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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.
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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,         )
Plaintiff,                                                   )            
                                                               )            Civil Action File No.:  
v.                                                             )                       05A06942-9
                                                               )                filed July 1, 2005
RON MCKINNEY,                                     )
Defendant.                                                )


DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

COMES NOW Defendant, Ron McKinney and moves the Court, pursuant to O.C.G.A. 9-11-12(b)(6) to dismiss Plaintiff’s Complaint against him for failure to state a claim against Defendant upon which relief can be granted.

1.

The complaint alleges a cause of action for breach of contract.

2.

Plaintiff's complaint fails to allege performance on its part of a condition precedent established by the Plaintiff's contract, Plaintiff's Exhibit "A". (See O.C.G.A 13-3-4)

3.

Plaintiff's complaint fails to allege a legal excuse for its nonperformance.

4.

According to Plaintiff's Exhibit "A," funds are “payable, in cash, net, upon completion of the work."

5.

The contract further states "the acknowledgment of the completion of the work, … shall be sufficient notice that this contract has been satisfactorily completed by the contractor on the date thereof in accordance with terms of this contract."

6.

The burden on the Plaintiff is to present or allege to this Honorable Court the possession of a written "acknowledgment of the completion of the work signed by the owner of said premises" or a valid legal reason to explain its nonexistence.

7.

The acknowledgment of the completion of the work is absent from Plaintiff's complaint as evidence or as an alleged fact.

8.

A valid legal reason excusing Plaintiff's nonperformance is also absent from Plaintiff's complaint.

9.

Without this document, Plaintiff does not have a valid claim against Defendant for "Defendant's failure to pay Plaintiff for its work, …" and Plaintiff is not “entitled to recover pursuant to the contract the work, the contract price of $16,000.00." [Paragraph 11, Plaintiff's complaint].

10.

Plaintiff seeking to enforce an alleged contract has the burden and must show performance on his part; otherwise, he is not entitled to a verdict against defendant. Jones v. Brawer, 287 S.E. 2d 255, 160 Ga.App. 314. (1981)

11.

When plaintiff's right to recover on contract depends upon condition precedent to be performed by him, he must allege and prove performance of that condition or allege sufficient legal excuse for its nonperformance. Sagon Motorhomes, Inc. v. Southtrust Bank of Georgia, N.A., 484 S.E. 2d 21, 225 Ga.App. 348, reconsideration denied. (1997)

12.

Where a plaintiff's right to recover on a contract depends upon a condition precedent to be performed by him, he must allege and prove the performance of such condition or allege sufficient legal cause for its nonperformance.  Code20-110 Sellers v. City of Summerville, 67 S.E. 2d 137, 208 Ga 361.(1951)

13.

Therefore, even if all the allegations against Defendant are true, Plaintiff has not carried its legal burden to demonstrate that it is entitled to a claim for relief and Plaintiff’s Complaint should be dismissed for failure to state a claim.          WHEREFORE, Defendant prays that his Motion be granted and that Plaintiff’s Complaint against him be dismissed, and that Defendant have such other and further relief as the Court may deem reasonable and just under the circumstances. This ______ day of July 2005 Respectfully submitted,

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA 30039 770-979-1254

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA 30328 404-252-2230 Incl. Defendants Affidavit Certificate of Service Defendant’s Notice of Motion Proposed Order

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 1, 2005       Defendant.                                  )

CERTIFICATE OF SERVICE

UNDER PENALTY OF PERJURY, I CERTIFY that a true and exact copy of   DEFENDANTS’ MOTION TO DISMISS was provided to Plaintiffs Attorney at the address listed below by depositing the same in the United States Mails, with sufficient postage thereon


this ______ day of July 2005.

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254  

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA 30328 404-252-2230

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 1, 2005       Defendant.                                  )

DEFENDANT’S NOTICE OF MOTION COMES NOW, the Defendant Ron McKinney and gives sufficient notice to all parties pursuant to Uniform Superior Court Rule 6.1 and 6.2, of the filing of Defendant’s Motion to Dismiss Complaint For Failure to State a Claim Against Defendant Upon Which Relief Can Be Granted O.C.G.A. 9-11-12(b)(6).

This ______ day of July 2005, Respectfully submitted,

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254  

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA  30328 404-252-2230 Original Filed

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 1, 2005       Defendant.                                  )

VERIFICATION

I, Ron McKinney, certify that I have read the foregoing document and that to the best of my knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or a needless increase in the cost of litigation. All facts plead therein are herein incorporated.

