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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 STATEMENT OF DISPUTED FACTS  

COMES NOW DEFENDANT, Ron McKinney and in accordancewith Uniform Superior Court Rule 6.5, files this Statement of Disputed Facts in Opposition to Plaintiff's Motion for Partial Summary Judgment. There exists in the record admissible evidence supporting these material facts in dispute making a grant of Summary Judgment inappropriate in this case. (Exhibit “V”, RonMcKinney Aff. par. 1-11)

The number in parenthesis following each statement correlates with Plaintiff's "Statement of Undisputed Facts."

The following facts material to this case are in dispute and require a jury trial to find the facts:

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 1 - 2 - 3 - 4
AND DEFENDANT'S FACTS 1 - 8 ARE IN DISPUTE

1.   Plaintiff and Defendant entered into a written contract for home renovation work on or about August 23, 2004 based on a mutual understanding that all work will be performed by Plaintiff's well trained, experienced and professional employees, in accordance with all applicable construction codes and industry standards and under the direct supervision of John Tabor. (Pltf. Fact 1)

(Ron McKinney Dep. p. 1-147 with 4 errata sheets, Ron McKinney Dep. Exh. "1-19"  ; John Tabor Dep. p. 1-151, Tabor Dep. Exh. "1-32", Robyn McKinney Dep. p. 1- 49 with errata sheet, Robyn McKinney Dep. Exh. "1-23" ;

Pltf. Complaint 1-13; Def. Verified Answer (as Amended) par. 1-13 and Def. Verified Affirmative Defenses, par. 1-11 and Def. Verified Counterclaim, Counts 1-10, par. 10-167 ;

Def. Resp. to Pltf. 1st-2nd Interrogatory # 1-11, 1-4 and Supplements ; Pltf. Resp. to Def. 1st-2nd Interrogatory # 1-28 and Supplements ; Pltf. Resp. to Def. 1st-2nd-3rd Req. Adm. # 1-20, 1-300, 1-20 and Supplements ;

Affidavits filed by Defendant, to include: Ron Mckinney Aff. docket date 07-05-05 ; Aff. docket date 07-20-05 ; 11 Exhibit Aff. "A-K" with Def. Counterclaim, docket date 07-20-05 ; Aff. docket date 11-14-05 ; Aff. docket date 06-09-06, par. 1-9 ; Aff. docket date 08-22-06, par. 1-29, and Exh. “A-I” ; Aff. docket date 09-06-06, par. 1-3, Exh. “A-I” ; Aff. docket date 09-18-06, par. 1-13, Exh. “A-B” ; Aff. docket date 09-26-06, par. 1-10,  Exh. “A-G” ; Aff. docket date 02-16-07, par. 1-22, Exh. “A-N” ; Aff. docket date 06-04-07, par. 1-11 ;

Robyn McKinney Affidavits filed by Defendant, to include: Robyn McKinney Aff. docket date 01-06-06, par. 1-9 and Exhs. ; Aff. docket date 06-14-06, par. 1-8, Exh. “A-G” ; Aff. docket date 08-22-06, par. 1-32, Exh. “A-C” ; Aff. docket date 09-18-06, par. 1-15 , Exh. “A-D” (Photographs) ; Aff. docket date 05-04-07, par. 1-18 ; Aff. (as amended) docket date 05-14-07, par. 1-19, Exh. “A-C” ; Aff. docket date 06-04-07, par. 1-15 ;

Lynn Whyte Aff. docket date 04/13/06, par. 1-7 ; Farrell C. Shiver Aff. docket date 09-26-06, par. 1-7, Exh. “A-B” ; House Smart Inspection Report, docket date 08/03/06 pages 1-8, dated 07/25/06 ; Gooch Inspection Report, docket date 01/06/06, pages 1-3, dated Sept. 28, 2005 ; Sequoyah Vinyl Creations Quote, docket date 08/03/06, pages 1-8, dated 07/25/06  ; Champia Inspection Report, docket date 08/31/06, pages 1-9, dated 06/05/06 ; Atrium Letter, Chris Reilly, Dir. Marketing, docket date 04/13/06, pages 1-2, with 13 page attachment, dated 09/15/05. )

(Plaintiff denied Defendant's Eleven (11) Affirmative Defenses ; Pltf’s Resp. to 2nd Req. for Adm. No. 2, 3, 4, 5, 6, 7, 8, 11, 12)

(Plaintiff denied Defendant's 2nd request for admissions # 2-8, 11-13, 16-18, 21, 23-24, 26-27, 29, 37-39, 41, 43, 45-46, 48, 52-53, 57, 62-68, 70-77, 79, 80, 82-86, 88-94, 96-98, 100, 101, 103-107, 109, 112-113, 117-120, 122-123, 127-130, 133-136, 139, 141-143, 145, 147, 150-151, 155, 157-163, 167, 169, 170, 172, 175-178, 180-182, 184, 186-197, 200, 203-204, 209-211, 213-214, 219, 221, 224, 226-229, 233-234, 236-237, 239-241, 244-255, 258-259, 262-266, 269-270, 273-275, 277-280, 282-293, 296-297, 300 (Pltf’s Resp. to 2nd Req. for Adm. No. 1-300)

(Mckinney Dep. p. 14, 27, 34, 35, 54, 102, 121, 134 ; Tabor Dep. p. 75, 76, 82, 86, 100, 101, 146 ; Tabor Dep. Exh. "14" ; Pltf. Complaint, par. 3, 4, 5, 6, 7, 9,10, 11, 13 ; Def. Verified Answer, par. 3, 4, 7, 9 as amended)

2.   Mr. Tabor, even when asked never once mentioned "No Verbal Agreements Recognized" was a so-called "merger clause." He merely stated that after the signing any changes in the work needed to be in writing. (Pltf. Fact 1)

(Ron McKinney Aff. docket date 06-04-07, par. 2, Def. Resp. Brief ; Mckinney Dep. p.  35, 53, 54 ; Tabor Dep. p. 22, 56, 70-71, 86, 101, 145-146 [ More Examples of it waived] ; Tabor Dep. Exh. "14" )

3.   Immediately concurrent with signing Defendant and Mr. Tabor made a verbal deal for two (2) 10" wooden pepper mills for Mr. Tabor and his wife. Defendant offered this as a TIP (not a gift) [ to insure prompt, professional service] after Mr. Tabor made a request for it, and Mr. Tabor immediately accepted the offer with the mutually agreed understanding that John Tabor, personally would supervise and direct the project. (Pltf. Fact 1)

(Def. Resp. Brief, Exh. "B" ; Mckinney Dep. p. 54, 132 ; Tabor Dep. p. 22 ; Tabor Dep. Exh. "14")

4.   3F Foundation is a personal, private and confidential agreement between 3 close knit family members. They are Lois McKinney, Robyn McKinney and Ron McKinney and Defendant is General Manager of 3F Foundation and the property located at 4083 Red Laurel Way, Snellville, Georgia. Ron McKinney has possessed said property for 20 years. (Pltf. Fact 2)

(Ron Mckinney Aff. docket date 06-04-07, par. 3, 4, 5, Def. Resp. Brief; Robyn Mckinney Aff. docket date 05-12-07, par. 18 ; Robyn Mckinney Dep. p. 7, and Errata Sheet, page 7 line 6, [Like I said "Yes", was omitted from the testimony,  it clearly is heard on Defendant's digital recording made of deposition.] ; Mckinney Dep. p. 6, 10, 11 )

5.   After purchasing the property identified in Pltf. Statement 2 in 1983, Robyn McKinney has possessed said property continuously for 24 years. (Pltf. Fact 3)

(Robyn Mckinney Aff. docket date 05-12-07, par. 18 ; Robyn Mckinney Dep. p. 7, and Errata Sheet, page 7 line 6 )

6.   Lois McKinney resides on the property while holding the mortgage on said property and Ron McKinney; her son has her Durable Power of Attorney to act on her behalf. (Pltf. Fact 4)

