motion for rehearing and or reconsideration
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I� THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
I� A�D FOR WALTO� COU�TY, FLORIDA
CIVIL DIVISIO�
JOH� P. CARROLL,
Plaintiff, Case �o.: 09CA002021
v.
WATERSOU�D BEACH COMMU�ITY ASSOCIATIO�, I�C., Florida Corporation
DAVID LILIE�THAL, individually
and as Director,
MARY JOULE, SA�DRA MATTESO�,
RO�ALD VOELKER,
WATERCOLOR COMMU�ITY ASSOCIATIO�, I�C.
JOH� DOE and JA�E DOE
Defendants.
____________________________________________/
PLAI�TIFF’S MOTIO� FOR REHEARI�G,
MOTIO� FOR RECO�SIDERATIO�, MOTIO� TO VACATE and
MOTIO� FOR CLARIFICATIO� OF COURT’S ORDERS
GRA�TI�G SUMMARY JUDGME�T I� FAVOR OF
WATERCOLOR, WATERSOU�D, LILIE�THAL, JOULE A�D MATTESO�
Comes now the Plaintiff, John Carroll who makes this Motion for Rehearing, Motion for
Reconsideration, Motion to Vacate and Motion for Clarification and states as follows:
The Defendants forgot Carroll’s claims and made no mention of them.
Without cause, the Court Granted Summary Judgment for the forgotten claims anyway.
1. The Defendants Watercolor, WaterSound, Lilienthal, Matteson and Joule all made
Motions for Summary Judgment after the deadline set by this Court in its written Case Management
Order. The Court reopened the door for the Defendants and permitted them to seek Summary
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Judgment anyway.
2. This same Court previously denied the Defendants Motions for Dismissal of Carroll’s
claims.
3. Despite the Court’s grant of special permission for the Defendants to make one last
attempt at Summary Disposition of Carroll’s claims (on the last day before trial), in blind confidence,
the Defendants forgot to mention certain claims. See Florida Rule 1.510
4. For reasons that defy explanation, the Court signed an Order granting the Defendants’
Motions on these unmentioned claims. This is a violation of Carroll’s rights, Florida Rules of Civil
Procedure and Florida Case Law. See Florida Rule 1.510
5. Defendants WaterSound, Lilienthal, Matteson and Joule made a Motion seeking to
dispose of Carroll’s Slander claims, but their Motion actually sought Summary Disposition of
Carroll’s previously dismissed claim of Slander of Title. The Defendants offered no argument,
evidence or legal reasons of any kind for Summary Disposition of Carroll’s Slander claim. The
Court granted their Motion on Slander anyway. See Florida Rule 1.510
6. The Court then asked the Defendants to prepare the written Order. The Defendants
Counsel couldn’t, because he had no knowledge or basis supporting the Court’s ruling. Carroll
objected, filed a Motion to Prohibit the Defendants from preparing the Order, yet this Court signed
the Order anyway. See Florida Rule 1.510
7. The Court previously ruled that Carroll successfully plead a claim for Civil
Conspiracy against WaterSound, Watercolor and Voelker. The Court prepared its own Order, signed
it and filed it with the Clerk of Courts.
8. Defendants WaterSound and Watercolor made a last minute Motion for Summary
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Judgment on Carroll’s Civil Conspiracy Claim. The Defendants worked on their Motion together,
filed them simultaneously and their Motions were nearly verbatim. In blind confidence, both
Motions argued the wrong elements. Neither Motion to summarily dispose of the Civil Conspiracy
claim made any reference to what the Court previously ruled upon involving Defendant Voelker.
9. The Defendants offered no argument, evidence or legal reasons of any kind for
Summary Disposition of Carroll’s Civil Conspiracy claim corresponding to their acts with Defendant
Voelker. The Court granted their Motion on Civil Conspiracy anyway. See Florida Rule 1.510
10. The Court then asked the Defendants to prepare the written Order. The Defendants
Counsel couldn’t because they had no knowledge or basis supporting the Court’s ruling. Carroll
objected, filed a Motion to Prohibit the Defendants from preparing the Order, yet this Court signed
the Order anyway. See Florida Rule 1.510
11. This is fundamental error and violates Florida Rule 1.510.
If you call a calf’s tail a leg, how many legs does a calf have? Answer: Four
Calling a tail a leg doesn’t make it one.
12. Carroll alleged that the Defendant’s committed acts of libel and slander against him
by preparing fake builders lists which showed that his name was removed from the WaterSound and
Watercolor builders lists at times when he was fully authorized to practice his trade.
13. In addition, Carroll alleged that the Defendant’s committed the acts of libel and
slander against him when they published statements saying Carroll’s construction of his tower at lot
24 was in violation of the law.
14. Carroll alleged, and the Defendants admit, that at their direction all of these
statements were also repeatedly published to an unprotected site on the World Wide Web.
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15. On the Libel and Slander counts, the trial court entered a summary judgment for the
Defendants on an undisclosed basis. We can only assume that it is because the name of Carroll’s
corporation also appears, side by side, with Carroll’s name on the approved builder’s lists. This is
error. The Court put itself in the shoes of the trier of fact. See Ford v. Rowland, 562 So. 2d 731
(Fla. 5d DCA 1990) “The appellant contends, and we agree, that if an allegedly defamatory
publication is reasonably susceptible of two meanings, one of which is defamatory and one of which
is not, it is for the trier of fact to determine the meaning understood by the average reader. See Perry
v. Cosgrove, 464 So.2d 664 (Fla. 2d DCA 1985); Miami Herald Publishing Company v. Ane, 423
So.2d 376, 389 (Fla. 3d DCA 1982), approved, 458 So.2d 239 (Fla. 1984); see also, Belli v. Orlando
Daily Newspapers, Inc., 389 F.2d 579 (5th Cir.1967), cert. denied, 393 U.S. 825, 89 S.Ct. 88, 21
L.Ed.2d 96 (1968).”
16. Carroll is a builder by trade. The Court, the Defendants, their Counsel, Carroll’s
neighbors, family, friends and the community at large all know this to be true.
17. The only home on the WaterSound Yacht Pond is Carroll’s.
18. WaterSound requires all owners to post a sign on their property that states the name of
the Owner and the Builder.
19. WaterSound first published unapproved Minutes to the World Wide Web which
stated that Carroll’s home violated the law in June of 2008. The Court reviewed those Minutes.
20. Defendant Voelker submitted a revised survey of the home before the first time the
Minutes were posted to the World Wide Web. The Defendants posted the unapproved Minutes
anyway.
21. Two months later, WaterSound revised the Minutes. The Court reviewed those
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Minutes. Those Minutes stated unequivocally that Carroll’s construction was in violation of the law.
Those Minutes were also not approved by the Board, but were again posted to the World Wide Web.
This time, the statements were posted long after the defendants knew their statements were false.
22. The builder’s list statements and publications, as well as the statements of
construction which violates the law, have been construed by the public as being statements against
Carroll. It is not for the trial Court to make a determination on whether the public attributed the
statements to Carroll. Again, per Ford v. Rowland, “In the instant case it can be said, as a matter of
law, that witches on broomsticks are fiction and fantasy; but "hookers" are real. Basic factual
disputes are raised by the dismissed complaint: Does the word "hooker" refer to Sue Ford? If so,
can that term reasonably be understood to describe an actual fact about, or conduct of, Sue Ford?”
23. The Court put itself into the shoes of the trier of fact in granting the Defendans’
Motions for Summary Judgment. Carroll complained that the Defendants undertook sham acts,
breached the Covenants, improperly removed his name from the approved builders lists while he was
fully authorized to appear on said lists and took improper actions against him at both Watercolor and
WaterSound that never occurred in the history of either community. It is not the Court’s right to
weigh the evidence Carroll has presented.
24. The Plaintiff is sympathetic to the Court’s huge task of reviewing all the record
evidence in this case. That said, there is more than enough evidence already present through
depositions, motion and pleading filings and transcripts from hearings in this case for the jury to
accurately rule that reasonable people construe Carroll as being the party defamed by the Defendants.
Carroll will set forth some evidence the Court must have overlooked:
Amy Norsworthy Deposition pages 11, 16, 17, 26, 34, 40, 44, 47,
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Brian Stackable Deposition pages 14, 25, 32
25. More specifically:
Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
Q Were you asked to make any determinations
10 on that report, whether or not there were anything
11 hazardous buried in the common area?
12 A No. We're not qualified to make
13 determinations. The report -- I believe the report
14 was pretty clear in that there wasn't anything of
15 any --
16 Q Okay.
17 A -- of any major -- that would raise any
18 major issues.
19 Q Did you come to that determination by
20 yourself or did somebody tell you that?
21 A I believe that was in the report.
22 Q Yeah, I read that report, too. Did you
23 understand the report?
24 A Well, I'm not a geotechnical engineer, so
25 to that level, the short answer is no.
_____________________________________________________
Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
Q Darn it. I'm seeing here that the meeting
7
2 starts and there's some discussions and then they
3 talk about debris on John Carroll's lot. Do you
4 remember me bringing some pictures to a board
5 meeting and showing them to the board?
6 A Again, I thought the debris on your lot
7 issue was an issue with St. Joe that has been taken
8 care of and has been turned over to St. Joe
9 attorneys, so I'm not sure why it's coming up here.
10 Q It's important along with these aerial
11 photographs because Lot 24 is completely surrounded
12 by common area. I don't know if you know or not,
13 but on the Yacht Pond side, we have 20 feet of
14 ground that's not Lot 24 that they won't let me
15 clean up. And then we have 110 feet by 20 along the
16 westerly side of Lot 24 that the board won't let me
17 clean up. And then we have another 10 feet on the
18 north side of Lot 24 that's common area, and they
19 won't let me go any further. They're trying to
20 limit me to my efforts inside Lot 24. And what I'm
21 trying to remember is, or trying to see if you
22 remember, do you remember me bringing some Google
23 Earth satellite photos of Lot 24 or that area to
8
24 this meeting in February of 2008?
25 A I remember it, but I'm not sure when it
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1 was.
__________________________________________________
Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
Q Do you know how much the penalty was per
22 month every month after, I guess, it was 15 months?
23 A I believe it's $1,000 a month.
24 Q And do you know what a benefited
25 assessment is?
40
1 A Yes.
2 Q Was that $1,000 a month a benefited
3 assessment?
4 A Yes.
5 Q And can the association lien for benefited
6 assessments?
7 A I would have to go back and look at the
8 documents, but I believe they can.
9 Q Do you remember, generally speaking, do
10 you ever remember any owners coming to the board and
9
11 asking for a waiver or an extension or some kind of
12 forgiveness for that $1,000 a month fine?
13 A Yes.
14 Q For benefited assessment. Do you remember
15 any time where the board granted an extension to
16 somebody or a waiver of that $1,000 a month?
17 A Specifically, I don't recall.
18 Q Do you remember any times where the board
19 denied somebody's request for an extension?
20 A There's a standing policy where if you're
21 not done with construction in 12 months, you can
22 request an additional four months, and that
23 typically is granted.
______________________________________________
Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
Q Do you know who the members of the
16 covenants committee are at WaterSound Beach?
17 A I do not.
18 Q Have you ever heard of the covenants
19 committee?
20 A I have heard of a covenants committee.
21 Q Do you know if WaterSound Beach has one?
22 A I don't know.
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____________________________________________
Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
1 Q You were on the WaterSound board and the
2 WaterColor board, right?
3 A Yes.
4 Q At the same time?
5 A Yes.
6 Q Did the two boards ever meet to discuss a
7 common approach or a common plan of action for
8 dealing with John Carroll or Chambers Street
9 Builders?
10 A No.
11 Q Did those two boards operate independently
12 of one another at all times with respect to John
13 Carroll and Chambers Street Builders?
14 A Yes.
15 Q And with respect to all of their business?
16 A Yes.
17 Q Did you personally have a vote or a say in
18 whether John Carroll or Chambers Street Builders was
19 removed from any approved builders list at any time?
20 A I don't think so, no.
___________________________________________
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Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
Q And one last time so I get this straight.
3 Who controlled the WaterSound and WaterColor
4 approved builders list? Was it the DRB or the board
5 of directors?
6 A The design review board administers the
7 whole DRB program, and part of that is the approved
8 builder list and the approved architect list.
9 Q Does that mean that the board of directors
10 doesn't approve?
11 A The board of directors has set up a set of
12 policies and guidelines for the design review board
13 to operate under, and part of their operating under
14 is to administer the approved contractors and
15 builders.
______________________________________
Bridget Precise, Board of Director and DRB Member for both WaterSound and Watercolor:
Q Chris was just asking you if you ever --
16 well, let me ask you. Did you ever vote to suspend
17 Chambers Street Builders from the approved builders
18 list when you were a board of director?
19 A I don't think -- I don't think so, no.
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20 Q If the minutes say that you were there --
21 A Uh-huh (indicating in the affirmative).
22 Q -- would they be correct?
23 A They should be.
________________________________________
Dale Putz Board of Director for WaterSound, Financial Consultant WaterSound
Q When you were a board of director, did the
4 board meetings post agendas prior to the board
5 meetings?
6 A Yes.
7 Q And did the meetings ever depart from the
8 agendas?
9 A No.
10 Q Do you remember the meeting in May of 2008
11 where they talked about the height of my tower?
12 A Yes. Well, I don't remember when it was,
13 but I remember one meeting that it was discussed at.
14 Q We'll try and get to it later if we can,
15 but I'm just wondering do you know if the height of
16 the tower was on the agenda for that day?
17 A I don't know.
18 Q Do you know if as a board member you had a
13
19 fiduciary duty to the owners?
20 A Of course we did.
21 Q Do you think that you yourself as a board
22 member or anyone else on the board had a duty to let
23 me know they were going to talk about the height of
24 my tower at that meeting?
25 A I don't have an opinion on that.
_______________________________________
Dale Putz Board of Director for WaterSound, Financial Consultant WaterSound
21 Q There's something in this email right
22 here. Let's see. It looks like Dale Putz wrote
23 John an email and signed his name to it that said,
24 if we are discussing fiduciary responsibilities, can
25 you look at that?
18
1 A What is your question?
2 Q What did you mean by that?
3 A What I believe my fiduciary
4 responsibility -- I must have responded to something
5 you said. I don't know what it was.
6 Q Well, I'm looking at the part where it
7 says Freddy Kaye's name, Rosemary Beach.
14
8 A I know Freddy Kaye. I know Kevin. I know
9 people at Rosemary Beach. I believe you know all of
10 those same people for various reasons of which I'm
11 sure you don't want to discuss.
12 Q Well, I do. I do want to discuss it
13 because it was never explained --
14 A You do -- so what you're saying is that
15 you never took money from any of these people and
16 did not perform services?
17 Q That's right.
18 A You performed all of the services required
19 for all of those people for all the money you took?
20 Q That's a fact.
21 A Very interesting.
22 Q Do you think differently about it?
23 A Yeah. I think you took it. If you want
24 to know about it.
25 Q Well, that's what I was going to ask you
19
1 about. You mentioned these people at Rosemary Beach
2 and that maybe we should talk about how I exercised
3 my fiduciary duties. It was pretty apparent that
15
4 you thought I didn't.
5 A Um-hum (indicating in the affirmative).
6 Q And I'd like to know why you think that.
7 A From various comments, which I can't
8 explain who said what to who cause I don't recall
9 anybody to be honest with you.
10 Q Your opinion seems very strong.
11 A My opinion is very strong. My opinion is
12 you have erred in the ways you've dealt with Kevin;
13 erred in the way you've dealt with Freddy; erred in
14 the ways -- is it true or not that Rosemary Beach
15 got a restraining order because you tried to run
16 down a homeowner over there?
17 Q It's 100 percent not true. Did you ask me
18 about it at the time?
19 A I didn't ask you because I don't think it
20 made any difference. If it's a personal email
21 between you and me, it's between you and me and
22 nobody else is involved.
