IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA
JERRY A. SIMONSEN, JR., and PIPER L. SIMONSEN,
Plaintiffs,
v.
ROBERT CARY COUNTS,
an individual,
D/B/A CaryOkie, Construction,
Defendant.
PETITION
COME NOW the Plaintiffs, Jerry A. Simonsen, Jr. and Piper L. Simonsen, by and through counsel, and for their causes of action against Defendant Robert Cary Counts, state as follows:
I. PARTIES AND JURISDICTION
1. Plaintiffs Jerry A. Simonsen and Piper L. Simonsen, ("Plaintiffs") are owners of real property located at 2800 Spyglass Hill Road, Edmond, Oklahoma 73034.
2. Defendant Robert Cary Counts ("Defendant"), is an individual residing in Oklahoma County, Oklahoma, D/B/A CaryOkie Construction.
3. The contract was formed and performed in Oklahoma County.
4. Venue is proper in Oklahoma County pursuant to 12 O.S. § 139.
II. FACTUAL BACKGROUND
5. That on or about December 9, 2024, Defendant, Robert Cary Counts, solicited the Plaintiffs to enter into a contract for the remodeling of the Plaintiff's residential dwelling ("the Property"). As a result of said solicitation, Plaintiffs and Defendant entered into a contract for remodeling said residential property.
6. Defendant drafted and transmitted written scope of work requiring completion "to customers approval." A true and correct copy is attached as Exhibit "A" hereto and made a part hereof by reference.
7. The total original contract price was $9,954.00 and with approved change orders of $596.00, the contract amount totaled $10,550.00.
8. In order to induce the Plaintiffs into the agreement for remodeling their Property, Defendant assured Plaintiffs that the remodeling project would be completed on or before January 7, 2025.
9. To further induce the Plaintiffs to contract for remodeling the Property with Defendant, Defendant stated that he would perform specific work and provide specific materials pursuant to promises made to Plaintiffs, as well as, to the terms and conditions of a written contract offered by Defendant to Plaintiffs wherein each item of work performed shall meet customers approval.
10. Based on representations made orally and expressly by Defendant to Plaintiffs, Plaintiffs entered into the contract.
11. Defendant failed to complete the work by January 7, 2025 and continued defective performance thereafter.
12. Defendant failed to perform the work in a commercially reasonable amount of time.
13. The work was materially defective and incomplete.
14. Defendant required Plaintiffs to pay periodic installments on multiple occasions.
15. Plaintiffs paid Defendant $7,350.00.
16. Defendant demanded that Plaintiffs pay him for work he had not performed pursuant to terms of contract and for work not performed at all.
17. Plaintiffs offered Defendant $2,600.00 to resolve the matter. Defendant refused.
18. On April 24, 2025, Defendant filed a Mechanic’s Lien in the amount of $4,600.00.
19. The maximum possible unpaid balance was $3,200.00.
20. The lien amount was knowingly exaggerated and clouds Plaintiffs’ title.
COUNT I – BREACH OF CONTRACT
Plaintiffs, for their action against the Defendant, allege and state the following, incorporating paragraphs 1 through 20:
21. Defendant materially breached the contract.
22. Plaintiffs have incurred repair damages estimated at $3,500.00 or less, to be proven at trial.
23. Plaintiffs seek attorney fees pursuant to 12 O.S. § 936.
COUNT II – FRAUD IN THE INDUCEMENT AND MISREPRENTATION
Plaintiffs, for their action against the Defendant Company, allege and state the following, incorporating paragraphs 1 through 23:
24. Throughout the contract negotiations with Plaintiffs, Defendant knowingly and purposefully represented that the improvements to the Property would be completed on or before January 7, 2025 while knowing that such date would not be met.
25. Defendant further represented that said improvements would be performed by qualified individuals when he knew the statement to be false.
26. Defendant further represented that said improvements would be performed by using stated high quality materials which he knew to be false.
27. Said representations stated in paragraphs 23 through 25 were made in order to induce the Plaintiffs to enter into contract with Defendant.
28. Plaintiffs relied on Defendant’s representations and that reliance was reasonable.
29. Defendant knew his representations to Plaintiffs were false at the time the representations were made and Defendant intended that Plaintiffs rely on said representations in order to enter into said contract with Defendant.
30. Plaintiffs would not have entered into the agreement with Defendant if Plaintiffs would have known the true facts.
31. As a result of Defendant’s misrepresentations and breach of the agreement, Plaintiffs have been damaged in that the expected value of Plaintiffs’ property has been decreased due to Defendants failure to completely perform the contract as promised.
COUNT III – NEGLIGENCE
Plaintiffs, for their action against the Defendant Company, allege and state the following, incorporating paragraphs 1 through 31:
32. Defendant failed to perform in a workmanlike manner.
33. Plaintiffs were damaged thereby.
COUNT IV – FRAUDULENT, WILLFULLY EXAGGERATED, AND INVALID MECHANIC’S LIEN
(42 O.S. §§ 141, 142, 143.4, 143, 171–176)
Plaintiffs, for their action against the Defendant, allege and state the following, incorporating paragraphs 1 through 33:
34. On April 24, 2025, Defendant filed a Mechanic’s Lien Statement of Claim in the office of the Oklahoma County Clerk asserting a lien in the amount of $4,600.00 against Plaintiffs’ property located at 2800 Spyglass Hill Road, Edmond, Oklahoma. (See Exhibit “B” attached hereto and made a part hereof by reference)
35. The total contract price for all work, including approved change orders, was $10,550.00.
36. Plaintiffs paid Defendant $7,350.00 toward the contract.
37. Even assuming arguendo full contractual performance, the maximum theoretical unpaid balance could not exceed $3,200.00.
38. At the time Defendant filed the lien, he knew:
a. The total contract price;
b. The payments received;
c. The unfinished and defective nature of the work;
d. That Plaintiffs disputed performance and quality;
e. That he had not substantially performed the contract.
39. Defendant nevertheless claimed $4,600.00, a sum materially exceeding any amount possibly due under the contract.
40. Under 42 O.S. § 141, a mechanic’s lien exists only for labor and materials actually furnished pursuant to contract and only for sums “due.”
41. Under 42 O.S. § 141.4, a lien filed for sums not due, or for amounts knowingly exaggerated, is invalid and unenforceable and, upon conviction, the contractor shall be guilty of a Class D1 Felony.
42. Defendant’s lien statement fails to accurately reflect:
a. Payments received;
b. The limited remaining contract balance;
c. The incomplete and defective status of the work;
d. Proper itemization supporting the exaggerated amount.
43. Defendant’s filing of a lien materially exceeding any possible debt constitutes a willful exaggeration of the claim.
44. Oklahoma courts recognize that a lien claimant who knowingly files a lien for more than is due forfeits lien rights.
45. Defendant did not substantially perform the contract, and substantial performance is a prerequisite to enforcement of a mechanic’s lien.
46. Because Defendant failed to substantially perform and knowingly overstated the amount allegedly owed, the lien is invalid as a matter of law.
47. The filing of the exaggerated lien was done with reckless disregard for the truth of the amount claimed and for Plaintiffs’ property rights.
48. The lien clouds Plaintiffs’ title, impairs alienability, and exposes Plaintiffs to lender and refinancing complications.
49. Pursuant to 42 O.S. § 176 and related statutory provisions governing mechanic’s liens, Plaintiffs are entitled to:
a. A judicial declaration that the lien is void;
b. An order directing cancellation of the lien of record;
c. Attorney fees and costs incurred in removing the improper lien.
50. Defendant’s willful exaggeration further supports an award of punitive damages under 23 O.S. § 9.1.
COUNT V – SLANDER OF TITLE
Plaintiffs, for their action against the Defendant, allege and state the following, incorporating paragraphs 1 through 50:
51. Defendant recorded a false claim of indebtedness.
52. Plaintiffs’ title has been clouded and damaged.
COUNT VI – DECLARATORY JUDGMENT (12 O.S. §§ 1651–1657)
Plaintiffs, for their action against the Defendant, allege and state the following, incorporating paragraphs 1 through 52:
53. An actual, present, and justiciable controversy exists between Plaintiffs and Defendant regarding:
a. Whether Defendant substantially performed the contract;
b. Whether any additional sums are owed;
c. Whether the Mechanic’s Lien filed April 24, 2025 is valid;
d. Whether the lien amount is legally enforceable;
e. Whether Defendant forfeited lien rights by willful exaggeration.
54. Defendant contends that Plaintiffs owe sums in excess of those lawfully due and has recorded a lien asserting such claim.
55. Plaintiffs deny that Defendant substantially performed the contract and deny that the amount claimed is owed.
56. The controversy is real and substantial and is not hypothetical.
57. Plaintiffs are entitled to relief under Oklahoma’s Declaratory Judgment Act, 12 O.S. § 1651, which authorizes courts to declare rights, status, and legal relations.
58. Plaintiffs seek declaration that the lien is invalid and void.
59. Plaintiffs request a judicial declaration that:
a. Defendant failed to substantially perform the contract;
b. Defendant is not entitled to enforce a mechanic’s lien;
c. The lien filed April 24, 2025 is void and unenforceable;
d. Defendant is not entitled to recover the amount claimed in the lien;
e. Plaintiffs are entitled to cancellation of the lien of record.
60. A declaratory judgment will terminate the uncertainty and controversy giving rise to this action.
COUNT VII
QUIET TITLE
(12 O.S. § 1141)
Plaintiffs, for their action against the Defendant, allege and state the following, incorporating paragraphs 1 through 60:
61. Plaintiffs are the fee simple owners of the real property located at 2800 Spyglass Hill Road, Edmond, Oklahoma.
62. Defendant claims an adverse interest in the property by virtue of the recorded Mechanic’s Lien.
60. The lien constitutes a cloud upon Plaintiffs’ title.
61. A cloud on title exists when an instrument appears valid on its face but is, in fact, invalid or unenforceable.
62. Defendant’s lien is invalid because:
a. Defendant did not substantially perform the contract as agreed between the parties;
b. The lien amount is materially exaggerated;
c. The lien includes sums not due;
d. The lien was filed in reckless disregard of Plaintiffs’ rights.
63. Under 12 O.S. § 1141, Plaintiffs are entitled to bring an action to determine adverse claims and quiet title.
64. Equity requires removal of the cloud upon Plaintiffs’ title.
65. Plaintiffs request entry of judgment:
a. Determining that Defendant has no valid lien interest;
b. Quieting title in Plaintiffs against Defendant;
c. Ordering the County Clerk to cancel the lien of record.
COUNT VIII
PUNITIVE DAMAGES
23 O.S. § 9.1
Plaintiffs, for their action against the Defendant, allege and state the following,
incorporating paragraphs 1 through 65:
66. Defendant’s conduct constitutes reckless disregard under 23 O.S. § 9.1.
67. Plaintiffs seek punitive damages in an amount not less than $15,000.00, or as determined by the jury.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Plaintiffs Jerry A. Simonsen, Jr. and Piper L. Simonsen respectfully pray for judgment against Defendant Robert Cary Counts as follows:
1. On Count I (Breach of Contract):
For actual damages in an amount to be proven at trial, including but not limited to
the cost to repair and complete defective work, together with attorney fees pursuant to 12 O.S. § 936 and costs of suit;
2. On Count II (Fraud in the Inducement and Misrepresentation)
For actual and punitive damages according to proof at trial
3. On Count III (Negligence / Defective Workmanship):
For actual damages according to proof at trial;
4. On Count IV (Fraudulent and Invalid Mechanic’s Lien):
a. For a declaration that the Mechanic’s Lien filed April 24, 2025 is void and unenforceable;
b. For an Order directing the Oklahoma County Clerk to cancel and remove the lien of record;
c. For attorney fees and costs pursuant to 42 O.S. and applicable lien statutes;
5. On Count V (Slander of Title):
For actual damages caused by the clouding of title, together with punitive damages as allowed by law;
6. On Count VI (Declaratory Judgment):
For a judicial declaration determining the rights and obligations of the parties, including that Defendant failed to substantially perform the contract and is not entitled to enforce the lien;
7. On Count VII (Quiet Title):
For judgment quieting title to the property located at 2800 Spyglass Hill Road,
Edmond, Oklahoma, in Plaintiffs and against Defendant, and adjudging that
Defendant has no right, title, interest, or lien in said property;
8. On Count VIII (Punitive Damages):
For punitive damages pursuant to 23 O.S. § 9.1 in an amount sufficient to punish
Defendant’s reckless and willful conduct and to deter similar misuse of the
mechanic’s lien process, not less than $15,000.00, or such amount as may be
determined by the jury;
9. Pre- and Post-Judgment Interest as allowed by law;
10. Attorney’s fees incurred in bringing this action;
11. Costs of this action, including filing fees and service fees;
12. Such other and further relief as the Court deems just and equitable under the
circumstances.
Respectfully submitted,
Larry N. Miller, QBAT#16696
Larry N. Miller & Associates, PLLC
3035 N.W. 63rd Street, Suite 206
Oklahoma City, Oklahoma 73116
Telephone: (405) 858-8282
Facsimile: (405) 858-8882
Email:
[email protected]
VERIFICATION
STATE OF OKLAHOMA )
COUNTY OF OKLAHOMA ) ss:
I, Jerry A. Simonsen, Jr. and Piper L. Simonsen, being first duly sworn, state that we have read the foregoing Petition and that the factual statements are true and correct to the best of our knowledge and belief.
Jerry A. Simonsen, Jr. Piper L. Simonsen
SUBSCRIBED AND SWORN before me this 16th day of February, 2026.
LARRY N. MILLER
NOTARY PUBLIC
STATE OF OKLAHOMA
Commission #09006268 Expires 07/29/29
My Commission Expires: ____________
Notary Public
Re: You paid Robert Counts $800.00
From: Robert Counts (
[email protected])
To:
[email protected]
Date: Saturday, December 28, 2024 at 11:51 AM CST
Work to be performed at 2800 spyglass Hill road Edmond Oklahoma.
21 cabinet doors sanded and stained to customers approval and finished to install with new hardware. $100 each $2,100 total
9 drawer fronts sanded stained and finished to customers approval. New soft closed drawer glides installed with hardware $100 each $900 total.
Five false drawer fronts sanded and stained with finish to customers approval Install $50 each. $250 total.
One side of front door sanded and stained to match existing molding to customers approval with finish. $300 total.
Pantry door one side completely sanded stained and finished to customer's approval $300 total.
Pantry door exterior side touch up worn places with staying and finish to customers approval $100 total.
Crown molding over cabinets and one repair stained and finished to customers approval installed $200 total.
40 square feet of backsplash at $25 a square foot finish to customers approval $1,000 total.
Pantry with upper shelf and a sliding bottom floor shelf and four middle shelves full extension soft closed hardware stained and finished to customers approval and to include spice Rack on back side of pantry door. $3800 total.
Bottom step sanded and finished with stain to customers approval and baseboard in designated areas equaling 201 linear feet to be replaced and stained with finish to customers approval. $1004 total.
Total cost $9,954
$800 deposit paid leaving a remaining balance of $9154 all work to be completed by January 7th.
On Thu, Dec 19, 2024, 6:53 PM JJ Simonsen <
[email protected]> wrote:
Cary,
This has confirmation that the Venmo finally sent from inside the MMAC (where I work), and has the total job description for the pantry & abridged version of follow-on jobs.
Pantry Renovation Total Est: $3,800
Dates: 12/20/24-12/30/24
$800 PD for Pantry renovation to include: replacing backerboard, texturing walls to match current, painting space to match home walls; install no less than four stain grade shelves colored to match customer's liking seated on functioning slides and floor roller racks rated to 250# capacity; side pivoting condiment racks stained to match customer's liking; pantry door-mounted condiment racks stained to customer's liking; front of pantry door resurfaced and stained to match house trim; replace baseboards around pantry bottom; replace pantry light with switch-controlled functional LED fixture. Ensure near-term availability for follow-on projects (cabinet door resurfacing stain to match trim & installed, cabinet drawers resurfaced to match trim & slides installed, cabinet molding stained to match cabinets & installed, resurfacing front door stained to match trim, baseboards resurfaced to customer's liking, install backsplash tile with customer design @ $25 per SF (40 SF total); bottom stairwell step resurfaced to customer's liking)
Regards,
JJ SIMONSEN
913-486-2001
Begin forwarded message:
From: Venmo <
[email protected]>
Date: December 19, 2024 at 3:38:12 PM CST
To:
[email protected]
Subject: You paid Robert Counts $800.00
Reply-To: Venmo No-reply <
[email protected]>
Mechanic's Lien Statement of Claim
SAI 4084 (2024)
STATE OF OKLAHOMA )
COUNTY OF OKLAHOMA ) SS
Known all men by these presents: I, ROBERT COUNTS, 6708 NW 24TH STREET, BETHANY OK 73008, have a claim against JERRY A SIMONSEN JR, 2800 SPYGLASS HILL ROAD 73034 for the sum of FOUR THOUSAND SIX HUNDRED dollars ($4,600) due to me, and that the claim is made for and on account of LABOR AND MATERIALS and that such work was performed and materials supplied by me the 11th day of APRIL 2025 according to an itemized statement thereof, hereto attached marked "Exhibit A" and make part of this statement; that such work, labor, and materials were done in pursuance of a contract with:
JERRY A SIMONSEN JR 2800, SPYGLASS HILL ROAD 73034
"Husband and Wife"
and was performed upon the building and premises owned by
JERRY A SIMONSEN JR AND PIPER' L SIMONSEN, 2800 SPYGLASS HILL ROAD 73034
And described as follows to wit: [LEGAL DESCRIPTION]
LOT 14 BLOCK 2 OF FAIRFAX ESTATES 1ST ADDITION
In said County and State; that the sum is just due and unpaid, and I have claimed a lien upon said building and upon the said premises on which the same is situated, to the amount of $4,600 as above set forth, according to the laws of the State of Oklahoma. Dated this 24th day of APRIL 2025.
[Signature of claimant] - SIGNATURE OF CLAIMANT
SIMONSEN JERRY A JR AND SIMONSEN PIPER L
2800 SPYGLASS HILL RD
EDMOND, OK 73034
Apr 25, 2025
Return Reciept Requested
Re: 2025042401058453
Notice of Filing Lien Statement
YOU ARE HEREBY NOTIFIED that on 04/24/2025 01:55:12 PM, COUNTS ROBERT (claimant), located at 6708 NW 24TH ST, BETHANY, OK 73008 has filed a LIEN STATEMENT in the COUNTY CLERKS OFFICE, under oath, claiming a lien, the same being Lien Number against the following described property and the improvements located thereon:
FAIRFAX ESTATES 1ST Lot: 14 Block: 2
Said lien being for labor and/or materials furnished by said Claimant upon the above-described property, under contract with:
SIMONSEN JERRY A JR AND SIMONSEN PIPER L
YOU ARE FURTHER NOTIFIED that the claimant named above claims said lien against the above described property and premises in the amount of $4,600.00.
I, MARESSA TREAT, COUNTY CLERK of OKLAHOMA, do hereby certify that the original of the within and foregoing NOTICE OF FILING LIEN STATEMENT, was mailed to the above address shown, on this day, 04/25/2025, by Certified Mail #__________________________, with postage prepaid theron.
MARESSA TREAT,
OKLAHOMA COUNTY CLERK
By: ________________________________
Deputy
