Fields et al v. Hench's Country Liv'n Homes of Calera et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA
(1) CARTER FIELDS, an individual;
(2) HANNAH HIPPS, an individual,
Plaintiffs,
v.
(1) HENCH'S COUNTRY LIV'N HOMES
OF CALERA;
(2) JESSUP HOUSING;
(3) CROWN CONTRACTING, LLC;
(4) 21st MORTGAGE CORPORATION;
(5) AUSTIN RUPP, an individual;
(6) STEPHEN STUBBS, an individual,
Defendants,
and
(1) CROWN CONTRACTING, LLC;
(2) 21st MORTGAGE CORPORATION,
Cross-Claimants,
v.
(1) STEPHEN STUBBS, an individual;
(2) HENCH'S COUNTRY LIV'N HOMES
OF CALERA,
Cross-Defendants.
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Case No. 6:23-cv-372-JAR
OPINION AND ORDER
Before the Court are three motions for summary judgment filed on behalf of
Crown Contracting, LLC ("Crown") [Dkt. 161], Stephen Stubbs ("Stubbs") [Dkt. 171],
Hench's Country Liv'n Homes of Calera ("Hench's") and Austin Rupp ("Rupp") [Dkt.
200]. Plaintiffs Carter Fields ("Mr. Fields") and Hannah Hipps timely responded in
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opposition [Dkts. 173, 185, 210] and the moving defendants submitted reply briefs
[Dkts. 187, 188, 215].1
I. 	SUMMARY JUDGMENT STANDARD
Summary judgment should be granted "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome
of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id. At the summary judgment stage, a
court's task "is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 572 U.S.
650, 656 (2014) (quoting Anderson, 477 U.S. at 249). "In making that determination,
a court must view the evidence 'in the light most favorable to the opposing party.'" Id.
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, "[w]here
the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial." Matsushita Elec. Insu. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
II. 	UNDISPUTED MATERIAL FACTS
Plaintiffs entered into a contract with defendant Hench's for the purchase of a
new 	three-bedroom 	mobile 	home 	manufactured 	by 	defendant 	Jessup 	Housing
1 For clarity and consistency herein, when the Court cites to the record, it uses the pagination
and document numbers provided by CM/ECF.
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("Jessup") for a total price of $78,041.65. Defendant Rupp, a salesperson for Hench's,
facilitated the transaction. [Dkt. 200-8].
A. 	C ONTRACTUAL TERMS AND WARRANTIES
Under the sales contract, Hench's undertook to deliver the manufactured home
to plaintiffs' property and to block, level, and tie it down in accordance with state
code. 	[Dkt. 	200-8]. 	Hench's 	also 	provided 	plaintiffs 	with 	a 	"Home 	Warranty
Information Sheet," prepared on Hench's letterhead, which stated that the home was
covered by a one-year warranty, that cosmetic items would be corrected during the
"trim-out" process, and that any additional issues—such as electrical problems or
water leaks—would be addressed during the one-year warranty period. [Dkt. 210-8;
Dkt. 210-3 at 1-2 (35:12-36:12)]. During discovery, plaintiffs obtained a copy of
Jessup's written manufacturer's warranty. [Dkt. 210-10]. Corporate representatives
of both Hench's and Jessup testified that the Home Warranty Information Sheet does
not accurately describe the terms of Jessup's limited warranty. [Dkt. 210-3 at 2-3
(37:11-39:5); Dkt. 210-9 at 6-7 (121:4-122:1)].
B. 	DELIVERY
Hench's retained defendant Crown to carry out delivery and installation of
plaintiffs' home. 2 Crown, in turn, engaged defendant Stubbs to perform the physical
delivery. 3 [Dkt. 173 at 7, ¶ 3; Dkt. 187 at 2; Dkt. 185-6]. Plaintiffs elected to have
their 16-foot by 76-foot mobile home placed on a site pad previously prepared for a
2 Plaintiffs' direct interactions with Crown were limited to "passing conversations" during the
installation process. [Dkt. 161 at 3, ¶ 10; Dkt. 173 at 6].
3 Plaintiffs assert they did not realize Stubbs was an independent contractor, as opposed to a
Crown employee, until January 31, 2024. [Dkt. 185-12].
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16-foot by 48-foot tiny home. [Dkt. 161-2 at 6 (169:16-23)]. In connection with that
decision, plaintiffs signed (i) a waiver agreeing not to hold "Hench's and the
transport/set company" liable "for any settling issues that may occur due to the home
being set on a pad site built by the customer," [Dkt. 161-9], and (ii) a notice
acknowledging that the site had to be prepared in accordance with 24 C.F.R. § 3285
prior to installation, [Dkt. 161-10].
Stubbs delivered the home on September 14, 2021. [Dkt. 161-5]. Upon his
arrival, plaintiffs met Stubbs at the driveway to provide gate access and to observe
the 	delivery. 	[Dkt. 	171-4 	at 	3-4 	(12:19-13:14)]. 	Mr. 	Fields 	signed 	a 	document
acknowledging that the home was delivered "in the correct and agreed position." [Dkt.
171-3]. Plaintiffs first entered the home on September 15, 2021 and immediately
noticed that the flooring was unlevel. [Dkt. 173-2 at 3 (28:5-16); Dkt. 200-1 at 5 (28:5-
16), 20-21 (156:25-157:13); Dkt. 200-5 at 17 (296:2-12)]. Mr. Fields promptly emailed
Hench's stating that "the floors were messed up" and, according to plaintiffs, Rupp
responded in substance that they should allow the house to "get blocked up" and then
"see what it looks like." [Dkt. 173-2 at 3-4 (28:17-29:14), 7-8 (157:6-158:20)].4
C. 	INSTALLATION
Crown completed installation of the home on September 24, 2021. [Dkt. 161-1
at 23-24 (302:19-303:1)]. On that date, Mr. Fields signed a statement acknowledging
that Crown "leveled my house to my satisfaction, and any future relevels will be an
4 In a June 15, 2023 letter to Hench's, plaintiffs reported that "[f]rom the onset of our
possession of the manufactured home, there were noticeable issues with [its] structure and function."
