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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.                                                      )           05 A 06942-9
RON MCKINNEY,                               )          filed July 20, 2005
      Defendant.                                  )

DEFENDANT'S VERIFIED AFFIRMATIVE DEFENSES

FIRST DEFENSE
The Plaintiff’s Complaint, each and every paragraph setforth therein, fails to state or set forth a claim upon which relief can begranted.

SECOND DEFENSE
Plaintiff’s claims are barred by the doctrine of laches andunclean hands.

THIRD DEFENSE
Plaintiff’s claims are barred by the doctrine of estoppel.

FOURTH DEFENSE
Defendant is not the proximate cause of any damages Plaintiff claims to have suffered.

FIFTH DEFENSE
Plaintiff’s breach of contract claim fails for lack of consideration.

SIXTH DEFENSE
Plaintiff has failed to mitigate its claimed damages byabandoning the project.

SEVENTH DEFENSE
Under Georgia’s law of recoupment, pursuant to O.C.G.A.13-7-2, Defendant is entitled to deduct the cost of repairing the improperly and negligently installed work from any amounts, if any, owed to Plaintiff.

EIGHTH DEFENSE
Plaintiff through its negligent performance and fraud hasassumed all risk.

NINTH DEFENSE
Plaintiff’s contract is unconscionable if under it Plaintiff claims any right to attorney fees, under Plaintiff’s own breach.

TENTH DEFENSE
Defendant has at all times acted in accordance with Georgia and federal law in his transactions with Plaintiff.

ELEVENTH DEFENSE
Defendant has at all times acted upon the existence of reasonable grounds or belief formed at the time and in light of all circumstances known to him.

DEFENDANT'S VERIFIED ANSWER

In responding to Paragraphs 1-13 of Plaintiff’s Complaint,Defendant repeats and realleges each and every allegation contained in hisinitial and Amended Affirmative Defense, and in his initial Counterclaim andany amendments to it, incorporating them here with the same force and effect asif set forth herein, and responds to Paragraphs 1 through 13, of Plaintiff’s Complaint by stating the following:

1.
(As Amended) In response to Plaintiff’s Complaint paragraph1, to the extent the allegations contained in Paragraph 1 of the Complaint arelegal conclusions no response is required. To the extent that a response is required, Defendant Ron McKinney admits that he resides at 4083 Red Laurel Way,Snellville, Georgia 30039.

2.
(As Amended) In response to Plaintiff’s Complaint paragraph2, to the extent the allegations contained in Paragraph 2 of the Complaint are legal conclusions no response is required. Defendant admits to venue being proper in this court.

3.
(As Amended) In response to Plaintiff’s Complaint paragraph3, Defendant admits that he signed the document attached to the Complaint as Exhibit A. Defendant denies the remaining allegations as contained in Paragraph3. Defendant demands strict proof.

4.
(As Amended) In response to Plaintiff’s Complaint paragraph4, Defendant admits that the work itemized on “Exhibit A” to the Complaint tobe completed by Plaintiff was priced at $16,000, however, Plaintiff induced the Defendant with fraud, failed to perform its obligations under the contract, did not act in good faith, never completed or corrected the defective work and hasgiven nothing of any value to the Defendant. Defendant denies the remaining allegations contained in Paragraph 4 of the complaint. Defendant demands strictproof.

5.
In response to Plaintiff’s Complaint paragraph 5, Defendantdenies the allegations contained in Paragraph 5 of Plaintiff's Complaint(adding the following words) “and Defendant demands strict proof.”

6.
In response to Plaintiff’s Complaint paragraph 6, Defendantdenies the allegations contained in Paragraph 6 of Plaintiff's Complaint(adding the following words) “and Defendant demands strict proof.”

7.
(As Amended) In response to Plaintiff’s Complaint paragraph7, Defendant admits that he has not paid any money to Plaintiff since Plaintiffhas failed to act in good faith, never properly completed the work itemized onExhibit A, has given nothing of any value to the Defendant and the Defendantnever mutually agreed to a departure from the agreement. Defendant demandsstrict proof.

