notice of hearing and motion for relief from · pdf filecase no. bky 11-45201, lyman...

UNITED STATES BANKRUPTCY COURT

DISTRICT OF MINNESOTA

In re:

Lyman Holding Company, et al.,

Debtors.1

Chapter 11 Case No. 11-45190

(Jointly Administered)

NOTICE OF HEARING AND MOTION FOR RELIEF FROM AUTOMATIC STAY

______________________________________________________________________________

TO: The entities specified in Local Rule 9013-3.

1. Wild Horse at Woods Creek Condominium Association (“Movant”) moves the

Court for the relief requested below and gives notice of hearing.

2. The Court will hold a hearing on this motion at 1:30 p.m. on January 11, 2012,

before the Honorable Dennis D. O’Brien, in Courtroom 232 at the United States Courthouse, 200

Warren E. Burger Federal Building, 316 North Robert Street, St. Paul, Minnesota 55101.

3. Any response to this motion must be filed and delivered not later than January 6,

2012, which is five days before the time set for the hearing (including Saturdays, Sundays and

holidays). UNLESS A RESPONSE OPPOSING THE MOTION IS TIMELY FILED, THE

COURT MAY GRANT THE MOTION WITHOUT A HEARING.

4. This Court has jurisdiction over this motion pursuant to 28 U.C.C. §§ 1334 and

157(a), Local Rule 1070-1, Fed. R. Bankr. P. 5005. This is a core proceeding. The petitions

commencing these chapter 7 cases were filed on August 4, 2011. The cases are now pending in

this court.

1 Jointly administered estates of the following Debtors: Lyman Holding Company Case No. BKY 11-45190, Lyman Lumber

Company Case No. BKY 11-45191, Automated Building Components, Inc. Case No. BKY 11-45192, Building Materials

Wholesalers, Inc. Case No. BKY 11-45193, Carpentry Contractors Corp. Case No. BKY 11-45194, Construction Mortgage

Investors Co. Case No. BKY 11-45196, Lyman Development Co. Case No. BKY 11-45199, Lyman Lumber Wisconsin, Inc.

Case No. BKY 11-45201, Lyman Properties, L.L.C. Case No. BKY 11-45202, Mid-America Cedar, Inc. Case No. BKY 11-

45203, Woodinville Lumber, Inc. Case No. BKY 11-45204, Woodinville Construction Services, L.L.C. Case No. BKY 11-

45206.

Case 11-45190 Doc 350 Filed 12/22/11 Entered 12/22/11 14:17:06 Desc Main Document of 86

2

5. This motion arises under 11 U.S.C. § 362(d) and Fed. R. Bankr. P. 4001(a). This

motion is filed under Fed. R. Bankr. P. 9014 and Local Rule 9013. Movant requests relief from

the automatic stay of 11 U.S.C. § 362(a) to permit insurers for Woodinville Lumber, Inc. and

Woodinville Construction Services LLC (collectively “Woodinville”) and the other parties to the

settlement to proceed with a settlement, including the payment of certain proceeds of

Woodinville’s insurance policies. The settlement is funded 100% by insurance and includes a

complete release of all claims.

6. The insurance companies and policies involved in this settlement are set forth in

the Affidavit of Jeremy L. Stilwell.

7. In October 2008, the Movant commenced suit against Monroe Farms, LLC

(“Monroe”), the developers of the Wild Horse at Woods Creek Condominium (the

“Condominium”), for a construction defect resulting in property damage to the Condominium.

This case is filed in the Superior Court of the State of Washington, Snohomish County, Court

File No. 08-2-07890-4 (referred to as the “Action”). The Condominium is an 82 unit residential

condominium community located in Monroe, Washington.

8. Monroe Farms, in turn, filed a third party complaint against the 23 subcontractors

that provided work on the Condominium, including Woodinville who was a subcontractor on the

project, alleging that if Monroe is liable to Movant, that the subcontractors are liable to Monroe.

9. Woodinville was subcontracted to install siding, trim and the weather resistive

barrier on all buildings for the Condominium. Woodinville employees performed some of this

work and subcontracted a portion of the work to five sub-subcontractors. The five sub-

subcontractors are Maria Elena Ramirez, d/b/a Amk Siding; Cerafin Apreza, d/b/a Apreza

Quality Siding Company; Jaciel Rodriguez Avila, d/b/a Avila Siding Company; FMG Siding


3

Specialists, Inc.; and Martha Lake Construction, Inc. (collectively referred to as “Sub-

subcontractors”).

10. Woodinville filed a fourth party complaint against the sub-subcontractors alleging

that if Woodinville is liable to the Movant, that the sub-contractors are liable to Woodinville for

those damages.

11. The Movant settled its first party claim against Monroe and the project general

contractor, CAMS Construction Corporation of Washington, Inc. (“CAMS”). As part of the

settlement, Monroe and CAMS assigned to Movant their claims against each of the

subcontractors that provided work on the project, including Woodinville.

12. The Movant on behalf of itself and the assigned claims from Monroe and CAMS

prosecuted the claims against the subcontractors, including Woodinville.

13. The Movant and Woodinville agreed to mediate the dispute and did so with the

assistance of a third party neutral mediator.

14. On July 25, 2011, the Movant, Woodinville and the remaining sub-subcontractors

entered into a settlement agreement (“Settlement Agreement”).

15. Pursuant to the Settlement Agreement, proceeds from ABC and proceeds from the

insurance carriers for sub-subcontractors would fund 100% of the settlement. Under the

settlement, Movant, and the other parties to the settlement, agreed to release all claims against

Woodinville.

16. Before the parties were able to consummate the Settlement Agreement and before

the insurers paid the settlement amount pursuant to the Settlement Agreement, Woodinville filed

a petitions under Chapter 11 on August 4, 2011.

WHEREFORE, Movant respectfully requests that the Court enter an order that to the


4

extent the payment under the insurance policies are subject to the automatic stay of 11 U.S.C.

§362(a), for relief from the stay to allow payment of the stated settlement proceeds to Movant

consistent with the attached proposed order.

LAPP, LIBRA, THOMSON, STOEBNER

& PUSCH, CHARTERED

Dated: December 22, 2011 /e/ Rosanne H. Wirth

Rosanne H. Wirth (Atty # 0137479)

One Financial Plaza, Suite 2500

120 South Sixth Street

Minneapolis, MN 55402

(612) 338-5815

Attorneys for Wild Horse at Woods Creek

Condominium Movant

VERIFICATION

I, Constance Curtin, on behalf of Wild Horse at Woods Creek Condominium Association,

the moving party named in the foregoing Notice of Hearing and Motion, declare under penalty of

perjury that the foregoing is true and correct according to the best of my knowledge, information,

and belief.

Executed on: ____________, 2011 _______________________________

Constance Curtin, Its President




In re:


Debtors.1



MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR RELIEF FROM AUTOMATIC STAY

______________________________________________________________________________

Wild Horse at Woods Creek Condominium Association (“Movant”) submits this

Memorandum in Support of its Motion for Relief from the Automatic Stay, to allow it to pursue

any and all rights and remedies against the proceeds of Woodinville Lumber, Inc.’s and

Woodinville Construction Services, LLC’s (collectively “Woodinville”) insurance policies

arising out of the construction of the Wild Horse Condominium (“Project”).

Movant and Woodinville have an enforceable settlement agreement in place that will be

funded 100% by insurance proceeds. Movant is seeking relief from the Automatic Stay in order

to complete the settlement and resolve the dispute by transfer of the insurance proceeds that have

been earmarked for settlement.

I. FACTUAL DISCUSSION

The Project at issue in this matter is an 82 unit residential condominium community

located in Monroe, Washington.







45206.


2

In October 2008, Movant sued Monroe Farms, LLC (“Monroe Farms”), the developers of

the Wild Horse at Woods Creek Condominium (the “Project”), for construction defects and

resulting property damage to the Project. Monroe Farms in turn filed a third-party complaint

against Woodinville and 22 other subcontractors that provided work on the Project. This case is

filed in the Superior Court of the State of Washington, Snohomish County, Court File No. 08-2-

07890-4 (referred to as the “Action”).

Woodinville contracted to install siding, trim and the weather resistive barrier on all

buildings for the Project. Woodinville employees performed some of this work and it

subcontracted a portion of the work to sub-subcontractors: Maria Elena Ramirez, d/b/a Amk

Siding; Cerafin Apreza, d/b/a Apreza Quality Siding Company; Jaciel Rodriguez Avila, d/b/a

Avila Siding Company; FMG Siding Specialists, Inc.; and Martha Lake Construction, Inc.

(collectively referred to as “Sub-subcontractors”). Woodinville filed fourth party complaints

against the Sub-subcontractors, alleging that if Woodinville is liable to Movant then the Sub-

subcontractors are liable to Woodinville for those damages.

Sometime thereafter, Movant settled its first-party claims against Monroe Farms and the

project general contractor CAMS Construction Corporation of Washington, Inc. (“CAMS”). As

part of the settlement, Monroe Farms and CAMS assigned to Movant their claims against each of

the subcontractors that provided work on the project, including Woodinville.

Movant, as assignee of Monroe Farms’ and CAMS’ third-party claims, assumed and

prosecuted claims against Woodinville. Movant, Woodinville and the other parties agreed to

mediate the dispute and did so with the assistance of a third-party neutral mediator. On July 25,

2011, Movant, Woodinville and the remaining Sub-subcontractors entered into a settlement

agreement. Pursuant to the settlement agreement, insurers of Woodinville and proceeds from

Woodinville’s and the Sub-subcontractor’s insurance policies would fund 100% the settlement


3

any thereby forever resolve any and all claims between the parties. Before the insurers had time

to issue payment and complete the agreement, Woodinville filed its Chapter 11 petitions. The

settlement provides for a complete release of all claims. The Settling Parties have reached an

agreement which is attached as EXHIBIT D to the Affidavit of Jeremy L. Stilwell.

The parties to the settlement include the following parties: Movant, on behalf of itself and

also on behalf of Monroe Farms, LLC and CAMS, Woodinville, ABC Insurance Company,

insurer for Woodinville, Jaciel Rodriguez Avila dba Avila Siding Company, FMG Siding

Specialists, Inc., All Framing, LLC, the DRB Company. These parties are collectively referred

to as “Settling Parties.”

II. INSURANCE POLICIES

A summary of the insurance policies and a copy of the declarations page for each policy

is included in the Affidavit of Jeremy L. Stilwell.

III. LEGAL ANALYSIS

A. CAUSE EXISTS FOR RELIEF FROM THE AUTOMATIC STAY UNDER 11

U.S.C. §362(d)(1).

11 U.S.C. §362(d)(1) provides:

“On request of a party in interest and after notice and a hearing, the court shall

grant relief from the stay provided under subsection (a) of this section, such as by

terminating, annulling, modifying, or conditioning such stay—

(1) for cause, including the lack of adequate protection of an interest in

property of such party in interest;”

The Movant does not waive or concede that the policy proceeds are subject to the stay or

that they are property of the bankruptcy estates. However, assuming for the purpose of this

motion that a portion of the proceeds of the policies could be property of the bankruptcy estate

and subject to the automatic stay, sufficient cause exists for the Court to lift the stay and permit

the use of those proceeds to pay for the mediated settlement.


4

A determination of cause is based on the totality of the circumstances in each particular

case. See In Re Wilson 116 F.3d 87, 90 3d re Cir. 1997. In making this determination, the Court

attempts to balance the potential hardship caused by the stay with the potential for prejudice to

the estate if the stay is lifted. See In the matter of United Imports, Inc., 203 B.R. 162, 166

(Bankr. D. Neb. 1996); and In re Johnson, 115 B.R. 634, 636 (Bankr. D. Minn. 1989).

In the present case, cause exists to warrant lifting the automatic stay to permit the

payment of the insurance proceeds to fund the settlement for the following reasons. First, the

lifting of the stay actually benefits the estate. Pursuant to the mediated settlement, all of the

settling parties have agreed to permanently withdraw their claims against all parties including the

above debtors upon payment of the settlement. Second, the lifting of the automatic stay will not

in any way diminish the estates. See In re Matthews, 207 B.R. 631, 642 (Bankr. D. Minn. 1997)

where Judge Kishel discusses the obligation of the insurer to pay out of the available policy

proceeds as required under Minn. Stat. §60A.08, subd. 6. This statute provides that the

bankruptcy or insolvency of an insured does not relieve the insurer of obligations under a policy.

Third, this matter is considered “settled” as per the Debtors. See the response to Question 4 of

the Statement of Financial Affairs in the Woodinville Construction Services case. It references

this Action and indicates that it is “settled.” A copy of the relevant page is attached as

EXHIBIT H to the Affidavit of Jeremy L. Stilwell. Additionally, the Schedules filed in

Woodinville Lumber, Inc. and Woodinville Construction Services, LLC do not list any equity in

insurance policies and do not list Movant or any of the Sub-subcontractors as creditors.

Apparently this was done because the Debtors considered this matter settled.

B. RELIEF FROM THE AUTOMATIC STAY SHOULD ALSO BE GRANTED

UNDER 11 U.S.C. §362(d)(2) WHERE THE DEBTOR DOES NOT HAVE

EQUITY IN THE INSURANCE POLICIES AND THE INSURANCE POLICIES

ARE NOT NECESSARY FOR AN EFFECTIVE REORGANIZATION.


5

11 U.S.C. §362(d)(2) provides as follows:

“(d) On request of a party in interest and after notice and a hearing, the court shall

grant relief from the stay provided under subsection (a) of this section, such as by

terminating, annulling, modifying, or conditioning such stay— (2) with respect to a stay of an act against property under subsection (a) of this section, if—

(A) the debtor does not have an equity in such property; and

(B) such property is not necessary to an effective reorganization;”

1. The debtor does not have an equity in the insurance policies. The debtor does not

have any equity in the insurance policies. The Schedules filed in the two Woodinville cases do

not list any equity in any insurance policy. See EXHIBIT I and J to the Affidavit of Jeremy L.

Stilwell.