(Ron McKinney Aff. docket date 06-04-07, par. 3, 4, 5, Def. Resp. Brief, Exh. "D, E" ; Mckinney Dep. p. 6, 8, 15, 25 )

7.   3F Foundation has relinquished the deed on the property by turning it over to Lois McKinney in partial satisfaction of her existing mortgage. (Pltf. Fact 4)

(Ron McKinney Aff. docket date 06-04-07, par. 4, Def. Resp. Brief, Exh. "D, E")

8.   Lois McKinney, at 95, presently exists in a near vegetative state. (Pltf. Fact 4)

(Ron McKinney Aff. docket date 06-04-07, par. 5, Def. Resp. Brief, Exh. "D, E" ; Mckinney Dep. p.  8, 15 )
  
DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 5 - 6 - 7  
AND DEFENDANT'S FACTS 9 - 10 - 11 ARE IN DISPUTE

9.   Series 40 Windows can be equipped with low-e glazing and argon gas but only when they are specifically and individually ordered by Plaintiff, which they were not. (Pltf. Facts 5, 6, 7)

(Robyn Mckinney Aff. docket date 06-04-07, par. 7-15 , Def. Resp. Brief ;
Lynn Whyte Aff. docket date 04/13/06, par. 1-7 ; Def. Resp. Brief, Exh. "L",
Lynn Whyte email ; Mckinney Dep. p. 107, and Errata Sheet 4 of 4, p.107 line15 ; Tabor Dep. p. 30-31, 33-34, 120-122 ; Tabor Dep. Exh. "12, 23, 28a, 30a" ; Pltf. Resp. Req. Adm. # 124,139-142)

10.       Mr. Tabor sold defendant on the series 60 windows where argon gas is standard, then switched to the series 40 windows where argon gas is an option so that he could order the windows without argon gas, which he proceeded to do. (Pltf. Fact 7)

(Robyn McKinney Aff. docket date 06-04-07, par. 7-15, Def. Resp. Brief ; Def. CC par. 72-93 ; Def. CC Affidavit and Exh. "I", window label ; Robyn McKinney Dep. p. 18-29 ; Robyn McKinney Dep. Exh. "18 " ; Mckinney Dep. p. 18, 19, 29-30, 57-58 ; Mckinney  Dep. Exh. "2" ; Tabor Dep. p. 120 -122 ; Tabor Dep. Exh. "12, 23, 28a, 30a" ; Pltf. Resp. Req. Adm. # 124, 131-138)

11.       IWS installed Series 40 Windows without argon gas in breach of the contract. (Pltf. Fact 7)  

(Robyn McKinney Aff. docket date 06-04-07, par. 2, 3, 4, Def. Resp. Brief ; Def. CC par. 42 ; Def. CC Affidavit and Exh. " I ", window label ; Robyn McKinney Dep. p.  28-29 ; Mckinney Dep. p. 106 ; Mckinney  Dep. Exh. "2" ; Tabor Dep. p. 121 ; Tabor Dep. Exh. "12, 23, 28a, 30a" ; Pltf. Resp. Req. Adm. # 124,164, 165, 166)

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 8 - 9  
AND DEFENDANT'S FACTS 12 - 13 ARE IN DISPUTE

12.       The threats of litigation made by Mr. Tabor on December 15, 2004 verbally and then again on January 4, 2005 in writing were made without any attempt by Mr. Tabor to complete the work or bring any of the work up to the standards that he had agreed upon. Mr. Tabor ordered his workers to walk off the job on November 4, 2004 leaving the work incomplete, shoddy, defective and unsafe. (Pltf. Fact 8)

(Robyn Mckinney Dep. p.  36-49, ; Mckinney Dep. p.  45-47, 101,  ; Mckinney  Dep. Exh. "3, 4, 5 " ; Tabor Dep. p.   72, 73, 68, 100-116,139-140  ; Tabor Dep. Exh. "14, 15,16, " ; Def. CC par. 111, 112, 116 ; Pltf. Resp. to Req. for Admission # 95, 96, 121 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22)

13.       IWS filed a mechanics/materialsman's lien against the property where Defendant resides on January 3, 2005 but failed to send a copy of that lien to the legal owner as required. In addition, Mr. Tabor knew or should have known that all the work was not completed and the work that was done was shoddy and not in accordance with the Gwinnett County Construction codes nor industry standards. (Pltf. Fact 9)

(Robyn McKinney Dep. p. 36-49 ; Mckinney Dep. p.  45-47, 101, 129 ;  
Tabor Dep. p.  72, 73, 68, 100-116, 139-140 ; Tabor Dep. Exh. " 4, 15, 16, 17, 18" ; Def. CC par.114, 115 ; Pltf. Resp. to Req. for Admission # 124, 206, 207 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22)

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 10 - 11 - 12  
AND DEFENDANT'S FACTS 14 - 23 ARE IN DISPUTE

14.   In the summer of 2004, Defendant responded to a postcard mailed out by IWS in the personal handwriting of Mr. Tabor soliciting residential siding work and stating that "this year has been slow and I need work for my people" and offering "quality work", "best discounts on named brand products" and "satisfaction guaranteed." In addition John Tabor stated that IWS offered "100% Financing", and was "Licensed and Insured".  (Pltf. Fact 10)  

(Ron McKinney Aff. docket date 02-16-07, par. 12-13 ; Mckinney Dep. p. 12 ; Tabor Dep. p. 15-16, 36-40 ; Tabor Dep. Exh. "2" ; CC par. 23 ; 3rd Req. for Adm.# 8, 9,10,11,12)

15.   At the initial meetings, Mr. Tabor lied about his company size and employees. (Pltf. Fact 11)  

(Ron McKinney Aff. docket date 06-04-07, par. 9, Def. Resp. Brief ; Ron McKinney Aff. docket date 06-7-06, par.  2-8 ; Mckinney Dep. p. 102, 117 ; Tabor Dep. p. 12, 44, 75, 141, 147  ; Tabor Dep. Exh. "2, 4" ; Def. Resp. Brief Exh. "M", Ref. USA ; CC par. 91 ; 3rd Req. For Adm. #1)

16.   At the initial meetings, Mr. Tabor lied about whether or not IWS possessed liability insurance and workmen's compensation insurance. (Pltf. Fact 11)

(Ron McKinney Aff. docket date 02-16-07, par. 12, 13, 22 ; Mckinney Dep. p. 117 ; Tabor Dep. p.  44-46, 61, 58-62 ; Tabor Dep. Exh. "2, 4"; Pltf. Resp. 2nd Req. for Adm. #20, 22, 3rd Req. Adm. #13  ; Pltf. Resp. Interrogatory 9, 16 ; Pltf. Resp. Req. For Documents 9 ; Def. Resp. Brief Exh. "M, T", Ref. USA, Workers Comp.)

17.   At the initial meetings, Mr. Tabor lied about the company policy on building to code and industry standards. (Pltf. Fact 11)

(Ron Mckinney Aff. docket date 09-16-06, par. 10 ; Ron Mckinney Aff. docket date 06-07-06, par. 5-8 ;  Mckinney Dep. p. 28, 102, 117, 121 ; Tabor Dep. p. 53-58, 87, 124,125,126 ; Tabor Dep. Exh. "2, 4, 5, 6, 7, 8, 9, 10, 11, 19, 20" ; Pltf. Resp. 3rd Req. for Adm. #13 ; Pltf. Resp. Inter. 13 )

18.   At the final signing meeting Mr. Tabor lied about IWS company policy concerning the inclusion of a particular sentence guaranteeing the requirement of a "completion certificate" signed by Defendant before payment was required. (Pltf. Fact 11)

(John Tabor Aff., docket date 8/1/05, par. 1-4, Exh. "N" Def. Brief ; Ron McKinney Aff. docket date 06-07-06, par. 5-8 ; Mckinney Dep. p. 28, 102-106 ; Tabor Dep. p. 62-69 ; Tabor Dep. Exh. "2, 4, 17, 18" ; Pltf. Resp. Req. for Adm. #171, 174, 185)

