To put this case all on the Record, all Discovery, both Requests and Responses were filed with the Clerk of the Court by the Defendant Pro Se, not just the Certificates of Service.
John Tabor tried to claim this letter is not relevant because he does not order windows from Atrium. Atrium is the exclusive manufacturer of these windows so whether he likes it or not he did order these windows from Atrium and he has produced no evidence or testimony to support his claim that he had some special deal with his rep. Mike Entinger at Ted Lansing to get argon for free or without having to specify argon on the order. No one at Ted Lansing has ever supported John Tabor's claims of a change in the ordering process. In Fact the email from Lynn Whyte states there were no changes that would have effected this order.
LETTER FROM THE WINDOW MANUFACTURER
ATRIUM WINDOWS AND DOORS
September 15, 2005
Mr. And Mrs. McKinney
4083 Red Laurel Way
Snellville, GA 30039
Dear Mr. And Mrs. McKinney,
I have read the letter you forward to me written by JohnTabor earlier this year. I am not qualified to speak to the majority of the issues presented, but I can clarify some points concerning the windows that are referenced.
The windows that the Ted Lansing branch purchased for yourhome are Windjammer Series 40 double hung products. This is the “good” line in our “good-better-best” line up ofall-welded replacement double hung series. They come standard with clear glass. Options such as low-e glass, with or without Argon gas, may be added at an additional charge. Your windows were, in fact, manufactured with low-e glass, but not Argon gas. Mr. Tabor’s letter indicates that there is no test for ensuring Argon exists between the panes. The other side of that perspective is that it is an absolute certainty that if Argon is not ordered, it will definitely not be between the panes.
Additionally, Argon is an energy efficient benefit that helps the insulation value of a window. Low-E is a reflective property that directs the sun’s heat away from the house (especially in summer months) and reflects a home’s furnace heat back into the home during winter months. Argon is a gas more dense than air, so it insulates moreeffectively. That’s basic physics, not a marketing ploy.
In fact, if you compare any glass manufacturer’s thermal performance data (e.g. PPG, AFG, Cardinal), you will see that low-e glass and Argon gas are classified separately to illustrate the thermal performance advantages of Argon. These manufacturers sell glass; they do not sell tanks of gas, so their data are independent corroboration of this fact. Furthermore, most window manufacturers acknowledge the government’s Energy Star program. In order for compliance to be met by any Windjammer product (window or door), it must beordered with low-e and Argon…low-e by itself will not achieve the rating criteria as reflected on each product’s N.F.R.C. label (an industry standard for posting the product’s thermal performance).
We offer low-e glass as an option with Argon, AND withoutArgon. We have never combined the two into one option package. The List Price for low-e glass is $16.00. To add Argon gas, there is an additional $8.00 list price charge. I cannot reveal Ted Lansing’s costs, but I will say that their cost is greater than $3.00, so I doubt that a dealer would sell that option to a homeowner for that amount.
As I mentioned, the Series 40 is our “good” product. It offers excellent performance for themoney and allows us to provide an opening price point for an all-welded, vinylreplacement window. It was introduced to Ted Lansing in 2000, along with the Series 60 and Series 80, our “better”and “best” product lines. Both of these Series do have low-e glass with Argon gas as a standard feature. This former combination of options was integrated into these windows as a standard feature in January, 2003. Mr. Tabor’s claim that “Argon gas had always been automatically included with low-e glazing” is absolutely false…that has never been the case, even for the Series 60 and 80 products before we made that standard. Also, his statement, “However, it (argon) has now become an option on these windows for an additional $3.00 per window,” is equally false. Finally, I question his assertion that “argon gas offers no appreciable savings in (your) climate.” He uses the passive voice, so there is no one to question. I suggest you request the name of that source and his/her credentials.
The last point I do need to make is that the Series 40 products are very good. We have made anumber of enhancements to continue improving the Series’ performance. Most recently, in January, 2004, we changed the position of the bottom sash lift rail to the bottom of the sash; we improved the performance and aesthetics of the exterior frame head, and we introduced an improved screen as standard. Although it is not positioned at a level of the Series 60 or Series 80,the Series 40 allows us to stratify our replacement window families to meet anyone’s budgetary, cosmetic and performance needs.
I hope this letter finds you well and I hope Mr. Tabor and your family come to a sensible resolution. We do appreciate the fact that he chose to sell our products when there are so many choices available to him, but I am also obligated to challenge the points referenced here to maintain our credibility as a manufacturer and marketer of these products.
