9/28/2017 3:54:42 PM

17CV42428

3
IN THE CIRCUIT COURT FOR THE STATE OF OREGON
4
FOR THE COUNTY OF MULTNOMAH
5
BENJAMIN and ALEXANDRIA WILLIAMS, Case No.
6
a couple,
7 COMPLAINT
Plaintiffs,
8 (Negligence, Unlawful Trade Practices,
v. Breach of Contract, Breach of Warranty and
9 Nuisance)
10 TERRAFIRMA FOUNDATION REPAIR,
INC. DBA TERRAFIRMA FOUNDATION NOT SUBJECT TO MANDATORY
11 SYSTEMS, an Oregon Corporation ARBITRATION

12 Defendant. ORS 21.160(1)(c)

PRAYER AMOUNT: $275,000
13
1.
14
Plaintiffs Benjamin Williams and Alexandria (“Plaintiffs” or “Williams”) are a married
15
couple who purchased real property located at 1303 SE 46th Ave., Portland, Oregon, 97215 (the
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“Residence”).
17
2.
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TerraFirma Foundation Repair, Inc. DBA TerraFirma Foundation Systems (“Defendant”
19
or “TerraFirma”) is an Oregon Corporation.
20
3.
21
On February 10, 2017, Plaintiffs purchased the Residence from John Tennant
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(“Tennant”). Prior to closing on the Residence, Plaintiffs discovered that the Residence had
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potential foundation issues as well as leaking in the basement. Therefore as part of the purchase
24
process, Plaintiffs made an agreement with Tennant that he would hire TerraFirma to perform an
25
inspection of the foundations and handle any water intrusion issues in the basement.
26

Page 1 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 4.
2 On or around January 26, 2017, TerraFirma performed an inspection of the foundation at
3 the Residence. On January 5, 2017, prior to the inspection, TerraFirma represented that it would
4 perform “a thorough inspection on both the inside and the outside of the property. [The
5 Inspector] will be able to diagnose the problems you are facing, the reason(s) they are occurring,
6 what options are available, and provide you with a written estimate for any work that may need
7 completed.” TerraFirma’s website also claims among other things that they will provide a free
8 inspection by “specialized in-house foundation experts” who have “warranted solutions for
9 structural issues of all types.” Based on TerraFirma’s representations, the Plaintiffs extended
10 the inspection period on the sale to January 30, 2017, so they could receive its analysis.
11 5.
12 After Defendant inspected the Residence, Plaintiffs asked whether additional work was
13 needed to be performed on the foundation. In response, Defendant explained that the foundation
14 was in good shape and only needed a sump pump for the water intrusion issues. Therefore,
15 based on these representations, Plaintiffs made an agreement with Tennant, wherein he hired
16 TerraFirma to install a sump pump at the Residence and did not require any additional
17 foundation work.
18 6.
19 On or around February 8, 2017 Tennant entered into an agreement with TerraFirma to
20 install a sump pump at the Residence, who did so incorrectly. Therefore, immediately after
21 installation, severe flooding took place at the Residence which caused basement damage and was
22 then determined that the solution for repair was a new slab in addition to the sump pump.
23 7.
24 On or around March 20, 2017, to remedy its mistake, Defendant removed the basement
25 slab at the Residence to install a new one. Unfortunately, Defendant failed to adequately support
26 the Residence when removing the slab and also cut the supporting beam in the basement after a

Page 2 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 meeting took place to avoid this outcome. Defendant’s actions caused severe property damage
2 to the Residence, including but not limited to: separation in the hardwood floors; cracks and
3 ripping in the drywall and ceilings; damage to doorframes and floors separating from baseboards.
4 Also, the floor on the main level of the Residence sloped noticeably to one side.
5 8.
6 After damaging the basement slab and both interior and exterior of the Residence,
7 Defendant’s agreed to repair the damage they caused. Because the basement of the Residence
8 was finished space the Plaintiffs made it very clear to the Defendant that they could not lose
9 ceiling height. Defendant agreed and therefore, on or about April 17, 2017, Defendant poured a
10 new basement slab at the Residence.
11 9.
12 After the new basement slab was poured, it was discovered that the Plaintiffs had lost
13 significant ceiling height, rendering the new space basically uninhabitable. Therefore,
14 Defendant’s agreed to pour another new basement slab to remedy the height issue.
15 10.
16 In removing the floor slab it incorrectly installed, Defendant caused significant damage to
17 the West, South and North foundation walls of the Residence as well as worsening the problems
18 to the rest of the Residence as described in the previous paragraphs.
19 11.
20 Defendant now claims that Plaintiffs cannot rely on the inspection it provided and the
21 foundation walls were in substandard condition. Nonetheless, Defendant was responsible for
22 inspecting the walls and properly supporting the foundation walls when replacing the slab.
23 12.
24 Defendant provided the design, material and labor for its work performed at the
25 Residence. The damage at the Residence is a direct and proximate result of defects and
26 construction practices not meeting generally accepted standards of care in the industry.

Page 3 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 13.
2 This action has been commenced in compliance with ORS 701.560-565 in that:
3 a. Plaintiffs, on or about June 16, 2017, provided written notices to
Defendant pursuant to ORS 701.565; and
4

5 b. Defendant has exercised its right of inspection under ORS 701.575.

