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IN THE SUPERIOR COURT OF COBB COUNTY
STATE OF GEORGIA
ZACH MINOR d/b/a JAMMIC, INC.
Plaintiff,
V. Civil Case No.09104391 - 34 - 34
KENNEDY INVESTMENTS, LLLP
Defendant,
V.
BETTY HARPER, HOWARD HARPER,
PEAK CONTRACTING, INC.,AAA RESTORATION COMPANY,
AND BUILDPROOF A/K/A RESTOREPROOF, LLC
Third Party Defendant(s)
__________________________________________/
AMENDED COUNTERCLAIMS OF DEFENDANT KENNEDY INVESTMENTS,
LLLP, AND AMENDED THIRD PARTY COMPLAINT
COMES NOW, Defendant and Counterclaim Plaintiff Kennedy Investments,
LLLP (Kennedy) and asserts and preserves the following Counterclaims against
Plaintiff, and Defendant, Kennedy Investments, LLLP has filed his Amended Third Party
Complaint against Betty Harper, Howard Harper, and Peak Contracting, Inc., AAA
Restoration Company., and Buildproof a/k/a Restoreproof, LLC.
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Nature of the Action
1.
Kennedy brings this action to recover damages for material breach of contract, for
indemnification under that contract, and for its attorneys fees and costs from Zach Minor
d/b/a JAMMIC, INC. (Minor).
2.
Minor materially breached its contract with Kennedy, among other things, failing
to pull and close permits, refusing to perform as agreed to on the contract under Scope of
Work, a no Show or walking off an agreed upon project, not completing a project or
cleaning up afterwards. Minor also exposed Kennedy to potential liability by failing to
properly pull, and close permits, and caused Kennedy to incur significant costs, including
attorneys fees, to investigate, address, and remedy Minors failure to perform the work it
had agreed to based upon the contract.
3.
Kennedy seeks to recover damages caused by Minors breached and seeks
indemnification for the losses it suffered as a result of Minors conduct. In addition,
Kennedy seeks to recover its reasonable expenses of litigation and attorneys fees
pursuant to its contract with Minor and O.C.G.A. 13-6-1.
The Parties
4.
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Kennedy Investments, LLLP is a Georgia Corporation with its principal place of
business at 2950 Robinson Forest Road, Powder Springs, GA 30127, in Cobb County,
Georgia.
5.
Zach Minor d/b/a JAMMIC, INC. upon information and belief maintains an
office at 840 Cog Hill, McDonough GA 30253. This court has personal jurisdiction
because the defendant resides in Cobb County, Georgia, and the JAMMIC, INC.
conducts business in Cobb County, Georgia.
Jurisdiction and Venue
6.
This Court has personal jurisdiction and venue over Kennedys Counterclaims
because Minor has voluntarily availed itself of this Court by filing a Complaint against
Kennedy, and because the following counterclaims are either compulsory or permissive.
Minor also consented to the jurisdiction and venue in this Court pursuant to its contract
with Kennedy.
Factual Background
7.
On or about July 1, 2008, Counterclaimant Kennedy Investments, LLLP entered
into an agreement with Betty Harper and Howard Harper to rebuild their home located at
250 Powell St, Atlanta, GA 30316; attached hereto as Exhibit B.
8.
Kennedy exclusively developed this project due to a natural disaster tornado,
which occurred on that property on or about March 14, 2008.
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9.
The claim report number was 0108704669 being made to All State Insurance by
owner Betty Harper, under policy # 931-030-453 and Popular Mortgage Servicing, Inc.
Loan #154875.
10.
On or about December 12, 2009 Minor entered into a binding agreement with
Kennedy acting as agent and contractor, hereof collectively as Exhibit A.
11.
In Exhibit A, under paragraph C.(1)(2)(6) Parties specifically agreed that that
Sub (a/k/a JAMMIC, INC. ) understands that he will be terminated from any project
with no compensation for the following breaches:
a. Paragraph C. (1) Refusing to perform as agreed to on the contract under
SCOPE OF WORK
b. Paragraph C. (2) NO SHOW or walking off an agreed upon project.
c. Paragraph C. (6) Not completing a project or cleaning up afterwards.
d. Further under paragraph D.(3) Parties specifically agreed that that Sub (aka
Third PartyDefendant JAMMIC, INC. ) understands that he will be
terminated from any project with no compensation and also be fined $250 per
day for the following breaches:
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e. Paragraph C. (1) Refusing to perform as agreed to on the contract under
SCOPE OF WORK
f. Paragraph C. (2) NO SHOW or walking off an agreed upon project.
g. Paragraph C. (6) Not completing a project or cleaning up afterwards.
12.
Minor has breached the above stated deficiencies for well over 180 days since
they stopped working on or about after March 17, 2009.
13.
The total fines due as a result of the breach caused by Minor exceed an amount
$135,000, which is due to Kennedy pursuant to the contract.
