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

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, ) Case No. 6:23-cv-372-JAR

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. )

OPINION AND ORDER

Before the Court is the Motion to Dismiss Plaintiffs' Fourth, Fifth, and Sixth

Causes of Action and Part of Their Third Cause of Action [Doc. 156] filed on behalf of

defendant Jessup Housing ("Jessup") pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs

Carter Fields ("Fields") and Hannah Hipps ("Hipps") timely responded in opposition

[Dkt. 157] and Jessup submitted a reply brief [Dkt. 159].

I. PLAINTIFFS' ALLEGATIONS

On September 17, 2021, plaintiffs entered a written contract with defendant

Hench's Country Liv'n Homes of Calera ("Hench's") for the purchase of a new three-

bedroom mobile home manufactured by defendant Jessup. Defendant Austin Rupp

("Rupp"), a salesperson for Hench's, facilitated the transaction. The purchase price of

the home was $78,041.65. Plaintiffs made a $10,000 cash down payment on or about

September 13, 2021, which was to be credited toward the purchase price, leaving an

unpaid balance was $68,041.65. Hench's referred plaintiffs to defendant 21st

Mortgage Corporations ("21st Mortgage") to finance the remaining balance. [Dkt. 56,

¶¶ 9-15]. In addition, Plaintiffs spent approximately $7,000 on improvements related

to the mobile home. [Id., ¶ 22 ("e.g., fencing, custom porch")].

Under the purchase agreement, Hench's was obligated to deliver the mobile

home to plaintiffs' address in Bokchito, Oklahoma, and to block, level, and tie it down

in accordance with state code. Hench's further issued plaintiffs a "Home Warranty

Information Sheet" confirming that the home was covered by a one-year warranty,

that cosmetic items would be corrected at "trim-out," and that any additional issues

would be handled during the warranty period. The initial trim-out promised by

Hench's never occurred, according to plaintiffs, resulting in cosmetic damage upon

delivery. [Id., ¶¶ 18-21].

Hench's engaged defendant Crown Contracting, LLC ("Crown") to perform

delivery and installation of plaintiffs' mobile home, and Crown in turn subcontracted

with defendant Stephen Stubbs ("Stubbs") to deliver the home. [Id., ¶¶ 23-24, 27].

Stubbs delivered the home to plaintiffs' property on or about September 14, 2021.

Upon delivery, plaintiffs observed the floors appeared "lumpy and uneven" and

promptly contacted Rupp, who advised that such appearance was normal prior to the

home being "set." After Crown completed the setting of the home on or about

September 24, 2021, plaintiffs observed that the floors became "sagging and ill-

supported." They also noticed gaps between the home and its supporting blocks but

were told by Hench's and Crown representatives that the home required time to

"settle." [Id., ¶¶ 28-33].

Plaintiffs later discovered additional defects with the home, including water

intrusion at the windows, behind the shower, and around the kitchen vent hood;

inadequate insulation; recurring electrical problems; faulty wiring; inconsistent

water pressure; malfunctioning smoke alarms; and other indicators of poor

manufacturing and/or improper delivery and installation. [Id., ¶¶ 37, 44]. Consistent

with the purchase agreement and express warranty terms, plaintiffs promptly

notified Hench's of these concerns, but Hench's ultimately failed to remedy them in a

timely manner. Plaintiffs then contacted 21st Mortgage and Jessup seeking

resolution. [Id., ¶¶ 38-40]. Jessup dispatched inspectors in October 2022, who

reported that plaintiffs' home was not level or set properly, that the water lines were

pinched, and that both the roof and floors required replacement. The inspectors

purportedly concluded the home was "unrepairable" and "should never [have] left

[the] factory." [Id., ¶ 48].

II. PROCEDURAL HISTORY

Plaintiffs commenced this action in the District Court of Bryan County,

Oklahoma against defendants Hench's, Jessup, Crown, 21st Mortgage, and Rupp,

alleging defects in the mobile home. [Dkt. 2-3]. Plaintiffs filed their first amended

complaint on March 4, 2024, adding defendant Stubbs to this action and asserting

the following challenged claims against Jessup: breach of warranty (Count III);

negligence (Count IV); violations of the Oklahoma Consumer Protection Act (Count

V); and unjust enrichment (Count VI). [Dkt. 56]. This action was removed to this

Court by Jessup in October 2023, pursuant to 28 U.S.C. § 1446(a). [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 the entry of a final judgment.

