent of the other party, which shall not be unreasonably withheld. M. Amendments. No amendment to this Contract shall be valid unless it is set forth in writing and signed by both parties. N. Notices. All notices, consents, and other communications under this Contract must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt) or (b) when sent by mail or electronic mail in each case to the appropriate addresses or email address set forth below: BIRCH: Birch Co, LLC c/o Josh Ploch 6400 S Lewis Ave. STE 200 Tulsa, OK 74137 Email: [email protected] Owner: ACT House, INC % Dominick Ard’is Tulsa, Ok Email: [email protected] O. Confidentiality. The parties hereto agree that the provisions of this Agreement shall be kept confidential and neither party will transmit, disclose, share or otherwise make any provision of this Agreement available to a third party except as lawfully required to be disclosed to any government agency or is otherwise required to be disclosed by law. IN WITNESS WHEREOF the parties hereto have caused this Contract to be duly executed the day and year first above written. "BIRCH" The Birch Co, LLC By: Name: Josh Ploch Title: Manager "OWNER" "ACT House, Inc." By: Name: "Dominick Ard'is" Title: "Owner/Manager/CEO" EXHIBIT “A” Scope of Work INCLUSIONS -All of the following are per Documents sent via email 12/13/23 & 1/19/24. -Extensive “Revised” bid sheet that references all required scope given to the Owners 2/8/24. -All emails and text messages shared to date. -Architectural drawings shared with us. -Comply with state and local code. (City of Tulsa) -1 Year Builders Warranty subject to EXCLUSIONS -Any Selections/Design Work -Architecture Work -Engineering -Mold Remediation -Special Inspections EXHIBIT “B” Pricing and Payment Terms Accessories purchased per “EXHIBIT “C” purchases below Total Contract Price: -$1,741,713.00 (Base bid and alternative items) Payment Schedule Per Agreement: -3% Deposit: $52,251.39 -2% Permits/Demo: $34,834.26 -10% Framing Start: $174,171.30 -20% M.E.P. Start: $348,342.60 -15% Flooring: $261,256.95 -15% Millwork: $261,256.95 -20% Painting: $348,342.60 -10% Cleaning: $174,171.30 -5% Final Punch: $87,085.65 Proposed lien language to be included in Exhibit “B”: [It is expressly agreed and acknowledged that in the event of a breach by OWNER of the payment terms herein, BIRCH may enforce any of its rights in equity or law including but not limited to the filing of a materialmen's lien pursuant to 42 O.S. §§141-154 et al.]