14.
On or about January 20, 2009, Betty Harper and Howard Harper received an
installment check upon belief and information an amount of twenty thousand dollars
($20,000.00) from their mortgage company made payable to Kennedy Investments,
L.L.L.P. and Betty Harper and Howard Harper, in order to make payments towards the
completion of this new construction project.
15.
On or about February 10, 2009, JAMMIC, INC. executed into an agreement with
Kennedy Investments LLLP.
16.
JAMMIC, INC acted as agent and contractor for Kennedy Investments LLLP.
The agreement spelled out the terms and consequences of a breach in contract along with
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related supporting documents, which isattached hereto and made a part hereof
collectively as Exhibit A.
17.
Both Plaintiff and Defendant were certified by the City of Atlanta Bureau of Permits, all
of which are attached hereto and made a part hereof collectively as Exhibit D.
18.
Kennedy Investments LLLP paid JAMMIC, INC. in the amount of $5,400.00 for
work the company performed on the foundation of said project. This money was not
remitted to the account of Third Party Defendant AAA RESTORATION COMPANY,
which the assignment was never made a part of this agreement nor, as so indicated by the
signed payroll sheet, attached hereto and made a part hereof as Exhibit E.
19.
On or about March 04, 2009 Betty Harper and Howard Harper received another
installment check of ($20,005.95) twenty thousand and five dollars and 95/100 cents
from their mortgage company made payable to the order of Kennedy Investments LLLP
and Betty Harper and Howard Harper, in order to make payments towards the completion
of this new construction project.
20.
From this check, Kennedy Investments LLLP paid JAMMIC, INC. the amount of
($20,005.95) twenty thousand and five dollars and 95/100 cents for work his company
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performed on the interior framing, roof framing, decking, roof shingles, HVAC/Furnace,
Rough Utilities, siding and windows of said project.
21.
These monies were not remitted to the account of AAA RESTORATION
COMPANY, which assignment was never made a part of this agreement, as so indicated
by the signed payroll sheet, attached hereto and made a part hereof as Exhibit E.
22.
Allstate Insurance escrowed funds necessary to build the house through Popular
Mortgage and Litton Loan Services, which made payments to Betty Harper and Howard
Harper totaling approximately $40,010.00 up through March 4, 2009.
23.
These funds were used to pay for labor and materials to build the subject property
through March 17, 2009.
24.
Kennedy Investments LLLP has paid subcontractors and suppliers towards the
completion of said project from his own personal funds, combined with funds provided
by Allstate Insurance Company under said claim, as so witnessed by Howard Harper in
an Affidavit and other related documents attached hereto and made a part hereof as
Exhibit G.
25.
On or about March 17, 2009 Allstate Insurance withdrew further funding of said
project until the project was completed.
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26.
JAMMIC, INC. ceased all work and withdrew their company permits; demanding
full payment for work they have not fully completed as described in the attached
inspection report by a state licensed home inspector (Jerry Pfeufer d/b/a Marietta
Inspections Services, LLC) as to the quality of work performed, attached hereto and
made a part hereof as Exhibit H.
27.
Kennedy Investments LLLP had a fiduciary responsibility and was under contract
to complete this project.
28.
Kennedy Investments LLLP used monies allotted to him to pay for completed
work only and move the project forward.
29.
The contract Minor signed with Kennedy Investments LLLP, specifically detailed
that the ability to pay was directly correlated to funds received from the insurance and
mortgage companies and Minors ability to perform as agreed.
30.
Minor still refused to perform without a proper legal excuse.
31.
Kennedy Investments LLLP continued to build the house using their own personal
funds and on or about April 10, 2009, had completed at least 80% of the scope of work.
32.
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Kennedy Investments LLLP submitted a request for Allstate Insurance to issue a partial
payment so that Kennedy Investments LLLP could pay for the labor & materials for work
already completed with his own funds.
33.
On or about July 22, 2009 Allstate Insurance sent a partial payment to Betty
Harper and Howard Harper, contemporaneously escrowed those funds with a company
called BUILDPROOF a/k/a RESTOREPROOF, LLC, to pay for completed work.
34.
The client entered into a user agreement with BUILDPROOF a/k/a
RESTOREPROOF, LLC, of which agreement specifically allows them to withhold funds
whenever there are noted deficiencies as to the quality of workmanship performed by
plaintiff in this matter.
35.
On September 4, 2009 an independent inspection was performed by a state licensed
home inspector (Jerry Pfeufer d/b/a Marietta Inspections Services, LLC) as to the quality
of your work performed by plaintiff, of which report is attached hereto and made a part
hereof as Exhibit H.
36.