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254  

State of Georgia, County of Gwinnett BEFORE ME personally appeared, Ron McKinney who, being by me first duly sworn and identified in accordance with Georgia law, did execute the foregoing in my presence This ____ day of ____________ 2005, __________________________ Notary Public My commission expires:

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 1, 2005       Defendant.                                  )

ORDER OF DISMISSAL

Upon the motion of defendant, Ron McKinney, for an order of dismissal, the court, having considered all the criteria set forth, and satisfactory proof having been made, orders the action dismissed. IT IS ORDERED that:

This action be dismissed on this ______day of ________, 2005,


_______________________________ Superior Court Judge.

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA  30328 404-252-2230 Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA 30039 770-979-1254

Proposed Order Under Rule 14 respectfully submitted by Defendant.
































































































































































































IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,         )
Plaintiff,                                                   )            
                                                               )            Civil Action File No.:  
v.                                                             )                       05A06942-9
                                                               )                filed July 5, 2005
RON MCKINNEY,                                     )
Defendant.                                                )


DEFENDANT'S MOTION TO STRIKE COMPLAINT

COMES NOW Defendant, Ron McKinney and moves the Court, pursuant to O.C.G.A. 9-11-12(f) to strike portions of Plaintiff's Complaint as Scandalous and states in support therefor as follows:

1.

Plaintiff's Complaint Paragraph 5 states, "On or about November 2, 2004, Plaintiff completed the work on Defendant's residence."

2.

Plaintiff's statement is a scandalous bald-face lie.

3.

Plaintiff knows the contract requires a written "acknowledgment of work completed" as evidence.

4.

Plaintiff also knows that it does not possess a written "acknowledgment of work completed."

5.

Plaintiff knows Defendant has no “vinyl shutters” installed on the front of the house.

6.

Plaintiff knows the “deck,” “stairs,” and cement “slab” do not meet code, and failed on inspection.

7.

Plaintiff knows the “vinyl replacement windows” do not have “argon gas,” but do have several torn “screens,” and unfinished mortar around the windows in the stonework on the front of the house.

8.

Plaintiff knows the sheet rock was damaged carelessly and needlessly and not through the normal installation of windows.

9.

Plaintiff knows the “greenguard plastic house wrap” installed under the “vinyl siding” is not “taped at seams.”

10.

Plaintiff knows the cleanup and “disposal of” debris was not done.

11.

THEREFORE Defendant moves the Court to strike Paragraph 5 of Plaintiff's complaint as Scandalous.

12.

Plaintiff's Complaint Paragraph 6 states in part: "After Plaintiff's work was completed and payment was due, Defendant began to complain about minor detail aspects of the work done to his residence,"

13.

Plaintiff's statement is a scandalous bald-face lie.

14.

Common sense says issues of structural integrity and soundness of design for human safety reasons, amongst the many other issues raised; by definition, are not "minor."

15.

THEREFORE Defendant moves the Court to strike this part of Paragraph 6 of Plaintiff's complaint as scandalous.

16.

Plaintiff's Complaint Paragraph 6 states in part: "Plaintiff made repeated attempts to satisfy any and all complaints made by Defendant concerning the work.  However, Defendant continued to complain and withhold payment of the contract price despite completion of the work and extra work done (at no cost) in an attempt to satisfy Defendant."

17.

Plaintiff's statement is a scandalous bald-face lie.

18.

Plaintiff cannot provide this court with any evidence whatsoever of even one good faith effort to resolve these issues.

19.

Plaintiff cannot provide this court with any evidence whatsoever of even one hour of "extra work done (at no cost)."

20.

THEREFORE Defendant moves the Court to strike this part of Paragraph 6 of Plaintiff's complaint as scandalous.

21.

Plaintiff's Complaint Paragraph 10 states: "Plaintiff completed the work as set forth by the contract in a professional and workmanlike manner.  However, to date Defendant has not remitted contract price to Plaintiff."

22.

Plaintiff's statement is a scandalous bald-face lie, not to mention redundant.  

23.

Professionals, by definition, are concerned about structural integrity, safety and code compliance, amongst other things.

24.

Plaintiff is incapable of showing this honorable court any evidence of its professional skills in dealing with Defendant on the issues in dispute.

25.

THEREFORE Defendant moves the Court to strike Paragraph 10 of Plaintiff's complaint as scandalous.

26.

Plaintiff's Complaint Paragraph 11 states: "Defendant's failure to pay Plaintiff for its work constitutes a breach of contract. Plaintiff is entitled to recover pursuant to the contract the work, the contract price of $16,000.00."

27.

Plaintiff's statement is a scandalous bald-face lie, not to mention bad English.