Director of Marketing
Atrium Windows and Doors
(Exclusive manufacturer of Windjammer windows by Ted Lansing Corp.)
EMAIL DISCOVERY RESPONSE FROM THE LEGAL DEPARTMENT OF TED LANSING BUILDING PRODUCTS SUPPLIER OF MATERIALS ORDERED
Subj: FW: Request for Information - Ron McKinney
Date: 9/13/05 8:08:41 AM Eastern Daylight Time
From: L.Whyte@lansingbp.com (Lynn Whyte)
CC: M.Entinger@lansingbp.com (Mike Entinger (BUFD)), R.Johnson@lansingbp.com (Rick Johnson)
For ease and simplicity I have copied your questions from below and will attempt to answer each of them.
(Q1) In particular, when windows are to be ordered does a contractor, fill out a form, what does the form look like, is it called in, faxed in and so on? Is it input directly by the contractor into the ordering system or by someone at the Buford location?
(A1) Orders are received in a variety of ways. Some customers come into the showroom and place the order in person. They usually have a list of the window sizes and any special requirements for each window. There is no printed form that they mark or fill out and they do not enter the data directly into the system. Some call in orders and some fax in their orders. If they are in the showroom, we print out the quote and ask them to review it and initial it, if it is correct. If they fax in the order, we will accept that as their written confirmation and we will review our keyed order against that fax copy. If they call in the order, we will sometimes ask if we can fax the quote to them to review and initial or if that is not possible, then we will usually review each line item on the quote with them to verify that we have input all of the order as they desire it. We key the order into Atrium's internet based Window Wizard software in order to produce the quote and then once confirmed, we convert the quote into an order.
(Q2) When a window is marketed as coming standard with argon and low-e such as the series 60 is, does that still mean the contractor has to specify each individual attribute when placing the order?
(A2) The Windjammer 60 comes automatically with low-e and argon gas. It does not have to be specified by the contractor or as a separate line item in the ordering process in order to receive it. The Windjammer 40 literature states that it has both a low-e option and a low-e with argon option.
(Q3) Do you have any printed instructions for placing orders?
(A3) We do not have written instructions for contractors on how to place orders with us. As I mentioned in Question #1 we try to be flexible on taking orders. All we try to do is to have some confirmation that the order is correct before we place it.
(Q4) Did you undergo any changes in your ordering process in or around August 2004?
(A4) The Atrium internet based Window Wizard software which is used to order Windjammer windows goes through various updates. There was a change in June 2004 but nothing in August 2004. I do not know the nature of the change, but any changes in the software should not really have impacted our customer's ordering process.
(Q5) Any documents that you have to support his claim or that disprove his claim that it was not his fault that our windows have no argon gas.
(A5) I am not aware that we have any specific documents pertinent to this question. Mike Entinger is checking to see if the order was faxed in or not. My guess is that he may not have ordered many Windjammer 40 windows previously and may have assumed that low-e included argon since they are usually referred to together in the other models.
(Q6) Any documents that you have to support his claim or that disprove his claim that series 60 has gone away and series 40 have taken its place and are the same.
(A6) His letter does not mention that the 60 had been discontinued, so that must have been in some conversation that you all may have had with him. The Windjammer 60 is still available today, although I do not know exactly what documents I could provide you to show that fact. I will try to get some literature with a current date on it that shows it is still available.
(Q7) Any documents that you have to support his claim or that disprove his claim that argon gas costs $3 and is valueless in this climate.
(A7) I do not have a specific document that shows the cost of the argon gas option in the Windjammer 40 window, but in checking in the Window Wizard, it shows an increased cost of approximately $ 5- 6 per window. As to the value of the argon in your climate, I would have to defer to the experts at Atrium. The literature simply says that low-e is designed for "southern climates" and that low-e with argon provides added "insulation and noise buffering".
(Q8) Any documents that you have to support his claim or that disprove his claim that not taping or sealing the seams of housewrap, and most particularly around windows and doors is an acceptable practice in the vinyl siding industry (when it is written in the contract that it will be done).
(A8) We do not have any specific documents that I can provide you as to the need or effectiveness of taping the seams on housewrap. The manufacturer, Pactiv, may have some information about this. In talking to Mike Entinger, the general practice in the Buford area is that they do not tape the seams on the housewrap. When it comes to the window areas, some contractors use tape and some, like my contractor, prefer to use caulk. The procedures with housewrap can also vary depending on whether it is new construction, remodeling with a tear-off of the old siding, or remodeling with siding placed over the old surface.