2. The insurance policies are not necessary to a reorganization of the debtor.

Payment of claims and settlements by the insurance carrier for the debtor under the terms of the

policy does not affect the debtor’s ability to reorganize. This is a non-issue with respect to this

Motion.

IV. CONCLUSION

Movant respectfully requests that the Court modify the automatic stay consistent with the

attached proposed Order.

LAPP, LIBRA, THOMSON, STOEBNER

& PUSCH, CHARTERED

Dated: December 22, 2011 /e/ Rosanne H. Wirth

Rosanne H. Wirth (Atty # 0137479)

One Financial Plaza, Suite 2500

120 South Sixth Street


(612) 338-5815

Attorneys for Wild Horse at Woods Creek

Condominium Association


UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA

In re: Lyman Holding Company, et al., Debtors.1



AFFIDAVIT OF JEREMY L. STILWELL IN SUPPORT

OF MOTION FOR RELIEF FROM AUTOMATIC STAY

______________________________________________________________________________

STATE OF WASHINGTON ) ) SS. COUNTY OF KING )

I, Jeremy L. Stilwell, being first duly sworn, declare under penalty of perjury as follows:

1. This affidavit is provided in support of the motion for relief from automatic stay

(“Motion”) filed by Wild Horse at Woods Creek Condominium Association (“Movant”).

2. I am an attorney duly licensed and admitted to practice in the State of

Washington. I am one of the attorneys representing Movant.

3. Attached as EXHIBIT A is a true and correct copy of the Second Amended

Complaint dated May 3, 2010 filed in the Superior Court of the State of Washington, Snohomish

County, Court File No. 08-2-07890-4 (referred to as the “Action”).

4. Attached as EXHIBIT B is a true and correct copy of the Answer and Fourth

Party Complaint of Woodinville Lumber, Inc. and Woodinville Construction Services, LLC

dated August 24, 2009 against the sub-subcontractors.


Company Case No. BKY 11-45191, Automated Building Components, Inc. Case No. BKY 11-45192, Building Materials Wholesalers, Inc. Case No. BKY 11-45193, Carpentry Contractors Corp. Case No. BKY 11-45194, Construction Mortgage Investors Co. Case No. BKY 11-45196, Lyman Development Co. Case No. BKY 11-45199, Lyman Lumber Wisconsin, Inc. Case No. BKY 11-45201, Lyman Properties, L.L.C. Case No. BKY 11-45202, Mid-America Cedar, Inc. Case No. BKY 11- 45203, Woodinville Lumber, Inc. Case No. BKY 11-45204, Woodinville Construction Services, L.L.C. Case No. BKY 11-45206.


2

5. Attached as EXHIBIT C is a true and correct copy of several e-mails dated July

25, 2011, by and between counsel to the July 25, 2011 mediation, confirming and setting forth

the terms of the mediated settlement. This bankruptcy action was commenced by Debtors after

settlement but before final settlement documents and payment. The settlement includes the

following payments from the various insurance carriers:

Payment Amount Source of Payment Payment made on behalf of

this Insured $387,370.35 Liberty Mutual Insurance Lyman Lumber Company and

Woodinville Construction Services, LLC and Woodinville Lumber, Inc.

$86,129.65 Chartis Insurance Company Lyman Lumber Company and Woodinville Construction Services, LLC and Woodinville Lumber, Inc.

$26,500 Insurance proceeds from previously settled fourth party defendants

Other non-debtor defendants

$6,500 Insurance Carrier for All Framing, LLC

All Framing, LLC

$8,500 Insurance Carrier for the DRB Company

DRB Company

$25,000 Insurance Carrier for FMG Siding Specialists, Inc.

FMG Siding Specialists, Inc.

$25,000 Insurance Carrier for Jaciel Rodriguez Avila dba Avila Siding Company

Jaciel Rodriguez Avila dba Avila Siding Company

$565,000.00

6. As a part of the settlement, Movant, together with all of the Settling Parties,

agrees to release all claims against Woodinville Lumber, Inc. and Woodinville Construction

Services, LLC. The Settlement Agreement, which is in the process of being finalized, will be

substantially similar to the form of agreement attached hereto as EXHIBIT D. The proposed

settlement includes a stipulation of dismissal with prejudice with respect to the Action.


EXHIBIT A


l1

t2

I

9

10

l3

14

15

16

l'7

z0

2t

22

23

24

25

26

IN THE SUPERIOR COURT OF THE STATE OF \ilASHINGTONIN AND FOR THtr COUNTY OX' SNOHOMISH

WILD HORSE AT IVOODS CREEKOWNERS ASSOCIATION, a TVashingtonnonprofit corporation,

Plaintiff,

vs.

MONROE FARMS, LLC, a Washingtonlimited liability company; WASHINGTONPACIFIC HOUSING CORPORATION, aV/ashington corporation; PAGEANTRYHOMES OF \MASHING,INC., A

V/ashington corporation; and PAGEANTRYCOMMLTNITIES, INC., a $/ashingtoncorporation,

Defendant,

N0. 08-2-07890-4

SECOND AMENDED COMPLAINTFOR DAMAGES

B.enrnn.Menr¡x, P. S.ñ9 2Þ ,qvExuE, SLåÎE 12OO . 6EÂTrLE, r,l/A

98t04P: (2OB) 381-980€ r F: (2ô6) 381'9807

MONROE FARMS, LLC, a rffashington

limited liability comp¿uly,

Thi rd-Party Plaintiff,

vs.

ABSOLUTE CONSTRUCTION ANDDRYV/ALL, NC., a Washingloncorporation; ADVANCEDTINDERGROI-IND, INC., a lVashingfoncorporation ; ALL FRAMING, LLC, aWashington limited liability company;AMERICA 1SI ROOFING & BUILDERSINCORPORATED. a Washi

SECOND AMENDED COMPLAINT FOR DAMAGES - 1


I

t

4

5

6

7

I

I

t0

lt

.12

13

t4

l5

l6

l7

l8

T9

20

2l

aa

23

24

25

26

corporation; ARDEN DRYWALL &TEXTURE, LLC, a rffashington limitedliabiiity çompany; CONSTRUCTIONMANAGEMENT AND BUILDING, INC., A

V/ashington corporation; CROSSFIFGCONSTRUCTION, INC., a V/ashingtoncorporatíon; CUSTOM CEMENT LLC dtblaCustom Concrete, a Washington limitedIiability company; CUSTOMCONTRACTING, LLC, a Washingtonlimited liability company; THE DRBCOMPANY, a Washington limited liabilitycompaüy; FOUNDATION SPECIALISTS,LLC, a Washington limited liabilitycompany; HARDING & SONS, INC., aWashington corporation; J. CARRIERCONSTRUCTION, INC.' a Washingtoncorporation; J-S CONTRACTING, INC., aWashington corporation; DANIEL W,MEHL d/b/a MEHL CONSTRUCTION, a

'Washingfon limited liability company; MMCOMFORT SYSTEMS, INC., a Washingtoncorporation; PELTRAM PLUMBING, INC.,a \Mashington corporation; PILCHUCKCONCRETE PUMP SERVICES, INC., A

V/ashingfon corporation; PROVIDENTELECTRIC INCORPORATED, aWashington corporation; R&R CONCRETE,INC., a'Washington corporation; VISIONCONSTRUCTION, INC., a Washingtoncorporation; WEST COAST FLOORING,INC., a Washington corporation; andTVOODINVILLE LUMBE& INC. and/or1VOODINVILLE CONSTRUCTIONSERVICES, LLC d/b/a V/oodinvilleLumber, Washington business entíties,

Third-Party Defendants.

TVOOÐINVILLE CONSTRUCTIONSERVICES, L.L.C., a Minnesota limitedliability company, and WOODINVILLELUMBER, INC., a Minnesota corporation,

SECOND AMENDED COMPLAINT FOR DAMAGES . 2 BeRxpn.MeRr¡N, P. S.719 ?Þ rdvENuE, gullE l2oo o sæ¡tte, WA

98r04P: (2OB) 981-9805 . Fr (2OE) 3Bl-98o7


I

2

4

5

6

7

I

9

l0

ll

t2

l3

t4

l5

l6

t7

l8

l9

20

2l

,,

27

24

25

26

vs.

MARIA ELENA RAMIREZ, dIblaAMKSIDING, an individual; CERAFIN APREZA,

'a APREZA QUALITY SIDINGANY, an individual; JACIEL

RIGUEZ AVILA, d/b/a AVILAINc COMPANY, an individual; FMG

IDING SPECIALISTS, INC,, a Washington:moration: MARTHA LAKE

UCTION, INC., a trVashingtonion; JEFF PIPKIN, d/b/a PIPKINUCTION, an índividual; TEHAL

H UBI{I, d/b/a SINGII SIDING, anindividual,

Fourth-Parry Defendants.

Ptaintiff Wild Horse at Woods Creeli Ownçrs Association by and through its

attorneys, Barker Martin, P.S., alleges and states as follows.

PARTIES

l. rtrild Horse at Woods Creek Owners Association ("Association") is a

properly incorporated rWashington non-profit corporation with its principal place of business

in Snohomish County, lVashington.

2, Defendant Absolute Construction and Drywall, Inc, is a Washington

Corporation that supplied and/or instalied drywall, vapor barrier, and related components at

the rWild Horse at Woods Creek Condominiums ("trVild Horse" or the'oCondominium").

3. Ðefendant All Framing, LLC is a Washingfon limited liability company that

supplied and./or installed framing and related components at the Condominium,

4. Defendant America I't Roofing & Builders Incorporated is a Washingfon

corporation that supplied and/or installed roofing and related components at the

Condominium.

SECCINÐ AMNNDED COMPLAINT FOR DAMAGES. 3 BeRneR. MeRTtN, P. s.?TA 2- AvsNuÊ, sullË 12OO r EBATTLF, WA,

98104P: (206) 381-9806 r F: (206) 3Bl-98O2


I

J

4

(

6

7

I

9

t0

il

t2

t3

t4

l5

t6

11

l8

l9

20

2l

22

¿J

24

25

26

5. Defendant Construction Management and Building, Inc, is a Washinglon

cotporation that supplied and/or installed .ftaming and related components at the

Condominium

6. Defendant Crossftre Construction, Inc. is a Washinglon corporation that

supplied and/or installed framing and related components at the Condominium.

7. Defendant Custom Cemen! LLC dlblaCustom Conmete is a Washington

limited liability comp¿uly that supplied and/or installed concrete, slabs, flatwork, and related

components at the Condominium.

8. Defendant The DRB Company is a .Washinglon corporation that supplied

and/or installed framing and related components at the Condominium.

9. Defendant R&R Concrete, Inc. is a Washington corporation that supplied

andlor installed concrete, slabs, flatwork, and related components at the Condominium.

10. Defendant Vision Constructio4, Inc. is a Washington corporation that

supplied and/or installed framing, deoking, and ielated components at the Condominium.

11. Defendants 'Woodinville Lumber, Inc. and Woodinville Construction

Services, LLC dlbia Woodinville Lumber are Washington business entities that supplied

and/or installcd siding and related components at the Condominium.

II. JURISDICTIONANDVENUE

12. At all relevant times, Defendants have done business in and/or acted in

Snohomish Count¡ Washington relative to the Condominium. This court has jurisdiction

over the parties and subject matter of this lawsuit because it is the location where the work,

services, and/or materials were furnished, where the contracts relating to the work services

and/or materiais were executed, performed and/or breached, and where the parties transacted

business. Further, the construction defects in dispute are to real property located in

Snohomish County.

13. Vênue is proper in Snohomish County, Washington.

SECOND AMENDED COMPLAINT FOR DAMAGES. 4 Beaxen. MARTIN, F. S.719 2þ AvENus. StnlE 12OO r gÊAflL€, WA

98rO4P: (2gB) 381-9806 r F; (2Os) 3at-98O7


I

2

J

4

5

6

7

I

I

r0

II

t2

l3

t4

l5

t6

t7

t8

t9

20

2l

22

23

24

25

26

UL FACTUAL BASIS OF CLAIMS

14. The Association is authorized to bring suit on behalf of itself and on behalf of

two or more o\¡mers of the Condominium under recorded Declarations and the uuder the

Washington Condominium Act, Chapter 64.34 RCW (the "1VCA'). Wild Horse is a

condominium complex consisting of eighty-two (82) residential units established prusuant to

the Declaration originally recorded with the Snohomish County Auditor under File Number

200405t30r79.

15. The Condominium has a variety of construction defects and other

deficiçncies in building components.

16. The Association filed a Complaint for Damages against Monroe Farms, LLC

('Monroe Farmso'), Washington Pacific Housing Corporation, Pageantry Homes of

Washington, Inc., and Pageærtry Communities, Inc. (the "Declarant Entities").

17. Monroe Farms served as the devi:loper and deelarant of the Condominium.

18. Monroe Farms contracted with CAMS Construction Corporation of

Washington,Inc. ('.CAMS') to serve as the general contraotor on the Condominium project.

By written agreement, and for valid consideration, CAMS assigned all rights under the

subcontracts with the Defendants to Monroe Farms, includíng but not limited to all claims

and causes of action against the Defendants arising out of construction of the Condominium,

19. Monroe Farms filed a third-party complaint against various subcontractors

that performed work on the Condominium, 'including the Defendants named in this

Amended Compiaint.

20. The Association subsequentty settled its claims âgainst the Declarant Entities.

As part of the written settlement agreement, and for valid consideration, Monroe Farms

assigned its claims against the Defendants to the Association.

. 21. As a resuft of Defendants' accidental or intentional acts and/or omissions,

property damage to the Condominium has occurred to that pafi of real property on which

Defendants, their contractors, and/or subcontractors have completed operations. Such

BaRxeR. MRRTIN, P. g.ñ9 Z- AvENuE, gurE 12OO r se*fiLe, WA

99104P; (¿os) 381-9806 r F: {2oE) 341-9807

SECOND AMENDEÐ COMPLAINT FOR DAMAGES - 5


5

6

8

9

l0

It

12

l3

L4

t5

l6

17

18

19

2t

,t

23

24

25

26

property damage has also occuned to that part of real property that must be restored,

repaired, or replaced because of the work of others performed by or on Ðefendants' behalf.

