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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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CURRENT CASE DOCKET -  CONTRACT LAWSUIT                    Next Document       Previous Document
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.                                                     )

  
 DEFENDANT'S SECOND REPLY BRIEF AND MEMORANDUM
IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

            COMES NOW DEFENDANT, Ron McKinney, and files this verified reply in opposition to Plaintiff, Insulated Wall Systems, Inc. (“IWS”) Motion for Summary Judgment and its "Reply Brief in Support of Motion for Partial Summary Judgment."

            Mrs. Tabor, in her usual manner of biased, legalized, emotional seeing (For all practical purposes she is Plaintiff and Plaintiff's wife and unwilling to admit it) now makes claims to which Defendant will respond to on a one to one basis as follows:

  

"Summary judgment is not a forum to try the issues of your case which

are not addressed by the Movant", (Pltf. Reply Brief)

  

            According to this case law,  

"[w]hen viewed in proper perspective under present practice in Georgia, summary judgment under our law is just what the name implies. It is an abbreviated trial, but of no less importance than any other trial on the merits of the case. One must prepare for a summary judgment hearing with the same thoroughness and expectation of finality one must contemplate for any trial." SUMMER-MINTER & ASSOCIATES, INC. et al. v. GIORDANO et al. 28256. (231 Ga. 601) 03 SE2d 173) (1974)

 

            

Defendant approached his response and this reply with this attitude in mind and since Plaintiff is challenging each count now is the time to address every issue moral, legal or otherwise that would defeat Plaintiff's motion. Might not get another chance. In truth, of course, Defendant has not addressed every issue. For example, he will wait until the court's ruling on the Gwinnett County Construction Codes before he discusses the facts and evidence that will support the allegation of negligence per se.

  

"yet another diatribe ode" (Pltf. Reply Brief)

  

            It is true that Defendant personally and bitterly denounces the business practices of Mr. and Mrs. Tabor. And who wouldn't? The evidence shows that Mr. Tabor lied to Defendant in order to induce him to sign the contract; then Mr. Tabor went about delivering only that work which he chose to deliver which Defendant has shown was incomplete and shoddy and then Mr. Tabor demanded unearned monies and when he didn't get his way, he brought in his wife, at no cost to him, to do all of his heavy lifting in court, monopolizing a great part of Defendant's life over the last 2 years and at great financial and emotional expense to Defendant, his wife and mother. What in God's Name is the matter with you two people? Life is a great deal more than money and ego and that is the only principles Mr. Tabor had in mind when he wrote in his letter of January 4, 2005:

"You two will have the distinction of being only the second customer out of over 1000 that have proved to be so unreasonable that I believe the only way to resolve our differences will be through extensive litigation. Rest assured that I am completely prepared to go this route. This matter is no longer about money but principle." (Def. Resp. Brief, Exh."B" ; Def. Req. For Adm. #16 )  

  

  

            What principle but money and ego is at stake here for you Mr. Tabor?

            And what principle but money and ego is at stake for you, Mrs. Tabor?

            Completed work?

  

            Satisfaction of the contract?

  

            Professional work?

  

            Mr. Tabor sounds like a mafia man. Defendant is "so unreasonable?" What exactly is unreasonable about Defendant wanting the windows he ordered with argon gas, the seams taped, shutters, a smooth surface, on a well built slab, a safe deck or any of the other things Mr. Tabor stated he would do and Defendant agreed to pay him for? Who defines reasonable or unreasonable? We know the answer to that, now don't we?

            3      Q    Who defines completion of the work

            4          according to this contract?

            5      A    Reasonable people.

            6      Q    And who may that be in this particular

            7          case?

            8      A    Me.

            (Page 68 John Tabor depo)

  

            Isn't it true Mr. Tabor that the real philosophy of Insulated Wall Systems, Inc. is?

            16      A    I think Insulated Wall Systems always

            17        offers good value for the money.  I have a long

            18        history of doing that and was doing that in 2004  

            19        and it does that today.

            (John Tabor depo Page 40)

  

Where exactly on any advertisement or contract is this philosophy?

  

Who defines value both of the work and of money?

  

            3      Q    Who defines completion of the work

            4          according to this contract?

            5      A    Reasonable people.

            6      Q    And who may that be in this particular

            7          case?

            8      A    Me.

  

Exactly where in the contract is that stated?

  

            9      Q    So the contract states that it is a

            10        unilateral decision on your part?

            11      A    The contract doesn't specify.  It just

            12        says the amount is due upon completion of the  

            13        work.  We completed the work; so at that time,  

            14        the money is due.  It is very simple.

            15      Q    But according to your testimony, you are

            16        the decider?

            17      A    I said reasonable people.

  

  

            Mr. Tabor, you and I both know the only sentence in the contract that could have anything to do with the decider is the following:

"The acknowledgment of the completion of the work, signed by the owners of said premises , 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." (Pltf. Complaint, Exh."A")

  

            You and I both know this sentence states that it is the owners who are the decider's. You said it yourself:

                                                                                    p. 62

            22 ...that is a sentence that is

            23  required by the financial institution that

            24  provides the financing.  They require a

            25  completion certificate to be signed by the

                                                                        p. 63

            1  customer before they would release the funds to

            2  Insulated Wall Systems.  (John Tabor Depo Page 62, 63)

  

            What is your problem in this case Mr. Tabor? The financial institution known as Lois McKinney Bank demands a completion certificate signed by me before she will release any funds to Insulated Wall Systems, Inc. And in good faith I cannot possibly sign something that says your work was "satisfactorily completed by the contractor on the date thereof in accordance with terms of this contract." That would be lying to my mother.

            Yes, Mr. Tabor, it is very simple. You falsely represented yourself, your company, your experience, your companies knowledge and experience and most of all you misrepresented that IWS or you or your wife give a rat's toenail about the completeness of the contract, the safety of your customers or the quality of the work.   You did not complete the work in accordance with the contract and the work performed by the so-called "independent contractors" you hired wasn't worth a plug nickel. This is why I had the work replaced. You installed the wrong windows, in the wrong manner. You cut open the wall envelope of my house and gladly left me with rotting walls. You left me a deck hanging onto rotten wood, which you attempted to conceal from me. You left me a deck with loose rails and uneven steps and inadequate support. You left me with an unsafe and defective deck. The purpose of the deck was a gift from me to my wife and certainly for my mother of 95 years so that she could enjoy her last moments of this life enjoying the outdoors. In 2004, the dear old lady could still walk. She could have enjoyed the steps and going to the garden. She couldn't use the steps you caused to be installed even with my help. Particularly the last one on the upper staircase. You took this from her by leaving me with an unsafe and defective deck. You left me a slab of concrete that I cannot use for the purpose intended. You left me with a fire hazard that would have been found if your employees had followed industry standards in the installation of the siding. You cursed at me and my wife within earshot of my mother and threatened us with litigation. You write a nasty letter and once again threaten us with "extensive litigation." Incidentally this is the only statement that turned out to be correct. I wonder why? What a benefit; a pro bono attorney. Why Insulting Wall Systems, Inc. must be a charitable organization. Bless you Ms. Tabor, Mother Theresa would be proud. And to top it all off you and your wife must continue to play your legal games ad nauseum. Reminds me of dogs and why they do a certain thing, because they can.

            What is your principle, Mr. Tabor? Won't you quit hiding behind that fiction allowed by the State of Georgia? And most of all why don't you quit hiding behind your wife's coattails? You are embarrassing yourself. In my opinion, Mr. Tabor, you are a fraud and a coward. You don't really think "reasonable people" are going to believe that you tell your potential cash customers that this particular sentence

            20           THE WITNESS:  ...doesn't have

            21      any bearing on the contract at hand, because

            22      we weren't arranging financing for you the

            23      defendant.

                        (John Tabor depo Page 64)

  

And that you do not line that sentence out because...  

  

            17      A    Not to make a mess of the contract, I

            18        suppose."

                        (John Tabor depo Page 66)

  

            How would your sales pitch sound based on your testimony under oath and Plaintiff's legal filings?

            Hi I am Mr. Tabor of IWS. I'll give you this work for this money which I call "good value for your money." I have a "long history" of doing this. Bear in mind I am the decider and when I decide work is completed, "it is completed" and I will demand money and if you don't give to me money you will be introduced to my wife by a Deputy Sheriff of Gwinnett County. Incidentally, I will tell you I build everything to code just like the contract says but bear in mind that I am interpreting "City, Town and Village" in their strict statutory sense which is "municipal corporation"  and the lack of the word county evidences my intent to screw all the folks who live in the unincorporated areas of Gwinnett County and since you live in an unincorporated area of Gwinnett county it won't apply to you in a court of law.  And if you are thinking about enforcing that completion certificate sentence I'll just say it only applies to finance sales and the court will believe me because I am me. In addition, I know the contract says IWS has insurance but that is really not true. So if you try to hold me to this I will simply say I require the sub-contractors to have it, but I don't bother with verifying it.  Bear in mind I will be the sole judge of the work and if you don't like it tough. You will meet my wife and expect to spend $25,000 on a good attorney because me and my wife are J.D.'s and that means Jurist Doctorate.

  

Sign here Mr. McKinney...

  

I don't think so Mr. Tabor would have been my response!

  

            And just look at you Mrs. Tabor? You are as desperate as he is. Have you no ethics? Have you no shame?

            Be that as it may, Defendant's reply is much more than a mere "diatribe ode." It is, in fact, a pretty good closing argument for a jury. In addition, it presents more than enough disputed facts and evidence for this Court to refuse a grant of summary judgment for Plaintiff on any of the Counterclaim Counts 1-10 and move to trial.

  

"to his interpretation" (Pltf. Reply Brief)

  

            My interpretation? I don't think so. Just look at the work. No argon gas. No smooth surface, no shutters, no seams taped. No effort whatsoever by Mr. Tabor to complete these things and no effort to fix anything contrary to what Plaintiff's cookie-cutter complaint states. And now the Tabors would gladly leave Defendant with inferior sound benefits, a lack of 15% - 25% reduction in energy costs, an unsafe deck, a slab that cannot be used for the purpose intended, windows that allow water into the wall envelope of the house and a fire hazard, just so they can make $16,000 plus attorney fees which they did not earn. It is Plaintiff that has not countered any of these facts. And now Mrs. Tabor your emotional involvement is obvious to all because the state of the work is not "my interpretation." It is not opinion. It is fact.

"without support" (Pltf. Reply Brief)

            There is plenty of support and since Mrs. Tabor chooses not to see it Defendant has amended "Defendant's Statement of Disputed Facts" demonstrating what document the fact is derived from and when it was filed with this court and since I can only assume that Mrs. Tabor doesn't look at documents unless they have a "Notice of Filing" attached to it, I have for her convenience attached an "Official Notice of Filing" which includes the document name and the docketed date when it was filed with this court.  

  

"of the circumstances of the parties dealings" (Pltf. Reply Brief)

  

            Only an idiot could not see what is going on here.  What else could possibly be going on here? The incomplete and shoddy work and Mr. Tabor abandoning the job by his own admission and obviously walking real fast to get his wife involved so that he could obtain the "Plaintiff" position which he thinks gives him an advantage. And when are you going to wise up, Mrs. Tabor. Look at the facts.

            1. Insulated Wall Systems, Inc. Experts on wall systems, windows, decks and slabs. Professional and workmanlike company doing all kinds of home renovations, in business for 13 years, 1000 or 2000 jobs, 15 employees. 99% happy campers. Yea right, in a pigs eye.

Where is the proof? When asked to provide proof, you provide none.  You provide lies, equivocation and false excuses.

The truth.

            Construction is the most problem prone industry in the country with upwards of 30% dissatisfaction rate.  By my math, Mr. Tabor likely had problems with 30% or around 300 or 600. How did he deal with them? (See Exhibit "B"). Write nasty letters, threaten extensive litigation. Most folks pay up, and specially so when you already have a "Deed to Secure Debt" with the power of non-judicial foreclosure attached to their house. (Def. Resp. Brief, Exh."B" ; Def. Req. For Adm. #16)  

            Insulated Wall Systems Inc. Business Plan

            1. Say whatever you want to get the deal.

            2. Throw up whatever kind of work your cheap crews can do.

            3. Demand payment.

            4. Threaten an introduction to Mrs. Tabor.

            5. Mrs. Tabor takes over collection and files suit.

Pretty simple, actually. The truth is only two made it to level five. And you are crowing about that?

"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" (Pltf. Reply Brief)

            Defendant disagrees. Defendant has addressed every legal and moral issue that is pertinent to this case. If I hadn't Mrs. Tabor would have let me know specifically!

  

"to the extent that 'facts' which he recites are without specific

reference in the record " (Pltf. Reply Brief)

            As previously noted and incorporated herein by reference as if fully setforth, with specific references added per Mrs. Tabor's request, see Defendant’s Statement of Disputed Facts, as amended.

"entered therein through sworn testimony," (Pltf. Reply Brief)

            Defendant can enter sworn testimony at any time he wishes either by affidavit or by placing himself under oath during a hearing. So can Mr. and Mrs. Tabor. In fact, every motion or reply has been sworn to by Defendant. Can you say the same thing, Mrs. Tabor?  Or are you hiding behind the shield bearer title of Esquire which is, by the way, one step below Knight and two steps below a Sovereign? Care to testify? I have a few serious questions for you.

            It was you, Mrs. Tabor who blinded yourself at "your" disposition of Defendant with your 21 "Move to Strike[s], non responsive" and wasn't there at least thirteen (13) at my wife's deposition?  If you had wanted to know the gospel you would have asked the right questions and been willing to hear and let the record reflect what the Defendant and his wife had to say. Obviously, Mrs. Tabor was and is attempting to limit Defendant's sworn testimony to only that in her very restricted depositions. (MSNR in Ron Mckinney Dep. p 15, 33, 35, 41, 48, 54, 56, 57,  66, 95, 98, 106, 116, 119, 127, 130, 134, 137, 140, and MSNR in Robyn Mckinney Dep. p. 17, 27-30, 34, 41- 42,  44, 47)

"or are attempted to be incorporated by reference" (Pltf. Reply Brief)

            Not Defendant's fault Mrs. Tabor blinds herself to what has been filed by Defendant. See Notice of Filing dated August 6, 2007 and Defendant’s Statement of Disputed Facts, as amended and incorporated in Defendant’s Opposition Brief by reference.

 

"he as the 'Non-movant' has not rebutted the Plaintiff's case" (Pltf. Reply Brief)

  

            Sure he has. And not that he has to! In summary judgment the burden is on Movant to prove there are no triable facts and all Mrs. Tabor has done is wave her hand and say it isn't so. That is a far cry from proving there isn't any triable facts to go before a jury.  

            Such facts to be decided by a jury are: Whether or not IWS breached the contract? Whether or not Ron Mckinney had any duty or obligation to pay? Whether or not IWS was negligent in the performance of its duties? Whether or not IWS's sole employee committed fraud and misrepresentation? Whether or not IWS along with others working in conjunction have conspired to conceal the truth and cover up a fraud? These are just a few that come to mind and with the number of facts that are clearly in dispute, this court is prohibited from granting a summary judgment to Plaintiff and must let the jury be the decider.  

 

"and is attempting to rest on his pleadings" (Pltf. Reply Brief)

  

            Resting on the truth is more like it with facts, evidence and sworn testimony to support it.  (See Notice of Filing dated August 6, 2007 and Defendant’s Statement of Disputed Facts, as amended).

"likewise, the majority of 'legal' arguments made by IWS in support of its

Motion have not 'even' been addressed by the Defendant" (Pltf. Reply Brief)

            IWS is not capable of making legal arguments. The only one making legal arguments for IWS is Mr. and Mrs. Tabor.  The fact is Defendant has addressed and countered with evidence every pertinent legal argument and shown that every Fact claimed by Plaintiff as undisputed, is actually in dispute, which is the only burden Defendant must carry to prevent Summary Judgment including the one on emotional distress. If not, Defendant reserves the right to address any legal argument that Mrs. Tabor can specifically point to that Defendant has not addressed.

And speaking of emotional distress:

"This very document and the associated evidence prove the Tabors are a pain in the ass with no justification whatsoever and now it looks like these two AT-TORN-NEYS are going to screw up yet another Auburn Tiger football season for Defendant and for this SIN I believe any jury of Defendant's peers will level a punitive damage award of $100,000 against the Tabors! And for the SIN of continuing their nonsense in the last moments of my mother's life is worth at least $500,000 in punitive damages" Ron McKinney July, 17, 2007

  

  

"He is not fulfilliing his burden to point to specific triable issues in order

to survive summary judgment." (Pltf. Reply Brief)

            Technically speaking Defendant has no real burden when he is not the Movant. The Movant has the burden to overcome the disputed facts and evidence shown by Defendant and demonstrate that the facts and evidence are of such a nature that there is no triable issues for a jury to hear. All you are doing, Mrs. Tabor, is waving your hand and saying it isn't so. What disputed fact have you overcome, Mrs. Tabor?

            And Defendant is truly amazed to watch you, Mrs. Tabor, give example after example of your ability to utilize the law as your own personal tool to twist anyway you want in your desire to prove your pre-conceived belief in your husband and your lifestyle. Your rendition of O.C.G.A. 8-2-20 is a great example.

            First you quote the law as in: (Please notice emphasis add by Defendant)

 "(8) "Renovated building"  means either of the following"

            (A) A building undergoing alterations 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."

[emphasis added by Defendant]

  

            Then you claim that the construction of the "outside deck" and the "slab" does not qualify. This is just another example of your misuse of the law and facts for your own gain. You have such a personal interest in this litigation you are willing to attempt to deceive this court.

            This contract is an entire agreement, by definition (O.C.G.A.13-1-8) and must be interpreted as such since there are no severability clauses within the four corners of the contract.  Therefore, one must look at the "entire contract." And the fact is, the installation of new windows clearly "altered" the "exterior envelope" which is defined as "those elements of a building which enclose conditioned spaces through which thermal energy may be transferred to or from the exterior." The removal of siding and installation of siding clearly "altered" the "exterior envelope." The deck clearly does, because a great deal of effort to prevent water intrusion into the "exterior envelope" has to be done correctly where the deck meets the house. Things such as the kind of flashing done correctly, and insulation under the bay area certainly can alter the thermal characteristics of the wall envelope. The intrusion of water can even destroy the wall envelope if these areas are not handled correctly. All of these are scientific facts. The concrete slab falls under "Renovated Building" too as that was its purpose. Scientifically it could be shown that it too has the potential to alter the thermal properties of the exterior envelope of the house. The exterior envelope of the house is actually a cube as opposed to an open box and a failure of the slab to perform properly has the potential to impact not only the original foundation but 19 feet of the exterior envelope adjacent to the slab. These areas of the "exterior envelope" were all known by Plaintiff to be affected by the work that was being contracted for. Why else do you think Mr. Tabor chose the name "Insulated Wall Systems"?

            Giving Plaintiff the benefit of the doubt at least three elements of the contract affect or alter the thermal energy transferred to or from the exterior of the house from what it was previously and these are provable scientific facts.  Therefore the amount in question that must be considered is the total of the siding, windows and deck which is $13,850.

            One has no idea what figures Mrs. Tabor is using since she does not (conveniently) give any values for her calculations however the only value that counts is the assessed value of the building as stated by the statute.  That figure is not on the tax bill and must be calculated . $107,000 is the appraised value of the land plus the building with $33,100 being the appraised value of the land and $74,400 being the appraised value of the building. The assessed value of the building is 40% times $74,400 or $29,760 and the assessed value of the land is 40% times $33,100 or $13,240 with the total assessed value of the property being $43,000.  Ten percent of  the "assessed value of the building" is $2,976.00.

The value of the contract that affects the thermal energy properties of the house is $13,850 and the threshold for the Statewide Code to apply (according to Mrs. Tabor's read on the law) in this case is $2,976.

            Where Defendant comes from $13,850 exceeds $2,976 any day of the week and clearly meets the requirement of the statute as presented by Mrs. Tabor to subject this contract to the statewide minimum standards outlined in the code. As my Dad use to say, "figures don't lie but people do figure."

            Hopefully, the irony of those representing "Insulated Wall Systems, Inc." not understanding the concept of an entire contract, the scientific basis of exactly what affects the thermal properties of a building, and their inability to read and perform basic math is not lost on this court. I mean what are we to expect? They are lawyers!

THE GWINNETT COUNTY CONSTRUCTION CODES APPLY TO THIS CONTRACT FOR THE FOLLOWING REASONS

  

BY THE PLAIN AND ORDINARY MEANING OF THE WORDS OF THE CONTRACT AND THEIR LOGICAL EXTENSION IT IS EXPLICIT IN THE CONTRACT

  

"Contractor will do all said work in strict accordance with the ordinances,

rules and requirements of the City, Town and Village, wherein the above mentioned property is located."(Complaint Exh. "A")

  

1.      The property in question is located at the Post Office Address of 4083 Red Laurel Way, Snellville, Georgia 30039. The physical address as outlined in the "Notice of Taxes" presented by Mrs. Tabor is L10 BB Laurel Creek #2, marked as Exhibit "A" attached to Mrs. Tabor's document entitled " Plaintiff's Reply Brief in Support of Motion for Partial Summary Judgment"

2.      This physical property is located within the boundaries of "Centerville" by definition, an unincorporated Village of Gwinnett County. We have a sign! Must I really present Mrs. Tabor and this Court with a sign?

 

The "ordinances" AKA "codes" that apply to unincorporated "Centerville" are the Gwinnett County Construction Codes.

 

The said sentence reveals the "intent" of the contractor and should not be changed.

  

BY THE PLAIN AND ORDINARY MEANING OF WORDS THE GWINNETT COUNTY CODES ARE IMPLIED IN THE CONTRACT AS FOLLOWS

  

"Contractor agrees to do all work in a good and workmanlike manner." (Complaint Exh. "A")

Definitions:

Good n.   "moral excellence or admirableness; "  WordReference.Com

Workmanlike adj. "worthy of a good workman"; "a competent job"; WordReference.com

 

            Only an idiot would argue that a "morally excellent" job or a job worthy of "admirableness", or a job "worthy of a good workman" or a "competent job" would be one that could not meet in every manner the "minimum standards" as prescribed by Gwinnett County and the State of Georgia.

THE WORK COMES UNDER THE JURISDICTION OF THE STATUTE BY THE VALUE OF THE CONTRACT.

  

            Utilizing Mrs. Tabor's argument, which Defendant believes is legally flawed,  Defendant has clearly shown that it is a scientific fact that no less than three aspects of the work contracted affect the thermal properties of the building in question. As such $13,850 is the amount to be compared to 10% of the "Assessed Value of the Building" which was sufficient to put the contract under the requirements of O.C.G.A 8-2-20.

            Since it is obvious that $13,850 is greater than $2,976 all the work by definition must meet the "State Minimum Standards" as required by Georgia Statute O.C.G.A. 8-2-20 since the statute applies.

  

THIS COURT WOULD BE IN VIOLATION OF THE PLAIN AND ORDINARY MEANING OF WORDS IN THE CONTRACT AND THEIR LOGICAL EXTENSIONS, IT WOULD BE IN VIOLATION OF A GEORGIA STATUTE AND IT WOULD BE DENYING THE LAWS OF PHYSICS IF IT DECLARED THAT THE GWINNETT COUNTY CODES DID NOT APPLY TO THIS CONTRACT.

  

  

THE CONTRACTS SO-CALLED MERGER CLAUSE IS NOT ADEQUATELY WORDED FOR A LAY PERSON AND IT HAS BEEN REPEATEDLY WAIVED BY IWS.

  

            The merger clause in the very case Mrs. Tabor cites with First Data POS, Inc. v. Willis 273 Ga. 792,795 546 S.E.2d 781 (2001) states the following:

"[The] Agreement . . . constitutes the entire agreement between the parties with respect to the subject matter contained herein and supercedes all prior agreements and understandings, both oral and written by and between the parties hereto with respect to the subject matter hereof."

  

            The Court of Appeals in the above case calls this a "standard merger clause" and it has certain characteristics that a mere "no verbal agreements recognized" does not have. (Incidentally the word "are" is not there)

            As mentioned previously and by definition "No verbal agreements recognized" does not preclude written agreements or understandings.  The above referenced sentence does. In addition, the words "entire agreement" clearly puts someone on notice where "no verbal agreements recognized" does not. The words "supercedes all prior agreements" clearly has the effect of wiping away any previous understandings, where "no verbal agreements recognized" does not because those four words do not have a time frame associated with them. In fact, the words appear at the bottom (end) of each page after the signature and right above the statement having to do with who to make the check out to, leaving the impression that if a time frame is associated to this clause then it is in the future and it has more to do with payment for what actually was done, assuming of course that the contract along with any written changes and agreements have been completely fulfilled.

            Mrs. Tabor states that "No language could be clearer." This is ridiculous because this language,

"[The] Agreement . . . constitutes the entire agreement between the parties with respect to the subject matter contained herein and supercedes all prior agreements and understandings, both oral and written by and between the parties hereto with respect to the subject matter hereof." First Data POS, Inc. v. Willis 273 Ga. 792,795 546 S.E.2d 781 (2001)

  

is a great deal clearer. Mrs. Tabor is asking this court to cram 41 words into four. That is quite a leap even for a lawyer!

            And then we come to this bold statement by Mrs. Tabor:

 

"Nothing on the face of the document requires compliance..." (Pltf. Reply Brief)

  

            Assuming she means "contract" when she says "document" and "compliance" with the Gwinnett County Construction Code, Defendant finds that the following sentence is on the face of the Contract and by the plain and ordinary definitions of words and the logical extension of those words IWS as represented by Mr. Tabor is pledging to do all work in strict accordance with the Gwinnett County Construction Code. Of course, for those literalist among us it is true that on the face of the contract the words Gwinnett County do not appear.

"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." ( Complaint Exh. "A")

  

            Since this phase uses the term "Contractor" at this time it is most appropriate to look to the contract to see who the contract identifies as the "contractor" to be certain whom this duty falls upon. The contract reads: Insulated Wall Systems, Inc. hereinafter called the "Contractor". Nowhere in the contract does it ever mention that Insulated Wall Systems, Inc. does not perform any work. Therefore if Plaintiff proposes it should to be recognized as a fact that all work was performed by independent contractors on Plaintiff's behalf then Plaintiff is asking for recognition of something that could only have been communicated verbally, since words to this effect are not found on the face of the contract. Plaintiff is once again waiving the so-called merger clause by suggesting Defendant agreed to accept work performed by independent contractors as a part of the contract. This suggestion which Plaintiff claims is a fact not in dispute is nothing more than a self-serving unsubstantiated assertion with an obvious motive attached. The Defendant has no burden to carry in this regard as it is Plaintiff who is making this suggestion. Mr. Tabor's own words reveal that his workers performed exactly as he instructed and directed them to and that he clearly has accepted, approved and ratified their work. Therefore this suggestion of "independent contractor" status is a meaningless fact as IWS is the party accountable for the results it failed to achieve. Plaintiff had an Assumption of the Duty and an Assumption of the Risks.

            One certainly wonders what part of this sentence and the associated plain and ordinary meanings and their logical extensions Mr. and Mrs. Tabor are having trouble with. I suppose Mrs. Tabor would have the Court and jury believe that Mr. Tabor when asked is actually telling his potential customers located in the unincorporated areas of Gwinnett County that he is interpreting "City, Town and Village" in a purely statutory sense and therefore it doesn't apply to them and the absence of the words "Gwinnett County" evidences his intent to not be in conformity with the Gwinnett County Construction Codes.   When pigs fly! That certainly is not what he told the Defendant when the Defendant specifically asked.

Mr. Tabor waived the so-called merger clause

  

            Defendant did not "unilaterally" offer two pepper mills. That would be stupid. Mr. Tabor requested them as a payment for his personal commitment to oversee the project to a successful outcome before the contract was signed.  The evidence of the truth is in, Mr. Tabor's attempt to use the "retail" value of the pepper mills as consideration when he states in his letter (Exhibit "B" attached to Defendant's Brief and Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment)

"I am willing to forfeit the Ebony Princess peppermill set that was promised as compensation in addition to the $16,000." John Tabor letter, dated January 4, 2005. (Def. Req. For Admission # 16)

  

            Obviously Mr. Tabor was thinking of the pepper mills as compensation AKA consideration. And since he accepted this "compensation" or consideration as part of the deal in a verbal manner he obviously waived any right to claim "no verbal agreements recognized" when he as the representative of IWS has repeatedly ignored it.

To Allow Mr. Tabor To Pick And Choose The "Verbal Agreements" He Wishes To Speak To And Disallow Defendant Any Testimony To His Understanding Of Those Verbal Agreements And Other Verbal Representations Made Would Be Categorically Wrong. Equality Under The Law.

  

            As far as the second instance of waiver Defendant admits he failed to indicate a reference in the record to a conversation between himself and one of Plaintiff's employees. To set the record straight it is included in the Affidavit of Ron McKinney dated June 4, 2007 paragraph 8. Therefore, it is in the record.

            As far as the third waiver goes it was Mr. Tabor who brought forth the pool argument in his deposition. (John Tabor deposition page 145, 146)

            19      Q    Did your worker dispose of all the deck

            20        including the concrete that the poles were

            21        sitting in of the old deck?  Did he dispose of

            22        the entire old deck?

            23      A    We disposed of everything we were

            24        required to.  My understanding is, there was some

            25        trade off too, because you had somewhat of a

                                                                                    p. 146

            1          health hazard in your background.  You had a

            2          large above-ground pool with black water, and I  

            3          know my guys dissembled that on your behalf and

            4          removed that.

            5      Q    Did they tell you that I paid them and

            6          contracted with them outside of your contract?

            7      A    All I know is there was a trade off

            8          between the cleanup versus removing that pool.  

            9          So my testimony is that everything that was

            10        supposed to be removed from your property was.

  

            Defendant had no idea that the siding guys, the window guys, the deck and slab builders were "independent contractors" and still does not believe it is a fact. None of these guys had signs on their vehicles or indicated in any manner they were "independent contractors." The workers were repeatedly on the phone requesting direction from John Tabor. Plaintiff has produced no evidence in support of its claim of all "independent contractors" performed all the work. When asked to produce the records that would demonstrate who these people really were, Plaintiff claims the records do not exist. Defendant has presented plenty of evidence John Tabor spoke of his workers as his employees. The deck and slab guy, Keith Payne said he was being paid by the hour so Plaintiff stood to benefit if a trade off had occurred. It only became clear that the gutter guy was when he drove up in a truck with "C & M Gutter Works" on the side of it. The siding guys, the window guys, the deck and slab builder all indicated in conversations that they worked for "John" meaning Mr. Tabor. Clearly in the above testimony Mr. Tabor is relying on a verbal agreement between Defendant and his "guys" to justify IWS failure to perform the disposal of the deck as outlined in the contract. This reliance on a verbal agreement between Defendant and his "guys" being paid by the hour, would have amounted to a change in Plaintiff's favor, which waives any right IWS has to holding Defendant to "No Verbal Agreements Recognized." Of course, there were other verbal agreements made, recognized and acted upon by Plaintiff, such as the window grids.

"No Verbal Agreements Recognized" Is Nothing More Than A Legal Trick Written By the Attorney Mr. Tabor For The Purpose Of Disguising A so-called Merger Clause.

  

  

IN FACT, THE ENTIRE CONTRACT IS NOTHING MORE THAN A LEGAL CONTRIVANCE INVENTED BY JOHN TABOR AND POSSIBLY JANA TABOR, FOR THE DISTINCT PURPOSE OF MAKING THE ARGUMENTS THEY ARE NOW MAKING.

  

            Mr. Tabor is the "author and drafter" of said contract (John Tabor Affidavit of 2005). Mr. Tabor is a non-practicing attorney. (John Tabor depo Page 11) He wrote "No Verbal Agreements Recognized" and other sentences for the express purpose of making the argument he is now making yet disguising its legal meaning from lay people at the time of signing. Before this lawsuit Defendant had no idea what a "merger clause" was. Defendant did indeed know that a "nothing I said or wrote means anything" clause in a contract suggests that you should run in the opposite direction specially when you are talking about something that does not yet physically exist for examination and Defendant does not see that in this contract.

            Defendant believes it is important for this Court to take note that Plaintiff has as much as admitted breaching the contract. (Plaintiff's Statement of Undisputed Facts, Item #7) which states, "The Series 40 windows installed by IWS were not equipped with argon gas." This breach occurred at the point the windows were ordered in September of 2004. Plaintiff offers nothing but a self-serving excuse, presenting no supporting evidence for the understanding John Tabor had when the windows were ordered by him. Defendant has presented evidence to show what Plaintiff had every reason to know at the time the order was placed. Plaintiff has been in breach ever since. Defendant finds it hard to believe that Plaintiff would have any rights under the contract due to its knowing breach that occurred long before any performance was due from Defendant and long before Plaintiff's lawsuit was filed. One has to ask whether the Tabors' think "breach is good" now?

  

  

DEFENDANT ERRED CONCERNING ADMISSION NUMBER # 5

            Defendant agrees that Plaintiff denied Request Number 5 of Defendant's Third Set of Admissions. Defendant humbly asks for the courts forgiveness. This error by Defendant was due to a failure to double-check the responses given for request 5 and 6. In addition, Defendant's mother had a major stroke the last week that Defendant was preparing his response so it is quite likely that Defendant had his mind on more important things thus accounting for this failure to double check. Be that as it may, Defendant apologizes to the court and to Mr. and Mrs. Tabor for this unfortunate error. As the old saying goes "to err is human, to forgive is divine." My thanks to Mrs. Tabor for pointing this error out so that it could be corrected with no harm done.

            Of course, one minor error that is of no consequence since it has been corrected hardly indicates a "complete disregard for facts, the law and the Court" as Mrs. Tabor asserts. On the contrary, the party that files a breach of contract lawsuit knowing full well that it is the one who is in breach of that contract and intentionally did it because they think "breach is good" demonstrates a complete disregard for reality, the truth, the consequences, the facts, the law, this Court, the justice system and the rights of others. And that error still stands uncorrected by Plaintiff, Mr. and Mrs. Tabor.

"On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence. Colonial Stores v. Turner, 117 Ga. App. 331 (160 SE2d 672)." Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429).

  

  

  

WHEREFORE, for the reasons set forth herein and in Defendant’s Opposition Briefs, and for the reasons that the evidence shows there are genuine issues in dispute for a jury to decide, (Defendant’s Statement of Disputed Facts, as Amended) Defendant moves this court, pursuant to O.C.G.A. 9-11-56, for an order DENYING Plaintiff’s Motion For Summary Judgment on any portion of Count 1 of Defendant’s counterclaim and any portion of Counts 2 through 6 of Defendant’s Counterclaims or any other relief.

This _6th_  day of August 2007

Respectfully submitted,

_____________________________

Ron McKinney, Defendant


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.                                                )
 

DEFENDANT'S BRIEF AND MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

  

            COMES NOW DEFENDANT, Ron McKinney and files this verified brief in opposition to Plaintiff Insulated Wall Systems, Inc. (“IWS”) Motion for Summary Judgment on portions of Count 1 and Counts 2 through 8 of Defendant's Counterclaim, showing substantial material facts remaining in dispute, the Defendant states the following:

Introduction
            The parties to this contract once contracted for home improvements. After several meetings, the scope of the work was spelled out in writing. At the moment Defendant signed on the dotted line, and to utilize a metaphor, Mr. Tabor removed his salesman hat and put on his lawyer hat. At all times Mr. Tabor has failed to put on his Contractor's hat. Several months later Mr. Tabor enlisted his lawyer wife to aid him in his quest to pull the wool over this courts eyes for the purpose of enabling him to obtain an order from this court to force their incomplete and shoddy work down Defendant's throat.

            From the moment Mr. Tabor obtained the signature he proceeded to give the Defendant only those things that he decided Defendant should have regardless of the complaints and regardless of what the contract says.

            IWS has no right to the $16,000 because it failed to provide Defendant with argon gas, seams taped, a smooth surface on the slab and the shutters. In addition, IWS has no right to the $16,000 or even a part of it for the simple reason that the quality of the work was so poor, substandard, unsafe, defective and haphazard, only a nut would pay for it.

            Of course, Defendant did not direct, control, interfere or otherwise inhibit Mr. Tabor and his crew of odd-jobbers from their work. As project liaison, for Defendant, Robyn McKinney did express concerns, but that fell on deaf ears.

            Under separate cover and pursuant to O.C.G.A. 9-11-41 Defendant has voluntarily dismissed Counts 7, and 8 of the original complaint. Under separate cover Defendant amends his original complaint so that Count 4 and Count 5 are merged to read "Fraud and Misrepresentation."  This document responds to Count 1, Count 2, Count 3, Count 4 & 5 as one and Count 6.

Statement of Facts
Defendant has fully refuted the "Plaintiff’s Statement of facts" and has included pursuant to Rule 6.5 Defendant’s "Statement of Disputed Facts" under separate cover and incorporates them here by reference as if fully set forth herein. Further Defendant incorporates by reference here all documents filed under notice of filing discovery, the discovery responses, the depositions, and the affidavits that have been filed in the record of this case.

  

Argument and Citation of Authority

  

DEFENDANT'S CLAIM OF BREACH OF CONTRACT SUCCEEDS TO THE EXTENT IT ALLEGES IWS BREACHED THE CONTRACT BY FAILING TO COMPLY WITH THE COUNTY BUILDING ORDINANCES.

  

            Defendant's Counterclaim for Breach of Contract alleges IWS failed to comply with Gwinnett County Building Codes AKA "the code". 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 matter of law, such allegations are sufficient to create a jury issue on the breach of contract claim because the Gwinnett County Building Codes are a part of the parties contract therefore entitling IWS to squat, zilch, nada, nothing on this issue.

  

TWO PROVISIONS IN THE CONTRACT DEMONSTRATE THAT IWS WILL COMPLY WITH THE GWINNETT COUNTY BUILDING CODES

  

            Contract construction is a matter of law for the court. OCGA 13-2-1 Black Island Homeowners Assn. v. Marra 272 Ga. App. 265, 266, 617, S.E.2d 148 (2001)(and about hundred different others.) The trial court must decide whether the language is clear and unambiguous or vague and open to interpretation. In this case, there are two provisions in the contract that demonstrate that IWS will comply with the Gwinnett County Building Codes in the construction of the replacement deck and slab and all aspects of the work that are applicable. The contract in Exhibit "A" shows the first one is "The contractor agrees to do all work in a good and workmanlike manner." This sentence applies even if it wasn't in the contract.

 "As a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner." 17 AmJur2d 814, Contracts, 371. Accord: Doster v. Brown, 25 Ga. 24. "The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession."

Trustees of The Monroe Female University v. Broadfield, 30 Ga. 1; Block v. Happ, 144 Ga. 145 (86 SE 316); Porter v. Davey Tree Expert Co., 34 Ga. App. 355 (2) (129 SE 557)." Allied Enterprises v. Brooks, 93 Ga. App. 832 (1a) (93 SE2d 392). Accord: Housing Authority of City of Carrollton v. Ayers, 211 Ga. 728, 733 (88 SE2d 368); Bodin v. Gill, 216 Ga. 467, 472 (117 SE2d 325); McKee v. Wheelus, 85 Ga. App. 525 (69 SE2d 788); Berston v. Futo, 97 Ga. App. 5 (102 SE2d 87); Talerica v. Grove Park Plumbing Service, 103 Ga. App. 591 (120 SE2d 36); Mauldin v. Sheffer, 113 Ga. App. 874, 880 (150 SE2d 150); Amos v. McDonald, 123 Ga. App. 509, 510 (181 SE2d 515). See also Cannon v. Hunt, 116 Ga. 452 (42 SE 734); Orkin Exterminating Co. v. Buchanan, 108 Ga. App. 449 (133 SE2d 635).

 

CONSTRUCTIONS CODES ARE CREATED BY THE CONSTRUCTION INDUSTRY AS MINIMUM STANDARDS AND THEY ARE THE LAW BOTH ON A COUNTY LEVEL AND STATE LEVEL

 

Gwinnett County Construction Codes are created and maintained by the learned folks in the construction industry. In Georgia, among others, it is the Southern Building Code Council International AKA SBCCI. Their publications are the ones to compare the work to because they are in the "same profession." They were adopted by the Georgia State Legislature as the state minimum standard:

 "(a) On and after October 1, 1991, the state minimum standard codes enumerated in subdivisions (9)(B)(i)(I) through (9)(B)(i)(VIII) of Code Section 8-2-20 shall have state-wide application and shall not require adoption by a municipality or county. The governing authority of any municipality or county in this state is authorized to enforce the state minimum standard codes enumerated in this subsection.Title 8, Chapter 2, Section 25

 

  

  

Incidentally O.C.G.A.8-2-20 states the statewide applicable codes as:

(9)(B)(i) On and after October 1, 1991, "state minimum standard codes" means the following codes:

(I) Standard Building Code (SBCCI);

(II) National Electrical Code as published by the National Fire Protection Association;

(III) Standard Gas Code (SBCCI);

(IV) Standard Mechanical Code (SBCCI);

(V) Georgia State Plumbing Code or the Standard Plumbing Code (SBCCI);

(VI) Council of American Building Officials One- and Two-Family Dwelling Code, with the exception of Part V - Plumbing (Chapters 20-25) of said code;

(VII) Georgia State Energy Code for Buildings as adopted by the State Building Administrative Board pursuant to an Act approved April 10, 1978 (Ga. L. 1978, p. 2212), as such code exists on September 30, 1991;

(VIII) Standard Fire Prevention Code (SBCCI);

  

In this case, it is "(VI) Council of American Building Officials One- and Two-Family Dwelling Code" that is relevant. It is important to note that in 1994 SBCCI, CABO and others combined under the International Code Council (ICC) to produce a single code set. The One and Two Family Dwelling Code is now titled the International Residential Code for One and Two Family Dwellings (IRC)  

            The other provision in the Contract that includes the code and is a great deal more explicit is the 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." More discussion on this topic later.  

  

THE CONTRACT BETWEEN DEFENDANT AND PLAINTIFF DOES NOT CONTAIN A MERGER CLAUSE. "NO VERBAL AGREEMENTS RECOGNIZED" IS NOT A MERGER CLAUSE AND EVEN IF IT WAS PLAINTIFF HAS WAIVED IT.

  

            Each page of the contract does specifically state that "No Verbal Agreements Recognized". However, this statement is not a merger clause and even if it was Mr. Tabor, Mrs. Tabor and Plaintiff have all waived any right to claim that it is now. If Plaintiff, its representative and attorney disregard it they really cannot complain that Defendant and this court does. Merger clauses are "entire agreement" clauses. Here are four examples.

"This contract constitutes the sole and entire agreement between parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto."SUN-PACIFIC ENTERPRISES, INC. v. GIRARDOT et al. 01A1288. (251 Ga. App. 101) (553 SE2d 638) (2001)

"[t]his Agreement constitutes the sole and entire agreement between the parties hereto. . . . No representation, promise, or inducement not included in this Agreement shall be binding upon any party hereto." FANN et al. v. MILLS et al. BARKER et al. v. MILLS et al. A00A2434. A00A2435.(248 Ga. App. 460)(546 SE2d 853)(2001)

 [The] Agreement . . . constitutes the entire agreement between the parties with respect to the subject matter contained herein and supercedes all prior agreements and understandings, both oral and written by and between the parties hereto with respect to the subject matter hereof. FIRST DATA POS, INC. v. WILLIS et al. S00G1904. (273 Ga. 792)(546 SE2d 781)(2001)

"...lease contains the entire agreement between the parties and no agreement, representation or inducement shall be effective to change, modify or terminate this lease in whole or in part unless in writing and signed by the parties." FLAIR FASHIONS, INC. v. SW CR EISENHOWER DRIVE, INC. A92A1873. (207 Ga. App. 78)(427 SE2d 56)(1993)

The statement "No Verbal Agreements Recognized" only serves to exclude one form of agreement. It does not exclude written agreements. Facts have no exceptions, opinions only need one. Therefore, it cannot be said that it is an "entire agreement" clause; therefore it cannot be a merger clause. It certainly does not put anyone on notice that no oral representations, written representations, promises, understandings and other inducements become meaningless at the signing. It does not operate as a license to lie or shelter from fraud. Once waived it is as if it is not even there.

EVEN IF THIS COURT DECIDES IT IS A MERGER CLAUSE MR. AND MRS. TABOR AND PLAINTIFF HAVE WAIVED IT ON NO LESS THAN 3 OCCASIONS.

            Occasion Number 1. During the negotiations Defendant struck a verbal deal with Mr. Tabor to provide him and Mrs. Tabor with two 10" exotic wood pepper mills. They were to be a reward for the Tabor's, in recognition of Mr. Tabor's personal commitment to oversee the project and do careful, diligent and skillful work as promised. Evidence for this deal can be found in Mr. Tabor's letter. Attached and marked as Exhibit "B" is a true and correct copy of Mr. Tabor’s letter. Defendant told Mr. Tabor to have his wife make a selection from the designer pepper mills at www.exoticwoodpeppermills.com. According to Mr. Tabor, Mrs. Tabor viewed them and selected the "Ebony Princess Set 11b".  Evidence of this is contained in an email sent from Mr. Tabor to rmckin2146@aol.com (an email address that Defendant shares with his wife.) Attached and marked as Exhibit "C" is a true and correct copy of that email.

            Occasion Number 2. Since the slab was being built to handle a jacuzzi (Ron McKinney depo, Pg 29) Defendant asked Plaintiff's "professional concrete installer" how much it would cost to install a drain and would it cause any problems. Plaintiff's installer replied that he could do it with no problem and no cost if Defendant supplied the piece of pvc pipe. Defendant did this and Plaintiff's installer "installed" it. Clearly a verbal agreement was reached between Defendant and Plaintiff.

            Alleged Occasion Number 3. Even though this verbal agreement never occurred Mr. Tabor clearly is waiving any right now to claim "no verbal agreements recognized" when he states "all I know is there was a trade off between the cleanup [of the deck] versus removing that pool." (John Tabor Depo, Page 146) The actual 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 cleanup of the deck versus removing the pool.

THE INCORPORATION BY REFERENCE OF CERTAIN ORDINANCES EXCLUDING THE COUNTY AND PLAINTIFF'S ARGUMENT FOR ITS EXCLUSION EVIDENCES INTENT BY TWO LAWYERS TO DEFRAUD DEFENDANT AND THIS COURT.

Mrs. Tabor obviously has a law degree. Mr. Tabor admits that he has a law degree. (Tabor depo page 11)

"2                 ...I have

 3         a jurist doctorate degree from Georgia State

 4          School of Law."

In Interrogatory Number 12 Defendant asked the following question:

"This question is in reference to words found on your contract. Please define the terms found on your contract as Plaintiff meant for them to be understood by Defendant, include any implied meanings of the following terms:
(a) contractor agrees to furnish all materials and labor necessary; (b) upon completion of the work; (c) contractor agrees to do all work in a good and workmanlike manner; (d) sufficient notice; (e) satisfactorily completed; (f) contractor will do all said work in strict accordance with the ordinances, rules, and requirements; (g) breach of this contract."


The pertinent part of Plaintiffs response was:

"Plaintiff states that each and every provision used in its written contract is subject to the plain and ordinary meaning [emphasis added] within reasonable minds of the wording employed therein. As such, Plaintiff offers no further specific response to this request."

IT IS AGREED BETWEEN DEFENDANT AND PLAINTIFF THAT WORDS IN THE CONTRACT SHOULD BE GIVEN THEIR PLAIN AND ORDINARY MEANING AND EVEN IF THERE IS A MERGER CLAUSE THAT WOULD PRECLUDE PAROL EVIDENCE THE CONTRACT STILL SPEAKS FOR ITSELF

As much as Mr. and Mrs. Tabor would like to believe that everyone is a lawyer, thinks like a lawyer, defines words like a lawyer, the truth is only a small percentage of the American (and Georgian) population are attorneys. Therefore, the meaning of "City, Town and Village" must be given their "plain and ordinary meaning" and that comes from an ordinary dictionary, not Black's Law Dictionary and certainly not from Statute.

To "ordinary" folks "city, town and village" mean about the same thing just progressively bigger starting with village.  The first dictionary definition of "village" is "a small group of dwellings in a rural area, usually ranking in size between a hamlet and a town."  The first dictionary definition of "town" is "a population center that is larger than a village and smaller than a city" and the first dictionary definition of "city" is "a center of population, commerce, and culture; a town of significant size and importance." (Definitions from www. Answers.com) Unincorporated "Centerville" (there actually is a sign) is where the subject property is located and by these definitions it would be classified as a "village" because it is nothing more than a small group of dwellings in a rural area, ranking in size between a hamlet and a town and the codes that apply to the unincorporated areas of Gwinnett County are the Gwinnett County Construction Codes.

THIS COURT IS BOUND TO USE THE PLAIN AND ORDINARY MEANING
"Ascribing ordinary signification to the words of this statute, as we are bound to do, OCGA 1-3-1, we think its plain, commonsense meaning is as defendants suggest:" JENKINS et al. v. CLAYTON. (273 Ga. 439) (542 SE2d 503) (2001),

 

  

"Words must be given their plain and ordinary meaning," J. KINSON COOK, INC. et al. v. WEAVER. (252 Ga. App. 868) (556 SE2d 831) (2001)

  

  

PLAINTIFF HAS ALREADY ADMITTED THAT SAID SENTENCE INCLUDES GWINNETT COUNTY

  

And then there is Plaintiff's astounding admission to Defendant's Admission Number 5 of Defendant's 3rd set of Admissions which states:

            "The Plaintiff's Contract with the Defendant states, "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" includes Gwinnett County."

            Plaintiff's response:

            "ADMITTED. The contract speaks for itself."

            And there is this little faux paus from Mr. Tabor's depo page 57:

            "9           Here again, it goes back to the issue of

            10        all the different rules and regulations from

            11        county, city, towns, villages and whatnot, there

            12        are different building codes and requirements for

            13        new construction versus remodeling; and to the

            14        best of my knowledge, any rules or requirements

            15        by the city, town or village that would affect

            16        any of the work done at your house is not

            17        enforced.  

            18           It would be kind of like the 55 mile an

            19        hour speed limit on 285; it may be on the books

            20        somewhere, but for all practical purposes, it's

            21        voluntary."

             If gall wins lawsuits then credit must be given to the Mr. and Mrs. Tabor. First he admits that subject sentence includes Gwinnett County, then they plan to walk into the Gwinnett County Justice and Administration Center and appear before a Gwinnett County Superior Court Judge and insist that the laws of Gwinnett County and the State of Georgia as represented by the construction codes do not apply to this contract. It is informative to point out to the court that the subject sentence does not include State or Country. Would Mr. and Mrs. Tabor really suggest that they too were intended to be excluded? Apparently so.

            And common sense suggests that it matters not where the property is located within the state of Georgia because the codes have statewide application and Defendant is no less entitled to that protection than someone residing within a municipal area.

            HANDWRITTEN TERMS OF A CONTRACT SUPERCEDES PRINTED FORMS ONLY WHEN THERE IS A CONFLICT AND IN THIS CASE THERE IS NO CONFLICT

            In this case there is no conflict. Do all the work in compliance with the Gwinnett County Constructions Codes. The only potential conflict would be if the handwritten terms stated specifically that all work would be done in non-compliance with the code and this would be against Georgia Public Policy and 'it is a general rule that agreements against public policy are illegal and void." (Citations omitted.) Hanley v. Savannah Bank &c. Co., 208 Ga. 585, 586 (68 SE2d 581).

There being a requirement for compliance contained within the contract, the Court should enforce the contract pursuant to its terms. Britt v. Albright, 282 Ga, App. 206, 209, 638, S.E.2d 372 (2006) Therefore, IWS is not entitled to summary judgment because said Building Codes are a part of the contract and they do apply to the work performed in this case.

            Wherefore, Defendant moves this court to DENY Plaintiff's Motion for Partial Summary Judgment on Count 1.

PLAINTIFF'S REPRESENTATIVE JOHN TABOR VERBALLY COMMITTED TO DO ALL THE WORK IN ACCORDANCE WITH THE BUILDING CODES THUS ASSUMING DEFENDANT'S LEGAL DUTY

  

            Defendant has a legal duty to follow the laws of the County of Gwinnett and the State of Georgia. (Element Number 1) Both jurisdictions have ordinances and statutes that govern the construction of the deck and the concrete slab and to a lesser degree the windows and siding. Even though Defendant has proceeded under the theory that the State Minimum Standard Construction Codes O.C.G.A. 8-2-25 and the Gwinnett County Construction Codes are implicit and explicit in the contract, Plaintiff is now arguing that they are not. And considering the unlikely idea that this Court finds that the codes are not a part of the contract, Defendant will still maintain, ex delicto, that Mr. Tabor as a representative of IWS, made the promise that all work was to be done in accordance with all applicable codes and statutes thus assuming Defendant's legal duty to follow the laws of the County of Gwinnett and the State of Georgia. (McKinney Depo Page 54) In addition, the pepper mills were to be given to Mr. Tabor (and Mrs. Tabor) as consideration in recognition of his personal commitment to accept the responsibility for seeing that the work was done in a professional manner by skilled workmen to include complying with all applicable laws, ordinances and statutes that normally would apply to Defendant. (Element Number 2)  Once John Tabor accepted this duty Defendant reasonably relied on him to accomplish it and therefore Defendant had no need to search out anyone else. (Element Number 3) Evidence of Mr. Tabor's acceptance of the peppermill bargain is in his letter to Defendant, dated January 4, 2005. (Exhibit "B".)

             However, if this court determines that the State Minimum Standard Construction Codes under O.C.G.A. 8-2-25 and the Gwinnett County Construction Codes are ex contractu Defendant will amend this count into the Breach of Contract.

            DEFENDANT HAS STANDING TO ASSERT A NEGLIGENT CONSTRUCTION CLAIM AND AS SUCH IWS IS NOT ENTITLED TO SUMMARY JUDGMENT ON DEFENDANT'S NEGLIGENT INSTALLATION OF HOME IMPROVEMENTS CLAIM

  

            Defendant can find no definitive statute or case law that limits the assertion of a negligent construction claim to the "legal title owner" particularly when the owner has not accepted the negligent work. Nonetheless, for the purposes of this litigation and to appease Plaintiff and its counsel, Defendant will explain the situation and by the power and authority invested in him by the real parties of interest, demonstrate that he has standing.

            3F Foundation is a personal, private and confidential agreement between Three (3) close knit Family members. It is not a "Nevada corporation" and Defendant never called it a "corporation." (Ron McKinney depo, Pg 10 and 11) The three close-knit family members involved are Ron McKinney, the Defendant, Robyn McKinney (formerly known as Robyn Lee Prentice), Defendant's spouse and Lois McKinney, the 95-year-old mother of Defendant. (Exhibit “V”, Ron McKinney Aff. par. 3, 4, 5) 3F Foundation was created in 1997 for the express purpose of insuring that Lois McKinney, then 85 years old, would, until her death, have a residence to call her own regardless of what happened to Defendant and his spouse. The property was deeded from Robyn Lee Prentice to 3F Foundation July 4th, 1997. Defendant was appointed General Manager of 3F Foundation by the other two parties. Attached as Exhibit "D" is a true and correct copy of a mortgage placed on the property by Lois McKinney on December 1, 1997 and executed in the name of "3F Foundation, the borrower" by and through Ronald W. McKinney, the General Manager of 3F Foundation. Defendant also holds a Durable Power of Attorney granted by Lois McKinney on December 1, 1997. Attached and marked as Exhibit "E" is a true and correct copy of the Durable Power of Attorney.

            As the old saying goes, "possession is 9/10's of the law" and it is fact that Robyn McKinney, since purchasing the property in 1983, has continuously possessed said property for 24 years and Defendant has possessed the property continuously since 1987 (20 years) and Lois McKinney has been in possession of the property since 2001 (6 years). All three are the real parties of interest and Mr. Tabor has known this from the beginning and what both the Tabor's are doing now represents just another legal trick.

            Furthermore, Defendant has perfect standing to assert a negligent claim against Plaintiff when the negligence was the proximate cause of injury to Defendant's body as shown by Defendant's response to Plaintiff's Interrogatory Number 10, and Defendant's response to Plaintiff's Document Request Number 3 and as discussed extensively in the deposition of Defendant on Pages 86 through 91 and the damages were shown to John Tabor in Exhibit 29 referred to on Page 31 of Mr. Tabor's deposition.  

            Wherefore Defendant moves this court to DENY Plaintiff's Motion for Summary Judgment on Count 3, Defendant's Negligence claim for the simple reason that Defendant, as General Manager of 3F Foundation, has a legally protected interest in the property and has a legal obligation to protect the property and as a matter of law has a right to pursue the claim embodied in Count 3.  

 

  

  

            THE RESPONDANT, RON MCKINNEY (PLAINTIFF IN COUNTERCLAIM) IN THIS RESPONSE SETS FORTH SPECIFIC FACTS SHOWING THAT THERE IS A GENUINE ISSUE FOR TRIAL FOR COUNT 4 AND 5 OF RON MCKINNEY'S COUNTERCLAIM.

  

            Defendant will amend the counterclaim combining Count 4 and Count 5 and Count 4 will be labeled as "Fraud and Misrepresentation." In this response and for the purpose of maintaining an orderly response to Plaintiff's Motion for Partial Summary Judgment Defendant will respond first to the Misrepresentation surrounding the windows.

MR. TABOR SOLD DEFENDANT ON THE SERIES 60 WINDOW WHERE ARGON GAS IS STANDARD, THEN SWITCHED TO THE SERIES 40 WINDOW WHERE ARGON GAS IS AN OPTION SO THAT HE COULD ORDER THE WINDOWS WITHOUT ARGON GAS, WHICH HE PROCEEDED TO DO.

 

            Mr. Tabor has finally admitted that the windows installed by Plaintiff do not contain argon gas. This occurred because Mr. Tabor did not order the windows with argon gas. The facts clearly show Mr. Tabor did not order windows with argon gas because 1) he thinks argon has no value in the Atlanta area and 2) he did not order windows with argon gas so that he could profit by another $260 of Defendant's money and because he thought could get away with it.

Background, Scientific Facts and Evidence
            During the initial meeting with Mr. Tabor, he presented Defendant with a Series 60 sample window and Series 60 brochure. Attached is a true and correct copy of the Series 60 brochure marked as Exhibit "F". There are three important features of that brochure that Defendant will draw the attention of the court to and they all occur on the last page of the brochure.

            1.) Series and date code. At the bottom left portion of the page is a series-date code that reads, WJ-60-00-A. "WJ" is obviously for "WindJammer". The "60" is the model of the windows and the "00" is the last two digits of the year the brochure was published, i.e. the year "2000". The "A" is the revision level of the brochure. This clearly indicates that Mr. Tabor was using a brochure for the Series 60 window that was from the year 2000 as late as August 2004.

            2.) The second important feature of this brochure is what is stated under the heading "High-Performance Glass". Clearly the brochure states that argon gas was an option for this window series and considering the date code clearly argon gas was an option for this particular window series in the year 2000.

            3.) The third important feature of this brochure is the graph, particularly the two bars that read "4.35" and "3.33" because they represent the difference in R-Value (insulating quality of material) between windows with only low-e and windows with low-e and argon gas. In this case, 4.35 is approximately 31% greater than 3.33 which simply means that Windjammer windows with argon gas have approximately 31% better insulating quality than the same window without argon gas.

            Sometime between the second and third meeting Mr. Tabor called and said the "Series 60" had been discontinued and the "Series 40" had been upgraded and was replacing the "Series 60". Defendant asked that he bring the “new” sample window and its brochure to the 3rd meeting for study. Mr. Tabor brought the Series 40 sample window and the brochure. A true and correct copy of that Series 40 brochure is attached and marked Exhibit "G". Defendant did study the window noting the similarities between it and the Series 60 and accepted it as long as it had low-e and argon gas. Defendant moves the court to notice the series and date code is "WJ-4003" on the last page of Exhibit "G" which means "Windjammer, Series 40, year 2003"

John Tabor can be held to know and had every reason to know and understand these codes but Defendant did not come to understand the date codes until given the explanation from Lynn Whyte. It is also important to note that low-e and argon gas are options on the Series 40 brochure.

            Five more pieces of evidences will now be introduced to demonstrate that Mr. Tabor knew the scheme he was pulling and the motivations behind it.

            1.) The first piece of evidence is Mr. Tabor's letter sent to Defendant dated January 4, 2005. Attached is a true and correct copy of that letter marked as Exhibit "B". In that letter Mr. Tabor states the following:

            “It has come to my attention that you [sic] new windows may or may not have argon gas. It seems that the procedure for ordering argon changed around the time your windows were ordered. Argon gas had always been automatically included with low-e glazing. However, it (argon) has now become an option on these windows for an additional $3.00 per window. I am told that the change occurred because of growing evidence that argon gas offers no appreciable energy savings in our climate and carries no warranty at all regarding longevity. Clearly, argon gas is of very little value in this situation. Further, it seems that there is no practical way to test the windows to definitely determine whether the gas was actually installed in the windows.”

  

            Clearly Mr. Tabor is confessing to seeing no value in argon gas.

            2. and 3.) Attached and marked as Exhibit "H" and Exhibit "I" are true and correct copies of the two brochures for the Series 40 and Series 60 windows that were actually in effect in 2004. They were obtained from Lynn Whyte, Vice President of Administration for Lansing Building Products. A review of the last page of each is revealing. The series-date code for the Series 40 brochure is "WJ-4003-A" which means a revision in the brochure. Other than this revision in the brochure, this brochure is fairly identical to the brochure Mr. Tabor gave to Defendant. The other brochure Exhibit “I” is a different story. The series-date code is "WJ-60-03-A" which means this brochure is from "2003" and it had one revision to the brochure.  What is even more revealing is that now (2003) under the section “High Performance Glass,” it shows that argon gas is a standard feature as opposed to an option.

            4.) The fourth piece of evidence is IWS window order form. A true and correct copy is attached and marked as Exhibit "J". There is clearly no place for argon gas as an option unless it is written into the "special instructions." It is important to note the handwriting at the top, which states "John confirmed order."

            5.) The final piece of evidence to allow someone to put the puzzle together is a letter Defendant received from Chris Riley of Atrium Windows and Doors who are the actual manufacturers of the windows. Attached and marked as Exhibit “K” is a true and correct copy of that letter. While the letter refutes much of what Mr. Tabor says and makes for eye opening reading the pertinent part for this discussion is where Mr. Riley states:  

            "We have made a number of enhancements to continue improving the Series’[40] performance. Most recently, in January, 2004, we changed the position of the bottom sash lift rail to the bottom of the sash; we improved the performance and aesthetics of the exterior frame head, and we introduced an improved screen as standard."

 

To the untrained eye this change of the position of the bottom sash lift rail to the bottom of the sash makes the Series 40 look almost exactly like the Series 60. This is how Defendant became convinced that the Series 40 had indeed replaced the Series 60.

            The big difference and the one that counts in Defendant's claim of misrepresentation is the fact that in 2004 argon gas was an option on the Series 40 and came standard on the Series 60 and Mr. Tabor hid this fact from Defendant by giving him an old brochure.  By switching the windows Mr. Tabor gained control over whether or not the windows came with argon gas.  This cost cutting measure may seem trivial at $260 on Defendant's order but when multiplied over 1000 or 2000 jobs it obviously becomes significant. And Defendant's house has only 13 windows.

The Significance of Argon Gas

            It is well accepted in the building trade that 70% to 80% of heat loss in the winter and heat gain in the summer is through the windows. It is also a scientific fact that argon gas has about a 40% decrease in thermal conductivity than air. It is also a scientific fact that thermal conductivity has approximately a one to one relationship to sound conductivity. This merely means that while argon gas will decrease the amount of heat moving through the windows it also decrease the amount of sound transmitted through the windows. Even the Windjammer brochure mentioned above shows an increase in R-Value of 31% between windows with only low-e and windows with low-e and argon gas. This is a dramatic difference and can result in huge savings in energy cost over the life of the windows as well as providing exceptional sound buffering benefits and the facts show that Mr. Tabor, consciously and deliberately withheld these benefits so that he could cut his cost for the windows, yet still charge the Defendant the same price as for the more expensive and better quality Series 60 windows.

Summation
            "Knowing" is always the most difficult thing to prove as part of fraud or misrepresentation. However, knowing can be inferred when one takes a look at all the actions of an individual both during and after the alleged fraud. In this case as presented the evidence shows the following:

            1.) Mr. Tabor sold Defendant on the Series 60 window knowing full well that at the time the Series 60 came standard with argon gas.

            2.) Mr. Tabor then told Defendant that a switch had occurred by the manufacturer requiring Defendant to purchase the Series 40 with Mr. Tabor knowing full well that what he was really doing was placing into his hands the control over whether or not argon gas gets ordered.

            3.) Mr. Tabor ordered the windows without argon gas and even confirmed the order knowing full well that argon gas was an option and had to be explicitly ordered.

            4.) Mr. Tabor had two other opportunities to inspect the windows and insure they were in fact the windows Defendant ordered, when they were delivered to the Lansing Building Products warehouse and again when they arrived at Defendant's home. Mr. Tabor failed to inspect them on each occasion.

             5.) When Defendant finally determined that his windows did not have argon gas Mr. Tabor's response was equivocal (lawyer like) and he did his best to devalue the inclusion of argon gas. In addition, he blamed the error on some recent ordering change at Lansing Building Products, which Lansing Building Products denied by email. Attached is a true and correct copy of that email marked as Exhibit "L" from Lynn Whyte, VP, Administration, Lansing Building Products which Plaintiff produced to Defendant during discovery and which states in pertinent part:

            "The Atrium internet based Window Wizard software which is used to order Windjammer windows goes through various updates. There was a change in June 2004 but nothing in August 2004. I do not know the nature of the change, but any changes in the software should not really have impacted our customer's ordering process."

 

            6.) Never, not once has either Lansing Building Products or John Tabor offered to replace Defendant's windows with ones that have argon gas.

            7.) Clearly the evidence shows Mr. Tabor never had any intention of ordering the windows with argon gas, and never has had any intention of fulfilling that part of the contract even to this day and if all of this together doesn't demonstrate knowledgeable intent to defraud Defendant I don't know what does.

            8.) This kind of scam happens all the time, particularly when the item being sold is invisible.

THERE IS NO MERGER CLAUSE AS STATED PREVIOUSLY AND EVEN IF THERE WERE A MERGER CLAUSE IT HAS BEEN WAIVED BY PLAINTIFF.

  

EVIDENCE FOR OTHER FRAUDS

MR. TABOR MISREPRESENTED THE SIZE OF HIS COMPANY AND HIS WORKERS.

  

            Mr. Tabor told Defendant in August of 2004, that IWS was a very successful company, having 15 to 20 employees and doing business in the millions. Defendant verified these claims by doing a business search on IWS. Attached and marked as Exhibit  "M" is a true and correct copy of the results of that search obtained from ReferenceUSA.com, which clearly shows "15 employees" and 1 million to 2.5 million dollars in annual sales for Insulated Wall Systems.

            Now during Mr. Tabor's deposition Mr. Tabor claims he has zero employees. (Tabor depo, Page 12)

            11      Q    How many employees does Insulated Wall

            12             Systems have?

            13      A    None.

            14      Q    Would you consider yourself an employee?

            15      A    Yes.

The man didn't even count himself as an employee at first. Throughout his deposition Mr. Tabor referred to the alleged independent contractors as "my workers" [8 times, Tabor depo pg 73, 75-2 times, 77, 96-2 times, 97 and 101] and once referred to them as "my employees."(Tabor depo, pg 75) It was so obvious Mrs. Tabor felt the need to correct him at the end with this question and answer:

            18      Q    Mr. Tabor, earlier in your testimony, I [Mrs. Tabor]

            19        believe you used the term "employees" to

            20        reference people who did work on behalf of the

            21        plaintiff with regard to the defendant's home.  

            22           Does Insulated Wall Systems in fact

            23        employ anyone who actually did construction work

            24        on this home?

            25      A    No.  I just misspoke.  They are all

            1          subcontractors.  No employees.

            Tabor depo, pg 147

  

Defendant would never have signed if he had known that Insulated Wall Systems used only sub-contractors. The contract doesn't mention sub-contractors at all.

MR. TABOR LIED ABOUT WHETHER IWS POSSESSES LIABILITY AND WORKERS COMPENSATION INSURANCE

  

            It is agreed between Defendant and Plaintiff that the post card says "Insured." It is agreed that the contract states,

            "We carry adequate insurance to protect our customers against injuries to our workmen or the public during the performance of our contract."

  

            This is obviously a claim regarding the existence of a General Liability Policy and some form of workers compensation policy.  Insulated Wall Systems, Inc. had no general liability policy at the time and the evidence for this is that Plaintiff has failed to produce it during discovery even though Mr. Tabor still maintains IWS had a general liability policy in effect in August of 2004. From his deposition pg 61:

            THE WITNESS:  My subcontractors are

            2      required to carry their own Workers' Comp

            3      insurance, and Insulated Wall Systems carries

            4      a general liability policy, and that is

            5      exactly what was in place in 2004.  

            6           I would have to check my records.

  

IWS had no general liability policy in August of 2004 but the IWS contract and Mr. Tabor stated that it did. This is fraud. Plaintiff has already admitted that it has no form of workers compensation. (Response to Interrogatory 9, September 29, 2005)

MR. TABOR MISREPRESENTED THAT IWS DOES WORK TO ALL APPLICABLE CODES AND TO INDUSTRY STANDARDS

  

At the time Defendant asked Mr. Tabor if it was IWS policy to perform work to all applicable codes. He responded that it was. Now Plaintiff/John and Jana Tabor are arguing that the codes don't apply.

MR. TABOR MISREPRESENTED IWS COMPANY POLICY ON THE IMPLEMENTATION OF "SATISFACTION GUARANTEED"

  

            Contrary to Mrs. Tabor's lengthy discussion that Defendant's claim of fraud is based on "puffing" and futuristic events Defendant's claim is actually based on false statements Mr. Tabor made at the time of signing concerning the company policy of IWS and statements in the contract.

            And contrary to Mrs. Tabor's assertion that "Satisfaction Guaranteed" is merely an expression of a company's "effort to imply that the seller recognizes that it wants its customers to be pleased" there are many companies who have made it Company Policy (within certain posted limits) to implement "Satisfaction Guaranteed." Home Depot, Sears Roebuck, Walmart, Target and Lowes are but a few who actually mean what they say.

            Of course, Defendant was not so naive to depend solely on Mr. Tabor's word or his advertisement but in fact looked for the implementation of "Satisfaction Guaranteed" within the four corners of the contract and it is clearly there and it is contained within two sentences of the contract and Mr. Tabor does not dispute that it means exactly what Defendant says it means. The first sentence is this:

"All of the above work to be done for the total sum of {$16,000 even} Dollars (${16,000.00}) payable in cash, net, upon completion of the work." [emphasis added]

  

The most obvious problem with this statement is the last four words? Who defines "completion of the work"? Is it the seller or the buyer? Is it defined in the contract? It is Defendant's contention that these four words are defined in the contract and this contention is based on the fact that these four words only appear one other place in the contract and they appear in this sentence:

"The acknowledgment of the completion of the work, signed by the owner of said premises, 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." [emphasis added]

  

Mr. Tabor was asked about this sentence at the time and he responded that this was Defendant's guarantee of satisfaction. This made sense to Defendant because this sentence is calling for a "required" AKA "sufficient" (as in you cannot get to Florida by car without sufficient gasoline) standard completion certificate. Mr. Tabor agrees that without a completion certificate signed by the owner and presented to a lender in a financing situation IWS does not get paid. (John Tabor Affidavit, Para "4" attached and marked as Exhibit "N", John Tabor depo, pg. 62,63) The question and answer is printed below:

            19      Q    Tell me your understanding or Insulated

            20        Wall Systems' understanding of that particular

            21        sentence.  

            22      A    Here again, that is a sentence that is

            23        required by the financial institution that

            24        provides the financing.  They require a

            25        completion certificate to be signed by the

                                        63

            1          customer before they would release the funds to

            2          Insulated Wall Systems.  

            

In addition, now Mr. Tabor states that it is he who gets to decide when the work is completed. (John Tabor depo, page 68)

            3      Q    Who defines completion of the work

            4                      according to this contract?

           5      A    Reasonable people.

            6      Q    And who may that be in this particular

            7                      case?

            8      A    Me.

  

Defendant fails to see that part in the contract. The only thing that is disputed here is whether or not this sentence applies to a cash sale. Mr. Tabor claims that it does not (Exhibit “N” John Tabor Affidavit, Para "4", John Tabor depo, pg 64, pg 66)

            20           THE WITNESS:  Well, this doesn't have

            21      any bearing on the contract at hand, because

            22      we weren't arranging financing for you the

            23      defendant.  

  

  

Pg 66  5      Q    Well you have testified in the past, I

            6           think in the interrogatories, that this sentence

            7          only applies to finance sales; is that correct?

            8      A    That's correct.

  

It is Defendant's contention that the sentence applies for two reasons.

            1.) It is in the contract.

            2.) It is not marked through as the other statement concerning the financing is marked through. Mr. Tabor claims that he usually marks it out for cash sales but did not this time because he didn't want to make a mess out of the contract. (John Tabor depo, pg 66)

            9      Q    So that whole paragraph which you

            10        scribbled out at the top has to do with finance

            11        sales, you didn't scribble out that particular

            12        sentence.

            13      A    That is true, I didn't scribble out that

            14        particular sentence, just the area above it.

            15      Q    And you don't scribble it out because

            16        why?

            17      A    Not to make a mess of the contract, I

            18        suppose.

  

However, Defendant possesses two other IWS contracts that are cash sales and neither have that sentence marked out. A true and correct copy of those contracts are attached and marked as Exhibit "O" and Exhibit "P".

MR. TABOR MISREPRESENTED IWS EMPLOYEES EXPERIENCE LEVEL

            At the time Mr. Tabor presented IWS employees as professionals who had done many slabs, decks, siding and windows. This was "true" even after the complaint filed by Mrs.Tabor. (Exhibit "Q" p "10")

            Now, during the Tabor deposition, Mr. Tabor describes one sub-contractor as a "handyman." (Tabor depo Page 82)

 3            I had handymen that had

 4         worked for me on properties that I owned that had

 5         done things like poured slabs, extended driveways

 6         and such.  

  

            Defendant was not hiring a "handymen." He was hiring a professional company with years of experience who would do the work in a good and workmanlike manner and in accordance with all applicable codes and in accordance with industry standards. This is what professionals do. Professional contractor's do all the work in a professional manner and then expect money. Professional lawyers pretending to be professional contractors slap up what they want, demand payment and then run to court when they don't get the money, particularly if it doesn't cost them anything and particularly if they think that the other guy might have to shell out as much as $25,000 to fight it.

MR. TABOR MISREPRESENTED THE IWS POLICY ON CLOSING THE DEAL

  

            Mr. Tabor stated that when his employees completed their work, Defendant and Mr. Tabor would do an inspection. He stated that a punch list would be created for all items that needed to be completed or repaired. He stated that this punch list would be worked and the same process would occur again until all things were done and in accordance with the contract. At that point funds would be due and Defendant would sign the completion certificate.

            In Summary

            Mr. Tabor told Defendant that it is IWS company policy that customers do not have to pay until they are satisfied that all the work has been completed in accordance with the contract and he supported his statements with his advertisement and most significantly the contract. He also stated that his professional employees would be doing the work and that he would be supervising that work regularly. He also stated that the work would be done in accordance with the Gwinnett Construction Codes and industry standards. And finally he claimed that his company has workmen's compensation and that IWS has a general liability policy.

            Reality at the time was a tad bit different because Mr. Tabor knew full well at the time that his employees where actually sub-constractors and he was going to merely give an address to them.  (Tabor depo pg 123)

            "2      A    Here again, they are subcontractors, I

            3          give them the address. I give them the

            4          requirements, what needs to be done, and for the

            5          most part they set their own scheduling."

  

He knew full well IWS had no general liability policy and he full well knew IWS possessed no workers compensation policy.

            He knew full well that he was going to let the "handymen" do whatever they wanted regardless of what the contract, construction codes or industry standards say as long as he can define it to himself as "substantial completion" ["most part"] and at that point he knew full well that if the "unreasonable" customer does not pay that IWS company policy was to threaten them with extensive litigation and if that doesn't work he knew full well that he would call in his big guns (his wife AKA attorney for plaintiff) to do all the heavy lifting at no cost to himself and IWS.

            The facts of reality are the exact opposite of his presentation and performance and that is called fraud. It is fraud in the inducement and it is fraud in the performance.

  

  

FOUR SPECIFIC ITEMS NOT ACCOMPLISHED BY PLAINTIFF

            Four specific items were not fulfilled by IWS at the time Mrs. Tabor filed Plaintiff's lawsuit and Mr. Tabor knew it and Mrs. Tabor could have known it. Those four items are windows with argon gas, seams taped on house wrap, smooth surface on slab and shutters.

            Argon gas means enormous cost savings to Defendant and a quite home. Seams taped on house wrap means water cannot get into the wall envelope of the house and rot the walls and a smooth surface means the slab would have been worked to higher quality than it is and Defendant has a right to his shutters, minor as they may be.

            And the quality of work? The words "Insulated Wall Systems" and “quality” is a contradiction in terms.

SUMMARY JUDGMENT IS NOT APPROPRIATE FOR COUNTS 4 AND 5 BECAUSE THERE ARE IN DISPUTE GENUINE ISSUES AS TO MANY MATERIAL FACTS

 

Wherefore, Defendant moves this court to Deny Plaintiffs Motion for Summary on Defendant's Counterclaims Counts 4 and 5 for Fraud and Misrepresentation.

IWS IS NOT ENTITLED TO SUMMARY JUDGMENT ON DEFENDANT'S CONSPIRACY COUNTERCLAIM AS THERE IS EVIDENCE OF CONCERTED ACTION TO ACCOMPLISH AN UNLAWFUL END GIVING RISE TO THE CLAIM

  

Definition of Civil Conspiracy

  

'A conspiracy is a combination to accomplish an unlawful end, or to accomplish a lawful end by unlawful means.' Luke v. Dupree, 158 Ga. 596 (124 SE 13)." Foster v. Sikes, 202 Ga. 122, 125 (42 SE2d 441).

  

"It is well settled that a plaintiff cannot maintain an action for a conspiracy in the absence of underlying actionable conduct. A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. . . . Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done."

(Citations and punctuation omitted.) First Fed. Sav. Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). See also Rose v. Zurowski, 236 Ga. App. 157-158 (1) (511 SE2d 265) (1999).

  

 "In order to recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct which constitutes a tort." Savannah College of Art &c. v. School of Visual Arts of Savannah, 219 Ga. App. 296, 297 (464 SE2d 895) (1995).

 

  

As these case law statements make clear civil conspiracy cannot stand on its own. It must have a tort committed against Defendant by two or more persons. In this case, Defendant has alleged "Fraud and Misrepresentation" specifically against John Tabor. In this civil conspiracy claim Defendant is alleging that the following individuals conspired against Defendant to defraud him of certain items in the contract, including argon gas in the windows, seams taped on the house wrap, smooth surface on the slab and shutters. In addition, Defendant alleges that each of the conspirators have conspired to prevent Defendant from receiving "work in a good and workmanlike manner" and "work in strict accordance with the ordinances, rules, and requirements of the City, Town or Village wherein the above mentioned property is located." In addition, each of the coconspirators have each engaged in acts to prevent Defendant from knowing his cause of action which unbeknown to Defendant was occurring right under his nose. It has been a combined effort by all of these individuals to defraud Defendant.

Jimmy Sailors. Mr. Sailors was the window installer. When the windows arrived at Defendant's residence, Defendant's spouse noticed that the words "argon gas" were not on label. When questioned by Defendant's spouse, Mr. Sailors told her everybody asks that question and that the windows have the argon gas and were ordered correctly. (Exhibit “R”, Robyn McKinney Aff. par. 2) (Ron McKinney depo, Pg 128) Mr. Sailors then got on the phone to Mr. Tabor and moved away from Defendant's spouse to discuss something in private. (Exhibit “R”, Robyn McKinney Aff. par. 3)

Mr. Sailors and his father then proceeded to cut out the old windows and install the new windows. Defendant's spouse did not question Mr. Sailors on this issue because he was the window installer and should have known what he was doing. (Exhibit “R”, Robyn McKinney Aff. par. 4)

            Keith Payne. Mr. Payne along with some fellow named "Mac" were the individuals employed by Plaintiff to install the deck and the slab. As previously mentioned under the "Fraud and Misrepresentation" claim it is Defendant's contention that the contract and Mr. Tabor both committed to build each of these items in accordance with the applicable codes. During the construction, Mr. Payne indicated several times that he was doing such and such because that is what the code called for. (Ron McKinney depo, pg 127, 128) For example, he said the pickets had to be a minimum of 4" because that is what the code says. He stated footers under the slab were not required by code even though they are. Clearly, Mr. Payne was perpetuating the fraud that all work was being done in accordance with the code. (Exhibit “R”, Robyn McKinney Aff. par. 5, 6)

            Mike Entinger. Mr. Entinger is the Branch Manager of Lansing Building Products in Buford, Georgia where IWS/John Tabor purchased the siding and windows for this job. People in working under Mr. Entinger's control were contacted by Defendant's spouse to ascertain the true nature of the windows as early as November, 2004. Each of the employees apparently on orders from the boss refused to give a knowledgeable response to Defendant's spouse concerning whether or not the windows had argon gas. Defendant's spouse then called a Virginia office of Lansing Building Products and they immediately looked up the order and stated to Defendant's spouse that the windows could not have argon gas because they were not ordered with argon gas. Defendant's spouse made subsequent phone calls to the Buford location in January of 2005 in an effort to talk to Mr. Entinger. The employees of Mr. Entinger stated he was out of the office, busy and other such excuses and he never returned any phone calls. After this stone walling Defendant's spouse moved up the corporate ladder and contacted Mr. Lynn Whyte, VP Administration for Lansing Building Products who advised her to contact Mr. Entinger. Defendant's spouse was able to contact Mr. Entinger at this point, however, he still refused to confirm that the windows did not have argon gas. Since Mr. Tabor had claimed that the windows not having argon gas was a result of some ordering change at Lansing Building Products, Defendant's spouse asked Mr. Entinger what that ordering change was and if it meant that Lansing Building Product would take responsibility for replacing Defendant's windows. Mr. Entinger replied that there was no ordering change and Lansing Building Products would not replace the windows. (Exhibit “R”, Robyn McKinney Aff. par. 7-15)

Clearly from this testimony of Mrs. McKinney and subsequent actions by Mr. Whyte, Mr. Entinger at first was maintaining the facade that Mr. Tabor wanted to project and this continued until the Vice President of Lansing Building Products intervened. Attached and marked as Exhibit “S” is a true and correct copy of Lynn Whyte’s Affidavit.

  

  

Jana Tabor and John Tabor.

            1. Jana Tabor and John Tabor are married. (John Tabor depo pg 9) While on its face this is not necessarily a bad thing, Judge Bleckley observed over 132 years ago,

 "[w]hen man and wife co-operate for good they can do much good; and so, when they combine against third persons and co-operate for evil, they can do much harm." Humphrey v. Copeland, 54 Ga. 543, 548 (1875). quoted from

JOHNSON v. SHERIDAN. 72452. (179 Ga. App. 331) (346 SE2d 109)(1986)

  

"Because civil conspiracy is by its very nature a secret endeavor, and thus rarely open to direct proof, concert of action, amounting to conspiracy, is best suited for jury resolution and may be proved by either direct or circumstantial evidence. In other words, it is unnecessary to prove an express compact among the alleged conspirators. A jury may infer a civil conspiracy from the nature of the alleged wrongdoers' acts, the relation between them, their mutual interests in the matter, and other circumstances. [Cit.]" McLane v. Atlanta Market Center Mgmt. Co., 225 Ga. App. 818, 826 (4) (b) (486 SE2d 30) (1997).

  

Defendant believes that there is more than enough evidence for a jury to infer a civil conspiracy between the Tabors based on the nature of Mr. Tabor's wrongful acts, the relation between the Tabors, their obvious mutual interests in the matter and other circumstances.

2. Mrs. Tabor was Attorney for Plaintiff in Gwinnett County Superior Court Case #01-A-00270-3 Insulated Wall Systems, Inc. v. Grover's et al in 2001. (Notice of Filing Discovery, June 14, 2006). The case was subsequently dismissed by both parties, however, Defendant believes this is the time frame the Tabor's scheme really begin to blossom and a full fledged effort between the two commenced. It is enlightening to point out that the complaint against the Grover's and the complaint against this Defendant are identical. The only difference being the dates, the names and the dollar amounts. Clearly the Tabor's have a ready made, cookie cutter, boilerplate complaint ready to serve on anyone that opposes them.

3. Mrs. Tabor can be pinpointed with knowledge of Defendant and contract with Defendant as early as October, 2004 before the work actually started by way of an email from Mr. Tabor confirming that Mrs. Tabor viewed Defendant's web site and selected certain pepper mills. (Exhibit "C")  

4. Mrs. Tabor made no effort to contact Defendant prior to filing lawsuit. While this is not necessary by law, it would have demonstrated a "good faith" attempt to resolve the situation without litigation, which is a usual practice of attorneys who do not have a personal interest.

5. Mrs. Tabor appears to have done zero due diligence in researching Plaintiff's case. While this too is not absolutely required there are certain ethical considerations for doing this that are listed in the Georgia Bar Associations Ethics sections. As a matter of fact, Mrs. Tabor could have at least learned from Defendant that the windows did not have argon gas amongst other things and this alone should have been enough to stop a breach of contract against the Defendant because 1) windows without argon gas is a huge material fact (see section on significance of argon gas elsewhere in this document) and 2) this contract is an entire contract as opposed to a severable contract and since 4 distinct items were not delivered this contract falls altogether. O.C.G.A. 13-1-8  At best Mrs. Tabor should have filed a "quantum meruit" case as opposed to a "breach of contract" case and just a little bit of due diligence would have revealed this to her.

6. Clearly Mrs. Tabor is in violation of one specific ethical consideration and that is Rule 1.8j, which concerns having a financial interest in this litigation, which she clearly does.

7. While the filing of Plaintiff's suit might be technically legal it is now clear that it is based on lies and these lies were certainly known by Mr. Tabor and certainly knowable by Mrs. Tabor at the time. Although maybe legal the Tabor lawsuit is categorically immoral and oppressive.

8. The Tabor's conduct throughout this litigation has been one of intimidation directed mostly as Defendant's spouse.  This has been documented in several affidavits from Robyn McKinney. In addition, Mrs. Tabor has wrongfully threatened Defendant’s wife with the "unlicensed practice of law" and Mr. Tabor threatened Defendant's spouse with arrest during Defendant's deposition. Defendant was accused of "witness tampering."

9. In June of 2006, Mrs. Tabor reported her "retirement" from Barrickman, Allred and Young law firm. In January 2006, Mr. Young, Mrs. Tabor's former employer and attorney for Plaintiff withdrew from this case. Whatever actually happened here no one may know, however, inferences can certainly be made that these events might have occurred because of what is transpiring in this case.

10. The use of expired notaries by Mrs. Tabor involving her brother-in-law certainly is cause for the raising of a few eyebrows as to why this was happening. And then there is the notary forgery.

11. Mrs. Tabor's failure to provide Defendant with proper verification of Mr. Tabor's answers to interrogatories when she knew full well interrogatories are suppose to be answered under oath at the time they are answered and not 19 months later.

12. That bizarre question by Mrs. Tabor asked at Defendant's deposition. "Have you heard the phrase, breach is good?" (Ron McKinney depo, Pg 101) What in the world is this suppose to mean?

13. Mrs. Tabor put forth to this court that all the so-called sub-contractors possessed workmen's compensation. Attached and marked as Exhibit "T" collectively are true and correct printouts showing at least two of the individuals who performed work on Defendant's residence did not possess workers compensation policies the day the contract was signed, August 23, 2004 nor did they possess it the last day work was performed, November 4, 2004.

14. At the first hearing between these parties this court stated to Mrs. Tabor that she should "run screaming from this case." Mrs. Tabor concurred with the wisdom of this court but has persisted.

15. At the second hearing between these parties this court made the statement upon Mrs. Tabor's failure to produce billing for her husband's company that she was representing herself.

16. Attached and marked as Exhibit "U" is a true and correct copy of a letter from John Tabor to Andy Beniger which states "I demand payment of $500.00 in full within 10 days or I will place a lien against your property and file suit to recover the balance due along with all the costs of collection including legal fees as provided for in our contract." No stretch of the imagination is needed to realize that it is Mrs. Tabor who stands ready to back up that threat.

The scheme is simple. Mr. Tabor is the front man who does all the lying up front in order to induce folks to sign on the dotted line. Based on what the Tabor's have argued up to this point it is not much of a stretch for anyone on the jury to realize that both of the Tabor's had a hand in creating the contract. "City, Town and Village " excluding the County is just one of their tricks. The Tabor's are both quite aware of the cost of litigation and they both are quite aware that most folks they do business with probably don't have an extra $20,000 to $25,000 to fully engage them in litigation with a professional attorney. The Tabors are also quite aware that 90% of all cases settle before trial. And only a nut would think that IWS is actually paying Mrs. Tabor attorney fees. And even if it was on paper, it is absolutely meaningless in reality because no money ever leaves the Tabor home.

The evidence in this case surrounding the work clearly shows that Mr. Tabor feels free to throw up whatever kind of work he wants, cutting every possible corner known to man and without one single care for the safety of his customers and without responding to even one complaint he demands payment and immediately threatens a lawsuit demanding attorney fees for his wife. IWS is nothing more than the sham alter ego for John and Jana Tabor. Each has their role and function to play. Mrs. Tabor despite her claims of being "Attorney for Plaintiff representing the Corporate Interest of IWS" is in reality Jana Tabor, representing her own self-interest and that of her husbands, nothing more and nothing less. In fact, the captions of this case should read John and Jana Tabor v. Ron and Robyn McKinney as this reflects reality.

Clearly there is plenty of evidence for any jury to find that fraud and misrepresentation exists and then infer from the events occurring and the conduct of the players that Mr. and Mrs. Tabor are acting in league with others to defraud this Defendant and for this reason Defendant moves this court to DENY Plaintiff's Motion for Summary Judgment on Count 6.

WHEREFORE, for the reasons set forth herein, and for the reasons that the evidence shows there are genuine issues in dispute for a jury to decide, Defendant moves this court, pursuant to O.C.G.A. 9-11-56, for an order DENYING Plaintiff’s Motion For Summary Judgment on any portion of Count 1 of Defendant’s counterclaim and any portion of Counts 2 through 6 of Defendant’s Counterclaims or any other relief.

This _4th_  day of June 2007

Respectfully submitted,

_____________________________

Ron McKinney, Defendant






































  
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