[Dkt. 200-6 at 2]. Ten days later, in a June 25, 2023 email to HUD, plaintiffs asserted that "we have
been trying to get [Hench's] to fix our house since day 2 of having it". [Dkt. 200-7 at 2].
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additional cost." [Dkt. 161-4; Dkt. 173-1 at 6 (79:9-20)]. The parties agree that Crown
properly anchored the home, [Dkt. 161 at 5, ¶ 25; Dkt. 173 at 5], but they dispute
whether Crown properly installed the supporting piers. Plaintiffs received full
possession of, and moved into, the home on September 24, 2021.
D. 	R EMEDIATION AND R EPAIRS
Hench's 	submitted 	a 	"Factory 	Request" 	on 	or 	about 	January 	24, 	2022
identifying several issues with plaintiffs' home, including high floor joists, two loose
windows, ripped vinyl flooring, and glue residue on hallway flooring. [Dkt. 210-40].
In 	addition, 	a 	"Parts 	Request 	Form" 	was 	submitted 	on 	plaintiffs' 	behalf 	for
replacement materials, including three "2x6" floor joists, six interior window trims, a
"13.6x10ft" section of linoleum, a "30x68" window, six sheets of vinyl siding, and one
roll of window/door tape. [Dkt. 210-26].
In March and April 2022, Jessup conducted multiple inspections of the home
and recorded, among other findings: (i) four concrete block piers not in contact with
the frame; (ii) "crossover bars from eyebeams [being] bent from possibly hitting object
in transit";5 (iii) a loose window frame notwithstanding Hench' prior replacement of
the window; and (iv) damage to "lino-back door" attributed to an uneven floor joist.
[Dkt. 173-9; Dkt. 210-19; Dkt. 210-22; Dkt. 210-23; Dkt. 210-24]. Hench's completed
cosmetic repairs on or before June 24, 2022, [Dkt. 185-15 at 2], and plaintiffs signed
an undated acknowledgment stating those cosmetic repairs had been completed to
5 Plaintiffs' expert, Robert Chynoweth, testified that he has no opinions regarding whether
transport or delivery caused any of the problems he observed with plaintiffs' home. [Dkt. 171-10 at 2
(48:22-25), 15 (122:8-17)].
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their satisfaction, while noting four remaining problems: significant floor, decking,
and linoleum issues throughout the home; four leaking and loose windows; a noisy
roof; and needed ceiling repairs, [Dkt. 201-17].
On September 6, 2022, Jessup inspected the home and observed: (i) major
flooring, decking, and linoleum problems; (ii) a one-inch downward slope of the home;
(iii) 16-foot gaps between crossbars, rather than the expected 8-foot gaps, attributed
to Hench's "cutting the c[ross]bars out" without replacement;6 (iv) moisture damage
to window seals and trim resulting from window leakage; (v) ceiling damage; and (vi)
a "popping" kitchen floor. [Dkt. 210-25]. A Hench's representative later advised
plaintiffs, on October 4, 2022, that the company was attempting to secure a welder to
reinstall the crossmembers and intended to relevel the home before Jessup undertook
flooring 	repairs. 	[Dkt. 	210-30]. 	The 	record 	contains 	no 	indication 	that 	such
reinstallation of the crossmembers ultimately occurred.
A property inspection report obtained by plaintiffs in August 2023 concluded
that the roof was not well supported and deflected significantly when stepped on,
which was "likely due to damaged trusses and/or trusses being spaced too far apart."
[Dkt. 210-27 at 12 (marking roof condition as "fair")].7 The report further noted that
at least three supports "under the kitchen/living room area" had been removed, likely
in connection with joists being cut out, and that this area contained numerous raised
6 A corporate representative of Hench's testified that the crossmembers had been removed
"because they were bent," or because an agent of Hench's "thought they were bent." [Dkt. 210-3 at 8-9
(105:20-106:2)].
7 Plaintiffs' expert testified that Crown's installation did not cause any roof or flooring defects.
[Dkt. 200 at 5-6, ¶¶ 18-19; Dkt. 210 at 9, ¶¶ 18-19].
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and uneven zones. [Id. at 15 (marking framing condition as "poor")]. The inspector
also observed bowed or warped siding in several locations, "likely" attributable to the
removal of multiple crossmembers from the home's framing. [Id. at 13 (marking
siding condition as "fair")].
E. 	P ROCEDURAL H ISTORY
Plaintiffs commenced this action on September 18, 2023 in the District Court
of 	Bryan 	County, 	Oklahoma 	against 	defendants 	Hench's, 	Jessup, 	Crown, 	21st
Mortgage Corporation ("21 st Mortgage"), and Rupp. [Dkt. 2-3]. On October 27, 2023,
defendants removed the action to this Court pursuant to 28 U.S.C. § 1331. [Dkt. 2].
By express consent of all parties, [Dkt. 48], and pursuant to Fed. R. Civ. P. 73(a) and
28 U.S.C. § 636(c)(1), the undersigned U.S. Magistrate Judge exercises complete
jurisdiction over this action through and including trial and entry of a final judgment.
Plaintiffs amended their complaint ("Amended Complaint") on March 4, 2024,
adding defendant Stubbs and asserting seven causes of action: fraud and deceit
against Hench's, Rupp, and 21st Mortgage (Count I); breach of contract against
Hench's, Rupp and 21st Mortgage (Count II); breach of warranty against Hench's,
Jessup and 21st Mortgage (Count III); negligence against Hench's, Jessup, Crown,
Stubbs 	and 	21st 	Mortgage 	(Count 	IV); 	violations 	of 	the 	Oklahoma 	Consumer
Protection Act ("OCPA"), 15 O.S. § 751 et seq., against Hench's, Rupp, Jessup, Crown,
Stubbs and 21st Mortgage (Count V); unjust enrichment against Hench's, Rupp,
Jessup and 21st Mortgage 8 (Count VI); and violations of the Magnusson Moss
8 On March 24, 2025, the Court granted plaintiffs' request to voluntarily dismiss Count VI as
asserted against 21 st Mortgage. [Dkt. 166].
