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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
                                                                     )
RON MCKINNEY,                                           )
Defendant.                                                     )


PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS
  
PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS

COMES NOW PLAINTIFF Insulated Walls Systems, Inc. ("IWS"), and in accordance with Uniform Superior Court Rule 6.5, files this statement of Undisputed Facts in Support of its Motion for Partial Summary Judgment.  The following fact are not in dispute:

1.  Plaintiff and Defendant entered into a written contract for home renovation work on or about August 23, 2004.  A true and correct copy of that contract is attached to Plaintiff's Brief in Support of Motion for Partial Summary Judgment as Exhibit "B".

2.  Defendant is not the legal owner of the property located at 4083 Red Laurel Way Snellville, GA.  That is the property upon which Plaintiff engaged independent subcontractors to perform construction work which is at issue in this case.

3.  Defendant's wife does not own the real property identified in Statement 2.

4.  3F Foundation is the legal owner of the real property identified in Statement 2.

5.  Series 40 Windows can be equipped with low-e glazing and argon gas.

6.  Series 40 Windows installed by IWS were equipped with low-e glazing.

7.  The Series 40 windows installed by IWS were not equipped with argon gas.

8.  The only "threats" of litigation made by IWS were Mr. Tabor's verbal statement at a December 15,2004 meeting and his letter dated January 4, 2005.

9.  IWS filed a mechanics/materialsman's lien against the property where Defendant resides on January 3, 2005.  A true and correct copy of that lien is attached to Plaintiff's Brief in Support of Motion for Partial Summary Judgment as Exhibit "D".

10.  In the summer of 2004, Defendant responded to a postcard mailed out on behalf of IWS soliciting residential siding work.

11.  Sometime in July, 2004, John Tabor, president of IWS, met with Defendant and his wife about the possibility of residing the house.

12.  There were also discussions about replacing the house's windows with vinyl windows and the removal and replacement of a deck.

13.  This meeting led to a second where there were additional discussions regarding the installation of a concrete slab adjacent to the rear of the house.

14.  Defendant told Mr. Tabor that he wanted to install a simple screen porch atop the slab.

15.  Mr. Tabor told Defendant that IWS was not in the business of pouring concrete slabs or building decks.

16.  Defendant stated that he was on a tight budget and price was an essential element in letting the contract.

17.  Mr. Tabor told Defendant he had a handyman who did odd jobs for him and he could have him build the simple slab and the deck.

18.  There were additional elements to the finally agreed upon contract including a small deck adjacent to the house's  front door and gutter replacement.

19.  The contract price of $16,000.00 was to be remitted in cash by Defendant upon completion of the work.

20.  All work done on behalf of IWS was done by independent subcontractors.

21.  The existing siding on the house was not removed.  Vinyl siding was installed over the existing siding.  Sixteen inch vinyl siding was installed over one quarter inch foam board.

22.  The greenguard housewrap was installed.

23.  The original deck was removed from the house.  The new deck as outlined in the contract was constructed.

24.  The deck adjacent to the front door was also constructed.

23.  The existing windows in the house were removed and new windows, the type and model designated in the contract, were installed.

24.  Other than this lack of argon gas, the only other item of work as outlined in the contract that was not received were two pair of vinyl shutters.

25.  Defendant decided to install a drain in the middle of the concrete slab that was not specified in the contract.

26.  Mr. Tabor offered to install a brick column beneath the deck to alleviate Defendant's concerns regarding the deck.

27.  The Defendant never paid for the work performed by IWS.

May 1, 2009

Jana B. Tabor  bla bla

Certificate of Service

bla bla
bla bla
bla bla

PLAINTIFF'S STATMENT OF THEORIES OF RECOVERY
  
COMES NOW PLAINTIFF Insulated Wall Systems, Inc. ("IWS"), and in accordance with Uniform Superior Court Rule 6.5. files this statement of Theories of Recovery in Support of its Motion for Partial Summary Judgment.  IWS is entitled to summary judgment for the following reasons:
  
1.  Count 1 of Defendant's Counterclaim is for Breach of Contract.  Part of his claim is that IWS breached the parties contract by failing to adhere to the Gwinnett County Building Code in the construction of a deck and concrete slab.  IWS is entitled to summary judgment that said building codes are not part of the parties contract.  The code is not contained with the contract and the document's merger clause prohibits parol evidence to construe its terms.  Even if the contract were subject to interpretation, the document does not incorporate by reference certain ordinances and the lack of county building codes in the language evidences that they were not meant to be included.  Finally, to the extent that there is a question of interpretation, the written portions of the contract, to the extent they conflict with a pre-printed form, are to be given more weight and followed over the printed terms.
  
2.  Count 2 of Defendant's Counterclaim is entitled "Assumption of Duty".  There is no evidence of any duty Defendant legally had that he did not perform as result of any assurances by IWS that it would perform the function.  In addition, nothing contained with the specific paragraphs of that Count, nor anywhere else in the Counterclaim, reference any work performed (or not performed) by IWS beyond the scope of the work outlined in the parties written contract.  To the extent that the counterclaim only references contractually agreed upon work, there are no facts to support the IWS undertook additional work and then did it improperly or failed to do it at all. Finally, there is no evidence that Defendant did not perform any legal obligation as a result of actions taken by IWS.  Defendant has not established facts to support such a claim and therefore IWS is entitled to summary judgment on that claim.
  
3.  Count 3 of Defendant's Counterclaim is designated as a claim for negligent Installation of Home Improvements.  IWS is entitled to summary judgment on this claim because the Defendant lacks standing to bring a negligent construction claim as he is not the owner of the property upon which IWS made the improvements in question.  Only the legal owner of such real property is vested with such a claim.
  
4.  Count 4 of Defendant's Counterclaim is designated a Misrepresentation claim.  The allegations of that Count are that the Defendant failed to get the windows that he thought he was getting.  It is without dispute that the type of windows installed in Defendant's home are those quoted in the parties contract.  Therefore, IWS is entitled to summary judgment on the issue that the windows installed were the windows contracted for.  To the extent that the windows are installed lacked a specific feature (argon gas)  that was contracted for, there is no evidence to support a claim that when contracted for those windows could not be equipped with that feature.  The lack of argon gas was a result of miscommunication between IWS and the supplier, not as a result of a misrepresentation that said windows contained such feature when in fact they could not be equipped with such gas.  The lack of any evidence to support such contention entitles IWS to summary judgment on Count 4.
  
5.  Count 5 of Defendant's Counterclaim is designated "Fraud".  Defendant contends that statements such as "satisfaction guaranteed" made in the advertising flyers distributed on behalf of IWS were fraudulent. Any such statements are barred as a basis for recovery by the contracts, merger clause.  In addition, such statements constitute nothing more than sales puffery and are not actionable as a matter of law to sustain a claim of fraud.
  
6.  Count 6 of Defendant's Counterclaim is designated "Conspiracy".  Defendant contends IWS has entered into an agreement with undersigned counsel to pursue a breach of contract claim in this lawsuit, that IWS has no right to pursue that claim and therefore the lawsuit and actions taken by IWS prior to filing such as the attachment of a mechanic's lien is evidence of that conspiracy.  IWS is entitled to summary judgment on that claim as it had a contract with Defendant to perform construction services which were undisputedly performed. The dispute is about how they were performed.  There can be no colorable claim of conspiracy for an act a party has a lawful right to exercise.  IWS has a legal right to pursue Defendant for his failure to pay for construction work he contractually agreed to pay for.  IWS had the legal right to file a mechanic's lien and Defendant lacks standing to complain as he is not the owner of the property in question.  IWS has the right to select counsel of its choosing.  There being no evidence to support a conspiracy claim, IWS is entitled to summary judgment.
  
