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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,                               )          filed June 13, 2005
      Defendant.                                 )

COMPLAINT

1.  Defendant Ron McKinney is a resident of Gwinnett Country Georgia and may be served with a copy of the Complaint and Summons at his residence located at 4083 Red Laurel Way Snellville, Georgia 30039. When so served, this defendant will be subject to the jurisdiction of this Court.

2.  Venue is proper in this Court.

3.  On or about August 23, 2004 Defendant entered into a contract with Plaintiff for certain repair and home improvement work to be done by Plaintiff on the Defendant's residence located at 4083 Red Laurel Way Snellville, Georgia.  A true and correct copy of the parties contract is attached hereto as Exhibit "A".

4.  Pursuant to the contract, all of the work to be completed by the Plaintiff was done for the contract price of $16,000.00.  Upon completion of the work, in accordance with the contract, Defendant was to remit to Plaintiff the total amount due and owing for its work.

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

6.  After Plaintiff's work was completed and payment was due, Defendant began to complain about minor detail aspects of the work done to his residence.  Plaintiff made repeated attempts to satisfy any and all complaints made by Defendant concerning the work.  However, Defendant continued to complain and withhold payment of the contract price despite completion of the work and extra work done (at no cost) in an attempt to satisfy Defendant.

7.  To date Defendant has never remitted any of the contract price to Plaintiff.

COUNT 1
BREACH OF CONTRACT

8.  Plaintiff incorporates by reference as if set forth fully herein Paragraphs 1-7 of the complaint.

9.  Pursuant to the parties contract, upon completion of the work, the contract price of $16,000.00 was due and owed Plaintiff from Defendant.

10.  Plaintiff completed the work as set forth by the contract in a professional and workmanlike manner.  However, to date Defendant has not remitted contract price to Plaintiff.

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

COUNT II
ATTORNEY FEES

12.  Plaintiff incorporates by reference as if set forth fully herein Paragraphs 1-11 of the Complaint.

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

WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $16,000.00 plus any and all reasonable attorney's fees and cost incurred as a result of this lawsuit.  In addition, Plaintiff demands a jury trial and any and all further relief as this Court deems just and proper.

This 9th day of June, 2005.

Respectfully submitted,

Jana B. Tabor
Georgia Bar No. 058615
Attorney for Plaintiff

Barrickman, Allred & Young, LLC
5775 Glenridge Drive
Building A Suite 100
Atlanta, GA  30328
404 252-2230
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EXHIBIT A
Insulated Wall Systems, Inc.  
Contract:

The contractor agrees to furnish all materials and labor necessary to do modernization work on premises located at above address according to the following specifications:

Remove windows in house and replace with Windjammer Model 40 Vinyl replacement windows as follows: (damaged wall envelope and no flashing done)
(1) Slider over kitchen sink
(2) Double hungs beside fireplace - enlarge frame to 20" wide
(same length) actual size 19 1/2" (out of plum, not square, no header, unfinished)
(1) Double hung framed into basement wall 46" wide by 36" high actual size (wrong size, no header, unfinished, damaged by screws through frame)
(9) Double hung  to same diameter (2 required tempered glass by code, not done)

All windows white in color with 1/2 screens and grids on front windows only (damaged screens)
With Low-e glazing and argon gas (NO Argon Gas in Windows)
No work to inside walls on windows that are being reframed (unnecessary damage done to sheet rock walls)
End of page 1

Install Royal Woodland 16' vinyl siding over 1/4" foam board insulation - Sterling Dutchlap (not installed by manufacturers instructions)
Cover overhang with Royal vinyl soffit *(all perforated except cantilever) and PVC aluminum trim coil on fascia boards - white - (remove drip edge on fascia boards)
Install (2) pairs of vinyl shutters - winestone louvered (not done)
Install 5" seamless aluminum gutters and 3" x 4" downspouts (white) (gutters not draining properly)
Cap two back doors with pvc aluminum trim coil (white) (no drip edge over door)
Outside Corners - White
Replace gable vents with pvc vents 18" x 24" - white
Install greenguard plastic housewrap over 1/4" foam insulation taped at seams (Seams Not taped)
Remove deck on back of house and dispose of (disposal of debris not done completely). Then rebuild new deck approx. dimension of 10' floors joists and 20' wide (Deck unsafe, does not meet code, built over septic tank)
with 3'x3' platform for stairs dropping half way to 2nd 3'x3' (stairs unsafe, does not meet code)
platform 2"x2" pickets and (2) 4"x4" posts on corners (2) and to steps (pickets missing)
also build gate at entrance to 3'x3' platform to stairs (gate falling apart)
Build wood deck approx. 5' wide by 5' deep from front
door w/ 1 step and rails (not secured properly)
Pour slab on back of house approx. 14' deep (away
from house) and approx. 19' wide - smooth finish (does not meet code, smooth finish not done, unlevel and out of square, no footers, no rebar, no vapor barrier, can not be used for foundation of screen porch )
customer to remove shrubs first