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Warranty Act, 15 U.S.C. § 2301 et seq., against Hench's, Jessup and 21st Mortgage
(Count VII). [Dkt. 56, ¶¶ 62-113].
By Order entered September 18, 2025, the Court granted in part Jessup's
motion to dismiss, dismissing Count V as to Jessup and dismissing Count III insofar
as it alleged breach of implied warranty of fitness for a particular purpose against
Jessup. [Dkt. 196]. By Order entered January 13, 2026, the Court granted in part
Hench's and Rupp's joint motion for judgment on the pleadings, dismissing Count VII
as to both defendants and dismissing Count III insofar as it alleged breach of implied
warranty of fitness for a particular purpose against Hench's. [Dkt. 245]. That same
day, the Court granted 21st Mortgage's motion to bifurcate. [Dkt. 247].
III. 	DISCUSSION
The Court first addresses the moving defendants' contention that plaintiffs'
negligence claims are barred by the applicable statute of limitations. The Court then
considers the merits of defendants' arguments seeking summary judgment on
plaintiffs' claims of negligence, fraud and deceit, breach of contract, breach of
warranty, and violations of the OCPA.
A. 	S TATUTE OF LIMITATIONS
Plaintiffs' negligence claims against Crown, Stubbs, and Hench's are subject
to a two-year statute of limitations. See 12 O.S. § 95(3). The statute is subject in
certain instances to a "discovery rule," which provides that the limitations period does
not begin to run until the date the plaintiff knew or should have known of the injury.
See, e.g., Sam Roberts Noble Found., Inc. v. Vick ("Vick"), 1992 OK 140, ¶ 22, 849 P.2d
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619, 624; Reynolds v. Porter, 1988 OK 88, ¶ 6, 760 P.2d 816, 820 n.9; Funnell v. Jones,
1985 OK 73, ¶ 6, 737 P.2d 105, 107. The burden of pleading and proving the
applicability of the affirmative defense of statute of limitations generally rests on the
defendant. Moneypenney v. Dawson, 2006 OK 53, ¶ 2, 141 P.3d 549, 551. Once the
bar is established, the plaintiff bears the burden of proving the statute of limitations
should be tolled. Beatty v. Scott, 1961 OK 140, ¶ 5, 362 P.2d 699, 701. Here, plaintiffs
do not dispute that a two-year limitations period governs their negligence theories.
Under Count IV, plaintiffs allege that Stubbs failed to exercise reasonable care
in delivering the home, that Crown failed to exercise reasonable care in installing the
home, and that Hench's failed to exercise reasonable care in repairing the home. [Dkt.
56, ¶¶ 91-95]. It is undisputed that Stubbs delivered plaintiffs' home on September
14, 2021, that plaintiffs observed the flooring appeared "lumpy and uneven" on
September 15, 2021, that Crown completed installation of the home on September 24,
2021, that plaintiffs initiated this action on September 18, 2023, and that plaintiffs
added Stubbs to this action on March 4, 2024.
1. 	Crown's Motion for Summary Judgment
Crown contends plaintiffs' negligence claim is barred by the applicable two-
year statute of limitations because they admittedly discovered the complained-of
flooring defects more than two years before this action was filed. [Dkt. 161 at 7 (citing
12 O.S. §§ 92, 95)]. Crown relies on plaintiffs' testimony affirming that, on September
15, 2021, they "noticed issues beyond anything a simple cosmetic trim-out could cure,"
[Dkt. 161-2 at 2-3 (156:25-157:10); Dkt. 161-6 at 9-10 (306:21-307:7)]; Mr. Fields'
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testimony that he immediately emailed defendant Rupp that the floors were "messed
up"; and plaintiffs June 15, 2021 letter to Hench’s stating that "[f]rom the onset of
our possession … there were noticeable issues with the structure and function of the
home," [Dkt. 171-8]. Applying Vick, Crown argues that the two-year limitations
period commenced when plaintiffs first observed these manifest defects on September
15, 2021. [Dkt. 187 at 5-7].
Plaintiffs 	respond 	that 	their 	negligence 	claim 	is 	timely 	because 	Crown
allegedly caused or exacerbated the floor damage when it blocked, leveled, and tied
down the home on September 24, 2021. They distinguish the initial "unevenness"
observed on September 15 from the more serious conditions they contend existed after
setup, and plaintiffs emphasize that Rupp advised them the floors would "even out"
after installation [Dkt. 173 at 13 (citing Dkt. 173-2 at 3-4 (28:13-29:12)], which they
say reasonably postponed discovery of any non-cosmetic structural defect. Plaintiffs
further rely on internal Jessup documents attributing floor problems to loose piers
and bent crossover bars [Dkt. 173-7], and contend they could not have discovered such
sub-structure conditions until later inspections and contractor communications.
Thus, according to plaintiffs, the discovery rule should not run against those aspects
of their claim as of the September 15 delivery date.
Under Oklahoma law, a negligence claim accrues when the plaintiff knew or,
in the exercise of reasonable diligence, should have known of the resulting injury, not
when the plaintiff identifies the precise mechanism or responsible actor. See Vick, ¶¶
22-25, 840 P.2d at 624-25; Weathers v. Fulgenzi, 1994 OK 119, ¶¶ 13-15, 884 P.2d
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538, 541. Strictly applied, this standard would permit Crown to argue that any
negligence theory tied to transportation and delivery is time-barred. On the present
record, however, the Court finds there is a genuine dispute of material fact as to
whether alleged structural and installation-related damage occurring on September
24, 2021 constitutes a distinct injury that accrued on that later date, thereby
preserving plaintiffs' setup-related negligence theory against Crown within the two-
year limitations period.
2. 	Stubbs' Motion for Summary Judgment
Stubbs maintains that plaintiffs' negligence claim against him accrued no later
than September 15, 2021 and that, because he was not named as a defendant until
March 4, 2024, the claim is untimely under the governing two-year limitations period.