7.  Count 7  of Defendant's Counterclaim is designated "Conspiracy to Commit Extortion".  IWS is entitled to summary judgment to the extent the claims offers no allegation which would make Count 7 a distinct legal claim form Count 6.  In addition, IWS is entitled to summary judgment as no allegation made constitutes extortion as defined by statute.
  
8.  Count 8 of Defendant's counterclaim is designated "Intentional Infliction of Emotional Distress."  Assuming solely for purposes of argument that each allegation made by Defendant with reference to this claim is true, IWS is entitled to summary judgment on the claim as no allegation rises to the level of egregious conduct necessitated to sustain such a claim.  In addition, to the extent that allegations made relate to the feelings and happiness of persons other than himself, he lacks standing to make such claim(s).
  
May 1, 2007
  
Jana Tabor
bla bla
  
Certificate of Service
  
bla bla



























IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

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


PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
  
COMES NOW PLAINTIFF Insulated Wall Systems, Inc. and in accordance with O.C.G.A 9-11-56, moves for summary judgment on Counts 1, 2, 3, 4, 5, 6, 7, and 8 of Defendant's Counterclaim. For the reasons set forth in Plaintiff's Brief in Support of the Motion, filed concurrently herewith, along with sworn testimony and other admissible evidence, Plaintiff respectfully requests that its Motion be Granted.
  
May 1, 2007
  
Jana Tabor
 
bla bla
  
Certificate of Service
  
bla bla

  

BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
  
COMES NOW PLAINTIFF Insulated Wall Systems, Inc. ("IWS"), and in support of its motion for summary judgment on portions of Count 1 and Counts 2 through 8 in their entirety of Defendant's Counterclaim, states the following:
  
Introduction
  
The parties to this lawsuit once contracted for home improvements.  After several meetings, the scope of the work was spelled out in writing.  As the work progressed, the Defendant, an unemployed electrical engineer, was constantly on site "directing" work as he saw fit, regardless of the contract terms.  When he was not trying to change the work, he was complaining about how it was being performed. When the work was substantially completed, John Tabor, president of IWS, met with Defendant about his "complaints". Realizing that the complaints exceeded the scope of the work and knowing that many efforts had already been made by subcontractors to satisfy the Defendant, IWS walked off the job.
  
In this lawsuit, IWS seeks to recover the contractually agreed upon price of the work, $16,000.00 plus attorney's fees as provided in the parties' contract.  Defendant's counterclaim included not only a claim for breach of contract, but many others, most of which cannot be substantiated in either fact and/or law.  This motion seeks judgment on those claims.
  
Statement of Facts
  
In the summer of 2004, Defendant responded to a postcard mailed out on behalf of IWS soliciting residential siding work. (McKinney dep. p. 12).  At that time, Defendant was in the market to have the house he lives in resided and windows replaced. Id. at 13.  He had solicited and received quotes from several other siding contractors. Id. Defendant lives in a house which still had as an exterior facade the originals cedar plank siding installed upon the house sometime prior to 1987. Id. at 78.  The Defendant does not own the property. Id. at 10.  His wife does not own the property. (Robyn McKinney dep. p. 5) It is neither his nor his wife's "business" to know who owns the house. Id. at 10, 11; (Robyn McKinney dep. p. 5,6). 1
  
1. The property owner is listed on the deed as "3F Foundation".  A certified copy of that deed is attached hereto as Exhibit "A".  Defendant claims he does not know what is the business of the 3F Foundation (Mckinney dep. p.10).
  
Defendant arranged a meeting at his residence with a representative of IWS. (McKinney dep. p. 12).  Sometime in July, 2004, John Tabor, president of IWS, met with Defendant and his wife about the possibility of residing the house. Id. at 13.  At the initial meeting there were also discussions about replacing the house's windows with vinyl windows and removal and replacement of a deck. Id. at 20.
  
This meeting led to a second where there were additional discussions regarding the installation of a concrete slab adjacent to the rear of the house. Id. at 29.  Defendant told Mr. Tabor that he wanted to install a simple screen porch atop the slab. Id. ; (Tabor dep. p. 78).  Mr. Tabor told Defendant that IWS was not in the business of pouring concrete slabs or building decks. (Tabor dep. p. 84).  Defendant stated that he was on a tight budget and price was an essential element in letting the contract. Id. at 71.  In an effort to help the Defendant, Mr. Tabor told Defendant he had a handyman who did odd jobs for him and he could have him build the simple slab and the deck. Id. at 84.
  
Mr. Tabor also gave Defendant a brochure on the windows he offered to install. (McKinney dep. p. 30).  He also showed the Defendant a sample window. Id. There were discussions concerning the inclusion of low-e glazing and argon gas in the windows. Id. at 18.  The parties also went outside the house to discuss in detail what Defendant wanted in a deck. Id.
  
There were additional elements to the finally agreed upon contract including a small deck adjacent to the house's front door and gutter replacement.  On August 23, 2004 Mr. Tabor made a third trip to the McKinney's residence and the written contract was signed.  A true and correct copy of that contract is attached hereto as Exhibit "B",  (Complaint p3; answer p1).  The contract price of $16,000 was to be remitted in cash by Defendant upon completion of the work.  Exhibit "B".
  
Work on the McKinney residence began within the weeks following the signing of the contract.  All work done on behalf of IWS was done by independent subcontractors.  (Tabor dep. pp. 122-3, 147).  The existing siding on the house was not removed. Id. at 129.  Vinyl siding was installed over the existing siding in accordance with the terms of the contract.  Sixteen inch vinyl siding was installed over one quarter inch foam board. (McKinney dep. p. 36); Exhibit "B" at p. 2.  The gutters as described in the contract were also installed. Id. at 37.  The greenguard housewrap was installed. Id. The original deck was removed from the house. Id. at 38.  The new deck as outlined in the contract was constructed. Id. The deck adjacent to the front door was also completed. id.
  
The existing windows in the house were removed and new windows, the type and model designated in the contract, were also installed. Id. at 33.  The windows did not contain argon gas due to an incorrect assumption by IWS that the distributor would provide the windows with the argon without necessity of specific designation.  (Tabor dep. pp. 115, 119).  Defendant admits that other than this lack of argon gas, the only other item of work as outlined in the contract that was not received were two pair of vinyl shutter. (Mckinney dep. p. 39). 2
  
2.  As outlined infra, the other two elements the Defendant complains he did not receive were seams taped and the lack of a smooth finish on the slab.  (Mckinney dep. p. 39).  However, he does not understand what seams were taped and his own intervention and attempts to change the work prevented the smooth slab.
  
This is not to say that the Defendant was satisfied with the work's "quality". Every subcontractor sent to the job complained to IWS about the Defendant's interference and attempts to change the work.  (Tabor dep. pp. 96, 101).  For example, Defendant decided to install a drain in the middle of the concrete slab that was not specified in the contract.  (Mckinney dep.p. 48, 49); (Statement of Undisputed Fact.p15).  The attempt to install that drain included removal of footings and an attempt to slob the slab made it almost impossible to create a smooth surface. (Tabor dep. p. 71). 3
  
3.  At the time of contracting, Defendant stated he intended to build a screen porch on the slab. Presumably, such structure in and of itself would have included means for moving water away from the structure.
 