19.   During all the meetings, Mr. Tabor lied about the experience level of his workers. He called them professionals with years of experience and now for the most part they are handymen, odd jobbers and sub-contractors. (Pltf. Fact 11)

(Ron Mckinney Aff. docket date 06-07-06, par. 2-8 ; Mckinney Dep. p. 28, 102 ; Tabor Dep. p. 82, 123, 142, 147-148 ; Tabor Dep. Exh. "2, 4" ; Pltf. Complaint, par. 10)

20.   During all the meetings Mr. Tabor repeatedly stated that he would personally supervise, control and direct his employees and that he would be on-site to accomplished this regularly. This did not happen. (Pltf. Fact 11)

(Ron Mckinney Aff. docket date 06-04-07, par. 2-8, 9, ; Robyn Mckinney Aff. docket date 08-22-06, par. 5 ; Tabor Dep. p. 75-76, 96, 100, 123, 141, 142,148 ; Tabor Dep. Exh. "2, 4, 16")

21.   During the final meeting, Mr. Tabor pledged to obtain a dumpster to handle all the debris, yet this never occurred and Defendant, his spouse and Defendant's 93 year old mother as well as Defendant's 15 year old beagle were continuously living in construction hell for the entire time of the construction period. And much of this debris, particularly from the deck was left leaving behind a safety hazard. (Pltf. Fact 11)

(Ron McKinney Aff. docket date 06-04-07, par. 6, Def. Resp. Brief ;
Tabor Dep. p. 145 ; Tabor Dep. Exh. "27, 4, 18")

22.   During the final meeting, Mr. Tabor lied about the procedure to close the deal. He indicated that there would be an inspection, a "punch list" created and worked and when all the work was completed in accordance with the contract and the completion certificate signed monies would be due as per the contract. What Defendant got at the end was incomplete, shoddy, defective, and unsafe work that did not pass inspection and threats of extensive litigation and this lawsuit initiated by Mr. Tabor's wife, Jana Tabor. (Pltf. Fact 11)

(John Tabor Aff., docket date 8/1/05, par. 1-4, Exh. "N" Def. Brief ;
Ron McKinney Aff. docket date 06-07-06, par. 2-8 ; Mckinney Dep. p. 44, 45, [and errata sheet] 102, 103 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 66-69 ; Tabor Dep. Exh. "4, 16, 14" ; Pltf. Complaint, par. 1-13)

23.    During the first meeting there were also discussions about replacing the house's windows with Series 60 Windjammer replacement vinyl windows with argon gas and the removal and replacement of the deck with a larger deck with stairs and whether a permit was required and the professional manner in which each of these items were to be done. (Pltf. Fact 12)

(Mckinney Dep. p. 17, 18, 19, 20, 28 ; Tabor Dep. p. 52-53, 56, 58 ;
Tabor Dep. Exh. "16, 4" ; Pltf. Complaint, par. 10)

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 13 - 14 - 15  
AND DEFENDANT'S FACTS 24 - 28 ARE IN DISPUTE

24.    This meeting led to a second where there were additional discussions regarding the installation of a concrete slab adjacent to the rear of the house. These discussions included the purpose of the slab, whether a permit was needed, and the professionals IWS had on staff to accomplish this task. (Pltf. Fact 13)  

(Ron McKinney Aff. docket date 09-16-06, par. 10 ; Mckinney Dep. p.  29, 39, 102, 114-116, 138 ; Tabor Dep. p.  67-68-71, 78-81-86 ; Tabor Dep. Exh. "5a, 8,16, 19, 20" ; Pltf. Complaint, par. 10)

25.     Defendant told Mr. Tabor that the purpose of the slab was to support a sunroom/ screened porch, half-walled, half-screened, roofed structure 14' X 19' in size equipped with 2 doors and a 6'X6', 300 gallon (11/2 ton) Jacuzzi on the slab. (Pltf. Fact 14)

(Ron McKinney Aff. docket date 09-16-06, par. 10 ; Mckinney Dep. p.  29, 39, 102, 114-116, 138 ; Tabor Dep. p.  67-68-71, 78-81-86 ; Tabor Dep. Exh. "8, 16, 19, 20" ; Pltf. Complaint, par. 10)

26.    No "footers" were removed. Footers are not something that can be removed. Footers are dug and filled (either with compacted stone, block or concrete) because they are holes or trenches in the ground put there for the purpose of supporting the concrete slab. The truth is no footers were dug. (Pltf. Fact 13, 14, 15)

(Robyn Mckinney Aff. docket date 06-04-07, par. 5, 6, Def. Resp. Brief ; Mckinney Dep. p. 39, 114, 115  ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 70-86  ; Tabor Dep. Exh. "8, 16, 19, 20, 27" ; Pltf. Complaint, par. 10 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 49-51)

27.    The contract slab was improperly installed. Plaintiff's employee used broken concrete from the sidewalk as fill which will cause unnecessary stress points that will fracture when the mentioned structure is built. In addition, 15/32" plywood forms were constructed that were not designed to hold back the 18 tons of concrete thus accounting for the bows and irregular shape. And finally no footers, no vapor barrier, and no rebar were used in the slab construction as required by code. The pitch of slab is such that water collects against the house. The slab does not contain a smooth surface. (Pltf. Fact 15)  

(Robyn McKinney Aff. docket date 06-04-07, par. 5, 6, Def. Resp. Brief ;
Mckinney  Dep. p. "114-115" ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 70-86 ; Tabor Dep. Exh. "4, 5a, 6a, 8, 16, 19, 20, 27" ; Pltf. Complaint, par. 10 ; Def. CC par.53 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 84, 90)  

28.    Mr. Tabor told Defendant that IWS had an expert concrete man, who had poured many slabs for this specific purpose and would do a professional job and Mr. Tabor told Defendant that his deck-building employee had built so many decks he didn't even need a plan. (Pltf. Fact 15)

(Ron McKinney Aff. docket date 09-16-06, par. 10 ; Mckinney Dep. p. 27 ;
Tabor Dep. p. 70-86, 147  ; Tabor Dep. Exh. "16"; Pltf. Complaint, par. 10)

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 16 - 17 - 18
AND DEFENDANT'S FACTS 29 - 32 ARE IN DISPUTE

29.    Defendant stated to Mr. Tabor that the important thing was that all the work be done in a professional manner and done right and for Mr. Tabor to give Defendant his best bid. Defendant never revealed his financial condition nor did he reveal that money was an important consideration. (Pltf. Fact 16)

(Ron Mckinney Aff. docket date 06-04-07, par. 7, Def. Resp. Brief ; Ron Mckinney Aff. docket date 09-16-06, par. 10 ; Mckinney Dep. p. 27-28, 29, 137 ; Tabor Dep. p. 71,149 ; Tabor Dep. Exh. "24, 25, 26, 29")

30.   John Tabor never offered to help Defendant in any shape, form or fashion. The truth is it was Mr. Tabor asking for help when he personally wrote, "this year has been slow and I need work for my people." (Pltf. Fact 16)

(Mckinney Dep. p. 12, 28, 29, 30, 40, 41 ; Tabor Dep. p. 37-39 ; Tabor Dep. Exh. "2")

31.   Mr. Tabor told Defendant he had employees on staff that could build a professional slab and deck in accordance with all applicable codes. (Pltf. Fact 17)

(Ron McKinney Aff. docket date 09-16-06, par. 10 ; Mckinney Dep. p. 28, 54, 121 ; Tabor Dep. p. 70-82-84-86, 113, 145-149 ; Tabor Dep. Exh. "7, 8, 16" ; Pltf. Complaint, par. 10 ; Def. CC par.53 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 83, 90)  

32.   The deck adjacent to the front door was also haphazardly constructed and not connected to the house or stabilized in any manner allowing it to move around thus rendering it unsafe and unusable for the purpose intended which Defendant made clear to Mr. Tabor that it was specifically for Lois McKinney, the then 93 year old mother of Defendant. (Pltf. Fact 18)