(Q9) Any documents that you have to support his claim or that disprove his claim that removing rotten wood and not putting wood back in its place is an acceptable practice in the vinyl siding industry.
(A9) We have no documents on this subject. It may depend on the circumstances and whether the wood in question is essential or is being covered over or replaced with the fanfold material. For example, if it is a small area of rotted wood siding that is going to be covered over, then it may be acceptable to simply remove the rotted piece. However, if it is an area like a window sill, molding, or structural wood, then that should probably be replaced. (See the Pactiv site on using fanfold in place of wood).
Lynn K. Whyte
From: RMcKin2146@aol.com [mailto:RMcKin2146@aol.com]
Sent: Friday, September 09, 2005 8:37 PM
To: Lynn Whyte
Subject: Re: Request for Information - Ron McKinney
Thank you for getting back to me. We are in the discovery phase now. Which basically means we have 6 months to gather as much information to be able to educate his attorney (his WIFE) so she knows beyond any doubt we can prove what he is saying is not the truth. Once we have done that her bluff is called and she will probably try to settle with us.
Maybe the most convincing thing I can do is send you a copy of his letter to us. I have retyped it so I can attach it to this email, however if you would prefer seeing the actual document itself, I will be happy to fax it to you. Just provide me your fax number.
So with that said, and since he has attempted to claim that the problem with our windows occurred due to changes in TLC's ordering process, what we really need now is not "his company specific related information", although our subpoena will be coming for that soon enough.
What I really need most now has to do with the ordering procedures for your window products.
In particular, when windows are to be ordered does a contractor, fill out a form, what does the form look like, is it called in, faxed in and so on? Is it input directly by the contractor into the ordering system or by someone at the Buford location?
When a window is marketed as coming standard with argon and low-e such as the series 60 is, does that still mean the contractor has to specify each individual attribute when placing the order? Do you have any printed instructions for placing orders? Did you undergo any changes in your ordering process in or around August 2004.
Any documents that you have to support his claim or that disprove his claim that it was not his fault that our windows have no argon gas.
Any documents that you have to support his claim or that disprove his claim that series 60 has gone away and series 40 have taken its place and are the same.
Any documents that you have to support his claim or that disprove his claim that argon gas costs $3 and is valueless in this climate.
Any documents that you have to support his claim or that disprove his claim that not taping or sealing the seams of housewrap, and most particularly around windows and doors is an acceptable practice in the vinyl siding industry (when it is written in the contract that it will be done).
Any documents that you have to support his claim or that disprove his claim that removing rotten wood and not putting wood back in its place is an acceptable practice in the vinyl siding industry.
Below is the letter we received from John Tabor of Insulated Wall Systems, when we attempted to tell him the things that were not satisfactorily done on our job. It is pretty amazing that this man advertises his business with a post card that promises "Satisfaction Guaranteed" and "Quality Work" and this is the way he responds to a customers dissatisfaction! (Oh, By the way, we have obtained very similar stories from other customers of his, so, we are not the problem here, even though he would like it to appear that way!)
Just so you understand that it is not just our opinion that we are going on either, we had a Professional Engineer (a structural engineer) come today to write a report on the slab and deck, both need to be totally demolished and redone!
Sincerely, Robyn McKinney
Insulated Wall Systems, Inc.
4169 Claremont Road
Chamblee, GA 30341
Phone (770) 986-8600
Fax (770) 476-4600
January 4, 2005
Mr. And Mrs. McKinney
4083 Red Laurel Way
Snellville, GA 30039
Dear Mr. And Mrs. McKinney:
I have placed a lien on your property in the amount of $16,000.00.
I have reviewed your letter dated 12/20/04. Let me begin by stating to you, I believe that you are acting in bad faith and are making unreasonable demands in an effort to avoid paying the $16,000.00 that you owe my company. You set the tone of this project on the first day work began when you called me and voiced your “serious concerns”about the lack of the use of starter strip on the vinyl siding. You stated that I had previously stressed how important this matter was. Not only had you immediately demonstrated your complete ignorance about the installation of vinyl siding but you also showed that you will not hesitate to falsely accuse me of making a statement that I did not make about a topic of which you are uninformed and confused. This pattern of behavior continued from that day forward. You treated my workers as if you were the project manager by constantly ordering them to make changes according to your own personal specifications regardless of what was actually contracted for.