By December, 2004, Defendant had received every item in the contract, with the exception of the window's argon gas and the vinyl shutters. (Statement of Undisputed Fact, p 24).  Mr. Tabor again returned to the property in an attempt to finalize the project. (McKinney dep. p. 45).  The Defendant met Mr. Tabor at the property and began to complain about many aspects of the job.  Most of his objections revolved around his insistence that items had been improperly installed.  Id. at 46.  He based his position on his review of county building codes and alleged conversations with a home inspector. Id. at 48. Mr. Tabor offered to install a brick column beneath the deck to alleviate Defendant's concerns regarding the deck.  Id. at 47 (Statement of Undisputed Facts, p 26). Seeing that nothing could reasonably be done to satisfy the Defendant and in the face of all the complaints made by the subcontractors about the Defendant, IWS walked off the job. (Tabor dep. p. 116). The Defendant then sent IWS a series of letters demanding additional work not agreed upon and outlined in the contract's scope of work. (McKinney dep. Exhs. 3, 4,  5).  True and correct copies of those letters are collectively attached hereto as Exhibit "C".  The Defendant never paid for the work performed.  (Statement of Undisputed Facts, p 27).  When sued he alleged a Ten Count Counterclaim.
  
Standard of Review
  
It is the purpose of summary judgment for the trial court to determine whether the issues raised are ones in which there are no genuine issues of material fact.  O.C.G.A. 9-11-56(c).  The Defendant (or Defendant in Counterclaim) may prevail by showing the court that the documents, affidavits, depositions and other admissible evidence in the record reveal that there is no evidence sufficient the create a jury issue on at least one essential element of Plaintiff (of Plaintiff in Counterclaim's) case.  Lau's Corp. v. Haskins, 261 GA 491... If there is no evidence sufficient to create a genuine issue as to any essential element of a claim, that claim tumbles like a house of cards  Scarbrough v. Hallam, 240 ga ....  All other disputes of fact are rendered immaterial..Id. citing Holiday Ins. v. Newton, 157 GA  App.....  A Defendant (or Defendant in Counterclaim) who will not bear the burden of proof at trial need not affirmatively disprove the non moving parties case, instead, the burden is on the moving party to point out by reference to admissible evidence that there is an absence of evidence to support the non moving party's case.  Id. If the moving party discharges this burden, the nonmoving party cannot rest on his pleadings, but must point to specific evidence giving rise to a triable issue.  OCGA 9-11-56(e).
  
Argument and Citation of Authority
  
DEFENDANT'S BREACH OF CONTRACT CLAIM FAILS TO THE EXTENT IT ALLEGES THAT IWS BREACHED THE CONTRACT BY FAILING TO COMPLY WITH COUNTY BUILDING ORDINANCES.
  
Defendant's Counterclaim for Breach of Contract alleges IWS failed to comply with Gwinnet County Building Codes.  Specifically, Defendant alleges a breach of contract for failure to build a deck in accordance with the Gwinnett County Building Code (Counterclaim p 30) and the failure to build a concrete slab in accordance with that code (Counterclaim p 31).  As a mater of law, such allegations are insufficient to create a jury issue on the breach of contract claim because the Gwinnett County Building Codes are not a part of the parties contract therefore entitling IWS to summary judgment on this issue.
  
The Contract Merger Clause Bars the Claim
  
Contract construction is a matter of law for the court. OCGA 13-2-1; Black Island Homeowners Assn. v. Marra 272 ga app. 265.....  The trial court must decide whether the language is clear and unambiguous. Id. In this case, there is no provision in the contract which states that IWS will comply with Gwinnet County Building Codes in the construction of the replacement deck or slab or any other aspect of the work.  Exhibit "B".  Further, each page of the contract specifically states that "No Verbal Agreements [are] Recognized". Id. This "merger clause" binds the Defendant to these terms and bars the introduction of any parol evidence to support this contention.  Herman Homes, Inc. V. Smith, 249 ga app....  There being no requirement for such compliance contained within the contract, the Court should enforce the contract pursuant to its terms.  Britt v. Albright, 282 GA .... Therefore, IWS is entitled to summary judgment that said Building Codes in their entirety do not apply to the work performed in this case. 4
  
4.  IWS is not contenting that failure to comply with building codes is not a potential aspect of a tort claim for negligence construction.  It is only contenting that in this case Defendant cannot pursue the alleged failure to comply vis-a-vis a breach on contract claim.
  
The Incorporation by Reference of Certain Ordinances Evidence the Intent to Exclude County Building Codes.
  
Assuming solely for purposes of argument that the Court concludes that the issue of whether the application of these codes was meant to be part of the parties contract thereby warranting contract interpretation, the contracts terms clearly show that the Gwinnet County Building Codes were not meant to be incorporated by reference.  The contract does reference ordinance compliance.  The preprinted portion of the contract contains the following statement:
  
Contractor will do all said work in strict accordance with the ordinances, rules and requirements of the City, Town or Village, wherein the above mentioned property is located. Exhibit "B"
  
To the extent that these words were employed they must be given their usual and common significance.  OCGA 13-2-2(2).  In Georgia, the terms "City", "Town" and "Village" are synonymous and shall be held to mean municipal corporations when defined by statutory law and subject to judicial interpretation.  OCGA 36-30-1. "County" is designated by physical boundaries and is a body corporate.  OCGA 36-1-1.3.  Counties are divisions of the state whereas these other jurisdictions are creatures of statute.  Henderman v. Walton County Water & Sewage Auth. 271 ga 192...  Coffee County School Dist. v. Snipe, 216 GA  app.... Although the legislature clearly intended to make so legal distinction amoung cities, towns and villages, it clearly drew a legal distinction between counties and those municipalities.
  
The Contract does not use the "county". While the failure to employ the term Village or Town would not have prevented the Court from inferring their inclusion given the statutory declaration that they are synonymous, no such inference can be made concerning the county.  Therefore, IWS is entitled to summary judgment that compliance with Gwinnett County Building Codes was not part of the parties contract.
  
Handwritten Terms of a Contract supercede Printed Forms.
  
Finally, assuming solely for purposes of argument that the contract's language could be interpreted to include compliance with county building codes, that provision could potentially conflict with the specification outlined within the handwritten portions of the contract for the deck and slab.  Exhibit "B" pp. 2, 3.  In such case, the Court must give weight to that portion of the contract which was handwritten. OCGA 13-2-2(7); Holloman v. D.R. Horton, Inc. 241 ga app.....  IWS specifically outlined the scope of work of both the slab and deck.  Exhibit "B" pp. 2, 3.  Those terms govern the construction and even if the contract is subject to interpretation, those provisions are the ones which must be enforced.  If those specifications were not followed, that may be a potential for a breach of contract claim, but that is not the case here.  As such, IWS is entitled to summary judgment that whether it complied with the Gwinnet County Building Codes is not an actionable element of Defendant's Breach of Contract Counterclaim.
  
DEFENDANT'S ASSUMPTION OF DUTY CLAIM IS WITHOUT MERIT AS THERE IS NO EVIDENCE THAT IWS ASSUMED ANY DUTY OUTSIDE OF THE PARTIES CONTRACT.
  
