1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 v. JOHN P. CARROLL, Plaintiff, Case No.

09CA002021 IN THE CIRCUIT COURT IN AND FOR WALTON COUNTY, FLORIDA

WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., a Florida Corporation; WATERCOLOR COMMUNITY ASSOCIATION, INC.; a Florida Corporation; DAVID LILIENTHAL, individually an as Director; MARY JOULE; SANDRA MATTESON; RONALD VOELKER; JOHN DOE; and OTHER UNKNOWN CONSPIRATORS, Defendants. _____________________________________________________ DEPOSITION OF GARY A. SHIPMAN August 23, 2011 _____________________________________________________ The Deposition of GARY A. SHIPMAN was taken on behalf of the Plaintiff, at the office of Dunlap & Shipman, located at 1414 County Highway 283 South, Suite B, Santa Rosa Beach, Florida, and reported by Kathryn B. Peacock, Court Reporter and Notary Public, commencing at approximately 9:00 a.m. and being concluded on the same day. _____________________________________________________ KATHRYN B. PEACOCK Court Reporter 1009 Ridgewood Cove, S. Niceville, Florida 32578 (850)897-2864

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 WITNESS GARY A. SHIPMAN DIRECT EXAMINATION BY MR. CARROLL CERTIFICATE OF OATH REPORTER'S DEPOSITION CERTIFICATE 3 58 59 INDEX PAGE NO. CHRISTOPHER L. GEORGE, ESQUIRE Attorney at Law P. O. Box 1034 Mobile, AL 36633 ATTORNEY FOR DEFENDANTS JOHN P. CARROLL, PRO SE P. O. Box 613524 WaterSound, FL 32461 PLAINTIFF APPEARANCES

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. CARROLL: Q Well, Mr. Shipman, you started out by Are these all of the GARY A. SHIPMAN, a witness, after having first been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified, to-wit: DIRECT EXAMINATION

handing me some documents.

documents responsive to my duces tecum request? A They're all the documents that are -- that

I have in my possession that are not either subject to attorney/client privilege or no longer pertain to any of the remaining counts. Q Do you have documents that you object to

production because of the attorney/client privilege? A Q A Absolutely. Can you tell me what those documents are? Communications between me and the client Any communication between the

or the client and me.

client and me or me and the client that was not in a public forum -Q A Okay. -- is privileged, and I will not produce

it, and I will not disclose it. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q that mean? A Well, if we were in an open board meeting, Now, there are And when we say a public forum, what does

then that's a public forum.

documents that you've already been produced such as meeting minutes that were at those meetings that I didn't re-gather up. But to the extent I had

conversations or emails or letters to either the manager or one or more of the board members that was not public and it addressed anything that -- where they're seeking my advice, that is privileged, and I will not disclose it. Q Not without a court order and a hearing, I

guess; is that what you're saying? A Actually, even not without an order of the

Florida Supreme Court I won't. Q Okay. You have a copy of something that I wanted to mark them

you just took a second ago. in advance. A

Here's a copy of the December 19th letter,

and here's a copy of my time entry where I spoke to your lawyer. Q Back to the documents that you may have

that you say are subject to attorney/client privilege, do any of them involve -- I mean, rather, KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was my attorney copied on any of those? A No, because then it wouldn't be a

confidential communication. Q And so all communications that you've had

with my attorney, you've already submitted here today? A If you have something in writing rather? I have no written documents with your

attorney that I can recall. Q Do you have any phone records that

memorialize when you talked to him? A Q You're holding it. Daniel Uhlfelder. You just marked it. Okay. We have three

documents that were marked.

One is Plaintiff's

Exhibit Number 1, and that's a May 28th, 2008 letter. The other is Plaintiff's Exhibit Number 2. And the last

That's a December 19th, 2008 letter.

is Plaintiff's Exhibit Number 3, and that is a daily timesheet for Gary A. Shipman. A Q Right. Okay. I guess we'll start from the There's a letter --

beginning the best that we can. A

And there's also the green cards where we

sent them certified mail. Q And I think those cards may match up to

the two cards at the end of Plaintiff's Exhibit KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Number 1? A Q A Right. June 3rd and June 3rd. Right. And I brought the declaration with

me, which you already have, but I have a copy if I need to refer to it. Q Okay. Let's try and do this by just Do you remember that May 28,

remembering if we can. 2008 meeting? A meeting. Q A Q A Oh, right.