[Dkt. 171 at 8-10]. Plaintiffs respond that their amendment adding Stubbs as a party
"relates back" to the original state-court petition filed on September 18, 2023 and
should be treated as having been filed within the limitations period. [Dkt. 185 at 16].
Under the Federal Rules of Civil Procedure, an amendment may relate back to
the date of the original pleading when:
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—
in the original pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the 	period 	provided 	by 	Rule 	4(m) 	for 	serving 	the 	summons 	and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
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(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party's identity.
Fed. R. Civ. P. 15(c)(1)(B)-(C); Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 547
(2010). Here, Stubbs was served with the summons and complaint more than 90 days
after the original September 18, 2023 filing. See [Dkt. 63 at 2]. He therefore did not
receive notice of this action within the period prescribed by Rule 4(m). As such, the
amendment adding Stubbs does not "relate back" to the original petition. See Fed. R.
Civ. P. 4(m).9
Moreover, controlling precedent makes clear that Rule 15(c)'s relation-back
doctrine permits correction of a misnamed defendant but does not authorize a wholly
new defendant once the limitation period has run. See Graves v. Gen. Ins. Corp., 412
F.2d 583, 585-86 (10th Cir. 1969). Under Oklahoma law, the negligence claim against
Stubbs accrued when plaintiffs first learned of damage to their home, even if the
precise source or cause of that damage remained uncertain. See Vick, ¶¶ 28-29, 840
P.2d at 625-26. Plaintiffs do not dispute that they first discovered damage on
September 15, 2021 but argue they did not know, and had no reason to know, that
Stubbs' transportation and delivery contributed to that damage until a Jessup
representative opined in mid-April 2022 that the crossbars were bent "due to transit."
[Dkt. 185-10]. That argument conflates knowledge of injury with knowledge of
causation. For accrual purposes, the critical date is when plaintiffs became aware of
9 See also, e.g., Garvin v. City of Philadelphia, 354 F.3d 215, 221 (3d Cir. 2003) (newly-added
defendants must receive "notice of the institution of the action within the Rule 4 service period
following the filing of the action"); Barrow v. Weatherford Police Dep't, 66 F.3d 466, 469 (2d Cir. 1995)
(same); Lee v. Airgas-Mid South, Inc., 793 F.3d 894, 898 (8th Cir. 2015) (same).
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the injury itself, not when they completed their investigation or assembled evidence
to support each element of the claim. See Dummar v. Lummis, 543 F.3d 641, 621
(10th Cir. 2008). Plaintiffs admittedly discovered their injury on September 15, 2021
and, unlike Crown, the record before the Court contains no evidence or allegations that
Stubbs aggravated or contributed to any damage after that date.
Nor does plaintiffs' asserted lack of awareness of Stubbs' identity transform
this into a "mistake" within the meaning of Rule 15(c)(1)(C)(ii). The Tenth Circuit has
squarely held that a plaintiff's ignorance of the intended defendant's identity is not a
"mistake concerning the identity of the proper party" for relation-back purposes.
Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); see also Robert L. Kroenlein
Tr. Ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1279 (10th Cir. 2014). Because the
amendment adding Stubbs does not relate back to the original filing date, and
because plaintiffs first asserted their negligence claim against him more than two
years after they discovered any injury attributable to Stubbs, the Court finds that the
claim is barred under 12 O.S. § 95 as untimely. Accordingly, Stubbs is entitled to
summary judgment on plaintiffs' negligence claim.
3. 	Hench's Motion for Summary Judgment
Hench's asserts that plaintiffs' negligence claim accrued no later than when
plaintiffs first entered the home on September 15, 2021, observed "lumpy and
uneven" flooring, and emailed Rupp that the floor was "messed up." [Dkt. 200 at 11].
In Hench's view, plaintiffs' subsequent written complaints reinforce that the injury
was apparent from the outset, including a June 2023 letter to HUD stating that
"[f]rom the onset of our possession … there were noticeable issues with the structure
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and function of the home" [Dkt. 200-6], and an email reporting that plaintiffs "have
been trying to get them to fix our house since day 2 of having it." [Dkt. 200-7]. Relying
on Vick, Hench's argues these admissions establish inquiry notice of damage by
September 15, such that the two-year limitations period expired before this action
was filed, rendering the negligence claim untimely. [Dkt. 200 at 9-10].
Plaintiffs correctly observe that Vick arose in the context of a completed
construction contract and gradual recognition of defects over several years, without
any allegation that the defendant affirmatively reassured the owner that identified
problems would be cured at a later stage of performance. Here, by contrast, the record
includes (i) pre-installation advice from Rupp that the floor issues would resolve once
the home was properly set, and (ii) later crossmember work by Hench's that plaintiffs
allege independently damaged the frame and worsened floor and roof conditions. See
[Dkts. 210-4, 210-25, 210-27]. Those circumstances materially distinguish this case
from 	Vick 	and 	focus 	the 	limitations 	inquiry 	on 	when 	a 	reasonably 	prudent
homeowner, in light of those assurances and subsequent acts, should be deemed to
have 	"sufficient 	information" 	of 	compensable 	structural 	injury 	as 	opposed 	to
temporary or remediable irregularities. Viewing the evidence in the light most
favorable to plaintiffs, the Court concludes that a reasonable jury could find that
Hench's June 2022 crossmember work caused a distinct injury within the two-year
limitations period.
B. 	NEGLIGENCE | C OUNT IV
The essential elements of negligence under Oklahoma law are: (1) a duty on
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the part of the defendant to protect the plaintiff from injury; (2) a defendant's failure
to perform its duty to the plaintiffs; and (3) injury to the plaintiff proximately caused
by the defendant's failure to exercise the duty of care. Berman v. Laboratory Corp. of
Am., 2011 OK 106, ¶ 16, 268 P.3d 68, 72. Whether a duty exists is a threshold legal
question for the court. McGehee v. Forest Oil Corp., 908 F.3d 619, 624 (10th Cir. 2018)
(applying Oklahoma law).