Count 2 of Defendant's Counterclaim is entitled "Assumption of Duty" Assumption of Duty arises where one, by a gratuitous promise or other conduct which he should realize will cause another to reasonably to rely upon the performance of definite acts of service by him, causes another to refrain from having such acts done by other available means. ITT Terryphone Corp. v. Tri-State & Co. 178 ga app.... Mixon v. Dobbs, 149 ga app.
  
There is no evidence of Defendant's Forbearance of the Performance of a Legal Obligation.
  
The definition of Assumption of Duty requires that the claimant has a legal obligation or duty to do that which the torfeasor has undertaken.  Reese v. Southern Railway Co. Mimms v. Travelers Ins. Co.  In this case, there is no evidence to support that Defendant was under duty or obligation to do anything he is now complaining IWS gratuitously undertook to do. For this reason alone, his counterclaim fails to state a claim.
  
All Work Performed by IWS was Outlined in the Contract.
  
Secondly, every allegation made against IWS with reference to this claim relates to contractual duties.  Specifically, allegations are made concerning the quality of the work on the deck and slab, both of which were items of work listed in the parties contract.  Exhibit "B" p. 2,3.  There being a complete lack of evidence of "gratuitous duty" assumed by IWS, there can be no actionable claim for assumption of duty, thereby entitling IWS to summary judgment on Count 2.  Universal Underwritters, Ins. Co. v. Smith, 253 ga 588 ....
  
IWS Never Prevented Defendant from Performing any Legal Obligation.
  
Finally, assuming solely for purposes of argument that Defendant had evidence to support an assumed duty, there is no evidence that IWS taking on that duty caused the Defendant to refrain from doing those acts by other means.  all three elements are essential to sustain a claim for Assumption of Duty.  Itt Terryphone Corp....  The Defendant attempts to use contractual obligations undertaken by  IWS as his sole support for the claim. Such allegations fail to support any element and therefore, IWS is entitled to summary judgment on the claim.
  
DEFENDANT LACKS STANDING TO ASSERT A NEGLIGENT CONSTRUCTION CLAIM ENTITLING IWS TO SUMMARY JUDMENT ON HIS NEGLIGENT INSTALLTATION OF HOME IMPROVEMENT CLAIM
  
Georgia is one of a very few jurisdictions which allows the concurrent pursuit of a negligent construction claim and a breach of contract action.  Newberry v. D. R. Horton Inc. ... Sam Finley, Inc. v. Barnes, ... However, a tort is the unlawful violation of private legal right and to pursue a tort claim alleging property damage, the claimant must be the legal owner of that property.  OCGA51-1-1 E&M Constr. Co. V. Bob, ... Monroe v. Guess, ... This is consistently the case in negligent construction claims where property damages are alleged.. See e.g. ReMax The Mountain Co. v. Tabsum...Gropper v. Sto Corp.... Hickey v. Bowden ... Mitchell v. Contractors Specialty Supply,... Ryland Group v. Daley, ... Hanna v. mcWilliams,   Fort Oglethorpe Assoc. II v. Hail Constr. Co.
  
 To Recover Property Damage the Claimant Must be the Property Owner.
  
The Defendant is not the owner of the real property where all of the construction work which is at issue in this case was performed.. Exhibit "A".  The Defendant admits he is not the owner.  (McKinney dep. p. 10).  His wife is not the owner. (Robyn McKinney dep. p. 5).  The Defendant admits that a Nevada Corporation known as "3 F Foundation" is the owner.  (McKinney dep. pp. 10, 11).  Interestingly, neither he nor his wife has made it their business to know anything about the property owner. Id; (Robyn McKinney dep. pp. 5, 6.)
  
Without commenting on the merit of the claim, IWS does not dispute that the Defendant has the right to pursue a breach of contract claim in this case.  However, any claim concerning the work itself must be pursued through that vehicle.  The Defendant lacks standing to pursue any claim for alleged physical damage to the real property, including anything permanently attached thereto, where the IWS at issue was performed.  OCGA 44-1-2.  He merely dwells in the house and that does not bestow upon the right to pursue a claim for alleged damages to that house.  The Defendant having no right to pursue such claim as a matter of law entitles IWS on Count 3 of Defendant's Counterclaim.
  
THE EXPRESSED PROVISIONS OF THE PARTIES CONTRACT ENTITLE IWS TO SUMMARY JUDGMENT ON PLAINTIFF'S MISREPRESENTATION CLAIM.
  
The Civil Practice Act allows for notice pleading.  OCGA 9-11-9(e)(1).  However, claims at a minimum must be articulated in terms so as to clearly enable the Defendant to frame a response. Allen v. Bergman, 201...Count 4 of Defendant's Counterclaim is entitled "Misrepresentation". Counterclaim, p. 16).  However, this designation does not adequately describe the nature of the claim made thereafter.  A review of the specific statements made therein shows that Defendant is alleging that at the time the parties contract was signed, IWS has purposefully misled Defendant into believing that a series of vinyl replacement windows incorporating two features he wanted, low-e glazing and argon gas, referred to as "Series 60", were no longer available and that he must accept a different series of windows, referred as "Series 40" which also provided these two features.  (Counterclaim, pp 74-86).  He states that IWS knew that Series 60 windows were still available and that the same constitutes a "bait and switch" tactic. Id. at p 86.
  
The Defendant had the Duty to Read the Contract.
  
Assuming solely for purposes of argument that such statements were made on behalf of IWS, the parties contract specifically states that Series 40 windows will be installed.  Exhibit "B", p. 1.  The Defendant admits that he signed that contract and in executing the same, he had the duty to read it.  Pioneer Concrete Pumping Svs v. T & B Scottsdale Contractors, Inc.  (McKinney dep p. 32)  He is bound by the terms of that agreement.  Truelove v. Woodman of the World Life Ins. soc.... There are few rules of law that are more fundamental.  Charles s. Martin Distrib. co. v Bernhardt Furniture Co....  Defendant contracted for Series 40 windows and got Series 40 windows.  He cannot now claim that he was duped into getting something other than what he really wanted.  Therefore, he cannot articulate facts to support "misrepresentation" based upon Series 60 windows.
  
The Defendant Received the Product He Bargained For.
  
Even if the Defendant could articulate an actionable claim based solely on the fact he did not receive Series 60 windows, regardless that he contracted for Series 40 windows, the claim must fail as Defendant has not and cannot show any evidence that Series 60 Windows incorporated any feature which he wanted that could not be included in a Series 40 window.  Therefore, he would have no damage.  To pursue any tort claim and essential element is actual damages.  Howard v. mcFarland, 237 ... (to survive summary judgment must show damage to Plaintiff on fraud claim)  Reeve v. Edge, 225 ga.... (actionable fraud includes necessity of proving damages).
  
 The two window features Defendant consistently refers to as the source of his complaints are low-e glazing and argon gas. (Counterclaim pp 75, 79, 81).  It is undisputed that Series 40 windows could be equipped with low-e glazing and argon gas. (Statement of Undisputed Facts, pp 5).  It is undisputed Series 40 windows were installed. (McKinney dep. p33).  In addition, the Series 40 windows installed by IWS were equipped with low-e glazing. (Statement of Undisputed Facts. p6).
  
There is No Evidence of an Intention to Deprive Defendant of Product Bargained For.
  
