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
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
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
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
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.
County Circuit Court case number 14-L-766