28.

Defendant has not "failed" to pay,

29.

Defendant asserts his right to refuse to pay until the contract is “satisfactory completed by the contractor” or by negotiated settlement, as is his rightful recourse pursuant to the contract and which was the indisputable understanding of both parties at the time of signing.

30.

THEREFORE Defendant moves the Court to strike Paragraph 11 of Plaintiff's complaint as scandalous.

31.

Plaintiff's Complaint Paragraph 13 states: “Pursuant to the terms of the parties contract, Plaintiff is entitled to recover any and all reasonable attorney's fees expended by the Plaintiff as a result of Defendant's breach of contract and Plaintiff's consequential filing of this lawsuit in order to recover its contract price.”

32.

Defendant objects, and states, the understanding of both parties at the time of signing was certainly not that Insulated Wall Systems, the Plaintiff, could breach and still collect attorney fees. Plaintiff's Paragraph 13 would be accurate if, and only if, Plaintiff had the cause of action set forth in Paragraphs 5, 6, 10 and 11. However, Paragraph 13 standing by itself without sufficient grounds makes it a scandalous bald-face lie.

33.

THEREFORE Defendant moves the Court to strike Paragraph 13 of Plaintiff's complaint.

34.

Defendant further shows, as evidence of Plaintiff’s knowledge, Plaintiff’s Letter, written to Defendant, by Plaintiff’s Representative, John J. Tabor, the person who actually signed the contract in this dispute.

35.

The Plaintiff’s letter is dated January 4, 2005, and was received by Defendant on January 6, 2005, by certified mail. A true and correct copy of John J. Tabor’s Letter, the envelope marked certified and Defendant’s Affidavit is attached hereto as Defendant’s Exhibit "A."

36.

Defendant’s “Exhibit A,” is evidence that Plaintiff’s Representative, John J. Tabor, knows the statements in paragraphs 5, 6, 10, and 11, are wholly false and knew the statements were false at the time this complaint was filed.

37.

Defendant’s “Exhibit A” shows the Court evidence of Plaintiff’s professionalism, and workmanlike attitude toward its work and its customer.

38.

Further, Defendant’s “Exhibit A,” was received by Defendant in response to Defendant’s letter to Plaintiff, dated December 20, 2004.

39.

Defendant further shows, the letter, herein referred to as “Defendant’s Letter” or “Exhibit B” that was written on December 20, 2004, by the Defendant.

40.

The letter was written to John Tabor, of Insulated Wall Systems, Inc., and was received and signed for by Plaintiff through certified mail on December 22, 2004. A true and correct copy of Defendant’s Letter, the certified mail receipt, and Defendant’s Affidavit is attached hereto as Defendant’s Exhibit "B."

41.

Defendant’s letter expresses Defendant’s serious concerns and specific issues with the work and the proposed fixes. The letter was written after Defendant had the work inspected in an effort to see if the work actually is in “strict accordance with the ordinances, rules, and requirements” including Building Permit requirements, as the contract states it would be, which as it turns out, it is not.          WHEREFORE, Defendant moves this Court to enter an Order striking from the record of this cause the 13th paragraph along with the 5th, 6th,10th, and 11th paragraphs of the complaint, with due consideration of O.C.G.A.16-8-3(b)(1) and (2), and O.C.G.A.16-10-71(a), and pursuant to O.C.G.A.9-11-12(f), granting such other and further relief as the Court may deem reasonable and just under the circumstances. This ______ day of July 2005 Respectfully submitted,

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA 30328 404-252-2230 Incl. Defendant’s Exhibit "A” with Affidavit Defendant’s Exhibit "B” with Affidavit Verification Certificate of Service Defendant’s Notice of Motion To Strike Proposed Order

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 5, 2005       Defendant.                                  )

AFFIDAVIT Exhibit "A"

BEFORE ME, personally appeared Ron McKinney, who being by me first duly sworn and identified in accordance with Georgia Law, deposes and says: 1.      My name is Ron McKinney. 2.      The letter attached as “Exhibit A” is a true copy of the letter I personally received. 3.      I signed for the receipt of this letter from the post person. 4.      The letter is addressed to my wife and I, from John J. Tabor, at Insulated Wall Systems, Inc. 5.      I kept the letter for my records and attached the envelope marked certified. 6.      This is a copy of the original letter from my files; it has not been altered or changed in any way from its original state, on the day that I received it.                                