(Mckinney Dep. p.  25, 54, 55 ; Tabor Dep. p. 149 ; Tabor Dep. Exh. "26, 27" ; Pltf. Complaint, par. 10 ; Def. Resp. 1st and 2nd Interrogatory # 2, 6, 5, 9 )

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACTS 19 - 20  
AND DEFENDANT'S FACTS 33 - 35 ARE IN DISPUTE

33.   The contract price of $16,000.00 was to be remitted in cash by Defendant upon Defendant's determination that all work had been completed and that all work had been done in accordance with all applicable codes and to industry standards. (Pltf. Fact 19)

(Mckinney Dep. p. 102-103  ; Tabor Dep. p. 68 ; Tabor Dep. Exh. "4, 13, 14, 16, 19, 20, 24, 25, 26, 27" ; Pltf. Complaint, par. 10 ; Def. CC par. 28 ;  Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, ; Pltf. Resp. Adm. # 215, 223, 262)

34.   All work was to be done by IWS employees. No mention of sub-contractors was ever made nor does that word appear in the contract. (Pltf. Fact 20)

(Ron Mckinney Aff. docket date 06-04-07, par. 9, Def. Resp. Brief ;
Ron Mckinney Aff. docket date 02-16-07, par. 12 ; Tabor Dep. p. 73, 75, 77, 96, 97, 101 ; Tabor Dep. Exh. "4, 13, 14" ; Pltf. Complaint, par. 10 ; Def. CC par. 67 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22 )

35.   A verbal deal was struck between Defendant and Keith Payne ex delicto for ownership of the above ground pool. Keith Payne agreed to remove it on his own time and Defendant agreed he could have it. (Pltf. Fact 20)

(Ron McKinney Aff. docket date 06-04-07, par. 8, Def. Resp. Brief ; Tabor Dep. p. 145 ; Tabor Dep. Exh. "4, 14")

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACT  21  
AND DEFENDANT'S FACTS 36 - 37 ARE IN DISPUTE

36.   16' Woodland siding was haphazardly installed without regard to industry standards which calls for starter strips, all rotting wood to be removed and replaced with good wood, no face nailing and other misapplications that voided the manufacturers warranty.  As a matter of fact, the siding was so poorly installed it could be removed by hand. In addition, the windows were not sealed properly to prevent water infiltration. (Pltf. Fact 21)

(Mckinney Dep. p.  50, 61, 77, 141-143  ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 19, 123-149 ; Tabor Dep. Exh. "9, 27" ; Def. CC par. 61 ; Def. Resp1st and 2nd Interrogatory # 2, 6, 5, 9)

37.   Removal of the old rotting wood siding as per the vinyl siding manufacturers instructions would have and did during the reconstruction reveal a major fire hazard. Debris from bird's nest had accumulated next to metal fireplace and probably would have caught on fire the next time Defendant utilized his fireplace. (Pltf. Fact 21)

(Robyn Mckinney Dep. p. 15, 33-34 ; Mckinney Dep. p. 74-77 ; Tabor Dep. p. 19, 123-149  ; Tabor Dep. Exh. "9, 24, 27" ; Def. CC par. 60 ; Def. Resp. 1st and 2nd Interrogatory # 2, 6, 5, 9 )

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACT  22 - 23 - 24  
AND DEFENDANT'S FACTS 38 - 48 ARE IN DISPUTE  

38.   The Greenguard house wrap was not properly installed according to manufacturers specification, nor in accordance with the contract, which calls for the seams to be taped. No seams at all were taped and this allowed water to infiltrate the wall envelope, which upon removal of Mr. Tabor’s siding Defendant, actually felt moisture inside the wall insulation. (Pltf. Fact 22)

(Mckinney Dep. p.  37 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 19, 20, 139-140 ; Tabor Dep. Exh. "4, 10, 11, 27", Pltf. Resp. Req. for Adm. 56, 58, 59, 60)

39.   The existing windows in the house were removed by Plaintiff using a circular saw to cut around the windows, exposing 3" to 6" of the wall envelope to the elements allowing water infiltration into the previously sealed wall envelope. If the windows had been collapsed the seal of the wall envelope would not have been disturbed. No effort was made by Plaintiff to re-established this seal. (Pltf. Fact 23)

(Robyn Mckinney Aff. docket date 06-04-07, par. 2, 3, 4, Def. Resp. Brief ;
Mckinney Dep. p. 33, 37, 61, 79 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 125-132  ; Tabor Dep. Exh. "9, 27")

40.   The new windows were installed even though IWS knew or should have known the windows did not contain argon gas. (Pltf. Fact 23)

(Robyn Mckinney Aff. docket date 06-04-07, par. 2, 3, 4, Def. Resp. Brief ; Robyn Mckinney Aff. docket date 08-22-06, par. 24-27 ; Robyn Mckinney Dep. p. 28-30, 47 ; Mckinney Dep. p. 33, 37, 39, 50, 57, 58, ; Tabor Dep. p. 114-116 ; Tabor Dep. Exh. " 12, 23, 28a, 30a" ;  Def. CC par. 58, 59  ; Pltf. Resp. Adm. # 124)

41.   The new windows were installed without proper flashing or sealing to prevent water infiltration into the wall envelope of house. (Pltf. Fact 23)

(Mckinney Dep. p. 33, 37, 61, 78, 79 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 125-132  ; Tabor Dep. Exh. "9, 19, 27" ; OCGA 8-2-20 et. Seq. ; Pltf. Complaint, par. 10 ; Def. CC par. 58, 59 ; Def. Resp. Interrogatory # 2, 6 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 124)

42.   Three windows required new framing and new headers in accordance with the code to properly transfer the loads of the roof and walls around the windows. This was not done. (Pltf. Fact 23)  

(Mckinney Dep. p. 78-79 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 18, 57, 88-91 ; Tabor Dep. Exh. "19, 20, 27" ; OCGA 8-2-20 et. Seq ; Pltf. Complaint, par. 10 ; Def. CC par. 58 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22 ; Pltf. Resp. Adm. # 87, 91, 95, 96, 124)

43.   By code (and for safety reasons) the replacement windows adjacent to the exit door of the bay require "tempered glass" to resist breakage when the door is opened and closed. This was not done by Plaintiff. (Pltf. Fact 23)

(Mckinney Dep. p. 137-138 ; Tabor Dep. Exh. "20, 27" ; OCGA 8-2-90, et. seq. ; Pltf. Complaint, par. 10 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Req. Adm. #14, 124)

44.   Plaintiff's deck builder concealed the fact that 11 feet of the original wood plate under the bay had rotted by nailing up a new band board directly onto this rotting wood. Defendant did not become aware of this until after reconstruction of the deck. (Pltf. Fact 23)  

(Robyn McKinney Dep. p. 42-43 ; Mckinney Dep. p.  46-48 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 99-101, 110 ; Tabor Dep. Exh. "7, 13, 14, 27" ; OCGA 8-2-20, et. seq. ; Pltf. Complaint, par. 10 ; Def. CC par. 47,48, 49 ; Def. Resp. 2nd Interrogatory #2 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. 3rd Adm. #19)

45.   The original deck was removed from the house but not disposed of as called for in the contract. Plaintiff constructed a "new" deck that was intrinsically unsafe in several areas and unusable for the purpose intended. In particular, eleven foot of the deck attached to house was not bolted to the house but merely nailed into rotting wood. This was revealed during the reconstruction. All the rails were loose and could not have held the 250 pounds required by code, and the steps were inadequately braced and the risers varied in height from 6 1/2" to 9 1/2", which represents and was a tripping hazard. The 4X4 posts were over 8' tall and lacked cross bracing causing the entire deck and steps to sway. As a matter of fact, the deck collapsed upon removal of just three deck boards during the residing. (Pltf. Fact 23)

(Robyn McKinney Aff. docket date 06-04-07, par. 6, Def. Resp. Brief ; Robyn McKinney Dep. p. 40-49 ;  Mckinney Dep. p.  46-48, 112-113, 135-136 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 99-110  ; Tabor Dep. Exh. "6a, 7, 13, 14, 19, 20, 21, 24, 26, 27, 29" ; OCGA 8-2-20, et. seq. ;Pltf. Complaint, par. 10 ; Def. CC par. 49 ; Def. Resp. Interrogatory # 2, 6, 5, 9 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 49-51)