COUNT 1
BREACH OF CONTRACT
8.
In response to Paragraph 8 of the Complaint, Defendant incorporates herein his defenses and responses to Paragraph 1 through 7, above of the Complaint.

9.
(As Amended) In response to Plaintiff’s Complaint paragraph9, Defendant admits that $16,000 was due to be paid Plaintiff after Plaintiff satisfactorily completed the work described in Exhibit A.  However, Plaintiff has never fulfilled its obligation owed to Defendant as contained in Exhibit A and Defendant never mutually agreed to a departure from the agreement, nor did he agree to allowJohn J. Tabor or anyone else acting on behalf of Plaintiff to declare when work was satisfactorily completed for him. Accordingly, Defendant denies the allegations contained in Paragraph 9of Plaintiff's Complaint as stated. Defendant demands strict proof.

10.
In response to Plaintiff’s Complaint paragraph 10,Defendant denies the allegation contained in Paragraph 10 of Plaintiff's Complaint (adding the following words) “and Defendant demands strict proof.”

11.
In response to Plaintiff’s Complaint paragraph 11, Defendant denies the allegations contained in Paragraph 11 of Plaintiff's Complaint(adding the following words)  “andDefendant demands strict proof.”

COUNT II
ATTORNEY FEES
12.
In response to Paragraph 12 of the Complaint, Defendant incorporates herein his defenses and responses to Paragraphs 1 through 11,above, of the Complaint.

13.
In response to Plaintiff’sComplaint paragraph 13, Defendant denies the allegations contained in Paragraphs 13 to Plaintiff’s Complaint (adding the following words)  “and Defendant demands strict proof.”

COUNTERCLAIM AS IT STANDS NOW UNAMENDED FROM HERE DOWN


General Factual Allegations
10.
Plaintiff, is a registered corporation, and is a regular merchant of vinyl siding, replacement windows and other home improvements in the state of Georgia, since 1995 and subject to Georgia's "Fair Business Practices Act of 1975." Plaintiff engages in installment-financed sales and cash sales using a salesman to approach customers and close deals in their homes. The chief executive officer of the corporation has represented the Plaintiff at all times with the Defendant. Even though Plaintiff is a corporation it is answerable for the actions of its Chief Executive Officer.  

11.
Plaintiff's representative is John J. Tabor. Mr. Tabor is the President, the Chief Executive Officer and Chief Financial Officer of record for Insulated Wall Systems, Inc. with the authority to sign contracts and make financial decisions. John J. Tabor is the salesman in this case.

12.
Plaintiff’s attorney is Jana B. Tabor. Ms. Tabor’s Georgia bar # is 058615. Jana B. Tabor and John J. Tabor have the same home address in phone directory records and all the evidence supports they are husband and wife.

13.
Defendant is a retired Electrical Engineer, who is acting pro se, with no formal training in the profession of law, and begs the courts indulgence.

14.
Defendant asks the Court to take judicial notice of all applicable laws, ordinances, rules and regulations in the County of Gwinnett, the City of Snellville, the Georgia Bar Ethics Rules in particular 1.5 & 1.8 et seq. and the Gwinnett County Building Code and make them a part of this counterclaim.

15.
Defendant brings his verified counterclaims before the Court in accordance with all applicable laws of the state of Georgia that includes but is not limited to the particular Titles of the Official Code of Georgia Annotated mentioned here, and makes them a part of this counterclaim, most particularly "Title 51Torts" Section O.C.G.A 51-1-1 et seq. The “Fair Business Practices Act of 1975,” O.C.G.A. Section 10-1-390 et seq. "Title 8 Buildings and Housing" Section O.C.G.A 8-2-26 et seq. “Title 13 Contracts,” O.C.G.A. Section 13-5-5 et seq. “Title 11 Uniform Comercial Code,” O.C.G.A. Section 11-2-313 et seq. and "Title 16 Crimes" Section O.C.G.A 16-1-4 et seq. "Title 16 Crimes" Section O.C.G.A. 16-10-71(a) et seq. "Title 16 Crimes" Section O.C.G.A 16-8-3(b)(1) and (2) et seq.

