Madison County Circuit Judge Dennis Ruth denied a home builder’s motion to dismiss an asbestos attorney’s lawsuit alleging water infiltration in a custom Troy home.
Ruth filed the order denying defendant Kevin Kahrig’s motion to dismiss on Aug. 12.
Defendant Kevin Kahrig filed the motion to dismiss pro se on July 7, calling the lawsuit “frivolous.”
Kahrig claims he built the home as his dream home for him and his family. However, a divorce forced him to sell the home.
During the process of selling the home, Kahrig alleges the plaintiffs “took all the proper steps of buying a home and had all the necessary inspections completed.”
He claims he attended to all items the plaintiffs asked him to fix following the inspections.
“It’s not uncommon for items on a home to exist after one has resided at a home for some time and is one of the reasons caveat emptor became a well known term. Caveat Emptor was established as a foundation for the legal system by the Supreme Court and became a law to avoid frivolous suits like the plaintiffs.
“The Law Caveat Emptor expresses that sellers are not responsible for items that don’t come with a warranty especially when the claim is fourteen months after living in the home and are minor issues that are not abnormal,” the motion states.
“If the law allowed home buyers to purchase homes, then decide after a year they do not want it and return it like it’s a retail store, then the world would be flooded with home buyers and the courts would be flooded with these types of frivolous lawsuits,” it continues.
Kahrig claims the plaintiffs called him in November 2015 to discuss a possible water leak. He said he would try to come look at the leak but was busy with other projects and asked the plaintiffs to get someone else to look at the issue.
“Given the fact that the (sic) was no visible wet drywall or even wet carpet one would consider it to be a minimal issue and would definitely not warrant a lawsuit,” the motion states.
Kahrig adds that the plaintiffs had a “lengthy” mold inspection done on the home prior to the purchase, which allegedly came up negative.
Kahrig argues that the plaintiffs were in financial trouble and needed to resell the house, so they came up with a 127 page report from an inspector “in an attempt to allege other issues.”
“The reality of this case is that the plaintiffs could not succeed in the sale of the other two homes they had been trying to sell for quite some time.
“The plaintiffs actions were consistent with needing out of the house completely and not consistent with anything other than that,” the motion states.
He adds that the plaintiffs allegedly blasted a window with a water hose in an effort to try and force a leak.
Addressing the plaintiffs’ claim for common law fraud, Kahrig argues that he would not have purposely built his dream home with defects.
“The fact that the plaintiffs allege the defendant purposely constructed his own personal dream home with defects on purpose just adds to the long list of frivolous pleadings by the plaintiffs. As the defendant being a twenty three year high end home builder, one might find it a little far fetched (sic) to say he constructed his own house to have defects. A minor leak in a window does not warrant fraud,” the motion states.
Christopher Guinn and his wife filed the lawsuit against Kahrig in April through attorney Jason Johnson of HeplerBroom in Edwardsville. They claim their home at 474 Tyler Dr. in Troy is uninhabitable due to mold. The Guinns purchased the home from Kahrig in September 2014 for $775,000.
Guinn practices at the Simmons firm in Alton.
The Guinns allege a Feb. 22 inspection report listed numerous defects in construction, including improperly constructed exterior walls and deck, which they say caused the water infiltration.
The plaintiffs claim they have been forced to live in a separate location and will continue to do so until the defects are fixed.
Customary Construction is also named as a defendant. It is represented by Michael Hobin of Reed Armstrong in Edwardsville.
Madison County Circuit Court case number 16-L-443