The real issue concerning the windows is the lack of argon gas.  There is no dispute that the windows failed to employ this feature.  Id. at p 7.  However, to sustain a claim for purposeful "misrepresentation" (counterclaim, p 86)  or "civil fraud" (counterclaim, p 93) it is the Defendant's burden to show that at the time IWS stated it would install series 40 windows equipped with argon gas, as evidenced in the parties contract, IWS had no intention at that time to install Series 40 windows equipped with argon gas. Brock v. King, ....  The Defendant has not and cannot proffer any evidence that at the time these statements allegedly were made IWS did not intend to install the contractually agreed upon windows.  Actionable fraud does not result from the failure to perform a promise made.  Dickey v. Clipper Petroleum, Inc.  ...  Davis v. Whitford Properties, Inc., ... citing Hamilton v. Advance Leasing & Rent-A-Car, ...  Actionable fraud cannot be predicated upon promises to perform some act in the future.  Davis v. Whitford, ...
  
There are no facts to support a claim that IWS intended to install Series 40 windows lacking argon gas at the time the contract was signed.  This renders Defendant's "misrepresentation" claim insufficient as a matter of law.  Therefore, IWS is entitled to summary judgment on Count 4 of Defendant's Counterclaim.
  
IWS IS ENTITLED TO SUMMARY JUDGMENT ON DEFENDANT'S FRAUD CLAIM AS THE STATEMENTS AT ISSUE ARE NOT ACTIONABLE AS A MATTER OF LAW.
  
Count 5 of Defendant's Counterclaim alleges that IWS made statements about the quality of work prior to the execution of the contract that were "fraudulent".  Specifically, Defendant bases his claim on the phrase "satisfaction guaranteed" found in an advertising postcard published on behalf of IWS.  (Counterclaim, p 95-101).  No such statement is found within the body of the contract.  Exhibit "B".  He claims he was induced by this statement to sign the contract. Id. at p 104.
  
The Defendant Affirmed the Contract.
  
Generally, where fraud in the inducement claim is alleged, the claimant must pursue on of two options:  he can affirm the contract and sue for damages or rescind the contract and sue for fraud.  Ainsworth v. Perreault, ... Wilhite v. Mays,... Defendant affirmed the contract. 5  Therefore, as a matter of law, he cannot pursue a claim for fraudulent inducement thereby entitling IWS to summary judgment.
  
5.  Defendant made attempts during this litigation, some two and one half years after completion of the work, to return to IWS elements of its work. To the extent he may contend that said efforts constitute rescission, they are insufficient as a matter of law.  Rescission must be executed promptly upon discovery of the alleged fraud.. Crews v. Cisco Bros. Ford - Mercury, ... Price v. Mitchell, ...
  
 The Merger Clause Extinguishes any Viable Claim.
  
In addition, to the extent that Defendant is arguing that statements about his "satisfaction" were made on behalf by representatives of IWS before or after the contract was signed, regardless of his reliance thereon in signing the contract, the parties contract contains a merger clause and if a party affirms a contract containing a merger clause he is estopped from asserting fraud.  Authentic Architectural Millworks, v. SCM Group USAm ,,,  The merger clause operates as a disclaimer of all representations not found within the contract.  Meadow River Lumber Co. v. University of GA Research Foundation, ... Carpenter v. Curtis, ... Nixon v. Sandy Springs Fitness Center, ...
  
"Satisfaction Guaranteed" is not Actionable as a Matter of Law.
  
Assuming solely for purposes of argument that the Defendant could maintain a claim for fraud in the inducement despite his affirmation of that contract and its merger clause, IWS would nonetheless be entitled to summary judgment because "satisfaction guaranteed" falls within a category of statements that, as a matter of law, cannot be the basis for fraud.  It is well settled that words constituting "puffing" or expressions of opinion, although untrue, do not constitute false representations.  Hill v. Jay Pontiac, Inc. ...  These include statements made in advertisements or by sales people as to the quality of the product or the condition of the product such as statements that a vehicle is new (when used) or in excellent condition or free from defects (where mechanical problems exist).  Id. at 258.  Also, claims that a vehicle was suitable for driving or in good condition are mere puffery.  Randall v. smith, ...  Mere broken promises, unfulfilled predictions, and erroneous conjecture do not constitute actionable fraud. Hill v. Jay Pontiac, Inc. ... citing American Food Service v. Goldsmith, ...
  
In advertising, "satisfaction guaranteed" is the type of statement that any reasonable person would know is not binding.  If it were, and taken to the extreme as Defendant intends to take it, it would mean that anyone must be satisfied with a seller's performance of any work or product regardless of how ridiculous the claim that the buyer is not "satisfied".  The reasonableness of the work is no longer an issue.  Everything hinges on the buyer being uniquely "satisfied".  Sellers of cars would spend their time fixing every little scratch and dent on a vehicle, or better yet, supply the buyer with a new vehicle, just because of minute flaws.  Although a buyer contracted for a Honda he may not be "satisfied" unless he got a Mercedes.  Builders of houses would be constantly executing additional work because the house in questions paint were not exactly applied with perfection, or the driveway contained small cracks over time.  If a buyer would only be "satisfied" if the seller included many additions to the project beyond the contractually agreed to terms, regardless of the contractual specifications, would the seller have to perform these terms in order to avoid breach of that agreement and make sure the buyer was "satisfied"?
  
Reasonable people know that words such as "satisfaction guaranteed" are used in sales documents in an effort to imply that the seller recognizes that it wants its customers to be pleased with the seller's work.  In eighteen years of business, most of IWS' were satisfied.  Out of approximately 2000 jobs only two, including this one ended in litigation.  (Tabor dep. p. 150).  Defendant may not be "satisfied" but his lack of "satisfaction" does not constitute actionable fraud.  Therefore, IWS is entitled to summary judgment on Count 5 of Defendant's Counterclaim.
----------------------------------------------------

IWS IS ENTITLED TO SUMMARY JUDGMENT ON DEFENDANT'S CONSPIRACY COUNTERCLAIM AS THERE IS NO EVIDENCE OF ANY CONCERTED ILLEGAL ACTION GIVING RISE TO THE CLAIM.
  
A civil conspiracy is defined as a combination between two or more persons to do some unlawful act which is a tort or to do some lawful act by methods which constitute a tort.  U3S Corp v. Parker ...  Sofate of America v. Brown, ... citing Summer-Minter v. Giordano ...  A declaration of conspiracy does not change the nature of the action nor add to it legal force or effect.  Id.  The gist of the action is not the conspiracy alleged but the tort committed against the Plaintiff and the damage done thereby. Id.
  
This Lawsuit is a Legal Act.
  
In Count 6 Defendant is contending that he is a victim of a conspiracy between the President of IWS, John Tabor, and undersigned counsel.  The "ultimate" conspiracy is the filing the lawsuit.  (Counterclaim, p 117-119.)  There is nothing within the record to substantiate that this is a frivolous lawsuit.  In fact, if the Court will take consideration of Judge Hamil's order of August 17, 2005, it will note that the Defendant has already tried and failed to substantiate such a claim.  This lawsuit is a legal act taken by IWS.  Therefore, IWS is entitled to summary judgment on Count 6.
  
This Lawsuit Has not been Prosecuted in an Illegal Manner.
  
The acts the Defendant alleges that the "conspirators" have undertaken are (1) the threat of litigation, (2) the passage of time, (3) an unlawful lien, and (4) abusive litigation. (Counterclaim p 118).  The only threats of litigation made by IWS were Mr. Tabor's verbal statement at a December 15, 2004 meeting and his letter dated January 4, 2005. (Tabor dep. p. 116 Exh. 14)  (Statement of Undisputed Facts. p 8).  There is no basis in law or fact that these statements were illegal.  Therefore, these statements are not a predicate act upon which a conspiracy can be based.  In addition this lawsuit was brought within the 6 year statute of limitations on a breach of contract claim.  OCGA 9-3-24.  As a matter of law, the Defendant has no basis to contend that the passage of time bars Plaintiff's lawsuit.
  
With regard to the lien mentioned in the Counterclaim, in accordance with OCGA 44-14-360 et. seq. IWS filed a mechanics/materialman's lien against the property where Defendant resides on January 3, 2005.  A stamp-filed copy of that lien is attached hereto as Exhibit "D" (Statement of Undisputed Facts, p9).  This lien cannot be the predicate act for a conspiracy claim for several reasons.  First, by his own admission, construction work for which Defendant never paid was performed on the house that the Defendant lives in.  (Mckinney dep. pp. 33-39).  That is the property described in the lien.  Exhibit D.  Second, Defendant does not own that property and therefore, lacks standing to complain about the propriety of the lien.  OCGA 44-14-367.  In addition, that lien expired one year after it was taken out rendering any complaint about it moot. OCGA 44-14-361.1(a)(3).  Nothing about the way in which IWS filed this lien was illegal.  Therefore, the lien cannot be the basis for a conspiracy claim.
  
Finally, the allegation of "abusive litigation" cannot form the basis of a conspiracy.  Claims for abusive litigation statutorily regulated by statute. OCGA 51-7-80 et. seq.  By definition a claim cannot be abusive if it has substantial justification.  OCGA 51-7-81.  More importantly, abusive litigation claims cannot be pursued until after resolution of the lawsuit upon which the Plaintiff bases their claim and therefore, any such claim is premature in the context of this lawsuit.  OCGA 51-7-84.  There being no evidence to support that there is any illegal predicate act upon which to rest a conspiracy claim, IWS is entitled to summary judgment on Count 6.
  
There is no Evidence of a Concerted Action.
  
If we assume for purposes of this argument that the predicate acts alleged in the Counterclaim were sufficient to have a jury determine whether there was a conspiracy in this case, the claim, in large part, would fail as there is no evidence that IWS and undersigned counsel worked in concert to perform these acts.  There is no evidence that undersigned counsel ever threatened the Defendant with litigation prior to filing the lawsuit.  Likewise, there is no evidence that undersigned counsel filed the lien.  In fact John Tabor, president of IWS signed off on that lien.  Exhibit E.  As such, these two "acts" cannot form the basis of an alleged conspiracy as there is no evidence of a combination of persons doing something illegal.  Cook v. Robinson, ...  This lack of concerted act bars these allegations from being presented to a jury as predicate acts of conspiracy and therefore mandates summary judgment to IWS as to these two acts.
  
The Defendant has failed to show one illegal act a jury could consider in determining whether a conspiracy exists.  He likewise has shown no legal act carried out illegally.  For the reasons set forth above, IWS is entitled to summary judgment on Count 6 of Defendant's Counterclaim.
  
IWS IS ENTITLED TO SUMMARY JUDGMENT ON DEFENDANT'S CONSPIRACY TO COMMIT EXTORTION CLAIM AS THERE IS NO EVIDENCE OF ANY EFFORT TO EXTORT ANY PROPERTY FROM THE DEFENDANT.
  
Count 7 of the Defendant's Counterclaim reads like the allegations contained within Count 6. (Counterclaim p 126-135).  It specifically refers to the "conspiratorial acts" contained within Count 6. Id. at 126.  It is his contention that these "acts" were done by IWS and undersigned counsel in an "attempt" to extort $16,000.oo (the contract price) from the Defendant. Id at 132.  To the extent that this claim is merely a recitation of Count 6, IWS is entitled to summary judgment for the reasons set forth above and IWS adopts and incorporated by reference its arguments against Count 6 in regard to Count 7.
  
Independently IWS is entitled to summary judgment on Count 7 as no "conspiratorial act" alleged constitutes an act prohibited by Georgia's extortion statute.  OCGA 16-8-16 provides, in relevant part as follows:
  
(a) A person commits the offense of theft by extortion when he unlawfully obtains property of or from another person by threatening to:
  
(1)  Inflict bodily injury on anyone or commit any other criminal offense;
(2)  Accuse anyone of a criminal offense;
(3)  Disseminate any information tending to subject any person to hatred, contempt, or ridicule or to impair his credit or business repute;
(4)  Take or withhold action as a public official or cause an official to take or withhold action;
(5)  Bring about or continue to strike, boycott, or other collective unofficial action if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or
(6)  Testify or provide information or withhold testimony or information with respect to another's legal claim or defense.
 
The pursuit of a civil claim, regardless of its merits, is not listed in the statute as one of the actions which must be present in order for extortion to occur.  OCGA 16-8-16(a)(1-6).  Criminal statutes are subject to strict construction thereby prohibiting the inference of any offense not specifically articulated therein.  Sapp. v. State ...  Waldrop v. State...   This lawsuit nor the "conspiratorial acts" alleged do not qualify as grounds for extortion.  In fact, the Defendant has not and cannot produce any evidence even suggesting that any action taken by IWS provides a colorable claim for extortion.  As such, IWS is entitled to summary  judgment on Count 7 of Defendant's Counterclaim.
  
IWS IS ENTITLED TO SUMMARY JUDGMENT ON DEFENDANT'S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM AS THERE IS NO EVIDENCE OF CONDUCT SO OUTRAGEOUS SO AS TO CREATE AN ISSUE OF FACT FOR THE JURY.
  
Defendant also alleges that certain actions taken by IWS so caused him fright and embarrassment that they constitute the tort of Intentional Infliction of Emotional Distress.  (Counterclaim, p 137-156).  Specifically, one of IWS's subcontractors and a helper allegedly told him they were ex-felons and had been incarcerated for drugs and attempted murder.  Id. at p 137.  Defendant and his wife felt "unsettled" and "unsafe".  Id. Also, after the work was generally completed but before Mr. Tabor inspected the work his yard was a "real mess" and he was embarrassed.  Id. at p 139.  Finally, on December 15, 2004, during the visit from Mr. Tabor to the Mckinney residence when Mr. Tabor used an expletive in a "rude outburst" and stormed off "yelling I will see you in court" Defendant's wife and mother were "intimidated" and "worried".  Id. at p 145.  Defendant was concerned about his safety.  Id.  Defendant's mother was "concerned" about what would happen to her home and "she would have no place to live but a nursing home". id at p 146.
  
The Defendant Cannot Assert this Claim on Behalf of His Wife and Mother as it is not an assignable claim.
  
Without reaching the merits of this claim and assuming everything Defendant alleges is true, Defendant's claim for Intentional Infliction of Emotional Distress fails to the extent he is attempting to prosecute the claim on behalf of his wife and/or mother.  It is well settled tort law that a claim for personal injury cannot be assigned or subrogated, except by statute.  OCGA 44-12-24;  Generali - US Branch v. Southeastern Sec. Ins. Co. ... Southern Railway Co. v. Malone Freight Lines, ... Allen v. Macon, Dublin & Co. Railroad...   Therefore, IWS is entitled to summary judgment on Count 8 of the Counterclaim as it relates to claims for Defendant's wife and mother.
  
The Defendant's Evidence Does Not Meet the Threshold Necessary to Create an Issue of Fact on the Claim
  
Sustaining a claim for Intentional Infliction of Emotional Distress is a daunting task.  Liability has only been found where the conduct complained of has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.  Yarbrough v. SAS Systems, Inc. ... citing RESTATEMENT, (Second) Torts 46 (1965).  Whether a claim rises to the requisite level of outrageous and egregiousness is a question of law.  Mableton Parkway CVS Inc. v. Salter, ...  The for elements which must be proven in order to sustain a claim for Intentional Infliction of Emotional Distress are (1) the conduct must be intentional and reckless; (2) the conduct must be extreme and outrageous; (3) there must be causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe.  Phinazee v. Interstate Nationallease, Inc.... It is not enough that the defendant has acted with intent which is tortuous or even criminal. or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle Plaintiff to punitive damages for another tort.  Northside Hosp. Inc. v. Ruotanen v. ....
  
Cases which have failed to sustain a claim sufficient to created a jury issue include ones involving the failure to refill a prescription and causing great physical harm (Mableton Park CVS, Inc. ... ) being improperly jailed, booked, getting a mug-shot, and spending large sums of money on attorney's fees despite not committing the alleged theft. (Yarbrough v. SAS Systems, Inc. ...)  failure to release the Plaintiff's father's body for three days because of conflict over who was proper party to take custody (Northside Hosp. Inc. v. Ruotanen, ..)  and the swearing out of a dispossessory warrant and adding $5000 to the price of a house where the wife interfered with the job and the owners refused to close until certain disputed items had been settled (Georgia Power Co. v. Johnson,...).
  
Cases which have made it to the jury are those involving being terrorized at gunpoint in an attempt to collect a bill.  (American Fin. & Loan Corp. v. Coots. ...) the physical intimidation of mourners as they buried a family member (Stephens v. Waits, ... )  and the threat of jail made to an eleven year old girl who would not let the repossessers in her house to recover a television (Delta Fin. Co. v. Ganakas, 1956).
  
Assuming solely for purposes of this argument that everything Defendant alleges occurred, there is nothing about the conduct he is complaining of to categorize it as extreme and outrageous.  If the two workers indicated that they had been incarcerated, and even if they stated they were in for drugs and attempted murder, people get paroled every day of the week and are expected to assimilate back into their communities and be gainfully employed.  Their inclusion in society is not something outrageous or beyond all bounds of civil decency. The "distress" over their presence is not so severe that no reasonable man could be expected to endure it.  RESTATEMENT, (Second) Torts, 46 (1) comment j.  Therefore, as a matter of law, these statements are insufficient to support an intentional infliction of emotional distress claim.
  
The same can be said for Mr. Tabor's "rude outburst" and "threats" of suit.  Expletives have crept into our culture to the point that what Mr. Tabor allegedly said is said on cable television every day of the week.  Likewise, the threat of a lawsuit given the situation is a reasonable response.  Filing a lawsuit instead of taking matters into one's own hands is what members of a civilized society do.   This was nothing more than a personal confrontation between disagreeing parties which is not actionable as intentional infliction of emotional distress.  Bridges v. Winn-Dixie atlanta, Inc....)  These statements are insufficient as a matter of law to sustain a claim for intentional infliction of emotional distress.
  
Further evidence that these statements are insufficient as a matter of law to sustain Count 8 of Defendant's Counterclaim is the reaction Defendant claims he had as a result of hearing them.  He felt "unsettled" and "unsafe" about the worker's statements.  (Counterclaim, p137).  He as "embarrassed" by the mess in his yard.  Id. at p 139.  He was "distressed" by Mr. Tabor's statements. Id. at p 145.  His reaction cannot reasonably be characterized as humiliating, insulting or terrifying.  Georgia Power Co. V. Johnson, ...  He has not reacted as if the statements and actions are beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community.  Phinazee v. Interstate Nationallease, Inc. ... These statements and actions angered the Defendant but to characterize them as sufficient to invoke a response necessary to sustain a claim for intentional infliction of emotional distress would ignore all parameters followed in hornbook law and by Georgia appellate courts.  The response invoked being wholly insufficient as a matter of law entitles IWS to summary judgment on Defendant's Intentional Infliction of Emotional Distress claim.
 
Conclusion
  
This lawsuit was necessary to recover the contract price for construction work executed pursuant to the terms of the contract.  It was not paid for because the Defendant could not force IWS to add things to his project and turn his "Chevrolet" into a "Cadillac".  None of the Defendant's Counterclaims addressed herein relate to what actually happened on the project.  They are merely efforts to cause IWS trouble in executing against him what he knows is a just and viable lawsuit.  For the reasons set forth herein, IWS respectfully requests that its motion for summary judgment be GRANTED  as to a portion of count 1 and Counts 2,3,4,5,6,7, and 8 of Defendant's Counterclaims and for such other and further relief as this Court deems just and proper.
  
This 1st day of May 2007.
  
Jana Tabor
Georgia Bar No. 058615
Attorney for Plaintiff
  
450 Arborshade Trace
Duluth, GA  30097
770-814-8134
 
  

PLAINTIFF'S REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Insulated Wall Systems, Inc. ("IWS") submits the following Reply in response to Defendant's opposition to IWS's Motion for Partial Summary Judgment and in further support of its Motion. Defendant has not complied with the Procedural Mandates for responding to Summary Judgment. Summary judgment is not a forum to try the issues of your case which are not addressed by the Movant.  Clearly the Defendant's response is yet another diatribe ode to his interpretation, without support, of the circumstances of the parties dealings. However, the vast majority of what he has to say has absolutely nothing to do with the legal issues presented in the IWS summary judgment motion.  To the extent that "facts" which he recites are without specific reference in the record, entered therein through sworn testimony, or are attempted to be incorporated by reference (Brief in opposition, p. 2) he as the Non-Movant has not rebutted the Plaintiff's case and is attempting to rest on his pleadings.  Likewise, the majority of legal arguments made by IWS in support of its Motion have not even been addressed by the Defendant.  He is not fulfilling his burden to point to triable issues in order to survive summary judgment. OCGA 9-11-56(e) Lau's Corp. v. Haskins, 261 ... Defendant's Reliance on OCGA 8-2-20 et. seq. to Incorporate by Reference certain State Wide Building Codes is Misplaced as the Parties Contract is Exempt from Such Codes. The sole issue that IWS seeks summary judgment on as it relates to Count 1 of the Counterclaim is the claim that Gwinnett County Building Codes are part of the Contract by reference or incorporation and are applicable to the construction of the deck and slab. (Counterclaim, p 30,31).  In his response the Defendant asserts for the first time that the "Gwinnett County Codes" are automatically incorporated by reference into the parties contract by operation of law, citing OCGA 8-2-25. (Brief in Opposition, pp. 4, 5)  However, a full reading of that statute and its companions shows that the contract at issue in this case is exempt from the incorporation of state-adopted codes and the Defendant has failed to show their incorporation, let alone county adopted codes, based upon this statute. The Georgia Code at Title 8, Part 2 is entitled "Building and Housing", State Building, Plumbing and Electrical Codes."  OCGA 8-2-20 defines the parameters of statute and provides, in relevant part as follows: (8) "Renovated building" means either of the following: (A) A building undergoing alteration of the exterior envelope; heating, ventilation, and air conditioning systems; water-heating systems; or lighting systems, for which the aggregate cost of alteration exceeds 10 percent of the assessed value of the building immediately prior to such alteration; or (B)  A building undergoing alteration in the physical configuration or interior space, for which the aggregate cost of alteration exceeds one-fourth of the assessed value of the building immediately prior to such alteration. OCGA 8-2-20(8). The Demolition and Replacement of an Outdoor Deck and Patio Slab are not sufficient to Qualify the McKinney House as a "Renovated Building." The Georgia Legislature never set about to make each and every construction project undertaken in this state to be subject to state-adopted building codes.  The statute qualifies what projects are subject, both by operation and monetary value.  To be subject to the statute the property, as defined by the type of renovation, must qualify as a "renovated building".  OCGA 8-2-20(8).  Although the statute has not been the subject of judicial interpretation, on its face the construction of an outdoor deck does not qualify.  There is no alteration of the "exterior envelope" which is defined as "those elements of a building which encloses conditioned spaces through which thermal energy may be transferred to or from the exterior.  OCGA 8-2-20(5). The same is true of a concrete slab poured adjacent to the back of the house.  Since the projects in question cannot, by definition, bring the contract within the purview of the statute, any reliance on the same by the Defendant is misplaced and cannot defeat IWS's Motion for Summary Judgment on the issue of the lack of inclusion of specified building codes in the parties contract. Even assuming solely for purposes of argument that the work itself could qualify the project as a "renovated building", the statute also requires that any project's aggregate cost constitute at least 10 percent of the assessed value of the property and the property in question's value is such that these projects fall short of the required 10 percent mark. OCGA 8-2-20(8)(A).  The cost of the deck was $3450. (Ron Mckinney dep. Exh. 1); (J. Tabor dep. Exh. 3).  The cost of the slab was $1400. Id. In 2004, the assessed value of the property located at 4083 Red Laurel Way was in excess of $107, 000.00. See Certified copy of Tax records attached hereto as Exhibit "A".  On this basis too the projects in question are insufficient as a matter of law to have the state building codes incorporation by reference into the parties contract.  Therefore, IWS's Motion for Summary Judgment as to Count 1 must be granted. The Contract's Merger Clause is Adequately Worded and has not been Waived by IWS. There are no specific phrases necessitated by Georgia law to create a merger clause.  All that is required is that the language makes clear that representations not included in the contract are not binding.  First Data POS, Inc. v. Willis, 273 Ga. 792 ... (2001).  This contract states on every page that NO VERBAL AGREEMENTS ARE RECOGNIZED. No language could be clearer.  Merger clauses relate to negotiations made prior to and contemporaneously with the execution of the written contract.  Health Svs Center, Inc. v. Boddy, 257 Ga. 378 ... (1987).  To the extent that the Defendant is alleging that the Gwinnett County Building Codes were part of the parties' contract based upon alleged verbal representation and negotiations prior to signing, this clause has extinguished his right to rely upon such alleged representation.  Nothing on the face of the document requires compliance therefore entitling IWS to Summary Judgment as it relates to Count 1 of Defendant's Counterclaim. Parties to a contract may modify provisions even though their contract contains a merger clause.  Glimcher Prop. L.P. v. BI-LO, 271 Ga. App. 322, ... (2005).  However, in this case, the actions of IWS after the signing of the contract have not waived the merger clause or any other clause contained therein.  Initially, the Defendant contends that his unilateral offer of two peppermills to Mr. Tabor after the contract was signed has extinguished the merger clause.  (Defendant" Statement of Disputed Facts, 3)  IWS does not dispute that the Defendant offered Mr. Tabor the items.  His making of that offer, however, in no way extinguished IWS' right to rely on the merger clause.  There is no evidence that IWS ever altered its behavior as a result of that offer.  Further, IWS has never acted in any manner inconsistent with the terms of the contract as a result of the offer.  By the Defendant's own admission, the items were a gift or TIP. Id.  There is no evidence of any consideration for the items and IWS has never attempted to enforce the presentment to Mr. Tabor of those items because there was no consideration for the gift.  When faced with the offer, was Mr. Tabor to be rude?  Obviously, the peppermills were not consideration for the work as there is no mention of them in the written contract.  The Defendant would have the Court believe that his offer of the same obligated IWS to an extensive amount of work (by Defendant's story) than was required in the written contract.  There being a complete lack of evidence to support this alleged waiver, there is no issue of fact for a jury to consider.  This argument cannot deny IWS summary judgment on the relevant portion of Count 1 of Defendant's Counterclaim. As a second instance of alleged waiver, Defendant makes reference to a conversation with an on-site worker concerning a drain in the slab. (Brief in Opposition, p. 7).  The Court must disregard this argument because Defendant has failed to support it through facts in the record. Lau's Corp. v. Haskins, 261 Ga 491, ... (1991); Martin v. Brown, 222 Ga. App. 566 ... (1996). The final instance of alleged waiver apparently has to do with the Defendant's negotiation with a worker on site to remove an above-ground pool.  IWS again does not dispute that Defendant came to such an agreement nor dispute that at some point it was aware of that agreement. (J. Tabor dep. p. 146).  However, there is no evidence that the contract between IWS and the Defendant was changed in any way.  The individuals who performed the work on behalf of IWS were all independent contractors. Id. at 122, 123, 147.  The Defendant knew they were subcontractors and in fact negotiated a separate contract with the gutter installer for the installation of a gutter shield product. (Ron Mckinney dep. 145). It is well settled law that generally a subcontractor cannot bind the general contract to any obligation.  Although the term "independent contractor" is not dispositive, in order to show that a subcontractor had authority to change the terms of a contract, there must be evidence from the record to support that the principal, IWS, had expressly or by implication authorized one of these subcontractors to act as its agent and change the terms of its contract with the Defendant.  Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. ... (1998).  There is no such evidence in the record.  Whatever side deals the Defendant struck up with subcontractors they were not negotiations carried out on behalf of IWS and nothing in those "deals" ever inured to the benefit of IWS.  The Defendant's brief states: The actual pool deal did not include a benefit to Plaintiff or Mr. Tabor and was for ownership of the pool.  Plaintiff's installer wanted the above ground pool with filter, motor, liner and other parts.  Defendant said he could have it if he would remove it.  He did, and he did it on his own time. And now it is his.  There was never a trade off between the clean up of the deck versus removing the pool.  (Brief in Opposition, p. 8) Defendant's own argument is circular and defeats itself.  There being no evidence of any waiver of any portion of the contract terms by IWS, it is entitled to Summary Judgment on Count 1 of Defendant's Counterclaim.

THERE HAS BEEN NO IN JUDICIO ADMISSION BY IWS THAT THE GWINNETT COUNTY BUILDING CODE WAS INCORPORATED BY REFERENCE INTO THE PARTIES' CONTRACT.
There is no greater example of Defendant's complete disregard for facts, law and the Court than his assertion that IWS had admitted in discovery documents that the Gwinnett County Building Codes are part of the parties contract.  (Brief in Opposition, p. 10).  He characterizes IWS's actions as "astounding" and presented with "gall". Id. What is astounding is that he attempts to use this "admission" without properly submitting the discovery requests and responses to the Court in support of his assertion.  Perhaps this is because, as the Court will note in the original response submitted by IWS to Request No. 5 of Defendant's Third Set of Admissions, that Request was DENIED.  In support and in defense, IWS submitted its original responses and has requested that the Defendant submit the original requests. For the reasons set forth herein and those set forth in IWS's Brief in Support of its Motion for Partial Summary Judgment, IWS respectfully requests that its Motion be GRANTED in its entirety. This 3rd day of July, 2007. _____________ Jana B. Tabor  bla bla bla
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