The existence of duty depends on the relationship of the parties and the general
risk involved in the common undertaking, Wofford v. E. State. Hosp., 1990 OK 77, ¶
10, 795 P.2d 516, 519, and can be based upon a contract, a special relationship, or
general negligence principals, Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 12,
160 P.3d 959, 964. In Lowery, the Oklahoma Supreme Court declared that a duty
arises "whenever the circumstances place [one] in a position towards [another] person
such that an ordinary prudent person would recognize that if he or she did not act
with ordinary care and skill in regard to the circumstances, he or she may cause
danger or injury to the other person." Id., ¶ 13, 160 P.3d at 964. The most important
consideration is "foreseeability of harm to the plaintiff." Id.
However, "[a] foreseeable risk of harm alone is not enough to establish a duty
of care." McGehee, 908 F.3d at 625. Oklahoma courts use this formulation to
determine "the zone of risk." Id. Within that zone, a "defendant owes a duty of care
to all persons who are foreseeably endangered by his conduct with respect to all risks
which make the conduct unreasonably dangerous." Lowery, ¶ 14, 160 P.3d at 964;
Wofford, ¶ 11, 795 P.2d at 519.
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1. 	Crown's Motion for Summary Judgment
It 	is 	undisputed 	that 	Hench's 	retained 	Crown 	to 	fulfill 	its 	contractual
obligation to "deliver, block, level, and tie down" plaintiffs' home in accordance with
state code and that Crown, in turn, retained Stubbs to perform the physical delivery.
Under Oklahoma law, Crown's duty to plaintiffs as third persons "is to be measured
by the nature and scope of the contractor's contractual undertaking." Copeland v.
Admiral Pest Control Co., 1996 OK CIV APP 119, ¶ 9, 933 P.2d 937, 939 (citing Qualls
v. U.S. Elevator Corp., 1993 OK 135, ¶ 12, 863 P.2d 457, 462). Thus, Crown owed
plaintiffs a duty to perform the blocking and leveling of the home with reasonable
care and in compliance with applicable code.10
Plaintiffs contend that Crown breached its duty in the course of the home's
installation. They specifically rely on the expert report of Robert Chynoweth, who
observed that "various concrete block (CMU) supports" beneath the home were "not
in contact with the steel I-beam frame rails." [Dkt. 91 at 4, 18-19]. Crown responds
that Chynoweth did not ascribe any specific defect to the fact that certain piers were
not in contact with the frame. Chynoweth's report, however, expressly links plaintiffs'
uneven flooring to deficiencies in the CMU blocking configuration. [Id. at 22-24, 26].
Viewing this evidence in the light most favorable to plaintiffs, the Court concludes
that a reasonable jury could find that Crown failed to exercise reasonable care in
blocking and leveling the home, and that such failure contributed to the uneven
10 Because Crown retained Stubbs to deliver the home, and plaintiffs' negligence claim against
Stubbs is time-barred, any negligence theory premised on Crown's alleged shortcomings in the home's
transport and delivery is likewise precluded as a matter of law. In addition, the parties do not dispute
that Crown properly anchored, or "tied down," the home. See [Dkt. 161 at 5, ¶ 25; Dkt. 173 at 5]
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flooring of which plaintiffs complain. Crown is therefore not entitled to summary
judgment on plaintiffs' negligence claim.
2. 	Hench's Motion for Summary Judgment
Hench's seeks to confine its obligations to the written sales contract, asserting
that any duty owed to plaintiffs arose solely from the requirement that it "deliver,
block, level, and tie down" the home in accordance with state code. [Dkt. 200-8]. See
Doyle v. Kelly, 1990 OK 119, ¶ 3, 801 P.2d 717, 718 (recognizing an implied covenant
of good faith and fair dealing in every Oklahoma contract). Plaintiffs, by contrast,
identify duties sounding in negligence that they contend extend beyond the implied
covenant of good faith, arguing that Hench's owed them a duty (i) to exercise
reasonable care in delivering and installing the home, (ii) to perform remedial and
repair work on the home in a reasonably careful manner, and (iii) to ensure that the
completed installation was inspected by a certified installation inspector as required
by 	state 	regulation. 	See 	OAC 	765:37-8-1(a) 	("All 	new 	manufactured 	home
installations shall be inspected by a certified installation inspector.").11
Under Oklahoma law, a party who undertakes to perform services that carry
a foreseeable risk of physical harm owes a common law duty to exercise reasonable
care, independent of its contractual obligations. See Marshall v. City of Tulsa, 2024
OK 78, ¶¶ 23–25, 558 P.3d 1220, 1228–29; Flint Ridge Dev. Co. v. Benham
-Blair
11 In light of the Court's separate conclusions that any negligence theory based on transport
and delivery is foreclosed and that Stubbs cannot be held liable in negligence due to the applicable
limitations period, plaintiffs' negligence claim against Hench's centers on its own post-installation
conduct—particularly the June 2022 removal and non-replacement of steel crossmembers under the
home—and Hench's role, if any, in ensuring a proper, code-compliant installation and inspection.
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Affiliates, Inc., 1989 OK 48, ¶ 11, 775 P.2d 797, 801. Applying these principles, the
Court concludes that plaintiffs have alleged a cognizable duty distinct from the
implied covenant of good faith. Once Hench's undertook to coordinate and perform
work on the structural components of the home, including directing the removal of
steel crossmembers from the permanent chassis, it owed plaintiffs a duty to perform
that work with reasonable care so as not to compromise the structural integrity of the
home or render it non-compliant with applicable codes. Plaintiffs' additional theory
that Hench's had a duty to ensure inspection by a certified installation inspector
derives from a regulatory framework and Hench's role as a retailer. To the extent
Hench's undertook to complete the installation and deliver a code-compliant home,
that undertaking supports a duty in negligence to take reasonable steps to secure the
required inspection.12
Accordingly, although Oklahoma law does not allow plaintiffs to recast every
alleged breach of contract as a tort claim, it does recognize a separate duty of
reasonable care where, as here, a retailer voluntarily undertakes structural work on
a 	manufactured 	home 	and 	assumes 	responsibilities 	tied 	to 	code-compliant
12 While Hench's has submitted a statement from a certified inspector reflecting a post-
installation inspection of the home, plaintiffs contend that Hench's withheld the inspector's statement
in discovery based on a work-product designation, obtained the statement without notice to plaintiffs,
and failed to identify the statement on any exhibit list. See [Dkt. 210 at 9-10, ¶ 28]. Rule 26 requires
a party to disclose and supplement the information and documents it may use to support its claims or
defenses, and Rule 37(c)(1) generally bars the use of information not disclosed as required by Rule 26
"to supply evidence on a motion," unless the failure is substantially justified or harmless. The Tenth
Circuit has instructed district courts to consider whether a nondisclosure is substantially justified or
harmless by evaluating factors such as surprise to the opposing party, ability to cure the prejudice,
disruption of trial, and the importance of the evidence. Woodworker’s Supply, Inc. v. Principal Mut.
Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). Applying these principles here, and in the absence of
any showing by Hench's that its nondisclosure of the inspector's statement was substantially justified
or harmless, the Court declines to consider said statement at the summary judgment stage.
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installation and inspection. On this record, plaintiffs' negligence claim against
Hench's, insofar as it rests on those independent undertakings and not merely to
alleged nonperformance of contractual promises, alleges breach of a cognizable duty
under Oklahoma law and is not subject to summary judgment on duty-based grounds.
C. 	FRAUD AND DECEIT | C OUNT I
Plaintiffs assert claims against Hench's and Rupp for fraud and deceit,
encompassing both actual and constructive fraud. See 15 O.S. § 58 (defining "actual
fraud"); 15 O.S. § 59 (defining "constructive fraud"); 76 O.S. § 3 (defining "deceit").
While plaintiffs must ultimately prove fraud by clear and convincing evidence, "it is
not necessary that evidence of fraud be 'clear and convincing' to escape a demurrer to
the evidence" but "there must be evidence of each element of fraud presented before
the issue may be submitted to the jury." Specialty Beverages, LLC v. Pabst Brewing
Co., 537 F.3d 1165, 1181 (10th Cir. 2008) (applying Oklahoma law). The existence of
fraud, given evidence for each element, is a question of fact for the jury. Id.
1. 	Actual Fraud
Actual fraud is "the intentional misrepresentation or concealment of a fact,
with an intent to deceive, which substantially affects another person." Croslin v.
Enerlex, Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1045. To recover under a theory of
actual fraud, plaintiffs must prove:
(1) the defendant made a material representation; (2) the representation
was false; (3) defendant made the representation when he knew the
representation was false, or made the representation as a positive
assertion recklessly, without any knowledge of its truth; (4) defendant
made the representation with the intention that it should be acted upon
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by plaintiff; (5) plaintiff acted in reliance on the representation; and (6)
plaintiff suffered injury as a result of the representation.
Lillard v. Stockton, 267 F.Supp.2d 1081, 1112 (citing McCain v. Combined Commc'n
Corp. of Okla., Inc., 1998 OK 94, ¶ 11, 975 P.2d 865, 867).
Plaintiffs maintain that Hench's, through Rupp, affirmatively represented
either that Hench's itself would provide a comprehensive one-year warranty or that
Jessup's manufacturer's warranty was coextensive with the coverage described in the
Home 	Information 	Warranty 	Sheet 	(the 	"Sheet"). 	They 	further 	contend 	these
representations were made to induce their purchase of the home and that they relied
on such assurances in electing to contract with Hench's. In support, plaintiffs cite
testimony that Rupp stated any problems arising within the first year would be
corrected, that "the warranty" was a central selling point of Hench's homes, and that,
prior to the sale, he furnished the Sheet describing a one-year warranty covering
trim-out cosmetic items as well as "any other issues within the first year," to be
administered through Hench's service line. [Dkt. 210 at 28-31].
Hench's and Rupp counter that plaintiffs cannot establish any knowingly false
representation, characterizing plaintiffs' understanding of warranty coverage as an
"assumption" made notwithstanding their written acknowledgment that there were
"no unwritten oral agreements" between the parties. They further assert that any
warranty obligation arises, if at all, solely under Jessup's limited manufacturer's
warranty. The record, however, reflects that the sales contract states that plaintiffs
"received a separate written warranty from [Hench's] on the listed manufactured
home," [Dkt. 201-14], and that Hench's in fact provided plaintiffs with the Sheet—
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drafted by Hench's on company letterhead—purporting to describe the scope of the
one-year warranty coverage, [Dkt. 210-8; Dkt. 210-3 at 1-2 (35:12-36:12)]. Corporate
representatives of both Hench's and Jessup concede the Sheet does not accurately
describe Jessup's limited warranty, and Hench's now denies providing any warranty
at all.
Viewed in the light most favorable to plaintiffs, this evidence would permit a
reasonable jury to find that Rupp and Hench's made material representations
concerning the existence and scope of a one-year warranty; that such representations
were false, or at least made recklessly without adequate knowledge of their truth;
that the representations were intended to induce plaintiffs to purchase the home;
that plaintiffs justifiably relied on them in deciding to contract with Hench's; and that
plaintiffs suffered pecuniary loss when they were left with a defective home that was
not repaired as represented. Under these circumstances, Hench's and Rupp are not
entitled to summary judgment on plaintiffs' actual-fraud theory.
2. 	Constructive Fraud
Constructive fraud is "a breach of a legal or equitable duty to the detriment of
another, which does not necessarily involve any moral guilt, intent to deceive, or
actual dishonesty of purpose." Croslin, ¶ 12, 308 P.3d at 1045-46. To recover under a
theory of constructive fraud, plaintiffs must prove that:
(1) the defendant owed plaintiff duty of full disclosure, whether as part
of general fiduciary duty or as duty arising once defendant voluntarily
chose to speak to plaintiff about particular subject matter, (2) the
defendant misstated fact or failed to disclose fact to plaintiff, (3) the
defendant's misstatement or omission was material, (4) plaintiff relied
on defendant's material misstatement or omission, and (5) plaintiff
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suffered damages as a result of defendant's material misstatement or
omission.