22. Some or all of the property damage to the Condominium arises out of work

performed by others on behalf of Defendants, Some or all of the property damage is to work

performed by others on behalf of Defendants.

W. CAUSES OF'ACTION

A. Breach of Contract * Absolute Construction and Drywall, Inc.

23. The above paragraphs are incorporated by reference herein.

24. CAMS contracted with Defendant Absolute Construction and Drywall, Inc.

('Absolute") to supply andlor install drywall, vapor barrier, and reiated components at the

Condominium.

25. Absolute's sontract with CAMS required Absolute to comply with all

applicable laws, codes, ordinances, ând other requirements of all authorities having

jurisdiction over Absolute's work, or any part thereof.

26. Absolute's contract with CAMS required Absolute to perform its work in a

workmanlike manner in accordance with the terms of its contract.

27, Absolute's contract with CAMS required Absolute's work to be performed in

accordance with the plans and specifications and the appropriate city, county, and State of

Washingfon codes, ordinances, and statutes.

28. Absolute's contract with CAMS required Absolute to procure and maintain

broad form comprehensive general liability (CGL) insurance with completed operations

coverage, naming CAMS and Monroe Farms as additional insureds.

?9. Absolute's contract with CAMS required Absolute to defend and indemnify

CAMS and/or Monroe Farms for all liability caused by, arising out of resulting from or

occurring in connection with the performance of Absolute's work.

BanrcgR.MRRTIN, P. S.719 ¿È AvËr{uB S'rrlfË teOO . SEAîÎLE, WA

981O4pr (2oB) 381-98O6. F: (206) E8l-9êû7

SECOND AMENDED COMPLAINT F'OR ÞAMAGES - 6


5

6

7

I

9

t0

1t

l2

l3

t4

l5

t6

t7

t8

t9

2Q

2l

22

23

24

,,<

26

30. Momoe Farms, 'as the assignee of CAMS' claims against Absolute,

demanded that Absolute defend and indemniff Monroe Farms for claims arising from the

performance of Absolute's work at the Condominium.

31. Absolute failed'to comply with the aforementioned terms of its contract.

32. Absolute's failure to comply with the aforementioned terms of its contraot,

and failure to defend and indemnify CAMS and Monroe Farms, have proximately caused

harm to the Association in its capacity as the assignee of CAMS and Monroe Farms.

33. As a rEsult of Absolute's breaches of contact, the Assocíation, in its capacity

as the assignee of CAMS and Mon¡oe Farms, has been damaged in an amount to be proven

at trial.

B. Breach of Warranty -Absolute Construction and Drywall, Inc.

34. The above paragraphs are incorporated by refsrence herein.

35. Absolute expressly waranted that all material, equipment, and work

furnished by Absolute would shictly comply with all requirements of the contract

documents and be of good and workmanlike quality and free from defects.

36. Absolute breached its express waranties.

37. Absolute's breaches of express warranty have proximately caused harm to

the Association in its capacity as the assignee of CAMS and Monroe Farms.

38. As a result of Absoluteos breacbes of express warranty, the Association, in its

capacity as the assignee of CAMS and Monroe Farms, has been damaged in an amount to be

proven at trial,

C. Breach of Contract *All Framing, LLC


40. CAMS contacted with Defendant All Framing, LLC ("All Framing") to

supply andlor install framing and related components at the Condominium.

BeRxen. MRRTIN, P. 8.ã9 2È AvEiluÊ, SunE ¡POO.sEArrLE, WA

9BtO4p: (zos) ssr-e80€ ' Fr (2o5) 3El-98O7

SECOND AMENÐED COMPLAINT Í'OR DAMAGES - 7


I

t

3

4

5

6

7

8

9

r0

ll

t2

13

t4

l5

16

l7

l8

l9

20

2l

22

23

24

)s

26

41. All Framing's contraot with CAMS required All Framing to comply with all

applicable laws, codes, ordinances, and other requirements of all authorities having

jurisdiction over All Framing's work, or any part thereof.

42, All Framing's contract with CAMS required All Framing to perform its work

in a workmanlike mânner in accordance with tlie terms of its contract.

43.. All Framing's contact with CAMS required All Framingos work to be

perfouned in accordance with the plans and specifications and the appropriate city, county,

and State of Washington codes, ordinances, and statutes.

44. All Framing's coatract with CAMS required All Framing to procure and

maintain broad form comprehensive general liability (CGL) insurance with completed

opérations coverage, naming CAMS and Monroe Farms as additional insureds.

45. All .Framíng's contract with CAMS required All Framing to defend and

indemniff CAMS and/or Monroe Farms for all liabilíty caused by, arising out of resulting

from or occuning in connection with the performance of All Framing's work.

46. Monroe Farms, as the assignee of CAMS' claims against All Framing,

demanded that All Framing defend and indemnify Monroe Farms for claims arising from the

performance of All Framing's work at the Condominium.

47. All Framing failed to comply with the aforementioned terms of its contraot.

48, AII Framing's failure to comply with the aforementioned terms of its

contract, and failure CI defend and indemni$'CAMS and Mon¡oe Farmso have proximately

caused harm to the Association in its capacity as the assignee of CAMS and Monroe Farms.

49, As a result of All Framing's breaches of contract, the Association, in its


proven at trial.

D. Breach of Warranty - AII Framing, LLC


sEcoND AMENDED COMPLAINT FoR DAMAGES - I SARKER . MARTIN, p. g.. 7te 2b AVENUË, *JH;1oo . sEA?¡ta rdvA

P: (2Oêl 381.9406 ¡ F¡ (2OB) 38t-98O7


¡

¿

7

I

9

t0

ll

12

l4

l5

t3

t6

t1

t8

19

20

zt

22

t(

26

23

24

51. All Framing expressly warranted that all material, equipment, and work

furnished by All Framing wouid shictly comply with all requirements of the contract


52. All Framing breached íts express warranties.

53. All Framingos breaches of express warranty have proximately caused harm to

the Association in its capacity as the assignee of CAMS and Monroe Farms,

54, As a result of All Framing's breaches of express warranty, the Association, in

its capacity as the assignee of CAMS and Monroe Farms, has been damaged in an amount to

be proven at trial.

E. Breach of Contract - America l't Roofing & Builders Incorporated

55. The aboge paragraphs are incorporated by reference herein.

56. CAMS contracted with Defendant America l't Roofìng &, Builders

Incorporated ('oAmerica ltt'1 to supply and/or install roofing and related components at the

Condominium.

57. America ltt's contract with CAMS required America ltt to comply with all


jurisdiction over America ltt's work, or any part thereof.

58. America ltt's contract with CAMS required America ltt to perform its work

in a workmanlike mamer in accordance with the terms of its contract.

59. America lst's contract with CAMS required America ltt's work to be

performed in accordance with the plans and specifications and the appropriate city, county,


60. America l't's contract with CAMS required America ltt to procure and

maintain broad. form comprehensive general liability (CGL) insurance with completed

operations coverage, naming CAMS and Monroe Farms as additional insureds.

BeRxeR. MARTIN, P. 5.ña 2* AvENUe, surrE l2oo o S:anr¡.s, WA

ssl04Pr (2OE) 3gl-98o5 o F¡ (206) 381-Þgo7



,

4

5

6

'l

8

9

l0

il

12

13

14

15

l8

l9

2A

2t

)')

¿s

24

25

26

ló

l7

61. America ltt's contraot with CAMS required Americh ltt to defend and

indemnify CAMS and/or Monroe Farms for all liabilíty caused by, arising out ofl resulting

from or occurring in connection with the performance of America ltt's work.

62. Monroe Farms, as the assignee of CAMS' claims against America ltt,

demanded that America l't defend and indemniff Monroe Farms for claims arising from the

performance of America Itt's work at the Condominium.

63. America itt failed to comply with the aforementioned terms of its sontract.

64. Ame¡ica l't fiu.thet breached its cont¡act by installing its work over the faulty

workmanship of others.

65. America ltt's failure to comply with the aforementioned terms of its contracto



66. As a result of America I't's bréaches of contract, the Associatior¡ in its

capacity as the assignee of CAMS and Monroe'Farms, has been damaged in an amount to be

proven at trial.

F'. Breaeh of Warranty -America ltt Roófing & Builders Incorporafed


68. Amcrica ltt expressly warranted that all material, equipment, and work

furnished by America I't would strictþ comply with all requirements of the contract


69. America ltt breached its express warrantíes,

70, America ls's breaches of express waranty have proximately caused harm to


7l . As a result of America I tt's breaches of express warranty, the Association, in

its capacity as the assignee of CAMS and Monrbe Farms, has been damaged in an amount to

be proven at trial.

BaRxsn. MAR,TIN, P. S.719 2b dvENuE, SurrB 12OO . sE.drr¡,¡. \ÂrA

.9AtO4Ê (zOs) 381-9806 r R (?o€) 381-9807

SECOND AMENDED COMPLAINT F'OR DAMAGES - TO


I

.t

5

6

I

l0

ll

t2

l3

t4

¡5

t6

l7

18

l9

20

2l

22

23

24

25

26

G. Breach of Contract - Construction Management and Building, Inc.


73. CAMS contracted with Defendant Construotion Management and Building,

Inc. ("Construction Management'') to supply and/or install framing and related components

at the Condominium.

74. Construction Management's contract with CAMS required Construction

Management to comply with all applicable lawso codes, ordinances, and other requirements

of all authorities having jurisdiction over Construction Management's work, or any part

thereof,

75, Construction Management's confiact with CAMS required Constuction

Management to perform its work in a workmanlike manner in accordance with the terms of

its conhact.

76. Conshuction Management's contract with CAMS required Construction

Management's work to be performed in accordance with the plans and specifìcations and the

appropriate city, county, and State of Washington codes, ordinances, and statutes.

77. Construction Management's contract with CAMS required Construction

Management to procure and maintain broad form comprehensive general liability (CGL)

insurance with completed operations soverage, naming CAMS . and Mon¡oe Farms as

addìtional insureds.

78, Construction Management's contract with CAMS required Construction

Management to defend and indemnify CAMS and/or Monroe Farms for all liability caused

by, arising out ofl resulting from or occurring in connection with the performance of

Construction Man agemento s work.

79. Monroe Farms, as the assignee of CAMS' claims against Construction

Management, demanded that Construction Management defend and indemniff Monroe

Farms for claims arising from the performance of Construction Management's work at the

Condominium.

BIRxpn'MAnTIN. P. g.719 2E AVENUE gul?Ë l2OO ' 6eerr¡,P, WA

981O4P¡ (2O8) 381-EgO6 . F! (2OE) 38t-98O7

SECONÐ AMENDED COMPLAINT FOR DAMAGF,S . 11


j

3

I

l0

il

t2

l3

t4

l5

t6

23

24

2s

t7

l8

t9

20

2l

22

80. Construction Management failed to comply with the aforementioned terms of

its contract.

81. Construction Management's failure to comply with the aforementioned terms

of its contrac! and failure to defend and indemnify CAMS and Monroe Farms, have

proxïmately caused harm to the Association in its capacity as the assignee of CAMS and

Monroe Farms,

82, As a result of Construction Management's breaches of contract, the

Association, in its capacity as the assignee of CAMS and Monroe Farms, has been damaged

in an amount to be proven at trial.

H. Breach of Warranty - Construction Management and Buiiding Inc.

83. The above paragraphs are incorporated by reference herein,

84. Construction Management expressly warranted that all material, equipmen!

and work fumished by Construction Management would strictly comply with all

requirements of the contract documents and be of good and workmanlike quality and free

from defects.

85. Construction Management breached its express warranties.

86, Construction Managemenf's breaches of express warranty have proximately


87, As ¿ result of Construction Management's breaches of express wananty,'the

Association, in its capacity as the assignee of CAMS and Monroe Farnis, has been damaged


I. Breach of Contract - Crossfire Construction, Inc.

88. The above paragraphs are incorp'orated by referencs herein.

89. CAMS contracted with Defendant Crossfire Construction, Inc. ("Crossfire")

to supply and/or install framing and related comÞonents at the Condominium.

BeRxen. MaRTIN, P. S.7,19 ¿s AvEñuF, SUlfË 12OO . gEArÍLE, wA

9.ATo,4Pr (2ôB) 38t-98o4. F; (2O€) Bal-gãO7

SECOND AMENDED COMPLAINT FOR DAMAGES. 12'


l

2

J

4

5

6

7

I

I

10

ll

12

r3

14

t5

16

t7

l8

t9

20

2l

22

23

24

a<

26

90. Crossfire's contract with CAMS required Crossfire to comply with all


jurisdiction over Crossfireos ìilork, or any part thereof.

91. Crossfúens contract with CAMS required Crossfire to perform its work in a

worlananlike manneî in accordance with the terrns of its contract

92. Crossftre's contract with CAMS required Crossfire's work to be performed in

accordance with the plans and specifications and the appropriate city, county, and State of

Washington codes, ordinances, and statutes.

93. Crossfire's contract with CAMS required Crossfre to procure and maintain

broad form comprehensive general liability (CGL) insurance with completed operations

coverage, naming CAMS and Monroe Farms as additional insureds.

94, Crossfire's contract with CAMS required Crossfne to defend and indemniff

CAMS and/or Monroe Farms for all liabìlity caused by, arising out of; resulting from or

occuning in connection with the performance of Crossfire's work,

95. Mon¡oe Farms, as the assignee of CAMS' claims against Crossfire,

demanded that Crossfire defend and indemnify Monroe Farms for claims arising from the

performance of Crossfire's work at the Condominiurn.

96. Crossfire failed to comply with the aforementioned terms of its contract.

97. Crossfire's failure to comply with the aforementioned terms of its contract,



98. As a result of Crossfire's breaches of contract, the Associatior¡ in its capacity

as the assignee of CAMS and Monroe Farms, has been damaged in an amoust to be proven

at trial.

