00001
1 IN THE FIFTEENTH JUDICIAL CIRCUIT COURT
2 IN AND FOR PALM BEACH COUNTY, FLORIDA
3 CASE NO: 50 2006 00 1456 MB AH
4
5 BERNARD AMERO, et al.,
6 Plaintiff
7 vs.
8
9 BAYWINDS COMMUNITY ASSOCIATION, INC.
10 Defendant.
11 _____________________________________/
12
13
14
15 DEPOSITION OF AL TSACNARIS
16 A WITNESS
17 TAKEN BY THE PLAINTIFFS
18
19
20
21
22
23
24 DATE: APRIL 17, 2008
25 TIME: 12:56 - 4:55 P.M.
00002
1 I N D E X
2 APRIL 17, 2008
3 AL TSACNARIS
4 DIRECT CROSS REDIRECT RECROSS
5 By Ms. Lively 4 195
6 By Mr. Quattlebaum 193
7
8 E X H I B I T S
9 IDENTIFIED
10 Plaintiff's Exhibit Number 1 144
11 (A letter dated 2/20/06.)
12
13
14
15
16
17
18
19
20
21
22
23
24 LETTER TO Mr. Quattlebaum - Page 200
25 ERRATA SHEETS (to be forwarded upon completion.)
00003
1 The deposition of AL TSACNARIS, a witness in the
2 above-entitled cause was taken before me, Trudy
3 Schubert, Court Reporter, Notary Public for the State of
4 Florida at Large, at 515 North Flagler Drive, 6th Floor,
5 West Palm Beach, Florida on Thursday, the 17th day of
6 April, 2008, pursuant to Notice in said cause for the
7 taking of said deposition on behalf of the Plaintiffs.
8
9 APPEARING ON BEHALF OF THE PLAINTIFFS:
10
11 Cathy L. Purvis Lively, Esquire
CATHY L. PURVIS LIVELY, ESQUIRE, P.A.
12 6415 Lake Worth Road, Suite 203
Lake Worth, Florida 33463
13
14 APPEARING ON BEHALF OF THE DEFENDANT:
15
Guy Quattlebaum, Esquire
16 ARNSTEIN & LEHR, LLP
515 North Flagler Drive, 6th Floor
17 West Palm Beach, Florida 33401
18
19 ALSO PRESENT: Bernard Amero
Ira J. Raab
20 Marvin Ellick
Pamela L. Kaiser
21
22 - - -
23 THEREUPON,
24 AL TSACNARIS,
25 having been first duly sworn by me, was examined and
00004
1 testified as follows:
2 THE WITNESS: I do.
3 DIRECT EXAMINATION
4 BY MS. LIVELY:
5 Q. Please state your full name.
6 A. Al Tsacnaris.
7 Q. Sir, my name is Cathy Lively. I represent the
8 plaintiff in this legal action and I don't believe we've
9 ever met before.
10 A. No, we have not.
11 Q. Have you ever had your deposition taken before?
12 A. I don't believe so.
13 Q. Without telling me what you discussed, did you
14 have an opportunity to meet counsel prior to today's
15 deposition?
16 A. On this matter?
17 Q. Prior to meeting with -- prior to coming to the
18 deposition, did you have an opportunity to speak with
19 counsel regarding the basic rules of a deposition?
20 A. I was told this was going to be a deposition.
21 Q. Okay. How much time did you spend with
22 counsel discu -- and again, don't tell me what was
23 said -- how much time did you spend with counsel prior
24 to the deposition?
25 A. On the deposition matter?
00005
1 Q. Yes.
2 A. I would say less than fifteen minutes.
3 Q. I'm going to go over some general guidelines.
4 Absolutely everything we say today will be recorded by
5 the court reporter. It will be transcribed and then
6 printed into like a booklet that is a transcript of what
7 goes on today. Therefore, you've got to respond
8 verbally. The court reporter is unable to take down a
9 nod of the head, a shrug of the shoulders, everything
10 has to be verbal. Okay?
11 A. That's fine.
12 Q. If you don't understand a question, let me know
13 and I'll be more than happy to rephrase. Sometimes as
14 lawyers, we know where we're going with the information
15 and start flying through it. I don't want you to guess,
16 I want you to give me the best answer you can. So
17 please let me know if you don't understand. Okay?
18 A. That's fine.
19 Q. The next part will be we're going to try not to
20 speak over each other. I will ask you something and
21 give you time to respond. You might think you know what
22 I'm asking and try to answer ahead of time, but I ask
23 that you try not to do that. All right?
24 A. Yes. In other words, wait till you're finished.
25 Q. Correct.
00006
1 A. That's fine.
2 Q. And I will try to do the same for you.
3 A. Okay.
4 Q. Your attorney may object. That's being done for
5 the record. And I'm sure that he advised you, but
6 unless it's something of attorney/client privilege, even
7 if there is an objection for the record, you still need
8 to give me the answer. Okay?
9 A. Uh-huh. Oh, yes, sorry.
10 Q. Great. Thank you.
11 A. Sometimes I don't speak too loudly, I have a
12 little problem with my throat, so...
13 Q. If at any point you need a break, please let me
14 know, we'll gladly do that. Just for the record, we
15 tried to verify today, hopefully we'll be done by the
16 end of the day today, but there's a lot of stuff in this
17 lawsuit, I have a lot of material to cover. So in the
18 event that we don't conclude by the time that we have to
19 break today, then we'll continue the deposition at
20 another time. All right?
21 A. I guess that is all right. I have no choice.
22 Q. Are you on any -- I understand that your attorney
23 has to leave at five. But are you under any time
24 constraints today?
25 A. I would like to leave about that time if possible
00007
1 because we do have an engagement.
2 Q. Well, then we'll go until five. If we're not
3 concluded and if we're unable to conclude by five
4 o'clock, we'll simply continue the deposition. Okay.
5 Let's get started. Have you ever been known by any
6 other names?
7 A. No. Either Al or Alex. I mean it's
8 interchangeable. People sometimes say, "Which do you
9 prefer being called?" And I say, "Either way."
10 Q. What is your current address, sir?
11 A. My address is 9288 Heron Cove Drive, West Palm
12 Beach.
13 Q. How long have you resided at that address?
14 A. Since November of 2002.
15 Q. When did you acquire ownership at that address?
16 A. In -- I cannot recall the exact date. I would
17 say it was sometime in June or thereabouts, in 2005.
18 I'm not -- I don't have that exactly in my head.
19 Q. Did you rent prior to June of '05?
20 A. No.
21 Q. What was your status in residing at that address
22 from November '02 through June of '05?
23 A. My status was as a spouse; the house was in my
24 wife's name.
25 Q. And then you said in about June of '05 --
00008
1 A. I don't have the exact date in my mind.
2 Q. Okay. But then in June, July of '05, you then
3 acquired ownership status?
4 A. I think in June or May, but that would be about
5 it. It may have been -- my name had been left off, so I
6 didn't realize...
7 Q. What happened?
8 A. I said I didn't realize at the time that my name
9 was not on it, that's all. It was...
10 Q. So nothing changed legally as far as status in
11 your marriage or any type of relationship?
12 A. No.
13 Q. Just whenever you closed on your home -- just to
14 get it straight -- when you closed on the property, your
15 name was inadvertently left off of the deed?
16 A. Yes, I -- yes, my name was not on the deed. And
17 it was put on on or about the date I told you.
18 Q. And who put -- whenever you say, "It was put on,"
19 who put it on the deed?
20 A. I'm not sure what you mean when you say, "Put
21 on."
22 Q. How did you go about it? Tell me the steps you
23 went to go about getting your name put on the deed in
24 June to July of '05.
25 A. We had a quick (sic) deed prepared.
00009
1 Q. A quitclaim deed?
2 A. I think that's what it's called.
3 Q. And who prepared the quitclaim deed for you?
4 A. I think it was Jim Krivok.
5 Q. Now, when Mr. Krivok prepared the deed, did you
6 hire him, retain him independently to prepare this
7 quitclaim deed?
8 A. I'm not sure what you mean by "independently."
9 Q. Let's -- that's a good point, sir. Thank you.
10 At the time that Mr. Krivok prepared the quitclaim deed
11 to put your name onto the property at 9288 Heron
12 Circle --
13 A. Heron Cove Drive.
14 Q. I'm sorry. -- Mr. Krivok was currently -- at
15 that time, he was acting as the association attorney,
16 correct?
17 A. I believe that's correct. Yes, I believe so.
18 Q. And did you contact him independently and ask
19 that he prepare a quitclaim deed on your behalf?
20 A. Yes, I asked if he knew how to do this because I
21 wasn't aware -- I had no other attorney, I'll put it
22 that way. We hadn't used another attorney.
23 Q. And did you pay Mr. Krivok to prepare the deed?
24 A. Yes. I don't remember what -- it was a minimal
25 amount, I can tell you that.
00010
1 Q. Prior to moving to 9288 Heron Cove Drive, where
2 did you reside?
3 A. In New Jersey.
4 Q. Where at in New Jersey?
5 A. 23 Sherwood Road, Edison, New Jersey.
6 Q. And how long did you live in Edison, New Jersey?
7 A. About 35 years at that address.
8 Q. Tell me very briefly about your educational
9 background.
10 A. Very briefly, I have a bachelor's degree and one
11 year of graduate school.
12 Q. What is your degree in, sir?
13 A. Political science and international relations.
14 Q. And from what school?
15 A. The degree was from American International
16 College, Springfield, Massachusetts.
17 Q. And you said you have a year of grad work?
18 A. Yes.
19 Q. Where at?
20 A. Same school. A fellowship.
21 Q. What about your employment; what type of -- are
22 you currently employed?
23 A. No. I'm retired for quite a few years.
24 Q. And what type of work did you -- what was the
25 business that you were engaged in when you were working?
00011
1 A. Primarily, I was an executive for a retail
2 organiza -- that was the majority of my time, put it
3 that way. Everyone has had various jobs in their life.
4 I was an executive for a retail organization. And a
5 good deal of the time, I was responsible for the
6 international operations.
7 Q. What company?
8 A. It was the May Department Stores based in Saint
9 Louis, Missouri. Home office, Saint Louis.
10 Q. And you worked out of the New Jersey area?
11 A. I worked primarily in New York at the
12 merchandising office, the buying offices.
13 Q. When did you retire?
14 A. About seven years ago, I guess, approximately.
15 Q. And since you've retired, have you engaged in any
16 --
17 A. I didn't hear you.
18 Q. -- have you engaged in any business enterprise?
19 A. No.
20 Q. Have you ever represented yourself as being a
21 business consultant?
22 A. Business consultant?
23 Q. Yes, sir.
24 A. I did do some consultant work after I left the
25 May Department Stores, yes.
00012
1 Q. And did you own your own company?
2 A. I was self-employed, yes.
3 Q. Did you operate under any business name?
4 A. Yes, the name was Sherwood Associates. But it
5 was just a d/b/a, I guess you would call it.
6 Q. Was that in New Jersey or in Florida?
7 A. No, New Jersey. I've done no business here in
8 Florida.
9 Q. Now, prior to living in the Baywinds, did you
10 ever live in a homeowner's association?
11 A. No.
12 Q. Condo association?
13 A. No.
14 Q. Co-op?
15 A. Nope.
16 Q. After you moved into the Baywinds Community --
17 and just for purposes to clarify, when I'm using
18 Baywinds, I'm talking about the whole community. But
19 your individual community, is that Heron Cove?
20 A. Yes.
21 Q. After moving into your residence in Heron Cove,
22 did you become involved in the management or the Board
23 of the association of Heron Cove?
24 A. When it was finally turned over. Not initially,
25 because the developer was still in charge.
00013
1 Q. Now, I want to be real clear because we're making
2 a record here, so when you're saying, "When it was
3 turned over," are you --
4 A. When Heron Cove was turned over. You asked about
5 Heron Cove.
6 Q. So when was Heron Cove turned over from the
7 developer?
8 A. I don't have the exact date. I believe sometime
9 in 2004, but I could be wrong on that. I don't have it
10 clear in my head.
11 Q. And who was the developer of Heron Cove?
12 A. Lennar, Lennar Homes.
13 Q. So Heron Cove -- how did you get involved in the
14 Board? And of Heron Cove for right now.
15 A. I believe the turnover -- I'm trying -- there was
16 an election -- there was a process at the time, that's
17 all.
18 Q. And what was your position within Heron Cove,
19 initially?
20 A. You mean on the Board?
21 Q. Yes, sir.
22 A. I believe I was appointed president by the other
23 Board members. I'm trying -- yes.
24 Q. During that timeframe, after you were appointed
25 as president, were any of the other communities at that
00014
1 point in time, the sub-communities turned over at that
2 point?
3 A. Yes.
4 Q. And then around 2003, late 2003, early 2004, did
5 you and any of the other presidents form any type of
6 committee or group?
7 A. I believe that we were asked to meet by Lennar.
8 I can't recall the exact date when that might have
9 started.
10 Q. Was this the Presidents' Council?
11 A. The Presidents' Council was something I believe
12 started later.
13 Q. So prior to the Presidents' Council, you were
14 saying that Lennar requested that all the presidents
15 meet?
16 A. No, I think that that's what led to what you may
17 call a Presidents' Council. I'm not sure that there
18 ever was technically a Presidents' Council. I don't
19 think Lennar ever formed one. I think they formed an
20 advisory committee.
21 Q. Let's talk about -- we'll go through all of
22 these, but was there some group known as the Presidents'
23 Council?
24 A. I don't know -- I don't recall if it was called
25 the Presidents' Council. I do recall that the
00015
1 presidents did meet informally, yes, to get to know each
2 other.
3 Q. How long did it take the presidents to get to
4 know each other?
5 A. I can't -- I don't know that. There were new
6 people coming on. I don't have an answer to that, how
7 long it took. I don't know what you really mean how
8 long it took to get to know each other.
9 Q. Well, I'm trying to understand this group that
10 was known as the Presidents' Council. Did -- beginning
11 at the end of 2003, beginning of 2004, did the
12 presidents of the varying communities meet on a regular
13 basis?
14 A. I can't recall if it was 2003 and 2004. I said
15 at some point -- and we can ask the recorder (sic) to go
16 back -- at some point at that timeframe. I don't recall
17 when the group began to meet. Mr. Amero was one of the
18 members who was -- who met, as he was president of his
19 neighborhood association, at or about the same time.
20 Q. So the group of presidents start to meet.
21 A. Uh-huh.
22 Q. How frequently did the group of presidents meet?
23 A. I'm going to guess every few weeks on and off or
24 maybe once a month. And I don't recall, initially.
25 Q. That's -- whenever I asked you about how long did
00016
1 it take to get to know each other, because when you told
2 me that the presidents all met to get to know each
3 other, I want to be clear. Was it a one-time meeting?
4 A. No. It was a desire to get to know each other
5 and know more about the community and understand what
6 was going to be happening.
7 Q. What was the purpose of this group?
8 A. To my knowledge, exactly what I just said to you.
9 Q. What was your role as -- and I'm going to use the
10 term Presidents' Council -- but what was your role
11 within the Presidents' Council?
12 A. I don't think I had any different role than
13 anyone else.
14 Q. Was there any quasi-leader of the Presidents'
15 Council?
16 A. Not that I know of at the time, no. We all -- we
17 all met.
18 Q. Well, what did you do? Tell us what you did
19 whenever you met with the other presidents.
20 A. Was talked about the issues confronting the
21 community.
22 Q. What type of issues were confronting the
23 community at that time?
24 A. Different things which many of us didn't
25 understand about the association, about turnover, we
00017
1 discussed issues with the -- pertaining to the
2 developer, complaints that had been talked about with
3 the developer, how to communicate these things, how to
4 best represent, reflect the feelings of all the
5 homeowners.
6 Q. So was the Presidents' Council, was that an
7 official committee of the community?
8 A. No.
9 Q. And you said you met every few weeks to once a
10 month?
11 A. Yeah, I... Actually, we used to try to meet for
12 breakfast, but I don't recall.
13 Q. Were these meetings closed?
14 A. What do you mean by "closed"?
15 Q. Well, were the meetings open to all other
16 residents?
17 A. I don't believe it was advertised, no.
18 Q. Well, if your neighbor asked to attend, would
19 your neighbor have been permitted to attend?
20 A. If my neighbor would have asked to attend, they
21 could have attended.
22 Q. If anybody from the community --
23 A. I don't know if there's an example of that at
24 all. I'm not recalling anything of that -- I don't have
25 a recollection of people asking to attend the meeting.
00018
1 Q. Did people know? And when I say people, did the
2 residents of Baywinds Community know about the meetings?
3 A. I think so. Folks did know.
4 Q. How did they know?
5 A. By word of mouth, just knowledge.
6 Q. Did you ever post a meeting notice?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: I don't believe I ever posted
9 a meeting notice, no.
10 BY MS. LIVELY:
11 Q. Did anybody within the Presidents' Council ever
12 post meeting notices?
13 A. I don't --
14 MR. QUATTLEBAUM: Object to form. You've
15 got to let me object first before you answer.
16 Object to the form.
17 THE WITNESS: I didn't hear that.
18 MR. QUATTLEBAUM: That's all right. I'll
19 speak up a little bit.
20 THE WITNESS: Okay. I'm sorry, what was
21 that question?
22 BY MS. LIVELY:
23 Q. Did you ever give notice to the other homeowners
24 that the group of presidents were meeting to discuss
25 issues involving the community?
00019
1 A. I don't think there was ever a formal notice.
2 Q. Why was there never a formal notice to the
3 community?
4 MR. QUATTLEBAUM: Object to form.
5 BY MS. LIVELY:
6 Q. Go ahead. You can answer.
7 A. Okay. I understand. I'd like to think a little
8 bit. You want accurate answers and I'm trying to give
9 them to you. I don't believe it was considered to be
10 something that should. It was an informal gathering.
11 We were not acting in a legal capacity. We were not a
12 committee that had been formed by the developer.
13 Q. I asked you before what was the purpose. But
14 what was the actual function of this group?
15 A. As I told you, to the best of my recollection,
16 they started on an informal basis, people wanted to get
17 together because we had common interests in our new
18 neighborhoods to discuss the issues pertaining to the
19 community.
20 Q. And when you say you were discussing issues
21 pertaining to the community, that's again -- were the
22 issues important enough to invite other participants
23 outside of the group of presidents?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: I don't know if they were
00020
1 important enough. I know that those
2 participating felt that there was issues to be
3 discussed.
4 BY MS. LIVELY:
5 Q. Where did you meet, sir?
6 A. We usually tried to meet at one or two
7 restaurants because we all wanted to meet and have
8 breakfast.
9 Q. Initially, weren't your meetings at the
10 clubhouse?
11 A. I don't believe we initially met there. I can't
12 say that we never had a meeting there. I believe our
13 intent was to meet at a restaurant. I think most of the
14 time, we went to a restaurant called Hillary's. We may
15 have met at the clubhouse, too. I...
16 Q. Isn't it true though that around January of 2004,
17 the Presidents' Council stopped meeting at the clubhouse
18 and decided to change you're meetings to Hillary's
19 restaurant?
20 MR. QUATTLEBAUM: Object to form.
21 THE WITNESS: As I said, I don't have a
22 recollection of that.
23 BY MS. LIVELY:
24 Q. Was there ever discussion that members of the
25 Presidents' Council should not carpool whenever you went
00021
1 from Baywinds Community to the restaurant? Was there
2 ever a discussion not to carpool?
3 A. I wouldn't know -- I wouldn't know if that was
4 even a discussion. That was three years ago and you're
5 asking me whether or not I know if somebody discussed
6 whether we should carpool to the restaurant.
7 Q. Yes, sir.
8 A. I don't recall.
9 Q. Are you aware of an instruction being given from
10 within the Presidents' Council not to carpool?
11 A. I don't have a recollection of that.
12 Q. Was there concern that other members of the
13 community would see members of the Presidents' Council
14 traveling together to a meeting outside of the
15 community?
16 MR. QUATTLEBAUM: Object to form.
17 THE WITNESS: I know that I oftentimes went
18 with another member.
19 BY MS. LIVELY:
20 Q. Who did you go with?
21 A. At times I went with Mr. Katz, at times I went
22 with Mr. Cabano. I don't recall, you know, I might have
23 gone with another one. I don't remember exactly.
24 Q. Were there agendas prepared for these meetings?
25 A. I think sometimes there were. I don't know if
00022
1 there always were.
2 Q. Who prepared the agendas whenever agendas were
3 prepared for a meeting?
4 A. If I recall correctly, it was something that was
5 asked of each different participant periodically to be
6 responsible to come up with ideas for the next meeting;
7 what issues were of concern.
8 Q. Would there be participation from the entire
9 group as to the preparation of an agenda?
10 A. I believe anybody who wanted to participate. I
11 can't say that everybody always came up with ideas.
12 There were three, four, five, six; six people involved,
13 so...
14 Q. How were the agendas distributed to the other
15 members?
16 A. Word of mouth or print, I don't recall,
17 specifically. This was an informal group. People might
18 have done it on their computer and printed it out. I
19 don't know.
20 Q. Did you ever prepare an agenda?
21 A. I probably did. I couldn't tell you what the
22 topics were, but I probably did since I was a
23 participant in this group.
24 Q. After the agendas were prepared, were they
25 distributed prior to a meeting?
00023
1 A. That's something I also don't remember. They may
2 very well have been, but I can't recall.
3 Q. And were the agendas ever made available to
4 members outside of the community, outside of the
5 Presidents' Council?
6 A. I don't think there was a formal process for
7 doing that.
8 Q. Did anybody retain copies of agendas from any of
9 these meetings?
10 A. I think --
11 MR. QUATTLEBAUM: Object to form. Go ahead,
12 you can answer it.
13 BY MS. LIVELY:
14 Q. Are you aware of anybody that kept copies of your
15 agendas from past meetings?
16 A. I'm not aware of anybody having kept that for any
17 period of time.
18 Q. Do you have possession of any prior agenda from
19 the Presidents' Council?
20 A. I don't believe so.
21 Q. The computer that you're currently using, is it
22 the same computer that you used during the time of the
23 Presidents' Council meetings?
24 A. I don't think it is, but -- I don't think so.
25 Q. Do you have disc copies --
00024
1 A. No.
2 Q. -- or anything of the agenda?
3 A. No, I'm not that...
4 Q. Do you have any hard copies in your home?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: No.
7 BY MS. LIVELY:
8 Q. Are you aware of any prior member of the
9 Presidents' Council who may have copies of the prior
10 agendas?
11 A. No, I'm not.
12 Q. Minutes; did you keep minutes of these meetings?
13 A. If you're talking about formal minutes, I don't
14 belive so. I think notes were kept.
15 Q. Who kept the notes?
16 A. I don't know whether one person kept them or we
17 all kept just our own notes. I'm not...
18 Q. Did you keep any notes, sir?
19 A. I probably did take notes at the time of the
20 meetings, absolutely.
21 Q. Have you retained --
22 A. I assume other folks did, too.
23 Q. For you, sir; have you retained copies of the
24 notes?
25 A. No. I said no. I'm sorry.
00025
1 Q. Are you aware of any --
2 MR. QUATTLEBAUM: Excuse me, if we could
3 just, on the record, have them refrain from
4 saying anything during the deposition; whispering
5 or otherwise, because that was a very loud
6 whisper that all in this room could hear.
7 MS. LIVELY: I think that my client -- maybe
8 if you could just do a note so not to distract
9 anybody. Thank you.
10 BY MS. LIVELY:
11 Q. Were you ever made aware of any owner who wished
12 to attend a meeting of the Presidents' Council?
13 A. You asked that question earlier. That very well
14 may have happened. I can't say that it never happened.
15 Q. Did you ever deny a member of the Baywinds
16 Community the right to attend a Presidents' Council
17 meeting?
18 MR. QUATTLEBAUM: Object to the form; asked
19 and answered.
20 BY MS. LIVELY:
21 Q. Go ahead.
22 A. I heard you. I know that I'm supposed to answer.
23 I also think I have an opportunity to take a second to
24 try to recollect.
25 Q. Certainly.
00026
1 A. I'd appreciate that opportunity. It is possible.
2 I don't know. It is possible.
3 Q. Now, you say that Dr. Amero was a member of the
4 Presidents' Council?
5 A. Who? Oh, Dr. Amero. Yes, I'm sorry.
6 Q. And did Dr. Amero ever express concern regarding
7 the expanding role that the Presidents' Council was
8 adopting?
9 A. I don't have a recollection of that, but he might
10 very well have.
11 Q. Did the --
12 A. Are you saying before or after he was a member;
13 during or after?
14 Q. At any time.
15 A. I don't know specifically if he did.
16 Q. George Singer, is that name familiar to you?
17 A. Yes.
18 Q. And who is Mr. Singer?
19 A. Mr. Singer is a homeowner in Baywinds. He's a
20 member of the Board of directors. I believe he's also
21 on the Board of directors of his neighborhood
22 association.
23 Q. And early in 2004, did Mr. Singer express his
24 concerns regarding the expanding role of the Presidents'
25 Council?
00027
1 A. He very well may have. I don't have a
2 recollection of conversations that took place back on
3 that date.