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254

State of Georgia, County of Gwinnett BEFORE ME personally appeared, Ron McKinney who, being by me first duly sworn and identified in accordance with Georgia law, did execute the foregoing in my presence This ____ day of ____________ 2005, __________________________ Notary Public My commission expires:

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 5, 2005       Defendant.                                  )

AFFIDAVIT Defendant's Exhibit "B"

BEFORE ME, personally appeared Ron McKinney, who being by me first duly sworn and identified in accordance with Georgia Law, deposes and says: 1.      My name is Ron McKinney. 2.      The letter attached as Exhibit "B” is a true copy of the letter I personally wrote on December 20, 2004. 3.      I put the original of this letter in an envelope and mailed it with proper postage “certified return receipt requested” to John Tabor, at Insulated Wall Systems, Inc. on December 20, 2004. 4.      I kept a copy of the letter and the certified receipt # 7004 2510 0000 7912 2543 in my files along with the attached online track and confirm record of its delivery. 5.      The receipt attached is the receipt from the post office from the mailing of this item. 6.      I attached the track and confirm record from the online post office for item#7004 2510 0000 7912 2543 showing delivered on December 22, 2004. This copy of the letter is from my files; it has not been altered or changed in any way from its original state, when I filed it.

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254

State of Georgia, County of Gwinnett BEFORE ME personally appeared, Ron McKinney who, being by me first duly sworn and identified in accordance with Georgia law, did execute the foregoing in my presence This ____ day of ____________ 2005, __________________________ Notary Public My commission expires:

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 5, 2005       Defendant.                                  )

CERTIFICATE OF SERVICE

UNDER PENALTY OF PERJURY, I CERTIFY that a true and exact copy of  DEFENDANTS’ MOTION TO STRIKE was provided to Plaintiffs Attorney at the address listed below by depositing the same in the United States Mails, with sufficient postage thereon


this ______ day of July 2005.

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA 30328 404-252-2230

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 5, 2005       Defendant.                                  )

DEFENDANT’S NOTICE OF MOTION TO STRIKE  

COMES NOW, the Defendant Ron McKinney and requests the Court’s leave to consolidate this motion, if necessary, pursuant to Georgia Rules of Civil Procedure Rule 12(g) with Defendant’s Motion to Dismiss, and gives sufficient notice to all parties pursuant to Uniform Superior Court Rule 6.1 and 6.2, of the filing of Defendant’s Motion to Strike Paragraphs 5, 6, 10, 11, 13 of Plaintiff’s Complaint pursuant to O.C.G.A. 9-11-12(f).


This ______ day of July 2005, Respectfully submitted,

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254

Sent to: Jana Tabor, Attorney for Plaintiff Barrickman, Allred & Young, LLC 5775 Glenridge Drive Building A Suite 100 Atlanta, GA  30328 404-252-2230 Original Filed

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 5, 2005       Defendant.                                  )

VERIFICATION

I, Ron McKinney, certify that I have read the foregoing Motion to Strike and that to the best of my knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or a needless increase in the cost of litigation. All facts plead therein are herein incorporated.

_____________________________ Ron McKinney, Defendant Pro Se 4083 Red Laurel Way Snellville, GA  30039 770-979-1254

State of Georgia, County of Gwinnett BEFORE ME personally appeared, Ron McKinney who, being by me first duly sworn and identified in accordance with Georgia law, did execute the foregoing in my presence This ____ day of ____________ 2005, __________________________ Notary Public My commission expires:

IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA

INSULATED WALL SYSTEMS, INC.,   )        Plaintiff,                                     )      Civil Action File No.:   v.                                                      )           05A06942-8 RON MCKINNEY,                              )          filed July 5, 2005       Defendant.                                  )

ORDER GRANTING MOTION TO STRIKE

Defendant’s Motion to Strike having been read and considered, and the Court having considered the full record and all submissions and argument of counsel, and having determined that portions of Plaintiff’s Complaint should be stricken under the authority of O.C.G.A 9-11-12(f), IT IS HEREBY ORDERED that Defendant’s Motion is granted and paragraphs 5, 6, 10, 11, and 13 of Plaintiff’s Complaint are hereby stricken from the said Complaint.

SO ORDERED this ______day of ________, 2005,


/S/_______________________________ Judge, Superior Court of Gwinnett County, Georgia

Send to: Jana Tabor, Attorney for Plaintiff                                 Ron McKinney, Defendant Pro Se Barrickman, Allred & Young, LLC                               4083 Red Laurel Way 5775 Glenridge Drive                                                 Snellville, GA 30039 Building A Suite 100                                                  770-979-1254 Atlanta, GA  30328 404-252-2230

Proposed Order respectfully submitted by Defendant.




































































































































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