J. Breach of Warranty - Crossfire Construction, Inc.


sEcoND AMEI{ÐED COMPLAINT FoR DAMÁ.GES - 13 BeRXeR . MARTlru, p. S.i4e 2þ AveNuE.

"iËJ?oo. SÉAELE, \,vA

' P¡ {z0ts) saF9SOE . F¡ (2O6) 381-9807


I

,

8

9

t0

n

12

l3

l4

t5

lo

17

l8

l9

20

2l

1)

21

24

25

26

100. Crossfire expressly warranted that all material, equipment, and work

furnished by Crossfïre would strictly comply with atl requirementS of the contract


101. Crossfire breached its express waranties.

102. Crossfïre's breaches of express warranty have proximately caused harrn to


1 03 . ' As a result of Crossfire's breaches of express warranty, the Association, in its


proven at trial,

K. Breach of Contract- Custom Cement, LLC dlbla Custom Concrete

1,04, The above paragraphs are incorporated by reference herein.

105. CAMS conlracted with Defendant Custom Cement, LLC d/b/a Custom

Concrete ("Custom Conorete") to supply and/or install congrete, slabs, flatwork, and related

components at the Condominium.

106. Custom Concrete's contract with CAMS required Custom Concrete to

comply wíth alt applicable laws, codes, ordinances, and other requirements of all authorities

having jurisdiction òver Custom Concrete's work, or any part thereof.

107. Custom Concrete's contract with CAMS required Custom Concrete to

perform its work in a workmanlike manner in accordance with the terms of its contract.

108. Custom Concrete's contract with CAMS required Custom Concrete's work to

be performed in acsordance with the plans and specifications and the appropriaTe city,

county, and State of Washington codes, ordinances, and stafutes.

109. Custom Concrete's conhact wìth CAMS required Custom Concrete to

procure and maintain broad form comprehensive general liability (CGL) insurance with

*î]"* operations coverage, naming CAMS and Monroe Farms as additional insureds.

B¡nren'MARTIN, P. g.719 2Þ.AvÊNuE. ELffË 12OO . SE^rrue, tll/A

99:04P' (zOE) 381-9{¡06 o R (206) 381-9802

SECOND AMENDED COMPLAINT FOR DAMAGÞS - 14


2

3

4

5

I

9

l0

il

12

13

t4

l5

t6

t7

l8

L9

,t\

24

25

26

2t

22

??

I10. Custom Concrete's contract r¡'¡ith CAMS required Custom Concrete to defend

and indemnify CAMS and/or Monroe Farms for all liability caused by, arising out of,

resulting from or occuring in connection with the performance of Custom Concreteos work.

111. Mon¡oe Farms, as the assignee of CAMS' claims against Custom Concrete,

demanded that Custom Concrete defend and indemnif Monroe Farms for claims arising

from the performance of Custom Concrete's work at the Condominium.

Il2, Custom Concrete failed to comply with the aforementioned terms of its

contract.

113. Custom Concrete further breached its contract by instailing its work over the

faulty workmanship of others

ll4, Custom Concrete's failure fo comply with the aforementioned terms of its

contract, and failure to defend and indemnify CAMS and Monroe Farms, have proximately


I 15. As a result of Custom Concrete's breaches of contrac! the Association, in its

capacity as the assignee of CAMS and Monroe Farms, has been damaged in an dmount to be

proven at hial,

L. Breach of Warranty- Custom Cement, LLC dlbla Custom Concrete

I 16, The above paragraphs are incorporated by reference herein.

1t7. Custom Concrete expressly warranted that all materialo equipment, and work

furnished by Custom Concrete would strictly comply with all requirements of the contract


118. Custom Concrete breached its exþress warranties.

119. Custom Concrete's breaches of express wananty have proximately caused

harm to the Assocíation in its capacity as the assignee of CAMS and Monroe Farms.

120. As a result of Custom Concrete's breaches of express wananty, the

Association, in its capacity as the assignee of CAMS and Monroe Farms, has been damaged


sEcoND AMENDED COMPLAINT FoR DAMAGDS - ls BenXeR . MARTIN, p. g.ñ9 2iô AvENue.

""J5J?OO o S¡¡rt¡-e' WA

P¡ (2O8) 98r-98o6 ¡ F: {2O6} 391'9802


I

2

3

4

5

6

1

8

I

t0

ll

12

t3

t4

t5

16

17

t8

l9

20

21

22

23

24

25

26

M. Breach of Contract-The DRB Company

l2l. The above paragraphs are incorporated by reference herein.

122. CAMS contracted with Defendant The DRB Company ("DRBI') to supply

and/or install framing and related components at the Condominium.

123. DRB's contrast with CAMS required DRB to comply with all applicable

laws, codes, ordinances, and other requirements of all authorities having jurisdiction over

DRB's work, or any part thereof.

124. DRB's contract with CAMS required DRB to perforn its work in a


I25. DRB's sont¡act wíth CAMS required DRB's work to be performed in

accordance with the plans and speci{ications and the appropriate city, county, and St¿te of

Washington codes, ordinances, and statutes

126. DRB's contract with CAMS required DRB to procure and maint¿in broad

form comprehensive general liabilþ (CGL) insurance with completed operations coverage,

naming CAMS and Monroe Farms as additional insureds.

127, DRB's contract with CAMS required DRB to defend and indemnify CAMS

and/or Monroe Farms for all liability caused by, arising out of resulting from or occurring in

oorurection with the performance of DRB's work.

128. Monroe Farms, as the assignee of CAMS' claims against DRB, demanded

that DRB defend and indemnit Monroe Farms for clai¡ns arising from the performance of

ÐRBos work at the Condominium.

129. DRB failed to comply with the aforementioned terrns of its contract.

130. DRB's failure to comply with the aforementioned terms of its contract, and

failure to defend and indemnify CAMS and Monroe Farms, have proximately caused harm

to the Association in its capacity as the assignee of CAMS and Monroe Farms.

Ba¡169p. MaRTtN, P. s.zg ?þ AVENUê EvrrE t:lOO. SEATîLe, wA

g8lo4P: (206) 381-E8O6 ¡ F: (2oB) Egl-94O7



a

J

4

5

6

,|

I

9

t0

il

t2

t3

l4

l5

t6

t7

18

l9

20

2l

22

23

24

,5

26

131. As a result of DRB's breaches of contraot, the Association, in its capacþ as

the assignee of CAMS and Monroe Farms, has been damaged in an amount to be proven at

trial.

N. Breach of Warranúy - The DRB Company


133, DRB expressly warranted that all material, equipment, and work fumished by

DRB would strictly comply with all requirements of the contract documents and be of good

and workmanlike quality and free &om defects.

134, DRB breached its express warranties.

I35. DRB's breaches of express warranty have proximately caused harm to the

Association in its capacity as the assignee of CAMS and Monroe Farms.

136. As a result of DRB's breaches of express warranty, the Association, in its


proven at trial.

O. Breach of Contract - R&R Concrete, Inc.


138. CAMS contracted with Defendant R&R Concrete, Inc. ("R&R") to supply

and/òr instalt concrete, slabs, flatwork, and related components at the Condominium.

139. R&R's contract with CAMS required R&R to comply with all applicable


R&R's work, or any part thereof,

140. R&R's eontract with CAMS required R&R to perform its work in a


l4l. R&R's contract with CAMS required R&R's work to be performed in

accordance with the plans and specifïcations and the appropriate city, county, and State of'Washington

codes, ordinances, and statutes

BaRxeR'MARTIN, P. g.719 ZÉ AvEt{UE S{¡TÈ l2OO ¡ Se¡rrur. rr1/A

98104P: (zOE) 381-9808. R (206) 3gt'9g0z



I

2

-t

4

5

6

7

8

9

r0

1l

l2

t3

t4

l5

t6

t7

rs

t9

20

2l

22

23

24

t{

26

142. R&R's contract with CAMS required R&R to prooure and maintain broad

form comprehensive general liability (CGL) insurance with completed operations coverage,

naming CAMS and Monroe Farms as additional insweds.

143. R&R's contract with CAMS required R&R to defend and indemnify CAMS

and/or Monroe Fatms for all liability caused by, arising out ofl resulting from or ocourring in

connection with the performance of R&R's work.

144. Monroe Farms, as the assigneê of CAMS' claims against R&R, demanded

that R&R defend and indernnifu Monroe Farms for claims arising from the performance of

R&R's work at the Condominium.

I45. R&R failed to comply with the aforementioned terms of its contract,

146. R&R fl¡rther breached its contract by installing its work over the faulty

workmanship of others

I47. R&R's failure to comply with the aforementioned terms of its confract, and

failure to defend and indemnit' CAMS and Monroe Farms, have proximately caused hann

to the Association in its capacity as the assignee.of CAMS and Monroe Farms.

148. As a result of R&R's breaches of contraot, the Association, in its capacity as

the assignee of CAMS and Mon¡oe Farms, has been damaged in an amount to be proven at

trial.

P. Breach of Warranty - R&R Concrete,Inc.

I49. The above paragraphs are incorporated by reference herein.

150. R&R expressly warranted that all material, equipmento and work fumished by

R&R would strictly comply with all requiremenls of the contract documents and be of good

and worknanlike quality and free from defects.

151. R&R breached its express wananties.

152. R&R's breaches of express wananty have proximately caused harm to the


BRR¡<SR. MAnTIN, P. S.719 2p AvENuB, Eu¡TE l2OO o SEÀTT!ê, WA

98tO4P: (206) 381-9806 ¡ F: (2O8) 381.9807

SECOND AMENDED COMPLAINT F"OR DAMAGES - 18


I

1

3

4

5

6

7

8

9

l0

1l

12

l3

14

l5

t6

t7

l8

t9

20

2l

22

23

24

25

26

153. As a result of R&R's breaches of express warranty, the Association, in its

capacity as the assignee of CAMS and Mon¡oe Fanns, has been damaged in an amount to be

proven at trial.

a. Breaeh of Contract - Vision Construction, Inc.


. 155. CAMS contracted with Vision Construstion, Inc. ('Vision") to supply and/or

inst¿ll concrete, slabs, flatwork, and related components at the Condominium.

156. Vision's sontract with CAMS rgquired Vision to comply with all applicable


Vision's work, or any part thereof.

157. Vision's contract with CAMS required Vision to perform its work in a


158. Vision's contract with CAMS required Vision's work to be performed in

accordance with the plans and specifìoations and the appropriate city, county, and State of

\Mashington codes, ordinances, and statutes.

159. Vision's contract with CAMS required Vision to procure and maintain broad

form comprehensive general liability (CGL) inpurance with completed operations coverage,

naming CAMS and Monroe Farms as additional insureds.

160. Vision's contract with CAMS required Vision to defend and indemnifr

CAMS and/or Mon¡oe Farms for all liabilþ caused by, arising out of, resulting from or

occurring in comection with the performance of Vision's work.

161, Monroe Farms, as the assignee of CAMS' claims against Vision, demanded

that Visíon defend and indemnify Monroe Farms for claims arising from the performance of

Vision's work at the Condominium,

162, Vision failed to comply with the aforementioned terms of its contract.

163. Vision further breached its contraet by installing its work over the faulty

workmanship of others

SECONDAMENDEDC0MPLAINTFORDAMAGES- 19 BaRXeR. M4RT¡N, p. S.ng 2É AvEiluÉ, SurrË l2OO . SEArrrE l¡/A

È (zoe) 381-9806 r ¡t (2O6) 3ar-98o7


il

12

I

,,

J

4

5

6

7

I

I

r0

¡3

t4

l5

16

l7

l8

19

20

21.

22

23

24

25

26

L64. Vision's failure to comply with the aforementioned terms of its contract, and

failure to defend and indemnify CAMS and Mon¡oe Farms, have proximately caused harm

to the Association in its capacity as the assigneg of CAMS and Monroe Farms.

165. As a result of Vision's breaches of contract, the Association, in its capacity as

the assignee of CAMS and Monroe Farms, has been damaged in an amount to bc proven at

trial.

R, Breach of Warranty - Vision Construction, Inc.

166, The above paragraphs are incorporated by reference herein.

t67. Vision expressly warranted that all material, equipment, and work fumished

by Vision would strictly comply with all requirements of the öontract documents and be of

good and workmanlike qualþ and free from defests.

i68. Vision breached its express warranties,

169. Vision's breaches of express warranty have proximately caused harm to the


170. As a result of Vision's breaches of express warranty, the Association, in its

capacity as the assignee of CAMS and Mon¡oe Fanns, has been damaged in an amount to be

proven at trial,

S. Breach of Contract- Woodinville Lumberr lnc. and \iloodinville ConstructionServices, LLC d/bla WoodirvÍlle Lumber

l7I. The above paragraphs are incorporated by reference herein.

t72. CAMS contracted with Defendants 'Woodinville Lumber, Inc. and

Woodinville Construction Services, LLC dlbla Woodinville Lumber (collectively

('Woodinville') to supply and/or install siding and related components at the Condominium,

173. Woodinville's contract with CAMS required Woodinville to comply with all


jurisdiction over Sloodinville's worh or any part thereof.

Benxxn. MARTIN. P. g.719 Pþ AVENUË. SurrE l2OO . SË41ÍLE, wA

98104Pr (2O6) 38È9806 ¡ F; (206) 8Ê1.9807

SECOND AMENDED COMPLAINT FOR DAMAGES - 2T


l

n

7

8

l0

ll

12

l3

t4

15

r6

l7

l8

19

20

2t

22

23

24

25

26

174. Woodinville's contract with CAMS required Woodinville to perform its work

in a workmanlike mânner in accordance with the terms of its contract.

I75, Woodinville's conüact with CAMS required 'Woodinville's work to be

performed in accordance with the plans and specifications and the appropriate city, county,


176. Woodinville's contraçt with CAMS required Woodinville to procure and

maintain broad form comprehensive general liability (CGL) insurance with completed

operations coverage, naming CAMS and Monroe Farms as additional insureds,

177, Woodinville's contract with CAMS required Woodinville to defend and

indemnify CAMS and/or Monroe Farms for all liabilþ caused by, arising out of, resulting

from or occurring in connection with the performance of Woodinville's work.

178. Monroe Farms, as the assignee of CAMS' claims against Woodinville,

demanded that \Moodinville defend and indemniff Monroe Farms for claims arising from

the performance of Woodinville's work at the Condominium.

179. Woodinville failed to comply with the aforementioned terms of its contract.

180, Woodinville further brsached its contract by installing its work over the

faulty workmanship of others

181. Woodinville's failure to comply with the aforementioned terms of its

conhact, and failure to defend and indemnify CAMS and Monroe Farms, have proximately

caused harm to the Assooiation in its capacity as the assignee of CAMS and Monroe Fanns.

182. As a result of T7oodinville's breaches of contract, the Association, in its

eapacity as the assignee of CAMS and Monroe Farms, has been damaged in an amount to be

proven attrial.

T. Breach of Warranty - Woodlnville Lumber¡ Inc. and Woodinville ConstructionServices, LLC dlb I a \iloodinvillo Lumber


BanreR. MARrrN. P. S.,¡19 ZÈ AvêNuE, SUÌTB IZOO. SEATTLE WA

98:O4R (zOE) 3EI-98O6 . F: (2o9) 3al-98o7



.,

3

4

II

l2

6

7

8

9

t0

r3

l4

l5

t6

l7

l8

l9

20

2t

22

23

24

25

26

184, Woodinville expressly warranted that all material, equiprnent, and work

furnished by V/oodinville would strictly comply with all requirements of the contract

documents and be of good and workrnanlike quality and free from defects.

185. Woodinville breached its express wananties.

186. \Moodinville's breaches of express warranty have proximately caused harm to


187 . As a result of V/oodinville's breaches of express warranty, the Association, in

its capacity as the assignee of CAMS and Monroe Farms, has been damaged in an amount to

be proven at trial.

V. DAMACES


189. As a result of Defendants acts and omissions described herein, the

Association, Monroe Farms, and CAMS have ìncurred expenses for servises of architects,

engineers, contractors, attorneys and other experts and professionals in order to investigate

and document the problems and design and implement a repair plan.

190. As a direct and/or proximate result of Defendants' acts and omissions, the

Association has suffered and will continue to suffer damages, These damages may include

but are not limited to: (1) the cost of investigating and deveþing a scope of repair for the

complex; (2) the cost of repair; (3) architect, edgineer, and construction management costs

associated with making the repairs; (4) loss of use and eajoyment; (5) costs, including

attorney's fees, expert witness costs; and (6) all contractual and extra-contastual damages

for breach of the duty to defend and bad faith.

191. The full extent of the Association's damages will be þroven at trial.

VI. PRAYER tr'OR RELIEF

The Association requests the following relief:

Benren. MAnrtN, P. S,ã9 ZÞ AVENUE SurE l¿OO. SEAll-frE, wA

98104P (246) 38'l-98O6 r F: (206) 381-9807

SECOND AMENDED COMPLAINT F'OR DAMAGES - 22


t

2

J

4

s

6

7

8

9

t0

¡l

t2

13

t4

I5

t6

17

l8

t9

?0

2l

22

23

24

25

26

A. Judgment against Defendants for damages as described above and in an

amount to be proven at trial;

B. Attomeys fees and other costs incurred in maintaining this action as allowed

by law; and

C. Such other relief as the Court deems just and equitable.

Dated thìs 3'd day of May 2010.

Attorneys for Plaintiff Wild Horse at W'oodsCreek Owners Associatíon

BRRxen. MARTIN. P. S.719 2s Av¡Nue, Sun: tzOO. SFÁTÍLE WA

99rO4P: (¿OB) 381-9806. Fr (2O8) 381-9407

BARKER MARTIN, P.S,

wèll, ü|SBANo,31666Inge A. Fordham, WSBANo. 38256

SECOND AMENDED COMPLÄINT FOR DAMAGES - 23


EXHIBIT B


14

to

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTONIN AND FOR THE COUNTY OF SNOHOMISH

WILD HORSE AT WOODS CREEKOWNERS ASSOCIATION, a Washingtonnonprofit corp oration,

Plaintiff,

VS,

MONROE FARMS, LLC, a Washingtonlimited liability company; WASHINGTONPACIFIC HOUSING CORPORATION, A

Washington corporation; PAGEANTRYHOMES OF WASHINGTON,INC., A

Washington corporation; and PAGEANTRYCOMMUNITIES, INC., a Washingtoncorporation,

Defendants.

MONROE FARMS, LLC,a Washingtonlimited iiability company,

Third-Party

VS.

ABSOLUTE CONSTRUCTION AND

WOODINVILLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT _ Iso/S86563.002/

No, 08-2-07890-4

WOODiNVILLE CONSTRUCTIONSERViCES, L,L,C, AND WOODINVILLELUMBER, INC,'S ANSWER TO THIRD.PARTY COMPLAINT

AND

FOURTH-PARTY COMPLAINT FORDAMAGES

'WlrsoN Smru Cocnn¡.¡s DrcxeRsor.rA PROIESSIONAL gERVICE CORPORAf ION

I 7OO FINANCIAL CENIER, I2I5 4TH AVENUESEAÎILE, WAsHrNcroN 981 ól-1007

TELEPHoNE: (206) 623-4100 FAx: (206)623-9273


l0

11

12

l3

15

16

17

18

19

21

22

23

DRYWALL, NC., a Washington corporation;ADVANCED TINDERGROIIND, INC,, A

Washington corporation; ALL FRAMING,LLC, a Washington limited liability company;AMEzuCA IST ROOFTNG & BUiLDERSINCORPORATED, a'Washington corporation;ARDEN DRYWALL & TEXTURE,LLC, A'Washington

limited liability company;CONSTRUCTION MANAGEMENT ANDBUILDING, INC., a Washington corporation;CROSSFiRE CONSTRUCTION, INC., A

Washington corporation; CUSTOM CEMENTLLC dlblaCustom Concrete, a Washingtonlimited liability company; CUSTOMCONTRACTING, LLC, a Washington limitedliability; THE DRB COMPANY, a

Washington limited liability company;FOLINDATION SPECIALISTS, LLC, A

Washington limited liability company;HARDING & SONS, INC., a Washingtoncorporation; J, CARRIER CONSTRUCTION,INC., a Washington corporation; J-S

CONTRACTING, INC. a Washingtoncorporation; DANIEL W. MEHL dibla MEHLCONSTRUCTION, a Washington limitedliability company; MM COMFORTSYSTEMS, INC., a Washington corporation;PELTRAM PLUMBING, INIC., a V/ashingtoncorporation; PILCHUCK CONCRETE PUMPSERVICES, NC., a Washington corporation;PROVIDENT ELECTRIC INCORP ORATED,a Washington corporation; R & RCONCRETE, NC,i ViSIONCONSTRUCTION, INC., a Washingtoncorporation; WEST COAST FLOORINGINC., a Washington corporation; andWOODINVILLE LUMBER, INC. and/orWOODINVILLE CONSTRUCTIONSERVICES, LLC d/b/a'Woodinville Lumber,Washinston business entiti

}VOODINVILLE CONSTRUCTION SERVICES, LLC.AND V/OODINVILLE LUMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT _ 2so/S86563.002/

'!7nsoN Surtr Coc¡rn.rx DicrrnsorqA PROFESSIOÑAL SERVICE CORPORATION

I 700 FTNANCTAL CENTER, I 2 I 5 4rH AVENUESEAïILE, W^sHrNcroN 981 6l 'l 007

TELEPHoNE: (20é) ó23-4100 FAx: (206)623-9273


10

11

12

13

14

15

16

17

18

19

21

22

Third-Part Defendants,

WOODINVILLE CONSTRUCTIONSERVICES, L.L.C., a Minnesota limitedliability company, and WOODINVILLELUMBER, INC,, a Minnesota corporation,

Fourlh-Party Plainti ffs,

MARIA ELENA RAMIREZ, d/b/aAMKSIDING, an individual; CERAFIN APREZA,d/bIaAPREZA QUALITY SIDING, anindividual; JACIEL RODRIGUEZ AVILA,dlbla AYILA SIDiNc COMPANY, anindividual; FMG SIDING SPECIALISTS,INC., a Washington corporation; MARTHALAKE CONSTRUCTION, INC., a Washingtoncorporation; JEFF PIPKIN, d/b/a PIPKINCONSTRUCTION, an individual; TEHALSINGH UBHI, d/b/a SINGH SIDING, anindividual,

Fourth-Part Defendants.

Woodinville Lumber, inc and Woodinville Construction Services, LLC ("Third-Party

Defendants" ot "'Woodinville" or "Fourth-Parfy Plaintiffs') answer the third-party plaintifß'

complaint and assert affirmative defenses and fourth-party claims as follows:

1, Defendants are without knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph I and therefore deny them,

2. In response to paragraph 2, Defendants agree that this

and venue over this proceeding.

court has jurisdiction

3. Defendants are without knowledge or information sufficient to form a beiief as

to the truth of the allegations in paragraph 3 and therefore deny them.

WOODINVILLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC,'S ANSWERAND FOURTH PARTY COMPLAINT _ 3so/S86563.002/

Wnso¡r Sunu CocnnnN DrcxensoNA PRÔFÉSSIONAL SÉRVICE CORPORATION

ITOO FINANCIAT CENTER, I2I 5 4ÏI AVENUESEA1TLE, WAsHrNcroN 98 I 6l - I 007

TELEPHoNE: (206) ó23-4 100 FAx: (206) 623-9273


1

2

3

4

6

7

I

I

10

11

12

'13

14

15

16

17

18

19

20

21

22

23

4. Defendants are without knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph 4 and therefore deny them,

5, In response to the allegations in paragraph 5, Woodinville Construction

Services, LLC is a Minnesota limited liability company that does business in King County,

Washington and Woodinville Lumber, Inc., is a Minnesota corporation that does business in

King County, Washington,


to the truth of the allegations in paragraph6 and therefore deny them.






to the truth of the allegations in paragraph g and therefore deny them.

10, Defendants are without knowledge or information sufficîent to form a belief as


1 1, Defendants are without knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph 1l and therefore deny them,

12. Defendants are without knowledge or information suffrcient to form a belief as




WOODINVILLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT - 4so/S86563.002i

WnsoN Sunu Cocuaex DlcxrnsoNA PROFESSIONAL SERVICE CORPORATION

I 7OO FNANCÍAL CB.ITER, I 2 I 5 4TH AVENUESEATTLE,'WÀsHrNGroN 981 6l -l 007

TELEPHoNE: (206) 6234 I 00 F,rx: (20 6) 623 -92't 3


1

2

3

4

5

6

7

I

10

11

12

13

14

15

16

17

18

19

20

21

22

23





16. Defendants are without knowledge or info¡mation sufficient to form a belief as

to the truth of the allegations in paragraph 16 andtherefore deny them,

17 . Defendants are without knowledge or information sufficient to form a belief as

to the truth of the allegations in paragraph \7 and therefore deny them.

18. Defendants are without knowledge or information sufhcient to form a beiief as





to the truth of the allegations in palagraph 20 and therefore deny them,

21, Defendants are without knowledge or information sufficient to form a beiief as


22. Defendants are without knowledge or information suff,rcient to form a belief as

to the truth of the allegations in palagraph 22 and therefo¡e deny them.

23. Defendants are without knowledge ol information sufficient to form a belief as

to the truth of the allegations in paragraph23 and therefore deny them.



WOODINVILLE CONSTRUCTION SERVICES, LLC,AND WOODINVILLE LTJMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT _ 5so/S86563.002/

'!7nsoN Surrn CocnnaN Dlcrcnso¡rA PROFES€IONAL AERVICE COÂPORATION

I 700 FrNANcrÆ- CENTER, I 21 5 4ffi AVENUEsEA'r-rLE, wAsHrNcrON 981 6l -1007

TELEPHoNE: (206) 623-4 I 00 FAx: (206) 623-92i3


1

2

3

4

5

b

7

I

I

10

11

12

13

14

15

16

17

1B

'19

20

21

22

¿,5


to the truth of the allegations in paragraph 25 and therefore deny then.

26. Defendants are without knowledge or information suffrcient to form a belief as

to the truth of the allegations in paragraph 26 andtherefore deny them.

27. Defendants acknowledge that the Association has filed suit against Monroe

Farms, and the complaint speaks for itself, Defendants deny that defects exist in its work.

Any remaining allegations in paragraphZT are denied.

28' Defendants are without knowledge or information sufficient to form a belief as


29' In response to paragraph 29, Defendants entered into a contract to provide

specified and limited labor and materials for the project. Defendants are without knowledge

or information sufficient to form a belief as to the truth of the remaining allegations in

paragraph29 and therefore deny thern.

30' Defendants are without knowledge or information sufficient to form a belief as


a

are

32' Defendants deny the allegations in paragraph 32 as they relate to Defendants,

33. Defendants deny the allegations in paragraph 33 as they relate to Defendants,

34, In response to parugraph 34, the Defendants' contract speaks for itself, Any

allegations in paragraph 34 which contradict the contract are denied.

31. Defendants deny that the labor and materials that they

Defendants are without knowledge or information sufficient to form a

the remaining allegations in paragraph 31 and therefore deny them.

WOODINVILLE CONSTRUCTION SERVICES, LLC,AND WOODINVILLE LUMBER, INC,'S ANSWERAND FOURTH PARTY COMPLAINT - 6so/S86563.002/

supplied are defective.

belief as to the truth of

l(/rrsoN SurrH Cocnn¡,N DlcxrnsorqA PROF€SSIONAL SERVICE CORPORATION

I 7OO FINANCIAL CENTER, I 21 5 4TH AVENUESEÁr-rLE, WASHTNGToN 98 I 6 I -l 007

TELEPHoNE: (206) 623.4 I 00 F,\x: (206) 623-927 3


1

2

.)

4

Ã

6

7

I

o

'10

11

12

13

14

15

16

17

18

19

20

21

22

23

35, In response to paragraph 35, the Defendants' contract speaks for itself. Any

allegations in paragraph 35 which contradict the contract are denied,

36' The Defendants deny the allegations in paragraph 36 as they relate to the

Defendants.

37, The Defendants deny the allegations in paragraph 37 as they relate to the

Defendants,


to the truth of the aliegations in paragraph 38 and therefore deny them.

AFFIRMATIVE DEF'ENSES

Discovery and investigation may reveal that one or more of the following defenses

may be applicable to this matter. Third-Party Defendants therefore assert those possible

defenses, which will be withdrawn if wananted by the facts or raw.

1. The claims fails to state a claim for which rerief can be granted.

2' The claims are baffed by the completion and acceptance doctrine andlor accord

and satisfaction.

3 ' The claims are barred by the applicable statutes of limitations and the terms of

warranties actually provided,

4. The damages may be caused by the third-party plaintiff, by the Association, or

by unit owners or residents, As a result, the recovery by the plaintiff and/or third-party

plaintiffshould be reduced in proportion to each respective party's percentage offault.

5. The claims may be barred by RCW 4.16.326.

6. The claims are barred by the doctrines of estoppel, laches, and/or waiver.

WOODINVILLE CONSTRUCTION SERVICES, LLC,AND WOODINVILLE LUMBER, INC.'S ANSWERAND FOI'RTH PARTY COMPLAINT _ 7so/SB6563.002/

rWnso¡l Sutrn Cocnn¿N DrcxpnsoNA PROFÉSSIONAL SERVICË CORPORAIION

I 7OO FINANCIÁL CENTER, I 2 1 5 4TH AVENUESE1\T|-LÊ, WAsHNcroN 98 I 6l,l 007

TELEPHoNE: (20ó) 623-4 I 00 FAx: (206) 623-9273


1

2

.)

4

5

o

7

I

I

10

11

12

13

14

15

16

17

18

19

20

21

22

¿3

7 . The plaintiff andlor third party plaintiff s damages, if any, were caused by acts

and/or omissions of other parties, including each named third-party defendant, over whom the

Defendants had no control or responsibility.

8. The Association, the unit owners and/or residents, andlor the third party

plaintiffs and/or others modified, intervened, and/or disturbed the work performed by the

Defendants.

9. The plaintiffs and third party plaintiffs have failed to mitigate their damages.

10. The third parly plaintiff has no privity with the Defendants.

By way of further response to Third-Party Plaintifls Complaint, Woodinville asserts

fourth-party claims as follows:

T. PARTIES

1. WOODINVILLE CONSTRUCTION SERVICES, L.L.C, is a duly organized

Minnesota limited liabilily company, registered to do business in the State of Washington.

2. WOODINVILLE LUMBER, INC. is a duly organtzed Miruresota corporation

registeled to do business in the State of Washington.

3. At all times ¡elevant to this action, Defendant AMK Siding, ("AMK''), was a

Washington sole proprietorshþ owned by Maria Elena Ramirez that regularly did business in

Snohomish County.

4. At all times relevant to this action, Defendant Apreza Quality Siding, ("Apreza''),

was a Washington sole proprietorship owned by Cerafin Aprezathat regularly did business in

Snohomish County.

WOODINVILLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC,'S ANSWERAND FOURTH PARTY COMPLAINT_ 8so/S86563.002/

'Wnso¡l Surrn CocnR¿,N Dlcxnnsor.lA PROFESSIONAL SERVICE CORPORAf IO{

I 700 FINANC|AL CENIER, I 2 I 5 4rH AVENUESEATTLE, wAsHrNGroN 981 6l-1007

TELEPHoNE: (206) 6234100 FAx: (20ó) 623-9273


2

ó

4

5

6

7

I

o

10

11

12

13

14

15

16

17

18

19

20

21

22

23

5. At all times relevant to this action, Defendant Avila Siding Company, ("Avila"),

was a Washington sole proprietorship owned by Jaciel Rodriguez Avila that regularly did

business in Snohomish County.

6, At all times reievant to this action, Defendant FMG Siding Specialists, Inc.,

("FMG"), was a'V/ashington cotporation that regularly did business in Snohomish Cognty.

7. At all times relevant to this action, Defendant Martha Lake Construction

("Martha Lake"), was a Washington corporation that regularly did business in Snohomish

County,

8, At all times relevant to this action,

was a 'Washington sole proprietorship owned by

Snohomish County.

9. At all times relevant to this

Washington sole proprietorship owned by

Snohomish Counfy.

WOODINVILLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT_ 9so/S86563,002/

Defendant Pipkin Construction, ("Pipkin"),

Jeff Pipkin that regularly did business in

action, Defendant Singh Siding, ("Singh"), was a

Tehal Singh Ubhi that regularly did business in

\?nso¡r S¡¿nH Cocune¡¡ Dlcxsnso¡rA PROFESSIONAL SERVICE CORPORATION

1 7OO FrN/A,NcrAL CENTER, I 2 I 5 4TH AVENUESEATTLE, WASH¡NcroN 981 6l -l 007

TELBPHoNE: (206) 623.4¡ 00 FAx: (206) 623-9273

It JURISDICTION AND VENUE

7. This Court has jurisdiction over the parties and the subject matter of this

lawsuit, and venue is proper in Snohomish County

III. FACTS GIVING RTSE TO ACTION

8. The Wild Horse at Woods Creek Owners Association (HOA) brought claims

against Moruoe Farms, LLC; Washington Pacific Housing Corporation; Pagearrtry Homes of

Washington, Inc.; Pageantry Comrnunities, Inc.; and other entities (collectively, Monroe

Farms) for alleged construction defects at the Wild Horse at Woods Creek condominiurns (the

Project). Monroe Farms filed a Third-Party Complaint and asserted claims against its


10

11

12

13

14

15

'16

17

18

19

20

21

¿ó

subcontractors, including Woodinville Construction Services, LLC and Woodinville Lurnber,

Inc. for alleged construction defects. Woodinville's claims in this action arise out of and

relate to the claims asserted against Woodinville by Monroe Farms,

9. Each of the fourth-parfy defendants entered into written subcontracts with

Woodinville to perform siding and construction work during the construction of the Wild Horse

at Woods Creek condominiums. Ttue and correct copies of the subcontuacts are attached to this

compiaint as Exhibit A (AMK), Exhibir B (Apreza), Exhibit c (Avila), Exhibit D (FMG),

Exhibit E (Martha Lake), Exhibit F (Pipkin), and Exhibit G (Singh), and are incorporated by

reference herein.

10. AMK, Apreza, Avila, FMG, Martha Lake, Pipkin, and Singh agreed, in writing,

to indemnify and hold Woodinville harmless as follows:

12.1

Conhactor shall indemnit and save harmless Woodinville ConstructionServices, LLC, including its officers, agents, employees, affiliates, parentsand subsidiaries, and each of them, of and from any and all claims, demands,causes ofaction, damages, costs, expenses (including costs and expenses ofconsultation, preparation and review of claims and related documents) actualattomey's fees, losses or liability, in law or in equity, of every kind andnature whatsoever ("Claims") arising out of or in connection withContractor's operations to be performed under this Agreement.,.

12.2(a) At Contractor's own cost, expense and risk, defend all Claims in Sectionl2.I that may be brought or instituted by third persons, including, but notlimited to govemmental agencies or ernployees or Contractor, againstWoodinville Conskuction Services, LLC or its agents or employees or anyof them;

(b) Pay and satisfu any judgment or decree that may be rendered againstWoodinville Construction Services, LLC or its agents or ernployees, or anyof them, arising out of any such Clairy and/or

WOODINVILLE CONSTRUCTION SERVICES, LLCAND WOODINVILLE LUMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT_ 10so/S86563.002/

'Wil,sor.¡ Sr'¡trH CocnnnN Drcxpnso¡¡

A PROFESSIONAL SERVICÊ CORPORATION

I 7OO FTNANCIAL CENTER, 12 I 5 4TH AVENUESEAïILE, Vy'^sHrNcroN 981 ól -l 007

TELEPHoNE: (206) 623-4100 FAx: (i0ó)623-9273


7

I

o

'10

11

12

13

14

4Ë

16

17

18

19

20

21

22

23

(c) Reimburse 'Woodinville Construction Services, LLC or its agents or

employees for any aqd all legal expenses incuned by any of them inconnection herein or in enforcing the indemnity granted in this section 12,

1 1, The Contract with Woodinville required its subcontractors to perform their work

free from defec! established certain wan'anties; and obligated its subcontractors (AMK, Apreza,

Avila, FMG, Martha Lake, Pipkin, and Singh) to maintain insurance coverage and additional

insured protection for the plaintiffs,

12. In this action, Fourth-Party Plaintiffs seek relief against Fourth-Party

Defendants for breach of contract and to enforce the contractual duties to defend, indemnify,

and lrold harmless. The HOA and Monroe Farms allege, inter alia, that the Wild Horse at

Woods Creek condominium buildings were constructed in a negligent and deficient manner

resulting in properly damage. To the extent these allegations are proven against Woodinville,

they arise out of and relate to the work performed by each of the fourth-party defendants at

the Project under their respective subcontracts with Woodinville,

13, Fourth-Party Plaintifß deny liability to the HOA and Monroe Farms.

However, if and to the extent the trier of fact determines that there are defects in the

construction of the Wild Horse at Woods Creek condominiums, or other liability is found

against Woodinville, such defects and resulting property damage, or other liability and

damages, were caused by the fourth-party defendants' performance of their duties under their

respective subcontracts in a negligent and deficient manner, for which the defendants are

obligated to defend, indemnify and hold Fourth-Party Plaintiffs harmless.

14. Each of the fourth-party defendants is obligated to fulfìll its contract

and to defend, indemnify and hold Fourth-Pany Plaintiffs harmless with respect to

that the general contractor has commenced against the fourth-party plaintiffs.

promlses

the action

WOODINViLLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC,'S ANSWERAND FOURTH PARTY COMPLAINT_ 11so/S86563.002/

l7trsoN Surrr Cocnn¿,¡¡ DrcxpnsoNA PROFE6SIONAL SERVICE CORPÔRATION

I 700 FINANCTAL CE¡IrER, I 2 I 5 4TH AVENUESEATTLE WASH|NGToN 98 I 6 I -l 007

TELEPHoNE: (206) ó23-4100 FAx: (20ó) 623-9213


1

2

J

4

5

6

7

I

o

10

11

12

13

14

15

16

17

18

'19

20

21

22

¿.7

15, The fourth-pafty plaintiffs have requested that each of the fourth-party

defendants confirm that it will defend, indemnify and hold them hæmless with respect to the

general contactor's action against them,

16. Each of the fourth-party defendants has failed to honor ifs defense, indemnity

and other obligations under its subcontract.

FIRST CLAIM

17 ' Fourth-Party Plaintiffs reallege and incorporate by reference the allegations of

paragraphs 1-16 of their Claims,

18, Each of the fourth-party defendants has breached its subcontract,by acts and

omissions that include, but are not limited to the following:

indemnify

a. Each fourth-party defendant has breached its obiigation to defend and

the fourtli-p arty plaintiffs ;

b. If and to the extent the third-party plaintifß' allegations are true, tJlen

each fourth-party defendant has breached its express and implied contractual obligations,

including without iimitation to provide work in conformance with plans, specifications, and

workmanlike standards, and to provide insurance coverage to Woodinville through Additional

Insured status.

19. Each of the fourth-party defendants is therefore liable to the fourth-party

plaintiffs for any and all costs, penalties, incidental, consequential and all other damages of

whatsoever kind or nature, including attorney fees, together with all costs,

attomey fees incurred by the fourth-party plaintifß in defending against the

HOA and Monroe Farms, all in an amount to be proven at trial,

expenses and

action by the

WOODiNVILLE CONSTRUCTION SERVICES, LLC.AND WOODINVILLE LUMBER, INC.'S ANSWERAND FOURTÍI PARTY COMPLAiNT_ 12so/S86563.002/

'!7nson Sutrn CocnnaN Drcrrnso¡qA PROFESSIONAL SERVICE CORPORATION

I ?00 FrNANcrÁL CENTER, I 21 5 4TH AVENUESEATTLE, WASHINGToN 98 I 61I OO7

TELEPHoNE: (206) 623-4100 FAx: (206)623-9213


1

2

3

4

5

o

7

ou

I

't0

11

12

'13

14

15

16

17

18

19

20

21

22

ZJ

SECOND CLAIM

20' The fourth-party plaintiffs reallege and incorporate by reference the allegations

of paragraphs 1-1ó of their Claims.

21. In performing its work under the subcontract, each fourth-party defendant

owed the fourth-paúy plaintiffs a duty of care.

22. Each fourth-party defendant has breached its duty of care to Fourth-Party

Plaintiffs through negligent acts and omissions that have proximately caused Fourth-Party

Plaintiffs damages, including, but not limited to, losses arising from substantial injury to their

business and reputation, in an amount to be proven at trial,

THIRD CLAIM

23. Fourth-Party Plaintiffs reallege and incorporate by reference the allegations of

paragraphs 1-18 oftheir Claims.

24. As a result of the actions and omissions of each of the fourth-party defendants,

Moruoe Farms has sued the fourth-party ptaintiffs. Each of the fourth-party defendants is

therefore liable to defend, indemnify and hold the fourth-party plaintiffs harmless for any and

all costs, penalties, incidental, consequential and all other damages of whatsoever kind or

nature, including attorney fees, together with all costs, expenses and attorneys' fees incurred

by the fourth-party plaintiffs in defending against the action, all in an amount to be proven at

trial. To date, no fourth-party defendant has accepted the tender.

PRÄYER FOR RELIEF

The fourth-party plaintiffs pray for the following reiief:

WOODINVILLE CONSTRUCTION SERVICES, LLC,AND WOODINVILLE LUMBER, INC,'S ANSWERAND FOURTH PARTY COMPLAINT_ T3so/S865ó3.002/

'\)Ønso¡l Surrn Cocune¡¡ DrcnsRsoNA PROFESSIONAL SERVICE CORPORATION

I 700 FrNANcr,c.L CEr.¡rER, I 2 I 5 41}t AVENUESEATTLE, WASHTNGToN 98I 6I-1007

TELEPHoNE: (206) 623-4 100 F,Ax: (206) 623-9273


2

J

4

Ã

o

7

I

o

10

11

12

'13

14

15

16

17

18

19

20

21

22

¿J

1. That the Court enter a judgment for the fourth-party plaintiffs against the

fourth-party defendants in the amount of Fourth-Party Plaintiffs' costs and expenses incuned

herein, including reasonable attorney fees;

2, The Court enter judgment against the fourth-party defendants for the full

amount of any settlement or judgment which may be entered against the fourth-party plaintiffs

with respect to Moruoe Farms' claims against the fourth-party plaintiffs;

3. The Court enter judgment in the fourth-party plaintiffs' favor against the

fourth-party defendants for all of the damages proximately caused by the fourth-party

defendants, and for the fourth-party plaintiffs' attorney fees and Litigation expenses, pursuant

to the subcontracts, and as are otherwise recoverable by law; and

4. For such other relief as the Court deems just and equitable,

Dared tr-rirf$$ay of Augus t,200g,

WOODINVILLE CONSTRUCTION SERVICES, LLC,AND WOODTNVILLE LUMBER, INC.'S ANSWERAND FOURTH PARTY COMPLAINT- 14so/586563.0021

WI N DICKERSON

By

Attorneys for Attorneys for Plaintiffs WoodinvilleConstn¡ction Services, LLC and Woodinville Lumber,Inc.

l7rrso¡¡ Surur Cocnn.q¡l DtcxBnsoNA PROFESSIONAL SÊRVICE CORPORATION

I 700 FTNANCTAL CENTER, I 2 I 5 4ffi AVENUESEAï|LE, WAsHìNcroN 98 I 6 l -l 007

TELEPHoNE: (206) 623-4 I00 FAx: (20ó) 623-9273


EXHIBIT C


Jeremy Stilwell

From:Sent:To:Cc:SubJect:

Bhatia, $hilpa [[email protected]]Monday, July 25, 2011 10:12 AMJeremy Stifwell; Brad Hudson; Christopher J. SoellingSteven J. JagerRË: Wildhorse: Confirmation of Settlement REPLY REQUESTED/REQUIRED

'We agree, although I have a couple asterisks:

I am checking with my carriers to ensure that the time deadlines for payment can be met.do not yet have a response. The time limit is reasonable to me.

I also have to confirm that the NFM payments can go directly to the HOA.

The release and CR 2A includes both my clients--Woodinville Lumber and \üoodinvilleConstruction Services, which is also a defendant. IvVe would also like the parent, LymanLumber, on the release.

I am really busy (I know we allare), so does someone else want to take the lead in draftingthe release(s)?

Finally, Jeremy, will you provide pa5rment terms and tax id?

Our new mailing address is 901 Fifth .A.venueo Suite 1700, Seattle WA 98164. Phone, fax, andemail remain the same.

Shilpa BhatiaWilson Smith Cochran Dickerson2A6.623.4 100 (phone)/206.623.927 3(fax)

CONFIDENTIALITY NOTiCE: Tho information contained in this BLBCTRONIC MAIL transmission is confidential. It may also be

subjeot to the attorney-client prívilege or be privileged work product or proprietary information. This information is intended for the

exclusivcuseofthsaddressee(s). Ifyouarenottheintendedrecipienf,youareherebynotifiedthatanyuse,disclosure,dissemination,distribution (other than to the add¡essee(s)), copying or taking of any action because ofthis information is strictly prohibited'

From; Jeremy Stilwell [mailto:[email protected]]Sent: Monday, July 25,20t110:05 AMTo: Brad Hudson; Chrlstopher J. SoellingCc: Bhatia, Shílpa; Steven J. JagerSubject: RE: Wlldhorse; Confirmation of Settlernent REPLY REQUESTED/REQUIRED

All,

The Wild Horse owners agree.

Jeremy


Jeremy Stilwell

Barker ¡ Martin, P, S.

Direct: (206) 381-9806 xJ.05 orToll Free 888-381^9806 x 105

www.barkermärtln.com

From : Brad H udson [mailto: bh [email protected]]SenE Monday, July 25, 2011 7:52 AMTo: Christopher J. SoellingCc Jeremy Stilwell; [email protected]; Steven J, JagerSubject: Re: WíHhorse: ConfÍrmation of Settle*nent REPLY REQUESTED/REQUIRED

Ch¡is,

NFM agrees.

D. Bradley HudsonHudson Youngblood

This e-mall may contain confidÊntlal hbrmâtlon that ls legally privileged. The lnfurmatlon is solely for tfre use of lhe addresse(s) named above, lf you are not the

pleâse notiry me by return e-mail and delete lhls message. Thank you

On Jul 23,2A11., at 12:15 PM, Ch¡istopher J. Soelling wrote:

Counset:

This confirms settlement in Wildhorse of the claims between the HOA in its own right and as assignee of the rights ofMonroe Farms LLC, CAMS Construction Corporatfon of Washington, Washington Paclfic Housing Corporation, Pageantry

Homes of Washington and Pageantry Communities (hereinafter "HOA") and Woodinville Lumber, All Framing, DRB, FMG

and Avila (collectively "defendants") on the following termsr

1. The carriers for Woodinville Lumber will pay the HOA S550,Ooo within 30 days of today's date. The payment

amount is made up of $500,@0 from the carriers for Woodlnville Lumber and the 550,000 balance is frompassing on the $50,000 due from the carrier for FMG and Avila, as set forth below (l put ¡t thís way because

Woodinville Lumber, not the HOA, sued FMG and Avila and therefore ¡s entitled to those funds. I assume thatpayment will be made directly to the HOA by FMG and Avila, however);

2. The carrier for All Framing will pay $6,500 to the HOA wlthln 30 days of today's date;

3. The carrier for DRB will pay S8,5OO to the HOA withln 30 days of today's datei


4. The carrier for FMG will pay $25,000 eíther to the HOA or to Woodinville Lumber (as directed by WoodlnvilleLumber) within 30 days of today's date;

5. The carrier for Avila will pay SZS,OOO elther to the HOA or to Woodinville Lumber (as directed by WoodinvilleLumber)within 30 days of today's date;

6. The total settlement amount, made up of all the amounts set forth above, is 5565,000;

7 , "Standêrd" CD settlement terms wlll apply, including a full and complete release of all clalms held by the HOA

directly and/or as an asslgnee against all the defendants, and the defendänts with clalms between each otherwill dismiss those claims as well. The suit will be dismissed with prejudice and without costs or fees as soon as

the settlement funds are all available and the settlement documents signed. The payments will be due and paid

irrespective of whether final settlement documents are signed but will not be dlsbursed to the HOA untilthedocuments are signed, I appoint Shilpa to draft settlement documents for review and approval byJeremy and

Steven, and they should be provided and commented on so that all disputes regarding their language can be

resolved within 30 days of today's date. I will resolve all disputes as to the language of those documents and my

decision will be final and binding and without appeal;

f think that is all the terms. Please let me know if you have any corrections or additions. Assuming I have it right, pleasg

hÌt "reply to all" and sienifv vour asreement with the tef.n.ls, Once responded to affirmatively, this will serve as a binding

CR2A Agreement.

Jeremy and Shilpa, please get together to agree on how you want the sub money to be transmitted and Jeremy, get

payment instructlons to everyone

Thanks for helping in getting this entirely resolved in one fell swoop.

Chris

Christopher J. Soelling PLLC

999 Thírd Avenue, Suite 3000Seattle, WA 98104(2û6) sos-s810Fax: (206) 505-5811cell (206)200-7706

www,soellinql?W,com

*¡MPORTANT CONFIDENTIALITY NOTE: Thfs electronlc mailand any attachmenls are priv¡¡eged and cont¡dentjal comnunicallons proteeted by attorney-cllenuwork producl transmitted fór lhe exclusive use of the âddressee, and may nd bô copied or dissem¡nat€d êxcgpt by $ender or addre$9eê. lf you received this

oommunlcatlon in eüor, pþase notify lhe sender Þnmed¡ately.**


EXHIBIT D


Settlement and Release Agreement - Page 1 of 7

SETTLEMENT AND RELEASE AGREEMENT

This Settlement Agreement and Release of Claims is made by and between the

following parties, hereafter referred to collectively as “the Settling Parties”: 1. Wild Horse at Woods Creek Owners Association (“Association”);

2. Woodinville Lumber, Inc. and Woodinville Construction Services, LLC (collectively “Woodinville”)

3. All Framing, LLC (“All Framing”); 4. The DRB Company (“DRB”); 5. FMG Siding Specialists, Inc. (“FMG”); and 6. Jaciel Rodriguez Avila d/b/a Avila Siding Company (“Avila”); The “Defendants” include all of the Settling Parties with the exception of the

Association.

1. RECITALS

WHEREAS, the Association filed a lawsuit in the Superior Court of Snohomish County against Monroe Farms, LLC, Washington Pacific Housing Corporation, Pageantry Homes of Washington, Inc. and Pageantry Communities, Inc. (collectively “Declarants”), Case Number 08-2-07890-4 (hereinafter “the Action”), asserting a number of claims arising from the construction, marketing and sale of the real property subject to the Condominium Declaration for Wild Horse at Woods Creek, a Condominium, and any amendments filed thereafter, (“Declaration”) recorded in the real property records of Snohomish County under No. 200405130179 on behalf of the Association and on behalf of unit owners;

WHEREAS, Monroe Farms, LLC, in turn, filed claims against several

subcontractors, including Woodinville, All Framing and DRB; WHEREAS, Woodinville, in turn, filed claims against several sub-subcontractors,

including FMG and Avila; WHEREAS, on September 3, 2009, the Association settled with Declarants. As

part of the settlement, Declarants assigned all rights against the project subcontractors, including but not limited to Monroe Farms, LLC’s contract claims against the project subcontractors.

WHEREAS, all of the Defendants deny all allegations contained in the Action;

and



3. Contingent Upon Relief from Bankruptcy Stay. This agreement is contingent upon relief from the U.S. Bankruptcy Court allowing Woodinville and Woodinville’s insurers to carry out the obligations set forth herein.

4. Settlement Amount. Subject to the conditions listed in Paragraph 4 below,

the Defendants will make payment to the Association, through insurers or otherwise, of FIVE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($565,000.00) (the “Settlement Amount”) in full settlement of the Association’s claims against Defendants. Defendants’ obligation to pay is allocated to each Defendant as set forth below:

Woodinville Lumber $500,000 All Framing $6,500 DRB $8,500 FMG $25,000 Avila $25,000

TOTAL $565,000

Woodinville’s portion of the Settlement Amount ($500,000) will be paid by the following:

- Liberty Mutual (“Wausau”): $387,370.35 - Chartis Insurance: $86,129.65 - The remaining $26,500 of Woodinville’s portion of the Settlement Amount,

shall be paid from insurance funds being held in trust from settlements of Woodinville’s previously settled fourth-party claims.

Defendants shall pay their share of the Settlement Amount as set forth in Addendum A no later than five (5) days following relief from the U.S. Bankruptcy Court allowing Woodinville and Woodinville’s insurers to carry out the obligations set forth herein. Late payments by shall accrue interest at the rate of 12% per annum after a 10 day grace period. Any Defendant paying their allocated portion of the total settlement is not responsible for any other Defendant’s failure to pay. In the event FMG or Avila fail to pay or timely pay their allocated payment, then the Association may enforce the obligations under this agreement directly against the non-paying defendant. All payments shall be made to Barker Martin P.S., in trust for the Association, and Barker Martin P.S. shall provide Defendants and insurers with any information needed to make such payment.

5. Release of all Claims. (a) Upon receipt of the Settlement Amount, the Association, to the full extent

of its authority pursuant to RCW 64.34, and as assignee of Declarants’ claims, forever releases, waives, and discharges the Defendants, together with the Defendants’ affiliates, parents, subsidiaries, related entities, owners, employees, attorneys, agents, insurers, representatives, shareholders, members, partners, officers, trustees, and directors and any



other persons or agents who may be liable for the Defendants’ actions, or whomsoever else may be liable jointly and severally for their actions, from any and all claims whatsoever, whether known or unknown, whether direct or indirect, both past and future that relate to the Wild Horse at Wood Creek, a Condominium (“Wild Horse”).

(b) Subject to the ongoing obligations set forth in this Settlement Agreement,

upon payment of the Settlement Amount, Woodinville forever releases and discharges the Association, together with its officers, directors, and members, the Wild Horse owners, and any other persons or agents who may be liable for the Association’s actions, or whomsoever else may be liable jointly and severally for its actions, from any and all claims whatsoever, whether known or unknown, whether direct or indirect, both past and future related to Wild Horse.

(c) Woodinville forever releases and discharges its sub-contractors FMG and

Avila, together with their owners, officers, directors, employees, agents, affiliates, subsidiaries, and insurers from any and all claims whatsoever, whether known or unknown, whether direct or indirect, both past and future that were raised or could have been raised by the plaintiff Association.

6. Dismissal of Action. No later than seven (7) calendar days after receipt of

the Settlement Amount, the Settling Parties shall execute and file the necessary documents with the Snohomish County Superior Court, and any other relevant courts and tribunals, to dismiss the Action with prejudice and without costs to any Settling Party.

7. Parties Bound. This Settlement Agreement shall be binding on the

Settling Parties hereto and each of their heirs, legal representatives, members, successors, and assigns and inures to the benefit of the Settling Parties and their heirs, legal representatives, successors and assigns.

8. Integration. This written agreement contains the entire understanding

among the Settling Parties in connection with its subject matter, and supersedes and replaces all prior negotiations, agreements, or representations by or among the Settling Parties, whether oral or written. Each Settling Party acknowledges that no other Settling Party, or any agent or attorney of any Settling Party, has made any promise, representation, or warranty whatsoever, express or implied, other than those expressly stated herein, concerning the subject matter hereof to induce the other Settling Party or Parties to execute this document. Each Settling Party acknowledges that in executing this document he, she, or it is not relying on any promise, representation or warranty other than those expressly stated herein.