Besides the deficiencies noted in his inspection, defendant has been forced to pay
another contractor to repair the following items that was supposed to be accomplished by
the plaintiff in this matters as follows:
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1. Replace 2x6 ceiling joist with 2x8 below HVAC
2. Properly install rafter ties
3. Finish window install
4. Finish siding install
5. Install 1x4 framing in bathroom wall to properly secure bathroom tub (1 gap left
between wall and bathroom tub)
37.
Third Party Plaintiff KENNEDY INVESTMENTS, LLLP advised plaintiff that he
was in full breach of a binding contract signed amongst the parties To complete this
project in full compliance with the Atlanta Land Development Code as amended, the
Cabbagetown Landmark District regulations and the Atlanta Urban Design Commission
Staff Report, dated October 8, 2008 and November 12, 2008 and the architectural design
and site plans.
38.
Plaintiff has refused to perform the above scope of work and cure the deficiencies
noted by a state licensed home inspector (namely Jerry Pfeufer d/b/a Marietta Inspections
Services, LLC) as to the quality of work, without sufficient legal excuse.
39.
Contemporaneously on or about September 5, 2009 Third Party plaintiff mailed
Third Party Defendant a deficiency notice by certified mail that specifically addressed
such deficiencies with a sixty (60) day right to cure, less the client back-charge plaintiff
and take all legal measures necessary to recover monies owed.
40.
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On or about September 15, 2009 Third Party Plaintiff Kennedy conducted an
inspection with Allstate Insurance agent, Brian Pavlick and Third Party Defendant(s)
ZACH MINOR d/b/a JAMMIC, INC. , and Michael Mccune (Owner of Jammic, Inc.) to
address the deficiencies noted by the state inspector and the homeowners. The Third
Party Defendants still refused to address these deficiencies at that time.
41.
In accordance with the contract signed by both Parties, under paragraph C, marked
COMPENSATION, there was to be a (10%) ten percent holdback each billing cycle
until final payment was received from homeowner and client Betty Harper.
42.
As of this amended filing the amount totals ($3,805.00) three thousand eight
hundred and five dollars, of which amount should be offset by any claim alleged by
Plaintiff.
43.
Furthermore, under paragraph marked DISCLAIMER the parties agreed that Third
Party Plaintiff KENNEDY INVESTMENTS, LLLP has made NO WARRANTIES
regarding any present and / or future outcomes that may be achieved as a result of any
and all strategies, assumptions, facts, figures and projections as to its ability to
successfully develop its products and services.
44.
The projections reflected are only relative to the HOMEOWNERS FULL
UNINTERRUPTED COMPLIANCE [If the court will please refer to the CHANGE OF
SCHEDULE LOG, attached hereto, and made a part hereof as Exhibit J.
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45.
Exhibit J demonstrates Betty Harper and Howard Harper have been
NONCOMPLIANT AND DISTRACTING ALL THROUGHOUT THIS PROJECT ].,
and is also relative TO THE DISPERSEMENT OF FUNDS FROM POPULAR
MORTGAGE,..and does not bind Third Party Plaintiff KENNEDY INVESTMENTS,
LLLP for any damages whatsoever, whether direct, consequential, incidental, special,
material change in the economy or claim for attorney fees.
46.
As of July 22, 2009, Betty Harper and Howard Harper have secured the last draws from
Allstate in the amount of ($29,665.00) Twenty Nine Thousand Six Hundred & Sixty Five
Dollars---00/100 and escrowed this fund to a company called BUILDPROOF aka
RESTOREPROOF LLC.
47.
On or about September 9, 2009, Betty Harper and Howard Harper have also
received an additional ($20,181.17) Twenty Thousand One Hundred & Eighty One
Dollars---17/100 to close out this project.
48.
On or about October 5, 2009, Betty Harper and Howard Harper have not released
those funds to Third Party Plaintiff KENNEDY INVESTMENTS, LLLP to finish
building their home.
49.
Betty Harper and Howard Harper are on the belief that they have the right to
transfer such funds already earned by Defendant to the Plaintiff without assignment;
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50.
Bryan Pavlick has defended this position and interfered with Third Party Plaintiff
KENNEDY INVESTMENTS, LLLP right to funds owed to defendant under the contract
by arguing on behalf of the homeowners in discussion with escrow agent Brian Hayes,
and advocating that defendants earned money should be transferred to the same plaintiff
contractors that have been deficient in properly building the home in the first place.
51.
As of this Amended Complaint, KENNEDY INVESTMENTS, LLLP has
performed all the terms and conditions of said agreement that is required, and Third
Party Defendant JAMMIC, INC. has refused to comply to the terms of the agreement.
52.
This original complaint was filedpro se, and subsequently the Complaint has
been amended by counsel. In the original complaint, Exhibits C, F, and I were omitted,
and keeping with the original, Counsel has also omitted these exhibits, so there is no error
in these Exhibits missing from the complaint.
COUNT I BREACH OF CONTRACT
53.
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 1-52 of its Counterclaims as if fully restated herein.
54.