23 Q Did you tell anybody that?
24 A No.
25 Q Have you talked to anybody about my
16
20
1 experiences at Rosemary Beach?
2 A No.
3 Q Who told you that I got a restraining
4 order for, I guess you said running down someone at
5 Rosemary Beach?
6 A I don't recall. I've heard it. I don't
7 recall who ever said it.
8 Q Do you think it's true?
9 A I have no idea.
10 Q What did you do to investigate whether or
11 not it was true?
12 A I didn't because it didn't matter to me.
13 Q Did you vote to take Chambers Street
14 Builders off the approved list at WaterSound Beach?
15 A Absolutely not.
_______________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
7 Q How far is Compass Point from Lot 24?
8 A I don't know.
9 Q And how many buildings were between Lot 24
17
10 and Compass Point?
11 A Not a lot of buildings because the lake's
12 across there.
13 Q Are there any buildings between the two?
14 A Yeah.
15 Q What would those buildings be?
16 A You've got one on the yacht pond. You've
17 got a building there, don't you?
_____________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
22 Q Whatever came of that meeting where -- did
23 you instruct anybody to do anything? Do you know
24 what came of this height issue?
25 A To my recollection, it was dispensed with
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1 because it was ultimately determined in a very short
2 order that it would not exceed it, and that was the
3 end of the discussion.
__________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q Do you know if the covenants and
15 restrictions require notice to an owner before the
16 board goes out and conducts a survey of somebody's
18
17 lot?
18 A I do not.
19 Q And how would you find out?
20 A I have no idea.
21 Q Do you think you could read the covenants
22 and restrictions?
23 A I can read them.
24 Q Do you think there's an answer in the
25 covenants and restrictions about that?
19
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1 A I have no idea.
2 Q Is it your fiduciary duty to read the
3 covenants and restrictions --
4 A I said I read them. Do I recall -- how
5 many pages are there in the covenants and
6 restrictions?
7 Q 106.
8 A That's fine. Do I recall 106 pages? No.
___________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
MR. CARROLL: Yeah, we're going to ask --
13 A If you found those on your lot, it would
14 be the responsibility of the HOA to deal with the
15 common area, not you.
16 Q That's fair. Do you know if the board
17 ever hired a geologist to do a report?
18 A To my knowledge they did.
_______________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
21 Q We looked at a February 2008 meeting that
22 talked about debris on John Carroll's lot. I think
23 you had said that you were there?
20
24 A Okay.
25 Q Does that refresh your memory at all?
41
1 A No. Let me explain my recollection of the
2 debris and let's cut this short. You brought an
3 issue that there was debris on your property. You
4 purchased the property from Joe, my understanding,
5 and somehow you made some decisions with Joe
6 regarding your property in transition is my
7 recollection to the best of my knowledge. This was
8 an open item here, and we had made the conscious
9 decision to investigate your allegations. We hired
10 an outside engineer to come in, bore holes in the
11 common ground. To my recollection, you witnessed
12 those holes being bored. The engineering report
13 came back to the board stating there was no debris
14 to be found in the common area. The board did their
15 fiduciary responsibility in my opinion to
16 investigate your claim, and they were dismissed
17 without merit.
18 Q Did you ever see the report of the
21
19 geologist?
20 A Yes. It was emailed out. I don't have
21 it, but it was emailed out.
22 Q And it's your contention that, that report
23 says there was no debris discovered?
24 A I'm not saying it says no debris, but
25 no -- nothing to be of concern. Let's put it that
42
1 way. You're always going to find construction
2 debris no matter where you dig. You're not going to
3 find pure beach sand. Let's get serious. You're
4 trying to mince words. There was nothing found to
5 be of concern to the HOA.
6 Q Did anybody help you with your
7 interpretation of that report?
8 A No, I read the report.
9 Q Okay. Do you know how to make asphalt?
10 Do you know what the ingredients in asphalt are?
11 A No.
12 Q Do you remember me ever writing a letter
13 to the board members saying what I thought that the
14 geologist found?
22
15 A I don't recall.
16 Q Do you know what asphalt binders are?
17 A No.
18 Q Do you know what PAH's are?
19 A No.
_________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
20 MR. GEORGE: Before we get too far, did
21 you mark this metal pole as --
22 MR. CARROLL: Yeah, I marked it as Exhibit
23 6.
24 MR. GEORGE: Okay. What is that, John? I
25 mean, I'm just curious. What is it?
43
1 MR. CARROLL: It's a question for Bridget.
2 I've got her next. She'll tell us what it is.
3 MR. GEORGE: All right. That's fair
4 enough. I was just going to make a note. I'll
5 wait for Bridget to tell us.
6 MR. PUTZ: She won't know.
7 MR. GEORGE: She may. I don't know.
23
8 MR. PUTZ: It could come off any piece of
9 equipment.
_________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q Does WaterSound Beach require owners to
45
1 landscape the common areas adjacent to their
2 properties?
3 A No.
4 Q How do you know that?
5 A Common area by definition is HOA property.
6 You don't landscape someone else's property.
7 Q That's reasonable. Well, let me ask this.
8 If the HOA asked me to landscape common area,
9 wouldn't this trash issue be something of concern to
10 the homeowner?
11 A The trash issue, John, was an issue to the
12 HOA. We investigated it as I said and dismissed it
13 as having no merit.
14 Q Did I bring any evidence to any of the HOA
15 meetings that said that we planted two trees in the
16 common area and they died immediately?
17 A I don't recall that.
24
18 Q And did I bring evidence that said we
19 removed those trees and planted two more, and they
20 died immediately?
21 A I do not recall that.
22 Q If I said that at an HOA meeting, would
23 that be official business of the HOA?
24 A I have no idea. I'm not -- I'm not going
25 to pass judgment.
______________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q Okay.
14 A That is a primary road.
15 Q Well, in your opinion is the Boatright Way
16 entrance the more prominent --
17 A I don't know what Boatright Way is.
18 Q It has a small gate on it that let's you
19 into Beaches, but it's to the west of the gatehouse?
20 A I think all the gates are entrances to the
21 property. Some are more prominent than others.
22 Q What is the most prominent --
23 A The most prominent one obviously is where
24 the gatehouse is located.
______________________________________________________
25
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
25 Q Did you ever talk to Freddy Kaye about his
47
1 experiences with Chambers Street Builders and John
2 Carroll?
3 A Not one-on-one, no.
4 Q What about with other people there?
5 A No.
_____________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q Are you not knowledgeable in reading
18 plans?
19 A I'm not. I'm a CPA. I'm not a person
20 that's going to read blueprints. That's not my
21 calling in life.
22 Q Well, when we talked about this height of
23 the tower at Lot 24, and I think they made the
24 decision to do whatever they were going to do, did
25 you tell anybody, hey, I don't feel comfortable in
48
1 this; this is not my line of business? Did you
26
2 voice any concern that you were making a decision
3 that you knew nothing about?
4 A I did based upon the knowledge I was
5 given.
6 Q Who gave you --
7 A You don't have to have knowledge in every
8 aspect to make a reasonable prudent decision. It
9 was brought to our attention that the tower might
10 exceed, and there was concern that we simply put you
11 on notice up front that if and only if it exceeded
12 it, the board would have to take some sort of
13 action.
14 Q You were talking about putting on notice.
15 Did y'all decide to put me on notice that you wanted
16 to get a survey, or did you just go order a survey?
17 Did they say, let's tell John that we want a survey?
18 A I don't recall. The point was as I
19 stated.
Q Sandra's response says they were seeking
3 the height of the tower and that we have that answer
4 in your drawings. Did anyone come back to you and
5 say John turned in a survey and shows the height of
27
6 the tower is as planned?
7 A I don't recall.
8 Q Did anyone bring a survey to that meeting
9 in May of 2008 and say this is what John certifies
10 the height of the tower to be?
11 A I don't recall.
________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q Okay. Prior to the time that transition
18 occurred, did St. Joe have control of the board?
19 A Yes.
20 Q And prior to the time that transition
21 occurred, did St. Joe have control of the design
22 review board?
23 A Yes.
24 Q Prior to the time that transition
25 occurred, did St. Joe have control of the
51
1 architectural review board?
2 A Yes.
3 Q Was it the design review board that made
4 decisions about whether to put a builder on the
28
5 approved builders list or take a builder off the
6 approved builders list?
7 A Yes.
8 Q Did you have any input whatsoever into any
9 decisions about putting John on the approved
10 builders list or Chambers Street Builders?
11 A Absolutely not.
12 Q Or taking him off of the builders list?
13 A That was never discussed.
14 Q You never had any input at all into that?
15 A Never.
16 Q Did any other board members to your
17 knowledge have any input into that decision?
18 A No.
_______________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
19 Q At any point in time did the WaterSound
20 and WaterColor boards have a joint meeting or joint
21 discussion about John Carroll and his status as a
22 builder in the community?
23 A No.
24 Q If any of those kind of meetings would
25 have taken place during your tenure as a board
29
52
1 member, would you have known about it?
2 A Absolutely.
___________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q John mentioned this letter from Gary
4 Shipman and the attached survey. Isn't it true that
5 within a few weeks later, the board received a
6 revised survey from Voelker Engineering?
7 A I don't recall what was received when, but
8 I do recall a few weeks later, the whole point was
9 put to bed and was dismissed as of no concern -- not
10 of any concern. It was just that it appeared.
11 Everything was going to be in compliance. Very
12 quick order.
____________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
16 Q Now, John asked you about owners having to
17 landscape common areas.
18 A Yes.
19 Q Yesterday Brian Stackable testified that
20 he believes in the purchase documents when an owner
30
21 buys a lot, it states in those purchase documents
22 that the owner has to do some landscaping on the
23 adjacent common areas. If that is indeed in the
24 purchase documents, you just wouldn't know about
25 that? 53
1 A That's correct.
2 Q Cause you never bought a lot in
3 WaterSound, did you?
4 A That's absolutely correct.
________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
15 Q While you were a consultant for the board,
16 do you remember the board ever talking about
17 Chambers Street Builders and whether or not we
18 should be on the approved builders list?
19 A No. It was never discussed. John, when
20 I've been a consultant, no discussion has ever came
21 up regarding Chambers Street Builders or John
22 Carroll to my knowledge and recollection. The only
23 thing that came up was the debris, and I agree. The
24 debris issue was bought back up during transition.
31
25 We dealt with it, and dismissed it.
____________________________________________________
Dale Putz, Board of Director for WaterSound, Financial Consultant WaterSound
Q Do you remember me asking for a letter of
2 apology or a retraction letter to the one that Gary
3 Shipman wrote?
4 A I heard you'd asked for one. Where I
5 heard it, I don't recall.
6 Q Do you know whether or not the board
7 issued a retraction or apology?
8 A I don't believe one was needed.
________________________________________________________
Jack Luchese, Board of Director WaterSound Beach
Q Let me try to ask this a different way.
22 Do you remember when you first became a board member
23 that I was -- that Lot 24 was stopped construction
24 and that we held a meeting in the gatehouse that was
25 intended to be between yourself, David Lilienthal
14
1 and Sandra?
2 A Yeah. I was attempting to help you as a
3 homeowner to, in other words, cut through the
4 nonsense here so we don't spend six months doing
32
5 this and get down to what are the issues here.
6 Okay. And I think there was a perception that your
7 tower was high. It was a perception within the
8 community. And I think it's fair to point out that
9 it is reasonable for someone to think it's very high
10 because as you go through the front gate, it's sort
11 of an optical illusion because you have the beach in
12 front of you; you have no other tall structures, and
13 Lot 24 just happened to be the first lot to have a
14 structure on it. Had it been Lot 23, it would have
15 been the same issue. Okay. And so you see this big
16 tower, and it looks really high, yeah, okay, to most
17 people. Coming in, it looks really high.
_________________________________________________
Jack Luchese, Board of Director WaterSound Beach
25 Q Do you remember if David Lilienthal showed
15
1 up for that meeting in late November?
2 A I don't believe he did. You know, again,
3 I think whatever meeting took place, it was an
4 attempt on my part to try to reconcile the issue so
5 that neither you nor the board nor the HOA or the
33
6 homeowners had to deal with a lot of just nonsense
7 going on for months.
8 Q In a community like WaterSound, are there
9 some issues that you've seen go on and on that
10 weren't resolved as effectively as they could have
11 been?
12 A I think that tends to happen in any
13 organization.
___________________________________________________
Jack Luchese, Board of Director WaterSound Beach
Good to see the work being done on your
16 house.
17 Q Do you remember us making some progress on
18 Lot 24 after that meeting of November of 2008?
19 A I believe after that meeting, which I
20 think there was subsequently a letter that came out
21 of that, right?
22 Q I was going to ask you next, that meeting,
23 if it occurred, it may have occurred in late
24 November of 2008. The next board meeting, I think,
25 was in December of 2008. Do you remember us having
18
34
1 discussion on the record about Lot 24 during the
2 board meeting, December of 2008?
3 A I do.
4 Q Do you think that the board drafted a
5 letter as a result of that meeting?
6 A That's correct.
7 Q Do you know anything about what the
8 substance of that letter was?
9 A That letter was a courtesy letter to you
10 upon my recommendation to -- because a number of
11 people had expressed a concern that the tower could
12 be high;
__________________________________________________
Jack Luchese, Board of Director WaterSound Beach
A No. It didn't matter, John. The point
6 was there was a perception, and perhaps an optical
7 illusion because you were the first one up that it
8 just looked high.
9 Q Let me just ask you about that.
10 A I think any reasonable person would look
11 at that and say it looks high in the current
12 environment it's in where there's nothing around it,
13 just flat lots. Okay.
35
_____________________________________________________
Jack Luchese, Board of Director WaterSound Beach
Q Couldn't the board grant me a variance and
3 just let me keep it?
4 A It's not the board's job to grant a
5 variance. It's the DRB to grant a variance. Okay.
6 So...
7 Q While we're on the subject, this DRB, is
8 that design review board?
9 A Yes.
10 Q Doesn't our board of directors control the
11 DRB?
12 A The DRB is not directly controlled by the
13 board of directors, no. If there's an issue where
14 there's an exception that comes up and needs some
15 board review, under those circumstances the board
16 can take a look at it. But by and large, the DRB
17 operates autonomously.
_____________________________________________________
Jack Luchese, Board of Director WaterSound Beach
Do you
25 remember -- when Lot 24 started back up, do you
23
36
1 remember who actually was building Lot 24 at that
2 time?
3 A I believe it was you.
4 Q I was going to ask you. Did you ever see
5 me out there working?
6 A Almost every day.
_______________________________________________________
Jack Luchese, Board of Director WaterSound Beach
10 Q Okay. Do you know what waterproofing
11 detail we used on Freddy Kaye's house?
12 A I have no idea.
13 Q Do you know if you asked me what the
14 detail was?
15 A Not my place to ask you about someone's
16 house.
_________________________________________________________
Jack Luchese, Board of Director WaterSound Beach
Q Okay. Let's talk about somehow to try and
15 condense this benefited assessment issue. I'm just
16 going to ask round questions. Do you know about
17 when they started this benefited assessment based on
18 the building period?
37
19 MR. GEORGE: Object to form.
20 A What is this benefited assessment?
21 Q Yeah. Let me get through the back --
22 A Let's speak English here.
___________________________________________________________
Jack Luchese, Board of Director WaterSound Beach
1 Q -- Shipman, the attorney. Somewhere in
2 this, in the next couple of pages, I think there's a
3 motion by Jack to start benefited assessments.
4 A We have to -- what is benefited
5 assessments? Let's go back and understand that
6 because I'm not sure.
7 Q That's what I was about to ask you. Maybe
8 the last page is Compliance Bulletin 16 that was
9 referenced?