9. Assignment. Each Settling Party represents and warrants that it has not –

in whole or in part – assigned, encumbered, or transferred any of its interests, claims, or rights covered by this Settlement Agreement.

10. Choice of Law. The interpretation and enforcement of this Settlement

Agreement shall be governed by the laws of the State of Washington.



11. Construction of Settlement Agreement. This Settlement Agreement has

been drafted by mutual negotiations among the Settling Parties and their legal counsel. It shall be construed according to the fair intent of the language as a whole, and not for or against any Settling Party. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.

12. Assumption of Risk. In providing the releases set forth in this Agreement,

the Association acknowledges that it may not fully know or comprehend all damages it has suffered, but expressly agrees to assume the risk that its past, present and future damages may be greater than currently believed, and that it nevertheless acknowledges that the Settlement Amount is adequate consideration for these risks and desires to enter into this Settlement Agreement.

13. Attorneys’ Fees. In the event any Settling Party hereto, or his, her, or its

authorized representative, successor, or assign, shall institute suit to enforce this Settlement Agreement or for any breach thereof, the substantially prevailing party in such suit or proceeding shall be entitled to an award of his, her, or its reasonable costs, expenses and attorneys’ fees incurred, both at the trial and appellate court levels, before and after judgment.

14. Severability. If any provision of this Settlement Agreement or portion of

such provision or the application thereof to any Settling Party, person, or circumstance is for any reason held invalid or unenforceable, the remainder of the Settlement Agreement (including the remainder of such provisions) and the application thereof to the Settling Party, persons, or circumstances shall not be affected thereby.

15. Counterparts/Authority to Execute. This Settlement Agreement may be

executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signature of a facsimile or electronically mailed copy of this Agreement, and transmission of a signature by facsimile or electronic mail, shall bind the Settling Party to the same degree as delivery of a signed original. At the request of any Settling Party, a Settling Party having delivered a signature by facsimile or electronic mail shall promptly deliver an original signature as well. Each signatory hereto warrants that he/she has full authority to execute this Settlement Agreement on behalf of the Settling Party for whom he/she is signing.

3. INSURER’S CONSENT AND AGREEMENT

16. By their signatures below, Liberty Mutual Insurance Company (“Wausau”) and Chartis Insurance consent to make payments on behalf of Woodinville as required under this Agreement



Chartis Insurance Dated:_________________________ ____________________________________

By:_________________________________ Its:_________________________________

Liberty Mutual Insurance Company Dated:_________________________ ____________________________________

By:_________________________________ Its:_________________________________

Wild Horse at Woods Creek Owners Association Dated:_________________________ ____________________________________

By:_________________________________ Its:_________________________________

Woodinville Lumber, Inc.

Dated:_________________________ ____________________________________

By:_________________________________ Its:_________________________________

Woodinville Construction Services, LLC

Dated:_________________________ ____________________________________

By:_________________________________ Its:_________________________________

All Framing, LLC

Dated:_________________________ ____________________________________ By:_________________________________

Its:_________________________________

The DRB Company



Dated:_________________________ ___________________________________

By:________________________________ Its:_________________________________

Jaciel Rodriguez Avila d/b/a Avila Siding Company

Dated:_________________________ ___________________________________ By:________________________________

Its:_________________________________ FMG Siding Specialists, Inc.

Dated:_________________________ ___________________________________ By:________________________________

Its:_________________________________


EXHIBIT E


EXHIBIT F


EXHIBIT G


EXHIBIT H


2

None

2. Income other than from employment or operation of business

State the amount of income received by the debtor other than from employment, trade, profession, or operation of the debtor's businessduring the two years immediately preceding the commencement of this case. Give particulars. If a joint petition is filed, state income foreach spouse separately. (Married debtors filing under chapter 12 or chapter 13 must state income for each spouse whether or not a jointpetition is filed, unless the spouses are separated and a joint petition is not filed.)

AMOUNT SOURCE

None

3. Payments to creditors

Complete a. or b., as appropriate, and c.

a. Individual or joint debtor(s) with primarily consumer debts. List all payments on loans, installment purchases of goods or services,and other debts to any creditor made within 90 days immediately preceding the commencement of this case unless the aggregate value ofall property that constitutes or is affected by such transfer is less than $600. Indicate with an (*) any payments that were made to acreditor on account of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approvednonprofit budgeting and credit counseling agency. (Married debtors filing under chapter 12 or chapter 13 must include payments by eitheror both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)

NAME AND ADDRESSOF CREDITOR

DATES OFPAYMENTS AMOUNT PAID

AMOUNT STILLOWING

None b. Debtor whose debts are not primarily consumer debts: List each payment or other transfer to any creditor made within 90 daysimmediately preceding the commencement of the case unless the aggregate value of all property that constitutes or is affected by suchtransfer is less than $5,850*. If the debtor is an individual, indicate with an asterisk (*) any payments that were made to a creditor onaccount of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit budgetingand credit counseling agency. (Married debtors filing under chapter 12 or chapter 13 must include payments and other transfers by eitheror both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)

NAME AND ADDRESS OF CREDITOR

DATES OFPAYMENTS/TRANSFERS

AMOUNTPAID OR

VALUE OFTRANSFERS

AMOUNT STILLOWING

See Attachment 3(b) $0.00 $0.00

None c. All debtors: List all payments made within one year immediately preceding the commencement of this case to or for the benefit ofcreditors who are or were insiders. (Married debtors filing under chapter 12 or chapter 13 must include payments by either or bothspouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)

NAME AND ADDRESS OF CREDITOR ANDRELATIONSHIP TO DEBTOR DATE OF PAYMENT AMOUNT PAID

AMOUNT STILLOWING

See Attachment 3(c) $0.00 $0.00

None

4. Suits and administrative proceedings, executions, garnishments and attachments

a. List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing ofthis bankruptcy case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouseswhether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)

CAPTION OF SUITAND CASE NUMBER

NATURE OFPROCEEDING

COURT OR AGENCYAND LOCATION

STATUS ORDISPOSITION

Wild Horse at Wood Creek Condominium vs.Woodinville Construction Services, LLC

Civil Seattle, WA Settled

None b. Describe all property that has been attached, garnished or seized under any legal or equitable process within one year immediatelypreceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerningproperty of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)

* Amount subject to adjustment on 4/01/13, and every three years thereafter with respect to cases commenced on or after the date of adjustment.

Software Copyright (c) 19962011 CCH INCORPORATED www.bestcase.com Best Case Bankruptcy

Case 11-45206 Doc 28 Filed 08/18/11 Entered 08/18/11 22:23:44 Desc Main Document Page 34 of 46


EXHIBIT I


B6B (Official Form 6B) (12/07) Cont.

Type of PropertyNONE

Description and Location of PropertyHusband,

Wife,Joint, or

Community

Current Value ofDebtor's Interest in Property,

without Deducting anySecured Claim or Exemption

Sheet of continuation sheets attachedto the Schedule of Personal Property

SCHEDULE B PERSONAL PROPERTY(Continuation Sheet)

Software Copyright (c) 19962011 CCH INCORPORATED www.bestcase.com Best Case Bankruptcy

In re ,Debtor

Case No. 1145206Woodinville Construction Services, L.L.C.

5. Books, pictures and other artobjects, antiques, stamp, coin,record, tape, compact disc, andother collections or collectibles.

X

6. Wearing apparel. X

7. Furs and jewelry. X

8. Firearms and sports, photographic,and other hobby equipment.

X

9. Interests in insurance policies.Name insurance company of eachpolicy and itemize surrender orrefund value of each.

Policies set forth on Schedule G no cash value 0.00

10. Annuities. Itemize and name eachissuer.

X

11. Interests in an education IRA asdefined in 26 U.S.C. § 530(b)(1) orunder a qualified State tuition planas defined in 26 U.S.C. § 529(b)(1).Give particulars. (File separately therecord(s) of any such interest(s).11 U.S.C. § 521(c).)

X

12. Interests in IRA, ERISA, Keogh, orother pension or profit sharingplans. Give particulars.

X

13. Stock and interests in incorporatedand unincorporated businesses.Itemize.

X

14. Interests in partnerships or jointventures. Itemize.

X

15. Government and corporate bondsand other negotiable andnonnegotiable instruments.

X

16. Accounts receivable. Accounts Receivable 440,452.46

17. Alimony, maintenance, support, andproperty settlements to which thedebtor is or may be entitled. Giveparticulars.

X

SubTotal >(Total of this page)

440,452.46

1 3

Case 11-45206 Doc 28 Filed 08/18/11 Entered 08/18/11 22:23:44 Desc Main Document Page 5 of 46




In re:


Debtors.1



UNSWORN CERTIFICATE OF SERVICE

______________________________________________________________________________

I, Danielle E. Bolf, declare under penalty of perjury that on December 22, 2011, I served

copies of the following documents:

Notice of Hearing and Motion for Relief from Automatic Stay

Memorandum of Law in Support of Motion for Relief from Automatic Stay

Affidavit of Jeremy Stilwell in Support of Motion for Relief from Automatic Stay

Proposed Order

by first class mail postage prepaid to each party named below and/or electronically by Notice of

Electronic Filing via ECF.

Lyman Holding Company

P.O. Box 40

Excelsior, MN 55331

Woodinville Lumber, Inc.

P.O. Box 40

Excelsior, MN 55331

Woodinville Construction Services, LLC

300 Morse Avenue

Excelsior, MN 55331







45206.


2

James L. Baillie – via ECF

Fredrickson & Byron, P.A.

200 South Sixth Street, Suite 4000


[email protected]

Connie Lahn, Attorney for Unsecured Creditor Committee – via ECF

Fafinski Mark & Johnson, P.A.

775 Prairie Center Drive, Ste. 400

Eden Prairie, MN 55344

[email protected]

U.S. Trustee – via ECF

1015 US Courthouse

300 S. 4th

Street


[email protected]

Sarah J. Wencil, attorney for U.S. Trustee – via ECF

US Trustee Office

1015 US Courthouse

300 S. 4th

Street


[email protected]

UNSECURED CREDITOR COMMITTEE

John N Wedekind

16765 Luther Way

Eden Prairie, MN 55346

District Counsel of the Internal Revenue Service

430 North Wabasha Street

St. Paul, MN 55101

Minnesota Department of Revenue

Collection Division

P.O. Box 64564

St. Paul, MN 55164

US Attorney’s Office

600 US Courthouse

300 S. 4th

Street



3

US Bank NA, as agent

800 Nicollet Mall


Les Scwab Tire Cntr of WA, Inc

19401 Bothell Everett Hwy

Bothell, WA 98012

Lumbermens Merchandising Corp

Attn. Chris Ford

137 W Wayne Ave

Wayne, PA 19087

Stiles Machinery, Inc

3965 44th

St

Grand Rapids, MI 49512

TCF Bank

Mail Code 00103T

801 Marquette Ave


US Bank NA

800 Nicollet Mall


Interfor Pacific, Inc.

Attn: Marilyn Loewen Mauritz, General Counsel

3500 – 1055 Dunsmuir Street

Vancouver BC Canada

V7X 1H7

Stoel Rives LLP

Attn: Brandy A. Sargent

900 SW Fifth Ave., Suite 2600

Portland, OR 97204

Wilkerson & Hegna, P.L.L.P.

7300 Metro Blvd., Suite 300

Edina, MN 55439

Hellmuth & Johnson, PLLC

8050 West 78th

Street

Edina, MN 55439


4

Joseph W. Dicker, PA

Suite 209

1406 West Lake Street


IKON Office Solutions

Recovery & Bankruptcy Group

3920 Arkwright Road, Suite 400

Macon, GA 31210

Liberty Mutual Insurance Company

c/o Cheryl Schoenstein, CPCU, AIC

P.O. Box 7214

London, KY 40744-7214

Chartis Insurance Company

c/o Elena Allen, Regional Director Construction Defect Claims

P.O. Box 3780

Alpharetta, GA 30023

Maria Elena Ramirez, d/b/a Amk Siding

c/o Steven Jager

Jager Law Office

600 Stewart Street, Suite 1100

Seattle, WA 98101

Cerafin Apreza, d/b/a Apreza Quality Siding Company

c/o Steven Jager

Jager Law Office


Seattle, WA 98101

Jaciel Rodriguez Avila, d/b/a Avila Siding Company

c/o Steven Jager

Jager Law Office


Seattle, WA 98101

FMG Siding Specialists, Inc.

c/o Steven Jager

Jager Law Office


Seattle, WA 98101


5

Martha Lake Construction, Inc.

c/o Steven Jager

Jager Law Office


Seattle, WA 98101

Executed on: December 22, 2011 /e/ Danielle E. Bolf

Danielle E. Bolf, Legal Assistant

Lapp, Libra, Thomson, Stoebner

& Pusch, Chartered

120 South Sixth Street, Suite 2500


612/338-5815




In re:


Debtors.1



ORDER

______________________________________________________________________________

This matter came before the court on the Motion for Relief from Automatic Stay filed by Wild

Horse at Woods Creek Condominium Association. Based on the files and proceedings,

IT IS ORDERED:

1. To the extent payment under certain insurance policies are subject to the automatic stay

of 11 U.S.C. §362(a), relief from the automatic stay is granted with respect to the settlement of the lawsuit

in the Superior Court of the State of Washington, County of Snohomish, Court File No. 08-2-07890-4,

captioned Wild Horse at Woods Creek Owners Association, Plaintiff, vs. Monroe Farms, LLC, et al.,

including payment by the following insurance companies on behalf of the debtors to Wild Horse at

Woods Creek Condominium Association:

a. Liberty Mutual Insurance Company in the amount of $387,370.35; and

b. Chartis Insurance Company in the amount of $86,129.65;

2. Notwithstanding Federal Rule of Bankruptcy Procedure 4001(a)(3), this order is effective

immediately.

Dated: ________________________________

Dennis D. O’Brien

United States Bankruptcy Judge







45206.


notice of hearing and motion for relief from · pdf filecase no. bky 11-45201, lyman...

Documents