ZACH MINOR d/b/a JAMMIC, INC. entered into a valid and enforceable
contract with Kennedy.
55.
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ZACH MINOR d/b/a JAMMIC, INC materially breached the contract with
Kennedy, by among other things, failing to properly pull and close permits, failing to
adhere to local building codes, and complete work that was contracted to be completed.
56.
As a direct and proximate result of these material breaches, Kennedy has incurred
substantial damages, the amount of which shall be proven at trial.
COUNT II - INDEMNIFICATION
57.
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 1-52 of its Counterclaims as if fully restated herein.
58.
Pursuant to its contract, Minor agreed to indemnify Kennedy for any and all loses,
damages, costs, or liabilities incurred as a result of Minors acts and omissions in its
performance of the said agreement.
59.
Kennedy has suffered, and continues to suffer, losses and damages, and has
incurred liabilities and costs for which Minor has contracted to indemnify Kennedy.
60.
The costs and expenses Kennedy has paid to address the liabilities, losses,
damages, and costs incurred as a result of Minors acts and omissions are reasonable in
relation to those liabilities, losses, damages, and costs.
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61.
Kennedy is therefore entitled to indemnification from Minor in an amount shall be
proven at trial.
COUNT III-QUANTUM MERUIT
62.
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 1-52 of its Counterclaims as if fully restated herein.
63.
Counter-claimant, Kennedy is equitably entitled to monies from Plaintiff, Minor.
64.
Plaintiff, Minor received monies from Betty Harper and Howard Harper, but
failed to complete the work as specified per the contract
65.
Plaintiff, Minor deprived Counter-claimant, Kennedy of such use of said monies.
66.
Counter-claimant, Kennedy is entitled to monies already paid to Minor, or have
the work completed pursuant to the contract
THEREFORE, pursuant to the doctrine of quantum meruit, Counter-claimant,
Kennedy is entitled to an award of damage in its favor against Plaintiff, Minor in an
amount to be proven at trial.
COUNT IV- UNJUST ENRICHMENT
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67.
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 1-52 of its Counterclaims as if fully restated herein.
.
68.
Counter-claimant, Kennedy with the explicit understanding, entered into a legally
binding contract with Plaintiff, Minor.
69.
Plaintiff, Minor was cognizant that the contract was binding, and that the work
was to be performed per the Georgia building code.
70.
. Plaintiff, Minor was unjustly enriched by not performing the work, but
receiving remuneration as set forth by the contract.
71.
Plaintiff, Minor has reaped the benefits of the monies, but Defendant, Kennedy
has not enjoyed the fruits of his labor.
72.
Therefore, Defendant, Kennedy is entitled to a judgment in his favor and an
award of damages for unjust enrichment against Plaintiff, Minor, in an amount to be
determined at trial.
COUNT V ATTORNEYS FEES
73.
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 1-51 of its Counterclaims as if fully restated herein.
74.
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Minor has acted in bad faith, has been stubbornly litigious, and has caused
Kennedy unnecessary trouble and expenses by, inter alia, acting in bad faith by
participating in the illegal conduct described herein.
75.
Accordingly, Kennedy is entitled to recover its attorneys fees and other
reasonable expenses incurred in connection with this litigation, pursuant to O.C.G.A.
13-6-11.
76.
Kennedy is entitled to prejudgment interest at the applicable legal rate per annum.
PRAYER FOR RELIEF
WHEREFORE, Kennedy respectfully prays for judgment as follows:
1. that judgment be entered in favor of Kennedy against Minor on all claims for
relief;
2. that Minor take nothing by its Complaint;
3. that judgment be entered in favor of Kennedy on all of its Counterclaims
against Minor;
4. that Kennedy be awarded its attorneys fees and costs of suit incurred herein;
and
5. that Kennedy be awarded such other and further relief as it deems just and
proper.
This 10th day of June, 2010
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Respectfully submitted:
______________________________Curt B.ThompsonAttorney for PetitionerGSBN: 707663
6320 Glenbrook DriveTucker, Georgia 30084(404) 643-2649 telephone(404) 463-1388 [email protected]
AMENDED THIRD PARTY COMPLAINT
77.
COMES NOW, Plaintiff Kennedy Investments, LLLP (Kennedy) complains of
third-party Defendant, BUILDPROOF A/K/A RESTOREPROOF, LLC (hereinafter
BUILDPROOF), Betty Harper, Howard Harper, Peak Contracting, INC., and AAA
Restoration Company and states as follows:
Nature of the Action
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78.
Kennedy brings this petition to force Buildproof A/K/A RESTOREPROOF, LLC
to interplead the escrow funds of this said Complaint with the Court registry, as well as
recover funds that were paid improperly to AAA Restoration Company, and Peak
Contracting, Inc. Furthermore to recover monies from Betty and Howard Harper that was
never paid to Plaintiff pursuant to the contract.
The Parties
79.