III. DISMISSAL STANDARD

"To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible

on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 554, 570 (2007)). "A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." Id. The question to be decided is

"whether the complaint sufficiently alleges facts supporting all the elements

necessary to establish an entitlement to relief under the legal theory proposed." Lane

v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal quotations omitted).

IV. ANALYSIS

A. APPLICABILITY OF THE ECONOMIC LOSS DOCTRINE

Plaintiffs allege in Count IV that Jessup breached its duty of reasonable care

in the design and manufacturing of their mobile home. [Dkt. 56, ¶¶ 87-90]. In Count

VI, plaintiffs claim Jessup was unjustly enriched in excess of $75,000 by "undertaking

the actions described herein." [Id., ¶¶ 103-106]. Jessup moves to dismiss these tort

claims under the economic loss rule. [Doc. 156, ¶ 9].

Oklahoma recognizes the economic loss rule only in the context of

manufacturers' products liability, barring recovery solely for injury to the product

resulting in economic loss. Waggoner v. Town & Country Mobile Homes, Inc., 1990

OK 139, ¶ 22, 808 P.2d 649, 653. The Oklahoma Supreme Court has never applied

the economic loss rule outside of the products liability context. See e.g., Mills v. J-M

Mfg. Co., Inc., 2025 OK 23, ¶ 15, 567 P.3d 385, 389 n.5 (expressly declining to extend

the economic loss rule beyond products liability). Federal courts applying Oklahoma

law have consistently recognized the state's restrictive approach to the economic loss

rule. See e.g., Compsource Okla. v. BNY Mellon, N.A., No. 08-CIV-469, 2009 WL

2366112 at *2 (E.D. Okla. July 31, 2009) (declining to extend application of economic

loss rule because Oklahoma courts have only applied the doctrine to products

liability). Because plaintiffs do not assert a claim for manufacturers' products

liability, the economic loss rule does not apply to their tort claims. Jessup's request

for dismissal of Counts IV and VI on this basis is therefore denied.

B. THE OKLAHOMA CONSUMER PROTECTION ACT

In Count V, plaintiffs allege Jessup violated the Oklahoma Consumer

Protection Act ("OCPA"), 15 O.S. §§ 751 et seq., by breaching implied warranties "as

described herein," refusing to accept responsibility for damage to the mobile home,

and failing to identify and notify plaintiffs of such damage prior to their receipt and

possession of the same. [Dkt. 56, ¶¶ 99(v), (viii)-(ix)]. To prevail on a private right of

action under the OCPA, a consumer must prove: (1) the defendant engaged in an

unlawful practice as defined in 15 O.S. § 753; (2) the challenged practice occurred in

the course of the defendant's business; (3) the plaintiff, as a consumer, suffered an

injury in fact; and (4) the challenged practice caused the plaintiff's injury. Patterson

v. Beall, 2000 OK 92, ¶ 30, 19 P.3d 839, 846. Jessup contends it is exempt from

plaintiffs' OCPA claim pursuant to 15 O.S. § 754(2). [Dkt. 156, ¶ 23].

1. Purported Unlawful Practices

The threshold question is which provisions of § 753 plaintiffs' allegations

implicate. In their response brief, plaintiffs claim Jessup engaged in the following

unlawful business practices:

[9] Advertising, knowingly or with reason to know, the subject of a

consumer transaction with intent not to sell it as advertised;

[12] Makes false or misleading statements of fact, knowingly or with

reason to know, concerning the price of the subject of a consumer

transaction or the reason for, existence of, or amounts of price reduction;

[13] Employs 'bait and switch' advertising, which consists of an offer to

sell the subject of a consumer transaction which the seller does not

intend to sell, which advertising is accompanied by … [g] willful failure

to make deliveries of the subject of a consumer transaction within a

reasonable time to make a refund therefor upon the request of the

purchaser[;]

[21] Commits an unfair or deceptive trade practice as defined in Section

752 of this title[.]

15 O.S. §§ 753(9), (12), (13)(g), (21).1 According to plaintiffs, Jessup engaged in these

unlawful practices through "false and misleading presentation and performance of

written warranties" applicable to the mobile home. [Dkt. 157 at 13]. The first

amended complaint, however, contains no factual allegations of false advertising,

price misrepresentations, or bait-and-switch tactics. The complaint also pleads no

"written" warranty by Jessup; it alleges only implied warranties. See [Dkt. 56, ¶¶ 81,

84, 99(v), 109, 111]. It is well settled that allegations first raised in briefing cannot

amend a deficient pleading. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995).