Specialty Beverages, 537 F.3d at 1180-81.
In the alternative to their actual-fraud theory, plaintiffs assert that, even
absent an intent to deceive, Hench's and Rupp breached duties owed to retail
purchasers by mischaracterizing the scope of the warranty and failing to disclose the
true limitations of Jessup's coverage, thereby securing an unfair advantage through
plaintiffs' 	misunderstanding. 	They 	point 	to 	evidence 	that 	Hench's 	and 	Rupp
undertook to speak regarding warranty coverage and financing terms, supplied the
generic Sheet that did not conform to Jessup's actual warranty, failed to provide or
explain Jessup's written warranty before the sale, and omitted any mention of a
substantial origination fee despite maintaining a close, ongoing relationship with 21 st
Mortgage. See [Dkt. 210 at 28-31].
Under Oklahoma law, a party that chooses to speak on a subject material to
the transaction assumes a duty not to mislead by partial disclosure or by omitting
qualifying information, and breach of that duty may give rise to constructive fraud.
See Sutton v. David Stanley Chevrolet, Inc., 2020 OK 87, ¶ 16, 475 P.3d 847, 855.
Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could
find that Hench's and Rupp owed a duty of full and fair disclosure concerning
warranty coverage and financing terms, that their statements and omissions created
a materially misleading impression, that plaintiffs relied on those impressions in
entering the transaction, and that plaintiffs incurred damages as a result. Summary
judgment on plaintiffs' constructive-fraud theory is therefore unwarranted.
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D. 	B REACH OF C ONTRACT | C OUNT II
To prevail on their breach of contract claims against Hench's and Rupp,
plaintiffs must show (1) formation of a contract, (2) breach of that contract, and (3)
damages proximately resulting from the breach. See Digital Design Grp., Inc. v. Info.
Builders, Inc., 2001 OK 21, ¶ 33, 24 P.3d 834, 843. The existence of a contract in this
case is undisputed; the parties instead contest the scope of Hench's contractual duties
and whether the record contains evidence of breach and resulting damages.
As a threshold matter, defendants argue that Rupp was not a contracting party
and signed the purchase agreement solely in his capacity as a salesperson for
Hench's, such that he cannot be held personally liable for any alleged breach. The
Court agrees. Under Oklahoma agency principles, when an agent contracts on behalf
of a fully disclosed principal and the contract facially reflects that the agent is acting
in a representative capacity, the principal—not the agent—is bound, absent a clear
indication that the agent intended to assume personal contractual liability. Shebester
v. Triple Crown Insurers, 1992 OK 20, ¶ 16 & n.21, 826 P.2d 603, 609 (quoting
Restatement (Second) of Agency § 320). The sales contract here identifies Hench's as
the seller, denotes Rupp's role as a salesperson, and contains no language suggesting
that Rupp undertook personal contractual obligations. Accordingly, Rupp is entitled
to summary judgment on Count II.
Hench's further contends that its contractual duties were limited and that it
fully performed those obligations as a matter of law. Viewing the evidence in the light
most favorable to plaintiffs, however, the Court concludes there is a genuine dispute
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of material fact as to whether Hench's performance of its obligation to "deliver, block,
level, and tie down to state code one time only" was deficient. Plaintiffs have adduced
evidence that the home may have been supported by loose or non-contacting piers
and that subsequent modifications by Hench's to the home's structural components
allegedly worsened floor and frame deflections. On this record, a reasonable jury
could find that Hench's failed to perform its contractual duties in a workmanlike,
code-compliant manner and that plaintiffs suffered damages as a result. Hench's is
therefore not entitled to summary judgment on Count II.
E. 	B REACH OF WARRANTY | C OUNT III
Under Oklahoma law, a breach of warranty claim requires proof of (1) the
existence of a warranty, (2) a breach of that warranty, and (3) damages proximately
caused by the breach. See Collins Radio Co. of Dallas, Tex. v. Bell, 1980 OK CIV APP
57, ¶ 29, 623 P.2d 1039, 1052. As noted, Hench's maintains that no warranty ever
existed between it and plaintiffs. Viewing the evidence in the light most favorable to
plaintiffs, however, the Court concludes that a genuine dispute of material fact exists
as to whether Hench's issued, and subsequently breached, an express one-year
warranty that became part of the parties' overall agreement. In particular, the sales
contract's acknowledgment of a "separate written warranty," the terms reflected in
the Sheet, and Hench's later communications and conduct in responding to plaintiffs'
service requests could support a finding that such a warranty was both extended and
violated. Accordingly, Hench's is not entitled to summary judgment on Count III.
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F. 	V IOLATIONS OF THE OCPA | C OUNT V
"The OCPA was enacted to protect consumers from unfair and deceptive trade
practices 	and," 	to 	that 	end, 	"provides 	a 	private 	right 	of 	action 	for 	aggrieved
consumers." Williams v. CSC Credit Servs., Inc., No. CIV-07-255-CVE-FHM, 2007
WL 1959219 at *1 (N.D. Okla. June 29, 2007) (citing Patterson v. Beall, 2000 OK 92,
¶ 30, 19 P.3d 839, 846). To prevail under the OCPA, a plaintiff must establish:
(1) that the defendant engaged in an unlawful practice as defined by 15
O.S. § 753; (2) that the challenged practice occurred in the course of the
defendant's business; (3) that the plaintiff, as a consumer, suffered an
injury in fact; and (4) that the challenged practice caused the plaintiff's
injury.
Patterson, ¶ 30, 19 P.3d at 846. The first step in the analysis is to identify which
provisions of § 753 plaintiffs invoke. Although Count V is pled against Crown, Stubbs,
Hench's and Rupp,13 the Amended Complaint expressly alleges that "Hench's and
Rupp" engaged in a series of unfair and deceptive practices under § 753, and more
generally 	alleges 	that 	"Defendants" 	failed 	to 	resolve 	who 	was 	responsible 	for
damaging the home and failed to disclose that damage to plaintiffs. [Dkt. 56, ¶¶ 99,
99(i)-(vi), (viii)-(ix)]. In their summary judgment briefing, plaintiffs clarify that they
proceed against Crown and Stubbs under §§ 753(7) and (21).