6 FIRST CLAIM FOR RELIEF

7
(Negligence)
8
14.
9
Plaintiffs reallege paragraphs 1 through 13 above.
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15.
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Defendant had a duty to Plaintiffs to use reasonable care in performing its work on the
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Residence and construct the Residence according to applicable manufacturers’ instructions and
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building codes.
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16.
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In performing the work, it was reasonably foreseeable that Defendant would cause
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damage to Plaintiffs and the Residence if Defendant performed its work negligently.
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17.
18
Defendant was negligent in one or more of the following respects listed in the previous
19
paragraphs above.
20
18.
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As a result of such negligence, Plaintiffs have been damaged in an amount to be proven
22
at trial, currently estimated to be $275,000 in economic damages and $225,000 in non-economic
23
damages, plus all costs and disbursements incurred.
24
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25
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Page 4 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 SECOND CLAIM FOR RELIEF
2 (Unlawful Trade Practices)
3 19.
4 Plaintiffs reallege and incorporates paragraph 1 through 18 above.
5 20.
6 At all material times, Defendant was engaged in the course of its business, vocation,
7 and/or occupation of home repair and construction for the general public.
8 21.
9 As an inducement to Plaintiffs, Defendant and/or its agents made representations
10 regarding the quality, condition, and/or attributes of inspection of the Residence and work it was
11 to perform as described above.
12 22.
13 Defendant and/or its agents violated ORS 646.608(1)(e) and (i) because it did not inspect
14 the Residence properly as represented via communications and its website and further
15 represented characteristics, benefits, and/or qualities, and in fact contained the defects alleged in
16 the previous paragraphs.
17 23.
18 Plaintiffs reasonably relied on Defendant and/or its agents’ direct and indirect
19 representations, conduct, and/or failures to disclose, and Plaintiffs would not have purchased the
20 Residence if they had known the truth.
21 24.
22 Defendant and/or its agents’ unlawful trade practices were willful because they knew, or
23 reasonably should have known, that their conduct was an unlawful trade practice.
24 ///
25 ///
26 ///

Page 5 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 25.
2 As a result of Defendant and/or its agents’ unlawful trade practices, Plaintiff has been
3 damaged in an amount to be proven at trial, currently estimated to be $275,000 in economic
4 damages and $225,000 in non-economic damages, plus attorney fees, costs and disbursements
5 incurred herein pursuant ORS 646.638(3).
6 THIRD CLAIM FOR RELIEF
7 (Breach of Contract)
8 26.
9 Plaintiffs reallege and incorporates paragraphs 1 through 25 above.
10 27.
11 Plaintiffs were intended third-party beneficiaries of the agreement between Defendant
12 and John Tennant.
13 28.
14 In inspecting the Residence, installing the sump pump and repairing the basement slab,
15 Defendant was obligated to perform work in a reasonably competent and professional manner
16 and fit for habitation as well as follow all residential building codes.
17 29.
18 Defendant has breached the Agreement by performing work at the Residence in an un-
19 workmanlike manner as alleged in previous paragraphs.
20 30.
21 Plaintiffs have performed all conditions precedent to bringing and maintaining this
22 action.
23 31.
24 As a result of Defendant’s breach of contract, Plaintiffs have been damaged in an amount
25 to be proven at trial, currently estimated to be $275,000 in economic damages and $225,000 in
26 non-economic damages, plus all costs and disbursements incurred herein.

Page 6 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 FOURTH CLAIM FOR RELIEF
2 (Breach of Warranty)
3 32.
4 Plaintiffs reallege paragraphs 1 through 31 above.
5 33.
6 Defendant was the contractor who remodeled the Residence.
7 34.
8 Defendant provided Tenant an express warranty as part of its work on the Residence.
9 Pursuant to the warranty, Defendant promised to provide all additional labor at no charge if there
10 was a leak from work performed by Defendant. Plaintiffs were third party beneficiaries of this
11 warranty.
12 35.
13 Defendant has breached the express warranty provided for the Residence by refusing to
14 repair damage it caused from work it performed on the Residence.
15 36.
16 As a result of Defendant’s breach, Plaintiffs have been damaged in an amount to be
17 proven at trial, currently estimated to be $275,000 in economic damages and $225,000 in non-
18 economic damages, plus all costs and disbursements incurred herein.
19 FIFTH CLAIM FOR RELIEF
20 (Nuisance)
21 37.
22 Plaintiffs reallege paragraphs 1 through 36 above.
23 38.
24 The foundation issues, water damage, structural damage, and other defects, which were
25 and are being caused by Defendant, have and continue to substantially and unreasonably
26 interfere with Plaintiffs’ use and enjoyment of the Residence and constitute a private nuisance.

Page 7 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
 1 39.
2 As a result of such nuisance, Plaintiff has been damaged in an amount to be
3 proven at trial, estimated at $275,000 in economic damages and $225,000 in non-economic
4 damages, plus all costs and disbursements incurred herein.
5

6 WHEREFORE, Plaintiffs pray for judgment against Defendant as follows:

7 1. On their First, Second, Third, Fourth and Fifth Claims for Relief in an amount to
8 be proven at Trial, currently estimated at $275,000 in economic damages and $225,000 in non-
9 economic damages;
10 2. For their attorney fees pursuant to ORS 646.638(3);
11 3. For their costs and disbursements incurred herein; and
12 4. For such other relief as the Court deems just and equitable.
13

14
DATED: September 28, 2017.
15
SLINDE NELSON STANFORD
16
By: /s/ Jason E. Hirshon
17 Jason E. Hirshon, OSB No. 052852
Darian A. Stanford, OSB No. 994491
18 Of Attorneys for Plaintiff
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20

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Page 8 - COMPLAINT SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250