46.   Extensive damage was caused by Plaintiff to the sheetrock by installation of the two windows in the living room next to the fireplace. Although the contract states no work to inside walls the damage was a great deal more than Mr. Tabor had explained and it was unnecessary. (Pltf. Fact 23)

(Robyn McKinney Dep. p. 40-49 ; Mckinney Dep. p. 34 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 25 ; Tabor Dep. Exh. "20, 27" ; Pltf. Complaint, par. 10 ; Def. CC par. 63 ; Def. Resp. Interrogatory # 5, 9 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 108, 110, 111)

47.   There are four specific items outlined in the contract that were not received by Defendant. The windows with argon gas, the seams of the house wrap taped, a smooth surface on the slab and the shutters. (Pltf. Fact 24)

(Ron McKinney Aff. docket date 06-04-07, par. 10, Def. Resp. Brief ; Mckinney Dep. p.  39, 45, p. 45 line 17 and p. 45, line 25, Errata Sheet, (45 days was said both times as heard on Defendant's digital recording of the deposition ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 73, 116, 139-140  Pltf. Complaint, par. 10 ; Def. CC par. 33, 34, 35, 36, 37; Def. Resp. Interrogatory # 2 , and 2nd # 2 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 66)

48.   No seams were taped anywhere on the house wrap. Defendant knows this because he personally watched every piece of IWS siding come off the house and personally looked at every seam. (Pltf. Fact 24)

(Ron McKinney Aff. docket date 06-04-07, par. 10, Def. Resp. Brief ; Robyn McKinney Dep. p. 42-49 ;  Mckinney Dep. p.  37, 39, 141, 142 ; Tabor Dep. p. 139-140 ; Tabor Dep. Exh. "10, 19, 20, 24, 27" ; Pltf. Complaint, par. 10 ; Def. CC par. 36 ; Def. Resp. 1st and 2nd Interrogatory # 2, 6, 5, 9 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 56, 58, 59, 60,181)

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACT  25 - 26  
AND DEFENDANT'S FACTS 49 - 51 ARE IN DISPUTE    

49.    The drain (for the Jacuzzi) was arranged between Plaintiff's employee and Defendant. Defendant asked Plaintiff's employee if he could do it and Plaintiff’s employee stated he could do it, no problem, if Defendant supplied the materials, which Defendant did. The drain is not the cause of there being no smooth surface, Plaintiff's employee had no tools with which to make a smooth surface on the slab. (Pltf. Fact 25)

(Ron Mckinney Aff. docket date 06-04-07, par. 11, Def. Resp. Brief ; Mckinney Dep. p. 48, 49 ; Tabor Dep. p. 72-74 ; Tabor Dep. Exh. "14" ; Pltf. Resp. 3rd Req. for Adm. #19, 20)

50.   Defendant never directed, controlled, decided or interfered with Plaintiff or its workers during the construction. (Pltf. Fact 25) (Pltf. Fact 15)

(Ron McKinney Aff. docket date 06-04-07, par. 11, Def. Resp. Brief ; Mckinney Dep. p.  48, 49, 119 ;  Tabor Dep. p. 68, 76, 77, 96-97, 115-116, 148 ; Tabor Dep. Exh. "14")

51.    Mr. Tabor categorically did not offer to build a brick column to support the deck. This was a smart aleck remark made by Mr. Tabor in response to Defendant expressing his concerns that eleven feet of the deck was completely unsupported and improperly connected to the house. Mr. Tabor stated, "Why don't you just hire someone to build a brick column to support it." It is absurd to think Mr. Tabor actually offered a brick column for the simple reason that he refused an offer of $320 which was the initial cost to repair the deck at that location based on what was known at the time. A "brick column" would have easily cost over $1000. (Pltf. Fact 26)

(Robyn McKinney Dep. p. 9-17, 39-44 ; Robyn Mckinney  Dep. Exh. "7-13" ; Mckinney Dep. p.  46-48, 56-57 ; Mckinney  Dep. Exh. "3, 4, 5, 19" ; Tabor Dep. p. 22, 70-86 ; Tabor Dep. Exh. "14")

DEFENDANT'S OFFER OF PROOF PLAINTIFF'S FACT  27  
AND DEFENDANT'S FACTS 52 - 58 ARE IN DISPUTE

52.   The Defendant never paid for the work performed by IWS because Plaintiff failed to perform the contract and Defendant had no obligation to pay IWS for incomplete and shoddy work. (Pltf. Fact 27)

(Reference is made here to the whole body of evidence, the verified pleadings, the discovery, the affidavits, the depositions and all other sworn testimony contained on the courts docket as listed and shown in support of Defendant's Disputed Facts 1-58. Evidence of dispute regarding this Fact has been identified in particular under Defendant's Statement of Disputed Facts 1-51. By reference here that evidence is incorporated here in support of Defendant’s Disputed Facts 52-58)  

(Pltf. Complaint, par. 3, 4, 5, 6, 7, 9,10, 11, 13 ; Def. Verified Answer, par. 3, 4, 7, 9 as amended ; Def. CC par.67,158 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 161, 295)  

53.   Plaintiff's workers covered over Defendant's septic tank with a layer of concrete 3-4 inches thick, four to five feet wide and 20 feet long preventing any access to the septic tank. (Pltf. Fact 27)  

(Mckinney Dep. p. 113 ; Mckinney Dep. Exh. "19" ; Tabor Dep. p. 103, 104, 105 ; Tabor Dep. Exh. "27")

54.   Plaintiff's workers broke Defendant's Air Conditioner concrete pad by climbing and standing on the Air Conditioner. This was haphazardly replaced with un-level, and uneven concrete left over from pouring the slab. (Pltf. Fact 27)

(Mckinney Dep. p. 131 ; Tabor Dep. p. 30 ; Tabor Dep. Exh. "27")

55.   A large chunk of Defendant's driveway was broken off by the concrete truck. Plaintiff made no effort to compensate Defendant or repair Defendant's driveway. (Pltf. Fact 27)

(Mckinney Dep. p. 131, 146 ; Tabor Dep. p. 30 ; Tabor Dep. Exh. "27")

56.   The letters Defendant sent to Plaintiff do not ask for anything that is not within the scope of the contract. On November 4, 2004 all work came to a stop. On December 15, 2004, a walk through was attempted. John Tabor did not complete the walk through and did not walk off the job. John Tabor cursed at the Defendant and ran off the job. (Pltf. Fact 27)

(Robyn McKinney Dep. p. 42-44, 47 ; Mckinney Dep. p. 40, 47 ; Mckinney  Dep. Exh. "3, 4, 5" ; Tabor Dep. p. 20-22 ; Tabor Dep. Exh. "13, 14, 15" ; Def. CC par. 142)

57.     The cost to Defendant to replace the work has been twice as much as the contracted amount. With the exception of the slab all work has been redone and monies paid to other contractors. (Pltf. Fact 27)

(Mckinney Dep. p. 76, 81, 82, 136-137 ; Mckinney  Dep. Exh. "6-16" ; Tabor Dep. p. 28, 29, 30, 31 ; Tabor Dep. Exh. "24, 25, 26, 29" ; Def. CC par.41, 43, 91, 105 ; Def. Resp. Interrogatory # 5, 9 ; Pltf. Resp. Adm. # 67, 162, 186)

58.     Defendant’s back was physically injured as a result of IWS’s negligent construction of the deck. (Pltf. Fact 27)

(Mckinney Dep. p. 22, 70, 83, 86-91 ; Tabor Dep. p. 23, 25, 30-32,145 ;
Tabor Dep. Exh. "19, 20, 26, 29" ; Def. CC par.69 ; Def. Resp. Interrogatory # 3,5,10 ; Pltf. Resp. Interrogatory # 5, 6, 20, 21, 22, Pltf. Resp. Adm. # 299)  

 Bla bla
Respectfully submitted,
Ron McKinney






--------------------------------------------------------------------------------

APPENDIX TO DEFENDANT’S STATEMENT OF DISPUTED FACTS

DEPOSITION EXHIBITS IDENTIFIED
Index References For Exhibits used in the Deposition of Ron McKinney, Robyn McKinney and John Tabor relied on in this Statement

Ron McKinney Deposition, Plaintiff's Exhibits 1 - 19
Exh. 1)  IWS Business Card, Ron Mckinney Dep. Exh. "1", Ron McKinney Dep. p. 21
Exh.  2)  Contract, Ron Mckinney Dep. Exh. "2", Ron McKinney Dep. p. 25
Exh. 3, 4, 5)  3 Letters to Mr. Tabor, Ron Mckinney Dep. Exh. "3, 4, 5", Ron McKinney Dep. p. 40, 52, 53
Exh. 6)  Copy of Business Cards, Ron Mckinney Dep. Exh. "6", Ron McKinney Dep. p. 68
Exh. 7)  9/12/05 E-Mail to Atlanta Home Technologies, Ron McKinney Dep. Exh. "7", Ron McKinney Dep. p. 69
Exh. 8)  9/12/05 E-Mail to Border Magic, Ron McKinney Dep. Exh. "8", Ron McKinney Dep. p. 70
Exh. 9)  9/12/05 E-Mail to TCS Construction, Ron McKinney Dep. Exh. "9", Ron McKinney Dep. p. 71
Exh. 10)  9/12/05 E-Mail to HardScapes, Ron McKinney Dep. Exh. "10", Ron McKinney Dep. p. 72
Exh. 11)  9/12/05 E-Mail to SD&B Services, Ron McKinney Dep. Exh. "11", Ron McKinney Dep. p. 72
Exh. 12)  9/12/05 E-Mail to Sequoyah Vinyl Creations, Ron McKinney Dep. Exh. "12", Ron McKinney Dep. p. 73
Exh. 13)  9/12/05 E-Mail to Weldon Home Exteriors, Ron McKinney Dep. Exh. "13", Ron McKinney Dep. p. 82
Exh. 14)  Quote from Sears, Ron Mckinney Dep. Exh. "14", Ron McKinney Dep. p. 84
Exh. 15)  Quote from (Home Depot) Renovation Premium Vinyl Windows, Ron Mckinney Dep. Exh. "15", Ron McKinney Dep. p. 85
Exh. 16)  Proposal from RJD Exterior Designers, Ron Mckinney Dep. Exh. "16", Ron McKinney Dep. p. 85
Exh. 17)  Office of Consumer Affairs Letter, Ron Mckinney Dep. Exh. "17", Ron McKinney Dep. p. 92
Exh. 18)  Better Business Complaint, Ron Mckinney Dep. Exh. "18", Ron McKinney Dep. p. 93
Exh. 19)  Gooch Consultants Building Report, Ron Mckinney Dep. Exh. "19", Ron Mckinney Dep. p. 96



Robyn Mckinney Deposition, Plaintiff's Exhibits 7 - 13, 17, 18, 20 - 23
Exh. 7)  9/12/05 E-Mail to Atlanta Home Technologies, Robyn McKinney Dep. Exh. "7", Robyn McKinney Dep. p. 8-9
Exh. 8)  9/12/05 E-Mail to Border Magic, Robyn McKinney Dep. Exh. "8", Robyn McKinney Dep. p. 10-11
Exh. 9)  9/12/05 E-Mail to TCS Construction, Robyn McKinney Dep. Exh. "9", Robyn McKinney Dep. p. 12-13
Exh. 10)  9/12/05 E-Mail to HardScapes, Robyn McKinney Dep. Exh. "10", Robyn McKinney Dep. p. 13-14
Exh. 11)  9/12/05 E-Mail to SD&B Services, Robyn McKinney Dep. Exh. "11", Robyn McKinney Dep. p. 14-15
Exh. 12)  9/12/05 E-Mail to Sequoyah Vinyl Creations, Robyn McKinney Dep. Exh. "12", Robyn McKinney Dep. p. 15, 33-34
Exh. 13)  9/12/05 E-Mail to Weldon Home Exteriors, Robyn McKinney Dep. Exh. "13", Robyn McKinney Dep. p. 16, 17
Exh. 17)  Office of Consumer Affairs Letter, Robyn Mckinney Dep. Exh. "17", Robyn McKinney Dep. p. 18-21, 25, 26, 27
Exh. 18)  8/23/05 Better Business Complaint, Robyn McKinney Dep. Exh. "18", Robyn McKinney Dep. p. 23-24
Exh. 20)  Warranty Deed, 3F Foundation, Robyn McKinney Dep. Exh. "20", Robyn McKinney Dep. p. 5, 6, 7
Exh. 21)  Copy of Business Card, Robyn Mckinney Dep. Exh. "21", Robyn McKinney Dep. p. 5-8
Exh. 22)  Cover letter Fax to Office of Consumer Affairs, Robyn McKinney Dep. Exh. "22", Robyn McKinney Dep. p. 21-22
Exh. 23)  Intellius Background Check, Robyn Mckinney Dep. Exh. "23", Robyn Mckinney Dep. p. 29, 30-32
Reference to 7/25/06 Sequoyah Proposal - relates to exhibit 12, Robyn Mckinney Dep. p. 15, 33-34

John Tabor Deposition, Defendant's Exhibits 1 - 32
Exh. 1)  Notice to Take Deposition of Plaintiff, Tabor Dep. Exh. "1", Tabor Dep. p. 2-151
Exh. 2)  Post Card, Tabor Dep. Exh. "2",Tabor Dep. p. 15-16, 33-39, 46-51, 59-61
Exh. 3)  John Tabor Business Card, Tabor Dep. Exh. "3",Tabor Dep. p. 16
Exh. 4)  Contract, Tabor Dep. Exh. "4",Tabor Dep. p. 16, 33-46, 50-56, 59-86, 100, 114, 141-149
Exh. 5, 5a)  Gwinnett County Construction Code, Tabor Dep. Exh. "5a", Tabor Dep. p. 17, 18, 53-58
Exh. 6, 6a)  IRC - International Residential Code, Tabor Dep. Exh. "6a", Tabor Dep. p. 18, 88-91,
Exh. 7)  Gwinnett County - Deck Additions, Tabor Dep. Exh. "7", Tabor Dep. p. 17, 18, 55, 68, 70-86, 113. 145-149
Exh. 8)  Gwinnett County - Home Addition - Monolithic Slab, Tabor Dep. Exh. "8", Tabor Dep. p. 19, 68-86, 113, 145-149
Exh. 9)  VSI - Vinyl Siding Installation Manual, Tabor Dep. Exh. "9", Tabor Dep. p. 19, 123-149,
Exh. 10)  Greenguard Housewrap Product Guide & Installation, Tabor Dep. Exh. "10", Tabor Dep. p. 19, 123 - 149
Exh. 11)  Greenguard Fan Fold Installation Guide, Tabor Dep. Exh. "11", Tabor Dep. p. 20, 137-140
Exh. 12)  IWS Window Order Form, Tabor Dep. Exh. "12",  Tabor Dep. p. 20, 114-117        
Exh. 13)  3 Letters to Plaintiff from Defendant, Tabor Dep. Exh. "13", Tabor Dep. p. 20-21
Exh. 14)  Plaintiff's Letter to Defendant, Tabor Dep. Exh. "14", Tabor Dep. p. 22, 70-86
Exh. 15)  Copy of Lien, Tabor Dep. Exh. "15", Tabor Dep. p. 22
Exh. 16)  Complaint, Tabor Dep. Exh. "16", Tabor Dep. p. 22
Exh. 17)  Grover Contract & Lien, Tabor Dep. Exh. "17", Tabor Dep. p. 23
Exh. 18)  Beniger Contract & Lien & Letter, Tabor Dep. Exh. "18", Tabor Dep. p. 23
Exh. 19)  Gooch Building Consultants Inspection Report - Gooch, Tabor Dep. Exh. "19", Tabor Dep. p. 23, 70 - 88,  98, 114
Exh. 20)  House Smart Home Inspection Report - Cook, Tabor Dep. Exh. "20", Tabor Dep. p. 25, 78 - 79, 86 - 87, 114
Exh. 21)  Champia ASHI Inspection Report - Berlyoung, Tabor Dep. Exh. "21", Tabor Dep. p. 25, 93, 114  
Exh. 22)  ASHI Standards Of Practice and Code of Ethics, Tabor Dep. Exh. "22", Tabor Dep. p. 26
Exh. 23)  Atrium Letter - Chris Reilly, Tabor Dep. Exh. "23", Tabor Dep. p. 27, 117-119
Exh. 24)  Sequoyah Statement - Vaungh, Tabor Dep. Exh. "24", Tabor Dep. p. 28
Exh. 25)  Hardscapes Slab Redo Quote - Beaty, Tabor Dep. Exh. "25", Tabor Dep. p. 29
Exh. 26)  Decks By Jeff - Pettigrew, Tabor Dep. Exh. "26", Tabor Dep. p. 30
Exh. 27)  Collection of 32 pages of Photographs, Tabor Dep. Exh. "27", Tabor Dep. p. 30, 70-87, 99-105, 110-111, 123-132, 139-145
Exh. 28, 28a)  Series 60 Window Brochure, Tabor Dep. Exh. "28a", Tabor Dep. p. 30, 31,120
Exh. 29)  Physical Injury Medical Expense Summary, Tabor Dep. Exh. "29", Tabor Dep. p. 31
Exh. 30, 30a)  Series 40 Window Brochure, Tabor Dep. Exh. "30a", Tabor Dep. p. 32 - 34,120
Exh. 31)  Ted Lansing Delivery Slip, Tabor Dep. Exh. "31", Tabor Dep. p. 32
Exh. 32)  Series 40 & 60 Window Warranty, Tabor Dep. Exh. "32", Tabor Dep. p. 32







DEFENDANT’S BRIEF EXHIBITS IDENTIFIED

Index of Exhibits in Defendant’s Opposition Brief relied on in this Statement

Exhibit "A" the contract " The contractor agrees to do all work in a good and workmanlike manner."

Exhibit "B"  John Tabor’s letter.

Exhibit "C" John Tabor email

Exhibit "D" Lois McKinney mortgage on the property

Exhibit "E" the Durable Power of Attorney For Lois McKinney

Exhibit “F” Series 60 brochure from John Tabor

Exhibit “G” Series 40 brochure from John Tabor

Exhibit "H" the brochure the Series 40 in effect in 2004.

Exhibit "I" the brochure the Series 60 windows in effect in 2004.

Exhibit “J” IWS window order form

Exhibit “K” letter from Chris Riley of Atrium Windows and Doors

Exhibit "L" Email from Lynn Whyte, VP, Administration, Lansing Building Products

Exhibit "M" search obtained from ReferenceUSA.com,  "15 employees" and 1 to 2.5 million dollars in annual sales for Insulated Wall Systems.

Exhibit “N” John Tabor Affidavit

Exhibit "O" IWS contract with Grovers

Exhibit "P".IWS contract with Beniger

Exhibit “Q” the IWS complaint ( p "10")

Exhibit “R” Robyn McKinney Affidavit

Exhibit “S” Lynn Whyte Affidavit.

Exhibit "T" verification of no workers compensation for Keith Payne and Adam Kurzeja August 23, 2004 and November 4, 2004

Exhibit "U" letter from John Tabor to Andy Beniger

Exhibit “V”, Ron McKinney Affidavit



IDENTIFIED AFFIDAVIT EVIDENCE IN THE RECORD
Index References To Docketed items relied on in this Statement

NOTICE OF FILED AFFIDAVITS
                                                                                                        

   1. DOCKETED 07/05/2005 - AFFIDAVIT RON MCKINNEY

  2. DOCKETED 07/05/2005 - AFFIDAVIT RON MCKINNEY

  3. DOCKETED 07/20/2005 - AFFIDAVITS RON MCKINNEY

  4. DOCKETED 11/14/2005 - AFFIDAVIT RON MCKINNEY

  5. DOCKETED 01/06/2006 - AFFIDAVIT ROBYN MCKINNEY  

  6. DOCKETED 04/13/2006 - AFFIDAVIT LYNN WHYTE

  7. DOCKETED 04/13/2006 - ATRIUM LETTER

  8. DOCKETED 06/09/2006 - AFFIDAVIT RON MCKINNEY

  9. DOCKETED 06/14/2006 - AFFIDAVIT ROBYN MCKINNEY  

10. DOCKETED 08/03/2006 - HOUSE SMART INSPECTIONS

11. DOCKETED 08/03/2006 - SEQUOYAH VINYL CREATIONS, INC,  

12. DOCKETED 08/22/2006 - AFFIDAVIT RON MCKINNEY

13. DOCKETED 08/22/2006 - AFFIDAVIT ROBYN MCKINNEY  

14. DOCKETED 09/06/2006 - AFFIDAVIT RON MCKINNEY

15. DOCKETED 09/18/2006 - AFFIDAVIT RON MCKINNEY

16. DOCKETED 09/18/2006 - AFFIDAVIT ROBYN MCKINNEY  

17. DOCKETED 09/26/2006 - AFFIDAVIT RON MCKINNEY

18. DOCKETED 09/26/2006 - AFFIDAVIT FARRELL C SHIVER

19. DOCKETED 02/16/2007 - AFFIDAVIT RON MCKINNEY

20. DOCKETED 05/04/2007 - AFFIDAVIT ROBYN MCKINNEY  

21. DOCKETED 05/14/2007 - AFFIDAVIT ROBYN MCKINNEY (AMENDED 5-12-07)

22. DOCKETED 06/04/2007 - AFFIDAVIT RON MCKINNEY

23. DOCKETED 06/04/2007 - AFFIDAVIT ROBYN MCKINNEY

IDENTIFIED PLEADINGS AND EVIDENCE IN THE RECORD
Index References To Docketed items relied on in this Statement

The Defendant's Counterclaims

Count 1 - Breach of Contract, (Def. CC Par. 20 - 44)

Count 2 - Assumption of Duty, (Def. CC Par. 45 - 56)

Count 3 - Negligent Installation of Home Improvements, (Def. CC Par. 57 - 71)

Count 4 - Misrepresentation (Def. CC Par. 72 - 93)

Count 5 - Fraud, (Def. CC Par. 94 - 106)

Count 6 and 7 Conspiracy, (Def. CC Paragraphs 107- 135)

Count 8 - Intentional Infliction of Emotional Distress, (Def. CC Par. 136 - 156) Count 9 - Recoupment, (Def. CC Par. 157 - 159)

Count 10 Attorney Fees, (Def. CC Par. 160 - 166)

Defendant's Prayer For Relief and Jury Demand (Def. CC Par. 167).

Defendant's List of Exhibits Attached to Counterclaim

Exhibit A    Copy of  Postcard

Exhibit B    Copy of  Business Card

Exhibit C    Copy of  Defendant's Letter #1 December 20, 2004

Exhibit D    Copy of  Defendant's Letter #2 January 3, 2005

Exhibit E    Copy of  Defendant's Letter #3 January 14, 2005

Exhibit F    Copy of  Plaintiff's Rep. John J. Tabor's Letter dated January 4, 2005

Exhibit G   Copy of  Deck Additions to a Home - Building Permit Requirements

Exhibit H   Copy of  Building Additions to a Home - Building Permit Requirement

Exhibit I     Copy of  Ted Lansing Window Labels

Exhibit J    Copy of  Ted Lansing Delivery Slip - Siding Materials

Exhibit K   Copy of  Home Depot Delivery Slip - Wood Materials



IDENTIFIED DISCOVERY EVIDENCE IN THE RECORD
Index References To Docketed items relied on in this Statement

NOTICE OF FILED PLEADINGS AND DISCOVERY RESPONSES
  

1.  DOCKETED 07/20/2005 - DEFENDANT'S VERIFIED ANSWER AND AFFIRMATIVE DEFENSES

2.  DOCKETED 07/20/2005 - DEFENDANT'S VERIFIED COUNTERCLAIM

3.  DOCKETED 07/20/2005 - DEFENDANT'S JURY DEMAND

4.  DOCKETED 06/09/2006 - 1ST AMENDMENT TO DEFENDANT'S VERIFIED ANSWER AND AFFIRMATIVE DEFENSES

5. DOCKETED 09/19/2005 - DEFENDANT'S RESPONSES TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS (Plaintiff's Requests # 1-13 and with it Plaintiff was provided 209 pages of evidence documents)

6. DOCKETED 09/19/2005 - DEFENDANT'S RESPONSES TO PLAINTIFF INSULATED WALL SYSTEMS, INC'S FIRST INTERROGATORIES TO DEFENDANT (Plaintiff's Questions # 1-11)

7. DOCKETED 08/03/2006 - DEFENDANT'S FIRST AMENDMENT TO PLAINTIFF'S FIRST INTERROGATORIES TO DEFENDANT (Supplement to Plaintiff's Questions # 1, 9, 10, 11 and Verification)

8. DOCKETED 09/01/2006 - DEFENDANT'S SUPPLEMENTAL RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS (Supplement to Plaintiff's Request # 2, and with it Plaintiff was provided 298 evidence photographs on 50 pages)

9. DOCKETED 09/26/2006 - DEFENDANT'S RESPONSE TO PLAINTIFF INSULATED WALL SYSTEMS, INC'S SECOND INTERROGATORIES TO DEFENDANT (Plaintiff's Questions # 1-4)

10. DOCKETED 09/26/2006 - DEFENDANT'S RESPONSE TO PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS (Plaintiff's Request # 1-2 and with it Plaintiff was provided 63 additional pages of evidence documents)

11. DOCKETED 06/14/2007 - DEFENDANT'S SUPPLEMENTAL RESPONSES TO PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS (Supplement to Plaintiff's Request # 1, 2 and with it Plaintiff was provided 60 evidence photographs on 10 pages and 141 pages of evidence documents consisting of Exhibits #1-32 from the John Tabor Deposition)

12. DOCKETED 05/03/2007 - DEPOSITION ROBYN MCKINNEY (with errata sheets, and Exhibits)

13. DOCKETED 05/03/2007 - DEPOSITION RON MCKINNEY (with errata sheets, and Exhibits)

NOTICE OF FILED DISCOVERY REQUESTS AND RESPONSES
  

1.  DOCKETED 08/31/2005 - DEFENDANT'S FIRST CONTINUING REQUEST FOR ADMISSIONS TO PLAINTIFF (Requests # 1-16 including subparts 1-43 and 17-20)  

2.  DOCKETED 06/02/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff’s Responses to Defendant’s First Continuing Request For Admissions – dated September 29, 2005.

Amendment to Plaintiff’s Responses to Defendant’s First Continuing Request For Admissions– dated October 27, 2005.

3.  DOCKETED 08/31/2005 - DEFENDANT'S FIRST CONTINUING INTERROGATORIES TO INSULATED WALL SYSTEMS, INC. (Questions # 1-13)

 4.  DOCKETED 06/02/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff Insulated Wall Systems, Inc. Responses to Defendant’s First Continuing Interrogatories – dated September 29, 2005.

Amendment to Plaintiff’s Response to Defendant’s First Continuing Interrogatories – dated October 27, 2005.

5.  DOCKETED 08/03/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff’s Second Amendment to Defendant’s First Continuing Request For Interrogatories– dated July 13, 2006.

Third Amendment to Plaintiff Responses to Defendant’s First Continuing Interrogatories – dated July 30, 2006.

6.  DOCKETED 08/31/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT  

CHAMPIA Real Estate Inspection Report – dated July 5, 2006.

7.  DOCKETED 08/31/2005 - DEFENDANT'S FIRST CONTINUING REQUEST FOR PRODUCTION OF DOCUMENTS TO INSULATED WALL SYSTEMS, INC. (Requests # 1-13)

 8.  DOCKETED 06/02/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff’s Responses to Defendant’s First [Continuing] Request for Production of Documents– dated September 29, 2005.

9.  DOCKETED 11/29/2005 - DEFENDANT'S SECOND CONTINUING  REQUEST FOR PRODUCTION OF DOCUMENTS AND INTERROGATORIES TO PLAINTIFF (Requests # 14-16 and Questions #14-28)

10.  DOCKETED 06/02/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff’s Response to Defendant’s Second Continuing Request for Production of Documents and Interrogatories to Plaintiff – dated December 21, 2005.

11.  DOCKETED 01/03/2006 - DEFENDANT'S THIRD CONTINUING REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF (Requests # 17-22)

12.  DOCKETED 06/02/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff’s Response to Defendant’s Third Continuing Request for Production of Documents –dated January 25, 2006.

13.  DOCKETED 12/05/2005 - DEFENDANT'S SECOND CONTINUING REQUEST FOR ADMISSIONS TO PLAINTIFF (Requests # 1-300)

14.  DOCKETED 08/03/2006 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT

Plaintiff’s Responses to Defendant’s Second Continuing Request For Admissions – dated July 17, 2006.

15.  DOCKETED 01/18/2007 - DEFENDANT'S NOTICE TO PRODUCE (Originals of all documents Defendant requested at Hearings and Trial)

16. DOCKETED 02/16/2007 - DEFENDANT'S THIRD CONTINUING REQUEST FOR ADMISSIONS TO PLAINTIFF (Requests # 1-20)

17.  DOCKETED 07/06/2007 - RESPONSE TO DEF REQ FOR ADMISSIONS Filed By: ATTORNEY FOR PLAINTIFF

18.  DOCKETED 04/07/2007 - DEPOSITION JOHN TABOR 02-06-2007 (Transcript as submitted for review, no errata sheet returned)

19.  DOCKETED 05/04/2007 - NOTICE OF FILING DISCOVERY Filed By: DEFENDANT  (2 Letters from Rajani Reporting, Inc., Certified Court Reporter - dated  March 16, 2007 and April 4, 2007)

 



SUMMARY OF ADMISSION REQUESTS

DENIED OR ADMITTED BY PLAINTIFF

Plaintiff has denied Defendant's Eleven (11) Affirmative Defenses claimed and these defenses are material issues now in dispute. (Pltf’s Resp. to 2nd Req. for Adm. No. 2, 3, 4, 5, 6, 7, 8, 11, 12)

Plaintiff has denied Defendant's 2nd request for admissions # 2-8, 11-13, 16-18, 21, 23-24, 26-27, 29, 37-39, 41, 43, 45-46, 48, 52-53, 57, 62-68, 70-77, 79, 80, 82-86, 88-94, 96-98, 100, 101, 103-107, 109, 112-113, 117-120, 122-123, 127-130, 133-136, 139, 141-143, 145, 147, 150-151, 155, 157-163, 167, 169, 170, 172, 175-178, 180-182, 184, 186-197, 200, 203-204, 209-211, 213-214, 219, 221, 224, 226-229, 233-234, 236-237, 239-241, 244-255, 258-259, 262-266, 269-270, 273-275, 277-280, 282-293, 296-297, 300 placing these material fact issues in dispute. (Pltf’s Resp. to 2nd Req. for Adm. No. 1-300)

Plaintiff has admitted Defendant's 2nd request for admissions # 1, 14, 22, 31-36, 40, 42, 44, 47,55, 56, 58-61, 69, 81, 95, 102, 108, 111, 114, 116, 121, 124, 126, 137, 138, 140, 144, 146, 156, 164, 165, 171, 174, 198, 199, 201, 202, 205-208, 212, 215, 217, 218, 223, 231, 235, 242, 256, 276, and therefore these material fact issues are no longer in dispute. (Pltf’s Resp. to 2nd Req. for Adm. No. 1-300)

  








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