What remains are plaintiffs' theories of implied warranty breach, failure to

resolve responsibility for damage to the mobile home, and failure to identify and

disclose such damage. [Id., ¶¶ 99(v), (viii)-(ix)]. These theories sound in warranty

enforcement and contract administration, not deception or unfairness under § 752.

Consequently, as plaintiffs have not sufficiently pleaded facts demonstrating Jessup

engaged in an "unlawful practice" as defined by § 753, their OCPA claim fails.

2. Regulated-Transactions Exemption

Having determined the first amended complaint fails to state an OCPA claim

against Jessup, the Court applies § 754(2) to assess futility of amendment. This

section explicitly excludes from the OCPA's purview "actions or transactions"

1 The OCPA 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 the

detriment of that person." 15 O.S. § 752(13). Unfair trade practice is defined as "any practice which

offends established public policy or if the practice is immoral, unethical, oppressive, unscrupulous or

substantially injurious to consumers." Id.

regulated under the statutory authority of Oklahoma or the United States. 15 O.S. §

754(2). Courts interpreting § 754(2) have found the exemption applicable where the

conduct underlying the alleged OCPA violation is subject to regulation by a state or

federal regulatory body. See Rogers v. QuikTrip Corp., 2010 OK 3, ¶ 17, 230 P.3d 853,

858 n.40; Dennis v. Good Deal Charlie, Inc., No. 20-CV-295-GKF-JFJ, 2022 WL

3577244 at *1 (N.D. Okla Aug. 19, 2022) (collecting cases).

Jessup asserts that plaintiffs' OCPA claim is exempt under § 754(2) due to its

licensure by the Oklahoma Used Motor Vehicle, Dismantler, and Manufactured

Housing Commission ("Commission") and the comprehensive regulation of its

challenged conduct by the U.S. Department of Housing and Urban Development's

("HUD") Manufactured Home Construction and Safety Standards Act. [Dkt. 156, ¶¶

23-76, 84-85; Dkt. 159 at 6-8]. Jessup emphasizes the Commission's regulatory

authority over manufacturers' operations, licensing, and fees, OKLA. ADMIN. CODE §§

765:36-3-1—765:36-7-2, alongside HUD's extensive standards governing

manufactured-home design, construction, labeling, and installation. 42 U.S.C. §§

5401-5426; 24 C.F.R. §§ 3280-86, 3800. This regulatory framework, as Jessup argues,

encompasses the core activities contested by plaintiffs.

Plaintiffs concede the existence of regulations governing design and

construction but attempt to confine their OCPA claim to Jessup's "offering,

presentation, and performance of written warranties," arguing these are not

regulated under § 754(2). [Dkt. 157 at 12-13]. However, the Court observes that the

essence of Count V, as pleaded, concerns alleged misrepresentations about the

condition of the manufactured home and responsibility for repairs. See Jojola, 55 F.3d

at 494 (allegations first raised in briefing cannot amend a deficient pleading).

Furthermore, plaintiffs' theory misconstrues the nature of a warranty, which, as

defined by the Magnuson-Moss Warranty Act, directly relates to the specifications

and condition of the manufactured home's design and construction. See 15 U.S.C. §

2301(6)(B). To characterize defect-remediation representations as unregulated would

be to prioritize form over substance, potentially undermining the safe harbor

provided by § 754(2). Plaintiffs further argue for a narrow interpretation of § 754(2),

suggesting it should not provide blanket immunity without an equivalent private

damages remedy in the regulated scheme. [Id. at 13]. However, this argument is not

supported by the text of § 754(2), and Oklahoma jurisprudence focuses on whether

the actions or transactions are regulated, rather than on the parity of remedies. See

e.g., Robinson v. Sunshine Homes, Inc., 2012 OK CIV APP 87, 291 P.3d 628.

The Court finds that plaintiffs have not identified any discrete, pled category

of Jessup's conduct that falls outside the regulated domain. Plaintiffs' shift in focus

on "offering, presentation, and performance of written warranties" appears belatedly

in their briefing and, in any event, pertains to remedial obligations for regulated

defects. Upon thorough consideration, the Court concludes the actions or transactions

complained of against Jessup are indeed within a pervasively regulated domain. This

triggers the exemption under § 754(2) of the OCPA, entitling Jessup to dismissal of

Count V on this basis.

C. IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE

In Count III of the first amended complaint, plaintiffs assert that Jessup

breached implied warranties of habitability, merchantability, and fitness for a

particular purpose by delivering a manufactured home with unsafe nonconformities.