16.
Defendant has evidence to support his verified counterclaim and some of the evidence is attached as exhibits and referred to in this counterclaim as Defendant’s Exhibits “A” through “K.” The evidence is made a part of this counterclaim by reference to the Exhibits. Each Exhibit is accompanied by an Affidavit that states the origin of the evidence, how it came to be in the Defendant’s possession and relevancy of the evidence to the counterclaim.  

17.
Defendant filed a Motion to Dismiss in accordance with O.C.G.A. 9-11-12(b)(6) and a Motion to Strike in accordance with O.C.G.A. 9-11-12(f) against Plaintiff’s Complaint.

18.
On or about July 12, 2005 Defendant served Plaintiff through Plaintiff’s attorney with ”Notice of Abusive Litigation” in accordance with O.C.G.A. 51-7-81 and O.C.G.A. 51-7-84

19.
Defendant’s verified counterclaim consists of Ten Counts, which are located in this counterclaim as follows:

Breach of Contract                                                  Paragraph   20
Assumption Of Duty                                                Paragraph   45
Negligent Installation of Home Improvements             Paragraph   57
Misrepresentation                                                   Paragraph   72
Fraud                                                                     Paragraph   94
Conspiracy                                                             Paragraph   107
Conspiracy to Commit Extortion                               Paragraph   125
Intentional Infliction of Emotional Distress                  Paragraph   136
Recoupment                                                           Paragraph   157
Attorney Fees                                                         Paragraph   160
Prayer for Relief                                                       Paragraph   167


DEFENDANT’S VERIFIED COUNTERCLAIM
COUNT 1 – Breach of Contract
20.
Defendant repeats and re-alleges each and every allegation contained in all paragraphs of this Answer and Counterclaim with the same force and effect as if set forth herein.

21.
Plaintiff and Defendant entered into an agreement on August 23, 2004, in which Plaintiff agreed to install home improvements onto Defendant's residence “in a good and workmanlike manner.” (Plaintiff's Exhibit “A”)

22.
Plaintiff specifically guaranteed that the Defendant was not obligated to pay until satisfied with the work. (Defendant’s Exhibit “A”)

23.
Plaintiff's guarantee appears clearly hand written on the post card (Defendant’s Exhibit “A”) sent to Defendant, and is implied on Plaintiff's Business Card, (Defendant’s Exhibit “B”) and the contract requires a signature to show work is “satisfactorily” completed. (Plaintiff’s Exhibit “A”)

24.
Defendant is clearly not satisfied, never has been and no reasonable person could be.

25.
Defendant made Plaintiff aware of his dissatisfaction in three (3) letters. (Defendant’s Exhibits “C”, “D”, “E”)

26.
Plaintiff breached the contract by making no "good faith" effort to satisfy Defendant, and demonstrated its “bad faith” in a letter to Defendant. (Defendant’s Exhibit “F”)

27.
Plaintiff failed to satisfy Defendant. (Defendant’s Exhibits “C”, “D”, “E”)

28.
Plaintiff failed to do all work in a "good and workmanlike manner." (Plaintiff’s Exhibit “A”)

29.
The Gwinnett County Planning Commission requires building permits for large “decks” and “slabs”. (Defendant’s Exhibits “G”, “H”)

30.
Plaintiff failed to build deck in accordance with Gwinnett County building code. (Defendant’s Exhibit “G”)

31.
Plaintiff failed to build concrete slab in accordance with Gwinnett County building code. (Defendant’s Exhibit “H”)

32.
Plaintiff breached the contract on or about September 22, 2004, by knowingly ordering the “windows” without “argon gas.” (Plaintiff’s Exhibit “A” and Defendant’s Exhibit “I”)

33.
Plaintiff breached the contract by installing windows without argon gas on or about October 18, 2004. (Plaintiff’s Exhibit “A” and Defendant’s Exhibit “I”)