10 A With regard to construction time.
11 Q Yeah, I was going to ask you about that.
12 A Again, if that's what benefited
13 assessments means then I believe we had -- you know,
14 for the benefit of the community and all of the
15 people that lived there, obviously we don't want to
16 have someone building a house and it goes on for 10
17 years. Right. So there has to be some commitment
38
18 to get the house put up and get it over with so that
19 all the construction and the bang and noise and
20 country music that the, you know, workers play and
21 everything that we don't have to deal with it as
22 residents, and the trucks and everything else. So
23 it makes sense to put a timeline on construction.
24 And I believe what we have today is that -- or had
25 at that point in time is that you had 12 months to
29
1 get your house put up from the time it was approved,
2 I believe, by the DRB. And if you did not, there
3 were fines.
4 Q That's what I was going to ask you about
5 it. The minutes that we're looking at, they make it
6 look like -- it says here motion by Jack Luchese to
7 begin implementing benefited assessments to
8 homeowners who are not in accordance with Compliance
9 Bulletin 16. Do you know when Compliance Bulletin
10 16 came into effect?
11 A It says effective March -- this document
12 says effective March 26, 2009.
39
13 Q What month meeting is this that we're
14 dealing with here?
15 A March 26th it said, date. It said that
16 the meeting -- yeah, the meeting was the 26th, and I
17 guess it was voted at this meeting to accept this
18 timeframe.
______________________________________________
Jack Luchese, Board of Director WaterSound Beach
A I don't think a resolution was necessary
10 because it was a physical board meeting.
11 Q Oh, I got you. So it would be reflected
12 in the minutes?
13 A Correct.
14 Q Who's idea was this Compliance Bulletin
15 16?
16 A I don't remember whose idea it was. I
17 believe that it was discussed in general that as a
18 policy within the community, it was appropriate for
19 the board to put some controls on builders so they
20 didn't get out of hand and did not inconvenience the
21 residents and any other owners.
22 Q Let me ask you if you remember this.
23 There was a job in the community that a lot of
40
24 people called the Libby job?
25 A The Libby job?
31
1 Q Yeah.
2 A The Libby house?
3 Q Yeah, the Libby.
4 A I know where the Libby house is.
5 Q Do you know about how long it took to
6 build that --
7 A I have no idea.
8 Q Do you know if it was more than two years?
9 A I don't know.
10 Q When we're talking about benefited and for
11 the benefit of the community, how does it benefit
12 the community to force a job like the Libbys to
13 complete quickly?
14 A I think it benefits the community to have
15 controls on builders like I said before. I'll
16 repeat myself. What we don't want is builders to be
17 building a home and coming by and creating noise,
18 debris, trucks, traffic, everything else for in an
41
19 unregulated way, and the purpose of this is to put
20 controls on the amount of aggravation that has to be
21 dealt with by residents and neighbors during a
22 construction period. It can't be forever and that
23 the builders and the owners need to understand that
24 if you start construction, get on with it. Get it
25 done. Get it over with.
_____________________________________________________
Jack Luchese, Board of Director WaterSound Beach
6 Q Is there some kind of a fine or penalty --
7 A Yeah, well, I believe the HOA does not
8 deal with builders. The HOA deals with owners. So
9 if someone is having a contract home built -- let's
10 say you own the lot, and you have a contract with a
11 builder to build the lot then, you know, the owner
12 is ultimately responsible for any late fees, if we
13 want to call it that, any late fees in building that
14 house. And it's up to the owner to deal with his
15 contractor to deal with all that.
16 Q That's a great answer.
17 A It's not the HOA's problem. It's, you
18 know, the owner. You deal with it, you know.
42
19 Q Do you see anywhere in those last
20 paragraphs how much the charge is, whatever you want
21 to call it?
22 A Yeah, yeah 1,000 a month, yeah, that
23 was -- yeah, that's what we agreed to.
24 Q Was that 1,000 a month able to be liened
25 against the property?
33
1 A Sure, like anything else. Anything -- any
2 payments not made to the HOA can be liened against
3 that property, and we do that -- we do that all the
4 time.
5 Q Who told you that?
6 A Who -- I was on the board. I mean, we,
7 the board decided that anything due to the HOA that
8 is not paid, the HOA has the right to lien the
9 property, and we do.
10 Q That's what I was going ask you. Were you
11 a board member at that time, and did you believe
12 that to be true?
13 A Not only do I believe it to be true. I
14 believe I was a board member. I believe it to be
43
15 true, and I also adamantly support it because we
16 have to have controls in the community in all places
17 applying to everybody.
18 Q I agree with that.
19 A We set rules, and we have to enforce the
20 rules.
21 Q What happened to the people who were
22 already under construction when this became
23 effective?
24 A I believe in this case, if you were
25 already under construction, we were trying to, you
34
1 know, I think it had to be done on a case by case
2 basis because there were all other issues concerning
3 what was in construction at the time.
4 Q I was going to ask you, did the board ever
5 have to consider whether or not to waive or abate
6 certain of these penalties?
7 A Yes, occasionally we did.
8 Q Do you know if the board ever waived the
9 penalty or abated it for a period of time for
44
10 anyone?
11 A I believe we did.
12 Q And how did the board go about deciding
13 which person should be forced to pay it versus which
14 person didn't?
15 A Based on -- you know, it was based on the
16 individual circumstances of that case, okay, and
17 what happened. And usually the owner came in and
18 presented their case as to what happened and why
19 they thought it should be this or that, and the
20 board considered it.
21 Q I was going to ask you, who did they bring
22 their case to? Was it the board?
23 A The board. Only the board can decide that
24 abatement.
________________________________________________
Jack Luchese, Board of Director WaterSound Beach
5 A Yeah. What's that got to do with
6 abatements?
7 Q I was just going to ask if they have any
8 authority?
9 A Committees have no authority.
10 Q What about --
45
11 A Committees --
12 Q That's fine.
13 A Hold on. Committees are formed by the
14 board and report to the board. The committees can
15 review and they can recommends something to the
16 board. Committees don't decide. Only the board
17 decides.
18 Q We were just talking about committees, and
19 I think we said social committee. Is there a
20 finance committee?
21 A There used to be.
22 Q Are they gone now?
23 A I believe that there's no finance
24 committee at the present time.
25 Q Is there a covenants committee?
36
1 A Not that I know of.
2 Q Okay.
3 A But committees don't decide. That's the
4 thing you need to walk away from. The board at will
5 can create a committee, can terminate a committee.
46
6 The board gives direction to a committee in terms of
7 what their purpose is, and the committee is
8 requested by the board to make recommendations
9 periodically, and the board can either accept or
10 reject those recommendations. But only the board
11 decides. That's true in the corporate world as
12 well.
__________________________________________
Jack Luchese, Board of Director WaterSound Beach
13 Q Can you tell by looking at this front page
14 what board members were present that day?
15 A Myself, David, Bridget, Alan and Lisa.
16 Q And that's because it's on that paper
17 somewhere?
18 A That's right. I'm taking these minutes as
19 being correct.
20 Q Number 4 on the document.
21 A Right.
22 Q Do you know if any of those board members
23 fought you on your motion? Was there anybody that
24 disagreed?
25 A No, I don't think anybody disagreed. I
37
47
1 mean, you know, boards tend to, you know, prefer not
2 to -- particularly HOA boards -- that's the one
3 thing I noticed different from the corporate
4 world -- they tend to try to keep everybody happy.
5 I'm from a world where you have rules and you set
6 them and you follow them and you apply them
7 uniformly to everyone.
8 Q Well, let's ask about that. How could a
9 person like me as a homeowner find out what the
10 rules are? Are they in the covenants and
11 restrictions? Are they written down somewhere?
12 A Not everything has to be in the covenants
13 and restrictions. The covenants and restrictions
14 cover certain things, and what the covenants and
15 restrictions appoint is a board of directors to
16 govern the community from that point forward. The
17 board of directors is there to govern. It's the big
18 judge in the sky of the community, and things change
19 from time-to-time, and a board must and should react
20 to those changes if it's a functionally, properly
21 run board. Yes.
48
22 Q Do you think details of this, whatever
23 they call it, benefited assessment are posted
24 somewhere where we can read them now as a homeowner?
25 A I don't know. I mean, what you're asking
38
1 is, is about the communication of that. Okay. And
2 by the fact that it's -- if it's in the minutes and
3 it's posted it's, you know -- owners don't get a
4 letter every month, you know. There's a system of
5 communication, which is the website or emails or,
6 you know, news flashes or something like that. But
7 that's typically how they work.
_______________________________________________________
Jack Luchese, Board of Director WaterSound Beach
21 Q Well, that's what I was going to ask you.
22 I don't remember it either. I read a lot of
23 covenants that said some people did ask for
24 extensions. I think one of them was called
25 McCormick, who I don't know, but --
45
1 A Some people -- you know, people ask and
2 some people are granted and some people are not. It
49
3 really depends on the circumstances that are
4 presented to the board, and the board deliberates,
5 as it should as the judge, and determines what's
6 appropriate here.
___________________________________________________
Jack Luchese, Board of Director WaterSound Beach
This is page
9 175. I was wondering if you've ever seen anything
10 like that while you were a board member?
11 A Certificate of Assessment. Can't say I
12 have, no.
13 Q Do you see anywhere on there where they're
14 charging a benefited assessment fee to Lot 24?
15 A Yeah, $2,000.
16 Q What's the date of that certificate?
17 A September 1st, '09.
18 Q And do you know who that was transmitted
19 to by any chance?
20 A It says seller, Carroll. I presume that's
21 you.
_______________________________________________________
Jack Luchese, Board of Director WaterSound Beach
6 A Well, what this says, the association may
50
7 levy benefits against one or more particular lots as
8 follows, and there's an A and a B. So it could be
9 either.
10 Q That's what I was going to ask you. In
11 your mind as a board of director, it looks like you
12 voted to begin implementing benefited assessments
13 for not finishing construction under that rule. And
14 I was wondering, which one of those two? Is it a
15 provision under A or B? Does it apply to which one
16 of those? I'm having a hard time understanding.
17 A I'm not sure it's specific in this
18 particular thing. Again, what is this language
19 from? I don't know.
20 Q Well, I contended in there in the document
21 that it was from the covenants and restrictions --
22 A Well, here again, we covered this before.
23 The covenants and restrictions are broad strategic
24 guidelines, but the board has the right to assess
25 additional fines and provide community governments
49
1 as it sees fit, and the covenants give that power to
51
2 the board. It's not specifically mentioned in a
3 covenant that was written years ago, 10 years ago.
4 Believe me, there's probably plenty of things that
5 aren't in the covenants because something is changed
6 thereafter.
7 Q This next section here is 5.2, covenants
8 committee, and I contend that I took that right out
9 of the board -- the covenants that we're talking
10 about. I'd like you to familiarize yourself with
11 that.
12 A What's your question?
13 Q Well, I think it's saying in there the
14 board may not impose a fine without a majority vote
15 of the covenants committee. Are you sure there's no
16 covenants committee?
17 A Not that I know of.
18 Q And the -- well, geez, it sounds like you
19 were saying that the board is the one who was
20 issuing these fines and that people were having to
21 come directly to the board and y'all would either
22 approve their abatement of the fine or deny their
23 abatement of --
52
24 A Probably. If there's not a committee
25 since the committee itself doesn't have power of a
50
1 board -- a committee can't have power over the
2 board. So if there's no committee, then the rights
3 or the obligations of that committee revert back to
4 the board. So what's -- I don't get it. What's the
5 question?
6 Q Well, that is the question. I think when
7 I read 5.2, no matter how many times I read it, it
8 says the covenants committee cannot be staffed by
9 members of the board or their families. And I think
10 what I'm hearing you say is, no, we can do whatever
11 we want. There's no covenants committee, and we are
12 assuming the position of the covenants committee?
13 MR. GEORGE: Object to form.
14 A Well, what I'm saying is to my knowledge,
15 there's no covenants committee.
16 Q Okay.
17 A All right.
18 Q That's great. Are the covenants of
19 WaterSound a contract between an owner and the
53
20 community?
21 A Generally speaking, yes, subject to
22 change.
23 Q Okay. We were just talking about
24 amendments and subject to change, et cetera, and I
25 was just going to have you take a glance at Section
51
1 6.5 down there.
2 A 6.5.
3 Q I think it starts with validity.
4 A Yeah.
5 Q Do you know if the board ever recorded in
6 the public records any of the changes that they made
7 or amendments to the rules?
8 A I don't know.
_____________________________________________
Jack Luchese, Board of Director WaterSound Beach
7 Q You were on the board of WaterSound; is
8 that correct?
9 A That is correct.
10 Q Were you ever on the board of WaterColor?
54
11 A No.
12 Q Did the WaterSound and WaterColor boards
13 ever have a joint meeting where they discussed John
14 Carroll or Chambers Street Builders?
15 A Not during when I was on the board, no.
16 Q Are you aware of any communications that
17 have ever taken place between the WaterColor board
18 and the WaterSound board regarding John Carroll or
19 Chambers Street Builders?
20 A I'm not aware of anything like that.
21 Q And you certainly would have been aware of
22 that had any of that taken place during your tenure
23 as a board member for WaterSound?
24 A Absolutely, I would have been aware of it,
25 yes.
53
1 MR. GEORGE: That's all I have.
2 MR. CARROLL: I'll just redirect, and
3 we'll clear up a question or two.
4 REDIRECT EXAMINATION
5 BY MR. CARROLL:
6 Q Do you remember any time at an HOA
55
7 meeting, board of directors meeting, the subject of
8 Chambers Street Builders' approval status coming up
9 to be on the approved builders list?
10 A No.
11 Q Do you know how you would have voted if
12 they had? Were you inclined to take Chambers Street
13 Builders off the approved builders list? Don't
14 answer. Let me just ask this question. It's
15 probably in here. Did Sandra Matteson write any
16 letters to the board of directors, including
17 yourself, that said we want you to vote on taking
18 Chambers Street Builders off the list. WaterColor
19 has already done so.
20 A I don't remember anything, no.
21 Q And you don't remember voting to take
22 Chambers Street Builders off the list?
23 A No.
24 Q Do you know if this is the letter --
25 A I don't remember. Maybe we did. I don't
54
1 remember.
____________________________________________
56
Jack Luchese, Board of Director WaterSound Beach
17 A Well, the board -- again, you've got to
18 put this in the context in which it all was
19 deliberated on. The tower looks high. Call it an
20 optical illusion. Call it whatever you want. It
21 wasn't picking on John Carroll. It was here is a
22 structure, whether it's Lot 24 or the lot north of
23 Lot 24. If you put up a tower, it's going to look
24 high because everything around it is flat. Okay.
_________________________________________________
Jack Luchese, Board of Director WaterSound Beach
12 Q Do you know if the covenants and
13 restrictions require the board to notify me before
14 they hire a consultant like that to do a survey?
15 A I don't know that. But the board has a
16 responsibility to the community in general, and it
17 was acting under that provision.
__________________________________________________
Jack Luchese, Board of Director WaterSound Beach
9 A I don't remember seeing this email, but I
10 know you've asked for an apology so the substance of
11 it is well understood.
21 Q You were saying that you know I had to ask
57
22 for apologies?
23 A You asked for an apology, and I had told
24 you in the past that no apology is really necessary
25 here, that Gary and the board were simply trying to
59
1 advise you that this tower looks high and needs to
2 be checked out. And we checked it out, and our
3 expert said it was too high. Okay. Now, you took
4 that and decided to halt construction on your own,
5 and if you further damaged yourself, you didn't have
6 to. Okay. I believe you found out -- I think the
7 way this all worked out it that it was later
8 determined that the calculation from this expert was
9 in error and that you were in -- no, we don't know
10 if you're in compliance because you haven't finished
11 it, right, at this point. You might have finished
12 it now I'm saying. Okay. At the time this letter
13 was written, the tower was not complete so there's
14 no way of knowing de facto whether it was definitely
15 in compliance or not. The point here being made,
16 you have to put a roof on this tower, and by the
58
17 time you're done putting the roof on, the roof might
18 exceed the requirement. Okay.