[Dkt. 56, ¶ 84]. Jessup moves for partial dismissal of Count III, contending plaintiffs

have failed to state a claim. [Dkt. 156, ¶¶ 95-97].

The Oklahoma Supreme Court definitively established in Osburn v. Bendix

Home Sys., Inc., 1980 OK 86, 613 P.2d 445, that manufactured homes constitute

"goods" governed by Article 2 of the Uniform Commercial Code ("UCC"). Id. at ¶ 5.

This foundational precedent subjects manufactured home sales to the full range of

UCC warranties, including the implied warranty of fitness for a particular purpose

under the Oklahoma statute adopting UCC § 2-315. This statute provides that an

implied warranty of fitness arises when "the seller at the time of contracting has

reason to know any particular purpose for which the goods are required" and "the

buyer is relying on the seller's skill or judgment to select or furnish suitable goods."

12 O.S. § 2-315. Federal courts applying Oklahoma law have established that a

plaintiff must demonstrate two essential elements: (1) the seller knew the goods

would be used for a particular purpose and (2) the buyer relied on the seller's skill or

judgment in selecting suitable goods. See Crysco Oilfield Servs., Inc. v. Hutchinson-

Hayes Intern., Inc. ("Crysco"), 913 F.2d 850, 852 (10th Cir. 1990). The distinction

between "ordinary" and "particular" purpose is articulated in comment 2 to § 2-315:

A 'particular purpose' differs from the ordinary purpose for which the

goods are used in that it envisages a specific use by the buyer which is

peculiar to the nature of his business whereas the ordinary purposes for

which goods are used are those envisages in the concept of

merchantability and go to uses which are customarily made of the goods

in question.

The classic illustration involves shoes: while shoes ordinarily serve for "walking upon

ordinary ground," a seller's knowledge that the shoes were selected for "climbing

mountains" creates a particular purpose. 12 O.S. § 2-315 cmt. 2.

As to the first element, Jessup contends that plaintiffs have not alleged use of

the manufactured home for a purpose different from its ordinary use. [Dkt. 156, ¶

96]. The pleadings reflect that plaintiffs purchased a home manufactured by Jessup

to serve as their residence, constituting an ordinary and foreseeable use for which the

home was manufactured. Courts applying § 2-315 have consistently held that use of

goods for their ordinary, intended function does not constitute a "particular purpose."

See Crysco, 913 F.2d at 852 ("We hold that the use of a good in the ordinary manner

for which the good was manufactured does not satisfy section 2-315's requirement

that the good be used for a 'particular purpose.'"); see also Jackson v. Glasgow, 1980

OK CIV APP 65, ¶ 10, 622 P.2d 1088, 1090 (petition alleging use of manufactured

home as residence failed to state a claim under § 2-315 absent facts showing seller's

knowledge of a particular purpose or buyer's reliance).

Plaintiffs argue that a manufactured home may be used for multiple potential

purposes—e.g., office space, classrooms, or storage facilities—and thus their

residential use is not necessarily an "ordinary" purpose. [Dkt. 157 at 21]. However,

the mere fact that a product is capable of multiple uses does not transform every

routine use into a "particular purpose." See Weir v. Fed. Ins. Co., 811 F.2d 1387, 1393

(10th Cir. 1987) (distinguishing between ordinary and particular purposes and

rejecting a § 2-315 claim where clothes dryer was used for the ordinary purpose of

drying clothes). In an effort to salvage their § 2-315 claim, plaintiffs allege Hench's

knew (i) they intended to start a family in connection with the home purchase and

(ii) they planned to place the home on a pre-existing dirt pad on their property. [Id.].

These facts, even if true, describe circumstances surrounding plaintiffs' residential

use but do not transform that use into a "particular purpose" within the meaning of

§ 2-315. Plaintiffs still used the manufactured home for its ordinary and intended

function, rather than for any specialized or unusual purpose.

Even if plaintiffs could sufficiently allege a qualifying "particular purpose,"

they must also plead facts showing that Jessup knew of that purpose and that

plaintiffs relied on Jessup's skill or judgment in selecting the home. 12 O.S. § 2-315;

Collins v. Radio Co. of Dallas v. Bell, 1980 OK CIV APP 57, 623 P.2d 1039, 1054. The

first amended complaint contains no such allegations. There are no well-pleaded facts

establishing that Jessup was apprised of any unique needs of plaintiffs, or that

plaintiffs deferred to Jessup's expertise in choosing a particular model. Without

allegations of seller knowledge and buyer reliance, plaintiffs fail to satisfy the second

element of § 2-315. Jessup is entitled to Rule 12(b)(6) dismissal of plaintiffs' claim for

breach of implied warranty of fitness for a particular purpose under Count III.