34.
Plaintiff failed to install windows with argon gas. (Defendant’s Exhibit “I”)

35.
The contract specifically calls for the seams of the “greenguard housewrap” to be “taped at seams”. (Plaintiff’s Exhibit “A”)

36.
Plaintiff failed to provide the tape and then failed to tape the seams of the greenguard housewrap. (Defendant’s Exhibit “J”)

37.
Plaintiff failed to provide or install “2 pair of vinyl shutters.” (Defendant’s Exhibit “J”) (Plaintiff’s Exhibit “A”)

38.
Plaintiff failed to “cleanup” job site. (Plaintiff’s Exhibit “A”)

39.
Plaintiff failed to provide “all labor and necessary materials to perform work” in that Defendant was required to supply labor, tools and materials. (Plaintiff’s Exhibit “A”)

40.
Plaintiff's failures are specific contract breaches on the part of Plaintiff, though they are not limited to the ones stated here. (Plaintiff’s Exhibit “A” and Defendant’s Exhibit “C”, “D”, “E”)

41.
Plaintiff's breaches have damaged Defendant.

42.
Plaintiff's first breach occurred on or about September 22, 2004, and subsequent breaches followed. (Defendant’s Exhibit “I”)

43.
Plaintiff's breach is total and it is the direct cause of damage to Defendant and to the residence which includes among other things a loss in market value and salability of the residence plus the cost of repairing and replacing Plaintiff's improper and defective work on Defendant's residence.

44.
Thus far the Defendant’s damages to repair or replace exceed the estimate price of $16,000.00 (Defendant’s Exhibit “B”) and upon further evidence and discovery could range as much as double, as no contractor is going to be willing to be the “last man” on this job without extra compensation. The amount of damages to which Defendant is entitled will be proven at trial.

COUNT 2 – Assumption Of Duty
45.
Defendant repeats and re-alleges each and every allegation contained in all paragraphs of this Answer and Counterclaim with the same force and effect as if set forth herein.

46.
Plaintiff undertook, for consideration, to build a deck and concrete slab in a manner that would not damage Defendant's residence or the newly built structures themselves. (Plaintiff’s Exhibit “A”)

47.
Plaintiff's failure to exercise reasonable care in the construction of the deck has damaged Defendant's residence in that the entire bay area bump out which consists of two windows and a door has sunken making the door not function properly since work stopped uncompleted on November 2, 2004.

48.
Plaintiff's failure to exercise reasonable care in the construction of the deck in accordance with Gwinnett County Building Code has exposed Defendant and Defendant's family to hazardous conditions and risk of injury in that the deck is not properly attached to the house, or supported, or braced, the stairs are not reinforced, and the landing is insufficient in size to be safe, among other things. (Defendant’s Exhibits “G”)

49.
Plaintiff's failure to exercise reasonable care in the construction of the deck in accordance with Gwinnett County Building Code has exposed Defendant's residence and the deck itself to hazardous conditions that further risk damages from collapse. (Defendant’s Exhibits “G”)

50.
Plaintiff's failure to exercise reasonable care in the construction of the concrete slab has resulted in a damaged slab in that the slab has begun to sink and break up the sidewalk. (Defendant’s Exhibits “H”)

51.
Plaintiff's failure to exercise reasonable care in the construction of the concrete slab in accordance with Gwinnett County Building Code has increased the risk of further damage to the concrete and the house as it sinks. (Defendant’s Exhibits “H”)

52.
Plaintiff completely disregarded Defendant’s stated purpose for contracting the slab, which was for a future screened-in-porch attached to the house. The slab Plaintiff provided is totally unsuitable for this purpose, and is deteriorating after 8 short months and will continue if not corrected, potentially leaving the home un-marketable.

