Wood River homeowners are asking for partial summary judgment should they prevail in a lawsuit against a contractor for allegedly performing shoddy work and charging them more than they were billed before upgrades were factored in.
Plaintiffs David and Linda George filed a motion for partial summary judgment on April 30 through attorney Andrew Carruthers of HeplerBroom in Edwardsville. They argue that there is no genuine issue of material fact as to defendant Barry Ash’s personal liability should judgment be rendered in the plaintiffs’ favor.
During discovery, a question arose concerning Ash’s personal liability under the parties’ agreement and as the sole owner of Metro Contracting & Design.
In their motion for partial summary judgment, the Georges argue Ash’s personal testimony and sworn deposition demonstrate that Ash should be held liable because he was a party to the contract and accepted at least one personal check in payment for his work.
The plaintiffs filed their original complaint Jan. 13, 2016 against Metro Contracting & Design and Barry Ash of Wood River alleging breach of contract, breach of warranty and fraud. They filed a second amended complaint July 6, 2016.
They claim the defendants reconstructed their home located at 551 N. Third Street in Wood River in a shoddy manner and left the residence in a dangerous condition.
Specifically, the plaintiffs claim they paid for a back-up generator but it was never installed; siding was improperly installed, including missing joint flashings underneath the siding; the main beam of the home had not been installed, compromising the structural integrity of the home; and hardwood flooring was hastily installed, among others.
The Georges allege their home was destroyed by a fire on July 23, 2012. Ash, who has over 30 years of construction experience, allegedly volunteered to help the plaintiffs negotiate with their insurance company to obtain more funding to rebuild their home and furnish their basement. Further, Ash proposed to rebuild the home, and the plaintiffs agreed.
The plaintiffs claim they never executed a written contract for the project. On Oct. 10, 2012, Ash delivered the only written document concerning the project after construction began, which was never signed. Ash allegedly relied on his “person estimates or ‘internal math’ in addition to his experience to come up with a total for the project amounting to $210,688.
The suit states that the project was “fast-paced” and Ash used personal contacts to find materials at lower prices.
“At no time during the project did Ash itemize the cost or otherwise make clear to plaintiffs that certain products or quality of materials would exceed plaintiffs’ budget,” the plaintiffs allege.
The Georges claim Ash kept track of the costs for the project with a spreadsheet and at one point accepted a check addressed to him personally and not Metro.
According to their complaint, the plaintiffs allege the final price billed was in excess of $240,000.
The Georges claim that even after the home was turned over to them in early 2013, the defendants continued performing work until that October.
They further allege the defendants failed to provide receipts, warranty information and owners’ manuals for the items purchased for the home.
The defendants denied liability in their answer to the complaint through attorney Clifford Emons of Alton.
They argue that the plaintiffs requested every material upgrade and change to the construction specifications, causing the excess costs they complain of in their lawsuit.
In regards to the generator, the defendants claim the plaintiffs sought an alternative company to install the generator without providing notice.
“That the plaintiffs should not now be allowed to claim fraud against the defendants for the manner in which the defendants pursued the delivery of a generator, which was on back order, when the defendants needed cash on hand to pay to the manufacturer upon the arrival of the generator when the misunderstanding regarding payment of the generator was caused solely by and at the fault of the plaintiffs contracting with a different company in violation of the contract,” the answer states.
The defendants also filed a counter complaint against the plaintiffs arguing that the total cost of construction of the home was $290,410 due to the “repeated upgrade requests.” However, the Georges have only paid $235,361. Ash and Metro Contracting argue that the Georges owe $55,049 on the contract.
Before the plaintiffs filed their amended complaint, the defendants also sought dismissal and to strike the plaintiffs’ request for attorney’s fees.
The defendants claimed the plaintiffs lived in the hours for three years “and have not alleged any facts in their complaint that would indicate the residence is either unsafe for use as a residence or unfit for its intended purpose.”
In a letter Ash addressed to Carruthers in 2013 before the suit was filed, he wrote, “Our firm is really trying to grasp where and when the homeowner became dissatisfied with our services after constructing them such a beautiful home, providing superior building materials to them at a wholesale pricing plus applicable mark-ups, installing and completing additional work to the property at no cost to the owner and responding to their request in a timely manner.”
“Our firm worked very hard to complete their home in horrible weather conditions beginning in October 2012 and granted the property owners’ occupancy to their home in January 2013. Additionally, at any time the homeowners ever had an issue regardless of the nature, size and/or whether or not the call actually pertained to our firm’s need for response, our firm always responded in a timely manner and performed as requested.”
Madison County Circuit Court case number 16-L-48