Section 753(7) makes it unlawful in the course of business to represent
knowingly, or with reason to know, that the subject of a consumer transaction is
13 Although Hench's and Rupp challenge Count V in their reply brief, they raise no such
arguments in their motion for summary judgment. The Court declines to consider arguments raised
for the first time in a reply because doing so would deprive plaintiffs of a fair opportunity to respond.
See United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) ("[A]rguments raised for the first time
in a reply brief are generally deemed waived.").
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original or new when it is in fact reconditioned, reclaimed, used, or secondhand. 15
O.S. § 753(7). Section 753(21) makes it unlawful in the course of business to commit
an "unfair or deceptive trade practice as defined in Section 752 of this title." 15 O.S.
§ 753(21). Plaintiffs rely on § 752(13), which defines "deceptive trade practice" as a
misrepresentation, omission, or other practice that has deceived or could reasonably
be expected to deceive or mislead a person to that person's detriment. 15 O.S. §
752(13). 	Read 	together, 	these 	provisions 	require, 	at 	minimum, 	a 	qualifying
representation 	or 	omission 	by 	the 	defendant 	in 	connection 	with 	a 	"consumer
transaction" as defined in § 752(2).
Here, plaintiffs concede that Crown and Stubbs did not advertise, offer, sell, or
contract with them for the home and that plaintiffs did not pay either defendant to
deliver or install the same. Plaintiffs likewise identify no direct representation by
Crown or Stubbs regarding the home's age, condition, or characteristics that induced
them into any consumer transaction with these defendants. Instead, plaintiffs
attempt to bring Crown and Stubbs within the OCPA by analogy to Robinson v.
Sunshine Homes, Inc., 2012 OK CIV APP, 291 P.3d 628, and by characterizing the
alleged failure to identify or disclose transit and installation damage as a "deceptive
omission." Robinson, however, involved damages at the manufacturer-delivery stage
within a broader sales relationship and, after discovery, the plaintiff dismissed her
claim against the delivery/installation company. Id., ¶ 10 & n.3, 291 P.3d at 632. Even
assuming that a transporter or installer could, in some circumstances, owe disclosure
duties cognizable under the OCPA, plaintiffs have not produced evidence that Crown
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or Stubbs knew of specific damage and concealed it from them, or that any such
nondisclosure—as opposed to design or manufacturing defects—proximately caused
their claimed economic loss.14
Accordingly, plaintiffs have not created a genuine dispute of material fact that
Crown or Stubbs engaged in an "unlawful practice" directed to them in the context of
a "consumer transaction," or that any conduct by these defendants in their limited
subcontractor roles caused plaintiffs compensable injury under the OCPA. On this
record, no reasonable jury could find the essential elements of an OCPA claim
satisfied. Crown and Stubbs are therefore entitled to summary judgment on plaintiffs'
OCPA claims.
IV. 	CONCLUSION
IT IS THEREFORE ORDERED that the motion for summary judgment filed
by Crown Contracting, LLC [Dkt. 161] is hereby GRANTED in part and DENIED
in part.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Stephen Stubbs [Dkt. 171] is hereby GRANTED.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Hench's and Rupp [Dkt. 200] is hereby GRANTED in part and DENIED in part.
Following entry of this Order, the status of each operative claim and crossclaim in
this action is as follows:
14 Plaintiffs alternatively assert that they cannot fully address defendants' challenges to Count
V without additional discovery. The Court finds that, even with further development of the record,
plaintiffs still would be unable to identify a qualifying representation or omission by Crown or Stubbs
made in connection with a "consumer transaction."
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 	Count I, alleging fraud and deceit against Hench's and Rupp remains
pending. Count I, as asserted against 21st Mortgage, remains bifurcated
pursuant to the Court's prior Order. [Dkt. 247].
 	Count II, alleging breach of contract against Hench's, remains pending.
Count II, as asserted against Rupp, is dismissed pursuant to Fed. R. Civ. P.
56. Count II, as asserted against 21st Mortgage, remains bifurcated pursuant
to the Court's prior Order. [Dkt. 247].
 	Count III, insofar as it alleges breach of implied warranty of fitness for
a particular purpose against Hench's and Jessup, is dismissed in accordance
with the Court's prior Orders. [Dkts. 196, 245]. Count III, as asserted against
21st Mortgage, remains bifurcated pursuant to the Court's prior Order. [Dkt.
247].
 	Count IV, as asserted against Stubbs, is dismissed pursuant to Fed. R.
Civ 56. Count IV, as asserted against Crown, Hench's and Jessup, remains
pending. Count IV, as asserted against 21st Mortgage, remains bifurcated
pursuant to the Court's prior Order. [Dkt. 247].
 	Count V, alleging violations of the OCPA against Crown and Stubbs, is
dismissed pursuant to Fed. R. Civ. P. 56. Count V, as asserted against Jessup,
is dismissed in accordance with the Court's prior Order. [Dkt. 196]. Count V,
as asserted against Hench's and Rupp, remains pending. Count V, as asserted
against 21st Mortgage, remains bifurcated pursuant to the Court's prior Order.
[Dkt. 247].
 	Count VI, alleging unjust enrichment against Hench's, Rupp, Jessup
and 21st Mortgage, is dismissed in accordance with the Court's prior Orders.
[Dkts. 166, 196, 245].
 	Count VII, alleging violations of the Magnuson Moss Act against
Hench's and Jessup, remains pending. Count VII, as asserted against 21st
Mortgage, remains bifurcated pursuant to the Court's prior Order. [Dkt. 247].
 	Crown's 	crossclaim 	against 	Stubbs 	for 	negligence 	and 	conditional
indemnity remains pending.
 	21st Mortgage's crossclaims against Hench's for contractual indemnity,
implied indemnity, and breach of contract remain bifurcated pursuant to the
Court's prior Order. [Dkt. 247].
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IT IS SO ORDERED this 23rd day of March, 2026.
_______________________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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