4 Q. Would you agree that the Presidents' Council,
5 over a period of time, expanded the scope of its
6 function as it was initially intended to be?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: Well, perhaps tell me what do
9 you think the scope was initially, before I can
10 answer that.
11 BY MS. LIVELY:
12 Q. Well, that's what I've asked you. So why don't
13 you tell me a little bit more. You indicated prior that
14 the purpose of the Presidents' Council was to meet each
15 other; as presidents, you all got to meet.
16 MR. QUATTLEBAUM: Object to the form.
17 BY MS. LIVELY:
18 Q. Now, after your initial meeting, explain to me
19 how the Presidents' Council evolved.
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: I'm not sure that it evolved
22 any more than that. It was what's called a
23 master advisory committee that was set up by
24 Lennar.
25
00028
1 BY MS. LIVELY:
2 Q. Before we get to the master advisory committee,
3 when you were functioning as the Presidents' Council,
4 that was all prior to the turnover on June 29th, 2005,
5 correct?
6 A. Yes.
7 Q. From -- during that interim period of time prior
8 to turnover, did the role of the Presidents' Council
9 evolve?
10 MR. QUATTLEBAUM: Object to the form.
11 BY MS. LIVELY:
12 Q. Or was it always a matter of the presidents
13 getting to know each other?
14 MR. QUATTLEBAUM: Same objection.
15 BY MS. LIVELY:
16 Q. Go ahead.
17 A. I want to make sure we're okay. At some point,
18 Lennar deemed that they wished to deal with the group of
19 presidents and that may have been when most of the
20 neighborhood associations were turned over. So on that
21 basis, then it might have expanded. That was a decision
22 Lennar made.
23 Q. Prior to the turnover, did Lennar ever give
24 direction to the Presidents' Council?
25 MR. QUATTLEBAUM: Object to the form.
00029
1 THE WITNESS: Please explain what you mean
2 by "direction."
3 BY MS. LIVELY:
4 Q. Okay. During the period prior to turnover on
5 June 29th, 2005, did you ever have communication with
6 Lennar; any member of the Lennar staff?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: I had communication with the
9 Lennar staff from -- back almost every -- from
10 the beginning.
11 BY MS. LIVELY:
12 Q. In what capacity were you communicating; was that
13 as the president of Heron Cove?
14 A. On occasion.
15 Q. But that was after turnover; after Heron Cove's
16 turnover, correct?
17 A. Yes, yes.
18 Q. I would like to focus on outside of direct issues
19 regarding post turnover of Heron Cove.
20 A. Okay.
21 Q. Tell me about the communication you had with
22 Lennar. Who was your contact with Lennar?
23 A. The main contact was Sharon Caputo.
24 Q. From the formation of the Presidents' Council --
25 and you said you're not sure if it was 2003 or 2004 --
00030
1 A. Yeah, I don't recall.
2 Q. -- and that's not real important at this point.
3 But from that point until June 29th, 2005, how
4 frequently did you speak with Sharon Caputo?
5 A. I don't think there was a timeframe, but I would
6 say that quite possibly once a week. When -- as issues
7 came up.
8 Q. I want you to go through, to the best of your
9 memory, the different issues that arose while you were
10 acting on the Presidents' Council and communicating with
11 Ms. Caputo.
12 MR. QUATTLEBAUM: Object to the form.
13 THE WITNESS: It wasn't only because I was
14 on the Presidents' Council. You just made a
15 statement that as if I was speaking only on
16 behalf of the Presidents' Council. Your original
17 question was did I have communication.
18 BY MS. LIVELY:
19 Q. You were talking, you said you spoke to Sharon
20 Caputo approximately one time per week; is that correct?
21 A. That's reasonable.
22 Q. Tell me about some of the issues and then we'll
23 go through each one.
24 A. The issues might have been when turnover was
25 going to take place, the issues might have been on
00031
1 homeowner complaints; the issues might have been on
2 issues pertaining to the property, such as the lakes,
3 the drainage systems, matters of that nature; the issues
4 might have been complaints or comments about the
5 clubhouse, policies that were in effect in the
6 clubhouse. There was an ongoing development of the
7 community and questions would come up that other Board
8 members spoke. And again, I would say those here
9 present have also spoke to Sharon Caputo quite often,
10 maybe perhaps more than I did.
11 Q. Right now --
12 A. I understand. I just want to make it very clear
13 it was not unusual for many of us to speak to Sharon
14 Caputo who was on the property virtually every day.
15 Q. I understand, sir, but I'm here to ask about your
16 contact with Ms. Caputo.
17 A. I understand.
18 Q. You said that there were issues regarding
19 homeowner complaints.
20 A. Yeah.
21 Q. How did you become aware of the homeowner
22 complaints?
23 A. Homeowners would speak up about it. There would
24 be common discussion about things.
25 Q. Were these homeowner complaints directly related
00032
1 to Heron Cove?
2 A. Many would be. Mine would be, yeah.
3 Q. Tell me the issues regarding the clubhouse. Tell
4 me a little bit more about that. What was the status
5 with the clubhouse at that time?
6 A. Status at that time was it was owned by the
7 developer -- not the developer, technically. Lennar
8 Land Partners, which I believe was the owner.
9 Q. Well, why were you communicating with Sharon
10 Caputo regarding the clubhouse?
11 A. Well, as a homeowner, there were many things that
12 go on in the clubhouse that were a natural discussion.
13 For example, there were comments about the proficiency
14 and the efficiency of the management staff, about
15 policies that existed.
16 Q. Let's talk about the turnover. You stated that
17 you were discussing the issue of turnover with Sharon
18 Caputo.
19 A. Many folks discussed that; wanted to know when
20 that date would be.
21 Q. Let's focus on what you -- I want you to tell me
22 what you did. And whenever each of the other defendants
23 and Board members are brought in, I'm going to ask them
24 pretty much the same thing as to their communication.
25 But let's talk about yours.
00033
1 A. Fine.
2 Q. When did you first start talking to Sharon Caputo
3 about turnover?
4 A. I don't know. It might have been two years
5 prior, it might have been one year prior, but there was
6 certainly comments and inquiries, wanting to understand
7 when it had to take place. As I said before, I had
8 never lived in a homeowners' association before.
9 Q. Did you keep notes of your communication with Ms.
10 Caputo?
11 A. No. At the time, I might have had notes, but...
12 Q. Do you currently have possession of any notes or
13 documentation regarding your communication with Sharon
14 Caputo?
15 MR. QUATTLEBAUM: Object to the form.
16 THE WITNESS: No, I don't believe I do.
17 BY MS. LIVELY:
18 Q. Now, going back to something; Max Harper, do you
19 know Mr. Harper?
20 A. Yes, I do.
21 Q. And in 2004, was he a vice president of Regatta
22 Cove?
23 A. I can't comment. I know he lives there, I don't
24 know if he was vice president.
25 Q. Did Mr. Harper ever attend a meeting of the
00034
1 Presidents' Council?
2 A. I honestly don't recall.
3 Q. Now, Mr. Harper was not a member of the
4 Presidents' Council, correct?
5 A. Well, if he was not the president, I would assume
6 not.
7 Q. Isn't it true, sir, that Mr. Harper asked if he
8 could attend meetings when the then president, Mr. Meyer
9 was not available?
10 A. He might have. As I said, I don't recall if he
11 was president or not.
12 Q. Did you advise him that he would not be permitted
13 to do so because attendance was limited to the
14 presidents only?
15 A. I don't know. I might have said that, but I
16 don't recall.
17 Q. So let's go back. Isn't it true that only the
18 presidents of the various associations were permitted to
19 attend the meetings of the Presidents' Council?
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: I'm not saying that. There
22 was a presidents' -- you said the word council,
23 I'm not sure if that's the correct term. But for
24 purposes of your comment, the presidents did
25 meet.
00035
1 BY MS. LIVELY:
2 Q. I need to be clear that other persons were not
3 permitted to attend; is that correct?
4 A. I cannot say that other people were not
5 permitted. I do not have a recollection of every single
6 meeting, nor do I recall if I attended every single
7 meeting. Not every single person showed up for every
8 meeting.
9 Q. But did you, sir, yourself, ever advise any other
10 person --
11 A. As I said, it's possible I might have said that
12 if the group didn't wish it. I don't have a
13 recollection of it. I know Mr. Harper quite well. I
14 don't recall that I said that.
15 Q. And why would the meetings have been closed to
16 non-presidents?
17 A. Well, if you called it a Presidents' Council,
18 which is an informal gathering, I believe that it was
19 the presidents who wanted to meet to discuss issues of
20 concern. We didn't stop the vice presidents from
21 meeting, nor the treasurers, nor the secretaries, nor
22 any other committee or group that was active within the
23 community. People were free to meet as much as they
24 wanted to. They still do.
25 Q. As part of the discussion regarding the issues
00036
1 and concerns of the community --
2 A. Uh-huh.
3 Q. -- which you all discussed as the presidents --
4 A. Yes.
5 Q. -- did there come a time when your group began to
6 discuss the issue of amending the documents prior to
7 turnover?
8 A. I'm sure that there were discussions as to can
9 they be amended or -- yes, there were many -- this is
10 one of the things that we did talk -- not this issue,
11 but understanding what can be done, what was the
12 authority of the developer was of common interest to all
13 of us because many of us had not had experience in
14 dealing with developers.
15 Q. Let's talk about your issues regarding
16 amendments.
17 A. Sure.
18 Q. In 2004, did your group -- and again, I'm using
19 the term Presidents' Council, but did the Presidents'
20 Council discuss the issue of amending the document --
21 A. It's quite possible, as I've answered previously.
22 Q. I need you to let me finish -- amending the
23 document as to how the Master Board of the association
24 would be elected or appointed?
25 A. It's quite possible that that was a topic of
00037
1 discussion.
2 Q. Is it your testimony today that you've got no
3 memory as to whether or not that was a topic of
4 discussion?
5 A. I said it's quite possible it was. We discussed
6 amendments quite often; how are they brought about.
7 Q. If it's possible, do you have any specific
8 recollection as to whether or not the Presidents'
9 Council ever discussed amending the documents regarding
10 the Master Board?
11 A. I believe that that topic, as I've said, may very
12 well have been discussed.
13 Q. In that it's probably one of the big issues, a
14 major issue in the lawsuit -- we need to -- I'm going to
15 put a lot of time onto that. So to be clear, do you
16 recall a specific conversation within the group as to
17 the amendment of the documents related to the Master
18 Board?
19 A. I don't recall specific conversations, but I
20 wouldn't be surprised if that topic, as other topics,
21 were discussed. I wouldn't be surprised, but I don't
22 recall any specific conversation, no. That would have
23 been three, four years ago.
24 Q. Did the Presidents' Council propose an amendment
25 to Lennar that would change the manner in which the
00038
1 Master Board was elected?
2 A. I -- I -- I do not recall that the Presidents'
3 Council did this. The Presidents' Council in discussion
4 -- well, you want to call it the Presidents' Council --
5 the group might very well have discussed it with Lennar.
6 I don't know if there was actually ever a proposal
7 submitted to them.
8 Q. Were you present during any discussions with any
9 member of Lennar regarding amending the documents?
10 A. They had discussions with us telling us that they
11 were in charge of amending them and we couldn't do
12 anything. That was the frustration of the group wanting
13 to understand what the process was for anything going on
14 and we learned quite clearly that we had no authority
15 prior to turnover. The developer was in charge. No
16 matter what ideas we had.
17 Q. Did the Presidents' Council ever discuss
18 establishing a mechanism wherein the Master Board would
19 be comprised of one member from each of the
20 sub-communities?
21 A. Could you please repeat that?
22 Q. Sure. Let me -- at the -- prior to turnover, how
23 was the Master Board going to be elected?
24 A. I believe I -- an at-large election, if I'm not
25 mistaken.
00039
1 Q. And so that I understand, I want to hear your
2 perspective on this: So how many members would there be
3 on the Master Board? And again, we're talking prior to
4 turnover and prior to --
5 A. I think it was a minimum of three and maximum of
6 nine.
7 Q. Three to nine Board members.
8 A. Yes.
9 Q. And again, to be clear, they would be elected --
10 those individuals would be elected from an at-large
11 election; is that correct?
12 A. That's my recollection of the original document.
13 Q. I want to make sure that you and I are kind of on
14 the same page here so we're not talking about different
15 things; we understand the same thing. So the
16 Presidents' Council, how many members were there on the
17 Presidents' Council prior to June 29th, 2005?
18 A. I believe there would have been -- I have to go
19 through the communities 'cause I don't remember.
20 Q. That's okay. You go right ahead.
21 A. To the best of my recollection, I think there
22 might have been eight. I could be off. Eight or nine,
23 maybe nine at most. I'm not sure if some of the
24 communities turned over just before or right after.
25 Q. Now, did you all ever discuss changing the way
00040
1 that the Master Board would be elected? The group of
2 you, the eight people that were remaining, did you ever
3 discuss finding a way to change how the Master Board
4 would be elected?
5 A. I don't know if we discussed finding a way. I
6 think it came up about the elections themselves, yes.
7 Q. When do you recall that issue or that topic first
8 came up within your group?
9 A. I don't know when it first came up. It probably
10 came up several months before turnover. I don't recall
11 when.
12 Q. I understand this was quite a few years ago. I
13 don't expect you to give me the exact date and time
14 unless you have it recorded somewhere. But give me an
15 idea. So this is great. Do a few months before,
16 several months before the actual turnover, your group
17 started to discuss the issue of the election?
18 A. Together with Lennar -- I want you to be clear --
19 Lennar was at some of these meetings. Lennar called us
20 to meet on occasion.
21 Q. Okay. Did the group from the Presidents' Council
22 ever discuss how you could change the election from
23 at-large to any other manner whatsoever?
24 A. I think that -- are you finished? I don't want
25 to speak too quickly.
00041
1 Q. Uh-huh.
2 A. I believe the group may have very well discussed
3 how to change and make amendments.
4 Q. Why did the group wish to change the manner in
5 which the Master Board would be elected?
6 A. I'm not sure that the group wanted to. I think
7 the group wanted to know how to operate and there might
8 very well have been options brought up and people said,
9 "Do you believe this is the right way," or "This is the
10 right way," and it was open dialog. It was a lot of
11 lack of clarity of how to deal with going forward.
12 Q. Did the Presidents' Council approach Lennar
13 requesting that Lennar amend the document regarding the
14 election process?
15 A. I don't recall that. It's possible that it came
16 up in discussions.
17 Q. Was there a contact person or liaison between the
18 group, the Presidents' Council group and Lennar?
19 A. At the very end, I was. In the beginning, there
20 was none.
21 Q. When were you appointed as the liaison or the
22 contact person?
23 A. I don't -- honestly don't know. I would say
24 probably sometime in 2005, but I -- there was no -- it
25 wasn't done with formalities.
00042
1 Q. Now, the issue regarding the election, did you --
2 I don't want you to speak for anybody else at this
3 point -- but did you consider that worthy of bringing
4 that issue to each and every member of the community?
5 And when I -- let me be real clear when I'm talking
6 about the election --
7 A. Please.
8 Q. -- as to how the Master Board was going to be
9 elected. Did you consider that an issue worthy to be
10 brought to your neighbors?
11 MR. QUATTLEBAUM: Object to the form.
12 THE WITNESS: At what point, may I ask? You
13 asked me what point -- what I feel that it should
14 be brought to the neighbors? Because you're not
15 being real precise in your question.
16 BY MS. LIVELY:
17 Q. Well, I'll be real precise.
18 A. Please do.
19 Q. This group of people are meeting, the group of
20 presidents, unofficially, and you're discussing issues
21 of the community.
22 A. Uh-huh.
23 Q. At some point, you get into discussions of the
24 election of the Master Board; am I correct?
25 A. That may very well have happened, yeah.
00043
1 Q. Let me be more precise. When you're saying "That
2 may very well have happened," I'm not quite sure; are
3 you telling me it did happen, it might have happened or
4 you don't know?
5 A. I'm saying it may very well have happened.
6 Because there were many topics that were discussed at
7 our own volition, at Lennar's prodding, what the
8 thoughts were, and that's -- at some point, particularly
9 close to turnover, obviously, that issue was discussed
10 because it became a ballot issue that Lennar mailed out,
11 as you're well aware. So at that point, obviously, it
12 was discussed on several occasions. As a matter of
13 fact, I had discussions with many homeowners, one of
14 which was the plaintiff on that same topic. So no way I
15 would say that that wasn't discussed, but at what point
16 is what I'm asking you.
17 Q. Well, I'm going to turn it back and ask you at
18 what point after discussions within the Presidents'
19 Council did the issue regarding the process in which the
20 Master Board would be elected, when was that discussed
21 with the community?
22 A. I believe probably a month or so -- I'm
23 estimating prior to Lennar's determination that they
24 were going to put a ballot -- have a ballot on that
25 matter. That's when it first became discussed with the
00044
1 homeowners.
2 Q. Why was it not brought to the attention of
3 homeowners at an earlier point?
4 MR. QUATTLEBAUM: Object to the form.
5 THE WITNESS: You're saying that it wasn't.
6 I'm not saying that that topic was never
7 discussed individually with some homeowners.
8 I've never said that.
9 BY MS. LIVELY:
10 Q. Was a newsletter sent out to all of the
11 homeowners informing them of the Presidents' Council's
12 concern regarding the election?
13 MR. QUATTLEBAUM: Object to the form.
14 THE WITNESS: I don't believe a newsletter
15 was sent out. From the way you termed a
16 newsletter.
17 BY MS. LIVELY:
18 Q. What about a letter: "Dear Homeowner; we are
19 considering changing the manner in which the Master
20 Board is elected. We would like your input." Was that
21 general type of letter sent to the homeowners?
22 A. I think that that might have been done
23 individually within each of the neighborhoods. We were
24 not turned over, we did not have the authority to send
25 out anything to the entire community nor the vehicle to
00045
1 do it.
2 Q. What do you mean you did not have the vehicle to
3 do it?
4 A. How were we going to communicate that to
5 everybody? We didn't have a means of communicating. We
6 were not a formal entity. But however, I did
7 communicate with the Baywindslife and the Baywinds
8 Breeze on numerous occasions, giving them information
9 and asking that they send out when meetings would be
10 held; informational meetings.
11 Q. What are informational meetings?
12 A. When it came close to this time, we held
13 informational meetings of the community.
14 Q. Came close to turnover?
15 A. Yeah, the -- prior to just -- prior to turnover
16 when the first ballot was and then at turnover when the
17 second one was, yes.
18 Q. Did you, sir, individually -- I'm talking about
19 you -- did you make a request of Sharon Caputo to amend
20 the documents prior to turnover to change the manner in
21 which the Master Board would be elected?
22 A. I might have said at the end, when she said it
23 was going to be done, that that's the way it should be.
24 We had no authority to tell her what to do.
25 Q. What I'm asking you, sir, did you request Sharon
00046
1 Caputo to amend the documents to change the manner in
2 which the Baywinds Master Board would be elected?
3 A. I don't recall making a formal request.
4 Q. What about an informal request?
5 A. As I've said to you, the topic was discussed
6 quite a bit towards the end of -- just prior to the
7 turnover date.
8 Q. Did Lennar come to your group and advise that the
9 documents would be amended to change the manner in which
10 the Baywinds Board was elected?
11 A. Yes, Lennar did notify us.
12 Q. So is it your testimony today that it was
13 Lennar's idea to amend the documents as to how the
14 Baywinds Master Board would be elected?
15 MR. QUATTLEBAUM: Object to the form.
16 THE WITNESS: Lennar's determination to make
17 a change in the -- in the bylaws as per their
18 prerogative, as they told us on numerous
19 occasions, that we had no authority to request
20 anything prior to and they would make any changes
21 they chose to make. At the end, they did ask us
22 if we preferred certain things when they made
23 their determinations. I'm trying to answer you
24 how the dialog went.
25
00047
1 BY MS. LIVELY:
2 Q. So certain things. Before I go to that one, to
3 be very clear, it is your position that Lennar, the
4 developer, conceived the idea to change the documents as
5 to the mechanism of electing the Master Board; is that a
6 correct statement?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: I can't say it's a correct
9 statement. I don't know if they conceived it or
10 not. I said only they had the authority, Ms.
11 Lively, and they chose to do that by their
12 direction. There was discussion on various ways.
13 They made a determination that they wanted the
14 representation of twelve communities.
15 BY MS. LIVELY:
16 Q. So Lennar --
17 A. They wanted at least twelve, I should put it that
18 way.
19 Q. So to be clear as to your testimony, Lennar came
20 to the group of presidents and presented the idea to the
21 group of presidents that Lennar wanted representation
22 from each sub-community. Is that your testimony?
23 MR. QUATTLEBAUM: Object to the form.
24 THE WITNESS: That wasn't my testimony. My
25 testimony was that Lennar made that decision and
00048
1 told us specifically -- I'm not sure if you're
2 listening or not -- and told us specifically that
3 they have done that with many communities and
4 this was their prerogative. Our comment was to
5 Lennar -- or at least mine was -- was that
6 whatever they did, we wanted equitable
7 representation. Period.
8 BY MS. LIVELY:
9 Q. What do you define as equitable representation?
10 A. That each community have an -- in my personal
11 interpretation -- that there be representation from each
12 community based -- each neighborhood community, based on
13 the will of the people that live in that community.
14 You're asking for my personal belief.
15 Q. Thank you. But I'm still -- and maybe, you know
16 what, it might just be one of those moments when I'm
17 confused, but I'm just still real confused here.
18 Who first presented the idea; was it Lennar or
19 was it the Presidents' Council that changed the manner
20 in which the Baywinds Master Board would be elected?
21 A. I don't know who first presented the idea. But
22 as I believe I indicated before -- and we can ask to
23 have it played back, and perhaps we should. Do I have
24 that right?
25 Q. Why don't you --
00049
1 A. Do I have that right?
2 Q. Why don't you tell me --
3 A. Do I have that right to ask for something to be
4 played back?
5 MR. QUATTLEBAUM: Yes, you can have
6 something read back, but the practicality of
7 that, of going back through her notes there for
8 the last twenty minutes to an hour would probably
9 be prohibitive of doing that. So try to answer
10 as best you can.
11 BY MS. LIVELY:
12 Q. I just want -- this is a simple question. Who
13 first came up with the idea --
14 A. I don't recall. I said that it's obvious that
15 the topic was discussed. Lennar would not have not
16 discussed something and just put through an amendment.
17 Obviously, that topic was discussed. I don't recall who
18 brought it first; whether they said they wanted to
19 change and make it twelve and asked what our opinion was
20 or whether we said it should be changed. Did we discuss
21 means in which there could be amendments, absolutely.
22 Because many of us did not know the process.
23 Q. When you are saying that Lennar may have
24 presented the idea first, who would be the best person
25 for me to consult with at Lennar? Would that be Sharon
00050
1 Caputo?
2 A. That would have been Sharon Caputo who was the
3 main contact there.
4 Q. So when I depose Sharon Caputo in a few weeks,
5 I'll be able to ask her if it was her idea to amend.
6 A. Whatever your questions are, your questions are.
7 Q. Now, then there became the issue of two unrelated
8 items being bundled together. Well, there's the
9 purchase of the clubhouse and the Seventh Amendment; is
10 that correct?
11 A. Well, the first ball -- yes, I think they were
12 together, yes.
13 Q. Whose idea was it to bundle those two items
14 together?
15 A. That was Lennar. We had nothing to say with the
16 mailing that went out. That mailing went out by Lennar,
17 I presume, to the Lennar attorneys.
18 Q. Did the representatives of the communities, the
19 unofficial Presidents' Council, did you all ever discuss
20 with Sharon Caputo or anybody from Lennar to not bundle
21 the two issues together?
22 A. Yes, we were not happy with that being bundled.
23 We didn't feel we should be bound to anything with the
24 club, based on the other aspects. Lennar wished that --
25 Lennar was trying to encourage us to purchase the club
00051
1 immediately at the time of turnover, which we did not
2 wish to do.
3 Q. And about three hundred and some residents signed
4 a petition requesting that the issues be voted on
5 separately; is that correct?
6 A. I didn't know -- I know there was a petition.
7 Q. Did you sign that petition?
8 A. I don't know if it was given to me. I don't
9 recall.
10 Q. What was your position as to that issue?
11 A. I would have preferred that it be dealt
12 separately because I think the clubhouse purchase was a
13 totally different issue.
14 Q. And who made the decision that the two issues
15 would not be separated?
16 A. That would have been Lennar. Lennar took care of
17 the mailing, took care of the legal terminology.
18 Q. Were the people who signed the petition ever
19 referred to as cohorts by any member of the Presidents'
20 Council?
21 MR. QUATTLEBAUM: Object to the form.
22 THE WITNESS: I don't know. I'm sure names
23 might have been used. I don't know, Ms. Lively.
24 BY MS. LIVELY:
25 Q. Were they accused of spreading poison throughout
00052
1 the community?
2 MR. QUATTLEBAUM: Object to the form.
3 THE WITNESS: I don't know that, either.
4 BY MS. LIVELY:
5 Q. Did you ever receive a copy of an e-mail that was
6 sent by a Mr. Mikus regarding the efforts to separate
7 the two issues and the signing of the petition?