19 Q What could I have done as a builder to
20 notify the community at large, hey, they're wrong,
21 I'm telling you. I mean, we can see that that's
22 December. The first letter was written in May.
23 What could I have done as a builder to correct that
24 impression? You were saying over and over the
25 perception was it was too tall. It was sitting
60
1 there by itself. There was this talk of the letter,
2 et cetera. What could I have done personally to
3 correct that opinion in every realtors' minds in the
4 community?
5 A I don't -- I think...
6 Q If the board wrote me an apology letter,
7 could I have handed that out and that may have
8 quelled the perception?
9 MR. GEORGE: Object to form.
10 A Look, I'll say it again. I think an
11 apology from the board is completely unnecessary.
12 The board was acting responsibly. Getting an
59
13 expert. If the board had said, you know, John, it's
14 too high; you need to shut everything down. That's
15 not what the board did here. The board said, look,
16 it looks high. A number of people have made
17 comments about it being high. We are a board that
18 serves the community, and when we hear those
19 comments, we are obligated to check it out. We
20 checked it out, and our way of checking it out was
21 to discuss it and then to take two steps. Step
22 number one was to get a professional to give us
23 advice on that. Okay. Independent of yours. We
24 don't have to use your engineer. Okay. We
25 represent the community, not you. So the fact that
61
1 we didn't use your survey doesn't mean a hoot.
2 Okay. We're representing the homeowners. Your
3 engineer could have made a mistake. So we had
4 another engineer, another expert come up with a
5 number. Turned out that engineer made a mistake.
6 But at the time the letter was written, the
7 information we had said that you were approaching a
60
8 height problem. Okay.
______________________________________________________
Jack Luchese, Board of Director WaterSound Beach
1 Q Now, part of my claims is that the board
2 was picking on me, specific --
3 A The board was not picking on you at all.
4 That's a perception in your mind only. That is not
5 at all what's happened here.
6 Q Let me ask you a question now because this
7 is while you were a board member, and I've just got
8 to ask.
9 A Yeah.
10 Q Did anybody from CCMC ever come to you and
11 say John Carroll told us that there are two houses
12 that don't meet the height requirement?
13 A I don't remember.
14 Q Do you remember ever as a board member
15 hiring a survey to go over and measure two homes in
16 WaterSound Beach that weren't mine?
17 A WaterSound Beach?
18 Q Yeah.
19 A I don't remember, no.
61
20 Q If there are homes that are taller than
21 50 feet, does that mean they have to be taken down
22 to comply with the code?
23 A Well, if those homes were above that and
24 somehow they were granted a variance of some sort, I
25 don't know, you know, maybe, you know, I don't know
64
1 what happened. You're asking me about something I
2 don't know anything about.
3 Q Well, how would -- you as a board member
4 were probably privy to some things that I wasn't,
5 and I'm just wondering how would I know as a
6 homeowner whether or not someone was granted a
7 variance of the 50 foot height requirement?
8 A Well, I think what you're asking me is are
9 things handled fairly or was somebody just picking
10 on you. And the answer to your question is nobody
11 is picking on you. We try to handle everybody the
12 same way. Okay. So if another house -- you know,
13 again, I don't know when these houses were built. I
14 don't know who they are. I don't know, you know,
15 when they finished. I don't know who the boards
62
16 were at the time. I don't have a clue. Okay. I
17 don't know where they're located. Okay. I mean,
18 you know, all these factors might make a difference
19 when a final judgment is made on something like
20 that.
______________________________________________
Jack Luchese, Board of Director WaterSound Beach
But relative to your property as an owner,
21 the question was since there's a whole row of houses
22 on that eastern side of WaterSound Way and another
23 potential row of houses on the western side, that if
24 one house is not in compliance, then it's just all
25 the other ones have the same issue. We can go
65
1 higher, too, cause Carroll is up there. So it's
2 important to set the rules because it is the
3 entranceway to the community. Now, if you're off on
4 the edges and the fringes of the community, you
5 know, it may not affect everybody. I don't know.
6 But if you're on the main drag, which you are, I
7 think it's very important --
8 Q Why is 24 on the main drag?
63
9 A You're on WaterSound Way. You're on the
10 main drag of the whole community. It's the primary
11 road.
12 Q Isn't the other road down there more
13 prominent than mine?
14 A What other road?
15 Q That one with the gate down the way. What
16 do you call? Boatright?
17 A No, you're -- WaterSound Way is the main
18 road to the beach from the main gate. How could you
19 not say it's not the main road? It is the main road
20 of the entire community.
21 Q And you're saying that because you're an
22 owner there and you know this?
23 A Yes.
____________________________________________________
Joan Luchese, WaterSound Homeowner
12 Q I have to ask more specific. Do you know
13 who it was who was concerned about the height of the
14 tower at the board of directors meeting?
15 A It was both.
16 Q And that would be St. Joe and the board of
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17 directors, too?
18 A Not the board of directors. Well, I
19 shouldn't say that. It was the St. Joe people and
20 there were homeowners. I mean, living there, I did
21 hear many homeowners say -- several, let me say,
22 say, wow, it looks like that tower is too high. So
23 it's possible. I have no knowledge of this. It's
24 possible it was a homeowner that called St. Joe and
25 said, hey, look into this. And I know that Jack was
16
1 concerned that if it was going to be a problem for
2 you, that everyone should let you know ahead of time
3 and not let you go to the expense of building that
4 all the way out and then saying, hey, take it down
5 cause that would have been worse.
6 Q In your impression it would be better for
7 St. Joe or someone of authority to look into it
8 right away and make a determination immediately
9 versus wait till later?
10 A Yeah.
11 Q Is that accurate?
12 A Sure. Because all the money you had spent
65
13 to finish it if it was not in compliance would be
14 wasted if you had to tear it down. But so why not
15 check it now.
_________________________________________________
Joan Luchese, WaterSound Homeowner
14 Q And I just want to show you something that
15 we've already entered earlier in the case. This is
16 marked -- so that the record is clear, this is
17 marked as a draft of the February 14th, 2008
18 meeting, the board of directors. Usually it lists
19 the names of different homeowners that are at the
20 meeting. It might be in the third or fourth
21 paragraph. Do you remember if you guys were there?
22 A Obviously we were there. I don't remember
23 exactly, you know, what meetings I attended, but I
24 must have been there.
25 Q Do you remember me -- I'll go to this page
18
1 here. You can refresh your memory a little bit.
2 Let's see. The top of the second page, which is
3 Number 68, there's a little note. Do you remember
4 them talking about debris on John Carroll's lot?
66
5 A Honestly, the only time I remember debris
6 being talked about on your lot is when you were
7 talking about it yourself at one of these HOA
8 meetings. I do remember you talking about debris.
____________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
1 Q So, it looks like that Terry Muldoon wrote
2 an email to someone first?
3 A To me and copying you, yes.
4 Q And so what did Terry say in the body of
5 his note?
6 A It says, Kev, just spoke to JC, and the
7 check was returned to sender. Can you please call
8 John and make arrangements to wire him the funds.
9 Thanks.
10 Q And then what was your response, if you
11 would?
12 A My response was as follows. Talked to JC,
13 yours and Dave's checks not cleared yet. John asked
14 me to Fed Ex. Will do later today.
_________________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
2 A Okay. John, your question again, I'm
67
3 sorry?
4 Q First I was going to ask if you can just
5 describe what that document is on the record the
6 best you can.
7 A It would appear to be you talking about
8 payments.
9 Q And do you know what the date of that
10 email is?
11 A May 13th, 2008.
12 Q Okay. So that was at least a month after
13 the emails that were written -- that were exhibited
14 on Page 2. These ones on Page 2, do you know if a
15 check bounced that got writ from the payment of
16 construction on Lot 41?
17 A I don't recall.
18 Q Who did the books for White Sand Ventures?
19 A A person by the name Jeff DeBow.
20 Q Is he a CPA or something?
21 A Yes.
22 Q And what state is he from?
23 A Illinois.
24 Q How many partners were there in the Lot 41
68
25 project?
21
1 A As I recall, there were three.
2 Q Who would they be?
3 A Kevin Achatz, Terry Muldoon and Dave
4 Burke.
5 Q Do you know if the company ever issued any
6 payments to Chambers Street Builders that were not
7 honored by the bank or checks that bounced?
8 A I don't recall. I know that there were
9 many payments that were honored by Chambers Street
10 Builders. I don't recall if there were any that
11 bounced.
__________________________________________
Kevin Achatz, Board of Director WaterSound Beach
25 Q Okay. I don't know what this is, but if
24
1 you could just take a glance at Page 8 and do the
2 best you can to tell us what that is.
3 A It would appear to me, sent from you, I
4 believe, to me and copied an individual by the name
69
5 of Dale Putz asking us to have a meeting.
6 Q Do you know who Dale Putz is?
7 A Yes, I do.
8 Q Was he a board of director for WaterSound
9 at any time?
10 A At some point in the past, yes.
11 Q Do you know if yourself, Dale and I ever
12 met to talk about any business?
________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
2 Q Do you remember ever receiving any emails
3 from me in which I would have copied, you know, a
4 multitude of parties?
5 A I do recall some. I didn't read them. I
6 just deleted them.
7 Q Oh, okay.
8 A But I do recall looking at them and
9 saying, oh, okay, I can delete this one.
10 Q So this one here you would say you
11 didn't --
12 A I don't recognize it at all.
13 Q Do you remember ever -- this is Page 18
14 and 19. Do you remember anything about me, John
70
15 Carroll, bringing issues forth for the community
16 that needed to be considered or resolved prior to
17 turnover from St. Joe to homeowner control?
18 A None that I can recall.
19 Q When did you become a board member?
20 A The election as I recall was held sometime
21 in October. The official turnover date for which
22 really, I believe, is technically January 1st.
23 Q What year was the election that you're
24 talking about?
25 A 2010.
___________________________________________
Kevin Achatz, Board of Director WaterSound Beach
I am writing this letter in the hope that
2 you will carefully monitor his building practices
3 against the standards set by your own DRB so that
4 this situation cannot recur within our community or
5 any others owned by St. Joe. If I can answer any
6 questions you may have, please do not hesitate to
7 contact me.
8 Q I don't see mention in here about the fact
9 that White Sand Ventures had bounced any checks to
71
10 Chambers Street Builders. Did you tell anyone that
11 White Sand Ventures bounced a check to Chambers
12 Street Builders?
13 A I don't recall any bounced checks, so I
14 don't know.
__________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
Q This top email, I think it says was from
19 Dave Burke and was sent to Kevin Achatz, Mary Joule
20 and Terry Muldoon.
21 A Correct.
22 Q Who is Mary Joule?
23 A Mary Joule, as I recall, was some sort of
24 an individual involved with ensuring that the
25 builders within the WaterSound community and perhaps
38
1 others -- I just don't know, but WaterSound
2 community -- were building according to the approved
3 plans.
4 Q The letter goes on to say, folks, Tom said
5 that several subs have come forward and said they
6 haven't been paid for Lot 41 or Lot 1 work. Who is
72
7 Tom?
8 A As I recall, he was some sort of another
9 builder.
10 Q Was he on the approved builders list?
11 A I don't recall. I don't know.
12 Q How many builders did White Sand or
13 yourself interview to take over Lot 41?
14 A Three.
15 Q Do you know who they were?
16 A This was one of the gentlemen.
17 Q Do you know what his company is called?
18 A No, I don't. I don't recall.
_______________________________________________
Kevin Achatz, Board of Director WaterSound Beach
7 Q The last thing in this email that was sent
8 to -- or appears to have been sent to Kevin Achatz,
9 Mary Joule and Terry, Dave is saying, Mary, I
10 thought the leaning tower house was getting red
11 tagged. Did this happen? Do you know -- did Mary
12 Joule tell you anything about Lot 24 getting red
13 tagged or shut down or anything?
14 A Not that I recall.
15 Q Okay. And then I'm seeing it looks like
73
16 on that same page, 24, you wrote a response, Kevin
17 Achatz wrote to Mary Joule, Terry Muldoon and Dave
18 Burke about John Carroll's personal home. Said,
19 Mary, I just returned from China and noted that John
20 Carroll has now put up his personal home building
21 project for sale. Why were you in China?
22 A Why was I in China?
23 Q Yeah, I mean do you go there for business?
24 A Oh, it's for business.
25 Q Why was it notable to you that John
42
1 Carroll put his personal home up for sale?
2 A I must have -- perhaps I drove into the
3 community and saw a sign or something or somebody
4 made me aware of it. I don't recall how I knew, but
5 somehow I must have been aware of it. These
6 actually preceded Dave Burke's e-mail several hours
7 later.
8 Q Oh, yeah, you're right. I see June 18th
9 at 7, and the top one is June 18th at 9. It says
10 here, we are still interviewing contractors and
74
11 soliciting bids. From those contractors we have
12 spoken to about Lots 41 and 1, and when you saw we
13 have spoken to about 41 and 1, who are you talking
14 about? Who is we?
15 A We would be -- would only be referring to
16 the people that were involved in White Sand
17 Ventures. Would have been John, Terry Muldoon or
18 Dave Burke. I mean, myself Terry Muldoon or Dave
19 Burke.
20 Q Did Terry Muldoon and Dave Burke own Lot
21 1, too?
22 A To the best of my knowledge, yes, whether
23 it was in an LLC or their wives owned it or
24 something. I don't know. I was not involved in Lot
25 1.
43
1 Q Okay. And I think it says here, I really
2 hope this means we are succeeded -- we have
3 succeeded in getting Chambers Street Builders out of
4 WaterSound for the benefit of all the community.
5 Why would you think that, that means we have
6 succeeded in getting Chambers Street out of --
75
7 A I think it has something to do with the
8 first sentence which says, I just returned from
9 China and noted that John Carroll has now put up his
10 personal home building project for sale.
11 Q And it says here, I really hope this means
12 we have succeeded in getting Chambers Street out of
13 WaterSound. Who is the we in that sentence?
14 A I don't recall who the we would be, but we
15 can generically refer to any number of people from
16 two to 50,000 or more.
17 Q How many people were copied on that email?
18 A Mary Joule was copied with Terry Muldoon
19 and Dave Burke being copied.
20 Q Did Mary Joule tell you at any point in
21 time that she wanted to get Chambers Street Builders
22 taken out of the community?
23 A I don't recall, no.
24 Q And I don't know if I asked you or not,
25 did Mary Joule say anything to you at all about Lot
44
1 24 and the height of the tower?
76
2 A No, not to my recollection.
__________________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
16 Q I was showing you this page that's
17 called -- I called it Page Number 26, and it looks
18 like at the bottom Kevin Achatz wrote an email to
19 Alex, Dave Burke and Terry Muldoon. Do you know who
20 Alex Fambri is?
21 A Yes. She was at the time, I believe she
22 was the -- and I don't know their title, but the
23 community manager I'll call them, or CCMC, on behalf
24 of WaterSound.
25 Q WaterSound Beach?
45
1 A Yeah, WaterSound Beach, yes.
______________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
A Well, I think most of it was just the
3 tower, you know. Could have been -- you know what,
4 it could have been your house, too.
5 Q Well, let me ask you. Do you know if
6 Chambers Street Builders constructed the tower first
7 at Lot 24 and then built the main house?
77
8 A John, I don't recall.
9 Q Okay.
10 A I don't recall. Without having a complete
11 thought, I'm not really sure what it's saying, you
12 know.
13 Q This email has a bunch of handwritten
14 notes on it, and I'll tell you -- Chris can object
15 if he wants -- but during Mary Joule's deposition
16 she told us that she wrote these. And I asked her
17 like what is the cross up here, and she said, it's
18 just a doodle, you know. So we talked about things,
19 and I see a number (847)680-3127. Who is that?
20 A That was my home telephone number in
21 Illinois.
22 Q There's another one. (847)903-0047. Do
23 you know what that is?
24 A I do not recall whose number that would
25 have been.
50
1 Q Do you know any of the telephone numbers
2 or do you remember any of them from In Gear at the
78
3 time?
4 A I don't recall.
5 Q We're seeing another handwritten note that
6 says Kevin Achatz with an arrow that says Mark
7 (850)250-2718. Do you know who that is?
8 A No, I don't recognize the number. Looks
9 like it says (852)250-2718. I don't know what area
10 code that is, 852.
11 Q What about this telephone number here,
12 (601)954-8861 and 8866. Do you know what that is?
13 A I do not know what area code that is.
14 Q Okay. How about this one here.
15 (205)473-5559.
16 A Well, I believe 205 to be the Birmingham,
17 Alabama area, but I don't recognize the number.
18 Q We were talking before about a builder
19 named Tom. Do you know if Tom was from Alabama?
20 A I do not know.
21 Q Do you know how you were introduced to
22 Tom?
23 A Introduced to Tom? No, I don't know.
24 Q Did you tell anyone at any time that you
79
25 or Dave and Terry were suing Chambers Street
51
1 Builders?
2 A I don't recall ever saying that. And I
3 don't recall any lawsuits ever.
4 Q Did you or Terry and Dave ever sue
5 Chambers Street Builders or John Carroll?
6 A Not to my knowledge.
_______________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
Q Do you know if that's the attorney who
5 sent you Chambers Street Builders' letter of
6 termination of our contract?
7 A I seem to recall that is the one, yes.
8 Q Now, this one says it's from aabsolute,
9 which I guess we know that's me, and it says it's to
10 Mary Joule, Sandy Matteson, Daniel and Kevin Achatz
11 regarding Lot 41. And I think I'm saying, if you
12 feel I am in error or being untrue, please bring it
13 directly to my attention so that I have an
14 opportunity to respond and correct the impression.
15 And then I go on to say in the case of Lot 41, every
80
16 single sub was paid. And then the last thing that
17 you're looking at there looks like a check to
18 Stephen Melton that was returned, returned item
19 advise. Can you tell who wrote that check or what
20 account that was drawn on?
21 A It appears to be from Terry Muldoon. I do
22 not recognize the account.
23 Q Do you know who Stephen Melton is?
24 A No, I do not.
_________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
9 A The only over budget that I'm aware of was
10 a strong belief that we had expended funds far in
11 advance of the percentage of completion, which had
12 actually been achieved. I'm fairly certain that was
13 borne out once we had to accept your resignation
14 where a third party, who ultimately took over the
15 project came in and had to spend substantial amount
16 of money to remediate work that had been done and to
17 finish the house.
18 Q Do you know who bought that project from
19 White Sand?
20 A I don't. I don't.
81
21 Q Do you know how long it took them to
22 finish the project?
23 A Several months once they started. I know
24 that. But I don't know how long, no.
25 Q What does several mean to you?
55
1 A Two or more.
2 Q Two or more? Would it surprise you to
3 find out that it took 90 days to complete the home?
4 A That would be two or more.
__________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
But the
10 amount which was still owed Chambers Street Builders
11 to finish the home would have been less than
12 $150,000.
13 Q I was going to ask you, do you think that
14 the amount left to pay Chambers Street Builders to
15 complete the home was in the area of 110,000?
16 A I don't recall.
17 Q Do you know if Chambers Street Builders
18 offered to complete the home for the remaining
82
19 balance?
20 A I don't recall.
21 Q Would that be the type of thing that you
22 would want to tell Mary Joule or the board of
23 directors? I mean, I see that you wrote the letter
24 to the board saying we resigned and we left a lot of
25 things undone. I'm just wondering if Chambers
56
1 Street Builders wrote a letter saying we will come
2 back to the job, but we need to be sure you can pay.
3 Would that be the type of thing you would want to
4 tell the board of directors?
5 A I don't think it would be anything to do
6 would have anything to do with the board of
7 directors, but I can't recall if that was done or
8 not done. I think a lot of the -- once you
9 resigned, for whatever reason that you resigned,
10 there had been many discussions as I recall about
11 the -- some of the work that had been performed and
12 in fact needed to be redone, and I think there were
13 disputes in that area.
______________________________________________
83
Kevin Achatz, Board of Director WaterSound Beach
16 Q Did White Sand sell that home as a short
17 sale?
18 A We did. We did. Gave it back to the bank
19 pretty much. The short sell stipulated there would
20 still be a potential deficiency at a later date.
21 Q Did they come back and try --
22 A Several times.
23 Q How did that work out? Have you ever had
24 to pay the difference?
25 A No.
________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
1 Q Dave Burke, do you know if he was
2 experiencing any financial strain or financial
3 problems during this period of 2008?
4 A With respect to his finances, John, I have
5 no intimate knowledge of his finances or whether he
6 was experiencing financial strain.
7 Q Did Dave Burke have any trouble coming up
8 with his third of the money to make payments to
9 Chambers Street Builders?
84
10 A I don't recall if he had any particular
11 problems.
12 Q I think we were looking at an email
13 earlier that said that Chambers Street had gotten a
14 check that bounced, and I think you said that Dave's
15 check hadn't cleared.
16 A I don't know. Yeah, it wasn't -- in other
17 words, whether his check bounced or not, I'm not the
18 one that controls his finances so.
19 Q Okay. So this check from -- appears to be
20 from Terry Muldoon and said it was for $1,000, and
21 it was returned. Do you know anything about that
22 check at all?
23 A I don't recognize the account number. I
24 don't recognize an account entitled equity reserve.
25 Okay. I can't read -- it appears it's written on
59
1 National City Bank, but I don't know what city or
2 state. It appears to have some sort of a address on
3 it, which I can't read.
4 Q What about what it was intended to pay
5 for?
85
6 A I don't know. I don't recall the name
7 Steve Melton.
___________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
11 Q And then I have this letter here. It
12 appears to be a letter from you, but I wanted to ask
13 you about it.
14 A Sure.
15 Q It's Page 30, but it starts with August
16 18th, 2008. And it says, this letter will serve to
17 address your request for comments on the status of
18 our construction. Can you tell me what kind of
19 request Mary Joule made to you?
20 A Might be if I could take a look at it. It
21 would be helpful for me to recall what kind of
22 request she might have made.
23 Q Okay.
24 A Go ahead.
25 Q So this letter says, this letter -- it
60
1 begins this letter will serve to address your
2 request for comments on the status of construction.
86
3 And what I'm trying to figure out is did Mary Joule
4 at any time come to you and say, Kevin, we need a
5 letter from you about Chambers Street Builders.
6 I've already got a letter from Freddy Kaye. We need
7 to get this to the board of directors.
8 A Not to my recollection, no.
9 Q And you didn't bring any emails with you
10 of any kind today.
11 A As I say, I don't have any emails anymore.
12 Q In your experience, do you know any way
13 that I could go about rebuilding email
14 correspondence involving yourself at that time?
15 A As it relates to these matters?
16 Q Yes.
17 A You could contact, you know, Terry Muldoon
18 or Dave Burke to see what they might have.
19 Q What about Mary Joule?
20 A You have to contact her. I don't really
21 know. I haven't talked to Mary Joule in years.
22 Q Do you know if Mary Joule ever wrote you
23 by email and asked you for anything?
24 A Well, there was something in here that I
87
25 was copied on. I don't recall other documents,
61
1 John, or specifically what she would have asked for.
_________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
19 Q What happened to Lot 1. Did Dave and
20 Terry have to give that project back to the bank?
21 A I don't really know what happened, but as
22 I recall, there were discussions between them and
23 the bank relative to giving it back, but I don't
24 know really know the end result.
____________________________________________________
Kevin Achatz, Board of Director WaterSound Beach
Q Okay. The Mike Adkinson project in
3 Mississippi, are you still an owner in that project?
4 A That remains to be seen, the degree of
5 ownership that exists. That's in another matter
6 that's being looked at, at this moment.
7 Q I thought that when you and I talked that
8 you said that you had given that property back or
9 relinquished control?
10 A The definition of giving back,
88
11 relinquished control being done, really is a matter
12 for the bank's interpretation, I think, and the bank
13 has not made its final determination.
14 Q Do you think the bank sent you any kind of
15 tax forms on that transaction?
16 A I do.
17 Q Would they be 1099?
18 A That would be a 1099, that's correct.
19 Which does not, by the way, automatically relieve
20 any debt.
_________________________________________
Kevin Achatz, Board of Director WaterSound Beach
Q Yeah. Well, I think that when you and I
15 talked that day at the airport that you had said at
16 a certain point you stopped making payments on all
17 of your projects. That would be Cypress Breeze --
18 A That's not true that I would say that
19 because I'm still making payments on some of them.
20 Q What did happen in the Cypress Breeze
21 case? You had a few lots back there. Did you
22 return those to the bank or did you sell them?
23 A The bank agreed to take them back in
24 exchange for forgiving the loan. There were three
89
25 of them, by the way.
_________________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
Is it the
7 board of directors of the community or is it the
8 DRB? Brian's opinion was it was St. Joe but...
9 A I've never been on a DRB since I've been
10 with the company.
11 Q Did you ever have the ability to select or
12 approve builders for the list?
13 A I wasn't really ever part of any of the
14 DRB portions of it in the vertical construction. My
15 role primarily has been the horizontal development
16 piece of that.
17 Q Let's talk about that as quick as we can.
18 A Okay.
19 Q What was your role at St. Joe during the
20 development of WaterSound Beach?
21 A In charge of the horizontal development
22 primarily. As we would put horizontal development,
23 the roadways, the parking areas, parks, the common
24 elements to the community
__________________________________________
90
Mary Rosenheim, WaterSound and Watercolor Board of Director
Q Did you ever do surveys? Do you know how
5 to read surveys or do you know how to perform a
6 survey?
7 A I don't know how to perform a survey. I
8 can read a survey, but I can't perform one, no. I'm
9 not a surveyor.
10 Q Well, the best you can -- if you know then
11 you know -- can you tell if this is a survey of Lot
12 24, WaterSound Beach.
13 A Appears to be. It says, Lot 24,
14 WaterSound Beach, Phase IV.
__________________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
1 Q Do you know where Lot 24 is in WaterSound
2 Beach?
3 A I think it's near the yacht pond?
___________________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
9 Q Can you tell by looking at that survey
10 what the finished floor elevation is?
11 A Finished floor, 21.84.
12 Q Are there any benchmarks anywhere on there
91
13 that talk about what level some grade is?
14 A There's a site benchmarker of 18.3 noted
15 right here.
16 Q I think that one says Site Benchmark 2.
17 A Yes, it does.
18 Q I don't know where Site Benchmark 1 is.
19 A Elevation shown here ... Benchmark Number
20 2. It doesn't say anything about Number 1.
21 Q Well, is Site Benchmark Number 2 on Lot 24
22 or is it on another lot? Can you tell?
23 A It appears to be on lot -- adjacent to or
24 near Lot 26.
25 Q Yeah, that's --
10
1 A If these are 60.
2 Q Yeah, plus or minus 60 feet?
3 A Seventy feet.
4 Q Can you tell by looking at that how high
5 the finished floor is above the site benchmark that
6 we talked about?
7 A Yes, I can. Between the two. It's
92
8 3.54 feet difference between these two.
______________________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
9 Q Good numbers. Do you know what
10 WaterSound's height requirement is maximum height
11 for a tower in the neighborhood?
12 A The only thing I could reference is would
13 be -- no, I don't, cause I don't know the design
14 guidelines, but I could only guess that it would be
15 subject to Walton County's land development code
16 height restrictions of 50 feet.
17 Q Do you know that land development code, I
18 mean, how they determine the height of a building?
19 A I can't tell you how they do it, no. And
20 over time, it has been modified over time. I could
21 not tell you the timeframes. What used to be an
22 absolute measurement and then they started taking
23 the measurement of a ridge or something. I couldn't
24 tell you exactly.
_________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
12 A I'm not sure where the back lot lines are,
13 but I know that in that area, it drops dramatically
93
14 as you go to the lake. I can't tell you on a
15 specific lot or where the lot lines were in relation
16 to those grade changes though.
17 Q Do you know if these height in
18 measurements are taken from the lowest point on the
19 lot compared to the highest point on the building?
20 A I don't recall how Walton County does
21 that, but I thought they had done an average, but
22 I'm not positive.
23 Q An average of --
24 A On your lot. Natural ground.
_________________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
6 Q In particular, I'm looking at these
7 landscape details along the bottom side of that. Do
8 you know if the driveway aprons and parking pads are
9 on the lot or in the common area?
10 A I don't remember off the top my head. I
11 think they were 40-foot right-of-way.
12 Q Maybe I can help you with this. Do you
13 remember when WaterSound Beach was being developed,
14 do you remember if St. Joe installed driveway aprons
15 and parking pads?
94
16 A I think we did parking pads or not
17 necessarily one per lot I don't think. I
18 remember -- I don't remember specific if it was per
19 lot or how that was done. That was done quiet some
20 time ago. We had, I know, developed a number of the
21 parking pads, but I don't know that we've done one
22 for each lot.
23 Q I want to help you, but I sure can't
24 answer for you, and I'm just trying to figure out if
25 you can tell by looking at this if this landscaped
13
1 area on the landscape plan is on the property of Lot
2 24 or if it's in the common area. Oh, here's a
3 question that might help you out.
4 A I can't tell from the drawing from the
5 landscaping whether it is or it isn't.
6 Q Because they didn't dimension --
7 A They didn't give a -- here it is.
8 Q Oh, I can see. That looks like --
9 A That appears to be a right-of-way line,
10 and if that line is true, then the parking and the
95
11 drive aprons are all within the right-of-way.
12 Q What about things like the power pedestals
13 that set out by the road, would they normally be
14 located real close to the property line or would
15 they be within the right-of-way?
16 A Typically, they would be either within the
17 right-of-way or a five foot easement -- five foot or
18 more easement adjacent to the right-of-way.
____________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
2 Q Well, let me ask you this in your
3 experience. If a person or -- if a professional had
4 this survey right here that shows the finished floor
5 elevation and then they had a set of plans for the
6 structure, could they determine how high the ridge
7 was above grade or above this site benchmark?
8 A If the plans were adequate, assuming the
9 plans were adequate. But I couldn't tell you from
10 this drawing how it's relative to the natural
11 ground.
12 Q That's right because it only has that site
13 benchmark, right?
14 A It doesn't mean anything.
96
15 Q What you'd really need is a topo survey or
16 something like that, I guess?
17 A Topographic survey.
________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
24 Q Let's see if there's any information about
25 a benchmark on here. Well, it's way over here.
16
1 There's a note about a benchmark, and I just wanted
2 to see if that matches the foundation plans
3 benchmark.
4 A It appears to say 18.3, top of benchmark
5 number two. It says site benchmark number two,
6 elevation 18.3 up here, but it's so small I can't
7 guarantee I'm reading it correctly.
8 Q Do you know if WaterSound's DRB requires
9 topo surveys?
10 A I can only guess that they would. I do
11 not know. I'm not on the DRB.
12 Q Okay. I'm looking at what may be a topo
13 survey, and it has some squiggly lines drawn on it
14 with little numbers. How would you explain what
97
15 those squiggly lines are?
16 A There should be a legend on here that
17 tells you. Well, from my experience, there's no
18 legend, but there's no legend on the drawings, too.
19 It's a state map.
20 Q Yeah, I got you. So what I'm seeing here,
21 for instance, 17.5 and then the next line says 18.
22 I think the next one says 19.
23 A 18 -- they appear to be half inches
24 increments.
25 Q So every six inches in elevation change,
17
1 they might indicate it on a topo survey.
2 A Um-hum (indicating in the affirmative).
__________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
16 Q Do you know what NGVD stands for?
17 A National Geodetic Vertical Datum or Data.
18 Q Yeah. Also maybe it's National Geo
19 Vertical Datum or something like that?
20 A National Geodetic Vertical Datum, I
21 believe. I'm not positive.
98
22 Q What is that. What is NGVD? To somebody
23 who's not in the business, how do you explain what
24 that means?
25 A Measurement of elevation whether it's 1929
18
1 or 1985 where it had been developed by the Federal
2 government.
3 Q That's right. Okay. Well, let me ask you
4 this. If you had a topographical survey and you had
5 a set of blueprints, could you tell us what the
6 proposed height above grade was of the highest point
7 of the building?
8 A As long as that set of drawings gave a
9 finished floor elevation and they were adequate
10 drawings, we should be able to determine that, yes.
____________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
16 going to ask, if you can, this is, of course, the
17 tower, the tallest part of the building. Can you
18 tell how high above grade they wanted the finished
19 floor of the tower?
20 A The finished floor --
99
21 Q The finished first floor of the tower by
22 looking at that drawing.
23 A Finished first floor of the tower. This
24 one doesn't say first floor of the tower.
25 Q I guess, how about if we say main level
19
1 floor.
2 A Oh, okay.
3 Q How high above grade?
4 A It appears to be -- I can't read if that's
5 2 foot 6 or 2 foot 8.
6 Q Okay. But it may say 2 foot 6 or 2 foot
7 8. Is 2 foot 6 30 inches?
8 A It would be.
9 Q And 2 foot 8 would be 32?
10 A 32.
_____________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
11 Q Okay. That's really all I need to know
12 about that right there. Moving right along. This
13 might have helped you a bunch. While we were
14 looking at the topo side, they were actually showing
100
15 the plot plan as well on a survey. Can you tell now
16 if the area that they're asking us to landscape by
17 the driveway is on Lot 24 or off Lot 24?
18 A Which landscape area?
19 Q This one right here amongst the driveway
20 aprons?
21 A That appears to be outside of Lot 24.
22 Q And there's a note on this that says two
23 sand live oak. Do you have any idea what that
24 means?
25 A You have to plant two sand live oaks in
20
1 that area. Two each.
__________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
Here's another one of the tower,
6 and I'm just wondering if we look at Page 135 and
7 trying to establish the main level floor, how high
8 above grade?
9 A That would appear to be 2 foot 6 inches or
10 2 foot 8 inches. Again, it appears to be the same
11 as the other drawing.
101
___________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
This is Page 138, and it's an email from Tracy
23 Regan to me. I wonder if you can just glance at
24 that top email and read it. I was going to ask you
25 about that. Do you see kind of what Sandra Matteson
21
1 was asking on 5/22 -- or rather Tracy Regan is
2 saying the plans that were approved by the DRB show
3 that the tower does not exceed 50 feet. The
4 concerns of the tower roof when added that was on
5 the approved plans and if built according to the
6 specifications on the plans will exceed the tower
7 height limit. And she's saying there, our office
8 needs something from the architect or engineer that
9 will show that the tower will not exceed the height
10 restrictions when completed. What could an
11 architect or engineer supply to the DRB that would
12 satisfy her request?
13 A I don't know because I don't know what was
14 in the plans to start with.
___________________________________________
102
Mary Rosenheim, WaterSound and Watercolor Board of Director
15 Q Okay. That's good. Okay. This is a
16 letter that Gary Shipman wrote to me. Were you
17 involved with WaterColor by the way. Did you help
18 them in WaterColor, too?
19 A I was on the board about the same time
20 period that I was on the board at WaterSound Beach.
21 Q Not the design review board. The board of
22 directors?
23 A That's correct.
_______________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
4 Q In the last paragraph on that first page,
5 does it give me any instructions on how I'm supposed
6 to do that?
7 A Advised that you must lower the tower
8 structure so that it complies with the approved roof
9 does not exceed 50 feet.
10 Q Would you take that to mean I should lower
11 the tower structure? It says, please be advised --
12 A Advised that you must. But in the
13 paragraph above -- I'd take it to mean I have to
103
14 make sure that my finished structure is 50 foot or
15 less.
16 Q Does it say in there that it may be in
17 violation or that it is in violation?
18 A It says in addition, your current
19 structure is in violation of the county height
20 ordinance on 30-A.
21 Q And then in the next paragraph they're
22 telling me how to take it out of violation; is that
23 right?
24 A Please be advised that you must lower the
25 tower structure so that it complies with the
24
1 approved roof design does not exceed 50 feet.
2 Q I know it's probably a dumb question, but
3 I've just got to get your answer from reading that.
4 Are they saying that I'm in violation or may be in
5 violation.
6 A When I first read it, the second
7 paragraph, it states that in addition, your current
8 structure is in violation.
104
9 Q Do they ask me to go out and get a new
10 survey in that letter anywhere? I mean, what
11 actions are they asking me to take?
12 A They're asking you to lower your tower
13 structure, complies with the approved roof design,
14 does not exceed 50 feet height, and if you don't
15 undertake the obligation, they will seek an
16 injunction
___________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
Q All right. I'll set that aside then.
5 It's really black, that one. What about in this
6 photo. It's Number 161. Can you tell where the
7 yacht pond would be in that photo?
8 A Right there, I think. (Indicating.)
9 Q Yeah. I'll have you just circle it with
10 that marker as best you can. Construction pen. And
11 then this photo here it 162. If you could, tell me
12 where you think the yacht pond would be and Lot 24?
13 Could you do the same and just circle it for me?
14 I'm seeing a load of vehicles, and it looks like
15 trailers maybe. Did you work in WaterSound at that
16 time?
105
17 A I'm sure I probably did. I don't see --
18 all I see is a black blob. You can't read the
19 aerial photograph. It's too dark to read.
20 Q Let me see if I have any questions about
21 it. How about this area right in here? I'm just
22 circling. It looks like it's south of the yacht
23 pond. Did there used to be construction parking in
24 the middle of town or were they trailers?
25 A I believe this was set up as the offices
27
1 and stages of the construction of the multi-family
2 units here and here.
3 Q Did St. Joe or any of the other
4 development people have to bring in any fill dirt
5 into WaterSound Beach?
6 A I can not definitively say. I don't
7 recall. It's been a long time.
8 Q That's okay. What about in this picture,
9 if you could do the same with that ugly magic marker
10 and try and tell us where you think --
11 A Yacht pond?
12 Q Yeah, the yacht pond.
106
13 A Right there. I'm only going by memories
14 from that one.
15 Q Okay. That's fair enough. Have you ever
16 seen any documents that look like this before, this
17 is -- what page number does that say down there?
18 A 172.
19 Q Yeah.
20 A It looks like minutes from a meeting.
21 Q Do you know if you were a board member at
22 that time? What's the date of that meeting?
23 A February -- Thursday the 14th of February,
24 2008.
25 Q Does that mean you were there or that you
28
1 were a board member?
2 A Members present.
3 Q Oh, there you go. What's a quorum?
4 A Enough folks there for the vote, to have a
5 quorum for a vote.
6 Q Let's see. If you would, turn to the next
7 page and look at the top there. There's a mention,
107
8 it says debris on John Carroll's lot. Do you
9 remember me bringing any pictures to a board meeting
10 of debris on my lot?
11 A I vaguely remember you being there when I
12 was a board member, John, but I don't remember
13 specifics. I'm sorry.
14 Q That's okay. I see that after -- it says
15 debris on John Carroll's lot. It says, each issue
16 was discussed in detail. The property manager as
17 well as the board of directors was charged to
18 research the issue and followup with homeowners on
19 the way ahead. Do you know what actions the board
20 took regarding the debris on my lot?
21 A The board on your lot? I don't think so.
22 Q The property manager as well as the board
23 of directors was charged to research the issue and
24 followup. Do you know what actions?
25 A I don't recall. I don't see any notes on
29
1 it. I don't recall. I thought it was a matter
2 between St. Joe Company and John Carroll.
3 Q Yeah. Do you remember any times where I
108
4 brought this to the attention of just St. Joe in
5 private meetings?
6 A I do.
7 Q And did we satisfactorily take care of
8 that?
9 A To my knowledge.
10 Q And do you know what action St. Joe took
11 to remediate the trash that I allege that was buried
12 in the common area?
13 A No. I understood there was a geotech
14 report, and that's all I recall is a geotech report
15 done for the area, but I don't recall much about it.
_______________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
Do you
19 know who Ron Voelker is?
20 A He's a surveyor.
21 Q Did he take over Sam Bruner's business?
22 A I don't know.
23 Q How do you know he's a surveyor?
24 A My husband is a surveyor.
25 Q That's right. Scott?
109
30
1 A Um-hum (indicating in the affirmative).
2 Q Does he know Ron Voelker?
3 A I don't know. I would imagine.
4 Q When you look at this survey, can you tell
5 what date it was certified?
6 A 16th of May, 2008.
7 Q And do you think that's the day that the
8 surveyor did the field work? Is there any way to
9 know what day he did the field work?
10 A Field date, I can't read it. Here's the
11 field date.
12 Q Yes.
13 A They usually have a field book number. It
14 says non applicable, which I can't read the date.
15 It's something May 2008.
16 Q That's pretty good. You looked right to
17 the top corner. You knew where it was. Most of the
18 witnesses are like I don't know, you know. But,
19 yeah, I can see that date, too, and it's hard to
20 make out what it is. But is it safe to say by
21 looking at this that the field date was on or before
110
22 May 16th, 2008?
23 A I can't really read that date.
24 Q What about the date that he certified it?
25 A The 16th of May, 2008. That's very clear.
31
1 Q Do you think that the field date was done
2 on or before that --
3 A Prior to -- should have been prior to, or
4 he should not have been able to do his survey.
5 Q That's right. I see on the bottom of his
6 survey, it says elevation 00, and then there's
7 another number at the top. I don't know what it is.
8 48 something. What does elevation 00 mean?
9 A He's making a reference to not an NGVD
10 elevation but he's making a reference somewhere on
11 here that it's a zero, and it's for the purpose of
12 only measuring height.
13 Q That's what I was going to ask you --
14 A But I don't know where 00 is.
15 Q Neither do I. How about on this next one
16 here, which is Page 182. I think that one has
111
17 elevation 00, too. And the height elevation has
18 changed?
19 A It appears this elevation is 46 but,
20 again, I don't know the starting point and where the
21 0.0 feet is on either drawing.
22 Q Can you tell by reading any of the general
23 notes where 00, what that references is?
24 A I don't see a reference.
25 Q Have you ever seen a survey that looks
32
1 like that before?
2 A This is a specific purpose survey. I see
3 a lot of specific purpose surveys.
4 Q Oh, you do?
5 A Yeah.
6 Q What is a specific purpose survey?
7 A It's done by a client that's looking for a
8 very specific measurement or something like that,
9 but it's not necessarily a boundary or a topo or
10 follow some specific state statutes I believe.
11 Q There's a note on here, I think, that says
12 revision, revised height of structure, June 9th.
112
13 Can you tell on there what the field work date was?
14 A For -- not for the revision. They don't
15 note it.
16 Q They don't?
17 A Not that I can see.
18 Q Do they mention any dates --
19 A Yeah, field date 16th of May, 2008.
20 Q What job number does it say this was?
21 A 440.
22 Q That's the same job number as on this.
23 Okay. Under the surveyor's notes, I think the very
24 last note has some writing. I was going to ask you
25 to read that.
33
1 A Due to converging inward nature of the
2 structure and the unavailability of access to the
3 top of the structure, the height could be as low as
4 45.4 feet or as high has 47.1 feet.
5 Q What do you think that means?
6 A That means that he couldn't necessarily
7 define it? I'm not sure. Maybe it was an
113
8 instruction on how it is to be measured given the
9 note. Lack of understanding of what he needed to
10 measure. I'm not sure what he meant by that.
11 Q I just wonder about this. He's saying the
12 revised height of the structure, and then he puts
13 that note on there. Does that note explain why the
14 first elevation was listed at 48.53 feet?
15 A I can't read these notes. No.
16 Q I think his revision actually says there's
17 a range that this height could be. It could be as
18 low as something or as high as something. Was his
19 first survey outside that range?
20 A I can't answer that question.
21 Q Well, if you look here, I think it says it
22 could be as low as 45 feet or as high as 47 feet,
23 but when we look at his first elevation, it appears
24 to be outside that range.
25 MR. GEORGE: Object to form.
34
1 Q Is 48.53 feet outside the range the
2 surveyor describes in the revised survey?
3 MR. GEORGE: Object to form. You don't
114
4 know that zero is the same on both of those
5 drawings, John.
6 A We don't know what the starting point --
7 it comes back to the starting point.
8 Q It does, doesn't it. By looking at these,
9 do you think that he changed his starting point?
10 A I can't say.
11 Q I don't know any professional who could
12 say by looking at what was given here.
13 A I don't know what the assumptions are for
14 the zero.
_______________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
11 Q That's a good point. When we talk about
12 the 96, the six represent tenths or 100's.
13 A The six is 100's. If you're referring to
14 this decimal place, it's tenths and 100's.
15 Q Okay. And that is 100's of a foot?
16 A Foot.
17 Q A hundredth of a foot is a pretty small
18 number I'd bet.
19 A It is.
115
_______________________________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
8 Q Okay. Do you know if Lot 24 was covered
9 with fill after the construction of the gatehouse
10 was complete?
11 A No, I don't know.
12 Q Do you know what nitroglycerine is. Have
13 you ever heard of nitroglycerine before?
14 A I have.
15 Q Do you know what it is?
16 A Explosives?
17 Q Pretty much. I guess you could say it's
18 explosives.
19 MR. GEORGE: You don't have any of that
20 with you, do you?
21 MR. CARROLL: Yeah, there's nitroglycerine
22 in these.
23 BY MR. CARROLL:
24 Q Do you know who would have possibly had
25 these powder actuated fasteners out at Lot 24 during
39
1 it's lay-down days?
116
2 A I have no idea.
3 Q I assert in my lawsuit that this is --
4 that there's nitroglycerine in this and there's led
5 styphnate and some other things. Do you know how
6 many cases of these were found on Lot 24?
7 A No, I don't.
8 Q Would you be concerned as a homeowner if
9 you found stuff like this buried under the ground,
10 or would you not?
11 A I didn't know what they were, so probably
12 not.
13 Q This was another exhibit from earlier.
14 It's called Plaintiff's Exhibit 5, and it's shown in
15 picture 184. Do you recognize what any of these
16 types of things are?
17 A Appear to be rubber gaskets.
18 Q Do you know what a concrete pump is?
19 A Um-hum (indicating in the affirmative).
20 Q Have you ever seen the hoses that operate
21 concrete pumps? Does this look like one of the
22 gaskets for --
23 A Depends on the size.
117
24 Q Yeah, it does. You're right. Let's set
25 it aside. This one. It's another item. Have you
40
1 ever seen one of these brick type of pavers before?
2 A I've seen a number of brick pavers before.
3 Q Do you know what kind of brick pavers they
4 used for the ribbon curves at WaterSound Beach?
5 A In the integral inlay?
6 Q Yeah.
7 A It seems to be similar to that.
8 Q Right along side the paving?
9 A I don't remember the specifics. It was an
10 Apian, and that's all I can recall.
11 Q A what?
12 A Apian. It was the shape and size.
13 Q Oh, I got you. Let's set this aside. Do
14 you know what the streets are made of in WaterSound
15 Beach?
16 A Stabilized sub base, base material. Some
17 asphalt. Some brick paver.
18 Q What's stabilized sub base?
118
19 A It's what the base material sits on.
20 Q And is it sand, rock --
21 A It usually -- well, it depends upon what
22 the engineering has specified. It's usually the
23 native material mixed with an imported material to
24 bring it to a certain density level of compaction.
25 Q Okay. Got you. So then we have sub base,
41
1 and what's on top of that?
2 A Base.
3 Q And what do you think the base material
4 is?
5 A I don't recall what we used there in
6 particular.
7 Q What types of things have you seen in the
8 past?
9 A Aggregate bases.
10 Q Aggregate is rocks?
11 A Rocks, which could be limestone lime rock.
12 It could be asphalt base.
13 Q When it's asphalt base, is it recycled
14 asphalt or something?
119
15 A Not necessarily. It's a very specific
16 type of asphalt base.
17 Q Do you know what the ingredients in
18 asphalt are?
19 A Sand, rock, bituminous. It depends on the
20 gradation that you ask for.
21 Q What is binder? What's asphalt binder?
22 A Everything that holds it all together.
23 Q What is that made of?
24 A The bituminous material.
25 Q Is it a carcinogen?
42
1 A I can't answer that question. I don't
2 know.
3 Q The geologist that came out there -- we
4 were talking about a geotech report a little while
5 ago. He found asphalt binder lacking aggregate, no
6 aggregate in asphalt. How could that possibly get
7 underground. I'm just wondering. Do you know? I
8 mean --
9 A I don't know. Did he test it and it said
120
10 it was a binder or was it by appearance.
11 Q What he did was he broke it with an auger,
12 and he said, I don't get it. This has no aggregate
13 in it. This is not --
14 A Sounds like a sand asphalt mix.
15 Q Any idea how it could get underground in
16 the common area?
17 A Probably during construction.
18 Q Do you know what PAH is?
19 A No.
20 Q Well, do you remember me ever bringing
21 evidence to board of directors saying that there are
22 asphalt binders or PAH underground at Lot 24 in the
23 common area?
24 A I don't recall specifically, no, not at a
25 board of directors meeting.
43
1 Q When you were a board member, if I brought
2 something like that to your attention or anyone
3 brought it to your attention, do you think you would
4 investigate?
5 A Oh, I'm sure.
121
_______________________________________
Mary Rosenheim, WaterSound and Watercolor Board of Director
Let's see this next. Do you know
11 what this is?
12 A Rebar.
13 Q Do you think there's any rebar in the
14 Compass Point buildings?
15 A I can only surmise that there would be.
16 Q What about in the gatehouse, does it have
17 any concrete floors or anything in the gatehouse
18 building?
19 A I assume. I don't know.
20 Q I'm trying to think of a reason why
21 something like this would be plus or minus 30 inches
22 underground. Do you know any reasons how something
23 like this could get underground in the common area?
24 A It could be a number of different ways it
25 can get underground. One of them it could be
44
1 buried. I don't know.
2 Q Would it be buried if they brought in
3 fill?
122
4 A Could be.
5 Q Let's see. Do you know what this is?
6 It's marked as Exhibit 6?
7 A No, I don't.
8 Q Do you know how something like this could
9 get underground near 24?
10 A The only thing I can tell you, John, is
11 that it had to have been buried at some point. I
12 don't know.
13 Q I hate to ask stupid questions, but I
14 still have to get those kind of answers. I just,
15 you know -- I mean, I can scream it on the top of a
16 roof top but for some reason people don't believe
17 me. If I had brought this to your attention, would
18 you have investigated or asked somebody to go out
19 there and start looking around and find out what
20 else is under the ground at the common area?
21 A It wasn't a common area question that you
22 brought to us. It was a Lot 24 question that you
23 brought to us.
24 Q And y'all took care of it --
25 A Yes, we did.
123
45
1 Q -- righteously. I mean, you dealt with
2 it. And that's what I'm wondering is the board
3 doesn't want me to open the ground in the common
4 area. I planted trees there. They keep dying. The
5 geologist says you can't grow in asphalt binders.
6 You can plant trees till you die and they're going
7 to continue to die. And I'm trying to figure out,
8 how the heck do I get somebody to open the ground in
9 the common area. Do they need your permission to do
10 it? I mean, how do I get somebody to open the
11 ground in that common area?
12 A I don't know. I thought there was a
13 report in the common area.
14 Q There was. Do you remember reading it?
15 A No.
16 Q Do you know who Dale Putz?
17 A I do.
18 Q Is Dale Putz a geologist that you know of?
19 A I don't know. All I know is from the
20 board. I have no idea.
_________________________________________
124
Mary Rosenheim, WaterSound and Watercolor Board of Director
13 BY MR. GEORGE:
14 Q You were on the board for WaterSound and
15 for WaterColor?
16 A Yes, sir.
17 Q At the same time?
18 A Yes, sir.
19 Q Did those two boards ever get together and
20 discuss John Carroll or Chambers Street Builders?
21 A Not that I recall.
22 Q Had those two boards gotten together and
23 discussed John Carroll or Chambers Street Builders
24 during the time you were on those boards, you would
25 have been aware of it, wouldn't you?
49
1 A Yeah, I would have been aware of it. But,
2 no, we did not.
3 Q Did you as a board member on either the
4 WaterSound board or the WaterColor board have a say
5 or a vote in whether John Carroll or Chambers Street
6 Builders was removed from the approved builders
125
7 list?
8 A No.
9 Q Was that a decision that was made by
10 somebody other than the board of directors?
11 A I would assume so.
12 Q Do you know who made that decision?
13 A No, I do not.
______________________________________
Drew Robertson, Professional Geologist
Q Could you state your name for the record,
15 please.
16 A Drew Robertson.
17 Q And are you a professional geologist?
18 A I am.
19 Q And what's the name of the firm that you work
20 for?
21 A Soils, Sediment & Subsurface.
22 Q In order to be a geologist, do you have to be
23 licensed in Florida?
24 A Yes.
25 Q Are you a licensed geologist?
6
1 A Yes.
126
2 Q And if you would, could you tell me
3 approximately when you obtained your license?
4 A I think I got my Florida license in probably
5 2002, 2003, somewhere in there.
6 Q Did you have to have special training to get
7 your license?
8 A Yes.
9 Q And what was that training like?
10 A You had to have a four-year degree from an
11 accredited, board-accredited university. And then I had
12 a master's degree on top of that, so it took down some of
13 my professional time, and you have to have five years
14 professional time, certified by either a professional
15 engineer or a professional geologist.
16 Q And that was all before you obtained your
17 license in 2002?
18 A Yes.
19 Q Do you think you could quantify how much
20 experience you have then?
21 A I've been doing either consulting work or work
22 with DEP, with the State, or in the private sector since
23 1999.
127
__________________________________________
Drew Robertson, Professional Geologist
Q Okay. The soil study or the -- would you call
25 that a soil study, or what did you do out there at
7
1 WaterSound Beach?
2 A I was pretty much contacted just to pretty much
3 just identify the underlying soil types or what was
4 present at the test locations.
5 Q Is that kind of a test or analysis something
6 that's typical of a geologist?
7 A Yes.
____________________________
Drew Robertson, Professional Geologist
Q Yes, at WaterSound.
12 A I do. When I look back over the report, I
13 mean, I don't just -- you know, I've done a lot of work
14 since then. This was in February of 2010. But I do
15 remember drilling around the electrical transformer and
16 on the -- I guess that would be the west side of your
17 home, I think along the main roadway that goes over to
18 that pond, I think.
__________________________
128
Drew Robertson, Professional Geologist
Q That e-mail that you just read, do you know if
7 that's a fairly accurate assessment of what you found out
8 there that day?
9 A Well, I mean, some of the terms I'm not real
10 sure, you know, these binders that you're talking about,
11 "lead me to believe that cured emulsion or binder." It
12 seems logical. And I'm not sure, with pressure-treated
13 wood and other materials, a wash-out or lay-down zone,
14 you know, I'm not exactly sure what you meant there. I
15 can say, on the stuff I encountered, you know, six inches
16 of asphalt, in some spots three inches, areas with
17 limestone gravel, buried roots and limbs one inch in
18 diameter, that stuff is clearly a fill material of some
19 sort. Whether it was smoothed out or just dumped, I
20 don't know.
21 Q That's a good question to talk about now. That
22 material that you found in your soil borings, is it
23 naturally occurring in that area?
24 A No.
25 Q Is it naturally occurring anywhere, to find
14
1 that kind of stuff under --
129
2 A No. Normally, you -- organic material like
3 this, what I was calling peat-type material, that is very
4 common in coastal areas where either the area at one time
5 was filled and that's the old organic mat or a marsh type
6 sediment or where sea level through time has
7 transgressed, as we call it, and the beach kind of
8 horizon overlays the old peat horizon. That's what we
9 call transgression sequence.
10 But the limestone gravel, you don't get
11 limestone gravel lenses in that coastal environment.
12 What we call the classic wedge there at the coast, which
13 is an unconsolidated sediment, it doesn't lend itself to
14 have limestone there. And asphalt, definitely not.
15 That's a man-made product.
_________________________________
Drew Robertson, Professional Geologist
Q While we're talking about the limestone on
17 there, where is that classically found; do you know?
18 A Limestone in that area should be mined --
19 probably the closest mine I can think of off the top of
20 my head would be somewhere up in the uplands, Marianna,
21 I-10 corridor, or probably somewhere from Carrabelle.
130
22 Q That's a pretty good ways from WaterSound. Do
23 you know about how far that it from WaterSound?
24 A As a crow flies, Carrabelle to WaterSound is a
25 hundred miles probably. I'm not real familiar with the
15
1 limestone pits north of the Destin area. There's
2 definitely limestone at depth up there. Marianna Caverns
3 is limestone.
4 Q We were talking about just a second ago about
5 the word "pits" or "mines." Does that classically occur
6 within the first three feet of the surface, or is it at a
7 deeper depth?
8 A Well, a mine, typically your limestone mines
9 are not -- typically you don't get limestone crushed up
10 in gravel like this. This is what street guys call --
11 this would be lime rock. This is crushed up aggregate.
12 Limestone comes out of the ground, either you blast it or
13 you pound it, and you get big boulders. And then you
14 mechanically break the boulders down to the size that you
15 need. So you really don't get -- limestone doesn't
16 weather like granitic rock or anything, where you get
17 little pea gravel or anything. If it was rolling around
131
18 in a stream, it would just degrade into nothing.
19 Q Okay. What about the asphalt that you
20 mentioned in the report, do you remember picking any of
21 it up and breaking it that day?
22 A I don't recall.
23 Q What I'm wondering specifically is do you
24 remember the presence or lack of presence of aggregate in
25 that asphalt material?
16
1 A I do, but I've just read your e-mail that
2 stated that, and I think I recall you and I talking about
3 that, that it looked more like it was the slag or kind of
4 like cold patch, but I don't truly remember that off the
5 top of my head. I don't know if it's just been refreshed
6 from this or not.
7 Q That's fair. If it had aggregate in it, could
8 you break it with your hands; do you know?
9 A Asphalt should not be -- you should not be able
10 to break the aggregate in asphalt with your hand. It
11 should be a granitic rock, probably out of southern
12 Alabama, somewhere like that.
13 Q Do you know what the ingredients are that make
132
14 asphalt or any of the ingredients from asphalt?
15 A Yes. You have an aggregate. You have some
16 sand. You have the emulsifiers and the kind of glue, if
17 you want to say, which is the tar and petroleum
18 constituents. And it kind of binds that in so it's what
19 we call a flexible pavement. But it's kind of a mixture
20 of sands and kind of a coarse fraction of sediment, and
21 then the clean sand is aggregate, and then your asphalt,
22 your bituminous materials.
23 Q We were just talking about the glue, I guess
24 you said. And I'm just wondering, do geologists know
25 about that kind of stuff in their business? Is that
17
1 something that you need to understand or be able to
2 identify?
3 A We're not, per se, in school trained. Roadway
4 construction and the products to make roadways are not in
5 my formal education. I've been doing geotech work for
6 most of my time, so just from working with road engineers
7 and being affiliated with a structural and civil company
8 that designs roads, I know what I need to.
__________________________________
Drew Robertson, Professional Geologist
133
Q What's the concern if somebody builds a home on
11 uncompacted soil?
12 A The home will differentially settle. The soils
13 will compact with time. And since you now have a house
14 sitting on that soil, it will subside as the soils
15 subside.
______________________________________
Drew Robertson, Professional Geologist
Q I understand. As a geologist, have you ever
17 heard the term "polycyclic aromatic hydrocarbons"?
18 A Yes.
19 Q Commonly I guess they're known as PAHs?
20 A Uh-huh (indicating affirmatively).
21 Q Can you describe what a PAH is?
22 A PAH is -- I used to do a lot of environmental
23 work. And PAHs are the heavy constituents when you run a
24 mass spectrometer on petroleum constituents, and they're
25 the constituents that -- on a mass spectrometer, they're
19
1 on the heavy side of the curve. They're a product of
2 diesel fuels, heavy oil fuels. At least in the
3 environmental world, that's the way I know them. I'm
134
4 sure there are other chemicals that they are derived
5 from.
6 They're a particular, not element, but the
7 carbon chain that makes them, they're like a species.
8 They're their own piece, but they can be mixed in with a
9 whole bunch of other stuff to form fuel.
10 Q Do you know if PAHs are considered a
11 carcinogen?
12 A PAHs, there's many -- there's a couple
13 different elements, or not elements, there's a couple
14 different chemicals that are within the PAH
15 classification. I do think they are. I'm not sure.
16 Q I'm going to slightly change my line of
17 questioning. I just wondered, are PAHs a byproduct or
18 are they evident in the binders or emulsions that we
19 talked about to form asphalt? And when I say the
20 emulsions, I'm talking about just the petroleum-based
21 ones.
22 A I'm not sure.
23 Q Do you know anything about the effects of PAHs
24 reaching the groundwater? Is there any concern about
25 that amongst geologists, or is it something that's
135
20
1 usually studied?
2 A Uh-huh (indicating affirmatively).
3 Q It is?
4 A Uh-huh (indicating affirmatively).
5 Q What's the concern? Why would somebody look
6 into that type of thing?
7 A Well, most times your PAHs are within the --
8 DEP has a certain -- in Florida at least, DEP has a
9 certain criteria. When you expect a site to have
10 contamination, you usually fall back on the DEP
11 guidelines that you test for VOCs, PAHs, some other --
12 they've got stuff called the FL-PRO, the Florida
13 Petroleum Range Organics. And PAHs are part of that.
14 So I don't know that table out of the Florida
15 Statutes off the top of my head, but there's a reason
16 we're looking for PAHs. And that would have to mean
17 there's a threshold either established by EPA or by DEP
18 that they don't want you to exceed. That's my thought,
19 what I would think is the reason we look for it.
____________________________________
Drew Robertson, Professional Geologist
A Okay. (Views document.)
136
7 Q I'm going to actually letter them. I'll go
8 with A, B and C, just to make the record clear. I don't
9 know if I'm writing upside down or not. In photo C,
10 which I think is page three of that exhibit, I allege
11 that that's a photo of the footing line at Lot 24. And
12 I'm just wondering if you notice anything peculiar about
13 the soil in that photo, in your opinion, as a geologist.
14 MR. GEORGE: Object to form.
15 THE WITNESS: What was that?
16 BY MR. CARROLL:
17 Q He just objected to form. You can answer.
18 A It looks like to me there's -- if that's a
19 normal footer, I'm expecting it to be 16 inches deep
20 maybe. Maybe that's a little deeper, 24 inches. And
21 there's three different very distinct soil layers, which
22 I wouldn't expect.
23 Q When you say that you wouldn't expect, is that
24 a natural occurrence near the coastline, to see something
25 like that in a footing path?
22
1 A I would not expect it.
137
2 Q And I guess, just for record purposes, can you
3 tell me why you wouldn't expect to see that?
4 A Well, when you get -- these are what we call
5 unconformities here and here. These differences between
6 the sediment packages indicate some sort of big
7 environmental change. If they were deposited naturally,
8 there would be something shifted and changed
9 significantly to get this white band, and then something
10 changed again significantly to get this reddish brown
11 band above it.
12 Typically, you don't get that. You know, maybe
13 at the end of a barrier island or, you know, where the
14 island is moving around a bit, but that's -- just working
15 at the coast, I wouldn't expect to see that.
16 Q For Chris' purposes anyway and for the record,
17 what we're talking about are these more or less three
18 distinct stripes of soil that you see in that photo. Is
19 that correct?
20 A Yes.
21 Q I think I heard you say you expect to see that
22 from some significant -- what was the word you said?
23 A You'd expect an environmental change, some sort
138
24 of depositional environment change to get -- if that was
25 truly deposited sediment, you would have to have either
23
1 some sort of catastrophic landslide or something to get a
2 transition that sharp, or say like a huge hurricane that
3 blasted over the coast and we got a new bit of sediment
4 down and then the coast came back to its old spot and we
5 got new deposition on top of that, something pretty
6 significant.
7 Q Let me go ahead and ask you then, do you know
8 of any satellite imagery programs where somebody might go
9 to refer and look at lots like this one to see if there
10 were any major events over time?
11 A It's been a while. I did my master's work on
12 coastal geology at the tip of Cumberland Island. And I
13 used stuff from -- because I was mapping out storms and
14 sediment packages like this on a tip of an island. And
15 I'm pretty sure DEP has historical hurricane paths to
16 like the 1800s. And then satellite imagery, DOT has a
17 whole swath of aerial coverage back to the fifties. And
18 I'd have to look. I can't recall where else I pulled
19 data from.
139
20 Q What are some of the other ways that one would
21 explain how soil could come to look like that? Are there
22 any other ways?
23 A Well, without seeing the soil and being able to
24 see the textures or anything in it, because to me, this
25 looks like -- you know, it's hard to tell in these
24
1 photos -- but fill, fill material.
2 Q When we talk about fill, is it common in new
3 developments, for the horizontal development of the
4 neighborhood, for them to actually change the grade for
5 certain reasons?
6 A Yes.
7 Q And they'll do that by bringing in fill?
8 A Either fill or it can be off-site fill, it can
9 be on-site fill. You know, value-engineering-wise you
10 try to what we call balance a site, where you just shift.
11 If you're cutting over here, you're filling over here, so
12 that you're not hauling off material or anything.
13 Q I understand. That makes good sense. In the
14 first two photographs, they're called A and B -- let me
15 see if I can help in any way. There are some things that
140
16 I allege that I found in that same footing path, and I
17 just wondered, do you know if that's a natural
18 occurrence, or could that be man-made?
19 A Well, to me, from the photographs, especially
20 in A, it looks like there's a two-by-four facing me. So
21 that's -- at least that two-by-four and it looks like
22 these concrete blocks would be man-made material.
________________________________________
Drew Robertson, Professional Geologist
6 Q Pretty neat. I've never heard of that one.
7 What about something a little more simple? Are there
8 usual assumptions that can be made when you see actual
9 wetlands in something, that helps you determine the
10 topography there --
11 A Yes.
12 Q -- in relation to the surroundings?
13 A Uh-huh (indicating affirmatively).
14 Q Are wetlands normally higher ground or lower
15 ground?
16 A Lower ground.
_________________________________
Q W Drew Robertson, Professional Geologist
We have an exhibit here that's called
141
23 Plaintiff's Exhibit 5, and I just wondered if that's
24 something that's naturally occurring along the beach
25 underground.
27
1 A No, I would not expect that.
2 Q This rod here, is that something that's
3 naturally occurring along the coast underground?
4 A No. It looks like a number six or seven bar,
5 rebar.
6 Q Does rebar deteriorate when it's underground?
7 A Yes.
8 Q Does it oxidize or anything?
9 A Yes.
10 Q What about this one? It's called Plaintiff's
11 Exhibit 4, and I think I'm seeing it in photograph B, but
12 I just wondered if you could identify what you think that
13 is.
14 A It looks like some sort of rivet system, where
15 these star screws come out maybe and the rivet pops off
16 and you use it for --
17 Q Have you ever come in contact with a device
18 that's called a powder actuated fastener?
142
19 A Yes.
20 Q Do you know what a power actuated fastener is?
21 A Yeah. It's like for attaching your bottom wall
22 plate to a floor, something like that, to a slab.
23 Q Why would somebody use a powder actuated
24 fastener to fasten something to a sill, I think you said?
25 A Well, most times it's so you don't have to
28
1 pilot drill a hole and put, you know, a big screw or
2 something down through a plate. You can just shoot it
3 in. These are like little .22 cartridges.
4 Q Well, that's what I was going to ask you is,
5 when they say powder actuated, what is the powder?
6 A If I recall, I think it's gun powder. I think
7 it's just -- it's got a primer and there's powder. Once
8 you detonate the primer, the powder explodes. And since
9 it's contained in a casing, it pushes the nail head out.
10 Q This document here is going to be the next
11 exhibit. Unfortunately, I don't remember what number
12 we're on. I think we were on 4.
13 A I think 4.
143
14 (Plaintiff's Exhibit No. 6 was marked.)
15 Q I'm going to call this Plaintiff's 6, just so
16 we don't accidentally duplicate. You described what a
17 powder actuated fastener was without looking at anything.
18 Is that the safety data sheet for a powder actuated
19 fastener?
20 A Yes.
21 Q What is a safety data sheet or a material safe
22 handling sheet?
23 A It's a standardized MSD sheet. It's a
24 standardized sheet that tells anybody who looks at it,
25 employees, employers, anybody, the chemical makeup of the
29
1 constituent, any kind of health safety issues, what you
2 have to do if you get it on you, just kind of a general
3 sheet over any kind of applicable item that may go on
4 with the material.
5 Q Let me just ask you about that. I guess in the
6 very beginning it says ingredients. And I just wondered,
7 the ingredients that are listed there, do you recognize
8 any of those terms from geology?
9 A I mean, through chemistry classes, I've seen
144
10 them. I couldn't tell you their elements or anything.
11 Nitroglycerin, it's pretty obvious what it is.
12 Q I'm going to skip down to this and just see,
13 there's probably a hundred ways to dispose of things like
14 this. And I just wondered if there are any listed on
15 here. Let's see. Here it is, waste disposal. Under the
16 waste disposal section there, I want you to just
17 familiarize yourself with that.
18 A Okay. (Views document.)
19 Q Is it okay to bury these to dispose of them?
20 A I would not think so, if these are still live
21 rounds, because it says misfires, and misfire would be a
22 round that did not ignite. No. They're supposed to --
23 I'm just reading this. Disposal method is in a burner
24 specifically designed to destroy ammunition.
25 Q Well, in your experience anyway, how many cases
30
1 of these is it okay to bury before you need to do some
2 kind of remediation?
3 MR. GEORGE: Object to form.
4 BY MR. CARROLL:
145
5 Q You can answer, if you want to, or if you --
6 A I don't really -- I don't know the life cycle
7 of those, how they leak. I don't know enough about them
8 to answer that logically.
9 Q Would you need to have information contained on
10 one of these material data safety sheets in order to make
11 that determination?
12 A If I knew the -- the only way I know right now
13 to quantify how many you would need to leak to cause an
14 issue, I'd need to see how many parts per million or
15 parts per billion of the nitroglycerin, say, is in them,
16 and then see how much is allowed as target thresholds in
17 the Florida Statutes. And once you added up enough of
18 them to exceed that, I could tell you the number.
19 Q That makes good sense. Go back to the
20 beginning here. I think you said that Bernadette
21 Halloran was the one who hired you. Did you talk to
22 anybody else before you came to the site? Or I should
23 say anyone associated with WaterSound anyway.
24 A No, not that I recall.
25 Q Did Bernadette tell you specifically to look
31
146
1 for things like powder actuated fasteners?
2 A No.
3 Q There is something I had a question on on your
4 report. I want to make sure I'm understanding this.
5 There's something on here that I'm seeing. I guess it
6 says, on page one of your report, let's see. I see this
7 word "roadway base material." Is that what we were
8 talking about before, the limestone and things like that?
9 A Yes.
10 Q And then there's something that says "small
11 pockets of dark brown organic rich material." Do you
12 know what those were made up of?
13 A No, because I didn't -- wasn't requested to
14 actually break those down.
_____________________________
Drew Robertson, Professional Geologist
18 Q The day that we went there, do you remember
19 about how many people were there that day?
20 A I recall I got to the site, I got to the
21 entrance, met Bernadette, came down, met you. And I
22 think Bernadette, you and I pretty much were there
23 drilling, and then some other gentleman showed up towards
24 the end.
147
25 Q When we talk about this other gentleman, do you
32
1 remember a man coming that had silver or gray-colored
2 hair, towards the end?
3 A I think so. I think he drove a big black
4 Suburban or big --
5 Q That was going to be my next question, but you
6 answered it for me. Do you remember if that gentleman
7 took any photos when he was there?
8 A Yes.
9 Q Did he take photos?
10 A Yes.
__________________________________________
Drew Robertson, Professional Geologist
11 Q I've got to ask. Was there anything that you
12 pulled out of the ground in your soil samples that was
13 not naturally occurring there?
14 A Was there anything I pulled out of the ground
15 in my soil samples that was not naturally occurring?
16 Q Yes.
17 A Yes.
18 Q Okay. Did you take more than sand and rocks
148
19 out of the ground that day when you did your soil
20 borings?
21 A Yes.
________________________________________________________
Drew Robertson, Professional Geologist
Q Well, did you find anything that would cause
17 you to recommend the removal or any kind of remediation
18 be done before you build on that lot?
19 A Before I would -- if I was the testing engineer
20 on this or testing geologist, if this was running through
21 my firm, I would recommend some bearing values on what I
22 thought was fill material, to verify that it was placed
23 in correctly.
24 Q And assuming those bearing tests turned out
25 okay, then you wouldn't recommend any further action?
37
1 A Not on the material I found in the -- well, no.
2 The area where you've hit the organic material, like in
3 B-3, 30 to 36 inches, you're not allowed, per code, to
4 have an organic material within a certain depth of your
5 foundation. If you do, you have to design a foundation
6 to compensate for it.
149
7 So like that one, I would recommend at least
8 cutting that material out to 36 inches and backfilling
9 with properly compacted material.
10 Q Did you recommend that to Mr. Carroll?
11 A No, I did not.
12 Q Did you recommend that to Ms. Halloran?
13 A No, I did not.
14 Q Why not?
15 A My task, when I talked with Bernadette, was to
16 report what I found.
__________________________________
Drew Robertson, Professional Geologist
I don't recall much conversation, to be honest.
25 I didn't really even know what I was supposed to be doing
38
1 there except just drilling holes.
__________________________________________
Drew Robertson, Professional Geologist
Q We talked about what you were hired to do. And
10 I think you said to both Chris and I that you were
11 essentially hired to conduct soil borings and tell
12 Bernadette what you found.
13 MR. GEORGE: Object to form.
150
14 BY MR. CARROLL:
15 Q Is that an accurate statement?
16 MR. GEORGE: Same objection.
17 BY MR. CARROLL:
18 Q You can still answer.
19 A Yes. If I recall correctly, the task I had was
20 just to drill some borings down to either groundwater --
21 I can't remember what we established, the depth. They
22 were just shallow borings to just determine the
23 underlying materials and to report on that, was pretty
24 much my task.
25 Q And in your experience, could you tell me if
39
1 you could grow plants in that material in the first
2 12 inches, I guess?
3 MR. GEORGE: Object to form. I think you're
4 going beyond the redirect, John. So I'm going to
5 object on that ground as well.
6 BY MR. CARROLL:
7 Q That's okay. You can go ahead and answer that.
8 A Obviously, in the areas where you've got from
9 surface to six inches or three inches asphalt, no. I
151
10 mean, obviously you'd have to remove that. But I assume,
11 with the sand, it looks like you've got sand mostly to
12 two feet, until you hit limestone gravel. So I assume
13 you could. Obviously, sand you've got watering issues
14 with sand.
15 Q If Bernadette had told you that there was
16 construction debris discovered within a few feet of those
17 soil boring sites, would you have recommended any
18 remediation in that area?
19 MR. GEORGE: Object to form, and I'm objecting
20 on the grounds you're going beyond the scope of
21 redirect, John.
22 BY MR. CARROLL:
23 Q That's okay. You can go ahead and answer.
24 A If somebody would have asked me or if there
25 was -- if somebody would have asked me if something
40
1 needed to be done to remove a bunch of construction
2 debris from a site or how to do it, I would obviously say
3 what to do. In this instance, I don't recall being asked
4 that. And unless there was some issue of public safety
152
5 or something that I'm bound to ethically, for me to say,
6 it was beyond my scope. I was told to do this bit and
7 get gone, and I did.
8 Q The last question I have relates to a question
9 that Chris asked about one of these sites, and it was
10 where we talked about limbs. Where did I see that on
11 this list? Brown moist sand with one-inch diameter
12 roots, how deep below the ground was that, that you
13 discovered that?
14 A Thirty to 36 inches, in B-4.
15 Q Is it normal to find a limb 36 inches below the
16 ground?
17 MR. GEORGE: Object to form.
18 THE WITNESS: No.
____________________________
Amy Norworthy, Community Manager WaterSound
16 Q Yeah, I don't remember that board per se,
17 but I'll take that for what it is. Does WaterSound
18 Beach post draft minutes to the --
19 A No.
20 Q I guess I should finish my question. To
21 the MyWaterSoundBeachCommunity.com website?
22 A No, we do not.
153
23 Q And why not?
24 A Why not? Because they're not approved by
25 the board. We don't post minutes until they are
34
1 approved.
_______________________________________________________________
Bridget Precise, Watercolor and WaterSound Board of Director
Q We went over this yesterday, and were you
19 a board of director in March of 2009?
20 A I believe I was, yes.
21 Q Do you know how much the penalty was per
22 month every month after, I guess, it was 15 months?
23 A I believe it's $1,000 a month.
24 Q And do you know what a benefited
25 assessment is?
40
1 A Yes.
2 Q Was that $1,000 a month a benefited
3 assessment?
4 A Yes.
5 Q And can the association lien for benefited
154
6 assessments?
7 A I would have to go back and look at the
8 documents, but I believe they can.
9 Q Do you remember, generally speaking, do
10 you ever remember any owners coming to the board and
11 asking for a waiver or an extension or some kind of
12 forgiveness for that $1,000 a month fine?
13 A Yes.
26. Additionally, Carroll requests the Court to adopt his previously filed motion for
Punitive Damages, along with its Exhibits as an Exhibit to this Motion.
27. Additionally, Carroll requests the Court to adopt his previously filed Motion for
Summary Judgment on the issue of Benefitted Assessments, along with its Exhibits as an Exhibit to
this Motion.
28. Carroll prays the Court Grant his Motion for Rehearing and/or Reconsideration in
accordance with Marion County v. Kirk, 965 So 2d 330 (Fla 5th DCA 2007). When a Court is
presented with evidence on timely rehearing that cures the basis for its earlier ruling should grant
rehearing as it has been found to be an abuse of discretion to deny rehearing; and Edrington v.
Edrington, 945 So 2d 608 (Fla 4th DCA 2006). When the motion for rehearing is based on newly
discovered evidence, the motion should be granted when: 1) it appears that the new evidence is such
that it will probably change the result of the proceedings, 2) the evidence has been discovered since
155
the trial, 3) the evidence could not have been discovered before the trial by the exercise of due
diligence, 4) the evidence is material to the issue, 5) the evidence is not merely cumulative or
impeaching.
Wherefore Plaintiff CARROLL moves to Deny WaterSound, Watercolor, Joule, Matteson
and Lilienthal’s Motions for Summary Judgment or in the alternative, clarify the specific grounds
upon which it Granted their Motions.
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