STATE OF FLORIDA
JOHN P. CARROLL,
Plaintiff/Appellant,
v. CASE NO.: 1D11-4722
L.T. CASE: 2009 CA 2021
WATERSOUND BEACH COMMUNITY
ASSOCIATION, INC., WATERCOLOR
COMMUNITY ASSOCIATION, INC.,
SANDRA MATTESON, DAVID LILIENTHAL,
RONALD VOELKER, MARY JOULE,
JOHN DOE AND JANE DOE,
Defendants/Appellees.
______________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT,
IN AND FOR WALTON COUNTY, FLORIDA
CASE NUMBER 2009 CA 002021
___________________________________________________________________
APPELLAT'S RESPOSE TO THIS COURTS
ORDERS TO SHOW CAUSE
___________________________________________________________________
John P. Carroll, Pro Se
Box 613524
WaterSound, FL 32461
Telephone 850-231-5616
Facsimile 850-622-5618
AAbsolute@aol.com
COMES NOW APPELLANT JOHN P. CARROLL, in response to this Courts
(3) Orders to Show Cause Filed with the Clerk of Floridas 1
st
DCA on September 22,
2011 (Exhibit A,B, and C) and states:
1. Appellant (Carroll) has appealed the lower tribunals Orders Granting
Final Summary Judgement in Full in Favor of Defendants David Lilienthal, Sandra
Matteson, Mary Joule and Watercolor (Exhibits D and E).
2. Carroll objected to the preparation of the Orders by the respective
Counsel for the Defendants, because there were no conclusions of fact or law made by
the lower tribunal. It was Carrolls position that the Defendants Counsel couldnt
possibly prepare Orders sufficient for meaningful appellate review (Exhibit F).
3. The lower tribunal overruled Carrolls objection, and entered those
Orders as presented on June 30, 2011 (Exhibit D and E). The Orders contain no
conclusions.
4. Those Orders disposed of the entire case as to those parties and created
impending appellate jurisdiction pursuant Rule 9.110(k). Those parties were removed
from the litigation entirely and were relieved from appearing at trial.
5. After rendition, it became very evident that the lower tribunal had
succumbed to error, or fraud, or inadvertence or misapplication of the law in reaching
its decision. On July 8, 2011, Carroll timely filed a Motion for Rehearing, Motion for
Reconsideration, Motion to Vacate and Motion for Clarification of the Courts Orders
Granting Summary Judgment on the newly discovered evidence and apparent error
(Exhibit G).
6. The lower tribunal entered an Order denying Carrolls Motion for
Rehearing on August 5, 2011 (Exhibit H).
7. At that point the issues pertaining to Lilienthal, Joule, Matteson and
Watercolor became ripe for appellate review. Under the Florida Constitution, Article
V, section 4(b)(1), the "district courts have jurisdiction to hear plenary appeals, as a
matter of right, only from final judgments and orders of the trial courts." Caufield v.
Cantele, 837 So.2d 371, 375 (Fla. 2002). Generally, an order is final and a plenary
appeal may be taken when "the order ... constitutes an end to the judicial labor in the
cause, and nothing further remains to be done by the court... between the parties
directly affected." See S.L.T. Warehouse Co, v.Webb, 304 So.2d 97, 99 (Fla.
1974); (reaffirming the traditional test for finality requiring that "no further action by
the court will be necessary"); McGurn v. Scott, 596 So.2d 1042, 1043 (Fla.
1992) (stating "[i]t is well settled that a judgment attains the degree of finality
necessary to support an appeal when it adjudicates the merits of the cause and disposes
of the action between the parties, leaving no judicial labor to be done except the
execution of the judgment"). However, a partial final judgment is appealable as a final
order when "the judgment ... adjudicates a distinct and severable cause of action, not
interrelated with remaining claims pending in the trial court." S.L.T. Warehouse, 304
So.2d at 99; Fla. R. App. P. 9.110(k).
8. Earlier in the proceedings, the Court rendered (3) Orders in Favor of the
parties who have now been completely removed from the litigation. Those were:
a) Denying Carrolls Motion for Leave to File an Amended Complaint
Adding a Claim Seeking Punitive Damages with Supporting Memorandum of Law and
Proffer of Evidence (Exhibit I);
b) Denying Carrolls Motion for Leave to Add Parties (Exhibit I);
c) Granting Defendants Motions to Dismiss (Exhibit J);
9. Rule 9.130 enumerates the types of non-final orders that are appealable to
this court. Rule 9.130 does not provide for an appeal of the orders described in
Paragraph 8. As such, those Orders were not appealable until those parties were
completely removed from the litigation. Those issues have now ripened for appeal.
Respectfully submitted,
_____________________________
John P. Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to Christopher L. George, Esq., and to Mark D. Davis, Esq., and to Gary
Shipman, Esq., electronically this 23
rd
day of September, 2011.
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com
CERTIFICATE OF COMPLIACE
I HEREBY CERTIFY that the lettering in this motion is Times New Roman 14-
point Font and complies with the font requirements of Florida Rule of Appellate
Procedure 9.210(a)(2).
_____________________________
John Carroll, pro se
Box 613524
WaterSound, FL 32461
(850) 231-5616 - phone
(850) 622-5618- fax
AAbsolute@aol.com
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COMES NOW PLAINTIFF, in accordance with Florida`s Rules and law and says:
1. The PlaintiII respectIully requests that the Court prepare its own Orders on
all DeIendants` Motions Ior Summary Judgment in this case.
2. As the Court can see, the DeIendants simply cannot prepare an Order on
behalI oI the Court that accurately describes the Court`s Iindings related to Iact.
3. Further, the Record makes it impossible Ior the DeIendants to crystallize
the Court`s conclusions oI law.
4. In granting Summary Judgment in Iavor oI the DeIendants, the Court
made a determination on (8) oI PlaintiII`s Counts on (6) separate DeIendants.
5. The Record makes it impossible Ior the DeIendants` attorneys to
determine why Lilienthal is relieved oI a claim oI Breach oI his Fiduciary Duty to Carroll
when it comes to his Iailure to Iully investigate buried carcinogens surrounding Lot 24.
6. The Record makes it impossible Ior the DeIendants` attorneys to
determine why Carroll was not personally libeled by the DeIendants on the basis that he
happens to own several corporations who engage in development. This would make it
impossible Ior any business owner in Florida to be deIamed iI he also owned a
corporation as mandated by the Division oI Business and ProIessional Regulation.
7. The Record makes it impossible Ior the DeIendants` attorneys to
determine why Lilienthal, Joule and Matteson`s admissions that they collectively talked
to 'thousands oI people about Carroll`s construction does not qualiIy as slander per se.
The Record shows that Matteson talked to people about Carroll`s construction violating
the law. Joule`s testimony shows that she thinks Carroll`s construction practices are
criminal. Lilienthal`s testimony shows that he thinks Carroll has built shoddy
construction on every home he`s ever built.
8. The Record makes it impossible Ior the DeIendants` attorneys to
determine why WaterSound breached its contract with Carroll, but the individual
DeIendants did not breach their Iiduciary duties Ior committing the acts that Iormed
WaterSound`s breach.
9. The Record makes it impossible Ior Watercolor`s attorneys to determine
why their improper removal oI Carroll`s name Irom the Watercolor lists was not a slander
or libel against Carroll, when all the witness testimony in record shows that the public
considers Carroll and his companies one in the same. As the Court noted, even DeIense
Counsel continuously interchanged Carroll as being the party removed Irom the builder`s
lists.
10. 'The judicial Iunction relative to Iact-analysis on a motion Ior summary
judgment is 'limited to ascertaining whether any Iactual issue pertinent to the controversy
exists; it does not extend to resolution oI any such issue.' A 'Iinding oI Iact' by the circuit
court in a summary judgment proceeding thus constitutes only a Iinding that no genuine,
material issue exists as to that Iact; by the nature oI summary judgment, it cannot be an
indication that the trial court has weighed the evidence and Iound a Iact in the traditional
sense. 'Findings oI Iact' in a summary judgment proceeding are thereIore not truly
Iindings oI Iact and should perhaps bear a diIIerent label. By whatever name such
'Iindings' take, they can be helpIul. . . . 'Findings oI Iact' also help an appellate court 'in
making clear the basis Ior the trial court's decision and in indicating what that court
understood to be the undisputed Iacts on which summary judgment was granted.'
IdentiIying the undisputed material Iacts and indicating the basis Ior summary judgment
are the sole purposes oI 'Iindings oI Iact' on summary judgment. Quote Irom someone
much wiser than me.
11. Carroll restates the impossible undertaking the Court has given to the
DeIendants` attorneys to try and articulate what conclusions oI Iact and law the Court
settled on to summarily dispose oI Joule`s Fraud, WaterSound`s Libel, Lilienthal`s
Negligence, WaterSound`s Negligent Retention, Matteson`s Slander, WaterSound
Watercolor and Voelker`s Civil Conspiracy, Joule`s Breach oI Fiduciary Duty,
WaterSound`s Fraud, Joule`s Negligence, Watercolor`s Slander, Matteson`s Libel,
Lilienthal`s Fraud, Matteson`s Negligence, Lilienthal`s Breach oI Fiduciary Duty, Joule`s
Libel, Matteson`s Slander, Watercolor`s Libel, WaterSound`s Fraud, Lilienthal`s Libel,
Joule`s Slander, Matteson`s Fraud, Matteson`s Breach oI Fiduciary Duty and Lilienthal`s
Slander.
12. WhereIore PlaintiII respectIully requests the Court prohibit the DeIendants
Irom preparing the Orders on behalI oI the Court.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy oI the Ioregoing has been
Iurnished to Christopher L. George, Esq., PO Box 1034, Mobile, AL 36633 and to Mark
D. Davis, Esq., 694 Baldwin Ave. Suite 1, PO Box 705, DeFuniak Springs, FL 32435 and
to Gary Shipman, Esq., 1414 Co. Hwy. 283, Suite B, Santa Rosa Beach, FL by e-mail
and regular mail this 27
th
oI June, 2011.
John P. Carroll
Box 613524
WaterSound, FL 32461
850-231-5616 Phone
850-622-5618 Fax
1
Exhibit G
IN THE CIRCUIT COURT OF THE FIRST 1UDICIAL CIRCUIT
IN AND FOR WALTON COUNTY, FLORIDA
CIVIL DIVISION
1OHN P. CARROLL,
Plaintiff, Case No.: 09CA002021
v.
WATERSOUND BEACH COMMUNITY ASSOCIATION, INC.,
Florida Corporation
DAVID LILIENTHAL, individually
and as Director,
MARY 1OULE, SANDRA MATTESON,
RONALD VOELKER,
WATERCOLOR COMMUNITY ASSOCIATION, INC.
1OHN DOE and 1ANE DOE
Defendants.
____________________________________________/
PLAINTIFF`S MOTION FOR REHEARING,
MOTION FOR RECONSIDERATION, MOTION TO VACATE and
MOTION FOR CLARIFICATION OF COURT`S ORDERS
GRANTING SUMMARY 1UDGMENT IN FAVOR OF
WATERCOLOR, WATERSOUND, LILIENTHAL, 1OULE AND MATTESON
Comes now the PlaintiII, John Carroll who makes this Motion Ior Rehearing, Motion Ior
Reconsideration, Motion to Vacate and Motion Ior ClariIication and states as Iollows:
The Defenaants forgot Carrolls claims ana maae no mention of them.
Without cause, the Court Grantea Summary Juagment for the forgotten claims anyway.
1. The DeIendants Watercolor, WaterSound, Lilienthal, Matteson and Joule all made
Motions Ior Summary Judgment aIter the deadline set by this Court in its written Case Management
2
Order. The Court reopened the door Ior the DeIendants and permitted them to seek Summary
Judgment anyway.
2. This same Court previously denied the DeIendants Motions Ior Dismissal oI Carroll`s
claims.
3. Despite the Court`s grant oI special permission Ior the DeIendants to make one last
attempt at Summary Disposition oI Carroll`s claims (on the last day beIore trial), in blind conIidence,
the DeIendants Iorgot to mention certain claims. See Floriaa Rule 1.510
4. For reasons that deIy explanation, the Court signed an Order granting the DeIendants`
Motions on these unmentioned claims. This is a violation oI Carroll`s rights, Florida Rules oI Civil
Procedure and Florida Case Law. See Floriaa Rule 1.510
5. DeIendants WaterSound, Lilienthal, Matteson and Joule made a Motion seeking to
dispose oI Carroll`s Slander claims, but their Motion actually sought Summary Disposition oI
Carroll`s previously dismissed claim oI Slander oI Title. The DeIendants oIIered no argument,
evidence or legal reasons oI any kind Ior Summary Disposition oI Carroll`s Slander claim. The
Court granted their Motion on Slander anyway. See Floriaa Rule 1.510
6. The Court then asked the DeIendants to prepare the written Order. The DeIendants
Counsel couldn`t, because he had no knowledge or basis supporting the Court`s ruling. Carroll
objected, Iiled a Motion to Prohibit the DeIendants Irom preparing the Order, yet this Court signed
the Order anyway. See Floriaa Rule 1.510
7. The Court previously ruled that Carroll successIully plead a claim Ior Civil
Conspiracy against WaterSound, Watercolor and Voelker. The Court prepared its own Order, signed
it and Iiled it with the Clerk oI Courts.
3
8. DeIendants WaterSound and Watercolor made a last minute Motion Ior Summary
Judgment on Carroll`s Civil Conspiracy Claim. The DeIendants worked on their Motion together,
Iiled them simultaneously and their Motions were nearly verbatim. In blind conIidence, both
Motions argued the wrong elements. Neither Motion to summarily dispose oI the Civil Conspiracy
claim made any reIerence to what the Court previously ruled upon involving DeIendant Voelker.
9. The DeIendants oIIered no argument, evidence or legal reasons oI any kind Ior
Summary Disposition oI Carroll`s Civil Conspiracy claim corresponding to their acts with DeIendant
Voelker. The Court granted their Motion on Civil Conspiracy anyway. See Floriaa Rule 1.510
10. The Court then asked the DeIendants to prepare the written Order. The DeIendants
Counsel couldn`t because they had no knowledge or basis supporting the Court`s ruling. Carroll
objected, Iiled a Motion to Prohibit the DeIendants Irom preparing the Order, yet this Court signed
the Order anyway. See Floriaa Rule 1.510
11. This is Iundamental error and violates Florida Rule 1.510.
If you call a calfs tail a leg, how many legs aoes a calf have? Answer. Four
Calling a tail a leg aoesnt make it one.
12. Carroll alleged that the DeIendant`s committed acts oI libel and slander against him
by preparing Iake builders lists which showed that his name was removed Irom the WaterSound and
Watercolor builders lists at times when he was Iully authorized to practice his trade.
13. In addition, Carroll alleged that the DeIendant`s committed the acts oI libel and
slander against him when they published statements saying Carroll`s construction oI his tower at lot
24 was in violation oI the law.
14. Carroll alleged, and the DeIendants admit, that at their direction all oI these
4
statements were also repeatedly published to an unprotected site on the World Wide Web.
15. On the Libel and Slander counts, the trial court entered a summary judgment Ior the
DeIendants on an undisclosed basis. We can only assume that it is because the name oI Carroll`s
corporation also appears, side by side, with Carroll`s name on the approved builder`s lists. This is
error. The Court put itselI in the shoes oI the trier oI Iact. See Ford v. Rowland, 562 So. 2d 731
(Fla. 5d DCA 1990) 'The appellant contends, and we agree, that iI an allegedly deIamatory
publication is reasonably susceptible oI two meanings, one oI which is deIamatory and one oI which
is not, it is Ior the trier oI Iact 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 DeIendants, their Counsel, Carroll`s
neighbors, Iamily, Iriends 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 oI
the Owner and the Builder.
19. WaterSound Iirst published unapproved Minutes to the World Wide Web which
stated that Carroll`s home violated the law in June oI 2008. The Court reviewed those Minutes.
20. DeIendant Voelker submitted a revised survey oI the home beIore the Iirst time the
Minutes were posted to the World Wide Web. The DeIendants posted the unapproved Minutes
anyway.
5
21. Two months later, WaterSound revised the Minutes. The Court reviewed those
Minutes. Those Minutes stated unequivocally that Carroll`s construction was in violation oI 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 aIter the deIendants knew their statements were Ialse.
22. The builder`s list statements and publications, as well as the statements oI
construction which violates the law, have been construed by the public as being statements against
Carroll. It is not Ior 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 oI
law, that witches on broomsticks are Iiction and Iantasy; but "hookers" are real. Basic Iactual
disputes are raised by the dismissed complaint: Does the word "hooker" reIer to Sue Ford? II so,
can that term reasonably be understood to describe an actual Iact about, or conduct oI, Sue Ford?
23. The Court put itselI into the shoes oI the trier oI Iact in granting the DeIendans`
Motions Ior Summary Judgment. Carroll complained that the DeIendants undertook sham acts,
breached the Covenants, improperly removed his name Irom the approved builders lists while he was
Iully authorized to appear on said lists and took improper actions against him at both Watercolor and
WaterSound that never occurred in the history oI either community. It is not the Court`s right to
weigh the evidence Carroll has presented.
24. The PlaintiII is sympathetic to the Court`s huge task oI reviewing all the record
evidence in this case. That said, there is more than enough evidence already present through
depositions, motion and pleading Iilings and transcripts Irom hearings in this case Ior the jury to
accurately rule that reasonable people construe Carroll as being the party deIamed by the DeIendants.
Carroll will set Iorth some evidence the Court must have overlooked:
6
Amy Norsworthy Deposition pages 11, 16, 17, 26, 34, 40, 44, 47,
Brian Stackable Deposition pages 14, 25, 32
25. More speciIically:
Bridget Precise, Board oI Director and DRB Member Ior 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 qualiIied to make
13 determinations. The report -- I believe the report
14 was pretty clear in that there wasn't anything oI
15 any --
16 Q Okay.
17 A -- oI any major -- that would raise any
18 major issues.
19 Q Did you come to that determination by
20 yourselI or did somebody tell you that?
21 A I believe that was in the report.
22 Q Yeah, I read that report, too. Did you
23 understand the report?
24 A Well, I'm not a geotechnical engineer, so
25 to that level, the short answer is no.
Bridget Precise, Board oI Director and DRB Member Ior both WaterSound and Watercolor:
7
Q Darn it. I'm seeing here that the meeting
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 oI 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 iI you know or not,
13 but on the Yacht Pond side, we have 20 Ieet oI
14 ground that's not Lot 24 that they won't let me
15 clean up. And then we have 110 Ieet by 20 along the
16 westerly side oI Lot 24 that the board won't let me
17 clean up. And then we have another 10 Ieet on the
18 north side oI Lot 24 that's common area, and they
19 won't let me go any Iurther. They're trying to
20 limit me to my eIIorts inside Lot 24. And what I'm
21 trying to remember is, or trying to see iI you
22 remember, do you remember me bringing some Google
8
23 Earth satellite photos oI Lot 24 or that area to
24 this meeting in February oI 2008?
25 A I remember it, but I'm not sure when it
28
1 was.
Bridget Precise, Board oI Director and DRB Member Ior both WaterSound and Watercolor:
Q Do you know how much the penalty was per
22 month every month aIter, I guess, it was 15 months?
23 A I believe it's $1,000 a month.
24 Q And do you know what a beneIited
25 assessment is?
40
1 A Yes.
2 Q Was that $1,000 a month a beneIited
3 assessment?
4 A Yes.
5 Q And can the association lien Ior beneIited
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
9
10 you ever remember any owners coming to the board and
11 asking Ior a waiver or an extension or some kind oI
12 Iorgiveness Ior that $1,000 a month Iine?
13 A Yes.
14 Q For beneIited assessment. Do you remember
15 any time where the board granted an extension to
16 somebody or a waiver oI that $1,000 a month?
17 A SpeciIically, I don't recall.
18 Q Do you remember any times where the board
19 denied somebody's request Ior an extension?
20 A There's a standing policy where iI you're
21 not done with construction in 12 months, you can
22 request an additional Iour months, and that
23 typically is granted.
Bridget Precise, Board oI Director and DRB Member Ior both WaterSound and Watercolor:
Q Do you know who the members oI the
16 covenants committee are at WaterSound Beach?
17 A I do not.
18 Q Have you ever heard oI the covenants
19 committee?
20 A I have heard oI a covenants committee.
21 Q Do you know iI WaterSound Beach has one?
10
22 A I don't know.
Bridget Precise, Board oI Director and DRB Member Ior both WaterSound and Watercolor:
1 Q You were on the WaterSound board and the
2 WaterColor board, right?
3 A Yes.
4 Q At the same time?
5 A Yes.
6 Q Did the two boards ever meet to discuss a
7 common approach or a common plan oI action Ior
8 dealing with John Carroll or Chambers Street
9 Builders?
10 A No.
11 Q Did those two boards operate independently
12 oI 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 oI 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 Irom any approved builders list at any time?
11
20 A I don't think so, no.
Bridget Precise, Board oI Director and DRB Member Ior both WaterSound and Watercolor:
Q And one last time so I get this straight.
3 Who controlled the WaterSound and WaterColor
4 approved builders list? Was it the DRB or the board
5 oI directors?
6 A The design review board administers the
7 whole DRB program, and part oI that is the approved
8 builder list and the approved architect list.
9 Q Does that mean that the board oI directors
10 doesn't approve?
11 A The board oI directors has set up a set oI
12 policies and guidelines Ior the design review board
13 to operate under, and part oI their operating under
14 is to administer the approved contractors and
15 builders.
Bridget Precise, Board oI Director and DRB Member Ior both WaterSound and Watercolor:
Q Chris was just asking you iI you ever --
16 well, let me ask you. Did you ever vote to suspend
17 Chambers Street Builders Irom the approved builders
18 list when you were a board oI director?
12
19 A I don't think -- I don't think so, no.
20 Q II the minutes say that you were there --
21 A Uh-huh (indicating in the aIIirmative).
22 Q -- would they be correct?
23 A They should be.
Dale Putz Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q When you were a board oI 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 Irom the
8 agendas?
9 A No.
10 Q Do you remember the meeting in May oI 2008
11 where they talked about the height oI 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 iI we can,
15 but I'm just wondering do you know iI the height oI
16 the tower was on the agenda Ior that day?
17 A I don't know.
13
18 Q Do you know iI as a board member you had a
19 Iiduciary duty to the owners?
20 A OI course we did.
21 Q Do you think that you yourselI 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 oI
24 my tower at that meeting?
25 A I don't have an opinion on that.
Dale Putz Board oI Director Ior 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 iI we are discussing Iiduciary 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 Iiduciary
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
14
7 says Freddy Kaye's name, Rosemary Beach.
8 A I know Freddy Kaye. I know Kevin. I know
9 people at Rosemary Beach. I believe you know all oI
10 those same people Ior various reasons oI 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 Irom any oI these people and
16 did not perIorm services?
17 Q That's right.
18 A You perIormed all oI the services required
19 Ior all oI those people Ior all the money you took?
20 Q That's a Iact.
21 A Very interesting.
22 Q Do you think diIIerently about it?
23 A Yeah. I think you took it. II 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
15
3 my Iiduciary duties. It was pretty apparent that
4 you thought I didn't.
5 A Um-hum (indicating in the aIIirmative).
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 diIIerence. II 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.
16
25 Q Have you talked to anybody about my
20
1 experiences at Rosemary Beach?
2 A No.
3 Q Who told you that I got a restraining
4 order Ior, 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 oII the approved list at WaterSound Beach?
15 A Absolutely not.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
7 Q How Iar is Compass Point Irom Lot 24?
8 A I don't know.
17
9 Q And how many buildings were between Lot 24
10 and Compass Point?
11 A Not a lot oI buildings because the lake's
12 across there.
13 Q Are there any buildings between the two?
14 A Yeah.
15 Q What would those buildings be?
16 A You've got one on the yacht pond. You've
17 got a building there, don't you?
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
22 Q Whatever came oI that meeting where -- did
23 you instruct anybody to do anything? Do you know
24 what came oI 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 oI the discussion.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q Do you know iI the covenants and
15 restrictions require notice to an owner beIore the
18
16 board goes out and conducts a survey oI somebody's
17 lot?
18 A I do not.
19 Q And how would you Iind 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 Iiduciary 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 Iine. Do I recall 106 pages? No.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
MR. CARROLL: Yeah, we're going to ask --
13 A II you Iound those on your lot, it would
14 be the responsibility oI the HOA to deal with the
15 common area, not you.
16 Q That's Iair. Do you know iI the board
17 ever hired a geologist to do a report?
18 A To my knowledge they did.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
21 Q We looked at a February 2008 meeting that
22 talked about debris on John Carroll's lot. I think
23 you had said that you were there?
20
24 A Okay.
25 Q Does that reIresh your memory at all?
41
1 A No. Let me explain my recollection oI 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 Irom 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 oI 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 Iound in the common area. The board did their
15 Iiduciary responsibility in my opinion to
16 investigate your claim, and they were dismissed
17 without merit.
18 Q Did you ever see the report oI 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 oI concern. Let's put it that
42
1 way. You're always going to Iind construction
2 debris no matter where you dig. You're not going to
3 Iind pure beach sand. Let's get serious. You're
4 trying to mince words. There was nothing Iound to
5 be oI concern to the HOA.
6 Q Did anybody help you with your
7 interpretation oI 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 Iound?
22
15 A I don't recall.
16 Q Do you know what asphalt binders are?
17 A No.
18 Q Do you know what PAH's are?
19 A No.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
20 MR. GEORGE: BeIore we get too Iar, 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 Ior Bridget.
2 I've got her next. She'll tell us what it is.
3 MR. GEORGE: All right. That's Iair
4 enough. I was just going to make a note. I'll
5 wait Ior 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 oII any piece oI
9 equipment.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q Does WaterSound Beach require owners to
45
1 landscape the common areas adjacent to their
2 properties?
3 A No.
4 Q How do you know that?
5 A Common area by deIinition is HOA property.
6 You don't landscape someone else's property.
7 Q That's reasonable. Well, let me ask this.
8 II the HOA asked me to landscape common area,
9 wouldn't this trash issue be something oI 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 oI 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 II I said that at an HOA meeting, would
23 that be oIIicial business oI the HOA?
24 A I have no idea. I'm not -- I'm not going
25 to pass judgment.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q Okay.
14 A That is a primary road.
15 Q Well, in your opinion is the Boatright Way
16 entrance the more prominent --
17 A I don't know what Boatright Way is.
18 Q It has a small gate on it that let's you
19 into Beaches, but it's to the west oI the gatehouse?
20 A I think all the gates are entrances to the
21 property. Some are more prominent than others.
22 Q What is the most prominent --
23 A The most prominent one obviously is where
24 the gatehouse is located.
25
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
25 Q Did you ever talk to Freddy Kaye about his
47
1 experiences with Chambers Street Builders and John
2 Carroll?
3 A Not one-on-one, no.
4 Q What about with other people there?
5 A No.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q Are you not knowledgeable in reading
18 plans?
19 A I'm not. I'm a CPA. I'm not a person
20 that's going to read blueprints. That's not my
21 calling in liIe.
22 Q Well, when we talked about this height oI
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 Ieel comIortable in
48
1 this; this is not my line oI 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 Iront that iI and only iI it exceeded
12 it, the board would have to take some sort oI
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 oI 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 oI
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 oI 2008 and say this is what John certiIies
10 the height oI the tower to be?
11 A I don't recall.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q Okay. Prior to the time that transition
18 occurred, did St. Joe have control oI the board?
19 A Yes.
20 Q And prior to the time that transition
21 occurred, did St. Joe have control oI the design
22 review board?
23 A Yes.
24 Q Prior to the time that transition
25 occurred, did St. Joe have control oI 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 oII 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 oII oI the builders list?
13 A That was never discussed.
14 Q You never had any input at all into that?
15 A Never.
16 Q Did any other board members to your
17 knowledge have any input into that decision?
18 A No.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
19 Q At any point in time did the WaterSound
20 and WaterColor boards have a joint meeting or joint
21 discussion about John Carroll and his status as a
22 builder in the community?
23 A No.
24 Q II any oI those kind oI meetings would
25 have taken place during your tenure as a board
29
52
1 member, would you have known about it?
2 A Absolutely.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q John mentioned this letter Irom Gary
4 Shipman and the attached survey. Isn't it true that
5 within a Iew weeks later, the board received a
6 revised survey Irom Voelker Engineering?
7 A I don't recall what was received when, but
8 I do recall a Iew weeks later, the whole point was
9 put to bed and was dismissed as oI no concern -- not
10 oI any concern. It was just that it appeared.
11 Everything was going to be in compliance. Very
12 quick order.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
16 Q Now, John asked you about owners having to
17 landscape common areas.
18 A Yes.
19 Q Yesterday Brian Stackable testiIied 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. II that is indeed in the
24 purchase documents, you just wouldn't know about
25 that? 53
1 A That's correct.
2 Q Cause you never bought a lot in
3 WaterSound, did you?
4 A That's absolutely correct.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
15 Q While you were a consultant Ior the board,
16 do you remember the board ever talking about
17 Chambers Street Builders and whether or not we
18 should be on the approved builders list?
19 A No. It was never discussed. John, when
20 I've been a consultant, no discussion has ever came
21 up regarding Chambers Street Builders or John
22 Carroll to my knowledge and recollection. The only
23 thing that came up was the debris, and I agree. The
24 debris issue was bought back up during transition.
31
25 We dealt with it, and dismissed it.
Dale Putz, Board oI Director Ior WaterSound, Financial Consultant WaterSound
Q Do you remember me asking Ior a letter oI
2 apology or a retraction letter to the one that Gary
3 Shipman wrote?
4 A I heard you'd asked Ior 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 oI Director WaterSound Beach
Q Let me try to ask this a diIIerent way.
22 Do you remember when you Iirst 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 yourselI, 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 Iair to point out that
9 it is reasonable Ior someone to think it's very high
10 because as you go through the Iront gate, it's sort
11 oI an optical illusion because you have the beach in
12 Iront oI you; you have no other tall structures, and
13 Lot 24 just happened to be the Iirst lot to have a
14 structure on it. Had it been Lot 23, it would have
15 been the same issue. Okay. And so you see this big
16 tower, and it looks really high, yeah, okay, to most
17 people. Coming in, it looks really high.
Jack Luchese, Board oI Director WaterSound Beach
25 Q Do you remember iI David Lilienthal showed
15
1 up Ior 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 oI just nonsense
7 going on Ior 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 eIIectively as they could have
11 been?
12 A I think that tends to happen in any
13 organization.
Jack Luchese, Board oI Director WaterSound Beach
Good to see the work being done on your
16 house.
17 Q Do you remember us making some progress on
18 Lot 24 aIter that meeting oI November oI 2008?
19 A I believe aIter that meeting, which I
20 think there was subsequently a letter that came out
21 oI that, right?
22 Q I was going to ask you next, that meeting,
23 iI it occurred, it may have occurred in late
24 November oI 2008. The next board meeting, I think,
25 was in December oI 2008. Do you remember us having
18
34
1 discussion on the record about Lot 24 during the
2 board meeting, December oI 2008?
3 A I do.
4 Q Do you think that the board draIted a
5 letter as a result oI that meeting?
6 A That's correct.
7 Q Do you know anything about what the
8 substance oI that letter was?
9 A That letter was a courtesy letter to you
10 upon my recommendation to -- because a number oI
11 people had expressed a concern that the tower could
12 be high;
Jack Luchese, Board oI Director WaterSound Beach
A No. It didn't matter, John. The point
6 was there was a perception, and perhaps an optical
7 illusion because you were the Iirst 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 Ilat lots. Okay.
35
Jack Luchese, Board oI Director WaterSound Beach
Q Couldn't the board grant me a variance and
3 just let me keep it?
4 A It's not the board's job to grant a
5 variance. It's the DRB to grant a variance. Okay.
6 So...
7 Q While we're on the subject, this DRB, is
8 that design review board?
9 A Yes.
10 Q Doesn't our board oI directors control the
11 DRB?
12 A The DRB is not directly controlled by the
13 board oI directors, no. II there's an issue where
14 there's an exception that comes up and needs some
15 board review, under those circumstances the board
16 can take a look at it. But by and large, the DRB
17 operates autonomously.
Jack Luchese, Board oI Director WaterSound Beach
Do you
25 remember -- when Lot 24 started back up, do you
23
36
1 remember who actually was building Lot 24 at that
2 time?
3 A I believe it was you.
4 Q I was going to ask you. Did you ever see
5 me out there working?
6 A Almost every day.
Jack Luchese, Board oI Director WaterSound Beach
10 Q Okay. Do you know what waterprooIing
11 detail we used on Freddy Kaye's house?
12 A I have no idea.
13 Q Do you know iI you asked me what the
14 detail was?
15 A Not my place to ask you about someone's
16 house.
Jack Luchese, Board oI Director WaterSound Beach
Q Okay. Let's talk about somehow to try and
15 condense this beneIited assessment issue. I'm just
16 going to ask round questions. Do you know about
17 when they started this beneIited assessment based on
18 the building period?
37
19 MR. GEORGE: Object to Iorm.
20 A What is this beneIited assessment?
21 Q Yeah. Let me get through the back --
22 A Let's speak English here.
Jack Luchese, Board oI Director WaterSound Beach
1 Q -- Shipman, the attorney. Somewhere in
2 this, in the next couple oI pages, I think there's a
3 motion by Jack to start beneIited assessments.
4 A We have to -- what is beneIited
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 reIerenced?
10 A With regard to construction time.
11 Q Yeah, I was going to ask you about that.
12 A Again, iI that's what beneIited
13 assessments means then I believe we had -- you know,
14 Ior the beneIit oI the community and all oI the
15 people that lived there, obviously we don't want to
16 have someone building a house and it goes on Ior 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 Irom the time it was approved,
2 I believe, by the DRB. And iI you did not, there
3 were Iines.
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 beneIited assessments to
8 homeowners who are not in accordance with Compliance
9 Bulletin 16. Do you know when Compliance Bulletin
10 16 came into eIIect?
11 A It says eIIective March -- this document
12 says eIIective 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 timeIrame.
Jack Luchese, Board oI Director WaterSound Beach
A I don't think a resolution was necessary
10 because it was a physical board meeting.
11 Q Oh, I got you. So it would be reIlected
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 Ior
19 the board to put some controls on builders so they
20 didn't get out oI hand and did not inconvenience the
21 residents and any other owners.
22 Q Let me ask you iI you remember this.
23 There was a job in the community that a lot oI
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 iI it was more than two years?
9 A I don't know.
10 Q When we're talking about beneIited and Ior
11 the beneIit oI the community, how does it beneIit
12 the community to Iorce a job like the Libbys to
13 complete quickly?
14 A I think it beneIits the community to have
15 controls on builders like I said beIore. I'll
16 repeat myselI. What we don't want is builders to be
17 building a home and coming by and creating noise,
18 debris, trucks, traIIic, everything else Ior in an
41
19 unregulated way, and the purpose oI this is to put
20 controls on the amount oI aggravation that has to be
21 dealt with by residents and neighbors during a
22 construction period. It can't be Iorever and that
23 the builders and the owners need to understand that
24 iI you start construction, get on with it. Get it
25 done. Get it over with.
Jack Luchese, Board oI Director WaterSound Beach
6 Q Is there some kind oI a Iine or penalty --
7 A Yeah, well, I believe the HOA does not
8 deal with builders. The HOA deals with owners. So
9 iI 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 Ior any late Iees, iI we
13 want to call it that, any late Iees 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 enIorce the
20 rules.
21 Q What happened to the people who were
22 already under construction when this became
23 eIIective?
24 A I believe in this case, iI 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 oI these penalties?
7 A Yes, occasionally we did.
8 Q Do you know iI the board ever waived the
9 penalty or abated it Ior a period oI time Ior
44
10 anyone?
11 A I believe we did.
12 Q And how did the board go about deciding
13 which person should be Iorced to pay it versus which
14 person didn't?
15 A Based on -- you know, it was based on the
16 individual circumstances oI that case, okay, and
17 what happened. And usually the owner came in and
18 presented their case as to what happened and why
19 they thought it should be this or that, and the
20 board considered it.
21 Q I was going to ask you, who did they bring
22 their case to? Was it the board?
23 A The board. Only the board can decide that
24 abatement.
Jack Luchese, Board oI Director WaterSound Beach
5 A Yeah. What's that got to do with
6 abatements?
7 Q I was just going to ask iI they have any
8 authority?
9 A Committees have no authority.
10 Q What about --
45
11 A Committees --
12 Q That's Iine.
13 A Hold on. Committees are Iormed 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 Iinance committee?
21 A There used to be.
22 Q Are they gone now?
23 A I believe that there's no Iinance
24 committee at the present time.
25 Q Is there a covenants committee?
36
1 A Not that I know oI.
2 Q Okay.
3 A But committees don't decide. That's the
4 thing you need to walk away Irom. The board at will
5 can create a committee, can terminate a committee.
46
6 The board gives direction to a committee in terms oI
7 what their purpose is, and the committee is
8 requested by the board to make recommendations
9 periodically, and the board can either accept or
10 reject those recommendations. But only the board
11 decides. That's true in the corporate world as
12 well.
Jack Luchese, Board oI Director WaterSound Beach
13 Q Can you tell by looking at this Iront page
14 what board members were present that day?
15 A MyselI, 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 iI any oI those board members
23 Iought 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, preIer not
2 to -- particularly HOA boards -- that's the one
3 thing I noticed diIIerent Irom the corporate
4 world -- they tend to try to keep everybody happy.
5 I'm Irom a world where you have rules and you set
6 them and you Iollow them and you apply them
7 uniIormly to everyone.
8 Q Well, let's ask about that. How could a
9 person like me as a homeowner Iind 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 oI directors to
16 govern the community Irom that point Iorward. The
17 board oI directors is there to govern. It's the big
18 judge in the sky oI the community, and things change
19 Irom time-to-time, and a board must and should react
20 to those changes iI it's a Iunctionally, properly
21 run board. Yes.
48
22 Q Do you think details oI this, whatever
23 they call it, beneIited 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 oI that. Okay. And
2 by the Iact that it's -- iI 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 oI
5 communication, which is the website or emails or,
6 you know, news Ilashes or something like that. But
7 that's typically how they work.
Jack Luchese, Board oI Director WaterSound Beach
21 Q Well, that's what I was going to ask you.
22 I don't remember it either. I read a lot oI
23 covenants that said some people did ask Ior
24 extensions. I think one oI them was called
25 McCormick, who I don't know, but --
45
1 A Some people -- you know, people ask and
2 some people are granted and some people are not. It
49
3 really depends on the circumstances that are
4 presented to the board, and the board deliberates,
5 as it should as the judge, and determines what's
6 appropriate here.
Jack Luchese, Board oI Director WaterSound Beach
This is page
9 175. I was wondering iI you've ever seen anything
10 like that while you were a board member?
11 A CertiIicate oI Assessment. Can't say I
12 have, no.
13 Q Do you see anywhere on there where they're
14 charging a beneIited assessment Iee to Lot 24?
15 A Yeah, $2,000.
16 Q What's the date oI that certiIicate?
17 A September 1st, '09.
18 Q And do you know who that was transmitted
19 to by any chance?
20 A It says seller, Carroll. I presume that's
21 you.
Jack Luchese, Board oI Director WaterSound Beach
6 A Well, what this says, the association may
50
7 levy beneIits against one or more particular lots as
8 Iollows, 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 oI director, it looks like you
12 voted to begin implementing beneIited assessments
13 Ior not Iinishing construction under that rule. And
14 I was wondering, which one oI those two? Is it a
15 provision under A or B? Does it apply to which one
16 oI those? I'm having a hard time understanding.
17 A I'm not sure it's speciIic in this
18 particular thing. Again, what is this language
19 Irom? I don't know.
20 Q Well, I contended in there in the document
21 that it was Irom the covenants and restrictions --
22 A Well, here again, we covered this beIore.
23 The covenants and restrictions are broad strategic
24 guidelines, but the board has the right to assess
25 additional Iines and provide community governments
49
1 as it sees Iit, and the covenants give that power to
51
2 the board. It's not speciIically mentioned in a
3 covenant that was written years ago, 10 years ago.
4 Believe me, there's probably plenty oI things that
5 aren't in the covenants because something is changed
6 thereaIter.
7 Q This next section here is 5.2, covenants
8 committee, and I contend that I took that right out
9 oI the board -- the covenants that we're talking
10 about. I'd like you to Iamiliarize yourselI 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 Iine without a majority vote
15 oI the covenants committee. Are you sure there's no
16 covenants committee?
17 A Not that I know oI.
18 Q And the -- well, geez, it sounds like you
19 were saying that the board is the one who was
20 issuing these Iines and that people were having to
21 come directly to the board and y'all would either
22 approve their abatement oI the Iine or deny their
23 abatement oI --
52
24 A Probably. II there's not a committee
25 since the committee itselI doesn't have power oI a
50
1 board -- a committee can't have power over the
2 board. So iI there's no committee, then the rights
3 or the obligations oI 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 staIIed by
9 members oI the board or their Iamilies. 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 oI the covenants committee?
13 MR. GEORGE: Object to Iorm.
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 oI
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 iI the board ever recorded in
6 the public records any oI the changes that they made
7 or amendments to the rules?
8 A I don't know.
Jack Luchese, Board oI Director WaterSound Beach
7 Q You were on the board oI WaterSound; is
8 that correct?
9 A That is correct.
10 Q Were you ever on the board oI 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 oI 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 oI anything like that.
21 Q And you certainly would have been aware oI
22 that had any oI that taken place during your tenure
23 as a board member Ior WaterSound?
24 A Absolutely, I would have been aware oI 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 oI directors meeting, the subject oI
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 iI
12 they had? Were you inclined to take Chambers Street
13 Builders oII 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 oI directors, including
17 yourselI, that said we want you to vote on taking
18 Chambers Street Builders oII 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 oII the list?
23 A No.
24 Q Do you know iI this is the letter --
25 A I don't remember. Maybe we did. I don't
54
1 remember.
56
Jack Luchese, Board oI Director WaterSound Beach
17 A Well, the board -- again, you've got to
18 put this in the context in which it all was
19 deliberated on. The tower looks high. Call it an
20 optical illusion. Call it whatever you want. It
21 wasn't picking on John Carroll. It was here is a
22 structure, whether it's Lot 24 or the lot north oI
23 Lot 24. II you put up a tower, it's going to look
24 high because everything around it is Ilat. Okay.
Jack Luchese, Board oI Director WaterSound Beach
12 Q Do you know iI the covenants and
13 restrictions require the board to notiIy me beIore
14 they hire a consultant like that to do a survey?
15 A I don't know that. But the board has a
16 responsibility to the community in general, and it
17 was acting under that provision.
Jack Luchese, Board oI Director WaterSound Beach
9 A I don't remember seeing this email, but I
10 know you've asked Ior an apology so the substance oI
11 it is well understood.
21 Q You were saying that you know I had to ask
57
22 Ior apologies?
23 A You asked Ior 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 iI you Iurther damaged yourselI, you didn't have
6 to. Okay. I believe you Iound out -- I think the
7 way this all worked out it that it was later
8 determined that the calculation Irom this expert was
9 in error and that you were in -- no, we don't know
10 iI you're in compliance because you haven't Iinished
11 it, right, at this point. You might have Iinished
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 oI knowing de Iacto whether it was deIinitely
15 in compliance or not. The point here being made,
16 you have to put a rooI on this tower, and by the
58
17 time you're done putting the rooI on, the rooI might
18 exceed the requirement. Okay.
19 Q What could I have done as a builder to
20 notiIy the community at large, hey, they're wrong,
21 I'm telling you. I mean, we can see that that's
22 December. The Iirst 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 itselI. There was this talk oI 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 II the board wrote me an apology letter,
7 could I have handed that out and that may have
8 quelled the perception?
9 MR. GEORGE: Object to Iorm.
10 A Look, I'll say it again. I think an
11 apology Irom the board is completely unnecessary.
12 The board was acting responsibly. Getting an
59
13 expert. II 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 oI 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 oI checking it out was
21 to discuss it and then to take two steps. Step
22 number one was to get a proIessional to give us
23 advice on that. Okay. Independent oI yours. We
24 don't have to use your engineer. Okay. We
25 represent the community, not you. So the Iact 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 inIormation we had said that you were approaching a
60
8 height problem. Okay.
Jack Luchese, Board oI Director WaterSound Beach
1 Q Now, part oI my claims is that the board
2 was picking on me, speciIic --
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 Irom 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 II there are homes that are taller than
21 50 Ieet, does that mean they have to be taken down
22 to comply with the code?
23 A Well, iI those homes were above that and
24 somehow they were granted a variance oI 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 oI the 50 Ioot height requirement?
8 A Well, I think what you're asking me is are
9 things handled Iairly 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 iI 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 Iinished. 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 Iactors might make a diIIerence
19 when a Iinal judgment is made on something like
20 that.
Jack Luchese, Board oI Director WaterSound Beach
But relative to your property as an owner,
21 the question was since there's a whole row oI houses
22 on that eastern side oI WaterSound Way and another
23 potential row oI houses on the western side, that iI
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, iI you're oII on
4 the edges and the Iringes oI the community, you
5 know, it may not aIIect everybody. I don't know.
6 But iI 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 oI 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 Irom the main gate. How could you
19 not say it's not the main road? It is the main road
20 oI 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 speciIic. Do you know
13 who it was who was concerned about the height oI the
14 tower at the board oI directors meeting?
15 A It was both.
16 Q And that would be St. Joe and the board oI
64
17 directors, too?
18 A Not the board oI 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 oI 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 iI it was going to be a problem Ior
2 you, that everyone should let you know ahead oI time
3 and not let you go to the expense oI 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 Ior
7 St. Joe or someone oI 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 Iinish it iI it was not in compliance would be
14 wasted iI 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 draIt oI the February 14th, 2008
18 meeting, the board oI directors. Usually it lists
19 the names oI diIIerent homeowners that are at the
20 meeting. It might be in the third or Iourth
21 paragraph. Do you remember iI 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 reIresh your memory a little bit.
2 Let's see. The top oI 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 yourselI at one oI these HOA
8 meetings. I do remember you talking about debris.
Kevin Achatz, Board oI Director WaterSound Beach
1 Q So, it looks like that Terry Muldoon wrote
2 an email to someone Iirst?
3 A To me and copying you, yes.
4 Q And so what did Terry say in the body oI
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 Iunds.
9 Thanks.
10 Q And then what was your response, iI you
11 would?
12 A My response was as Iollows. Talked to JC,
13 yours and Dave's checks not cleared yet. John asked
14 me to Fed Ex. Will do later today.
Kevin Achatz, Board oI Director WaterSound Beach
2 A Okay. John, your question again, I'm
67
3 sorry?
4 Q First I was going to ask iI 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 oI that
10 email is?
11 A May 13th, 2008.
12 Q Okay. So that was at least a month aIter
13 the emails that were written -- that were exhibited
14 on Page 2. These ones on Page 2, do you know iI a
15 check bounced that got writ Irom the payment oI
16 construction on Lot 41?
17 A I don't recall.
18 Q Who did the books Ior White Sand Ventures?
19 A A person by the name JeII DeBow.
20 Q Is he a CPA or something?
21 A Yes.
22 Q And what state is he Irom?
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 iI 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 iI there were any that
11 bounced.
Kevin Achatz, Board oI Director WaterSound Beach
25 Q Okay. I don't know what this is, but iI
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 Irom you, I
4 believe, to me and copied an individual by the name
69
5 oI 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 oI director Ior WaterSound
9 at any time?
10 A At some point in the past, yes.
11 Q Do you know iI yourselI, Dale and I ever
12 met to talk about any business?
Kevin Achatz, Board oI Director WaterSound Beach
2 Q Do you remember ever receiving any emails
3 Irom me in which I would have copied, you know, a
4 multitude oI 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 Iorth Ior the community
16 that needed to be considered or resolved prior to
17 turnover Irom 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 oIIicial turnover date Ior which
22 really, I believe, is technically January 1st.
23 Q What year was the election that you're
24 talking about?
25 A 2010.
Kevin Achatz, Board oI Director WaterSound Beach
I am writing this letter in the hope that
2 you will careIully 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. II 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 Iact
9 that White Sand Ventures had bounced any checks to
71
10 Chambers Street Builders. Did you tell anyone that
11 White Sand Ventures bounced a check to Chambers
12 Street Builders?
13 A I don't recall any bounced checks, so I
14 don't know.
Kevin Achatz, Board oI Director WaterSound Beach
Q This top email, I think it says was Irom
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 oI
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, Iolks, Tom said
5 that several subs have come Iorward and said they
6 haven't been paid Ior Lot 41 or Lot 1 work. Who is
72
7 Tom?
8 A As I recall, he was some sort oI 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 yourselI interview to take over Lot 41?
14 A Three.
15 Q Do you know who they were?
16 A This was one oI the gentlemen.
17 Q Do you know what his company is called?
18 A No, I don't. I don't recall.
Kevin Achatz, Board oI Director WaterSound Beach
7 Q The last thing in this email that was sent
8 to -- or appears to have been sent to Kevin Achatz,
9 Mary Joule and Terry, Dave is saying, Mary, I
10 thought the leaning tower house was getting red
11 tagged. Did this happen? Do you know -- did Mary
12 Joule tell you anything about Lot 24 getting red
13 tagged or shut down or anything?
14 A Not that I recall.
15 Q Okay. And then I'm seeing it looks like
73
16 on that same page, 24, you wrote a response, Kevin
17 Achatz wrote to Mary Joule, Terry Muldoon and Dave
18 Burke about John Carroll's personal home. Said,
19 Mary, I just returned Irom China and noted that John
20 Carroll has now put up his personal home building
21 project Ior sale. Why were you in China?
22 A Why was I in China?
23 Q Yeah, I mean do you go there Ior business?
24 A Oh, it's Ior business.
25 Q Why was it notable to you that John
42
1 Carroll put his personal home up Ior 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 oI it. I don't recall how I knew, but
5 somehow I must have been aware oI 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 reIerring to
16 the people that were involved in White Sand
17 Ventures. Would have been John, Terry Muldoon or
18 Dave Burke. I mean, myselI Terry Muldoon or Dave
19 Burke.
20 Q Did Terry Muldoon and Dave Burke own Lot
21 1, too?
22 A To the best oI 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 oI
4 WaterSound Ior the beneIit oI all the community.
5 Why would you think that, that means we have
6 succeeded in getting Chambers Street out oI --
75
7 A I think it has something to do with the
8 Iirst sentence which says, I just returned Irom
9 China and noted that John Carroll has now put up his
10 personal home building project Ior sale.
11 Q And it says here, I really hope this means
12 we have succeeded in getting Chambers Street out oI
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 reIer to any number oI people Irom
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 oI the community?
23 A I don't recall, no.
24 Q And I don't know iI I asked you or not,
25 did Mary Joule say anything to you at all about Lot
44
1 24 and the height oI the tower?
76
2 A No, not to my recollection.
Kevin Achatz, Board oI Director WaterSound Beach
16 Q I was showing you this page that's
17 called -- I called it Page Number 26, and it looks
18 like at the bottom Kevin Achatz wrote an email to
19 Alex, Dave Burke and Terry Muldoon. Do you know who
20 Alex Fambri is?
21 A Yes. She was at the time, I believe she
22 was the -- and I don't know their title, but the
23 community manager I'll call them, or CCMC, on behalI
24 oI WaterSound.
25 Q WaterSound Beach?
45
1 A Yeah, WaterSound Beach, yes.
Kevin Achatz, Board oI Director WaterSound Beach
A Well, I think most oI 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 iI
6 Chambers Street Builders constructed the tower Iirst
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 oI handwritten
14 notes on it, and I'll tell you -- Chris can object
15 iI 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 oI the telephone numbers
2 or do you remember any oI them Irom 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 beIore about a builder
19 named Tom. Do you know iI Tom was Irom Alabama?
20 A I do not know.
21 Q Do you know how you were introduced to
22 Tom?
23 A Introduced to Tom? No, I don't know.
24 Q Did you tell anyone at any time that you
79
25 or Dave and Terry were suing Chambers Street
51
1 Builders?
2 A I don't recall ever saying that. And I
3 don't recall any lawsuits ever.
4 Q Did you or Terry and Dave ever sue
5 Chambers Street Builders or John Carroll?
6 A Not to my knowledge.
Kevin Achatz, Board oI Director WaterSound Beach
Q Do you know iI that's the attorney who
5 sent you Chambers Street Builders' letter oI
6 termination oI our contract?
7 A I seem to recall that is the one, yes.
8 Q Now, this one says it's Irom 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, iI you
12 Ieel 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 oI 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 Irom Terry Muldoon. I do
22 not recognize the account.
23 Q Do you know who Stephen Melton is?
24 A No, I do not.
Kevin Achatz, Board oI Director WaterSound Beach
9 A The only over budget that I'm aware oI was
10 a strong belieI that we had expended Iunds Iar in
11 advance oI the percentage oI completion, which had
12 actually been achieved. I'm Iairly 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 oI money to remediate work that had been done and to
17 Iinish the house.
18 Q Do you know who bought that project Irom
19 White Sand?
20 A I don't. I don't.
81
21 Q Do you know how long it took them to
22 Iinish 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 Iind out that it took 90 days to complete the home?
4 A That would be two or more.
Kevin Achatz, Board oI Director WaterSound Beach
But the
10 amount which was still owed Chambers Street Builders
11 to Iinish 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 leIt to pay Chambers Street Builders to
15 complete the home was in the area oI 110,000?
16 A I don't recall.
17 Q Do you know iI Chambers Street Builders
18 oIIered to complete the home Ior the remaining
82
19 balance?
20 A I don't recall.
21 Q Would that be the type oI thing that you
22 would want to tell Mary Joule or the board oI
23 directors? I mean, I see that you wrote the letter
24 to the board saying we resigned and we leIt a lot oI
25 things undone. I'm just wondering iI 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 oI thing you would want to
4 tell the board oI directors?
5 A I don't think it would be anything to do
6 would have anything to do with the board oI
7 directors, but I can't recall iI that was done or
8 not done. I think a lot oI the -- once you
9 resigned, Ior whatever reason that you resigned,
10 there had been many discussions as I recall about
11 the -- some oI the work that had been perIormed and
12 in Iact needed to be redone, and I think there were
13 disputes in that area.
83
Kevin Achatz, Board oI Director WaterSound Beach
16 Q Did White Sand sell that home as a short
17 sale?
18 A We did. We did. Gave it back to the bank
19 pretty much. The short sell stipulated there would
20 still be a potential deIiciency 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 diIIerence?
25 A No.
Kevin Achatz, Board oI Director WaterSound Beach
1 Q Dave Burke, do you know iI he was
2 experiencing any Iinancial strain or Iinancial
3 problems during this period oI 2008?
4 A With respect to his Iinances, John, I have
5 no intimate knowledge oI his Iinances or whether he
6 was experiencing Iinancial strain.
7 Q Did Dave Burke have any trouble coming up
8 with his third oI the money to make payments to
9 Chambers Street Builders?
84
10 A I don't recall iI 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 Iinances so.
19 Q Okay. So this check Irom -- appears to be
20 Irom Terry Muldoon and said it was Ior $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 oI a address on
3 it, which I can't read.
4 Q What about what it was intended to pay
5 Ior?
85
6 A I don't know. I don't recall the name
7 Steve Melton.
Kevin Achatz, Board oI Director WaterSound Beach
11 Q And then I have this letter here. It
12 appears to be a letter Irom 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 Ior comments on the status oI
18 our construction. Can you tell me what kind oI
19 request Mary Joule made to you?
20 A Might be iI I could take a look at it. It
21 would be helpIul Ior me to recall what kind oI
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 Ior comments on the status oI construction.
86
3 And what I'm trying to Iigure out is did Mary Joule
4 at any time come to you and say, Kevin, we need a
5 letter Irom you about Chambers Street Builders.
6 I've already got a letter Irom Freddy Kaye. We need
7 to get this to the board oI directors.
8 A Not to my recollection, no.
9 Q And you didn't bring any emails with you
10 oI 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 yourselI 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 iI Mary Joule ever wrote you
23 by email and asked you Ior 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 speciIically what she would have asked Ior.
Kevin Achatz, Board oI Director WaterSound Beach
19 Q What happened to Lot 1. Did Dave and
20 Terry have to give that project back to the bank?
21 A I don't really know what happened, but as
22 I recall, there were discussions between them and
23 the bank relative to giving it back, but I don't
24 know really know the end result.
Kevin Achatz, Board oI Director WaterSound Beach
Q Okay. The Mike Adkinson project in
3 Mississippi, are you still an owner in that project?
4 A That remains to be seen, the degree oI
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 deIinition oI giving back,
88
11 relinquished control being done, really is a matter
12 Ior the bank's interpretation, I think, and the bank
13 has not made its Iinal determination.
14 Q Do you think the bank sent you any kind oI
15 tax Iorms on that transaction?
16 A I do.
17 Q Would they be 1099?
18 A That would be a 1099, that's correct.
19 Which does not, by the way, automatically relieve
20 any debt.
Kevin Achatz, Board oI Director WaterSound Beach
Q Yeah. Well, I think that when you and I
15 talked that day at the airport that you had said at
16 a certain point you stopped making payments on all
17 oI 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 oI them.
20 Q What did happen in the Cypress Breeze
21 case? You had a Iew 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 Ior Iorgiving the loan. There were three
89
25 oI them, by the way.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
Is it the
7 board oI directors oI 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 Ior the list?
13 A I wasn't really ever part oI any oI the
14 DRB portions oI it in the vertical construction. My
15 role primarily has been the horizontal development
16 piece oI 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 oI WaterSound Beach?
21 A In charge oI the horizontal development
22 primarily. As we would put horizontal development,
23 the roadways, the parking areas, parks, the common
24 elements to the community
90
Mary Rosenheim, WaterSound and Watercolor Board oI Director
Q Did you ever do surveys? Do you know how
5 to read surveys or do you know how to perIorm a
6 survey?
7 A I don't know how to perIorm a survey. I
8 can read a survey, but I can't perIorm one, no. I'm
9 not a surveyor.
10 Q Well, the best you can -- iI you know then
11 you know -- can you tell iI this is a survey oI Lot
12 24, WaterSound Beach.
13 A Appears to be. It says, Lot 24,
14 WaterSound Beach, Phase IV.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
1 Q Do you know where Lot 24 is in WaterSound
2 Beach?
3 A I think it's near the yacht pond?
Mary Rosenheim, WaterSound and Watercolor Board oI Director
9 Q Can you tell by looking at that survey
10 what the Iinished Iloor elevation is?
11 A Finished Iloor, 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 oI 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 II these are 60.
2 Q Yeah, plus or minus 60 Ieet?
3 A Seventy Ieet.
4 Q Can you tell by looking at that how high
5 the Iinished Iloor is above the site benchmark that
6 we talked about?
7 A Yes, I can. Between the two. It's
92
8 3.54 Ieet diIIerence between these two.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
9 Q Good numbers. Do you know what
10 WaterSound's height requirement is maximum height
11 Ior a tower in the neighborhood?
12 A The only thing I could reIerence 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 oI 50 Ieet.
17 Q Do you know that land development code, I
18 mean, how they determine the height oI a building?
19 A I can't tell you how they do it, no. And
20 over time, it has been modiIied over time. I could
21 not tell you the timeIrames. What used to be an
22 absolute measurement and then they started taking
23 the measurement oI a ridge or something. I couldn't
24 tell you exactly.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
12 A I'm not sure where the back lot lines are,
13 but I know that in that area, it drops dramatically
93
14 as you go to the lake. I can't tell you on a
15 speciIic lot or where the lot lines were in relation
16 to those grade changes though.
17 Q Do you know iI these height in
18 measurements are taken Irom 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 oI --
24 A On your lot. Natural ground.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
6 Q In particular, I'm looking at these
7 landscape details along the bottom side oI that. Do
8 you know iI the driveway aprons and parking pads are
9 on the lot or in the common area?
10 A I don't remember oII the top my head. I
11 think they were 40-Ioot right-oI-way.
12 Q Maybe I can help you with this. Do you
13 remember when WaterSound Beach was being developed,
14 do you remember iI 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 speciIic iI 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 oI the
21 parking pads, but I don't know that we've done one
22 Ior each lot.
23 Q I want to help you, but I sure can't
24 answer Ior you, and I'm just trying to Iigure out iI
25 you can tell by looking at this iI this landscaped
13
1 area on the landscape plan is on the property oI Lot
2 24 or iI it's in the common area. Oh, here's a
3 question that might help you out.
4 A I can't tell Irom the drawing Irom 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-oI-way line,
10 and iI that line is true, then the parking and the
95
11 drive aprons are all within the right-oI-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-oI-way?
16 A Typically, they would be either within the
17 right-oI-way or a Iive Ioot easement -- Iive Ioot or
18 more easement adjacent to the right-oI-way.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
2 Q Well, let me ask you this in your
3 experience. II a person or -- iI a proIessional had
4 this survey right here that shows the Iinished Iloor
5 elevation and then they had a set oI plans Ior the
6 structure, could they determine how high the ridge
7 was above grade or above this site benchmark?
8 A II the plans were adequate, assuming the
9 plans were adequate. But I couldn't tell you Irom
10 this drawing how it's relative to the natural
11 ground.
12 Q That's right because it only has that site
13 benchmark, right?
14 A It doesn't mean anything.
96
15 Q What you'd really need is a topo survey or
16 something like that, I guess?
17 A Topographic survey.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
24 Q Let's see iI there's any inIormation 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 iI that matches the Ioundation plans
3 benchmark.
4 A It appears to say 18.3, top oI 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 iI 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, Irom 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 Ior 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 halI inches
24 increments.
25 Q So every six inches in elevation change,
17
1 they might indicate it on a topo survey.
2 A Um-hum (indicating in the aIIirmative).
Mary Rosenheim, WaterSound and Watercolor Board oI Director
16 Q Do you know what NGVD stands Ior?
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 oI 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. II you had a topographical survey and you had
5 a set oI blueprints, could you tell us what the
6 proposed height above grade was oI the highest point
7 oI the building?
8 A As long as that set oI drawings gave a
9 Iinished Iloor elevation and they were adequate
10 drawings, we should be able to determine that, yes.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
16 going to ask, iI you can, this is, oI course, the
17 tower, the tallest part oI the building. Can you
18 tell how high above grade they wanted the Iinished
19 Iloor oI the tower?
20 A The Iinished Iloor --
99
21 Q The Iinished Iirst Iloor oI the tower by
22 looking at that drawing.
23 A Finished Iirst Iloor oI the tower. This
24 one doesn't say Iirst Iloor oI the tower.
25 Q I guess, how about iI we say main level
19
1 Iloor.
2 A Oh, okay.
3 Q How high above grade?
4 A It appears to be -- I can't read iI that's
5 2 Ioot 6 or 2 Ioot 8.
6 Q Okay. But it may say 2 Ioot 6 or 2 Ioot
7 8. Is 2 Ioot 6 30 inches?
8 A It would be.
9 Q And 2 Ioot 8 would be 32?
10 A 32.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
11 Q Okay. That's really all I need to know
12 about that right there. Moving right along. This
13 might have helped you a bunch. While we were
14 looking at the topo side, they were actually showing
100
15 the plot plan as well on a survey. Can you tell now
16 iI the area that they're asking us to landscape by
17 the driveway is on Lot 24 or oII 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 oI Lot 24.
22 Q And there's a note on this that says two
23 sand live oak. Do you have any idea what that
24 means?
25 A You have to plant two sand live oaks in
20
1 that area. Two each.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
Here's another one oI the tower,
6 and I'm just wondering iI we look at Page 135 and
7 trying to establish the main level Iloor, how high
8 above grade?
9 A That would appear to be 2 Ioot 6 inches or
10 2 Ioot 8 inches. Again, it appears to be the same
11 as the other drawing.
101
Mary Rosenheim, WaterSound and Watercolor Board oI Director
This is Page 138, and it's an email Irom Tracy
23 Regan to me. I wonder iI 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 oI 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 Ieet. The
4 concerns oI the tower rooI when added that was on
5 the approved plans and iI built according to the
6 speciIications on the plans will exceed the tower
7 height limit. And she's saying there, our oIIice
8 needs something Irom 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 satisIy her request?
13 A I don't know because I don't know what was
14 in the plans to start with.
102
Mary Rosenheim, WaterSound and Watercolor Board oI Director
15 Q Okay. That's good. Okay. This is a
16 letter that Gary Shipman wrote to me. Were you
17 involved with WaterColor by the way. Did you help
18 them in WaterColor, too?
19 A I was on the board about the same time
20 period that I was on the board at WaterSound Beach.
21 Q Not the design review board. The board oI
22 directors?
23 A That's correct.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
4 Q In the last paragraph on that Iirst 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 rooI
9 does not exceed 50 Ieet.
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 Iinished structure is 50 Ioot 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 oI 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 oI 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 rooI design does not exceed 50 Ieet.
2 Q I know it's probably a dumb question, but
3 I've just got to get your answer Irom reading that.
4 Are they saying that I'm in violation or may be in
5 violation.
6 A When I Iirst 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 rooI design,
14 does not exceed 50 Ieet height, and iI you don't
15 undertake the obligation, they will seek an
16 injunction
Mary Rosenheim, WaterSound and Watercolor Board oI Director
Q All right. I'll set that aside then.
5 It's really black, that one. What about in this
6 photo. It's Number 161. Can you tell where the
7 yacht pond would be in that photo?
8 A Right there, I think. (Indicating.)
9 Q Yeah. I'll have you just circle it with
10 that marker as best you can. Construction pen. And
11 then this photo here it 162. II 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 Ior me?
14 I'm seeing a load oI 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 iI 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 oI the yacht
23 pond. Did there used to be construction parking in
24 the middle oI town or were they trailers?
25 A I believe this was set up as the oIIices
27
1 and stages oI the construction oI the multi-Iamily
2 units here and here.
3 Q Did St. Joe or any oI the other
4 development people have to bring in any Iill dirt
5 into WaterSound Beach?
6 A I can not deIinitively say. I don't
7 recall. It's been a long time.
8 Q That's okay. What about in this picture,
9 iI 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 Irom that one.
15 Q Okay. That's Iair enough. Have you ever
16 seen any documents that look like this beIore, this
17 is -- what page number does that say down there?
18 A 172.
19 Q Yeah.
20 A It looks like minutes Irom a meeting.
21 Q Do you know iI you were a board member at
22 that time? What's the date oI that meeting?
23 A February -- Thursday the 14th oI 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 Iolks there Ior the vote, to have a
5 quorum Ior a vote.
6 Q Let's see. II 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 oI 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 speciIics. I'm sorry.
14 Q That's okay. I see that aIter -- 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 oI directors was charged to
18 research the issue and Iollowup 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 oI directors was charged to research the issue and
24 Iollowup. 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 oI just St. Joe in
5 private meetings?
6 A I do.
7 Q And did we satisIactorily take care oI
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 Ior the area, but I don't recall much about it.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
Do you
19 know who Ron Voelker is?
20 A He's a surveyor.
21 Q Did he take over Sam Bruner's business?
22 A I don't know.
23 Q How do you know he's a surveyor?
24 A My husband is a surveyor.
25 Q That's right. Scott?
109
30
1 A Um-hum (indicating in the aIIirmative).
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 certiIied?
6 A 16th oI May, 2008.
7 Q And do you think that's the day that the
8 surveyor did the Iield work? Is there any way to
9 know what day he did the Iield work?
10 A Field date, I can't read it. Here's the
11 Iield date.
12 Q Yes.
13 A They usually have a Iield 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 oI 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 saIe to say by
21 looking at this that the Iield date was on or beIore
110
22 May 16th, 2008?
23 A I can't really read that date.
24 Q What about the date that he certiIied it?
25 A The 16th oI May, 2008. That's very clear.
31
1 Q Do you think that the Iield date was done
2 on or beIore 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 oI 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 reIerence to not an NGVD
10 elevation but he's making a reIerence somewhere on
11 here that it's a zero, and it's Ior the purpose oI
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 Ieet is on either drawing.
22 Q Can you tell by reading any oI the general
23 notes where 00, what that reIerences is?
24 A I don't see a reIerence.
25 Q Have you ever seen a survey that looks
32
1 like that beIore?
2 A This is a speciIic purpose survey. I see
3 a lot oI speciIic purpose surveys.
4 Q Oh, you do?
5 A Yeah.
6 Q What is a speciIic purpose survey?
7 A It's done by a client that's looking Ior a
8 very speciIic measurement or something like that,
9 but it's not necessarily a boundary or a topo or
10 Iollow some speciIic state statutes I believe.
11 Q There's a note on here, I think, that says
12 revision, revised height oI structure, June 9th.
112
13 Can you tell on there what the Iield work date was?
14 A For -- not Ior 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, Iield date 16th oI 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 oI the
2 structure and the unavailability oI access to the
3 top oI the structure, the height could be as low as
4 45.4 Ieet or as high has 47.1 Ieet.
5 Q What do you think that means?
6 A That means that he couldn't necessarily
7 deIine it? I'm not sure. Maybe it was an
113
8 instruction on how it is to be measured given the
9 note. Lack oI understanding oI 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 oI the structure, and then he puts
13 that note on there. Does that note explain why the
14 Iirst elevation was listed at 48.53 Ieet?
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 Iirst survey outside that range?
20 A I can't answer that question.
21 Q Well, iI you look here, I think it says it
22 could be as low as 45 Ieet or as high as 47 Ieet,
23 but when we look at his Iirst elevation, it appears
24 to be outside that range.
25 MR. GEORGE: Object to Iorm.
34
1 Q Is 48.53 Ieet outside the range the
2 surveyor describes in the revised survey?
3 MR. GEORGE: Object to Iorm. You don't
114
4 know that zero is the same on both oI 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 proIessional who could
12 say by looking at what was given here.
13 A I don't know what the assumptions are Ior
14 the zero.
Mary Rosenheim, WaterSound and Watercolor Board oI Director
11 Q That's a good point. When we talk about
12 the 96, the six represent tenths or 100's.
13 A The six is 100's. II you're reIerring to
14 this decimal place, it's tenths and 100's.
15 Q Okay. And that is 100's oI a Ioot?
16 A Foot.
17 Q A hundredth oI a Ioot is a pretty small
18 number I'd bet.
19 A It is.
115
Mary Rosenheim, WaterSound and Watercolor Board oI Director
8 Q Okay. Do you know iI Lot 24 was covered
9 with Iill aIter the construction oI 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 oI nitroglycerine beIore?
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 oI 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 Iasteners 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 oI these were Iound on Lot 24?
7 A No, I don't.
8 Q Would you be concerned as a homeowner iI
9 you Iound stuII 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 Irom earlier.
14 It's called PlaintiII's Exhibit 5, and it's shown in
15 picture 184. Do you recognize what any oI these
16 types oI things are?
17 A Appear to be rubber gaskets.
18 Q Do you know what a concrete pump is?
19 A Um-hum (indicating in the aIIirmative).
20 Q Have you ever seen the hoses that operate
21 concrete pumps? Does this look like one oI the
22 gaskets Ior --
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 oI these brick type oI pavers beIore?
2 A I've seen a number oI brick pavers beIore.
3 Q Do you know what kind oI brick pavers they
4 used Ior 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 speciIics. 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 oI 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 speciIied. It's usually the
23 native material mixed with an imported material to
24 bring it to a certain density level oI compaction.
25 Q Okay. Got you. So then we have sub base,
41
1 and what's on top oI 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 oI 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 speciIic
16 type oI 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 Ior.
21 Q What is binder? What's asphalt binder?
22 A Everything that holds it all together.
23 Q What is that made oI?
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 Iound 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 oI 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 speciIically, no, not at a
25 board oI directors meeting.
43
1 Q When you were a board member, iI I brought
2 something like that to your attention or anyone
3 brought it to your attention, do you think you would
4 investigate?
5 A Oh, I'm sure.
121
Mary Rosenheim, WaterSound and Watercolor Board oI Director
Let's see this next. Do you know
11 what this is?
12 A Rebar.
13 Q Do you think there's any rebar in the
14 Compass Point buildings?
15 A I can only surmise that there would be.
16 Q What about in the gatehouse, does it have
17 any concrete Iloors or anything in the gatehouse
18 building?
19 A I assume. I don't know.
20 Q I'm trying to think oI 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 oI diIIerent ways it
25 can get underground. One oI them it could be
44
1 buried. I don't know.
2 Q Would it be buried iI they brought in
3 Iill?
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 oI answers. I just,
15 you know -- I mean, I can scream it on the top oI a
16 rooI top but Ior some reason people don't believe
17 me. II 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 Iind 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 oI 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 Iigure 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 oI?
19 A I don't know. All I know is Irom the
20 board. I have no idea.
124
Mary Rosenheim, WaterSound and Watercolor Board oI Director
13 BY MR. GEORGE:
14 Q You were on the board Ior WaterSound and
15 Ior 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 oI it, wouldn't you?
49
1 A Yeah, I would have been aware oI 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 Irom 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 oI directors?
11 A I would assume so.
12 Q Do you know who made that decision?
13 A No, I do not.
Drew Robertson, ProIessional Geologist
Q Could you state your name Ior the record,
15 please.
16 A Drew Robertson.
17 Q And are you a proIessional geologist?
18 A I am.
19 Q And what's the name oI the Iirm that you work
20 Ior?
21 A Soils, Sediment & SubsurIace.
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 iI 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 Iour-year degree Irom an
11 accredited, board-accredited university. And then I had
12 a master's degree on top oI that, so it took down some oI
13 my proIessional time, and you have to have Iive years
14 proIessional time, certiIied by either a proIessional
15 engineer or a proIessional geologist.
16 Q And that was all beIore you obtained your
17 license in 2002?
18 A Yes.
19 Q Do you think you could quantiIy how much
20 experience you have then?
21 A I've been doing either consulting work or work
22 with DEP, with the State, or in the private sector since
23 1999.
127
Drew Robertson, ProIessional Geologist
Q Okay. The soil study or the -- would you call
25 that a soil study, or what did you do out there at
7
1 WaterSound Beach?
2 A I was pretty much contacted just to pretty much
3 just identiIy the underlying soil types or what was
4 present at the test locations.
5 Q Is that kind oI a test or analysis something
6 that's typical oI a geologist?
7 A Yes.
Drew Robertson, ProIessional Geologist
Q Yes, at WaterSound.
12 A I do. When I look back over the report, I
13 mean, I don't just -- you know, I've done a lot oI work
14 since then. This was in February oI 2010. But I do
15 remember drilling around the electrical transIormer and
16 on the -- I guess that would be the west side oI your
17 home, I think along the main roadway that goes over to
18 that pond, I think.
128
Drew Robertson, ProIessional Geologist
Q That e-mail that you just read, do you know iI
7 that's a Iairly accurate assessment oI what you Iound out
8 there that day?
9 A Well, I mean, some oI 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 stuII I encountered, you know, six inches
16 oI asphalt, in some spots three inches, areas with
17 limestone gravel, buried roots and limbs one inch in
18 diameter, that stuII is clearly a Iill material oI 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 Iound in your soil borings, is it
23 naturally occurring in that area?
24 A No.
25 Q Is it naturally occurring anywhere, to Iind
14
1 that kind oI stuII 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 Iilled 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 oI
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 itselI to
14 have limestone there. And asphalt, deIinitely not.
15 That's a man-made product.
Drew Robertson, ProIessional Geologist
Q While we're talking about the limestone on
17 there, where is that classically Iound; do you know?
18 A Limestone in that area should be mined --
19 probably the closest mine I can think oI oII the top oI
20 my head would be somewhere up in the uplands, Marianna,
21 I-10 corridor, or probably somewhere Irom Carrabelle.
130
22 Q That's a pretty good ways Irom WaterSound. Do
23 you know about how Iar that it Irom WaterSound?
24 A As a crow Ilies, Carrabelle to WaterSound is a
25 hundred miles probably. I'm not real Iamiliar with the
15
1 limestone pits north oI the Destin area. There's
2 deIinitely 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 Iirst three Ieet oI the surIace, 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 oI 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. II 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 oI
21 it up and breaking it that day?
22 A I don't recall.
23 Q What I'm wondering speciIically is do you
24 remember the presence or lack oI presence oI 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 oI
4 like cold patch, but I don't truly remember that oII the
5 top oI my head. I don't know iI it's just been reIreshed
6 Irom this or not.
7 Q That's Iair. II 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 oI southern
12 Alabama, somewhere like that.
13 Q Do you know what the ingredients are that make
132
14 asphalt or any oI the ingredients Irom asphalt?
15 A Yes. You have an aggregate. You have some
16 sand. You have the emulsiIiers and the kind oI glue, iI
17 you want to say, which is the tar and petroleum
18 constituents. And it kind oI binds that in so it's what
19 we call a Ilexible pavement. But it's kind oI a mixture
20 oI sands and kind oI a coarse Iraction oI 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 oI stuII in their business? Is that
17
1 something that you need to understand or be able to
2 identiIy?
3 A We're not, per se, in school trained. Roadway
4 construction and the products to make roadways are not in
5 my Iormal education. I've been doing geotech work Ior
6 most oI my time, so just Irom working with road engineers
7 and being aIIiliated with a structural and civil company
8 that designs roads, I know what I need to.
Drew Robertson, ProIessional Geologist
133
Q What's the concern iI somebody builds a home on
11 uncompacted soil?
12 A The home will diIIerentially settle. The soils
13 will compact with time. And since you now have a house
14 sitting on that soil, it will subside as the soils
15 subside.
Drew Robertson, ProIessional Geologist
Q I understand. As a geologist, have you ever
17 heard the term "polycyclic aromatic hydrocarbons"?
18 A Yes.
19 Q Commonly I guess they're known as PAHs?
20 A Uh-huh (indicating aIIirmatively).
21 Q Can you describe what a PAH is?
22 A PAH is -- I used to do a lot oI 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 oI the curve. They're a product oI
2 diesel Iuels, heavy oil Iuels. 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 Irom.
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 oI other stuII to Iorm Iuel.
10 Q Do you know iI PAHs are considered a
11 carcinogen?
12 A PAHs, there's many -- there's a couple
13 diIIerent elements, or not elements, there's a couple
14 diIIerent chemicals that are within the PAH
15 classiIication. I do think they are. I'm not sure.
16 Q I'm going to slightly change my line oI
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 Iorm 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 eIIects oI PAHs
24 reaching the groundwater? Is there any concern about
25 that amongst geologists, or is it something that's
135
20
1 usually studied?
2 A Uh-huh (indicating aIIirmatively).
3 Q It is?
4 A Uh-huh (indicating aIIirmatively).
5 Q What's the concern? Why would somebody look
6 into that type oI 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 Iall back on the DEP
11 guidelines that you test Ior VOCs, PAHs, some other --
12 they've got stuII called the FL-PRO, the Florida
13 Petroleum Range Organics. And PAHs are part oI that.
14 So I don't know that table out oI the Florida
15 Statutes oII the top oI my head, but there's a reason
16 we're looking Ior 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 Ior it.
Drew Robertson, ProIessional Geologist
A Okay. (Views document.)
136
7 Q I'm going to actually letter them. I'll go
8 with A, B and C, just to make the record clear. I don't
9 know iI I'm writing upside down or not. In photo C,
10 which I think is page three oI that exhibit, I allege
11 that that's a photo oI the Iooting line at Lot 24. And
12 I'm just wondering iI you notice anything peculiar about
13 the soil in that photo, in your opinion, as a geologist.
14 MR. GEORGE: Object to Iorm.
15 THE WITNESS: What was that?
16 BY MR. CARROLL:
17 Q He just objected to Iorm. You can answer.
18 A It looks like to me there's -- iI that's a
19 normal Iooter, I'm expecting it to be 16 inches deep
20 maybe. Maybe that's a little deeper, 24 inches. And
21 there's three diIIerent 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 Iooting path?
22
1 A I would not expect it.
137
2 Q And I guess, just Ior 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 unconIormities here and here. These diIIerences between
6 the sediment packages indicate some sort oI big
7 environmental change. II they were deposited naturally,
8 there would be something shiIted and changed
9 signiIicantly to get this white band, and then something
10 changed again signiIicantly to get this reddish brown
11 band above it.
12 Typically, you don't get that. You know, maybe
13 at the end oI 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 Ior the record,
17 what we're talking about are these more or less three
18 distinct stripes oI 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 Irom some signiIicant -- what was the word you said?
23 A You'd expect an environmental change, some sort
138
24 oI depositional environment change to get -- iI that was
25 truly deposited sediment, you would have to have either
23
1 some sort oI 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 oI sediment
4 down and then the coast came back to its old spot and we
5 got new deposition on top oI that, something pretty
6 signiIicant.
7 Q Let me go ahead and ask you then, do you know
8 oI any satellite imagery programs where somebody might go
9 to reIer and look at lots like this one to see iI 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 oI Cumberland Island. And I
13 used stuII Irom -- because I was mapping out storms and
14 sediment packages like this on a tip oI 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 oI aerial coverage back to the IiIties. And
18 I'd have to look. I can't recall where else I pulled
19 data Irom.
139
20 Q What are some oI 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 Iill, Iill material.
2 Q When we talk about Iill, is it common in new
3 developments, Ior the horizontal development oI the
4 neighborhood, Ior them to actually change the grade Ior
5 certain reasons?
6 A Yes.
7 Q And they'll do that by bringing in Iill?
8 A Either Iill or it can be oII-site Iill, it can
9 be on-site Iill. You know, value-engineering-wise you
10 try to what we call balance a site, where you just shiIt.
11 II you're cutting over here, you're Iilling over here, so
12 that you're not hauling oII material or anything.
13 Q I understand. That makes good sense. In the
14 Iirst two photographs, they're called A and B -- let me
15 see iI I can help in any way. There are some things that
140
16 I allege that I Iound in that same Iooting path, and I
17 just wondered, do you know iI that's a natural
18 occurrence, or could that be man-made?
19 A Well, to me, Irom the photographs, especially
20 in A, it looks like there's a two-by-Iour Iacing me. So
21 that's -- at least that two-by-Iour and it looks like
22 these concrete blocks would be man-made material.
Drew Robertson, ProIessional Geologist
6 Q Pretty neat. I've never heard oI that one.
7 What about something a little more simple? Are there
8 usual assumptions that can be made when you see actual
9 wetlands in something, that helps you determine the
10 topography there --
11 A Yes.
12 Q -- in relation to the surroundings?
13 A Uh-huh (indicating aIIirmatively).
14 Q Are wetlands normally higher ground or lower
15 ground?
16 A Lower ground.
Q W Drew Robertson, ProIessional Geologist
We have an exhibit here that's called
141
23 PlaintiII's Exhibit 5, and I just wondered iI 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 PlaintiII's
11 Exhibit 4, and I think I'm seeing it in photograph B, but
12 I just wondered iI you could identiIy what you think that
13 is.
14 A It looks like some sort oI rivet system, where
15 these star screws come out maybe and the rivet pops oII
16 and you use it Ior --
17 Q Have you ever come in contact with a device
18 that's called a powder actuated Iastener?
142
19 A Yes.
20 Q Do you know what a power actuated Iastener is?
21 A Yeah. It's like Ior attaching your bottom wall
22 plate to a Iloor, something like that, to a slab.
23 Q Why would somebody use a powder actuated
24 Iastener to Iasten 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 II 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. UnIortunately, I don't remember what number
12 we're on. I think we were on 4.
13 A I think 4.
143
14 (PlaintiII's Exhibit No. 6 was marked.)
15 Q I'm going to call this PlaintiII's 6, just so
16 we don't accidentally duplicate. You described what a
17 powder actuated Iastener was without looking at anything.
18 Is that the saIety data sheet Ior a powder actuated
19 Iastener?
20 A Yes.
21 Q What is a saIety data sheet or a material saIe
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 oI the
29
1 constituent, any kind oI health saIety issues, what you
2 have to do iI you get it on you, just kind oI a general
3 sheet over any kind oI 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 oI those terms Irom 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 oI things like
14 this. And I just wondered iI 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 Iamiliarize yourselI with that.
18 A Okay. (Views document.)
19 Q Is it okay to bury these to dispose oI them?
20 A I would not think so, iI these are still live
21 rounds, because it says misIires, and misIire 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 speciIically designed to destroy ammunition.
25 Q Well, in your experience anyway, how many cases
30
1 oI these is it okay to bury beIore you need to do some
2 kind oI remediation?
3 MR. GEORGE: Object to Iorm.
4 BY MR. CARROLL:
145
5 Q You can answer, iI you want to, or iI you --
6 A I don't really -- I don't know the liIe cycle
7 oI those, how they leak. I don't know enough about them
8 to answer that logically.
9 Q Would you need to have inIormation contained on
10 one oI these material data saIety sheets in order to make
11 that determination?
12 A II I knew the -- the only way I know right now
13 to quantiIy 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 oI 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 oI
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 beIore 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 speciIically to look
31
146
1 Ior things like powder actuated Iasteners?
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 oI your report, let's see. I see this
7 word "roadway base material." Is that what we were
8 talking about beIore, the limestone and things like that?
9 A Yes.
10 Q And then there's something that says "small
11 pockets oI dark brown organic rich material." Do you
12 know what those were made up oI?
13 A No, because I didn't -- wasn't requested to
14 actually break those down.
Drew Robertson, ProIessional Geologist
18 Q The day that we went there, do you remember
19 about how many people were there that day?
20 A I recall I got to the site, I got to the
21 entrance, met Bernadette, came down, met you. And I
22 think Bernadette, you and I pretty much were there
23 drilling, and then some other gentleman showed up towards
24 the end.
147
25 Q When we talk about this other gentleman, do you
32
1 remember a man coming that had silver or gray-colored
2 hair, towards the end?
3 A I think so. I think he drove a big black
4 Suburban or big --
5 Q That was going to be my next question, but you
6 answered it Ior me. Do you remember iI that gentleman
7 took any photos when he was there?
8 A Yes.
9 Q Did he take photos?
10 A Yes.
Drew Robertson, ProIessional Geologist
11 Q I've got to ask. Was there anything that you
12 pulled out oI the ground in your soil samples that was
13 not naturally occurring there?
14 A Was there anything I pulled out oI 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 oI the ground that day when you did your soil
20 borings?
21 A Yes.
Drew Robertson, ProIessional Geologist
Q Well, did you Iind anything that would cause
17 you to recommend the removal or any kind oI remediation
18 be done beIore you build on that lot?
19 A BeIore I would -- iI I was the testing engineer
20 on this or testing geologist, iI this was running through
21 my Iirm, I would recommend some bearing values on what I
22 thought was Iill material, to veriIy that it was placed
23 in correctly.
24 Q And assuming those bearing tests turned out
25 okay, then you wouldn't recommend any Iurther action?
37
1 A Not on the material I Iound 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 oI your
5 Ioundation. II you do, you have to design a Ioundation
6 to compensate Ior it.
149
7 So like that one, I would recommend at least
8 cutting that material out to 36 inches and backIilling
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 Iound.
Drew Robertson, ProIessional Geologist
I don't recall much conversation, to be honest.
25 I didn't really even know what I was supposed to be doing
38
1 there except just drilling holes.
Drew Robertson, ProIessional Geologist
Q We talked about what you were hired to do. And
10 I think you said to both Chris and I that you were
11 essentially hired to conduct soil borings and tell
12 Bernadette what you Iound.
13 MR. GEORGE: Object to Iorm.
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. II 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 iI
39
1 you could grow plants in that material in the Iirst
2 12 inches, I guess?
3 MR. GEORGE: Object to Iorm. 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 Irom
9 surIace 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 Ieet, until you hit limestone gravel. So I assume
13 you could. Obviously, sand you've got watering issues
14 with sand.
15 Q II Bernadette had told you that there was
16 construction debris discovered within a Iew Ieet oI those
17 soil boring sites, would you have recommended any
18 remediation in that area?
19 MR. GEORGE: Object to Iorm, and I'm objecting
20 on the grounds you're going beyond the scope oI
21 redirect, John.
22 BY MR. CARROLL:
23 Q That's okay. You can go ahead and answer.
24 A II somebody would have asked me or iI there
25 was -- iI somebody would have asked me iI something
40
1 needed to be done to remove a bunch oI construction
2 debris Irom 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 oI public saIety
152
5 or something that I'm bound to ethically, Ior 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 oI 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 Iind a limb 36 inches below the
16 ground?
17 MR. GEORGE: Object to Iorm.
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 Ior what it is. Does WaterSound
18 Beach post draIt minutes to the --
19 A No.
20 Q I guess I should Iinish 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 oI Director
Q We went over this yesterday, and were you
19 a board oI director in March oI 2009?
20 A I believe I was, yes.
21 Q Do you know how much the penalty was per
22 month every month aIter, I guess, it was 15 months?
23 A I believe it's $1,000 a month.
24 Q And do you know what a beneIited
25 assessment is?
40
1 A Yes.
2 Q Was that $1,000 a month a beneIited
3 assessment?
4 A Yes.
5 Q And can the association lien Ior beneIited
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 Ior a waiver or an extension or some kind oI
12 Iorgiveness Ior that $1,000 a month Iine?
13 A Yes.
26. Additionally, Carroll requests the Court to adopt his previously Iiled motion Ior
Punitive Damages, along with its Exhibits as an Exhibit to this Motion.
27. Additionally, Carroll requests the Court to adopt his previously Iiled Motion Ior
Summary Judgment on the issue oI BeneIitted Assessments, along with its Exhibits as an Exhibit to
this Motion.
28. Carroll prays the Court Grant his Motion Ior 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 Ior its earlier ruling should grant
rehearing as it has been Iound to be an abuse oI discretion to deny rehearing; and Edrington v.
Edrington, 945 So 2d 608 (Fla 4th DCA 2006). When the motion Ior 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 oI the proceedings, 2) the evidence has been discovered since
the trial, 3) the evidence could not have been discovered beIore the trial by the exercise oI due
155
diligence, 4) the evidence is material to the issue, 5) the evidence is not merely cumulative or
impeaching.
WhereIore PlaintiII CARROLL moves to Deny WaterSound, Watercolor, Joule, Matteson
and Lilienthal`s Motions Ior Summary Judgment or in the alternative, clariIy the speciIic grounds
upon which it Granted their Motions.
Exhibit +
Exhibit ,
Exhibit -