8 A. I might have received -- I might very well have.
9 I received many e-mails. That wouldn't surprise me if I
10 did.
11 Q. Now, from pre-turnover going through turnover,
12 there have been a group of homeowners who have
13 challenged a lot -- challenged the activities of the
14 Board, correct?
15 A. There have been challenges, sure, yes. I don't
16 know if it was one group or not.
17 Q. Were you at a meeting whenever -- at a meeting, I
18 believe it was prior to turnover, if my notes are right,
19 when the group of individuals seeking to sign petitions
20 and to challenge the board's activity were referred to
21 as recreational dissidents? Do you recall that meeting?
22 A. I think that was a meeting held by Lennar. Is
23 that the meeting you're referring to? I don't know, you
24 must know if you're telling me about a meeting.
25 Q. Were you in a meeting wherein Dr. Amero, Justice
00053
1 Raab, Ms. Kaiser, Mr. Ellick, the other plaintiffs were
2 referred to as recreational dissidents?
3 A. I believe I was at a meeting and that was with --
4 Lennar held that meeting, but I could be wrong.
5 Q. What was your role as it would relate to the
6 Baywinds Community? What capacity were you acting as at
7 that particular meeting?
8 A. I don't know because I can't recall when it took
9 place, but it might very well have taken place and I
10 have a recollection that there was some rude comments
11 made. And that might have been the comment.
12 Q. Who made that comment?
13 A. I -- I don't recall. I don't recall, but it was
14 something which I didn't think had to be said or should
15 have been said.
16 Q. Were members also told that, at the time of the
17 bundled vote, the issues on the clubhouse, the
18 amendments, were the owners and members of the Baywinds
19 Community told that if they did not vote on the
20 purchase, Lennar would sell the clubhouse to a third
21 party?
22 A. Lennar indicated that they had been contacted to
23 purchase the club, yes, by a third party. They notified
24 us of that.
25 Q. Were the issues bundled together -- strike that.
00054
1 A. I don't recall that actual wording right now of
2 that ballot. I know that they bundled together the
3 purchase of the club. I don't know if they said
4 something about the third party.
5 Q. But was the threat of the third party used to
6 basically force owners to vote for both issues at the
7 same time?
8 MR. QUATTLEBAUM: Object to the form.
9 THE WITNESS: I don't -- I don't know if
10 that was used as a threat. I know subsequent
11 when -- because it was the -- there was no
12 decision made to purchase the club at the
13 turnover date. This is why I'm answering it the
14 way I am. It didn't happen as Lennar wanted it
15 to happen.
16 BY MS. LIVELY:
17 Q. June 2005, prior to turnover, what was your role,
18 if you would or -- within the community. You were the
19 president of the Heron Cove, correct?
20 A. Yes.
21 Q. In June of 2005, do you recall receiving an
22 e-mail from Dr. Amero regarding closed meetings within
23 the community?
24 A. I don't know if one came or not, but I'm sure he
25 sent it because we had e-mails going back and forth.
00055
1 Not back and forth, but we had many e-mails between us.
2 Q. What was the Club Purchase Committee? Were you a
3 member of that committee?
4 A. Yes.
5 Q. Tell me about that committee; what type of
6 committee was that?
7 A. That was a committee that was constructed by
8 Lennar.
9 Q. Who was at the head of that committee?
10 A. Oh God, I don't know if there was a head of that
11 committee.
12 Q. Chairman?
13 A. I'm not even sure if there was a chairman. We
14 worked well together.
15 Q. I've got to compliment your community being able
16 to work so well without having chairmen of committees
17 and stuff. You guys must really do good work there.
18 MR. QUATTLEBAUM: Object to the form.
19 THE WITNESS: Well, I think we do. I think
20 we have a fine community. And I'm glad to hear
21 you feel that way.
22 BY MS. LIVELY:
23 Q. Now, the Club Purchase Committee --
24 A. Now, as far as that -- the attorney was a primary
25 focal point, if you'd allow me to finish before you
00056
1 interrupted --
2 Q. What attorney?
3 A. The association's attorney.
4 Q. Mr. Krivok?
5 A. Yes.
6 Q. So Mr. Krivok was the head of the Club
7 Purchase --
8 A. He wasn't the head of it, but he was the contact
9 person because it was obviously a legal matter and that
10 was dealt with back and forth between him -- the Club
11 Purchase Committee went over the issues with the
12 attorney.
13 Q. Who all was on the Club Purchase Committee?
14 A. Oh God. I think, you know, I'm going to take a
15 guess. I'm really drawing a blank on that. It was four
16 or five of us and I don't want to give the wrong names.
17 I'll be very glad to provide that, I know it was
18 probably John Mikus and Marvin Levine, I'm not certain
19 of the other two. And I don't want -- Karen Israel was
20 the treasurer.
21 Q. Were the Club Purchase Committee meetings open to
22 the residents?
23 A. No, I don't think they were. I don't know
24 whether they were at all. I don't recall. No.
25 Q. Were there agendas for the Club Purchase
00057
1 Committee?
2 A. No.
3 Q. Did the committee keep minutes of their meetings?
4 A. Probably, we kept minutes prior to any purchase.
5 Q. And what exactly was the function of the Club
6 Purchase Committee?
7 A. To act as an intermediary between Lennar and the
8 community for the determination of whether the purchase
9 should be made of the clubhouse.
10 Q. Was the Club Purchase Committee involved in the
11 decision to bundle the votes together regarding the
12 voting of the master association and the purchase?
13 A. I don't think the committee was technically
14 formed prior to that. It only happened after the vote
15 was taken.
16 Q. So the Club Purchase Committee was formed after
17 turnover?
18 A. As a result -- I think it was as a result of --
19 I'd have to have a recollection of how that ballot read.
20 I believe as a result of that vote that there would be a
21 Club Purchase Committee.
22 Q. Now, you mentioned a few minutes ago about
23 information meetings?
24 A. Yes.
25 Q. Tell me about your information meetings. How many
00058
1 information meetings took place?
2 A. I think we may have had two.
3 Q. Who was running those meetings?
4 A. I might have run -- I'm not sure if I ran them
5 both. But I might have run them. I probably did.
6 Q. What was the purpose of the meetings?
7 A. To have a community input, number one, to inform
8 the community of the status of what was happening.
9 Q. Of what status?
10 A. First, it was one prior to turnover and then
11 there was one for the club purchase. The club purchase
12 was discussed quite often. I can't tell you how many
13 times prior to turnover there was an informational
14 meeting, which was sort of an introduction of the
15 proposed accounting firm, CPA firm, the proposed
16 attorney, the proposed engineering firm that would be
17 brought in. That was done and there was input from the
18 community as well, subsequent to the club purchase, and
19 prior to the club purchase, there was also a meeting of
20 that type.
21 Q. Were members allowed to participate in that
22 meeting?
23 A. Speak out, of course they were.
24 Q. Were members ever precluded from speaking?
25 A. I don't -- I don't know if anybody was precluded.
00059
1 Maybe somebody spoke out of turn.
2 Q. Was there a meeting on or about June 20, 2005,
3 one of the information meetings, when Justice Raab was
4 precluded from speaking?
5 A. I don't believe Justice Raab was precluded from
6 speaking. I believe he was asked not to speak at that
7 particular time.
8 Q. Was he given an opportunity later in the meeting
9 to speak?
10 A. I certainly would have stayed and I stayed for
11 all the meetings, even after all the meetings were
12 adjourned.
13 Q. Well, I'm talking about during the meeting. Was
14 my client permitted to speak during the meeting on June
15 20th, 2005 at one of the information meetings?
16 A. Ms. Lively, I don't have a specific recollection
17 of that, but it may very well be that there was a
18 decision made that Mr. Raab -- a determination was out
19 of order for that particular moment (sic). I don't know
20 whether that was the meeting or not. Okay?
21 Q. So --
22 A. Mr. Raab attends a lot of meetings and spoke up
23 as a homeowner at many of them.
24 Q. Again, I'm trying to focus --
25 A. I know, I understand you are and I wish I had a
00060
1 photographic memory -- and I don't have one -- to tell
2 you whether that was the meeting which that took place.
3 Q. If you were running that meeting, why would my
4 client have been precluded from speaking?
5 MR. QUATTLEBAUM: Object to the form.
6 BY MS. LIVELY:
7 Q. Is there a reason why he would have been
8 precluded from voicing his opinion or asking questions?
9 MR. QUATTLEBAUM: Object to the form.
10 THE WITNESS: I don't think anyone would
11 have been objected to from asking a question
12 (sic). It might have been at the time it was
13 being asked or what the question was about. It
14 might not have been germane to the topic. That
15 might be a reason why.
16 BY MS. LIVELY:
17 Q. Are there minutes of that meeting; of the
18 information meeting?
19 A. I don't know whether the management company kept
20 them. I don't have them, I'll tell you that much.
21 Q. Was that meeting recorded; video or audio?
22 A. I don't believe -- I know I required that the
23 Board meetings be recorded starting in -- a year later.
24 I don't know if that meeting was or not. We made it
25 mandatory later on.
00061
1 Q. Do you agree that turnover of the community
2 occurred on June 29th, 2005?
3 MR. QUATTLEBAUM: Object to the form.
4 THE WITNESS: I agree that it was
5 attempted --
6 BY MS. LIVELY:
7 Q. Let me ask it another way. As president of the
8 association that -- you know, I should -- are you
9 currently the president?
10 A. No, I'm not a Board member.
11 Q. Okay. During -- there was a period of time
12 during the initial filing of this lawsuit when you were,
13 sir, so --
14 A. Yes, of course.
15 Q. -- so based on your capacity as the former
16 president, is it your -- do you agree that the turnover
17 occurred on June 29th, 2005? Yes or no, and then we'll
18 go from there.
19 MR. QUATTLEBAUM: Objection to form.
20 THE WITNESS: It has turned out that it did
21 not because of the technical matters. And I
22 wasn't president prior to the turnover, so I
23 wasn't president till after that attempt was
24 made. I think... Isn't that one of the reasons
25 why we're here? I -- maybe I'm out of order for
00062
1 saying that, but that's what we're trying to
2 determine.
3 BY MS. LIVELY:
4 Q. Did Lennar give notice to the owners that
5 turnover was to occur on June 29th, 2005?
6 A. Yes, they did. Yes, they certainly did.
7 Q. Did Lennar hold a turnover meeting on June 29,
8 2005 at the Royal Palm Beach High School?
9 A. Yes, they did.
10 Q. Did Sharon Caputo resign as a Lennar Board member
11 at the June 29th, 2005 meeting?
12 A. Yes, she did. She submitted her resignation.
13 Q. And in fact, Sharon Caputo had actually drafted a
14 letter dated June 24, 2005 that became effective at
15 seven p.m. on June 29th, 2005 at the beginning of the
16 turnover meeting; is that true and accurate?
17 A. I don't know the date of it, but I know she did
18 submit a resignation.
19 Q. Let me ask you: To the best of your
20 recollection, was the turnover -- was the resignation of
21 Ms. Caputo effective at seven p.m. on June 29th, 2005?
22 MR. QUATTLEBAUM: Object to the form. Calls
23 for a legal conclusion.
24 THE WITNESS: Her letter of resignation was
25 to be as of that night, yes.
00063
1 BY MS. LIVELY:
2 Q. Now, I apologize for not having the other
3 members' names, I should have made a note of that --
4 A. What other --
5 Q. -- but there are two other members of the Lennar
6 Board --
7 A. Yeah, there were other Board members, yes.
8 Original Board members, yes.
9 Q. What were their names; do you recall?
10 A. My recollection, I could be wrong, were Robert
11 Drews, Bob Drews and Jill Cierpik. I don't have the
12 correct spelling of her name.
13 Q. And for those two individuals, does the same
14 apply that their resignation --
15 A. They submitted their resignations as part of the
16 documents that night, yes.
17 Q. To the best of your recollection, did Lennar
18 execute a deed transferring all community property to
19 the association as of June 29th, 2005?
20 A. They executed documents --
21 Q. A deed.
22 A. Yes, yes, they did.
23 Q. And you know what, I don't -- it's okay if you
24 don't know the names, but --
25 A. Yes, they did.
00064
1 Q. So as of June 29th, 2005, the community now owned
2 the community property; was that your understanding as
3 the president of the association?
4 MR. QUATTLEBAUM: Objection to form.
5 THE WITNESS: It was our understanding after
6 June 29th or after that evening that there had
7 been a correct turnover, yes.
8 BY MS. LIVELY:
9 Q. And on June 29th, 2005, did you become a member
10 of the Board?
11 A. Yes, yes.
12 Q. And that was pursuant to the Seventh Amendment;
13 is that correct?
14 MR. QUATTLEBAUM: Object to the form.
15 THE WITNESS: It was pursuant to the change,
16 yes. Okay.
17 BY MS. LIVELY:
18 Q. Now, keep in mind that I am trying to understand
19 your community. But on June 29th, 2005, was there an
20 election held at the meeting wherein you, sir, were
21 elected to the Board?
22 A. No.
23 Q. How did you become a Board -- explain to me so I
24 understand from your perspective -- how did you become a
25 Board member on June 29th, 2005?
00065
1 A. It was determined by Lennar that all -- that the
2 current Board would be the current, existing presidents
3 of each neighborhood for the first term. That was their
4 determination.
5 Q. So Lennar appointed you to the Board after
6 turnover?
7 A. Well, as of turnover, however you term it. And I
8 believe that was in the original -- the ballot that you
9 referred to earlier about tying the two topics together.
10 Q. And then the Seventh Amendment, when was that
11 enacted or adopted?
12 A. I don't have the correct date. It was at that
13 timeframe. I don't know the exact date.
14 Q. When did you first become aware that certain
15 members of the community were challenging the validity
16 of the Seventh Amendment?
17 A. Well, I don't know when I first became aware, but
18 I do know that Mr. Amero sent a letter on or about --
19 towards the end of July, I don't recall the exact date.
20 But it's possible that he sent out some e-mails prior to
21 that, but I don't have the exact date. But I think at
22 the end of July, he sent a letter -- sometime around the
23 20th or that timeframe -- to the association's attorney,
24 I believe.
25 Q. And how did you become aware that there was a
00066
1 challenge to the validity of the Seventh Amendment?
2 A. How did who, what?
3 Q. How did you become aware?
4 A. I was contacted by the attorney, I believe, the
5 same day he got the letter.
6 Q. And what was your understanding -- what is your
7 understanding as to why there was a challenge to the
8 Seventh Amendment?
9 A. My -- the Seventh Amendment. Would you please
10 tell us exactly what the Seventh Amendment is?
11 Q. Sir, I'm taking your deposition so I'm asking
12 you.
13 A. I understand.
14 Q. You don't know what the Seventh Amendment is?
15 A. Yes, I do.
16 Q. Then why don't you tell -- what is your
17 understanding as to the challenge to the validity of the
18 Seventh Amendment?
19 A. My understanding is twofold. Number one, that
20 they had not filed the change on the one properly in the
21 articles. And that was found to be true.
22 Q. So it was when you --
23 A. That is Lennar had not...
24 Q. And there was also an issue regarding a conflict
25 with the Articles of Incorporation?
00067
1 A. Yeah, yes.
2 MR. QUATTLEBAUM: Objection to the form.
3 THE WITNESS: Right.
4 BY MS. LIVELY:
5 Q. After you were informed as to the challenge to
6 the validity of the Seventh Amendment, did the Board
7 that had been appointed as of June 29th, 2005 -- did the
8 Board meet after being informed as to the challenge to
9 the validity of the Seventh Amendment?
10 A. Oh, after, yes, because the Board has been
11 meeting since then. Right, yes.
12 Q. The Board has been meeting since when?
13 A. The Board has been meeting right along. After --
14 Q. Immediately after, in reaction to being advised
15 that there was going to be a challenge to the
16 validity --
17 A. I'm not sure if we met immediately after, to be
18 very honest.
19 Q. Do you recall having a conversation with any
20 member of the Board after being informed by
21 Mr. Krivok --
22 A. Oh, I'm sure, yes. Of course I remember
23 conversations with other Board members.
24 Q. When did you learn -- how soon after the initial
25 notice -- how soon after that did you learn that Dr.
00068
1 Amero and the rest of the plaintiffs were correct, that
2 the Seventh Amendment would not be valid?
3 MR. QUATTLEBAUM: Object to the form.
4 THE WITNESS: I don't know how soon I
5 learned. I could try to give you a timeframe.
6 BY MS. LIVELY:
7 Q. That's great.
8 A. Okay. Timeframe was when the attorney received a
9 letter and we got it a day or two after it was mailed.
10 It was at the end of July. He called me, told me about
11 the letter, I guess my first reaction was, "What does
12 this really mean?" And he explained it. And I said
13 "Let's get to the bottom of it. You're the lawyer, find
14 out what the facts are and let us know what the course
15 of action is." He then asked me if it was okay to speak
16 with Mr. Amero and I said it certainly was okay. I had
17 no problems if he were to contact him to try to get
18 clarification. I believe they did have a conversation,
19 but I wasn't a party to that.
20 And then the attorney, I think, within the day
21 called back again and said he believes that the issues
22 were correct and that they have to be dealt with and we
23 -- my comment, obviously was, "How does it get dealt
24 with and what do we do?" And we were told that he would
25 be in touch with the Lennar attorneys and would get back
00069
1 within a day or two. And that's -- and we said, "Fine,
2 proceed."
3 Q. And at that time, if the Seventh Amendment was
4 deemed to be invalid --
5 A. Uh-huh.
6 Q. -- what was your understanding as to your
7 authority to continue to act as a Board member?
8 MR. QUATTLEBAUM: Object to the form. Calls
9 for a legal conclusion.
10 THE WITNESS: What I did was ask of the
11 attorney, "What do we do," and we were advised to
12 continue until he could come back with
13 clarification. So we accepted the attorney's
14 advice.
15 BY MS. LIVELY:
16 Q. So you continued, although being advised that the
17 Seventh Amendment was no longer -- was invalid, you
18 continued to act as the Board; is that correct?
19 MR. QUATTLEBAUM: Object to the form.
20 THE WITNESS: No, that isn't correct.
21 BY MS. LIVELY:
22 Q. You did not act as a Board?
23 A. No. We acted -- we asked the attorney and he
24 said that he thought that that was a correct observation
25 by Dr. Amero at the time and that -- but that we should
00070
1 still continue operating. And so we did until there was
2 a clarification.
3 Q. When did you first receive a clarification?
4 A. As I said, the whole timeframe was probably a
5 week's time. And I can't tell you -- it was probably
6 very shortly thereafter because I think by August 2nd or
7 3rd, everything else had been accomplished in terms of
8 the revised documents. So during that timeframe.
9 Q. So let's stay in July for right now. So did you
10 authorize the attorney to contact Lennar regarding
11 correcting the problem that had occurred from --
12 resulting from the invalidity of the Seventh Amendment?
13 MR. QUATTLEBAUM: Object to the form.
14 THE WITNESS: I authorized him to speak to
15 them on the issue, of course. I would not
16 object.
17 BY MS. LIVELY:
18 Q. And under what authority were you acting when you
19 directed the legal counsel to contact Lennar?
20 MR. QUATTLEBAUM: Objection to form. Calls
21 for a legal conclusion.
22 BY MS. LIVELY:
23 Q. Go ahead.
24 A. I just wanted to make sure he was finished. I
25 think on the fact that I had been appointed by the other
00071
1 members to be the president of the Board. And that's
2 it. And trying to do the right thing to get things
3 resolved.
4 Q. Was it your belief at that time that you were
5 still a Board member, even though the Seventh Amendment
6 was invalid?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: I didn't know for certain that
9 it was invalid. And I requested direction from
10 the attorney, and the attorney's advise was to
11 proceed with whatever actions we were doing.
12 BY MS. LIVELY:
13 Q. Did the president -- strike that. Did the group
14 of people that were appointed by Lennar as the Baywinds
15 Board, did that group direct Lennar to adopt an Eighth
16 Amendment?
17 A. No, we didn't direct Lennar to -- are you talking
18 to do it because they had forgotten to do everything
19 technically correct or -- I want to make sure I
20 understand.
21 Q. Here. The Seventh Amendment is invalid. So you
22 have to get a new one, a new amendment.
23 A. Right.
24 Q. Did the group governing the community at that
25 time, the Lennar appointed Board of owners, did you
00072
1 direct Lennar to adopt an Eighth Amendment?
2 A. No. We asked the attorney to resolve the matter
3 in the right way based on the issues that had been
4 brought about and I gave Mr. Amero's letter to the
5 attorney. And the attorneys spoke to each other and
6 came back with what they felt was the resolution. We
7 followed that direction as we believed we should have
8 followed proper legal direction.
9 Q. Now, on or about July 26th, 2005, when you were
10 made aware that the Seventh Amendment was being deemed
11 invalid, were you also advised that there were
12 homeowners challenging your eligibility to serve on the
13 Board?
14 A. Yes, I know there were some challenges, yes.
15 Q. Was that related to the fact that you were not a
16 -- your name was not on the deed?
17 A. I believe that was the reason for that.
18 Q. Did you discuss that with legal counsel for the
19 association?
20 A. I believe that there was even a letter between
21 the -- I'm trying to think back -- between the
22 association counsel and Dr. Amero on the matter. I
23 believe Dr. Amero asked the association's attorney or
24 made a comment about it and I believe that there was a
25 response to that. So I must have had a conversation. I
00073
1 doubt if he would have written a letter without telling
2 me he was going to write a letter. I'm talking about
3 the attorney.
4 Q. And as the appointed president of the association
5 did you direct the legal counsel for the association to
6 prepare a quitclaim deed putting your name on the deed?
7 A. Not as the president, I asked as myself, as I
8 believe I told you earlier.
9 Q. Now, as the newly appointed president of the
10 association -- and you learned that the Seventh
11 Amendment's invalid -- what options were you presented
12 with at that time as to correcting the situation?
13 MR. QUATTLEBAUM: Objection to form.
14 THE WITNESS: There really was -- the first
15 day, there was nothing presented to us other than
16 the fact that it was to be investigated and
17 thought through in contact with the Lennar
18 attorneys, basically were responsible for the
19 turnover. And that's where -- that's what
20 transpired. And a few days later, we were
21 informed that Lennar had agreed and accepted
22 that, apparently, and understood that it had been
23 this error and were correcting it. And that's
24 the option that we were given. I mean we weren't
25 given options.
00074
1 BY MS. LIVELY:
2 Q. Were you presented with any option or alternative
3 whatsoever other than the course of action that occurred
4 from June 29th, 2005 through August of '05?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: I don't -- I don't think we
7 were presented with anything from the attorney
8 other than that.
9 BY MS. LIVELY:
10 Q. So to be clear, you were basically told, in
11 general, "We're going to fix it," and that's all you
12 heard. You weren't given any options of corrective
13 action that could be taken; is that correct?
14 MR. QUATTLEBAUM: Object to the form.
15 THE WITNESS: Well, the options wouldn't
16 have been for us to correct because we weren't
17 the attorneys. It was placed with the attorneys
18 to resolve with Lennar and to come back with what
19 they felt was the legal resolution and they were
20 told whatever has to be taken care of has to be
21 done, period. That's it. We -- it wasn't a
22 matter of we determining the options. We asked
23 what should be done and the attorneys told us
24 they were going to investigate it and come back
25 with what they felt was the resolution.
00075
1 BY MS. LIVELY:
2 Q. And after the issue was investigated, were you
3 presented with any options as to corrective measures to
4 be taken?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: Again, I would say no. I
7 think the option was that this was what would
8 correct it; what took place would correct it. We
9 didn't have a menu of choices.
10 BY MS. LIVELY:
11 Q. Were you ever advised that the Board was invalid;
12 the Board as appointed on June 29th, 2005?
13 MR. QUATTLEBAUM: Objection to form.
14 THE WITNESS: You mean advised by counsel?
15 As opposed to people having the belief of that?
16 I mean I want to make sure...
17 BY MS. LIVELY:
18 Q. Were you ever advised from legal counsel that the
19 Board was invalid and could not act?
20 A. No, not that we could not act, no. As a matter
21 of fact -- no.
22 Q. Are there any provisions in the Baywinds
23 documents requiring that there be a member meeting to
24 resolve the problems of a questioned invalid Master
25 Board?
00076
1 MR. QUATTLEBAUM: Object to the form.
2 THE WITNESS: You know something, I really
3 don't know.
4 BY MS. LIVELY:
5 Q. Was it ever discussed between July 25th, 2005 and
6 until the Eighth Amendment was adopted, was there ever
7 any discussion as to calling a member meeting regarding
8 the situation that had been created as a result of the
9 invalid Seventh Amendment?
10 A. I don't -- I don't believe so. I don't believe
11 so. I think we were waiting for the attorneys to
12 resolve it.
13 Q. Were you ever made aware of any requirement
14 within your documents that you call a membership
15 meeting?
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: I can't -- I don't recall. If
18 -- if I would have known about it, I would have
19 turned it over to the attorney for his reaction.
20 BY MS. LIVELY:
21 Q. Were the members of the Lennar Board reappointed
22 to serve as Board members after June 29th, 2005?
23 MR. QUATTLEBAUM: Object to the form.
24 THE WITNESS: I don't know if they were
25 reappointed or not, but they invalidated their
00077
1 resignation, however you want to term it. Yes.
2 BY MS. LIVELY:
3 Q. So they invalidated their resignation; what do
4 you mean by they invalidated their resignation?
5 A. Well, apparently their resignation was not valid
6 and they had to serve again as the Board.
7 Q. Did they rescind their resignation?
8 MR. QUATTLEBAUM: Object to the form.
9 THE WITNESS: I don't have those documents.
10 I assume that they took whatever was the proper
11 legal steps on that.
12 BY MS. LIVELY:
13 Q. So when they rescinded their resignation, is it
14 your position then they reassumed, if you would, their
15 position as Board members?
16 A. They assumed their position. I would believe
17 that -- no, I'm not sure if they did or didn't. To be
18 honest, I don't know.
19 Q. Well --
20 A. I'm telling you, I don't know.
21 Q. Now, I'm getting more confused than ever. The
22 Lennar Board, you said, rescinded their resignation; the
23 three Board members. They rescinded their --
24 A. Well, they must have did (sic) something because
25 they resigned again on or about August 2nd or 4th. So
00078
1 I'm assuming that. I said I don't know the technical
2 legal action as to what --
3 Q. I understand, it's kind of complex here, but --
4 so Lennar resigned. And if you could, give me your
5 explanation as to how the Eighth Amendment was adopted.
6 MR. QUATTLEBAUM: Object to the form.
7 BY MS. LIVELY:
8 Q. That is, give me your summary of how the Eighth
9 Amendment -- how was that adopted? Lennar resigned,
10 you're appointed as president and other community
11 members are on this new Master Board, the Eighth
12 Amendment is adopted. How did that come into being?
13 A. You'll have to ask the attorneys, I don't know.
14 Q. Okay. Give me your recollection, please.
15 A. My recollection is --
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: My recollection is that the
18 attorneys discussed it amongst themselves and
19 took the action that they felt was legal and
20 proper to protect the association. And that's
21 what I believe took place.
22 BY MS. LIVELY:
23 Q. Did you attend a meeting?
24 A. No, I don't recall attending any meeting. With
25 the two attorneys, no, I don't.
00079
1 Q. Did you and your fellow Board members who were
2 appointed as of June 29th, 2005 take any action as a
3 Board whatsoever between June 29th, 2005 and August 5th,
4 2005?
5 A. I don't know, specifically. It's quite possible
6 we did. I can't recall in those five days or six days
7 but I wouldn't say that we didn't. I'd have to look
8 back at the minutes or whatever. But I don't recall.
9 Q. Do you remember attending a meeting or holding a
10 Board meeting between those dates?
11 A. I think there was one --
12 MR. QUATTLEBAUM: Object to the form.
13 THE WITNESS: -- but I don't know the exact
14 dates. I'm sorry.
15 MR. QUATTLEBAUM: Object to the form.
16 BY MS. LIVELY:
17 Q. Was there, around maybe July 27th, 29th,
18 somewhere around the end of July --
19 A. It could very well --
20 MR. QUATTLEBAUM: Excuse me, same objection.
21 THE WITNESS: I apologize. I started to --
22 MR. QUATTLEBAUM: I started to jump in but
23 you were too quick.
24 THE WITNESS: I'm sorry. I'll go slower.
25 Okay.
00080
1 BY MS. LIVELY:
2 Q. Now, when you attended the meeting that occurred
3 between the time that you were advised of the invalid
4 Seventh and the adoption of the Eighth Amendment, at
5 that meeting, what was your understanding as to the
6 authority of the Board that was appointed on June 29th,
7 2005?
8 A. My understand --
9 MR. QUATTLEBAUM: Form.
10 BY MS. LIVELY:
11 Q. Your understanding --
12 A. My understanding, based on the legal advice that
13 was given was that we should continue to perform our
14 duties for the best interest of the community until the
15 matter was resolved, obviously.
16 Q. Do you recall if the Board voted to enter into
17 any contracts at that meeting?
18 A. I don't, but it's possible we entered into the
19 contract. I can't -- I don't recall. There might have
20 been a contract that was entered into.
21 Q. Was that the meeting where you contracted with
22 Crain Engineering?
23 A. That might have been. That's the one that was on
24 my mind, but I wasn't sure if that was the date.
25 Q. And retained Mr. Krivok as legal counsel for the
00081
1 association; is that correct?
2 A. I thought he was retained the night of the
3 turnover, but it could have been the next meeting.
4 Q. Now, if that's -- let me ask you: Who drafted
5 the Eighth Amendment?
6 A. Not I. I don't know. I assume the Lennar
7 attorneys did, I don't know. I mean I really assumed --
8 that's -- I assume that they did. Not I.
9 Q. Did you ever have the opportunity to review the
10 amendment before it was adopted by Lennar?
11 A. I might have seen it. They might have sent it to
12 people because of the issues that were going on at the
13 time.
14 Q. Did you meet with Board -- other members of the
15 Board to review the proposed Eighth Amendment prior to
16 it being adopted by the Lennar Board?
17 A. I don't know if we met with the Board or if they
18 were all made available. I don't -- I'm pretty certain
19 that they all saw the copy of it, or at least I believe
20 that they did.
21 Q. Did the Board pass -- the Board, again, referring
22 to the group of individuals that were appointed on June
23 29th, 2005 -- after the problems with the invalidity of
24 the Seventh Amendment, were you concerned enough to meet
25 and review the proposed Eighth Amendment?
00082
1 MR. QUATTLEBAUM: Object to the form.
2 THE WITNESS: I'm not sure if we met
3 formally or if Lennar sent it out to us. I don't
4 know. I know that there was concern, obviously
5 there was concern. And our concern was a matter
6 to be dealt with as quickly as possible and that
7 that's what we were hoping would be done and
8 whatever the answer was that the resolution was,
9 we would have to abide by it, period.
10 BY MS. LIVELY:
11 Q. Again, just to be clear, the July 27th -- and
12 again, I've got two different dates, the 27th and the
13 29th, -- but the meeting that occurred with the new
14 Board, the appointed Board of June 29th, Mr. Krivok at
15 that point was appointed as the registered agent for the
16 corporation; is that correct?
17 MR. QUATTLEBAUM: Object to the form.
18 THE WITNESS: I believe that was done about
19 that time. Because we engaged in only -- within
20 a week prior to the turnover date, we had another
21 attorney and we engaged Mr. Krivok right about
22 that same time.
23 BY MS. LIVELY:
24 Q. So you continued to function as president of the
25 Baywinds Master Association after June 29th, 2005,
00083
1 correct?
2 A. That is correct.
3 Q. Were you presented with any concerns as to the
4 legality of conducting a Board meeting based upon the
5 invalidity of the Seventh Amendment?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: Can I ask by whom; by the
8 attorney or by --
9 BY MS. LIVELY:
10 Q. By the attorney.
11 A. No, I think the attorney -- and I think again, I
12 don't recall exactly, but I believe the direction was
13 that we should proceed.
14 Q. Were you ever advised that given the fact that
15 the Eighth Amendment was being drafted at that time to
16 hold off on making any actual decisions until after the
17 issue had been resolved?
18 MR. QUATTLEBAUM: Object to the form.
19 THE WITNESS: I believe there were many
20 conversations going on at that time. I don't
21 know if that took -- if something like that took
22 place just prior to or after. I don't know.
23 BY MS. LIVELY:
24 Q. So during the period from approximately July 25
25 until August 2nd, 2005, were there two functioning
00084
1 boards at Baywinds Master Association?
2 MR. QUATTLEBAUM: Object to the form. Calls
3 for a legal conclusion.
4 THE WITNESS: You know, I don't know the
5 legal terminology here. And what I'm going to
6 say is that those of us that were appointed at
7 turnover on June 29th believed that we should
8 continue to perform until we were advised not to.
9 And if the matter wasn't resolved, we would have
10 been advised accordingly. And so that's -- you
11 know, I can't answer you, I can't speculate or
12 give an opinion that's a legal opinion beyond --
13 BY MS. LIVELY:
14 Q. I don't want your legal opinion. I'm just trying
15 to go through the factual scenario right now.
16 A. Uh-huh.
17 Q. So during the end of July 2005, were there two
18 boards functioning and in control of the Baywinds Master
19 Association?
20 A. I don't think that --
21 MR. QUATTLEBAUM: Same objection.
22 THE WITNESS: I don't believe that there
23 were two boards functioning and operating.
24 BY MS. LIVELY:
25 Q. Who was in control of the Master Association
00085
1 during the last week of July and first week of April of
2 2005?
3 MR. QUATTLEBAUM: Form, you said April.
4 MS. LIVELY: I'm sorry. You're good.
5 BY MS. LIVELY:
6 Q. The last week of July and first week of August,
7 who was in charge of the association?
8 MR. QUATTLEBAUM: Object to the form.
9 THE WITNESS: Again, because of this issue,
10 I cannot give you an answer other than those --
11 speaking for myself, I use the word collectively
12 of the Board -- believed that based on the advice
13 given, we should operate and do what should be
14 done as a Board and that the matter would be
15 resolved very quickly. And as it was, within a
16 week's time.
17 BY MS. LIVELY:
18 Q. When --
19 A. It obviously was an issue that I had never been
20 confronted with before and had...
21 Q. When did the Lennar Board make their second set
22 of resignations?
23 A. The date of August 2nd or August 4th is what's in
24 my mind. I think about that time.
25 Q. Was there a transition committee within Baywinds
00086
1 Community Association?
2 MR. QUATTLEBAUM: Objection to form.
3 THE WITNESS: I believe that that was
4 handled by -- that Lennar indicated that they
5 didn't want to create another group and that they
6 would continue dealing with the presidents
7 because they had been dealing with them for a
8 period of a year or whatever it was. And I
9 believe that that was called a transition group
10 as well.
11 BY MS. LIVELY:
12 Q. So the transition committee was also the
13 Presidents' Council?
14 A. Well, the Presidents' Council dissolved itself,
15 so there was no need for a Presidents' Council when the
16 transition was to take place. There was no purpose.
17 Q. When did the Presidents' Council dissolve itself?
18 A. I don't know when but we stopped meeting as a
19 group for some time prior to that. It was -- I don't
20 know at what point prior to that. We no longer had the
21 kind of meetings we had earlier when we didn't know each
22 other and we had a lot of newness.
23 Q. So you get over the newness. And I'm trying to
24 understand when did the Presidents' Council stop
25 meeting?
00087
1 A. I can't give you an exact date.
2 Q. And you are unaware of any actual transition
3 committee; is that correct?
4 A. I said the transition committee was the same
5 group because Lennar deemed that they had been working
6 with this group and so they wanted to stay with this
7 group and wouldn't add anybody else to it.
8 Q. I'm sorry, they would not add anybody else to it?
9 A. (Nods head.)
10 MR. QUATTLEBAUM: You're not answering.
11 THE WITNESS: What?
12 MR. QUATTLEBAUM: You have to say yes or no.
13 BY MS. LIVELY:
14 Q. Did you say that Lennar would not add any other
15 person to the transition committee?
16 A. Yeah, they felt that the group that they were
17 dealing with was adequate for their needs. It was their
18 choice.
19 Q. Was it ever suggested that additional persons be
20 brought in to give new opinions?
21 A. Yes, I had suggested and asked Lennar if they
22 were forming a transition committee and who would be on
23 it and were they ready to do it and they told -- they
24 came back and -- they, being Sharon Caputo,
25 essentially -- said, "No, we'll continue -- you folks
00088
1 have been doing it, you're the transition committee."
2 Q. So Sharon Caputo advised you that they didn't
3 want to bring anybody else in other than the Presidents'
4 Council; is that correct?
5 A. She never said they were not going to bring
6 anybody else in. I asked her when is the transition
7 committee going to be formed and she said, in essence,
8 your group, the presidents, your group will be the
9 transition because you're familiar with all the issues
10 and why get a new body in and new folks when the issue
11 is over. I'm paraphrasing, but that's essentially what
12 transpired.
13 Q. What was the Baywinds Advisory Committee?
14 A. Well, that was a committee created by Lennar,
15 geez, I would say probably around 2003. I'm just
16 guessing at the time. That was to give input to the
17 developer and...
18 Q. Were you a member of that committee?
19 A. Yes, at some point, I became a member.
20 Q. Who else was on that committee?
21 A. There was representation from every neighborhood
22 association. I don't recall if there were one or two
23 members from each, but there was quite a bit. And those
24 meetings were open. That was a Lennar group that was
25 actually created and the meetings were held
00089
1 approximately once a month. I don't...
2 Q. Were there any turnover meetings other than the
3 June 29th, 2005 turnover?
4 MR. QUATTLEBAUM: Object to the form.
5 THE WITNESS: No, I don't think so.
6 BY MS. LIVELY:?
7 Q. You did have a turnover meeting after the
8 adoption of the Eighth Amendment in August of '05,
9 correct?
10 MR. QUATTLEBAUM: Object to the form.
11 THE WITNESS: We didn't have a meeting that
12 we sat and called it a turnover meeting, no.
13 BY MS. LIVELY:
14 Q. Now, are you familiar with the term deficit
15 funding?
16 A. A little bit. I'm not an accountant.
17 Q. I understand, and I'm not going to get into too
18 much accounting here, but now whenever you were
19 president of the association --
20 A. Can I get a bottle of water or something?
21 MS. LIVELY: Sure. Let's take a quick
22 break.
23 MR. QUATTLEBAUM: Let's take a break.
24 (Brief recess.)
25 MS. LIVELY: Back on the record.
00090
1 BY MS. LIVELY:
2 Q. Before we broke, we were getting into the area of
3 deficit funding. Now, in your recollection as the
4 former president, was Lennar paying a deficit funding
5 prior to the June 29th, 2005 turnover?
6 A. Uh-huh. Yes. I'm sorry, I was just choking on
7 the candy.
8 Q. I don't -- tell me when you're ready to answer.
9 A. Yes.
10 Q. Now, can you explain from your perspective, from
11 your understanding as the former president, what exactly
12 did that mean, that Lennar was paying deficit funding
13 prior to the June 29th, 2005 turnover?
14 A. That they have to make up the differential
15 between the homes that are sold and the homes that are
16 not sold for the budget cuts and the expenditures.
17 Q. And turnover, after June 29th, 2005, did Lennar
18 continue to pay on a deficit funding basis?
19 A. Yes, they continued to pay.
20 Q. In the same mechanism or manner?
21 A. What do you mean by mechanism?
22 Q. Was there any other change as to how Lennar paid
23 after June 29, 2005?
24 A. Well, I think it would have been different
25 because after turnover, they received the follow-up
00091
1 differently from the management company than they might
2 have prior to. Prior to turnover, we would not see all
3 the transactions, per se. So I can't say how they
4 particularly handled everything. After turnover, we're
5 aware of how it was done, which is done by a monthly
6 billing from the management company, is what I'm trying
7 to say. I don't know how they did --
8 Q. I understand. And during your tenure as the
9 president of the association, were you made aware of the
10 CPA audit that was done of the turnover records?
11 A. Yes.
12 Q. In that particular audit -- now that's based on a
13 turnover date having occurred on June 29th, 2005,
14 correct?
15 A. Yes.
16 Q. Was a demand made on the part of Baywinds
17 Association to Lennar for additional monies prior to
18 June 29th, 2005 -- or strike that. After you received
19 the audit report, was it recommended that Baywinds seek
20 additional funds from Lennar due to a shortage in the
21 amount of money paid --
22 A. No, it was not recommended. It was noted that
23 there was an apparent or a possible shortage in the
24 amount of money.
25 Q. How much -- do you have a recollection as to the
00092
1 amount of money that was the shortage?
2 A. I think we're talking in the neighborhood that
3 was stated at I think around $290,000, but I could be
4 off by a few thousand dollars.
5 Q. And that approximate $290,000, that was deemed to
6 be a shortage -- was that for a shortage in the amount
7 of money that was paid for the deficit funding?
8 A. Yes, that's, I believe, yes, from the auditors,
9 yes.
10 Q. What, if any, efforts were made to collect that
11 $290,000?
12 A. A formal claim has been submitted to Lennar.
13 Q. Earlier, we talked about the turnover. And I
14 don't mean the -- just to paraphrase, you had indicated
15 that there was a technical -- a technicality that the
16 turnover really did not occur on June 29th, 2005. Is
17 that your position, that turnover did not occur on June
18 29th, 2005?
19 MR. QUATTLEBAUM: Object to the form. Calls
20 for a legal conclusion.
21 BY MS. LIVELY:
22 Q. And again, I want your opinion as the president.
23 Is that what -- you, as the former president, is that
24 what your understanding was, that the turnover did not
25 occur on June 29th, 2005?
00093
1 A. My understanding was that through -- well, I'm
2 using the word technical errors -- the turnover was not
3 properly concluded, processed, I'm not sure how you want
4 to put it.
5 Q. If turnover did -- just -- if the turnover did
6 not occur on June 29th, 2005, would not Lennar owe
7 additional funds for the deficit funding from June 29th,
8 2005 through the actual turnover date?
9 A. That would require an accountant's determination
10 and a lawyer's determination.
11 Q. As of the fiduciary of the association, did the
12 Board make any effort to follow-up on that possibility?
13 MR. QUATTLEBAUM: Object to form.
14 THE WITNESS: I would say you would have to
15 ask the treasurer about that.
16 BY MS. LIVELY:
17 Q. Was that ever discussed at a Board meeting?
18 A. I can't recall that. I'm not sure if it was.
19 Q. Would you agree that Lennar adopted and filed the
20 Eighth Amendment on August 2nd, 2005?
21 A. I think that's the approximate date that I know
22 of. I don't have it in front of me, so I...
23 Q. Fist week of August, 2005?
24 A. Yes, it is my understanding, yes.
25 Q. When were the members informed that an Eighth
00094
1 Amendment had been adopted?
2 A. I don't know the date.
3 Q. How were the members informed?
4 A. I don't know if it was a mailing sent out or not.
5 It should have been by the management company.
6 Q. Were the members informed as to the issue
7 presented regarding the invalidity of the Seventh
8 Amendment? Were the --
9 A. Well, I --
10 Q. Let me clarify. Were the members made aware that
11 the Seventh Amendment was not valid?
12 A. Not at that immediate time. The members were
13 made aware of the issue once the lawsuit came about.
14 Q. Why were the members not informed that the
15 Seventh Amendment was deemed to be invalid?
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: I would have to say because
18 the matter was, to our belief, resolved within a
19 week's time.
20 BY MS. LIVELY:
21 Q. Now, the Seventh Amendment -- strike that. An
22 Eighth Amendment was adopted on or about August 2nd of
23 2005; is that correct?
24 MR. QUATTLEBAUM: Object to the form. Asked
25 and answered.
00095
1 THE WITNESS: I know that it was adopted on
2 or about that approximate time.
3 BY MS. LIVELY:
4 Q. Were the owners advised through any written
5 communication that there was an adoption of an Eighth
6 Amendment in August of 2005?
7 A. I don't have a recollection if anything was sent
8 out.
9 Q. And just to clarify, were the owners advised in
10 writing that the Seventh Amendment was deemed to be
11 invalid?
12 MR. QUATTLEBAUM: Object to the form.
13 THE WITNESS: I don't think there was any
14 written notification sent out.
15 BY MS. LIVELY:
16 Q. As the former president of Baywinds Master
17 Association, do you have personal knowledge as to any
18 notification to the owners regarding the invalidity of
19 the Seventh Amendment?
20 A. I don't recall and don't believe anything was
21 sent out.
22 Q. And as the former president of Baywinds Master
23 Association, are you aware of any written formal
24 notification to the owners or the members of the
25 Baywinds Association that an Eighth Amendment had been
00096
1 adopted in August of '05?
2 MR. QUATTLEBAUM: Object to the form; asked
3 and answered.
4 THE WITNESS: I don't have a recollection of
5 one being sent out.
6 BY MS. LIVELY:
7 Q. As the former president of the association, do
8 you believe that the owners should have been notified as
9 to the issues regarding the Seventh and the Eighth
10 amendments?
11 MR. QUATTLEBAUM: Object to the form.
12 THE WITNESS: I would say if the matter
13 wasn't resolved within the timeframe that it was,
14 yes.
15 BY MS. LIVELY:
16 Q. But that wasn't my question. My question was:
17 As the president of the association, do you believe that
18 the members should have been notified as to the problem
19 with the Seventh Amendment and the subsequent adoption
20 of the Eighth Amendment?
21 MR. QUATTLEBAUM: Object to the form.
22 THE WITNESS: I believe that we should --
23 what we did was to follow the advice of the
24 association's attorney on how to proceed.
25
00097
1 BY MS. LIVELY:
2 Q. Did your attorney or the association attorney --
3 did the association attorney advise not to notify the
4 owners regarding --
5 A. No, the association attorney did not state not to
6 notify them.
7 Q. Then again, I'm asking as the former president of
8 the association, do you believe that the owners should
9 have been apprised as to the situation that the Seventh
10 Amendment and the subsequent Eighth Amendment --
11 A. I believe they should have been notified and
12 apprised if the matter was not resolved as quickly as it
13 was, yes.
14 Q. So then is it your position that because there
15 was a quick resolution that the owners did not need to
16 be advised that the Seventh Amendment was invalid?
17 MR. QUATTLEBAUM: Object to the form.
18 THE WITNESS: It was my understanding that
19 what happened, the resolution, if I can use that
20 term, resolved that matter. And that there was
21 nothing further -- most of the homeowners knew by
22 word of mouth that this issue was going on.
23 BY MS. LIVELY:
24 Q. So because of the quick resolution, there was no
25 need to notify the owners; is that your position?
00098
1 MR. QUATTLEBAUM: Object to the form.
2 THE WITNESS: Not my position, but I stated
3 that they would have been notified if the matter
4 wasn't resolved as quickly as it was. We were
5 operating on a very quick timeframe and again,
6 stating not having had particular experience in
7 these fields, no one was trying to do anything in
8 a manner that was not proper and legal. This
9 happened within a week or the first month of what
10 we thought was a proper turnover at the time it
11 took place on June 29th. Something like this
12 occurs, what we did was sit back and say, "Well,
13 tell us what we should do or what we shouldn't
14 do." And we were told to continue with our
15 actions and if it was not solved, we would have
16 to see what we do next. It was apparently, to
17 our understanding, taken care of within a week's
18 time.
19 BY MS. LIVELY:
20 Q. So had the plaintiffs not brought this legal
21 action, some of the homeowners would have never heard
22 about the issue of the invalid Seventh Amendment,
23 correct?
24 MR. QUATTLEBAUM: Objection to form.
25 THE WITNESS: No, that's not necessarily
00099
1 correct.
2 BY MS. LIVELY:
3 Q. Would the membership ever have been notified?
4 A. I can't tell you because that would be an
5 important decision and I can't speak for the entire
6 Board.
7 Q. Did the Board ever discuss notifying the owners
8 of the problems arising out of the invalid Seventh
9 Amendment?
10 A. I don't know. I can't say whether the Board
11 discussed it or not during that week's time. There were
12 many things being discussed and many concerns expressed.
13 I don't recall.
14 Q. During the period that there were many concerns
15 being discussed, was the Board meeting at that time to
16 discuss the concerns you referenced?
17 A. No, the Board was not meeting -- whatever
18 meetings the Board had were posted meetings. In that
19 one week's time.
20 Q. During that week's time, tell me who the
21 discussions were between.
22 MR. QUATTLEBAUM: Object to the form.
23 THE WITNESS: They weren't between anybody
24 individually. Everybody was concerned and we all
25 knew that this took place.
00100
1 BY MS. LIVELY:
2 Q. I understand that, that you all knew, but you
3 said there were discussions.
4 A. No, I spoke with the attorney quite frequently
5 during that week.
6 Q. You spoke with the attorney. How did the
7 information arising out of your discussion with the --
8 A. By the attorney's contact, I think there might
9 have been a meeting with the attorney that week. I'm
10 trying to think back to that one precise week, that's
11 all.
12 Q. What I'm asking is: How did that information get
13 communicated to your fellow members of the Board?
14 A. I might have called them on the phone, I might
15 have told them, or I -- I don't know. There was no
16 Board meeting in that week. I'm trying to recall if
17 there was a Board meeting and I don't remember a Board
18 meeting happening that week.
19 Q. Were there e-mails sent by you to your fellow
20 members of the Board regarding the issue presenting out
21 of the Seventh Amendment?
22 A. There might very well have been an e-mail sent or
23 two. That's one of the ways we -- I would have to
24 communicate.
25 Q. Was there an emergency meeting of the Board
00101
1 called to discuss the ramifications of the invalidity of
2 the Seventh Amendment?
3 MR. QUATTLEBAUM: Object to the form.
4 THE WITNESS: I don't believe there was an
5 emergency meeting called, no.
6 BY MS. LIVELY:
7 Q. Was there any meeting prior to the July 27th or
8 29th meeting between the Board to discuss the issues and
9 the ramifications of the invalid Seventh Amendment?
10 MR. QUATTLEBAUM: Object to the form.
11 THE WITNESS: Prior to when?
12 BY MS. LIVELY:
13 Q. July 29th, 2005.
14 A. Okay. I can't recall. I would have to look at
15 the minutes and see what was in the agendas.
16 Q. During that relevant -- the general period of
17 time, the end of July 2005, did any of the plaintiffs
18 that are listed in this action request to meet with you
19 to discuss the issues?
20 A. I can't recall at that time, but I know that both
21 Mr. Raab and Bernie Amero asked to meet. I don't know
22 if it was precisely at the time you're talking about.
23 Q. Did you meet with either person?
24 A. I think we met with Judge Raab, I'm not sure if
25 it was that exact timeframe or not. I had a meeting in
00102
1 my home with Mr. Amero.
2 Q. Regarding the Eighth Amendment?
3 A. No, but on general topics.
4 Q. Regarding the Baywindslife?
5 A. Baywindslife was one of the topics. And we
6 attempted to have a meeting that could not take place
7 because of various reasons. But there was communication
8 back and forth for a meeting and I think the meeting
9 with Judge Raab was on or about that time. I don't have
10 the dates in my head.
11 Q. After August 2nd, 2005, did you become aware that
12 there was a challenge to the validity of the Eighth
13 Amendment?
14 A. I believe so. I don't recall when that took
15 place.
16 Q. That's okay. But you thereafter, the Eighth
17 Amendment was adopted, you became aware that there were
18 questions as to the validity of the Eighth Amendment,
19 correct?
20 A. I believe there were questions, yes. I'm trying
21 to think of the timeframe, yes.
22 Q. What was your response when you were alerted to
23 the fact that there was a group of homeowners
24 challenging the Eighth Amendment?
25 A. To whom? Who would my response be to? I'm not
00103
1 sure what you mean by the question.
2 Q. How did you respond when you learned there was a
3 challenge to the Eighth Amendment?
4 MR. QUATTLEBAUM: Object to the form.
5 THE WITNESS: I don't know what you mean
6 precisely by that.
7 BY MS. LIVELY:
8 Q. I'll ask you this: How did you learn that there
9 was a group of homeowners challenging the validity of
10 the Eighth Amendment?
11 A. There may have been a letter from Bernie. I
12 don't recall. That might have been the first time I
13 heard of it. There were several letters at that time.
14 And that's how most of the information came to my
15 attention. Possibly an e-mail from Bernie. I don't
16 know.
17 Q. Did you then learn that a large group of
18 homeowners had filed a Petition for Mediation disputing
19 the validity of the Seventh and Eighth amendments?
20 A. Yes, I'm aware of that.
21 Q. How did you become aware of that?
22 A. I can't recall how, but I know I became aware of
23 it. I don't know how.
24 Q. Was the primary challenge to the Eighth Amendment
25 at that point and the Seventh Amendment, that the
00104
1 amendments materially altered the voting interests?
2 A. I can't give an interpretation. I know there was
3 a petition of dissatisfaction with the amendments.
4 Q. And I want your understanding. At that time you
5 were serving as president, what was your understanding
6 as to why this group of owners challenged the
7 amendments?
8 MR. QUATTLEBAUM: Object to the form.
9 BY MS. LIVELY:
10 Q. Give me your understanding as to why you -- what
11 was your understanding as to why they were challenging
12 the amendments?
13 MR. QUATTLEBAUM: Same objection.
14 BY MS. LIVELY:
15 Q. Go ahead.
16 A. Because I believe that there was a question
17 amongst those individuals as to whether or not the
18 amendments would allow for proper voting -- fair voting.
19 I'm not -- proper is not the correct word.
20 Q. As a homeowner, do you believe that the
21 amendments materially and adversely altered the
22 proportionate voting interests of the homeowners within
23 Baywinds Community Association?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: I feel that the present method
00105
1 is an equitable method.
2 BY MS. LIVELY:
3 Q. Why do you believe the present method to be an
4 equitable method?
5 A. Because it allows for one vote per home and it
6 allows for effective -- not effective -- it allows for
7 direct representation from each neighborhood
8 association.
9 Q. When you said that it allows for one vote per
10 home --
11 A. Yes.
12 Q. -- prior voting scheme, as far as electing
13 persons to the Master Board --
14 A. I beg your pardon? I didn't hear you.
15 Q. How many votes per home were allowed by the prior
16 voting mechanism? Pre-Seventh Amendment.
17 A. One, as far as I know. One.
18 Q. So they both allowed one vote per home, correct?
19 A. That's correct.
20 Q. When the Board became aware of the Petition for
21 Mediation, did the Board take a position as to the
22 validity of the Eighth Amendment at that point?
23 MR. QUATTLEBAUM: Object to the form.
24 THE WITNESS: I don't know if you call it
25 taking a position. I believe that the Board
00106
1 believed that it had received proper advice from
2 counsel and that it would be a valid amendment.
3 BY MS. LIVELY:
4 Q. Were one of the issues presented in the mediation
5 petition that the amendments were adopted without all
6 record parcel owners joining in the amendment?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: That might have been. I don't
9 recall the petition word for word.
10 BY MS. LIVELY:
11 Q. Was there also a dispute regarding the fact that
12 the Eighth Amendment was adopted by a Board who had
13 previously resigned?
14 MR. QUATTLEBAUM: Object to the form.
15 THE WITNESS: It was adopted by Lennar.
16 BY MS. LIVELY:
17 Q. Had Lennar previously resigned prior to adopting
18 the Eighth Amendment?
19 MR. QUATTLEBAUM: Object to the form. Asked
20 and answered.
21 THE WITNESS: They had resigned on --
22 shortly after June 29th, yes.
23 BY MS. LIVELY:
24 Q. Shortly after June 29th.
25 A. I mean -- excuse me, no. Yes, technically
00107
1 speaking, they resigned after it became apparent from
2 Mr. Amero's letter that there had been an issue, a
3 problem.
4 Q. But did the Board -- didn't you tell me
5 previously the Board submitted a resignation effective
6 June 29th at seven p.m.?
7 MR. QUATTLEBAUM: Object to the form. Asked
8 and answered.
9 THE WITNESS: I believe that's what it was,
10 yes.
11 BY MS. LIVELY:
12 Q. So the Board resigned on -- as of June 29th,
13 2005 --
14 MR. QUATTLEBAUM: Same objection.
15 BY MS. LIVELY:
16 Q. -- and the Eighth Amendment was adopted after
17 that resignation?
18 A. After that resignation, yes.
19 Q. Whenever Dr. Amero sent a letter -- strike that.
20 Did you become aware that Dr. Amero had sent a letter to
21 Mr. Krivok questioning the validity of the Eighth
22 Amendment?
23 A. I believe so, yes. Several letters.
24 Q. And did you authorize Mr. Krivok to respond to
25 Bernie Amero's questions regarding the validity of the
00108
1 Eighth Amendment?
2 A. I probably did.
3 Q. After the group of individuals submitted a
4 Petition for Mediation to the Department of Business and
5 Professional Regulation, did the Board direct that a
6 letter be sent to the homeowners regarding the Petition
7 for Mediation?
8 A. There was a letter sent out. I can't recall if
9 it was for that specific reason at that time, but there
10 was a letter sent out in that timeframe. I don't
11 recall.
12 Q. Do you recall a letter being sent on or about
13 September 9, 2005 to every homeowner in the community
14 that advised that the petitioners -- and petitioners,
15 meaning those persons who signed the Petition for
16 Mediation -- were putting the purchase of the clubhouse
17 at risk?
18 A. I remember a letter going out. If that's the
19 date of the letter you're talking about, yes.
20 Q. Now, did the Board authorize that letter to be
21 sent?
22 MR. QUATTLEBAUM: Object to the form.
23 THE WITNESS: I'm sure the Board was well
24 aware of it.
25
00109
1 BY MS. LIVELY:
2 Q. What I'm asking is: As president of the Master
3 Association, did you authorize a letter to be sent to
4 the homeowners indicating that the petitioners were
5 putting the purchase of the clubhouse at risk by filing
6 a Petition for Mediation with the DBPR?
7 A. We authorized a letter to go out so that everyone
8 in the community would be aware of the situation and we
9 authorized that only after advice from counsel as to
10 what was appropriate to put in it.
11 Q. Did you read the letter prior to that letter
12 being sent out to every owner of --
13 A. I probably did, yes.
14 Q. When you say you probably did, take a second. Do
15 you specific -- have specific recollection of reviewing
16 that letter that stated that the petitioners were
17 putting the purchase of the clubhouse at risk?
18 A. I probably read that letter, yes. I have no
19 doubt I read it.
20 Q. How were the petitioners -- and the petitioners
21 being those members of Baywinds who signed the Petition
22 for Mediation with the Department of Business and
23 Professional Regulation -- how is that putting the
24 purchase of the clubhouse at risk?
25 MR. QUATTLEBAUM: Object to the form.
00110
1 THE WITNESS: Well, I think you have to take
2 the letter in its whole context, Ms. Lively.
3 BY MS. LIVELY:
4 Q. I'm asking you very specifically. As the
5 president of the association, you did indicate that you
6 authorized sending that letter. How would filing a
7 Petition for Mediation with the DBPR --
8 A. I beg your pardon?
9 Q. -- how would filing a Petition for Mediation with
10 the Department of Business and Professional Regulation
11 -- what was your understanding of how that would put the
12 purchase of the clubhouse at risk?
13 A. The fact that there might be turmoil in the
14 community was of grave concern to the entire Board and
15 to many homeowners who wanted to go forward with the
16 purchase of the clubhouse.
17 Q. But what I'm trying to understand and maybe if
18 you can clarify, you were president of the association.
19 So you probably have more knowledge than most of us as
20 to what was happening at that time. How did the
21 petition with the Department of Business and
22 Professional Regulation for mediation, how did that
23 place the purchase of the clubhouse at risk?
24 MR. QUATTLEBAUM: Form.
25 THE WITNESS: First of all, I don't accept
00111
1 your comment that I might have more knowledge
2 than others. The president does not necessarily
3 have more knowledge than the homeowners'
4 association. The president has defined functions
5 and those functions only.
6 BY MS. LIVELY:
7 Q. Okay. Why don't you -- what were the defined
8 functions that you had as the president of Baywinds
9 Master Association?
10 A. Basically, other than being a signature (sic) to
11 the checks, to run the meetings. That's what the
12 president's function is. Not to create policy, not to
13 have any more power in the vote.
14 Q. Well, then I'm glad you clarified that, but as a
15 Board member then -- I'm trying to understand the nexus
16 between the mediation, the request to mediate and the
17 purchase of the clubhouse. Let me ask you this: To the
18 best of your recollection, were the petitioners asking
19 to mediate any issues regarding the purchase of the
20 clubhouse?
21 MR. QUATTLEBAUM: Object to the form.
22 THE WITNESS: I don't recall if they were at
23 that specific time. I don't think so. I don't
24 think that that request was...
25
00112
1 BY MS. LIVELY:
2 Q. When the letter -- when the Board authorized
3 sending the letter in September of '05 --
4 A. Uh-huh.
5 Q. -- when the statement was made that the
6 petitioners were putting the purchase of the clubhouse
7 at risk, what is your understanding as to why the
8 mediation would put the clubhouse at risk?
9 A. Because it might potentially defer the whole
10 issue of the voting rights and therefore put off the
11 ability to negotiate with Lennar when they had told the
12 community that they had a third party potential buyer
13 and any delay was of concern to many homeowners and many
14 members of the Board.
15 Q. How was the voting -- the manner in which the
16 Master Board was elected, how was that tied into the
17 purchase of the clubhouse?
18 MR. QUATTLEBAUM: Object to the form.
19 THE WITNESS: By creating a procrastinated
20 timeframe of where it would not be a settlement
21 and the unity within the community going forward.
22 This issue could take months and years, as it is
23 right now.
24 BY MS. LIVELY:
25 Q. But if the mediation request was only related to
00113
1 the Seventh and Eighth Amendments and the voting
2 interests, can you please explain to me how is that tied
3 to the purchase of the clubhouse?
4 MR. QUATTLEBAUM: Objection, asked and
5 answered.
6 THE WITNESS: I think I just tried to and
7 that's the answer I have.
8 BY MS. LIVELY:
9 Q. Because there could be turmoil within the
10 community?
11 MR. QUATTLEBAUM: Object to the form.
12 Mischaracterizes the witness's testimony.
13 BY MS. LIVELY:
14 Q. Is that what you were telling me?
15 A. Well, this hasn't gone too far, I'd like to hear
16 it back then.
17 Q. No, I'm asking --
18 A. You know, I said it -- I said it once, I guess I
19 can say it again. There was concern that this type of
20 issue would create disharmony within the community and
21 the developer was pressing to move forward, and anything
22 that had anything that might affect potential action
23 within the community was something of concern. That's
24 all.
25 Q. Did --
00114
1 A. It was of concern. I can't say anything beyond
2 that.
3 Q. Did anybody from Lennar ever advise you that if
4 the petitioners were to continue with their request for
5 a mediation with the DBPR that the clubhouse deal would
6 be called off?
7 A. No. Lennar never advised us of that.
8 Q. Did anyone from Lennar ever advise the Board of
9 Baywinds that if there -- if the petitioners proceeded
10 in their pursuit of the mediation, that Lennar would
11 pull out the offer to purchase the clubhouse?
12 A. No, they never said that.
13 Q. Was there any discussion with Lennar or any
14 representative of Lennar regarding the DBPR Petition for
15 Mediation?
16 A. That, I don't know. Lennar probably became aware
17 of it, but I don't know if there was...
18 Q. As president of the association, did you have any
19 direct contact with Lennar regarding the Petition for
20 Mediation?
21 A. It might have been discussed. I don't -- it was
22 something that was very active within the community at
23 the time and Lennar's representative was very much aware
24 of things that were going on.
25 Q. But Lennar turned over the community, correct?
00115
1 A. Yes, she was still aware.
2 Q. How was she --
3 A. Because she -- because they came -- they're still
4 building in -- they're still building there.
5 Q. Who is she?
6 A. Sharon Caputo.
7 Q. So Sharon Caputo, after turnover, continued to
8 have regular contact regarding Baywinds?
9 A. No, but she was there because they were still
10 building there, as they still are.
11 Q. What is -- do you know, by any chance, what is
12 Sharon Caputo's role within Lennar?
13 A. I don't know what it is presently.
14 Q. Was she on the Baywinds site on a regular basis?
15 A. On the what?
16 Q. At the Baywinds Community; was she there on a
17 regular basis?
18 A. I think she came prior to the purchase of the
19 club just to be there for that time, yes, because they
20 still owned the club.
21 Q. Was she on site?
22 A. Not --
23 Q. Did she have an on-site office?
24 A. Did she have an on-site office? No, she never
25 had an on-site office.
00116
1 Q. When did Baywinds Community actually purchase the
2 clubhouse?
3 A. Sometime in October of 2005, I believe.
4 Q. And in the -- the purchase of the clubhouse is
5 really not, at this point, an issue in the case, but am
6 I misunderstanding that the community voted to purchase
7 the clubhouse in the summer of '05? Is that correct?
8 A. Would you repeat that?
9 Q. When was there a vote on the purchase of the
10 clubhouse? When did that occur?
11 A. That wouldn't have occurred until there was an
12 actual determination later in the summer. I don't know
13 the exact date.
14 Q. So the vote that was bundled with the Seventh
15 Amendment issue, what was that vote on exactly? Can you
16 explain --
17 A. I beg your pardon?
18 Q. Remember earlier, we were talking about this
19 bundle of package of votes in June of '05?
20 A. Uh-huh.
21 Q. Well, what was that vote regarding the clubhouse?
22 Tell me exactly what did the people vote on there?
23 A. At that time, Lennar wanted to have a vote that
24 would tie together the purchase of the clubhouse with
25 the turnover.
00117
1 Q. So the issue regarding the clubhouse had been
2 voted on; is that correct?
3 A. No --
4 MR. QUATTLEBAUM: Object to the form.
5 THE WITNESS: No, because we never proceeded
6 with that basis and it could never be consummated
7 for legal reasons that the attorneys decided. So
8 we never proceeded on a basis of purchasing the
9 clubhouse at the date of the turnover.
10 BY MS. LIVELY:
11 Q. Who advised you that the Petition for Mediation
12 could interfere with the purchase of the clubhouse?
13 A. I don't know whether anyone advised us. I think
14 that that became a concern -- a concern when that came
15 about.
16 Q. When you said it became a concern, who first
17 raised the issue that a Petition for Mediation could
18 interfere with the purchase of the clubhouse?
19 A. I have no idea who first raised it. I can only
20 tell you it was discussed, and not only with ourselves
21 but with the management company because they had to send
22 out the letter and I believe the attorneys saw the
23 letter before it went out.
24 Q. Do you know who wrote the letter; actually
25 drafted and authored the letter?
00118
1 A. No, I don't. I honestly don't.
2 Q. Who was the property manager at that time?
3 A. It was MMI. Miami Management, okay, Miami
4 Management.
5 Q. Do you know the name of the --
6 A. Well, the property -- Cathy Carr was the vice
7 president in charge of Baywinds.
8 Q. Who signed that letter; do you know?
9 A. I'm not sure if I did or she did. I really don't
10 recall. It was a while back. If you have a copy of it,
11 you'll know yourself. I know the letter was sent, I
12 just don't recall who signed it.
13 Q. There was also a letter that was sent to the
14 petitioners; is that correct? The petitioners being the
15 persons who signed the Petition for Mediation with the
16 DBPR.
17 A. Perhaps you'll have to refresh me on that.
18 Q. Are you aware of a letter that went out to each
19 petitioner stating that they had -- their petition had
20 no merit?
21 MR. QUATTLEBAUM: Object to the form.
22 THE WITNESS: As I said, you'll have to
23 refresh me with the letter.
24 BY MS. LIVELY:
25 Q. Okay. I'm going to bring one more up. Do you
00119
1 have any independent recollection of a letter being sent
2 out that stated that the association would hold each and
3 every person who signed the Petition for Mediation
4 personally liable for damages that could potentially
5 exceed three million, five hundred dollars?
6 A. I remember there was a letter that contained
7 something along those lines. I'm not sure if that's the
8 exact wording.
9 Q. That's okay, and it may not be. But the three
10 point five million dollars, what was that number based
11 on?
12 A. That number would have been based upon some value
13 of the clubhouse. I'm presuming.
14 Q. Did the Board authorize a letter going -- did the
15 Board authorize the letter that went out threatening to
16 hold individuals personally liable for three point five
17 million dollars worth of damages regarding the Petition
18 for Mediation?
19 A. I don't know about the word "threatened" --
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: I'm sorry. I don't know about
22 the word "threatened." I don't accept that term.
23 BY MS. LIVELY:
24 Q. Well, if you got a letter stating that because of
25 signing a Petition for Mediation, you may be held
00120
1 personally liable for three point five million dollars
2 in damages, would you consider that a threat?
3 MR. QUATTLEBAUM: Object to the form.
4 THE WITNESS: Well, I don't know if I would
5 consider it a threat or not, to be honest with
6 you.
7 BY MS. LIVELY:
8 Q. If you received a letter from your association
9 stating that the association may hold you personally
10 liable for three point five million dollars in damages
11 for signing a petition, would you reconsider your action
12 in so signing?
13 MR. QUATTLEBAUM: Object to the form.
14 THE WITNESS: Ms. Lively, I can't tell you
15 what I would do unless I were in that
16 circumstance.
17 BY MS. LIVELY:
18 Q. Did you review that letter prior to the letter
19 going out?
20 A. I'm sure I saw it.
21 Q. And based on the review, what was your reaction
22 whenever individuals were being advised that if they
23 continued with the Petition for Mediation, they could be
24 held liable for three point five million dollars in
25 damages?
00121
1 MR. QUATTLEBAUM: Object to the form.
2 THE WITNESS: This issue was a very -- how
3 do I want to put it -- a hot topic at the time.
4 BY MS. LIVELY:
5 Q. What do you mean by, "It was a hot topic"?
6 A. Well, it was a very significant issue, I'm sure.
7 Obviously it was. I guess that's one of the reasons why
8 we're talking about it now. It was a significant issue
9 within the community that was causing a lot of concern
10 as to what was going to happen, the petition and other
11 matters. It's not a simplistic issue. And there were
12 contemplated various ramifications that would happen
13 should this matter continue to go forward. The
14 objective was always to cool the rhetoric, to get away
15 from potential legal matters and to try to work together
16 with unity. Okay? That's what the objective was,
17 period.
18 Q. How did the Board strive to reach your objective
19 as to unity?
20 MR. QUATTLEBAUM: Object to the form.
21 BY MS. LIVELY:
22 Q. Was that -- the goal of the Board was to achieve
23 unity, correct?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: That has been, I believe, the
00122
1 objective of the Board.
2 BY MS. LIVELY:
3 Q. And when you say that has been the objective of
4 the Board, can you explain what you mean when you say,
5 "I believe that was the objective of the Board"?
6 A. Because I will tell you what I believe about the
7 others and tell you what I know about myself.
8 Q. And why don't you tell me, was there ever any
9 discussion with the Board, the members of the Board as
10 to how the Board could achieve unity and control
11 rhetoric?
12 MR. QUATTLEBAUM: Object to the form.
13 THE WITNESS: The Board is always -- at
14 least when I was on the Board, I can't speak for
15 now -- took a position always that they wanted to
16 find ways for the community to have harmony, not
17 to have disharmony and to move forward and to
18 have a voting process, whatever the community
19 wanted. Period. That's what the objective was.
20 I myself -- I'm going to take the time now to
21 answer you -- I myself sent specific e-mails to
22 some of the plaintiffs, specifically stressing
23 that, and encouraging that. And I have no doubt
24 in my mind that that Board was totally committed
25 to having a harmonious community and strove for
00123
1 that.
2 BY MS. LIVELY:
3 Q. As president of the Master Association, president
4 of the Board, do you believe that sending a letter
5 telling people who signed the petition if they pursue on
6 this venture, they could be personally liable for three
7 point five million dollars in damages, do you believe
8 that was achieving harmony?
9 MR. QUATTLEBAUM: Object to the form.
10 THE WITNESS: I don't think that that was
11 written to achieve harmony, I think it was
12 written to respond to something that was
13 occurring.
14 BY MS. LIVELY:
15 Q. When you say, "It was written to respond to
16 something that was occurring," what was the intent of
17 the letter to the persons who signed the Petition for
18 Mediation that they would be liable for three point five
19 million dollars in damages?
20 MR. QUATTLEBAUM: Object to the form.
21 BY MS. LIVELY
22 Q. What was the purpose of that letter?
23 A. The purpose of that letter was to point out that
24 this was a very serious matter.
25 Q. Let me ask you -- maybe if I go back a little
00124
1 bit, can you give me a -- you're very involved as the
2 president of the association -- what was your
3 understanding as to what is mediation?
4 A. My understanding of what is mediation?
5 Q. Yes, sir.
6 A. When sides of an issue are brought together to
7 try to resolve the matter outside of a court
8 environment.
9 Q. Well, wouldn't it be really -- if the board's
10 goal was to achieve harmony and unity and avoid
11 litigation, what harm would there be in the parties, the
12 association and the petitioners, attending a mediation
13 to try to achieve those very goals?
14 A. I think sometimes a mediation is very helpful.
15 However, you have to look at the entire environment of
16 what was occurring and the types of messages that were
17 going about. And you're asking me a question about a
18 specific part of this, not the totality of it, and I'm
19 saying to you that I'm totally convinced that there was
20 no desire other than to have a harmonious community. A
21 difference of opinion on certain legal matters, but a
22 desire to have a harmonious community.
23 Q. So it's your position then that reaching the goal
24 of a harmonious community would be done by sending
25 letters to persons who signed -- requested mediation --
00125
1 sending a letter telling them they could be responsible
2 for three point five million dollars in damages, that
3 was a better way to achieve the goal than attending
4 mediation?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: I didn't say that. And there
7 are many ways to achieve harmony and I think
8 throughout the past four or five years, there's
9 been considerable harmony in the community. And
10 I think there's an open Board and I think every
11 resident and every member has had an opportunity
12 to speak, and speak their mind. There is no
13 attempt to curtail anyone from expressing their
14 ideas or their opinions.
15 BY MS. LIVELY:
16 Q. Based, at the time as your role of president of
17 Baywinds' Master Association, what was your -- what did
18 you perceive to be the harm in attending and
19 participating in mediation?
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: There's not necessarily a
22 harm. There is a concern as to the long term
23 objectives. It was a known fact that those
24 individuals, particularly the plaintiffs, did not
25 believe that the current Board was properly
00126
1 constituted.
2 BY MS. LIVELY:
3 Q. Did the Board deem that to be a threat to the
4 longevity of the persons acting as the Board of
5 directors?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: Could you please repeat that?
8 I couldn't hear you.
9 BY MS. LIVELY:
10 Q. Was it a perceived threat that maybe the members
11 of the Board could no longer serve in the capacity as
12 Board members if they were successful in invalidating
13 the Eighth Amendment?
14 MR. QUATTLEBAUM: Object to the form.
15 THE WITNESS: Absolutely not. We serve as
16 volunteers. There's no salary, there is no
17 perks, there's work.
18 BY MS. LIVELY:
19 Q. The mediation that was requested through the
20 Department of Business and Professional Regulation, were
21 you aware that that was not a lawsuit?
22 MR. QUATTLEBAUM: Object to the form.
23 THE WITNESS: Yes, I think I'm aware of
24 that. I might have been curious at the
25 particular time, but...
00127
1 BY MS. LIVELY:
2 Q. And was that not an opportunity for the
3 association, through their Board, to sit down with the
4 petitioners to try to resolve the issue?
5 MR. QUATTLEBAUM: Object to the form.
6 BY MS. LIVELY:
7 Q. Was that opportunity presented through the
8 mediation?
9 MR. QUATTLEBAUM: Same objection.
10 THE WITNESS: That might have been one
11 opportunity, yes.
12 BY MS. LIVELY:
13 Q. Why did the Board and the association fight so
14 hard against the mediation process?
15 MR. QUATTLEBAUM: Object to the form.
16 THE WITNESS: Because the Board didn't --
17 did not believe that that was a necessary tool.
18 BY MS. LIVELY:
19 Q. Why did the Board not believe that was a
20 necessary tool to participate in a mediation in an
21 attempt to resolve disputes within the community?
22 MR. QUATTLEBAUM: Object to the form.
23 THE WITNESS: I can only tell you that was
24 the prevailing feeling at the time.
25
00128
1 BY MS. LIVELY:
2 Q. Why?
3 MR. QUATTLEBAUM: Object to the form.
4 THE WITNESS: Because it was felt that the
5 way it was going about was not the way to arrive
6 at that.
7 BY MS. LIVELY:
8 Q. How would you have suggested that those persons
9 challenging the amendment -- how do you suggest would
10 have been the proper mechanism for them to proceed?
11 A. I'll tell you how.
12 Q. Please.
13 A. Call for another election as to the desires of
14 the membership. Put out a petition which is available
15 to those people to have it on the agenda and then call
16 for an election as to how the membership would like its
17 voting to go forward. Period. Simple as that. And see
18 if the current membership -- and I'm not a member of the
19 Board, I have nothing to gain. But I'm answering you,
20 Ms. Lively and that's the way it could have been done.
21 Q. And you believe that's the proper mechanism --
22 A. I believe that that's a very fair mechanism, but
23 then you're allowing the membership and not parties to
24 negotiate. You're allowing the membership to vote how
25 they want to vote. And that's the way it should be.
00129
1 Q. During an August 29th, 2005 Master Board
2 meeting --
3 A. August when, 29th?
4 Q. August 29th, 2005, do you recall a meeting
5 wherein members of the community were told that the
6 Petition for Mediation could cost the owners two point
7 five million dollars?
8 A. I'm -- I -- I -- I -- I'm sure the topic was
9 discussed. I don't know what may have been said
10 specifically.
11 Q. Let's not worry about the date. Let me put it
12 this way: After --
13 A. I'm not talking about the date. I'm aware that
14 that might have been discussed, it probably would have
15 as a recurring topic. But I don't recall what numbers
16 might have been said. I don't have that fresh in my
17 mind.
18 Q. Do you recall a meeting after the Petition for
19 Mediation had been filed where the members who were
20 attending were advised that the Petition for Mediation
21 could cost the owners a lot of money?
22 A. As I said, I'm sure that that topic was
23 discussed.
24 Q. Was there a statement made, if you recall, at
25 this Board meeting, the meeting after the filing of the
00130
1 Petition for Mediation -- and I've got August 29th, but
2 I may be off on the date -- that owner members were
3 advised that maybe some of you folks need to get the
4 attention of Dr. Amero?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: I -- I don't know specifically
7 if that was said.
8 BY MS. LIVELY:
9 Q. Was there a meeting -- let me get a little --
10 A. There probably was. I don't have the dates of
11 all the Board meetings.
12 Q. I understand. Do you recall a meeting after the
13 filing of the Petition for Mediation with the DBPR when
14 owners were advised that the Petition for Mediation
15 could cost a couple million dollars and that the Board
16 needed the help of the members to get the attention of
17 such as Bernie Amero?
18 A. As I said, I'm not denying that the topic would
19 have been called. As a matter of fact, I believe there
20 was an invitation put out to Dr. Amero to attend a Board
21 meeting to have it be discussed openly among the
22 community.
23 Q. Actually, isn't it true, sir, that there was an
24 invitation for Bernie Amero and the others to stand up
25 and be recognized?
00131
1 A. I don't know if it was that meeting, but I think
2 it was. It might have taken place, yes.
3 Q. Why would, as president -- and isn't it true,
4 sir, that you were the one who actually asked that Dr.
5 Amero and the other signers stand up to be identified
6 from the community?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: I might have been the one. I
9 don't...
10 BY MS. LIVELY:
11 Q. Why did you ask those individuals to stand up to
12 be identified?
13 A. And at what time did I ask for that? At what
14 meeting?
15 Q. I believe it to be, based on my notes, the August
16 29th meeting; the same meeting wherein owners were
17 advised that this would cost them two point five million
18 dollars and somebody needs to get Dr. Amero's attention.
19 MR. QUATTLEBAUM: Object to the form.
20 BY MS. LIVELY:
21 Q. Do you recall this meeting, sir?
22 A. I recall that the topic was probably discussed.
23 Whether it was discussed on August 29th, 2005, I don't
24 know specifically. I'm sure the topic was discussed.
25 Q. And --
00132
1 A. I can tell you that the -- you asked for an
2 answer and I'll give them to you. But I know -- you're
3 looking at Mr. (sic) Amero, I don't know if you're
4 speaking to him or to me, to be honest. 'Cause you just
5 pointed at him when you said that.
6 Q. Well, I pointed at him to identify --
7 A. I know Dr. Amero. I've known him for a long
8 time. Those individuals were asked to stand up because
9 they, themselves, took a position, and many residents
10 did not know who some of these folks were, and it was
11 action to be taken against the community, and many folks
12 wanted to know. There's nothing wrong -- I'm asked to
13 stand up in front of the community, I stand up.
14 Q. Well, do you have any knowledge as to what was
15 meant when the statement was made that, "Maybe some of
16 you folks need to get the attention of Dr. Amero" --
17 A. Absolutely.
18 Q. -- "and Justice Raab"? What was meant by that
19 statement?
20 A. I don't know, specifically. But I can tell you
21 why it might have been said. It might have been said to
22 sit down and to find out why he wants to proceed with
23 this matter, because it's creating a lot of concern
24 within the community. And the attention of the Board is
25 going more towards that than perhaps it should when it's
00133
1 new and has to address many, many issues. So people
2 were saying, what do you do with this? The answer is:
3 Go to the leaders, just like people were told to come
4 and talk to me.
5 Q. Wherever people were told to get their attention,
6 what was meant by that statement; "Get their attention"?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: Get their attention. I think
9 that get their attention on the severity of what
10 was happening.
11 BY MS. LIVELY:
12 Q. Do you recall what happened after -- at this
13 meeting -- and again, we're not worried about the date
14 at the moment -- but the meeting when people were
15 advised that this could cost them two point five million
16 dollars, the membership was encouraged to get their
17 attention and the individual signers were told to stand
18 up; what happened after the meeting, after that; do you
19 recall?
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: You could refresh my mind. I
22 don't recall.
23 BY MS. LIVELY:
24 Q. Well, was one of the former plaintiffs almost
25 physically attacked?
00134
1 MR. QUATTLEBAUM: Object to the form.
2 THE WITNESS: You're talking about Ron
3 Kaiman.
4 BY MS. LIVELY:
5 Q. Mr. Kaiman.
6 A. Yes, Mr. Kaiman. I know him, I know Mr. Kaiman.
7 Q. He was -- somebody started to physically attack
8 him, correct?
9 A. No, that's not correct. To my understanding, I
10 think that there was some loud speaking going on.
11 Q. People became angry, correct?
12 A. They became agitated, yes.
13 Q. And as president of the association, and somebody
14 who's been an executive in the business field, isn't it
15 reasonable that whenever individuals are told that the
16 actions of a few people could cost them two point five
17 million dollars and to get their attention, wouldn't it
18 be a logical conclusion that they would become agitated
19 at that point?
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: No, I'm not jumping to logical
22 conclusions on that, Ms. Lively.
23 BY MS. LIVELY:
24 Q. What did you do to stop the loud statements and
25 the --
00135
1 A. I think we adjourned the meeting.
2 Q. Immediately?
3 A. I think as soon as it became very evident that
4 the agitation was not going to stop by itself.
5 Q. Is it your testimony that you do not expect
6 people to become agitated and angry after being told
7 that this could cost them two point five million
8 dollars?
9 MR. QUATTLEBAUM: Object to the form.
10 THE WITNESS: I'm saying I don't believe
11 that that's the reason why there was what may be
12 called agitation.
13 BY MS. LIVELY:
14 Q. Why did people become agitated?
15 A. You'll have to ask them.
16 MR. QUATTLEBAUM: Object to the form.
17 BY MS. LIVELY:
18 Q. Well, you were directing the meeting, correct?
19 A. I was what?
20 Q. Were you in charge of that meeting?
21 A. I presided over the meeting, yes.
22 Q. How shortly after the two point five million
23 dollars statement, get their attention and stand up, how
24 soon after that did the group become agitated?
25 MR. QUATTLEBAUM: Object to the form.
00136
1 THE WITNESS: I don't know. You'll have to
2 check the records and see how quickly it was
3 adjourned after that.
4 BY MS. LIVELY:
5 Q. Were there any other issues discussed at that
6 meeting?
7 A. I cannot recall the total agenda of a meeting
8 that took place two, three years ago.
9 Q. Do your meetings typically result in agitation
10 and verbal and physical attacks?
11 A. No, absolutely not.
12 MR. QUATTLEBAUM: Object to the form.
13 BY MS. LIVELY:
14 Q. How many meeting that you've presided over have
15 resulted or concluded in that manner?
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: I don't think there's ever
18 been any physical attacks in any meeting.
19 BY MS. LIVELY:
20 Q. Verbal attacks?
21 A. On me, from homeowners, yes, plenty. Two of whom
22 are sitting in this audience.
23 Q. Pardon me?
24 A. But that's the way life is. You learn to take
25 that when you accept responsibilities.
00137
1 Q. Did you attend mediation on November, 2005 via
2 telephone?
3 A. Yes, I don't recall the date, but I -- there was
4 one by telephone, yeah.
5 Q. Mediation resulted in an impasse, correct?
6 A. I believe that's correct, yes.
7 Q. Shortly after the mediation, within that
8 afternoon, that evening, did you send an e-mail that the
9 mediation had been declared an impasse and that the case
10 will be vigorously defended if the petitioners choose to
11 file a lawsuit?
12 A. I may have very well said something like that.
13 That sounds like something that would have been said
14 after mediation.
15 Q. Now, shortly thereafter, did you receive an
16 e-mail from a Mr. John Mikus wherein the petitioners of
17 -- on the mediation petition were referred to as a small
18 group of dissidents?
19 A. I don't know, I get many e-mails and one might
20 have come from John Mikus as well as the others. I...
21 Q. Was there any communication or activity that you
22 recall between you and any of the plaintiffs between
23 November '06 and whenever -- '05 and February '06
24 whenever the lawsuit was filed?
25 MR. QUATTLEBAUM: Object to the form.
00138
1 THE WITNESS: Ms. Lively --
2 BY MS. LIVELY:
3 Q. Anything you recall in particular?
4 MR. QUATTLEBAUM: Object to the form.
5 THE WITNESS: I can't recall specifically.
6 There may very well have been. I don't...
7 BY MS. LIVELY:
8 Q. Were there any attempts by Dr. Amero or any of
9 the other plaintiffs to try to negotiate any further on
10 the issues prior to filing the lawsuit?
11 MR. QUATTLEBAUM: Object to the form.
12 THE WITNESS: Negotiate with whom?
13 BY MS. LIVELY:
14 Q. Yourself, the Board.
15 A. I don't know how the Board could negotiate
16 something that is a legal matter. How can a Board
17 negotiate something that has to be determined by law?
18 Q. Were there any efforts by any of the plaintiffs
19 to resolve issues with you personally prior to filing
20 the lawsuit?
21 A. They may have contacted me. I wouldn't say that
22 they didn't.
23 Q. After the lawsuit was filed, did you authorize
24 Mr. Krivok to file a lawsuit naming the plaintiffs as
25 defendants in a lawsuit brought --
00139
1 A. File a lawsuit?
2 MR. QUATTLEBAUM: Object to the form.
3 THE WITNESS: We never filed a lawsuit, no.
4 BY MS. LIVELY:
5 Q. Were you aware -- strike that. Did Mr. Krivok
6 advise the Board that he was preparing to file a lawsuit
7 naming each of the plaintiffs as defendants?
8 A. I don't have a recollection of that.
9 Q. Were you aware that Mr. Krivok filed a lawsuit
10 naming Bernie Amero, Ira Raab, Howard Horowitz, et
11 cetera, as defendants?
12 MR. QUATTLEBAUM: Object to the form.
13 THE WITNESS: Is that on behalf of the
14 association?
15 BY MS. LIVELY:
16 Q. Were you made aware of a lawsuit filed by Mr.
17 Krivok against the plaintiffs naming the plaintiffs in
18 this lawsuit as defendants?
19 MR. QUATTLEBAUM: Object to the form. And
20 also to the extent that if it's anything that he
21 learned through discussions with me, he's not
22 going to reveal.
23 BY MS. LIVELY:
24 Q. Were you ever made aware of that?
25 MR. QUATTLEBAUM: Other than through me.
00140
1 THE WITNESS: Pardon me?
2 MR. QUATTLEBAUM: Other than through me.
3 THE WITNESS: I don't believe so, no. I'm
4 not...
5 BY MS. LIVELY:
6 Q. Who authorized payment of the legal invoices to
7 the association attorney?
8 A. Well, the process would go from the property
9 manager to the treasurer. For all invoices, per se.
10 Q. Did you, as president of the association, ever
11 review the legal invoices submitted by your law firm?
12 A. Yes, I reviewed quite a few invoices of all
13 types.
14 Q. I'm talking specifically regarding after the
15 lawsuit was filed. After our lawsuit we have today,
16 after that lawsuit was filed, did you monitor the
17 invoices submitted by Mr. Krivok?
18 A. I wouldn't say monitor.
19 Q. Review.
20 A. I looked at them, yes.
21 Q. At any point in time in reviewing the invoices
22 submitted by Mr. Krivok, were you aware as to his
23 efforts to proceed on the lawsuit against the
24 plaintiffs?
25 MR. QUATTLEBAUM: Object to the form.
00141
1 THE WITNESS: I believe if that's the same
2 lawsuit you're talking about. I didn't
3 participate in any other discussions with him on
4 it.
5 BY MS. LIVELY:
6 Q. When Mr. Krivok sent out letters signed for the
7 Board, did the Board review those letters?
8 MR. QUATTLEBAUM: Object to the form.
9 THE WITNESS: I would say they may not have
10 reviewed every single letter, but we were
11 appraised (sic) of the letters before going out.
12 BY MS. LIVELY:
13 Q. Now, to the best of your recollection, did Mr.
14 Krivok send out letters signed "For the Board," without
15 the Board approving first said letter?
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: I cannot aware (sic) of any
18 that would have been done that way.
19 BY MS. LIVELY:
20 Q. Did you authorize the association attorney to
21 send a letter to -- well, this was directed to the
22 defendants -- I'm sorry, I'm sorry, to the plaintiffs in
23 this action. Did you authorize Mr. Krivok to send a
24 letter basically advising that they were going to be
25 sued if they did not dismiss him, Mr. Krivok, as a
00142
1 defendant in this lawsuit?
2 MR. QUATTLEBAUM: Object to the form.
3 THE WITNESS: I can't say. I would have to
4 see the letter to see if...
5 BY MS. LIVELY:
6 Q. But I'm asking if you have any recollection of
7 this activity first.
8 MR. QUATTLEBAUM: Object to the form.
9 THE WITNESS: Could you repeat it again,
10 then?
11 BY MS. LIVELY:
12 Q. Certainly. Did the Board authorize James Krivok
13 to send a letter to the plaintiffs in this lawsuit
14 advising them if they did not dismiss him as a defendant
15 that he would file a lawsuit against them; yes or no?
16 THE WITNESS: I'm not aware of that.
17 BY MS. LIVELY:
18 Q. Are you aware as to whether or not the Board
19 paid invoices to Mr. Krivok for that type of activity?
20 A. Off the top of my head, no. There were many
21 invoices and many items. I don't...
22 Q. When did you first become aware that Mr. Krivok
23 had filed a lawsuit naming each of the plaintiffs in
24 this case as a defendant?
25 A. I can't even answer that. It would have been
00143
1 whatever timeframe it was this was going on.
2 Q. You don't recall when you first learned of that?
3 A. I wouldn't even -- I said at the timeframe -- you
4 said when did I become aware. I don't know that that
5 letter went out, it may have. And if it went out, it
6 went out at the time that the lawsuit took place or was
7 first initiated, I assume.
8 Q. Did the Board ever meet to discuss actions to be
9 taken by Mr. Krivok in an effort to force the plaintiffs
10 to dismiss their lawsuit?
11 MR. QUATTLEBAUM: Object to the form.
12 THE WITNESS: I don't know what "to force
13 them" means. I don't know what you mean by "to
14 force them."
15 BY MS. LIVELY:
16 Q. Prior to Mr. Quattlebaum becoming involved, after
17 you initially were served with the lawsuit -- and I
18 don't want you to tell me specific conversations, I
19 don't -- we're going to respect attorney/client
20 privilege, certainly -- but was there a meeting with
21 Mr. Krivok after you were served with this lawsuit?
22 A. I'm sure there was.
23 Q. And that was February '06, correct, when this
24 lawsuit was initiated?
25 A. Yes, uh-huh.
00144
1 Q. And you indicated before that if Mr. Krivok sent
2 a letter for the Board, the Board would have approved
3 that letter; is that correct?
4 MR. QUATTLEBAUM: Object to the form.
5 THE WITNESS: Anything that was sent out on
6 behalf of the association, I believe we were
7 aware of all those letters prior to them going
8 out.
9 BY MS. LIVELY:
10 Q. I'm going to show you what we're going to mark as
11 Number 1 and ask that you turn to page 2.
12 A. Yes.
13 (A letter dated February 20, 2006 was marked
14 for identification as Plaintiff's Exhibit Number
15 1 and is attached hereto.)
16 BY MS. LIVELY:
17 Q. And where it states "Sincerely, James Krivok, For
18 the Board."
19 A. May I read it?
20 Q. Absolutely. Have you ever seen this letter?
21 A. I may have seen -- I may have seen it, but this
22 is not a letter that we would have been involved in.
23 Q. Sir, look under the name James N. Krivok --
24 A. I see that.
25 Q. -- where it says, "For the Board."
00145
1 A. I can see that, Ms. Lively. I'm saying this is
2 not the type of letter that we would be involved in
3 because this seems to be a matter between Mr. Krivok and
4 -- well, he wrote this to you.
5 Q. But it does state, "For the Board," correct?
6 A. Yes, it does. Yes, it does.
7 Q. Have you seen this letter before?
8 MR. QUATTLEBAUM: Object to the form.
9 BY MS. LIVELY:
10 Q. Have you seen this letter prior to today?
11 A. I heard you. There are many, many letters. I'm
12 trying to think back. I don't know. I might have seen
13 this letter, but this does not seem like a letter that
14 we would have authorized, to be very honest. I don't
15 think it's a Board matt -- as I'm trying to read the
16 letter, this seems to be a matter that Mr. Krivok --
17 that he's bringing about.
18 Q. Okay. Now --
19 A. If I read it correctly.
20 Q. And the lawsuit in which we're in a deposition
21 for today was filed on or about February 14, 2006. Do
22 you agree with that date?
23 A. Yes.
24 Q. This letter's dated February 20th, 2006.
25 A. Uh-huh.
00146
1 Q. And I'm looking at the very bottom of the page,
2 the second page, under the "For the Board."
3 A. Yes.
4 Q. Where it also has the initials CC and says, "The
5 association."
6 A. Uh-huh.
7 Q. So did you receive a copy of this letter on or
8 about February 20th, 21st, 2006?
9 A. I don't know. I'd have to think on whether I did
10 or didn't.
11 Q. Did the association pay Mr. Krivok to prepare,
12 draft and send this letter?
13 A. I could not tell you that off the top of my head.
14 I don't believe that it is an association matter, based
15 on my reading of the letter.
16 Q. But what I asked you was whether the association
17 paid for them.
18 A. I don't know precisely, Ms. Lively. I don't have
19 all the invoices in front of me, nor do I recall
20 specifically.
21 Q. Was there discussion between the Board regarding
22 authorizing Mr. Krivok to take this type of action --
23 A. I don't believe so. As I said --
24 Q. -- the letter?
25 A. -- my quick reading of this letter, it's a letter
00147
1 that's Mr. Krivok's personal letter. When I say
2 personal, dealing with himself and the plaintiffs, as
3 I'm reading it. I'm trying to read the letter while
4 you're asking me questions. I don't believe that that's
5 a -- was something that was a Board matter.
6 Q. So if the Board paid for Mr. Krivok's activity in
7 writing that letter and filing a lawsuit against the
8 plaintiffs herein, that was not authorized by the Board?
9 MR. QUATTLEBAUM: Object to the form.
10 THE WITNESS: It might have been approved
11 and paid, and if it was, it should be looked
12 into.
13 BY MS. LIVELY:
14 Q. I'm sorry?
15 A. If it was paid and if it was incorrectly paid, it
16 should be looked into.
17 Q. Who would look into that?
18 A. I would say the treasurer would most likely do
19 most of the follow-up. That's the typical process.
20 Q. Who was the treasurer during that period of time?
21 A. That's been Karen Israel.
22 Q. So then would you direct me to Karen Israel as
23 far as following up as to whether or not the Board
24 authorized payment of invoices to --
25 A. I'm not directing anyone. I'm saying that if
00148
1 this was not something that should have been written as
2 far as the Board is concerned, if we were charged and
3 paid, then that should be brought to the attention of
4 them and we should be reimbursed, just like other
5 vendors who have incorrectly billed something. It could
6 happen. If it was a mistake and it was not picked up, I
7 don't know if it was something that was paid, I don't
8 know if it was something that was followed up on or not.
9 I'm simply addressing your question based on the letter
10 that you put in front of me. If there was an incorrect
11 payment, it should be dealt with; that's all.
12 Q. Does anybody audit the invoices that are paid?
13 A. When you say audit, what do you mean?
14 Q. Review, to audit, to make sure that they're valid
15 expenses that are being paid by the members' money.
16 A. I think that that is done.
17 MR. QUATTLEBAUM: Object to the form.
18 THE WITNESS: There is a process and that
19 process goes to the property manager who does the
20 initial approval of all invoices then to whoever
21 is signing the checks and the treasurer, as well.
22 BY MS. LIVELY:
23 Q. Did the Board of Directors, during the time that
24 you were serving as president, did the Board make any
25 determination or decision as to pursuant fees or
00149
1 assessments that should have been paid by Lennar?
2 A. Please clarify what you mean by that.
3 Q. After turnover, was it your understanding that
4 Lennar owed money to the association for assessments?
5 A. Are you talking about the deficit funding?
6 Q. No, as to regular assessments.
7 A. They pay on a monthly basis.
8 Q. And what is this number based upon? How did you
9 determine -- how did the Board determine the amount of
10 assessments attributable to Lennar?
11 A. It's determined by the formula that Lennar
12 basically agreed that is payable, the fact that they
13 would be responsible for and agreed to. You're shaking
14 your head.
15 Q. I'm really confused. So basically --
16 A. Assessments are based upon a certain formula.
17 Q. What is the formula in the Baywinds Community?
18 A. I don't have the formula in my head.
19 Q. How do you pay your assessments? You're a
20 homeowner, correct?
21 A. Yes, I am.
22 Q. How do you pay your assessments?
23 A. I pay it monthly.
24 Q. And what amount of money do you pay monthly?
25 A. What does -- I'm not sure the amount of money is
00150
1 relevant, what we pay -- what I pay as an assessment. I
2 think you're trying to get at something, but I'm not
3 sure that the way you're asking it is the best way to
4 ask it. That's why I'm asking you to clarify.
5 Q. What I'm asking you is as follows: Are the
6 assessments broken up equally amongst the homeowners?
7 A. Yes. Do all homeowners pay the same assessment;
8 is that what you mean?
9 Q. Yes.
10 A. Yes, the answer to that is yes.
11 Q. So Dr. Amero, Justice Raab, Mr. Ellick, Ms.
12 Kaiser, each person pays the same amount of dues,
13 correct?
14 A. That's correct.
15 Q. And that's because they each own one residence,
16 correct?
17 A. That's correct.
18 Q. As to Lennar, how is it determined what amount of
19 money Lennar pays each and every month?
20 A. Determined by the homes that aren't closed.
21 Q. During your tenure as the president, was Lennar
22 paying the true amount of money for each and every home
23 that they were currently in control of?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: To the best of our knowledge,
00151
1 yes. Were they sometimes late, yes.
2 BY MS. LIVELY:
3 Q. Isn't it true that Lennar was paying less than
4 the actual amount of money that they would have owed for
5 assessments?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: I'm not sure what that
8 question means.
9 BY MS. LIVELY:
10 Q. Was Lennar paying, during your tenure as
11 president -- I don't expect you to know what's going on
12 today, per se -- but during your tenure as president,
13 was Lennar paying the equivalent amount of money for
14 each and every piece of property that had not been
15 turned over to an individual homeowner at that point?
16 A. Lennar paid an assessment, yes.
17 Q. Did they pay the amount of assessment equivalent
18 to each and every property that had not been conveyed to
19 an individual homeowner?
20 MR. QUATTLEBAUM: Object to the form.
21 THE WITNESS: I -- there may very well have
22 been questions and that would be open to how the
23 audit turned out to be. You know, there was a
24 procedure for regular payment from them. Did
25 they have to be monitored, yes.
00152
1 BY MS. LIVELY:
2 Q. After the audit -- after the turnover and then
3 after the audit, we know that there was about $290,000
4 owed in deficit funding, correct?
5 A. Yes, that's correct.
6 Q. After that, how does one -- how does the
7 association bill Lennar?
8 A. Through the property management company.
9 Q. Who makes the determination of how much money is
10 billed to Lennar for their monthly assessment?
11 A. That was done through the treasurer's follow-up.
12 Q. Was there a formula that was used by the Board?
13 A. Not by the Board, but the Board was probably
14 aware of it. But that's the treasurer's responsibility
15 to follow-up and deal with any of the matters of dealing
16 with unpayments (sic).
17 Q. Okay. Were the assessments determined at the
18 time of the annual budget? Would that be fair to say?
19 The association's yearly --
20 A. Yes, the members' assessments, yes.
21 Q. So when it came time to do the assessments, they
22 were based upon the total amount of lots, correct?
23 A. That's correct.
24 Q. Now, Lennar would have a certain amount of lots
25 that had not yet been conveyed to property owners,
00153
1 correct?
2 A. That's correct.
3 Q. Was Lennar billed for each and every piece of
4 property that had not yet been conveyed to a homeowner?
5 A. My understanding is that they were unless there
6 were an error, and are still.
7 Q. After you were served with the lawsuit in
8 February of '06, were you made aware of the allegation
9 that Lennar was not paying the full amount of money that
10 it should have been paying for assessments?
11 A. There might have been some communication that
12 there was a feeling along those lines.
13 Q. Well, if the communication was set forth in the
14 complaint, in the lawsuit, were you aware that one of
15 the complaints in the lawsuit was that the Board did not
16 collect the proper amount of money from Lennar?
17 A. Uh-huh.
18 Q. Is that yes?
19 A. Yes. I'm aware that that's been contended, yes.
20 Q. Now, what is your position -- strike that. As
21 former president, do you agree that there was additional
22 money that Lennar should have been paying for
23 assessments other than deficit funding?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: I can't agree to that. That's
00154
1 never been demonstrated as being factual. It's
2 been demonstrated as a belief.
3 BY MS. LIVELY:
4 Q. Did the Board take any action to investigate
5 whether or not additional --
6 A. Yes, the treasurer did.
7 Q. And who did that investigation?
8 A. That would have been the treasurer.
9 Q. And what is the name of the treasurer?
10 A. The treasurer is Karen Israel.
11 Q. So again, if you were directing me to the person
12 with the most knowledge as to whether or not the
13 assessment was proper, it would be Ms. Israel?
14 A. Of the Board members, yes.
15 Q. And other than Board members, who would I talk
16 to?
17 A. She's the only one I can think of that would have
18 the most knowledge.
19 Q. What about the property manager; is there
20 somebody with knowledge --
21 A. Well, the property manager is different -- it's a
22 new property management company for the last year. They
23 certainly can be contacted, as well.
24 Q. Who is the new property manager?
25 A. The property manager -- well, the property
00155
1 management company is Castle Management.
2 Q. Is there a CPA for the association that would
3 have the amount of money that Lennar should still be
4 contributing --
5 A. The CPA, the auditing firm is Gerstle and Rosen.
6 And you can certainly contact them.
7 MR. QUATTLEBAUM: I know you're jumping
8 ahead a little bit, but let her finish her
9 question first --
10 THE WITNESS: Oh, I thought she was
11 finished.
12 MR. QUATTLEBAUM: Because in about five more
13 seconds, the court reporter is going to kick one
14 of you.
15 THE WITNESS: Oh, I'm sorry.
16 BY MS. LIVELY:
17 Q. Karen Israel --
18 A. So ask your question again because I spoke too
19 soon.
20 Q. So Karen Israel would be the one to go to to
21 determine whether or not Lennar is being assessed the
22 full and proper amount of money for assessments to the
23 association?
24 A. Well, I think she would have the most information
25 to provide you.
00156
1 Q. Now, going back to this assessment issue that we
2 were discussing, the Board, during your tenure, did the
3 Board have regular or annual budget meetings?
4 A. Yes.
5 Q. Was that the time wherein the amount of
6 assessment to each homeowner was determined?
7 A. Yes.
8 Q. And at that time, is that the time when the
9 amount of assessment attributable to Lennar was
10 established?
11 A. Essentially, yes.
12 Q. And who -- did the Board vote to determine the
13 amount of money that would be assessed against Lennar
14 for the regular assessment?
15 A. I don't think the Board voted specifically that
16 way. And again, I think you'd have to ask the treasurer
17 what the amount is.
18 Q. But I'm asking you -- I'm still trying to get a
19 real good handle on how this is determined. Was Lennar
20 -- were Lennar's assessments based on --
21 A. In the total -- I'm sorry, go ahead.
22 Q. Was Lennar's assessment, on a monthly basis,
23 based upon the amount of individual assessment
24 multiplied by each and every unit that they currently
25 owned?
00157
1 MR. QUATTLEBAUM: Object to the form.
2 BY MS. LIVELY:
3 Q. Is that the basis for the assessment, based on --
4 A. Based on the homes that they still owned, yes.
5 Q. So the assessment that was due from Lennar then
6 is based upon the monthly assessment multiplied by the
7 total amount of homes still under the control of Lennar;
8 is that correct?
9 A. No.
10 MR. QUATTLEBAUM: Object to the form.
11 BY MS. LIVELY:
12 Q. Then what is the formula?
13 A. I don't have the formula in my head. But there
14 are some expenses that they do not pay. My
15 understanding and past experience. That's why I've
16 suggested that this is a matter that the treasurer would
17 have more information that could clarify for you as to
18 the particular formula.
19 Q. And when you say you know -- do you have any
20 knowledge as to the expenses that are not included as
21 being assessed against Lennar?
22 A. No, not off the top of my head.
23 Q. Did the Board take on any action to investigate
24 the issue as to additional monies owed by Lennar after
25 being --
00158
1 A. I believe the treasurer has had numerous
2 conversations both with the management company and with
3 Lennar.
4 Q. Did the Board ever direct Mr. Krivok to take
5 legal action against Dr. Amero related to the
6 Baywindslife.com Web site?
7 A. Take legal action?
8 Q. Yes, sir.
9 A. No, I'm not aware of any.
10 Q. Did the Board ever make any effort to shut down
11 or cause Dr. Amero to shut down the Baywindslife Web
12 site?
13 A. Not aware of any action taken by the Board.
14 Q. Did the Board ever direct or authorize legal
15 action to be taken wherein there were allegations as to
16 defamation or other actions related to the
17 Baywindslife.com Web site?
18 A. The Board? No.
19 Q. I want to go back briefly to the whole issue with
20 the mediation.
21 A. Yes.
22 Q. Did the Board ever discuss a Board response to
23 the Petition for Mediation?
24 A. I would say the Board probably did discuss that.
25 That was something that did come in, but that was a
00159
1 significant issue.
2 Q. And if it was a significant issue, did the Board
3 willingly go into mediation with the intent of
4 attempting to reach a resolution between the association
5 and the petitioners on the Petition for Mediation?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: I'm not sure what you mean by
8 the word "willingly." What do you mean by
9 "willingly"?
10 BY MS. LIVELY:
11 Q. Well, I could put it real simple, but --
12 A. Please do.
13 Q. The members of the Board did not want to be at
14 the mediation, did they?
15 A. That's -- you're asking me to give an opinion on
16 the rest of the Board members.
17 Q. I'm asking you --
18 A. I took part in a phone mediation, and I did that
19 willingly.
20 Q. But you did not want to be there; is that
21 correct?
22 MR. QUATTLEBAUM: Object to the form.
23 THE WITNESS: That's not necessarily
24 correct. You're drawing an assumption that I
25 haven't drawn.
00160
1 BY MS. LIVELY:
2 Q. But it was your position that that was not the
3 right course of action to take in attempting to
4 harmonize the community, correct?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: No, I gave you what I thought
7 was the best way to do it, which I still think is
8 the best way to do it, short of legal
9 determination, which I would hope we could
10 expedite. Because that's what the whole
11 community wants; a decision and a course as to
12 the legality of what took place. Short of that,
13 I'd like to see an election and we don't need the
14 lawsuit.
15 BY MS. LIVELY:
16 Q. But the lawsuit now involves much more than the
17 determination as to the validity of the Seventh and
18 Eighth Amendments.
19 A. Well, the other things could be dealt with. But
20 the Seventh and Eighth Amendments was what was given as
21 the primary cause by the plaintiffs.
22 Q. Where was that given as the primary --
23 A. In your discussions. And they always said that
24 what they were looking for is the right way for the
25 voting to take place. So I say again, why do you need
00161
1 mediation? Take it up for an election to the community
2 and then everybody will agree; whatever is voted on is
3 voted on. I think everyone would agree with that,
4 including the Board members. I can't speak for the
5 current Board.
6 Q. As far as the other issues within the complaint,
7 can you just very quickly explain what do you mean by,
8 "They can be dealt with"?
9 MR. QUATTLEBAUM: Object to the form.
10 THE WITNESS: Well, whatever the legal
11 process is for that. I'm well aware that there's
12 a lawsuit there. And I'm well aware of how long
13 it's been going on.
14 BY MS. LIVELY:
15 Q. Do you recall when, at what point in time 90
16 percent of the parcels within Baywinds were actually
17 conveyed from Lennar to the individual owners?
18 MR. QUATTLEBAUM: Object to the form.
19 THE WITNESS: Well, that essentially was
20 about the time of turnover.
21 BY MS. LIVELY:
22 Q. And was there -- were you present at a city
23 commission meeting whenever Lennar presented an
24 amendment to the Baywinds PUD?
25 A. Well, I was present at several commission
00162
1 meetings. I can't say for sure I was at that particular
2 one unless you describe it specifically. But at that
3 time, I was present at many of them. If you go a little
4 further, maybe I can answer you better.
5 Q. Were you aware of an -- you were aware that in
6 the spring, April of 2005, Lennar filed an amendment to
7 the development plan; were you aware of that?
8 A. Uh-huh.
9 Q. Were you present at that commission meeting?
10 MR. QUATTLEBAUM: You have to say yes or no.
11 THE WITNESS: Oh, yes. I'm sorry.
12 BY MS. LIVELY:
13 Q. Were you present at the counsel meeting?
14 A. I believe I was, yes.
15 Q. And at that point in time, were 90 percent of the
16 parcels conveyed in April of '05?
17 A. I would say it was right about on the cusp. I'm
18 not sure if they were all -- exactly on that date. It
19 was very close at the time.
20 Q. Is it fair to say that you personally disagreed
21 with the position asserted by the plaintiffs that the
22 amendments, Seventh and Eighth Amendments materially
23 altered their voting rights?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: Altered their voting rights?
00163
1 BY MS. LIVELY:
2 Q. I mean voting interests.
3 A. I disagree with that.
4 MR. QUATTLEBAUM: Object to the form.
5 BY MS. LIVELY:
6 Q. Why do you disagree with that?
7 MR. QUATTLEBAUM: Object to the form.
8 THE WITNESS: Because to the best of my
9 knowledge, they're still able to vote for their
10 representative.
11 BY MS. LIVELY:
12 Q. Explain to me so that I understand, after this
13 amendment, the Seventh Amendment and the Eighth
14 Amendment changing the way the Board is elected, how did
15 that impact your individual community of Heron Cove?
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: Please explain a little
18 further.
19 BY MS. LIVELY:
20 Q. Well, did that have an impact -- did that change
21 in the voting mechanism have any impact on Heron Cove as
22 a community?
23 MR. QUATTLEBAUM: Object to the form.
24 THE WITNESS: I don't think it had an
25 impact. I think it allowed every homeowner in
00164
1 Heron Cove to vote.
2 BY MS. LIVELY:
3 Q. So prior to the amendment --
4 A. Prior --
5 Q. Let me finish, please. Prior to the Seventh and
6 Eighth Amendment, not every homeowner was permitted to
7 vote; is that what you're saying?
8 A. No, I didn't say that at all.
9 Q. Okay. The Seventh and Eighth Amendment, what was
10 the benefit of the Seventh and/or the Eighth Amendment
11 to owners or the members of the Baywinds Community?
12 A. To enable -- to have representation, assured
13 representation from each neighborhood association.
14 Q. What was the detriment of the Seventh or Eighth
15 Amendment; was there a detriment to the members?
16 MR. QUATTLEBAUM: Object to the form.
17 THE WITNESS: To my understanding, no.
18 BY MS. LIVELY:
19 Q. The perceived detriment then that has been
20 brought by the plaintiffs, is it your position that that
21 position has no merit?
22 MR. QUATTLEBAUM: Object to the form.
23 THE WITNESS: I would say anyone who has a
24 position has merit unless it's proven wrong in
25 the court.
00165
1 BY MS. LIVELY:
2 Q. As of today that we're sitting here in this
3 deposition, has the position of the plaintiffs been
4 proven wrong in the court?
5 A. No.
6 Q. When the letter was sent in September of 2005
7 that we talked about much earlier during this deposition
8 wherein it was stated to the petitioners on the Petition
9 for Mediation that their petition has no merit, then
10 that was not a factual statement, was it?
11 MR. QUATTLEBAUM: Object to the form.
12 BY MS. LIVELY:
13 Q. We talked earlier about a letter --
14 A. I heard you. I'm just thinking and I know you're
15 looking at me directly, so I'm just giving you a chance
16 to finish.
17 Q. Okay. September '05, a letter goes out on behalf
18 of the Board to these men and this woman sitting here
19 today, as well as all the other petitioners.
20 A. Uh-huh.
21 Q. "Your position has no merit." Would you now
22 agree that in that there had been no adjudication by a
23 court, their position did have merit; did it not?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: In -- my personal position is
00166
1 that it will not have merit in the courts but you
2 asked me another question and I said everyone has
3 a right to basically express and have a
4 difference of opinion and the only way to judge
5 the final finality of that is to let either a
6 court answer that question or have the membership
7 vote what they prefer. Those are the only two
8 ways that I know. Does anyone have a right to
9 have a disagreement and bring up an issue,
10 absolutely.
11 BY MS. LIVELY:
12 Q. When the letters went out in September of '05,
13 the letters stated the petition had no merit, that the
14 petitioners could be held liable for three point five
15 million dollars and the letter to the owners stated that
16 the clubhouse purchase was at risk. Do you recall, sir,
17 was it ever stated in that letter that these individuals
18 have a legal right to present their opinion and to
19 present their case? Was that presented to the owners or
20 the petitioners?
21 A. I don't recall, but probably not.
22 Q. Why not?
23 A. Why should it have been? They already knew
24 'cause they already extended that -- they expressed
25 their rights. And that's fine.
00167
1 Q. Well --
2 A. I'd like to get it resolved, I'd like to see a
3 court action. I know it's my deposition, but I'm
4 expressing myself because this is more than two years in
5 the making here and we still haven't gotten into court.
6 Q. Well, sir, we're moving forward here, and we're
7 proceeding here on the depositions --
8 A. I understand that. So I'd like to speed it up
9 and I'd like your assistance to speed it up and get an
10 answer for the community. That's what the community
11 wants.
12 Q. Well, was the community advised in September of
13 '05 that the group of homeowners had the right and were
14 within their rights to proceed and request a mediation
15 to address the issue of their voting interests?
16 A. I think that might have been expressed at a Board
17 meeting. And was certainly expressed by myself --
18 Q. Was it the same Board meeting, sir, whenever the
19 people were advised that they might be paying two point
20 five million dollars, that the Board needed the
21 assistance of the owners to get the attention of my
22 clients and others, and these individuals were told to
23 stand up and be identified so that the members could get
24 their attention? Was that the same meeting when the
25 Board --
00168
1 A. It might have been. I don't --
2 MR. QUATTLEBAUM: Object to the form.
3 Argumentative.
4 BY MS. LIVELY:
5 Q. Go ahead.
6 A. It might have been, but I don't recall. I'm
7 certain, I am absolutely certain that I have always
8 expressed that the plaintiffs have a perfect right to
9 pursue this. Do I disagree with their position, yes.
10 Do I believe they have the right, yes. And that's why
11 I'm extolling you again to do away with all the legal
12 maneuverings and let's get it to the court and let's all
13 agree that we'll take a membership vote.
14 Q. Sir, we are proceeding and that's why you're
15 here.
16 A. I understand that. And I'm trying to urge you to
17 expedite it.
18 Q. But I've got a -- there's a whole lot of names on
19 this list, I've got to depose everybody --
20 A. That's fine. We've had two years, depositions
21 could have taken place.
22 MR. QUATTLEBAUM: Okay --
23 THE WITNESS: I know. But I just feel that
24 we're all anxious to get it settled, let's take
25 it out there and settle it in court.
00169
1 BY MS. LIVELY:
2 Q. Well, I guess it's better to settle it in court
3 than to settle it in a Board meeting where the owners
4 are incited to get the attention of Dr. Amero --
5 MR. QUATTLEBAUM: Object to the form.
6 That's not a question.
7 THE WITNESS: I know it's not a question
8 and it's your comment --
9 MR. QUATTLEBAUM: Don't respond, don't
10 respond.
11 BY MS. LIVELY:
12 Q. But you did ask the members to get the attention
13 of these individuals, correct?
14 MR. QUATTLEBAUM: Asked and answered.
15 THE WITNESS: I think you asked that
16 question before and --
17 BY MS. LIVELY:
18 Q. And I'm asking to clarify.
19 A. I certainly would want those folks who had
20 questions to get the attention of the plain -- of anyone
21 who's bringing a lawsuit. They have a right to speak to
22 anyone.
23 Q. And at that time, was there a lawsuit filed?
24 A. No, but there was threats of it.
25 Q. Was their Petition for Mediation not an
00170
1 opportunity to address the issues and to achieve harmony
2 within the community?
3 MR. QUATTLEBAUM: Object to the form. Asked
4 and answered several different ways and several
5 different times.
6 THE WITNESS: I don't know about harmony,
7 but I know there was a request for a petition --
8 a Petition for Mediation.
9 MS. LIVELY: What I'm going to do is to meet
10 with my clients very briefly to see if anybody
11 has anything else. Would it be all right if I
12 asked you guys to step out being I've got a lot
13 more people?
14 (Brief recess.)
15 BY MS. LIVELY:
16 Q. The good news is we're almost done. The meeting
17 that we had talked about earlier when the members became
18 agitated, after they were apprised of the potential cost
19 of the mediation, you indicated to me earlier that you
20 don't recall any physical attacks.
21 A. I don't think that there was a physical attack.
22 Q. Mr. Caspari --
23 A. Who?
24 Q. Mr. Caspari, was he physically attacked at that
25 meeting?
00171
1 MR. QUATTLEBAUM: Object to the form.
2 THE WITNESS: I don't -- I don't -- I don't
3 recall. I don't...
4 BY MS. LIVELY:
5 Q. Do you recall if anyone tried to punch him or hit
6 him?
7 A. No.
8 Q. Do you recall making a phone call to this
9 gentleman after the meeting to apologize for what took
10 place at the meeting?
11 A. I know I spoke with Harvey quite a few times;
12 Harvey Caspari.
13 Q. Okay. But after the meeting, did you call this
14 gentleman to apologize for what took place at the
15 meeting?
16 A. I might very well have because it was a very
17 upsetting meeting. But I don't know whether he was
18 punched, as you said.
19 Q. Or pardon me --
20 A. I don't recall that anybody was punched.
21 Q. But somebody started to physically attack him for
22 supporting the petition.
23 A. I don't recall them attacking him or not. I know
24 they got a little agitated.
25 Q. Okay. Would it be fair to say somebody swung at
00172
1 Mr. Caspari?
2 MR. QUATTLEBAUM: Object to the form.
3 THE WITNESS: Ms. Lively, I'm telling you I
4 don't know, but I know that he was upset and he
5 was a very fine individual and had been helpful
6 on other matters and that's why I certainly made
7 contact with him afterwards because I didn't feel
8 what happened was correct.
9 BY MS. LIVELY:
10 Q. And when you say don't believe what happened was
11 correct, what do you mean by that?
12 A. The agitation, and the fact that -- as you
13 mentioned his name, I do know that there was talking
14 back and forth, I recall now that there was some talking
15 back and forth with Harvey Caspari and that's why I felt
16 it was wrong 'cause Harvey was attempting to be a
17 gentleman, which he is.
18 Q. But he was also supporting the position asserted
19 by the petitioners, correct?
20 A. I don't know if he was or wasn't. My inclination
21 is he might have been but that didn't matter. He was
22 still somebody who I spoke with all the time. I spoke
23 with Mr. Amero all the time and we have a difference of
24 opinion, and Judge Raab. Nothing unique about that. We
25 live in the same community.
00173
1 Q. I'm just trying to understand as to whether or
2 not there was any physical altercation after the
3 announcement regarding the mediation?
4 A. I don't recall a physical altercation. I said
5 that there was agitation and now that you mentioned
6 Mr. Caspari was involved, was one of the individuals and
7 I didn't think that that was correct. And that's why I
8 probably did speak with him afterwards.
9 Q. In efforts to achieve unity or harmony within the
10 community, did any of the named plaintiffs, ever, at any
11 time, reach out to you as president of the association
12 to resolve differences?
13 MR. QUATTLEBAUM: Object to the form.
14 THE WITNESS: I had many conversations with
15 Mr. Amero and to a lesser extent with Judge Raab
16 and only once or twice with Marvin Ellick on the
17 matter. May have been someone else, I don't
18 recall specifically.
19 BY MS. LIVELY:
20 Q. Were you made aware of any -- did any member of
21 the Board ever advise you that any member of the
22 plaintiff group had reached out in an effort to resolve
23 the dispute that is currently existing between the
24 association and the plaintiffs?
25 MR. QUATTLEBAUM: Object to the form.
00174
1 THE WITNESS: That might have been that some
2 of these folks, some of the plaintiffs --
3 MR. QUATTLEBAUM: I objected.
4 THE WITNESS: -- the plaintiffs have good
5 communication with some of the other Board
6 members, that that might have been something that
7 happened, sure.
8 BY MS. LIVELY:
9 Q. Did the Board make any effort to sit down to work
10 out differences between the two groups?
11 A. Well, I think the Board was of the belief that --
12 I don't know how you can work out differences that
13 pertain to legal matters if the Board could not
14 negotiate a change in the legal standing. How could we
15 negotiate backroom to anything?
16 Q. What I'm asking, were there any efforts made by
17 the Board to resolve issues prior to getting to the
18 point of litigation?
19 A. I think the Board was open to resolving any
20 issues that the Board could deal with in a legal way.
21 When I say legal, something that they have the right to
22 do.
23 Q. Who is Mr. Brenner?
24 A. Well, who is he?
25 Q. I'm asking you. Do you know Mr. Brenner?
00175
1 A. I know an Ed Brenner, I don't know if that's the
2 Mr. Brenner you're referring to.
3 Q. Ed Brenner, yes.
4 A. Okay. Yes, I know Mr. Ed Brenner.
5 Q. Did Mr. Brenner ever make attempt to bring the
6 two sides together prior to getting to the point of
7 litigation?
8 A. I don't know, but I spoke with Mr. Brenner many
9 times. I don't know what he did for, quote, the other
10 side. I know Mr. Brenner, he's quite often in the
11 parking lot.
12 Q. Did Mr. Brenner ever attempt to work to -- strike
13 that. Are you aware of any communication from
14 Mr. Brenner wherein there was an effort made to bring
15 the two sides together prior to reaching the point of
16 litigation?
17 MR. QUATTLEBAUM: Object to the form.
18 THE WITNESS: I'm sure that Mr. Brenner
19 attempted, because he is a very fine gentleman
20 and may have, in addition to speaking with him,
21 may have sent an e-mail. I don't remember
22 specifically, but I'm sure he might have tried.
23 BY MS. LIVELY:
24 Q. Was Mr. Caspari involved in this communication?
25 A. That one, I don't remember unless that was the
00176
1 time when Harvey said that he was going to bring Ed
2 Brenner to get together and chat. If that's the one
3 time, that might have been. I don't think one of them
4 made it. I'm not sure which one didn't make it.
5 Q. So you're saying the meeting never took place?
6 A. No, I think I chatted on this with Harvey, but I
7 don't think Ed made the meeting. But I could be off on
8 that. But I certainly did speak with Ed Brenner many
9 times, still do. I mean it's not something that I don't
10 know -- I know Mr. Brenner.
11 Q. I understand that. I'm still going to efforts
12 made on the part of the plaintiffs to try to facilitate
13 any resolution prior to filing the lawsuit.
14 A. Well, I don't know what Mr. Caspari could do
15 because I did speak with him and he indicated that he
16 would talk with the plaintiffs and try to get things
17 calmed down. I don't know whether he was successful or
18 not. Same thing with Mr. Brenner. I certainly was
19 available, met with them.
20 Q. Is it your position that the Board could not
21 reach a resolution without going to court on the issues
22 presented by the plaintiffs?
23 MR. QUATTLEBAUM: Object to the form.
24 THE WITNESS: Ms. Lively, I'm not an
25 attorney.
00177
1 BY MS. LIVELY:
2 Q. I understand that.
3 A. Okay. So I'm trying to preface it.
4 Q. To be clear, as president of the association, was
5 it your understanding and belief that the Board could
6 not enter into negotiations with the plaintiffs
7 regarding issues presented today?
8 MR. QUATTLEBAUM: Object to the form.
9 THE WITNESS: My understanding is that the
10 relevant matters of the Eighth Amendment, Seventh
11 Amendment are matters of interpretation of law or
12 determination of law and that as a Board member,
13 I cannot negotiate that right of anyone to vote.
14 And that's what a negotiation would have led to.
15 I can respect the difference of opinion but I
16 don't believe that as a Board member I should sit
17 with a potential plaintiff or an actual plaintiff
18 and say "Well, we'll work it out this way to take
19 away some of these voting rights." I think it
20 should be decided either by the membership in
21 totality, which I totally favor, or short of
22 that, unfortunately, we have the lawsuit, that it
23 should go forward and whatever is determined by
24 the courts, I would find to be binding.
25
00178
1 BY MS. LIVELY:
2 Q. And you said that as the president of the
3 association, you believe that the Board cannot negotiate
4 to do away with a voting right?
5 MR. QUATTLEBAUM: Object to the form.
6 BY MS. LIVELY:
7 Q. Is that what you're saying?
8 MR. QUATTLEBAUM: Same objection.
9 THE WITNESS: I'm saying that I don't
10 believe that I can sit and negotiate how someone
11 should vote.
12 BY MS. LIVELY:
13 Q. Did -- when the Seventh Amendment was adopted,
14 did that amendment dictate the very issue you just
15 stated, i.e. somebody's voting interest?
16 A. No, I think it affected the balance of how the
17 voting would be.
18 Q. So it did affect somebody's voting interest?
19 MR. QUATTLEBAUM: Object to the form.
20 THE WITNESS: I don't think it affected
21 anyone's voting interests. Every home still has
22 a voting interest.
23 BY MS. LIVELY:
24 Q. Then what did the Seventh Amendment do as to the
25 issue of voting? Explain to me what did the Seventh
00179
1 Amendment do as it relates to voting.
2 MR. QUATTLEBAUM: Objection to the form.
3 Asked and answered.
4 THE WITNESS: We're talking about the fact
5 that there would be a voting by each
6 neighborhood -- with each neighborhood
7 association, excuse me, for its representative.
8 BY MS. LIVELY:
9 Q. Did the Seventh Amendment deal with the issue of
10 voting?
11 A. It dealt with how someone will be elected, yes.
12 It did not take away any rights of the voting, from my
13 understanding.
14 Q. But the Seventh Amendment addressed voting and
15 how the Master Board was elected, correct?
16 A. Yes, it did.
17 Q. And -- as to the Eighth Amendment, correct?
18 A. Yes, I'm sorry, right. You're correct.
19 Q. Yet, you state that the Board could not negotiate
20 on an issue regarding voting. Am I understanding that
21 position correctly?
22 A. I --
23 MR. QUATTLEBAUM: Object to the form.
24 THE WITNESS: I'm sorry. No, I heard you, I
25 didn't --
00180
1 BY MS. LIVELY:
2 Q. Was it the Board -- was it your understanding as
3 we're sitting here today that the Board would not be
4 able to negotiate an issue that dealt with voting and
5 the voting interest of an owner?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: Not with another party within
8 the community because that would be negotiating
9 amongst groups, not allowing the entire
10 membership to take action. There's different
11 ways to negotiate, Ms. Lively. You're stating
12 would we not negotiate with eight or nine
13 individuals. That's a totally different posture
14 than having an open negotiation that is
15 professionally and properly brought about. Now,
16 we're not talking about a Board member sitting
17 down with potential plaintiffs or actual
18 plaintiffs, you're suggesting that as a Board,
19 boards should be able to affect with other groups
20 how the entire community votes.
21 BY MS. LIVELY:
22 Q. But the Seventh Amendment affected how the entire
23 community votes, correct?
24 A. That was done by Lennar.
25 Q. That's not what I asked. I asked --
00181
1 A. Yes, there is an impact, yes.
2 Q. And the Eighth Amendment impacts on how the
3 individuals vote?
4 A. Uh-huh.
5 MR. QUATTLEBAUM: I didn't hear the answer.
6 You need to say yes.
7 THE WITNESS: I didn't have an answer. Was
8 there another question? I'm sorry.
9 BY MS. LIVELY:
10 Q. You need to say yes or no.
11 A. Repeat it then.
12 Q. The eight amendment impacted how the person
13 voted, correct?
14 MR. QUATTLEBAUM: Object to the form.
15 THE WITNESS: Not how they vote, no. The
16 voting is essentially the same. They have a
17 right to vote. It's how people will be elected,
18 not how someone will vote.
19 BY MS. LIVELY:
20 Q. So the Seventh and Eighth Amendment affected how
21 the Master Board is elected?
22 A. It's how it's constituted, yes.
23 Q. And that was a change from the initial documents
24 of the Baywinds Community Association, correct?
25 A. That is correct, yes.
00182
1 Q. But the Board could not negotiate any further on
2 that issue, correct?
3 MR. QUATTLEBAUM: Object to the form.
4 THE WITNESS: I didn't say that. I said --
5 you made some questions earlier about the
6 possibility of negotiating. And I said I don't
7 believe that there should be negotiations behind
8 the scenes --
9 BY MS. LIVELY:
10 Q. Were there --
11 A. -- as to taking away rights of individuals or
12 altering it. Now, that's totally different than whether
13 a Board can ever enter into negotiations.
14 Q. Were there any negotiations at any point between
15 the Presidents' Council and Lennar, the developer, as to
16 how the Master Board would be elected?
17 MR. QUATTLEBAUM: Object to the form.
18 THE WITNESS: Not negotiations, there were
19 discussions, as I said before, I'm sure the topic
20 has come up.
21 BY MS. LIVELY:
22 Q. Were they behind the scene -- the discussions
23 with Lennar, were they behind the scenes?
24 MR. QUATTLEBAUM: Object to the form.
25 THE WITNESS: No, because we had no right to
00183
1 make any of those changes. The members who spoke
2 to Lennar and expressed their feelings to Lennar
3 had no right to make any changes. Only Lennar
4 made the changes, only Lennar had the right to
5 make the changes. Only Lennar signed the
6 documents for the changes.
7 BY MS. LIVELY:
8 Q. When the discussions were between the Presidents'
9 Council and the Lennar Board, with the Lennar
10 representative, who participated in those discussions?
11 A. Whoever was present at the time. I don't know
12 all the indivi -- specifically on any given date, is
13 what I'm saying.
14 Q. Do you have any specific recollection of any
15 person other than a member of the Presidents' Council
16 attending a meeting wherein the Lennar -- where there
17 was discussion regarding changing how the Master Board
18 would be elected?
19 A. I'm not aware -- whenever the, quote, Presidents'
20 Council met -- I'm not sure if you're pausing because
21 you're not looking towards me. I don't know -- I want
22 to be polite 'cause you're looking away and I'm not sure
23 if you're pausing to think or if you've finished your
24 question. Okay? I'm not aware of during the
25 presidents' group's meeting with Lennar that there was
00184
1 anyone else. However, nor am I aware that other
2 individual homeowners did not have discussions with
3 Lennar.
4 Q. But you told me Sharon Caputo basically told you
5 at one point that Lennar wanted to continue to deal with
6 the presidents' group regarding the turnover and the
7 transition, correct?
8 A. That is correct. That doesn't mean that there
9 weren't comments and discussions with homeowners that
10 might have called. I have no idea. I have no idea
11 whether any one of these individuals spoke to her
12 outside of the Presidents' Council.
13 Q. At any of the meetings between the Presidents'
14 Council or group of presidents and Lennar when there was
15 discussion regarding how the Baywinds Board would be
16 elected, was there ever an open invitation to the
17 members of the community to attend that meeting and to
18 participate and give an opinion?
19 MR. QUATTLEBAUM: Object to the form.
20 THE WITNESS: To my best recollection, there
21 was never a non-president unless -- I don't
22 believe there was ever a non-president present.
23 BY MS. LIVELY:
24 Q. When there were discussions between this group of
25 presidents and Lennar, were the members of the Baywinds
00185
1 Community ever noticed that the group, the presidents'
2 group and Lennar were discussing potential changes to
3 how the Baywinds Master Board would be elected?
4 A. Other than the Advisory Committee meetings, no, I
5 don't believe so.
6 Q. I'm asking this very specifically: Was there
7 ever a notice posted within the Baywinds Community?
8 A. Not to my recollection.
9 Q. Was there any written notice given to homeowners
10 for their input into a possible change for the original
11 document regarding how the Master Board would be
12 elected?
13 A. I can't say that because each president dealt
14 separately within his own homeowners. I don't know
15 whether some did or did not. I know at my meetings, I
16 asked for input and feeling at the Board meetings of
17 Heron Cove. I don't know how others dealt with it.
18 Q. Is it your testimony then that during your
19 meetings of Heron Cove, you asked the input of
20 homeowners regarding changing the way in which the
21 Baywinds Master Board would be elected?
22 A. They were kept abreast of the fact that there
23 were questions and issues of this nature, yes.
24 Q. Were any homeowners ever invited to a meeting to
25 express their input or express their opinions directly
00186
1 to Lennar prior to the amendment, the Seventh Amendment?
2 A. You're talking -- well, you have to clarify
3 because they might have been invited. I'm not sure the
4 way your question was worded.
5 Q. Did you ever invite personally --
6 A. No, I did --
7 Q. Let me finish. Did you ever invite any homeowner
8 to attend a meeting to give input to changes in the
9 amendment or changes in the document regarding the
10 election of the Master Board?
11 A. No, I don't believe I ever did; not to that type
12 of meeting.
13 Q. Are you aware of any member of the group that
14 invited other members of the community that were not
15 presidents to attend a meeting regarding the potential
16 changes to the voting of the Master Board?
17 A. No, I'm not aware that it might have happened,
18 I'm not aware of it.
19 Q. And prior to the time that the members were first
20 made aware that Lennar had done the Seventh Amendment
21 and the whole voting issue we talked about earlier, were
22 you actually advising the Heron Cove residents that
23 there were discussions taking place regarding potential
24 changes to the document regarding how the Master Board
25 was elected?
00187
1 A. No, I don't think they were being advised.
2 Q. Then would it be fair to say that the changes in
3 the negotiations -- or strike that. The discussions
4 with Lennar took place outside of the presence of other
5 members of the Baywinds Community Association?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: I attended meetings with
8 certain individuals, most of them -- obviously
9 you're talking about the Presidents' Council, I
10 believe -- I'll answer you fully -- the
11 Presidents' Council meetings were exactly that;
12 with Lennar, by Lennar's design. This was a
13 committee created by Lennar. It was not a
14 committee created by the association.
15 BY MS. LIVELY:
16 Q. So Lennar then created the Presidents' Council?
17 A. They expanded -- yes, that's what happened.
18 Q. And did Lennar instruct the presidents -- did
19 Lennar instruct the Presidents' Council not to bring in
20 any other members of the community regarding discussions
21 as to potential amendments to the document?
22 A. Lennar indicated that we were the only ones to
23 participate in the meetings.
24 Q. Who from Lennar told you that you would be the
25 only ones that are --
00188
1 A. On these meetings with them on these matters,
2 would have been most likely Sharon Caputo.
3 Q. Do you have specific recollection that Sharon
4 Caputo advised you that other members should not attend
5 the meetings when you were discussing changing the
6 voting of the Baywinds Master Association?
7 A. No, no, she never said it when we were discussing
8 that -- you're making it appear as if this was
9 predetermined discussions. That is not the case. We
10 did not go into negotiate at any time with Lennar on
11 this matter. We asked questions how things would take
12 place. Lennar told us what they were going to do.
13 Q. So just to clarify, your testimony is that
14 Lennar, the developer, told the Presidents' Council that
15 Lennar was going to amend the documents to change how
16 the Master Board was elected; is that a true and
17 accurate reflection?
18 MR. QUATTLEBAUM: Object to the form.
19 THE WITNESS: To my recollection, yes. And
20 they made it very clear that they were the only
21 ones that could do it. And that they did this in
22 most of their communities.
23 BY MS. LIVELY:
24 Q. And Lennar is the one who proposed the change in
25 the voting of the Master Board; is that correct?
00189
1 MR. QUATTLEBAUM: Object to the form. Asked
2 and answered.
3 THE WITNESS: You're asking me about
4 proposing. This topic was brought up many times
5 in terms of how does it go about, how do you make
6 an amendment, what will be if you change things.
7 It was made clear by Lennar that it was their
8 determination that they wanted twelve
9 representatives 'cause that's the way they had
10 done it in other similar communities. Did we ask
11 questions? Absolutely we did. Was this open
12 dialog? Absolutely. Did we have the authority
13 to impact on them? Absolutely not, because they
14 were the developer.
15 BY MS. LIVELY:
16 Q. When you state that Lennar advised that they were
17 going to amend -- Lennar would be amending the document
18 to reflect the change in the voting as to how the Master
19 Board was elected, isn't it true that Lennar -- didn't
20 Lennar draft the original documents for the homeowners'
21 association?
22 A. I presume they did.
23 Q. Whenever there was questions asked and during
24 this discussion, did anybody ever pose the question to
25 Lennar as to who had drafted these documents that you
00190
1 were living under at that time?
2 A. I'm sure we had. I'm sure the question was
3 answered.
4 Q. How did they answer the question?
5 MR. QUATTLEBAUM: Object to the form.
6 THE WITNESS: Obviously, Lennar prepared the
7 documents.
8 BY MS. LIVELY:
9 Q. But if Lennar prepared the documents, yet Lennar
10 -- you stated that in most of their communities this was
11 how they voted.
12 A. They stated that, I didn't say that.
13 Q. But you said that's what they advised you.
14 A. Yes.
15 Q. Then why wasn't that proposed? Do you have any
16 idea or any information --
17 A. No, you have to ask Lennar that. I'm sure many
18 aspects of documents are changed. I don't think that
19 that's so unusual. From what I've been told and what
20 I've learned, the developer makes quite a few changes.
21 Q. How soon, if you can recall, how far -- what was
22 the timeframe before turnover -- how far before that did
23 you first discuss the issue of an amendment to the
24 documents to allow for each community to vote for their
25 own representative --
00191
1 A. I don't know, but I'm sure it was several months.
2 Q. Then were you made aware as to any reason why, if
3 it was Lennar's proposal to amend the document, why they
4 didn't take action prior to the turnover of the
5 community? Why did they wait until after turnover?
6 MR. QUATTLEBAUM: Object to the form.
7 THE WITNESS: I can't answer why. These are
8 things that the developer does and there were
9 many questions about the developer, why they take
10 the actions that they do.
11 BY MS. LIVELY:
12 Q. So I understand, several months before turnover,
13 Lennar presented to you that they were going to -- that
14 Lennar would amend the documents to allow for each
15 community to put their own representative --
16 A. That wasn't your original question. I think your
17 prior question was, "When was this discussed?"
18 Q. When did Lennar first present the issue to you of
19 amending the document to change the manner in which the
20 Master Board would be elected?
21 A. I can't recall but I'm sure it was in a very
22 short timeframe prior to the...
23 Q. Was it a short time or several months?
24 A. I said several months of discussions about how
25 this goes about. I can't recall when Lennar
00192
1 specifically said that they were going to do it.
2 Q. At any time, from the first discussion regarding
3 changing the manner in which the Master Board would be
4 elected until the Seventh Amendment was adopted, was the
5 membership ever invited to an open meeting to discuss
6 the issue of voting and changing the voting mechanism?
7 MR. QUATTLEBAUM: Object to the form. Asked
8 and answered.
9 BY MS. LIVELY:
10 Q. Was the membership ever invited to such a
11 meeting?
12 MR. QUATTLEBAUM: Same objection.
13 BY MS. LIVELY:
14 Q. Go ahead.
15 A. I -- I'm sorry, are you finished?
16 Q. Yes.
17 A. I don't believe they were. I'm trying to think.
18 I don't believe they were. And I don't believe Lennar
19 ever did, either. They might have. I don't recall if
20 they ever specifically did. Since Lennar was in charge
21 at the time this was going on.
22 Q. Did the Presidents' Council ever request an
23 opportunity to bring in their neighbors, their
24 constituents, anyone else into the --
25 A. We were advised that this was a meeting that
00193
1 Lennar wanted to have the discussions with us and that
2 we would be the communicators out to the neighborhood
3 association.
4 Q. As the communicators, are you aware of any
5 president who communicated this information to the
6 members of their own community?
7 A. I can't speak for any of the others.
8 Q. I understand. Are you aware of any?
9 A. No.
10 MS. LIVELY: I believe that's all I have at
11 this point.
12 MR. QUATTLEBAUM: I've got a few. I won't
13 be nearly as long.
14 MS. LIVELY: But I get to follow-up after
15 that.
16 THE WITNESS: Oh, you get to follow-up
17 afterwards. Okay. This is like the debates on
18 television.
19 CROSS-EXAMINATION
20 BY MR. QUATTLEBAUM:
21 Q. Just a couple. The Plaintiff's Exhibit Number 1
22 she asked you about, with regard to that letter, and
23 just to clarify, is this something that the Board would
24 have authorized Mr. Krivok to write to Mrs. Lively?
25 A. I -- no, it would not have. It was a personal
00194
1 matter.
2 Q. Do you have any explanation as to why it says,
3 "For the Board" under Mr. Krivok's name?
4 A. No, I think it's incorrect.
5 Q. If there was -- or if there was an invoice where
6 this letter was charged to the association, would that
7 have been an error?
8 A. If it was paid, absolutely.
9 MS. LIVELY: Form.
10 THE WITNESS: I'm sorry?
11 MS. LIVELY: Form.
12 BY MR. QUATTLEBAUM:
13 Q. If this letter was billed to the association and
14 this bill was paid for this entry of this particular
15 letter, would that have been a mistake?
16 A. Yes.
17 Q. Do you have any information of knowing whether or
18 not this was billed and/or paid?
19 A. No, I don't know because there were so many
20 invoices, I don't know.
21 Q. Okay. With regard to the Seventh Amendment, just
22 for clarification, this was passed by Lennar prior to
23 turnover; is that correct?
24 A. That's my recollection, yes.
25 Q. Do you have any personal knowledge one way or the
00195
1 other whether that form of voting or representation is
2 legal or illegal or proper or improper?
3 MS. LIVELY: Object to form.
4 BY MR. QUATTLEBAUM:
5 Q. This is to your knowledge.
6 A. No, I don't. I just assumed it was, since they
7 prepared it and I assumed it was.
8 MR. QUATTLEBAUM: No further questions.
9 REDIRECT EXAMINATION
10 BY MS. LIVELY:
11 Q. Mr. Quattlebaum asked you if the association paid
12 legal fees for the letter presented as Plaintiff's
13 Number 1 and any related matters, if that would be a
14 mistake. Who would have made that mistake? Who would
15 have the responsibility for that mistake?
16 MR. QUATTLEBAUM: Object to the form.
17 BY MS. LIVELY:
18 Q. Let me rephrase that. Who had responsibility for
19 approving that expense?
20 A. Well, that expense came through -- would have
21 been grouped together with a host of other attorney --
22 it would not be an individual invoice that came through,
23 most likely. And the invoice would be approved through
24 the process I described earlier, which I will describe
25 again, if you wish.
00196
1 Q. Let me ask, whenever you get -- any member of the
2 Board gets a copy of the invoice, do they review the
3 attorney's fees that are billed or do they just simply
4 look at the bottom line and see that number?
5 A. No, they don't simply look at the bottom line --
6 to my knowledge, they do not simply look at the bottom
7 line and pay it. Is it possible that this got through
8 and paid? It's possible, and if it was, it was an error
9 and should be corrected. And that's all.
10 Q. Who has the responsibility for that type of
11 error?
12 MR. QUATTLEBAUM: Object to the form.
13 THE WITNESS: The responsibility would be if
14 I signed the check, it would be my responsibility
15 and if I made an error on that, then it should be
16 corrected. And if the treasurer signed it, we
17 both might have signed it, because two signatures
18 were required, and unless I was away and someone
19 else signed it. But it's something that can
20 happen and when it happens, you have to correct
21 it. And if it's found out, it should be
22 corrected.
23 BY MS. LIVELY:
24 Q. Who maintains possession of the cancelled checks
25 after they're paid?
00197
1 A. The management company.
2 Q. And Mr. Quattlebaum asked you about the date of
3 the Seventh Amendment. Do you happen to recall when --
4 when was the Seventh Amendment adopted?
5 A. I don't have the exact date. I did say it was
6 done before turnover. I don't have it in my head when
7 the date was. But I did assume it to be legal. If
8 something is presented, I assume it's proper.
9 Q. So as the Board president, whatever was -- if
10 something was presented to you -- strike that. Strike
11 it. That's all I have.
12 MR. QUATTLEBAUM: We'll read.
13 (Witness excused.)
14 (Deposition concluded at 4:55 p.m.)
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00198
1 STATE OF FLORIDA )
2 COUNTY OF PALM BEACH )
3 I, the undersigned authority, certify that AL
4 TSACNARIS personally appeared before me and was duly
5 sworn on the 17th day of April, 2008.
6 WITNESS my hand and official seal this _____ day
7 of ______________, 2008.
8
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11 __________________________
12 TRUDY SCHUBERT
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00199
1 STATE OF FLORIDA )
2 COUNTY OF PALM BEACH )
3
4 I, TRUDY SCHUBERT, court reporter, certify
that I was authorized to and did stenographically report
5 the foregoing deposition; that a review of the
transcript was/was not requested; and that the
6 transcript, Pages 4 through 199, is a true and complete
record of the testimony given by the witness.
7
I further certify that I am not a relative,
8 employee, attorney, or counsel of any of the parties,
nor am I a relative or employee of any of the parties'
9 attorney or counsel connected with the action, nor am I
financially interested in the action.
10
The certification does not apply to any
11 reproduction of the same by any means unless under the
direct control and/or direction of the reporter.
12
Dated this ____ day of _______________, 2008.
13
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16
17 _______________________________
TRUDY SCHUBERT, Court Reporter
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00200
1 Guy Quattlebaum, Esq.
Arnstein & Lehr, LLP
2 515 N. Flagler Dr., 6th Floor
West Palm Beach, FL 33401
3
June 23, 2008
4
In re: Bernard Amero, et al. vs. Baywinds Community
5 Association, Inc.
6 Dear Mr. Quattlebaum:
7 For your convenience, attached hereto you will find
Errata Sheets for the use of AL TSACNARIS in entering
8 any changes to the deposition.
9 Please photocopy the executed document and forward a
copy of the executed document to all counsel involved in
10 this matter for placement in the transcript.
11 If no changes are to be noted, please indicate that on
the Errata Sheet and forward a copy to all counsel so
12 they may be advised that no changes were made.
13 We find that the above procedure facilitates handling of
signature matters and puts the necessary documents
14 directly into the hands of counsel.
15 Cordially yours,
16
17
18 Trudy Schubert, Court Reporter
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cc: Cathy L. Purvis Lively, Esq.
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00201
1 ERRATA SHEET
BERNARD AMERO, et al. vs. Baywinds Community
2 Association, INC.
Case No: 50 2006 00 1456 MB AH
3 Date Taken: APRIL 17, 2008
4 DO NOT WRITE ON TRANSCRIPT - - ENTER CHANGES HERE:
5 Page:_____ Line:_____
Now reads:
6 ________________________________________________
Should read:
7 ________________________________________________
Reason for change:______________________________
8
Page:_____ Line:_____
9 Now reads:
________________________________________________
10 Should read:
________________________________________________
11 Reason for change:______________________________
12 Page:_____ Line:_____
Now reads:
13 ________________________________________________
Should read:
14 ________________________________________________
Reason for change:______________________________
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Page:_____ Line:_____
16 Now reads:
________________________________________________
17 Should read:
________________________________________________
18 Reason for change:______________________________
19 Page:_____ Line:_____
Now reads:
20 ________________________________________________
Should read:
21 ________________________________________________
Reason for change:______________________________
22
Under penalties of perjury, I declare that I have
23 read my foregoing transcript and, together with any
changes made above, the facts stated herein are true.
24
_______________ ________________________
25 Date AL TSACNARIS
TS