I will not allow you to greedily attempt to extort extra work out of me and my workers. Ron made that intention perfectly clear when he stated that I (Insulated Wall Systems) would do the extra work he demanded because “I have yer money”. He was right, you did have my money and were refusing to pay one penny on a $16,000.00 contract. You realized that I had invested an enormous amount of time and money fixing up your dilapidated house. You also recognized that the work done was done at prices below the going rate. However, you believed that by refusing to pay any money you were doing my company such financial harm that I would have to yield to your unreasonable demands. Once again you are wrong.
The deck about which you complain has been satisfactorily completed in accordance with the contract. The extra support that you demand was not agreed to, contracted for, or paid for. Therefore, if you want extra support on your deck for “the onetime that you have 40 people on the deck at the same time” as you stated, then I suggest you pay someone to build if for you. I will not. I do not care what your “home inspector” had to say. I never agreed to have my work approved by your home inspector before getting paid, nor did I agree to build your deck to the specifications that would be required to support 40 people. Of course, I do not believe that you have ever had anywhere near 40 people on your deck in the past 20 years nor do I believe that you ever will.
The slab about which you complain has been satisfactorily completed in accordance with the contract. There was no agreement to compact the soil or to install piers or footers. You paid $1,400 for a simple slab. The concrete and wire alone cost $1,000.00. You made a point of telling me how very little money you make and how important a low price is for you. Therefore, we agreed to build the kind of slab that you got. Price is extremely relevant in all areas of construction. The kind of slab that you are now demanding could not possibly have been constructed for $1,400.00. You know this and it is despicable that you are now trying to take advantage of me for trying to give you a low price and good value for your money.
It has come to my attention that you(r) new windows may or may not have argon gas. It seems that the procedure for ordering argon changed around the time your windows were ordered. Argon gas had always been automatically included with low-e glazing. However, it (argon) has now become an option on these windows for an additional $3.00 per window. I am told that the change occurred because of growing evidence that argon gas offers no appreciable energy savings in our climate and carries no warranty at all regarding longevity. Clearly, argon gas is of very little value in this situation. Further, it seems that there is no practical way to test the windows to definitely determine whether the gas was actually installed in the windows.
It was clearly explained to you that damage would be caused to the stone and/or concrete surrounding the two front windows. I told you that we are not stone masons and therefore would not be responsible for damage to this area. I stated that a certain amount of damage was certain. We proceeded with great care and therefore damage was minimal and less that I told you to prepare for.
Not only did I explain to you in great detail that we would not be responsible for any sheetrock work on the inside of the house, I even wrote that into the contract. Only an unreasonable fool would be making an issue of that now.
Finally, I believe that all work contracted for on your home has been satisfactorily completed and is in compliance with the level of workmanship that is customary and usual in this trade. However I am willing to forfeit the Ebony Princess peppermill set that was promised as compensation in addition to the $16,000.00. I believe the roughly $500.00 retail price of the set will more than adequately compensate you for the missing shutters and potential lack of lack of argon gas in the windows. Therefore, I demand payment in full of the contract price of $16,000.00 within 10 days or I will file suit for the full amount plus attorney fees and all other costs of collection in the State Court of Gwinnett County.
You two will have the distinction of being only the second customers out of over 1000 that have proved to be so unreasonable that I believe the only way to resolve our differences will be through extensive litigation. Rest assured that I am completely prepared to go this route. This matter is no longer about money but principle.
Govern your actions accordingly,
John J. Tabor
In a message dated 9/7/05 3:51:40 PM Eastern Daylight Time, L.Whyte@lansingbp.com writes:
I am sorry I have not been back in contact. I get busy and forget lots of minor items. Can you tell me in an email again what it is exactly that you want us to provide. For example, installation instructions for ___________ brand of siding. I will ask again if they have the installation instructions on the Atrium windows. I actually just had some installed in my home. I can make a copy of the installation instructions that are included in the plastic bag that comes with each window. However, I must tell you that my installer uses a totally different approach to the installation and I like his approach much better. He installs from the exterior and not from the interior as shown in the instructions. I called and left a message with the contact at Atrium that I thought it was fine to provide you with any technical information such as what comes standard with each model of window, etc, but that we were requiring a subpoena for any customer specific records, to avoid any privacy violations. I also want to let you know that there is a label in the top of the slot when you pull down the upper sash that has specific information from the manufacturer about that window. I have not looked on my windows to see if they list Argon or not. I will try to remember to do that tonight.
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