All of the above work to be done for the total sum of $16,000.00 payable in cash, net, upon completion of the work. (all work not completed, work done is shoddy, not by industry standards)

(To facilitate payment, the Owner agrees to permit the contractor to attempt to obtain a loan or loans for him through a dependable source at payment of $______ per month for ______ months at an approximate interest rate of ____%, with or without a mortgage, or, with a mortgage, through a dependable source, according to the lender's terms, the monthly payments in either arrangement to include both principal and interest, and to execute all necessary papers for such a loan on or before completion of work.) [CROSSED OUT]

Contractor agrees to do all work in a good and workmanlike manner (shoddy work done). 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 (all Work was not done properly) by the contractor on the date thereof in accordance with terms of this contract. ( Walk thru not done, no work ever corrected, contractor now claims only applies to financed sales but he does not cross off so not to make a mess of the contract)

Contractor will do all said work in strict accordance with the ordinances, rules, and requirements (Work does not comply with State Building Code) of the City, Town or Village, wherein the above mentioned property is located. (contractor now claims not subject to the code)

We carry adequate insurance to protect our customers against injuries to our workman or the public during the performance of our contract. (Not true, no insurance carried)

In the event of breach of this contract or if contractor has to collect by or through an Attorney-at-law against purchase, purchaser agrees to pay the attorney's fees incurred by contractor in enforcing his right under the terms of this agreement. (Attorney being used is contractor's wife, company not really being charged)  
Signed on August 23, 2004

John Tabor signed as Authorized Agent
RMcKinney signed as Purchaser

No verbal Agreements Recognized (not a true merger clause, only applies to changes in the work to be agreed to in the future, which must be in writing)

AFFIDAVIT FROM JOHN TABOR, CONTRACTOR/PLAINTIFF IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS AND TO STRIKE COMPLAINT

July 27, 2005
AFFIDAVIT OF JOHN TABOR

STATE OF GEORGIA  
COUNTY OF FULTON

Personally appeared before the undersigned officer authorized to administer oaths,
comes John Tabor, who after having been duly sworn, deposes and states:

1.
I am over the age of 21 years and President of Insulated Wall Systems, Inc. Plaintiff in
the above-entitled action. I am of sound mind and body and have personal knowledge
of the matters stated below.

2.
I am the drafter of the pre-printed portions of Insulated Wall Systems, Inc's contract
which became the basis of the contract the Plaintiff entered into with the Defendant in
this matter.

3.
The Defendant takes issue with a sentence contained in the pre-printed portion of the
contract. That sentence states: "The acknowledgment of the completion of the work,
signed by the owners, shall be sufficient notice that this contract has been
satisfactorily completed by the contractor on the date thereof in accordance with the
terms of this contract."  I am the author and drafter of that sentence.  That sentence is
 contained in all of the Plaintiff's pre-printed contracts for the purpose of securing
financing from a third party.

4.
I inserted such sentence in the pre-printed form contract as lenders typically require
such language to notify the owner/borroweer that such signed statements shall be
sufficient for the mortgagor to release the borrowed proceeds to the Plaintiff upon
completion of the work.  The statement is for the protection of the lender and in no way
 inures to the benefit of the Plaintiff.  Furthermore, the statement has no application in
this case as this was a cash sale.

FURTHER AFFIANT SAYETH NOT.

________________________
John Tabor

THIS AFFIDAVIT WAS NOTARIZED BY JOHN TABOR'S BROTHER, ROBERT TABOR WHO IS AN OFFICER WITH THIS CORPORATION

 

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