Generally, yes.

It wasn't a May 28, 2008

I think it was May 23rd, 2008?

It was sometime before I wrote the letter. Do you remember seeing me at that meeting? To be honest, John, I don't. I remember

you at meetings after that.

I don't remember

necessarily you being at that meeting. Q When the WaterSound board would have these

kind of HOA meetings, would they usually do some kind of a roll call to memorialize who was at the meeting? A It would have been documented in the Although sometimes when people

minutes in general.

come into the meeting that aren't on the board, they may not necessarily get written down. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So how do I say this? The minutes of the

meetings, did they generally reflect who was at the meeting? A They generally reflect who was either at

the meeting for the board, the management company, myself and anyone who presented something to the board. Q Those meetings, did they also have agendas

posted at some point prior to the meeting? A agendas. Q agendas? A Q No. What kind of things would be on one of the Did you yourself help in creating those To the best of my knowledge they all had

agendas for WaterSound's meetings, board meetings I should say. A Well, you would have a standard format

where it would call to order; is there a quorum; was the meeting notice posted. usually, a manager's report. Then you would have, Then there would be

old business, and it would depend on what got discussed, and then there would be new business, and sometimes there would be an executive session. Q What's an executive session, please?

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Where I need to discuss with the board

some either pending litigation or threat of litigation where we don't allow anybody else in the room. It's attorney/client privilege and there's no

minutes taken. Q How did you come to be -- well, I I don't want to assume

shouldn't say that. anything.

Were you the attorney for WaterSound

Beach HOA at that time? A Q I was the general counsel of the HOA. And how did you come to be the general

counsel of the HOA? A I was interviewed by the board whenever

they decided they wanted to hire a general counsel, and they hired me. Q Was that when the homeowners were in

control of the HOA or St. Joe? A As of May 28th, 2008, St. Joe still I think what

controlled the homeowners association.

happened, but I'm just speculating, there was a point where it went from all St. Joe to having some homeowner board members, but they didn't control the board, and the homeowners wanted to have a lawyer independent of St. Joe advising the board is my belief. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know. Q Do you know if Ken Borick was ever the Q Who was the attorney who was not

independent of St. Joe who advised the board? A When I was there, no one. But I assume

before St. Joe had homeowners on the board, that they had their in-house counsel provide them advice. Q A Q And who was that? I don't know. Oh, I got you. It was before I was there. Do you know if there was a

time where the board had no counsel of any kind? A It could have before I was there. I don't

general counsel for WaterSound Beach? A I doubt he was ever designated the general Ken Borick is an So

counsel of Watersound Beach.

in-house counsel, or at least was, for St. Joe. was Kirby Williams. I assume that they probably

provided legal counsel to St. Joe, and St. Joe was exclusively the board, but I don't know that for a fact. Q How would I find out as a previous

homeowner who was the general counsel before you were? A If they had a general counsel, I guess it I mean, if

would be reflected -- I don't know.

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there's some reference in the minutes before then, it would be in the minutes. It could have been St.

Joe just because St. Joe was in control as the developer that they simply used their in-house counsel, in which case you'd have to ask them. Q counsel? Okay. Why did WaterSound Beach have

Why did they, I guess, appoint you as

their counsel? A Most communities down here do have a I'm general counsel of nearly 100

general counsel.

associations down here. Q A Q You yourself or your firm? My firm. I was going to say that's quite a bit.

What entities are you general counsel for down here? A Well, the way the firm operates, anybody

that's a client of the firm, I would in essence be their general counsel. We don't, because of the

nature of the practice, like I don't always attend WaterSound meetings. somebody else. Q Are there things that -- well, I shouldn't Are there tasks or acts that WaterSound Sometimes I have to send

say things.

can't perform without counsel being there? A They can't go into executive session

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 without me there. Q counsel? A I believe under the statute, to file a Can WaterSound HOA post liens without

lien, it has to be done by a lawyer. Q And that statute we're talking about, the

homeowner statutes 720 or 730 I guess it is? A Q Right. What other types of things do they need an

attorney to do? A Well, since they're a corporation, if they

wanted to sue somebody, they would have to have a lawyer. Q A Okay. If they want to defend a lawsuit, they Things that the I

would have to have a lawyer.

statute would absolutely require a lawyer to do.

guess that's the only thing that you absolutely have to have a lawyer. Q Is the board entitled to interpret the

governing documents without an attorney? A I don't know what you mean by interpret,

but they are actually required to read them. Q A The board is? Yeah. You know, to the extent they would

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them. Q So that the record is clear and we're all have some question, I would assume they would ask me. Q A What would you base that assumption on? That's what they pay me to do, advise

understanding this, I think you said that you were interviewed but that St. Joe was in control of the board at that time. position? A Q A The two homeowner representatives. And who would that be? Dale Putz was one. To be honest, I don't It was quite a Who interviewed you for that

remember who the other one was. while ago. Q know him? A

I wonder if it was Ron Romano. Do you know if Ron Romano -I know Ron.

Do you

I don't think it was Ron, but If he was the first homeowner

it might have been.

representative with Dale, then that's who it was. Q A Okay. And I think there might have been other

firms at that time but, again, I wasn't there. Q Do you remember being at meetings where

you were there representing the HOA and St. Joe also KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had an attorney there representing the HOA? A Well, in the early days, Ken Borick was

actually on the board. Q A Q A Q A Q Is Ken Borick an attorney? Yes. And he was -In-house St. Joe lawyer. -- WaterSound board of director as well? Yes. Okay. Well, let's try and recreate this Do you

May 23rd meeting of 2008 the best we can.

remember if someone brought a survey into that meeting? A Q A Q A Yes. They did? Yes. Do you know who it was? I think it was Mary Jolline (sic). The

way it came up is there was a presentation by a representative of the DRB, and in that presentation -Q A Q A Let's clear that up. Design review board. Okay. And in that presentation, it was discussed What's a DRB?

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A the survey of your tower. (WHEREUPON, the court reporter asked for clarification of the name Mary Jolline.) I think it was Mary Joule. To be honest,

I'm not 100 percent certain. Q Yeah. I'll have you take a brief look at There is something

this Page 2 of those minutes. circled, and that is -A

Well, maybe it was Tracy Regan. MR. CARROLL: For the record, Mr. Shipman

is looking at Plaintiff's Exhibit Number 2 -or Plaintiff's Exhibit 21 from the Joule deposition. A If the minutes say it was Tracy Regan,

then it was Tracy Regan. Q Let's see. At that same meeting, can you

tell me who's in attendance at that meeting? A Well, based on the minutes, it would

appear that four of the board members, Lisa Purul, Bridget Precise, Dale Putz, David Lilienthal. There's also from the management company Sandy Matteson, Alex Fambri, Amy Norsworthy. Then from I'm not

the maintenance, it would be Terri Moore. really sure who Amber Collins was.

Mary Joule,

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Tracy Regan and myself. And then it says there were Jack and Joan

some homeowners in attendance.

Luchese, Peggy Geppart and Ann Mosely. Q A Q A back then. Q We were talking about a few of the Okay. Yes. Is she partners with David Lilienthal? She is today. I don't know if she was Thank you. Do you know Ann Mosely?

individuals, and that Tracy Regan and Mary Joule, who did they work for? A Do you know?

Best of my understanding at the time, they

worked for the DRB. Q And is that the same DRB that functioned

at WaterColor? A At that time St. Joe controlled both

boards, and St. Joe appointed and controlled the DRB. So I guess -- I don't know. I don't know if

they worked for St. Joe DRB at that time or not. Q Were you the general counsel for the

WaterColor board at that time? A Q A Q Yes, I was. What about for WindMark Beach? No. River Camp?

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be? A I'm not sure who it was at that time. It might have I A We do some legal work River -- actually,

today we do some legal work for WindMark too, but we're not general counsel. Q A Okay. Now, the DRB is separate from the board,

and generally they did not meet with the board so -and I was not general counsel to the DRB. St. Joe controlled. Q Okay. You were saying that generally they Do you remember other DRB was

did not meet with the board.

meetings where DRB was present at WaterSound board meetings? A I mean, I'm sure they were, but it wasn't And generally, my memory was that

a regular thing.