53.
Plaintiff's failure to exercise reasonable care in the construction of the deck and slab in accordance with the Gwinnett County Building Code is gross negligence and has left Defendant and Defendant’s family exposed to possible life threatening hazards, which resulted from violations of the Gwinnett County Code, and could subject Defendant to penalties, fines and other such punishment including a requirement to demolish each structure and rebuild. (Defendant’s Exhibits “G”, “H”)

54.
Harm to Defendant's residence and exposure to safety hazards as well as possible Code Enforcement Violations, which effect the marketability of the home all resulted from Defendant's reasonable and justifiable reliance on Plaintiff's undertaking to render services.

55.
Thus far Defendant’s damages to repair or replace exceeds the estimated price of $4,850.00 (Defendant’s Exhibit “B”) and upon further evidence and discovery could range as much as double that amount, again based on the “last man” concept. The amount of damages to which Defendant is entitled will be proven at trial.

56.
If Defendant is entitled to compensation for gross negligence under Georgia Law, Defendant asks this court for compensatory and punitive damages in any form Georgia law allows in an amount equal to the maximum amount allowable by law.

COUNT 3 – Negligent
Installation of Home Improvements
57.
Defendant repeats and re-alleges each and every allegation contained in all paragraphs of this Answer and Counterclaim with the same force and effect as if set forth herein.

58.
In Plaintiff's installation of home improvements on Defendant’s residence, Plaintiff had the legal duty and 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 or craft.

59.
Plaintiff failed to fulfill its obligation to use a reasonable degree of care, skill and ability when attempting to install home improvements onto Defendant’s residence. As a result, Plaintiff's attempted installation of home improvements onto Defendant's residence was negligent. (Plaintiff’s Exhibit “A” and Defendant’s Exhibit “C”, “D”, “E”)

60.
Plaintiff's representative specifically stated that rotten wood removed would be replaced with wood so that the vinyl siding would be nailed into wood at these places.

61.
Even though many rotten boards on Defendant's residence were removed, Plaintiff failed to replace old boards with new wood. Instead Plaintiff used 1/4" foam pieces as no wood was delivered for this purpose. (Defendant’s Exhibit “K”)

62.
Even though the contract specifically calls for no work on the inside sheet-rock, (Plaintiff’s Exhibit “A”) Plaintiff's contract also calls for all work to be done in a "good" manner.

63.
Plaintiff failed to use reasonable care installing two new windows “beside the fireplace”, excessively damaging the sheet rock and then failed to correct the damage. (Plaintiff’s Exhibit “A” and Defendant’s Exhibit “C”, “D”, “E”)

64.
Plaintiff failed to do "good work" on the windows installed in “the stonework”, negligently leaving the mortar unfinished. (Plaintiff’s Exhibit “A” and Defendant’s Exhibit “C”, “D”, “E”)

65.
Plaintiff failed to use reasonable care when installing the “gutters” in that there are dramatic leaks between the gutters and fascia board. (Plaintiff’s Exhibit “A”)

66.
Plaintiff failed to do good work negligently leaving installed no less than three (3) cut “screens”, it had promised to replace.(Plaintiff’s Exhibit “A”) (Defendant’s Exhibit “C”, “D”, “E”)

67.
Plaintiff's representative made materially false and misleading statements and omissions breaching its duty of good faith and fair dealing causing Defendant damages. (Defendant’s Exhibit “F”)

68.
Said negligence was the direct cause of Defendant's damages, which includes among other things the loss in market value of Defendant's residence and the cost of repairing the negligently installed items.

69.
As a result of Plaintiff’s negligence, Defendant has suffered damages.  

70.
Thus far Defendant’s damages to repair or replace exceed the estimated price of $2,100.00 (Defendant’s Exhibit “B”) and upon further evidence and discovery could range as much as double that amount, again based on the “last man” concept. The amount of damages to which Defendant is entitled will be proven at trial.

71.
If Defendant is entitled to compensation for gross negligence under Georgia Law Defendant asks this court for compensatory and punitive damages in any form Georgia law allows in an amount equal to the maximum amount allowable by law.

COUNT 4 – Misrepresentation
72.
Defendant repeats and re-alleges each and every allegation contained in all paragraphs of this Answer and Counterclaim with the same force and effect as if set forth herein.

73.
Plaintiff’s representative presented himself as one knowledgeable and experienced in the window industry.

74.
During the initial sales meeting, around the end of July 2004 or the beginning of August 2004 Plaintiff's representative presented the "Windjammer Series 60" window as the highly suggested replacement window for Defendant's residence.

75.
Plaintiff's representative stated the "Series 60 windows would come with low-e and argon gas as standard features. (Defendant’s Exhibit “F”)

76.
On or about a few days prior to the contract signing date of August 23, 2004, during a conversation with Defendant's spouse, Plaintiff's representative stated, "the Series 60 windows were no longer available" and "the Series 40 windows are the same" and "have taken the place of the Series 60."

77.
Plaintiff's representative knew or should have known that his statement was not true. The "Windjammer Series 60" is still advertised on the Ted Lansing Web Site as available and the Series 60 is clearly different from the Series 40.

78.
On the day of the contract signing, August 23, at the insistence of Defendant, Plaintiff's representative presented a window he identified as an actual Series 40 window and stated again that the Series 40 was the same as the Series 60.

79.
Plaintiff's representative again stated the "windows would come with low-e and argon gas." (Defendant’s Exhibit“F”)

80.
At the time, Defendant relied on the statements that the Series 40 and Series 60 were the same and would come with the same features and signed the contract.

81.
Plaintiff's contract shows "Series 40 windows" with "argon gas" were contracted for. (Plaintiff’s Exhibit “A”) (Defendant’s Exhibit “F”)

82.
Plaintiff's representative knew that Defendant was relying on this statement when signing the contract.

83.
The windows delivered and installed by Plaintiff do not have “argon gas” (Plaintiff Exhibit "I") and lack some of the features of the Series 60.

84.
Plaintiff knows the windows were not ordered to have argon gas as contracted for. (Plaintiff Exhibit "I")

85.
Plaintiff has made no effort to correct the lack of argon gas.

86.
Defendant has been defrauded by Plaintiff's representative’s use of a "bait and switch" tactic, which is an act of misrepresentation and is an unfair business practice.

87.
Plaintiff's representative, who of all people should know, will not even admit he ordered the windows without argon gas or that the windows even lack argon gas. In fact, as late as January 4, 2005, Plaintiff's representative would only state in his letter, "It has come to my attention that you [sic] new windows may or may not have argon gas.” (Defendant’s Exhibit "F")

88.
Plaintiff's representative has even taunted the Defendant regarding the lack of argon gas in his letter stating, "it seems that there is no practical way to test the windows to definitively determine whether the gas was actually installed in the windows." (Defendant's Exhibit "F")

89.
Defendant, an Engineer by trade, believes differently, and if need be Defendant will have the windows tested either at Georgia Tech or Auburn University as both institutions have the capacity to test for the presence of argon gas. In addition, the National Fenestration Rating Council, the vinyl window industry governing body, has at least 13 testing laboratories throughout the United States which have the capacity to test for the presence of argon gas.

90.
Defendant actually wanted the Series 60 windows and Defendant was quoted a price of $4,250.00 (Defendant’s Exhibit “B”) for the Series 60, which did not change when Plaintiff's representative switched to the Series 40 windows.

91.
Plaintiff's representative by making materially false and misleading statements and omissions has breached its duty of good faith and fair dealing. Said breach caused Defendant damages.

92.
Defendant has suffered damages relying on the false statements and the actions of Plaintiff's representative in that the Series 40 windows are of lesser grade than the Series 60 windows and the windows presently installed do not have argon gas. Defendant did not get the benefit of what was contracted for. Defendant does not have the enhanced sound and energy savings benefits of the argon gas as the literature and brochures promised.

93.
For the perpetuation of this civil fraud by misrepresentation and other unfair business practices against Defendant, Defendant asks this court for compensatory and punitive damages in any form Georgia law allows in an amount equal to the maximum amount allowable by law. The estimated price to replace the windows is $4,250.00. (Defendant’s Exhibit “B”)

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