Motion for Rehearing and or Reconsideration

1

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

2

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

3

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.

4

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

5

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,

6

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.

_____________________________________________________


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.

__________________________________________________


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.

______________________________________________


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.

10

____________________________________________


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.

___________________________________________

11


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.

______________________________________


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.

12

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?

_____________________________________________


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

33

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.

__________________________________________________


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

36

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.

___________________________________________


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.

_______________________________________________


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.

_________________________________________


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.

_________________________________________________


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.

______________________________________________


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


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.

_____________________________________________


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?


________________________________________________


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.

_______________________________________


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.

___________________________________________________


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.

____________________________________________________


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.

________________________________________________


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.

____________________________________________________


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.

_________________________________________________


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.

___________________________________________________


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;

__________________________________________________


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

_____________________________________________________


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.

_____________________________________________________


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.

_______________________________________________________


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.

_________________________________________________________


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.

___________________________________________________________


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.

______________________________________________


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.

_____________________________________________________


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.

________________________________________________


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.

__________________________________________


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.

_______________________________________________________


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.

___________________________________________________


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.

_______________________________________________________


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?


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.

_____________________________________________


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


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.

_________________________________________________


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.

__________________________________________________


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?


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.

______________________________________________________


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.

______________________________________________


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

64

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.

_________________________________________________________


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?


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.

__________________________________________


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?

________________________________________________


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.

___________________________________________


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.

__________________________________________________


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.

_______________________________________________


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.

__________________________________________________________


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.

______________________________________________________


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.

_______________________________________________________


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.

_________________________________________________


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.

__________________________________________________


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?


17 Q Do you know if Chambers Street Builders

18 offered to complete the home for the remaining

82

19 balance?


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


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.

________________________________________________


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.

___________________________________________________


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.

_________________________________________________


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.

____________________________________________________


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.

_________________________________________


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


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.

__________________________________________________


1 Q Do you know where Lot 24 is in WaterSound

2 Beach?

3 A I think it's near the yacht pond?

___________________________________________________


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.

______________________________________________________


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.

_________________________________________


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.

_________________________________________________


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.

____________________________________________


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.

________________________________________


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.


__________________________________________


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.

____________________________________


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.

_____________________________________


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.

__________________________________________


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

___________________________________________


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


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.

_______________________________________________


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

___________________________________________


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.

_______________________________________


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


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.


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.

_______________________________________________


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

_______________________________________________________


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?


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

_______________________________________


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


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

__________________________________________


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.

____________________________


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


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.

_________________________________


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?


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.

__________________________________


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.

______________________________________


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?


3 Q It is?


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.

____________________________________


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.


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.

________________________________________


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?


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?


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.

_____________________________


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.

__________________________________________


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.

________________________________________________________


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.

__________________________________


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.

__________________________________________


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.


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?


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.

Documents

Motion for Rehearing and or Reconsideration