usually when the DRB came before the board, the architect was there. Q When you say the architect, who would that

believe now it's Brian Stackable. been at that time. Q

But you're referring to the architect who

sits on the DRB? A Q Right. Now, let me see if I understand this

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did. Q A Q Do you know if the -And we're talking about 2008, right? Yeah, 2008. Have you seen a lot of right. How is the DRB created? What gave them any

authority, I guess, in WaterSound Beach? A Well, it's provided for under the

declaration. Q Do you know if the design review board

charged a fee for reviewing plans? A I wasn't their lawyer, but I imagine they

changes in the DRB between 2008 and today? A Well, today WaterSound board is now And if you read the

controlled by the homeowners.

declaration, I believe it's under Article 4, St. Joe is entitled to control the DRB until such time as they no longer own lots in the community. However,

since 2008, St. Joe has delegated to the board approval authority for variances. So today, not in

2008, but today, whenever the DRB is considering an application for a variance, it gets presented to the board. Q When we talk about St. Joe delegating that

authority, how would someone find out when that occurred? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then? A Q Right. So a person could scan through those to A I believe it would be reflected in the

minutes of the board. Q Do you know if St. Joe made that

delegation in writing? A Well, what the document that you're

referring to, Article 4, it requires that the delegation be in writing. It doesn't mean that St.

Joe has to actually create the written document, but there has to be a written document. So I believe in

the case of WaterSound today, it was announced at a meeting and a set of minutes were created. Q And that would be the written document

find out when the delegation -A Q A Right. Okay. I can tell you that. It was not until But that was not in 2008.

after control of the board was turned over to the homeowners, which I believe was 2010. Q I think you're right. Sometime around

October of 2010, I think.

This is going to be my

next question, and that is, we talked about this delegation of some control over the DRB functions, KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but that was limited to variances; is that correct? A As far as I can remember, yes, granting

and denying of variances. Q or denied? A DRB did it. They still do it. It's just Prior to that, how were variances granted

they have to come to the board and tell them they're going to -- well, the way it works now is if they're going to deny a variance, the person who sought it can come to the board and ask the board to consider it and overturn the DRB. If the DRB is going to

grant a variance, they have to notice the board they're going to do it and give the board an opportunity to convince them not to. Q Okay. I understand. And when we talk

about coming to the board, that's the board of directors? A Q committee? A different. Q Okay. Got you. Let me just ask you, if a The covenants committee is something Right. We talked a lot about this covenants

variance is granted, does the DRB file something in the public records or does the HOA file something in KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the public records? A Not in the public records, but there would

be something created in the file -- I assume the construction file -- for that particular lot of the DRB. Q These construction files, where are they

maintained? A Q Regan? A Q A Q No. And what about Mary Joule? No. Let me ask you again about Page 2 of that There's a section that's I don't know. Got you. I'm not the DRB's lawyer.

Are you the lawyer for Tracy

May 2008 meeting.

highlighted on that exhibit that talks about the tower being built next to the Yacht Pond. A There's nothing on here that's Are you talking about where you

highlighted.

circled the paragraph? Q something. A Q Okay. If you could just read that and refresh Yeah. I think it's circled with a pen or

your memory, I was going to ask you about that. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Okay. In there it says that the contractor was a

few inches from being out, but until he actually went over, there was nothing they could do. that your opinion or someone else's? A meeting. meeting. I had no opinion at the time of this I didn't know anything about it until the After the meeting, I was provided a copy Was

of a survey that showed that the height of the tower, which is incomplete, was 48.53 inches. The So

maximum height allowed by the county is 50 feet.

it would have been approximately one and a half feet below the maximum height, but it's an incomplete tower. Q When we talk about the county, is that the

building department that you're referencing, or what is that? A county? Q You said the maximum height according to Is that -What do you mean when we talked about the

the county is 50 feet. A

County regulation and it's also They adopted the same

WaterSound's regulation.

height restriction, 50 feet. Q Oh, they did?

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. How would somebody find that adoption?