Kennedy Investments, LLLP is a Georgia Corporation with its principal place of
business at 2950 Robinson Forest Road, Powder Springs, GA 30127, in Cobb County,
Georgia.
80.
BUILDPROOF A/K/A RESTOREPROOF, LLC is an Arizona corporation, with
its principal place of business at 5635 North Scottsale Road, Suite 140, Scottsdale,
Arizona 85250. Upon a check with the Georgia Secretary of State, this corporation is not
authorized nor registered to do business in the State of Georgia.
81.
This court has personal jurisdiction over BUILDPROOF A/K/A
RESTOREPROOF, LLC because the defendant elected to do business in Cobb County,
Georgia, even though it lacks the proper registration.
82.
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Upon belief and information, Defendants Betty and Howard Harper are currently
residing at 250 Powell St, Atlanta, GA 30316, which is in Fulton County, Georgia.
83.
Peak Contracting, Inc. is a Georgia corporation that maintains an office at. 2815
Anodover Way, Woodstock GA 30189, which is located in Cherokee County, Georgia.
84.
AAA Restoration Company is a Georgia corporation that maintains an office at.
164 Andrews Drive, Suite 200, Stockbridge, GA 30281, which is located in Henry
County, Georgia.
Jurisdiction and Venue
85.
This Court has personal jurisdiction and venue over Kennedys Counterclaims
because Minor has voluntarily availed itself of this Court by filing a Complaint against
Kennedy, and because the following counterclaims are either compulsory or permissive.
Minor also consented to the jurisdiction and venue in this Court pursuant to its contract
with Kennedy.
FACTUAL BACKGROUND
86.
On or about July 1, 2008, Counterclaimant Kennedy Investments, LLLP
entered into an agreement with Betty Harper and Howard Harper to rebuild their home
located at 250 Powell St, Atlanta, GA 30316; attached hereto as Exhibit B.
87.
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Kennedy exclusively developed this project due to a natural disaster tornado,
which occurred on that property on or about March 14, 2008.
88.
The claim report number was 0108704669 being made to All State Insurance by
owner Betty Harper, under policy # 931-030-453 and Popular Mortgage Servicing, Inc.
Loan #154875.
89.
On or about December 12, 2009 Minor entered into a binding agreement with
Kennedy acting as agent and contractor, hereof collectively as Exhibit A.
90.
In Exhibit A, under paragraph C.(1)(2)(6) Parties specifically agreed that that
Sub (a/k/a JAMMIC, INC. ) understands that he will be terminated from any project
with no compensation for the following breaches:
h. Paragraph C. (1) Refusing to perform as agreed to on the contract under
SCOPE OF WORK
i. Paragraph C. (2) NO SHOW or walking off an agreed upon project.
j. Paragraph C. (6) Not completing a project or cleaning up afterwards.
k. Further under paragraph D.(3) Parties specifically agreed that that Sub (aka
Third PartyDefendant JAMMIC, INC. ) understands that he will be
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terminated from any project with no compensation and also be fined $250 per
day for the following breaches:
l. Paragraph C. (1) Refusing to perform as agreed to on the contract under
SCOPE OF WORK
m. Paragraph C. (2) NO SHOW or walking off an agreed upon project.
n. Paragraph C. (6) Not completing a project or cleaning up afterwards.
91.
Minor has breached the above stated deficiencies for well over 180 days since
they stopped working on or about after March 17, 2009.
92.
The total fines due as a result of the breach caused by Minor exceed an amount
$135,000, which is due to Kennedy pursuant to the contract.
93.
On or about January 20, 2009, Betty Harper and Howard Harper received an
installment check upon belief and information an amount of twenty thousand dollars
($20,000.00) from their mortgage company made payable to Kennedy Investments,
L.L.L.P. and Betty Harper and Howard Harper, in order to make payments towards the
completion of this new construction project.
94.
On or about February 10, 2009, JAMMIC, INC. executed into an agreement with
Kennedy Investments LLLP.
95.
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JAMMIC, INC acted as agent and contractor for Kennedy Investments LLLP.
The agreement spelled out the terms and consequences of a breach in contract along with
related supporting documents, which isattached hereto and made a part hereof
collectively as Exhibit A.
96.
Both Plaintiff and Defendant were certified by the City of Atlanta Bureau of Permits, all
of which are attached hereto and made a part hereof collectively as Exhibit D.
97.
Kennedy Investments LLLP paid JAMMIC, INC. the amount of $5,400.00 for
work the company performed on the foundation on said project. This money was not
remitted to the account of Third Party Defendant AAA RESTORATION COMPANY,
which assignment was never made a part of this agreement nor, as so indicated by the
signed payroll sheet, attached hereto and made a part hereof as Exhibit E.
98.
On or about March 04, 2009 Betty Harper and Howard Harper received another
installment check of ($20,005.95) twenty thousand and five dollars and 95/100 cents
from their mortgage company made payable to the order of Kennedy Investments LLLP
and Betty Harper and Howard Harper, in order to make payments towards the completion
of this new construction project.
99.
From this check, Kennedy Investments LLLP paid JAMMIC, INC. the amount of
($20,005.95) twenty thousand and five dollars and 95/100 cents for work his company
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performed on the interior framing, roof framing, decking, roof shingles, HVAC/Furnace,
Rough Utilities, siding and windows of said project.
100.
These monies were not remitted to the account of AAA RESTORATION
COMPANY, which assignment was never made a part of this agreement, as so indicated
by the signed payroll sheet, attached hereto and made a part hereof as Exhibit E.
101
Allstate Insurance escrowed funds necessary to build the house through Popular
Mortgage and Litton Loan Services, which made payments to Betty Harper and Howard
Harper totaling approximately $40,010.00 up through March 4, 2009.
102
These funds were used to pay for labor and materials to build the subject property
through March 17, 2009.
103
Kennedy Investments LLLP has paid subcontractors and suppliers towards the
completion of said project from his own personal funds, combined with funds provided
by Allstate Insurance Company under said claim, as so witnessed by Howard Harper in
an Affidavit and other related documents attached hereto and made a part hereof as
Exhibit G.
104
On or about March 17, 2009 Allstate Insurance withdrew further funding of said
project until the project was completed.
105
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JAMMIC, INC. ceased all work and withdrew their company permits; demanding
full payment for work they have not fully completed as described in the attached
inspection report by a state licensed home inspector (Jerry Pfeufer d/b/a Marietta
Inspections Services, LLC) as to the quality of work performed, attached hereto and
made a part hereof as Exhibit H.
106
Kennedy Investments LLLP had a fiduciary responsibility and was under contract
to complete this project.
107
Kennedy Investments LLLP used monies allotted to him to pay for completed
work only and move the project forward.
108
The contract Minor signed with Kennedy Investments LLLP, specifically detailed
that the ability to pay was directly correlated to funds received from the insurance and
mortgage companies and Minors ability to perform as agreed.
109
Minor still refused to perform without a proper legal excuse.
110
Kennedy Investments LLLP continued to build the house using their own personal
funds and on or about April 10, 2009, had completed at least 80% of the scope of work.
111
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Kennedy Investments LLLP submitted a request for Allstate Insurance to issue a partial
payment so that Kennedy Investments LLLP could pay for the labor & materials for work
already completed with his own funds.
112
On or about July 22, 2009 Allstate Insurance sent a partial payment to Betty
Harper and Howard Harper, contemporaneously escrowed those funds with a company
called BUILDPROOF a/k/a RESTOREPROOF, LLC, to pay for completed work.
113.
The client entered into a user agreement with BUILDPROOF a/k/a
RESTOREPROOF, LLC, of which agreement specifically allows them to withhold funds
whenever there are noted deficiencies as to the quality of workmanship performed by
plaintiff in this matter.
114.
On September 4, 2009 an independent inspection was performed by a state licensed
home inspector (Jerry Pfeufer d/b/a Marietta Inspections Services, LLC) as to the quality
of your work performed by plaintiff, of which report is attached hereto and made a part
hereof as Exhibit H.
115.
Besides the deficiencies noted in his inspection, defendant has been forced to pay
another contractor to repair the following items that was supposed to be accomplished by
the plaintiff in this matters as follows:
6. Replace 2x6 ceiling joist with 2x8 below HVAC
7. Properly install rafter ties
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8. Finish window install
9. Finish siding install
10. Install 1x4 framing in bathroom wall to properly secure bathroom tub (1 gap left
between wall and bathroom tub)
116.
Third Party Plaintiff KENNEDY INVESTMENTS, LLLP advised plaintiff that he
was in full breach of a binding contract signed amongst the parties To complete this
project in full compliance with the Atlanta Land Development Code as amended, the
Cabbagetown Landmark District regulations and the Atlanta Urban Design Commission
Staff Report, dated October 8, 2008 and November 12, 2008 and the architectural design
and site plans.
117
Plaintiff has refused to perform the above scope of work and cure the deficiencies
noted by a state licensed home inspector (namely Jerry Pfeufer d/b/a Marietta Inspections
Services, LLC) as to the quality of work, without sufficient legal excuse.
118
Contemporaneously on or about September 5, 2009 Third Party plaintiff mailed
Third Party Defendant a deficiency notice by certified mail that specifically addressed
such deficiencies with a sixty (60) day right to cure, less the client back-charge plaintiff
and take all legal measures necessary to recover monies owed.
119
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On or about September 15, 2009 Third Party Plaintiff Kennedy conducted an
inspection with Allstate Insurance agent, Brian Pavlick and Third Party Defendant(s)
ZACH MINOR d/b/a JAMMIC, INC. , and Michael Mccune (Owner of Jammic, Inc.) to
address the deficiencies noted by the state inspector and the homeowners. The Third
Party Defendants still refused to address these deficiencies at that time.
120
In accordance with the contract signed by both Parties, under paragraph C, marked
COMPENSATION, there was to be a (10%) ten percent holdback each billing cycle
until final payment was received from homeowner and client Betty Harper.
121
As of this amended filing the amount totals ($3,805.00) three thousand eight
hundred and five dollars, of which amount should be offset by any claim alleged by
Plaintiff.
122
Furthermore, under paragraph marked DISCLAIMER the parties agreed that Third
Party Plaintiff KENNEDY INVESTMENTS, LLLP has made NO WARRANTIES
regarding any present and / or future outcomes that may be achieved as a result of any
and all strategies, assumptions, facts, figures and projections as to its ability to
successfully develop its products and services.
123
The projections reflected are only relative to the HOMEOWNERS FULL
UNINTERRUPTED COMPLIANCE [If the court will please refer to the CHANGE OF
SCHEDULE LOG, attached hereto, and made a part hereof as Exhibit J.
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124
Exhibit J demonstrates Betty Harper and Howard Harper have been
NONCOMPLIANT AND DISTRACTING ALL THROUGHOUT THIS PROJECT ].,
and is also relative TO THE DISPERSEMENT OF FUNDS FROM POPULAR
MORTGAGE,..and does not bind Third Party Plaintiff KENNEDY INVESTMENTS,
LLLP for any damages whatsoever, whether direct, consequential, incidental, special,
material change in the economy or claim for attorney fees.
125
As of July 22, 2009, Betty Harper and Howard Harper have secured the last draws from
Allstate in the amount of ($29,665.00) Twenty Nine Thousand Six Hundred & Sixty Five
Dollars---00/100 and escrowed this fund to a company called BUILDPROOF aka
RESTOREPROOF LLC.
126
On or about September 9, 2009, Betty Harper and Howard Harper have also
received an additional ($20,181.17) Twenty Thousand One Hundred & Eighty One
Dollars---17/100 to close out this project.
127
On or about October 5, 2009, Betty Harper and Howard Harper have not released
those funds to Third Party Plaintiff KENNEDY INVESTMENTS, LLLP to finish
building their home.
128
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Betty Harper and Howard Harper are on the belief that they have the right to
transfer such funds already earned by Defendant to the Plaintiff without assignment;
129
Bryan Pavlick has defended this position and interfered with Third Party Plaintiff
KENNEDY INVESTMENTS, LLLP right to funds owed to defendant under the contract
by arguing on behalf of the homeowners in discussion with escrow agent Brian Hayes,
and advocating that defendants earned money should be transferred to the same plaintiff
contractors that have been deficient in properly building the home in the first place.
130
Third Party Plaintiff KENNEDY INVESTMENTS, LLLP believes that the
subject property has been unusually corrupted by numerous delays and interference
beyond his control as a result of Betty Harper and Howard Harper.
131
The project was developed initially with Third Party Defendant Jeff Buffington
and Peak Contracting.
132
Third Party Defendant Peak Contracting has not performed after being given an
initial draw of $30,008.94 from Popular Mortgage, as evidenced by the attached letter
from Allstate Insurance.
133
This event is unfortunate and has nothing to do with the performance and
obligations of contractor and Third Party Plaintiff KENNEDY INVESTMENTS, LLLP
under the agreement and is completely beyond his control.
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134
Third Party Plaintiff KENNEDY INVESTMENTS, LLLP attempted to assume
the role of agent and contractor using his own funds, when there was no legal obligation
to do so.
135
This further outlay of personal funds should add further proof that he had nothing
to do with Third Party Defendant Peak Contracting mishandling of funds,
COUNT I-INTERPLEADER
136
Kennedy is the both the Defendant and Counterclaimant regarding the remaining
funds currently being held by BUILDPROOF A/K/A RESTOREPROOF, LLC. Plaintiff
believes he is entitled to said funds, but wishes for the Court to make a judicial
determination at a future date.
137
The monies in dispute belong with this Honorable Court rather than an entity that
is not even authorized to conduct said business in the State of Georgia.
138
Pursuant to O.C.G.A. 23-3-01, Kennedy has in no way colluded with party to
this above styled action concerning the matters of this cause. Defendant, Counter-
claimant, and Plaintiff, Kennedy has not, and will not be indemnified in any manner by
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any party. Kennedy has filed this petition in interpleader of its own free will to avoid
multiple liability and unnecessary suits and incidental costs to him.
139
Kennedy has not unreasonably delayed in filing this action for interpleader.
140
As of this filing, Kennedy has not received an accounting of the remaining monies
purported to be held by BUILDPROOF A/K/A RESTOREPROOF, LLC.
WHEREFORE, Kennedy Investments requests that Defendant, BUILDPROOF
A/K/A RESTOREPROOF, LLC be cited to appear and answer herein, this Honorable
Court authorize BUILDPROOF A/K/A RESTOREPROOF, LLC to tender into the
Courts registry any monies being held related to this Complaint.
COUNT II BREACH OF CONTRACT
141
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 75-135 of its Amended Third Party Complaint as if fully restated herein.
142
Betty Harper and Howard Harper entered into a valid and enforceable contract
with Kennedy.
143
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Betty Harper and Howard Harper materially breached the contract with Kennedy,
by failure to remit funds for worked performed, and block any further collection efforts to
receive those funds.
144
As a direct and proximate result of these material breaches, Kennedy has incurred
substantial damages, the amount of which shall be proven at trial.
COUNT III - INDEMNIFICATION
145
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 75-135 of its Amended Third Party Complaint as if fully restated herein.
146
Pursuant to its contract, Betty Harper and Howard Harper agreed to indemnify
Kennedy for any and all loses, damages, costs, or liabilities incurred as a result of
Harpers acts and omissions in its performance of the said agreement.
147
Kennedy has suffered, and continues to suffer, losses and damages, and has
incurred liabilities and costs for which Betty Harper and Howard Harper has contracted
to indemnify Kennedy.
148
The costs and expenses Kennedy has paid to address the liabilities, losses,
damages, and costs incurred as a result of Betty Harper and Howard Harpers acts and
omissions are reasonable in relation to those liabilities, losses, damages, and costs.
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149
Kennedy is therefore entitled to indemnification from Betty Harper and Howard
Harper in an amount shall be proven at trial.
COUNT IV-QUANTUM MERUIT
150
Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 75-135 of its Amended Third Party Complaint as if fully restated herein.
151
Kennedy is equitably entitled to monies from Betty Harper, Howard Harper, Peak
Contracting, INC., and AAA Restoration Company
152
Peak Contracting, INC., and AAA Restoration Company received monies from
Betty Harper and Howard Harper, but failed to complete the work as specified per the
contract
153
Betty Harper, Howard Harper, Peak Contracting, INC., and AAA Restoration
Company deprived Kennedy of such use of said monies.
154
Kennedy is entitled to monies already paid to Peak Contracting, INC., and AAA
Restoration Company, or have the work completed pursuant to the contract.
THEREFORE, pursuant to the doctrine of quantum meruit, Kennedy is entitled
to an award of damage in its favor against Betty Harper, Howard Harper, Peak
Contracting, INC., and AAA Restoration Company in an amount to be proven at trial.
COUNT V- UNJUST ENRICHMENT
155
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Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 75-135 of its Amended Third Party Complaint as if fully restated herein.
.
156
Kennedy with the explicit understanding, entered into a legally binding contract
with Betty Harper, and Howard Harper
157
Betty Harper and Howard Harper were cognizant that the contract was binding,
and that the work was to be performed, and paid accordingly per the Georgia building
code.
158
. Betty Harper and Howard Harper were unjustly enriched by not paying for
the work already completed.
159
Betty Harper and Howard Harper have reaped the benefits of the labor and
supplies, but have not paid for accordingly pursuant to the contract.
160
Therefore, Kennedy is entitled to a judgment in his favor and an award of
damages for unjust enrichment against Betty Harper, and Howard Harper, in an amount
to be determined at trial.
COUNT V ATTORNEYS FEES
161
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Kennedy realleges and incorporates by reference as if specifically restated herein
paragraphs 75-135 of its Amended Third Party Complaint as if fully restated herein.
162
Betty Harper, and Howard Harper has acted in bad faith, has been stubbornly
litigious, and has caused Kennedy unnecessary trouble and expenses by, inter alia, acting
in bad faith by participating in the illegal conduct described herein.
163
Accordingly, Kennedy is entitled to recover its attorneys fees and other
reasonable expenses incurred in connection with this litigation, pursuant to O.C.G.A.
13-6-11.
164
Kennedy is entitled to prejudgment interest at the applicable legal rate per annum.
PRAYER FOR RELIEF
WHEREFORE, Kennedy respectfully prays for judgment as follows:
1. that judgment be entered in favor of Kennedy against Betty Harper, and
Howard Harper on all claims for relief;
2. that Betty Harper, and Howard Harper take nothing by its Complaint;
3. that judgment be entered in favor of Kennedy on all of its claims against Betty
Harper, and Howard Harper;
4. that Kennedy be awarded its attorneys fees and costs of suit incurred herein;
and
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5. that Kennedy be awarded such other and further relief as it deems just and
proper.
This 27
th
day of June, 2010
Respectfully submitted:
______________________________Curt B.ThompsonAttorney for PetitionerGSBN: 707663
6320 Glenbrook DriveTucker, Georgia 30084(404) 643-2649 telephone(404) 463-1388 [email protected]
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