D. LEAVE TO AMEND

In their response, plaintiffs include conditional requests for leave to amend

their claims against Jessup for breach of warranties (Count III), negligence (Count

IV), violations of the OCPA (Count V), and unjust enrichment (Count VII). [Dkt. 10,

11, 22]. Fed. R. Civ. P. 15(a)(2) provides that “[t]he court should freely give leave [to

amend] when justice so requires.” However, a court may deny amendment upon a

showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory

motive, failure to cure deficiencies by previously allowed amendment, or futility of

the amendment. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).

Amendment is futile when the amended pleadings would still be subject to dismissal

under Rule 12(b)(6). Johnson v. Metro. Prop. & Cas. Ins. Co., 97 F.4th 1223, 1232

(10th Cir. 2024). Jessup opposes amendment, arguing that any modification to the

first amended complaint would be futile because plaintiffs cannot, as a matter of law,

cure the deficiencies identified in its motion to dismiss. [Dkt. 156, ¶¶ 5-6].

1. Count III | Breach of Warranties

As discussed, plaintiffs' claim for breach of implied warranty of fitness for a

particular purpose fails because they allege only ordinary residential use, not a

"particular purpose" within the meaning of 12 O.S. § 2-315, and do not allege seller

knowledge or reliance on seller's judgment. Plaintiffs concede the first amended

complaint does not recite these statutory elements and request leave to amend to

explicitly allege such facts. [Dkt. 157 at 11]. Even assuming plaintiffs could

sufficiently allege seller knowledge and reliance, amendment would remain futile

where the alleged purpose (i.e., use as a residence) constitutes the ordinary purpose

for which plaintiffs' home was manufactured. See Crysco, 913 F.3d at 852.

Consequently, plaintiffs' request for leave to amend their claim against Jessup for

breach of implied warranty of fitness for a particular use is denied as futile.

2. Counts IV and VI | Negligence and Unjust Enrichment

Plaintiffs seek leave to amend Counts IV and VI only "to the extent"

clarification is required to allege damages to "other property." [Id. at 10]. The present

record does not indicate that such claims are facially deficient. However, plaintiffs

may clarify their allegations of damages to "other property" if they believe such

clarification is necessary to preserve their tort claims. Plaintiffs may request leave to

amend Counts IV and VI in accordance with the Court's directive in § IV(D)(4), infra.

3. Count V | Violations of the OCPA

Plaintiffs seek leave to amend Count V based on additional evidence that they

contend would support allegations of unlawful business practices under the OCPA.

[Id. at 22]. Even accepting plaintiffs' proffer as true, any amendment directed at

Jessup would fall within the regulated-transactions exemption in 15 O.S. § 754(2).

Because this statutory safe harbor precludes OCPA liability as a matter of law,

further amendment would be futile. Leave to amend Count V as to Jessup is denied.

4. LCvR 7.1(k)

Finally, plaintiffs assert they have discovered evidence that may further

support their claims for fraud and deceit against Hench's, Rupp, and 21st Mortgage

(Count I), violations of the OCPA against Hench's, Rupp, Crown, Stubbs, and 21st

Mortgage (Count V), and violations of the Magnuson Moss Act against Hench's,

Jessup, and 21st Mortgage (Count VII). [Id.]. The Court grants plaintiffs fourteen (14)

days from the date of this Order, or until OCTOBER 2, 2025, to file a motion for

leave to file a second amended complaint in accordance with LCvR 7.1(k).

V. CONCLUSION

WHEREFORE, the Motion to Dismiss Plaintiffs' Fourth, Fifth, and Sixth

Causes of Action and Part of Their Third Cause of Action [Doc. 156] filed on behalf of

defendant Jessup Housing is hereby GRANTED IN PART and DENIED IN PART.

Following entry of this Order, the status of each challenged claim asserted in the first

amended complaint is as follows:

 Count III, insofar as it alleges breach of implied warranty of fitness for a

particular purpose against Jessup, is dismissed for failure to state a claim;

 Count IV alleging negligence against Jessup remains pending;

 Count V alleging violations of the OCPA against Jessup is dismissed for

failure to state a claim; and

 Count VI alleging unjust enrichment against Jessup remains pending.

IT IS SO ORDERED on this 18th day of September, 2025.

_______________________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE