Date: 05-26-2015

Case Style: Warren Power and Machinery, Inc. v. Travelers Casualty and Surety Company of America, et al.

Case Number: CJ-2013-4000

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Bob Skeith

Defendant's Attorney: Trent Gudgel for Travelers

Jonina Mawby and Dean Foote for Russell O'Kane

Description: Tulsa, OK - Warren Power and Machinery, Inc. sued Travelers Casualty and Surety Company of America, et al. on a breach of contract theory claiming:

1. Warren is a foreign corporation doing business in Tulsa County, Oklahoma.
2. The Defendant, Travelers Casualty and Surety Company of America (“Travelers”) is a foreign corporation registered to do business in the State of Oklahoma.
3. The Defendant Panoak Oil & Gas Corporation (“Panoak I”) is an Oklahoma corporation doing business in Tulsa County, Oklahoma.
4. The Defendant, Panoak Pipeline & Civil, LLC (“Panoak II”) is a dissolved Oklahoma limited liability company doing business in Tulsa County, Oklahoma.
5. The Defendants, Russell O’Kane (“O’Kane”) and Doug Gramnier (“Grammer”):
arc individuals.
6. John Does 1-5 are believed to be individuals, business entiti.es or trusts that are the members of Panoak I or alter egos of Panoak I or Panoaic II.
7. Warren is in the business of renting and selling heavy equipment for use on construction projects, among other uses.
8. Panoak I and Panoak II (collectively hereafter referred to as “Panoak”) entered into a series of transactions with Warren whereby Warren agreed to rent certain heavy equipment (“Equipment”) to Panoak.
9. Panoak, in its capacity as a subcontractor, used the Equipment on a construction project.
10. To ensure payment and performance of Panoak’s obligations with respect to the project, the general contractor, Rohl Networks, L.P. secured a surety bond whereby Defendant, Travelers, agreed to bind itself to Warren for payment of the charges incurred by Panoak in connection with use of the Equipment on the project (“Bond”).
11. Warren issued a line of credit to Panoak.
12. Panoak has failed and refused to pay Warren for all charges incurred under the line of credit in connection with use of the Equipment on the project.
13. Panoak land Panoak 11 share the same name, phone number and address.
14. Upon information and belief, Panoak I and Panoak II share the same owners and managing agents. Panoak I and Panoak II are alter egos of one another.
FIRST CLAIM FOR RELIEF
(Fraud)
1 5. Warren incorporates by reference each and every allegation contained herein.
16. In reliance upon the representations made by Grammer, Warren extended credit to Panoak.
17. Upon information and belief, the Defendants, O’Kane, Panoak I, Panoak II and John Does No. 1-5 acted in concert with Grammer, to obtain credit from Warren.
18. The actions of the Defendants, Grammer, O’Kane, and Panoalc alleged herein were committed with the intent to defraud Warren.
19. The said Defendants actively concealed their fraudulent conduct from Warren.
20. As a result of the fraud committed by the Defendants, Grammer, O’Kane, and Panoak. and John Does No. 1-5, Warren has suffered damages in excess of $75,000.
21. The conduct of the Defendants, Grammer, O’Kane, Panoak, and John Does No. 1-
5, was willful, wanton, fraudulent and malicious such that said Defendants should be punished by way of example.
WHEREFORE, premises considered, Warren prays the Court enter Judgment in its favor and against the Defendants, Grammer, O’Kanc, and Panoak, and John Does No. 1-5, jointly and severally, AS FOLLOWS:
a) a money judgment for actual damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code;
b) a money judgment for exemplary damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code;
c) a reasonable attorney fee, costs of the action and all expenses and charges incurred or to be incurred by Warren in connection with this action;
d) prejudgment interest as provided bylaw; and,
e) such other and further relief as the Court may deem just and proper.
SECOND CLAIM FOR RELIEF
(Breach of Open Account)
22. Warren incorporates by reference each and every allegation contained herein
23. Panoak has incurred debt owing to Warren under the terms of the line of credit.
24. Despite demand, Panoak has failed and refused to pay the sums due to Warren under the terms of the line of credit.
25. As a result of the breaches of Panoak, Warren has been damaged in an amount in excess of $75,000.
WHEREFORE, upon july trial, Warren demands judgment in its favor and against the Defendants, Panoak I and Panoak II, jointly and severally as follows:
a) a money judgment for actual damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code;
b) a reasonable attorney fee, costs of the action and all expenses and charges incurred or to be incurred by Warren in connection with this action;
e) prejudgment interest as provided by law; and,
d) such other and further relief as the Court may deem just and proper.
THIRD CLAIM FOR RELIEF
(Bond Claims)
26. Warren incorporates by reference each and every allegation contained herein.
27. Warren has made demand upon Travelers for payment due under the Bond.
28. Travelers has failed to investigate and pay the claim in a timely manner and has failed to comply with the terms and conditions of the Bond.
29. Travelers is in default under the terms and conditions of the Bond, and has breached the terms and conditions of the Bond.
30. As a result of the defaults and breaches of Travelers under the Bond, Warren has sustained damages which damages are continuing to accrue.
31. Travelers owed Warren a duty to handle Warren’s claims under the Bond fairly and in good faith.
32. Travelers breached the duty of good faith and fair dealing.
33. Travelers has investigated Warren’s claims in a manner that was unfair and unreasonable and has unnecessarily delayed its investigation.
34. Travelers has breached its duty of good faith and fair dealing in a manner that was intentional and with malice or that involved reckless disregard of the duty of good faith and fair dealing and the rights of Warren.
35. Travelers’ breach of the duty of good faith and fair dealing has caused damages to Warren both accrued and accruing.
36. Travelers’ conduct justifies an award of punitive damages.
37. Recovery of the equivalent of contract benefits under the Bond is a core element of the damages being sought by Warren in connection with its bad faith claim.
WHEREFORE, upon jury trial, Warren demands judgment in its favor and against Travelers as follows:
a) a money judgment for actual damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code;
b) a money judgment for exemplary damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code;
c) a reasonable attorney fee, costs of the action and all expenses and charges incurred or to be incurred by Warren in connection with this action;
d) prejudgment interest as provided by law; and,
e) such other and further relief as the Court may deem just and proper.

Docket
Date Code Description Count Party Amount
08-27-2013 TEXT

Civil relief more than $10,000 Initial Filing.
1
08-27-2013 CONTRACT

BREACH OF AGREEMENT - CONTRACT

08-27-2013 DMFE

DISPUTE MEDIATION FEE
$ 2.00
08-27-2013 PFE1

PETITION

Document Available (#1021100098)
$ 163.00
08-27-2013 PFE7

LAW LIBRARY FEE
$ 6.00
08-27-2013 OCISR

Oklahoma Court Information System Revolving Fund
$ 25.00
08-27-2013 CCADMIN02

Court Clerk Administrative Fee on $2 Collections
$ 0.20
08-27-2013 OCJC

Oklahoma Council on Judicial Complaints Revolving Fund
$ 2.00
08-27-2013 OCASA

Oklahoma Court Appointed Special Advocates
$ 5.00
08-27-2013 CCADMIN04

Court Clerk Administrative Fee on Collections
$ 0.50
08-27-2013 LTF

Lengthy Trial Fund
$ 10.00
08-27-2013 SMF

Summons Fee (Clerks Fee)-5
$ 25.00
08-27-2013 SMIMA

Summons Issued - Mailed by Attorney-5

08-27-2013 TEXT

OCIS has automatically assigned Judge Kuehn, Dana to this case.

08-27-2013 ACCOUNT

Receipt # 2013-2672440 on 08/27/2013.
Payor:WILKIN MCMURRAY Total Amount Paid: $238.70.
Line Items:
CJ-2013-4000: $188.00 on AC01 Clerk Fees.
CJ-2013-4000: $6.00 on AC23 Law Library Fee.
CJ-2013-4000: $0.70 on AC31 Court Clerk Revolving Fund.
CJ-2013-4000: $5.00 on AC58 Oklahoma Court Appointed Special Advocates.
CJ-2013-4000: $2.00 on AC59 Oklahoma Council on Judicial Complaints Revolving Fund.
CJ-2013-4000: $2.00 on AC64 Dispute Mediation Fees.
CJ-2013-4000: $25.00 on AC79 OCIS Revolving Fund.
CJ-2013-4000: $10.00 on AC81 Lengthy Trial Fund.

09-24-2013 A

TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA'S ANSWER TO PETITION (TRENT GUDGEL ENTERS AS COUNSEL - COVERSHEET ATTACHED) / CERTIFICATE OF SERVICE

Document Available (#1022961430)
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
09-30-2013 A

ANSWER OF DEFT RUSSELL O'KANE (KEVIN LITZ & NINA MAWBY ENTER AS COUNSEL - COVERSHEET ATTACHED) / CERTIFICATE OF MAILING

Document Available (#1022961881)
O KANE, RUSSELL
10-04-2013 S

Party has been successfully served. / SUMMMONS SERVED FOR PANOAK OIL & GAS CORP / CORP SERV/ BY SERVING CHRISTOPHER A HARL, ON 9-6-13, BY PROCESS SERVER

Document Available (#1023147749)
PANOAK OIL & GAS CORPORATION
10-04-2013 S

Party has been successfully served. SUMMONS SERVED FOR DOUG GRAMMER/ RESIDENTIAL SERVICE, BY SERVING MEGAN NIDSEWAY, ON 9-11-13, BY PROCESS SERVER

Document Available (#1023147745)
GRAMMER, DOUG
10-04-2013 S

Party has been successfully served. SUMMONS SERVED FOR RUSSELL O'KANE, PERSONAL SERVICE, ON 9-9-13, BY PROCESS SERVER

Document Available (#1023147741)
O KANE, RUSSELL
10-04-2013 S

Party has been successfully served. SUMMONS SERVED FOR TRAVELERS CASULTY AND SURETY CO OF AMERICA / CERTIFIED MAIL, STAMPED ON 8-30-13

Document Available (#1023147737)
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
10-15-2013 S

Party has been successfully served. SUMMONS SERVED FOR PANOAK PIPLINE & CIVIL LLC / CORP SERV, BY SERVING RUSSELL O'KANE, ON 10-9-13, BY PROCESS SERVER

Document Available (#1023143907)
PANOAK PIPELINE & CIVIL LLC
01-23-2014 CTFREE

KUEHN, dana: damages hearing set on 1-27-14 at 10:15 am, courtroom 701.

01-27-2014 CTFREE

kuehn, dana: hearing held. plaintiff represented by robert skeith. fianl journal entry of default judgement against defendants panoak oil and gas corp and panoak pipeling and civil llc entered.

01-27-2014 DISPFJ

FINAL JOURNAL ENTRY OF DEFAULT JUDGEMENT
2 PANOAK OIL & GAS CORPORATION
01-27-2014 DISPFJ

FINAL JOURNAL ENTRY OF DEFAULT JUDGEMENT
2 PANOAK PIPELINE & CIVIL LLC
01-27-2014 JEDF

FINAL JOURNAL ENTRY OF DEFAULT JUDGMENT AGAINST DEFS PANOAK OIL & GAS CORP AND PANOAK PIPELINE & CIVIL LLC SUM OF $79,206.21 + INT COST ATTY FEES $1,500.00

Document Available (#1024088096)
PANOAK OIL & GAS CORPORATION
01-27-2014 STAY

STAY EXECUTION UNTIL FEB 5,2014

01-29-2014 AFD

AFFIDAVIT OF MAILING FINAL JOURNAL ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANTS, PANOAK OIL AND GAS CORP AND PANOAK PIPELINE & CIVIL LLC

Document Available (#1024175797)

02-28-2014 GAPJ

GARNISHMENT AFFIDAVIT W/SUMMONS (POST JUDGMENT) ARVEST BANK

Document Available (#1024316072)
$ 28.00
02-28-2014 OCISR

Oklahoma Court Information System Revolving Fund
$ 25.00
02-28-2014 CCADMIN02

Court Clerk Administrative Fee on $2 Collections
$ 0.20
02-28-2014 OCJC

Oklahoma Council on Judicial Complaints Revolving Fund
$ 2.00
02-28-2014 OCASA

Oklahoma Court Appointed Special Advocates
$ 5.00
02-28-2014 CCADMIN04

Court Clerk Administrative Fee on Collections
$ 0.50
02-28-2014 GSIMA

GARNISHMENT SUMMONS ISSUED MAILED BY PLAINTIFF OR ATTORNEY

02-28-2014 ACCOUNT

Receipt # 2014-2792185 on 02/28/2014.
Payor:WILKIN MCMURRAY Total Amount Paid: $60.70.
Line Items:
CJ-2013-4000: $28.00 on AC01 Clerk Fees.
CJ-2013-4000: $0.70 on AC31 Court Clerk Revolving Fund.
CJ-2013-4000: $5.00 on AC58 Oklahoma Court Appointed Special Advocates.
CJ-2013-4000: $2.00 on AC59 Oklahoma Council on Judicial Complaints Revolving Fund.
CJ-2013-4000: $25.00 on AC79 OCIS Revolving Fund.

03-07-2014 ATG

ANSWER TO GARNISHMENT BY ARVEST BANK / NO ACCOUNTS

Document Available (#1024316372)
PANOAK PIPELINE & CIVIL LLC
03-11-2014 ATG

ANSWER TO GARNISHMENT BY ARVEST BANK / NO ACCOUNTS ON FILE

Document Available (#1024417557)

03-13-2014 DWP

DISMISSAL WITH PREJUDICE AS TO DEFENDANT, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA ONLY BY PLF ATTY

Document Available (#1024417737)
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
03-13-2014 DISPCVDMWP

DISMISSAL WITH PREJUDICE
2 TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
04-01-2014 GAPJ

GARNISHMENT AFFIDAVIT W/SUMMONS (POST JUDGMENT) AS TO VALLEY NATIONAL BANK / PANOAK OIL & GAS CORP

Document Available (#1024757390)
$ 28.00
04-01-2014 OCISR

Oklahoma Court Information System Revolving Fund
$ 25.00
04-01-2014 CCADMIN02

Court Clerk Administrative Fee on $2 Collections
$ 0.20
04-01-2014 OCJC

Oklahoma Council on Judicial Complaints Revolving Fund
$ 2.00
04-01-2014 OCASA

Oklahoma Court Appointed Special Advocates
$ 5.00
04-01-2014 CCADMIN04

Court Clerk Administrative Fee on Collections
$ 0.50
04-01-2014 GSIMA

GARNISHMENT SUMMONS ISSUED MAILED BY PLAINTIFF OR ATTORNEY

04-01-2014 ACCOUNT

Receipt # 2014-2816116 on 04/01/2014.
Payor:WILKIN MCMURRAY Total Amount Paid: $60.70.
Line Items:
CJ-2013-4000: $28.00 on AC01 Clerk Fees.
CJ-2013-4000: $0.70 on AC31 Court Clerk Revolving Fund.
CJ-2013-4000: $5.00 on AC58 Oklahoma Court Appointed Special Advocates.
CJ-2013-4000: $2.00 on AC59 Oklahoma Council on Judicial Complaints Revolving Fund.
CJ-2013-4000: $25.00 on AC79 OCIS Revolving Fund.

04-11-2014 A

ANSWER AND AFFIDAVIT OF NON-CONTINUING GENERAL GARNISHEE VALLEY NATIONAL BANK / CERTIFICATE OF SERVICE

Document Available (#1024838754)

08-26-2014 APLI

APPLICATION TO WITHDRAW AS COUNSEL OF RECORD / A TO J / CERTIFICATION OF MAILING / LEBLANG, MAWBY & LITZ PLLC /

Document Available (#1026987819)
O KANE, RUSSELL
08-28-2014 CTFREE

Kuehn, dana: order entered granting application to withdraw as counsel of record.

09-12-2014 CTFREE

Kuehn, dana: notice of hearing entered.

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CJ-2013-3901 Coco Higgins v Dontae Revels
CJ-2013-3932 Joseph Driskell v Gino Paul
CJ-2013-3998 Miles McCarver v Lavada Crane
CJ-2013-4000 Warren Power & Machinery v Travelers Casualty
CJ-2013-4001 Donna Villarreal v Chiquita Carter
CJ-2013-4009 Keith Jimerson v RJM LLC
CJ-2013-4085 Melinda Shands v Nathan White
CJ-2013-4213 Charles Anderson v Riley Stephens
CJ-2013-4259 Allen Johnson v Peggy Gomez



The Scheduling Conferences are set October 2, 2014, at 1:30 p.m., in Courtroom 701, Tulsa County Courthouse, Tulsa, Oklahoma, to be heard before Judge Kuehn.

Notice mailed by clerk to parties.

09-12-2014 NOH

NOTICE OF HEARING / SCHEDULING CONFERENCES ARE SET ON 10-2-14 @ 1:30 PM IN COURTROOM 701/ AFFIDAVIT OF MAILING

Document Available (#1027192626)

09-18-2014 DWP

DISMISSAL WITH PREJUDICE AS TO DEFENDANT DOUG RAMMER ONLY

Document Available (#1027195327)
GRAMMER, DOUG
09-18-2014 DISPCVDMWP

DISMISSAL WITH PREJUDICE
2 GRAMMER, DOUG
10-02-2014 EAA

ENTRY OF APPEARANCE / BY DEAN FOOTE ATTY FOR DF

Document Available (#1027418095)
O KANE, RUSSELL
10-02-2014 CTFREE

kuehn, dana: pltf represented by kurston mcmurray; deft represented by dean foote. agreed scheduling order entered. settlement conference to be completed prior to pretrial conference.

pretrial conference is set on 5-26-15 at 9:30 am, courtroom 701.

10-17-2014 CTFREE

Kuehn, dana: order granting application to withdraw as counsel of record signed on 8-28-14 not picked up. Filed by court clerk - attorney failed to retrieve from judge's outbox. No copies mailed to counsel.

10-17-2014 O

Order GRANTING APPLICATION TO WITHDRAW AS COUNSEL OF RECORD / SEE ABOVE ENTRY /

Document Available (#1027500844)

10-30-2014 SO

SCHEDULING ORDER / DATED 10-2-14

Document Available (#1027771653)

05-26-2015 NO

NOTICE OF CHANGE OF ADDRESS / ROBERT P SKEITH / CERTIFICATE OF SERVICE

Document Available (#1029605621)

05-26-2015 DWOP

DISMISSAL WITHOUT PREJUDICE AS TO DEFENDANT, RUSSELL O'KANE, ONLY BY PLT

Document Available (#1029613879)
O KANE, RUSSELL
05-26-2015 DISPDWOP

DISMISSAL WITHOUT PREJUDICE
2 O KANE, RUSSELL
05-26-2015 DISPDWOP

DISMISSAL WITHOUT PREJUDICE
1 O KANE, RUSSELL

Outcome: Dismissed without prejudice as to Russell O'Kane. Dismissed with prejudice as to Travelers Insurance Company

Plaintiff's Experts:

Defendant's Experts:

Comments: