Madison - St. Clair Record

Wednesday, February 26, 2020

Fox Creek subdivision denies liability and counter sues builder of attorney’s sinking $1.1M home

By Heather Isringhausen Gvillo | Aug 18, 2015


Fox Creek subdivision defendants deny liability and countersue a builder accused of constructing a Madison County asbestos attorney’s $1.1 million home was built atop fill dirt in Edwardsville.

Nathaniel Mudd of Maune, Raichle, Hartley, French and Mudd filed the lawsuit on May 29, 2014, against Gary Thiems, Thiems Construction, Fox Creek Realty, Fox Creek Country Club, Fox Creek Estates, Steven Dorsey and Piedmont Development Corp.

Mudd and his wife Michelle seek in excess of $100,000 for costs of engineering reports, repair and installation of piers to stabilize their sinking Edwardsville residence built in 2009.

Mudd claims that when he met with a representative of Fox Creek Realty in 2006, he was told that the property was naturally sloping, and was not told that it had previously contained the deep gully. He claims the property – situated in a cul de sac – had already been cleared of trees and excavated, “and unknown to plaintiff, the previously existing 40’ deep gully on the property had already been filled” with gravel, wood, asphalt, bricks, paper and dirt, the suit states.

According to the complaint, he and his wife purchased the lot for $150,000 on Dec. 26, 2006.

After living in the home for about three years, the Mudds claim they began noticing cracks in the structure and walls of the residence in the spring of 2012, but were assured by builder Dorsey, who operates Piedmont, that the cracks were caused by the expansion and contraction of the trusses.

The plaintiffs accuse Piedmont of failing to obtain proper inspections, compact the fill as necessary to render the property suitable for construction, supervise the work and alert the plaintiffs to the presence of extensive fill on the property when it was discovered.

“Once construction was underway and the foundation was being dug, Dorsey Defendants knew or should have known the Property contained fill dirt of an unusual nature and that the Property would therefore be unsound for the proposed construction activity,” the suit claims. “Nevertheless, Dorsey Defendants breached the above-cited provision, covered up the infirmity of the underlying land, and built the entire residence, instead of contacting Plaintiffs ‘before conditions are further disturbed.’

“Dorsey Defendants constructed the residence on top of fill dirt, rather than natural virgin land, causing the residence to sink into the fill dirt.”

Dorsey and Piedmont filed a counterclaim for contribution from Thiems Construction, Fox Creek Realty, Fox Creek Country Club and Fox Creek Estates.

They claim they are entitled to contribution from the other defendants according to the Illinois Joint Tortfeasor Contribution Act, which provides that a party may seek contribution from others who may be liable for damages.

Fox Creek Country Club also answered the counterclaim on June 29 through attorney Johnathan Brereton-Hubbard of St. Louis, denying the allegations against it.

The counter-defendant asserted seven affirmative defenses against Dorsey and Piedmont Development. Fox Creek Country Club claims it did not cause the plaintiff’s alleged damages. Instead, it argues that the counter-plaintiffs and the Mudds were responsible for the alleged damages.

Fox Creek Country Club also argues that the alleged damages were caused by “other contributory or concurrent conditions or factors including occurrences prior to the events complained of in the amended complaint.”

Fox Creek Realty Inc. answered the counterclaim on June 26 through attorneys Alicia Ragsdale, Christopher Blaesing and Daniel Nester of Bryan Cave in St. Louis, denying the allegations against it.

Fox Creek Realty asserted the same affirmative defenses as Fox Creek Country Club.

In turn, the Fox Creek defendants filed a counterclaim against Dorsey and Piedmont. They claim they were never a party to the sales contract, nor were they the developer, builder or vendor of the home in question.

On June 24, Dorsey and Piedmont Development answered the Fox Creek defendants’ counterclaim through attorneys Gordon Broom, W. Jason Rankin and Matthew Champlin of HeplerBroom in Edwardsville, denying the allegations against them.

Madison County Circuit Court case number 14-L-766

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Organizations in this Story

HeplerBroomBryan CaveMaune, Raichle, Hartley, French and Mudd