Was that memorialized in writing, do you think? A It would be -- I don't know whether they

call it their construction guidelines or their construction code or their construction rules, but that's what it would be in. Q A Okay. Right. Somewhere it's written down? But regardless, they could not

adopt a height restriction that was greater than the county's. And the county's is in the building code,

or in the county ordinances addressing construction. Not necessarily the building code is actually statewide code, but they also have ordinances addressing construction. Q Did you tell Tracy Regan that ordinance --

or did you interpret that regulation for the board in some way? A Q A Q At that meeting? Yes. No. I see here it says, Gary Shipman advised

to have the building surveyor back out for another report and to ask Billy Bearden for assistance. What kind of assistance were you advising the board KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mind? A Q somewhere? May 16, 2008. Is there a field date on there, too, I see you look at the bottom towards the to get from Billy Bearden? A If they were concerned that it was

exceeding the maximum height limitation -- and I didn't like those minutes either. well written. They're not very

What I recall advising them is if

they are concerned that the tower exceeds the height limitation, Billy Bearden, who is head of the building inspectors, needed to know. to come out. So he needed

At that time, I believe I didn't have Afterwards, I requested it and

the actual survey. was given it. Q

When we started, we were talking about did Do you

somebody bring that survey to the meeting. need to revise that answer?

Do you know if somebody

did bring a survey to the meeting? A I think she had it there, but to be I know

honest, John, I don't remember for sure.

that before I wrote a letter, I told them I wanted a survey, and they gave me a copy of it. Q What's that survey dated, if you don't

signature part. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q meeting. A Q May 16, 2008. Up at the top.

So that was a week or two prior to that The meeting was -The meeting was seven days before. Let's see. It's saying here that Gary

suggested that unless the contractor is granted a variance, he would have to tear it down. variance are you talking about there? A If you want to exceed 50 feet, you would What

have to get both a variance from the county and a variance from WaterSound. Q I see here it says Gary would have the

board write a letter to the county opposing the variance. variance? A Because they don't want a tower that Why did you oppose the granting of the

exceeds 50 feet in their community. Q A Q Did somebody tell you that at the meeting? That was part of the discussion. Okay. It's saying here that David

Lilienthal asked Gary to write the letter, and it says that you agreed. A Yeah. I think whoever wrote those minutes

confused what letter is being discussed because the letter I was asked to write was to you, which I did. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. Q I see that letter. Did you have any

communications with the building department or Billy Bearden? A Q the board? A I doubt the board did, but I don't know I haven't questioned everybody on the board But I seriously doubt anybody on the The DRB might have. No. Do you know if the board did, anybody on

about it.

board would have. Q

You've seen a lot of these depositions,

and I guess you may have read some transcripts. There's this recurring theme of the community was concerned that the tower was going to be too tall. Do you know who it was who spearheaded that effort or who was talking about that tower possibly being too tall? A John, I don't know of any community That's what I'm not

perception that the tower was too tall. you've discussed in these depositions. aware of any of that. Q

It sounds like somebody was concerned

because they brought a survey to the board and said that the building was going to be too tall and that they didn't want any buildings over 50 feet. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, you're not allowed to have a

building over 50 feet. Q Do you know if there are any other

buildings in WaterSound over 50 feet? A Q Not that I know of. Did anybody share a written complaint that

I had talking about two towers that were over the height regulation? A Did anybody share that with you?

You mean where you sent an email to

somebody complaining about towers? Q A Q Or noticing them. I've seen your email. Did you recommend that the board take any

action on that email? A I can't advise you on what I discussed In an

with my client outside of the board meeting. open board meeting, I did not. Q A Q Okay. Anything else is privileged.

Do you know if the board or the DRB took

any action on those two buildings I talked about in that letter? A questions. Well, you just asked me two different As far as the board taking formal

action, formal, meaning legal, I'm not aware of any. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The DRB, I don't know. I can't tell you. Q Who told you that there's a county I'm not their lawyer and so

ordinance that talks about a 50-foot height maximum? A Q Who told me that? Yeah. How did you come to believe that

that's true? A Q Because there is. And that's what I'm wondering, how did you I'm sure you weren't At some point you

come to believe that's true. born with that understanding. came to believe that was true. A

John, that's kind of like asking me how

did I know that there are certain requirements of an HOA that are published in Chapter 720 of the Florida statutes. ask me. I don't understand what you're trying to Do I read things? Yes, I do. That's what

a lawyer does. Q Well, I guess what I'm trying to figure

out is you've said now three different things about this 50-foot height regulation. was a regulation. I think you said it

You talked about it maybe being a

building department issue and then you recanted and said it was, I think, an ordinance, and I'm wondering, did you know on this day, May of -KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did. Q that time? A John, I don't know how to do it today. That's why you hire surveyors. I just wonder if Did you know how to calculate 50 feet at A That you couldn't exceed 50 feet? Yes, I

I'm not a surveyor. Q

That's pretty fair.

you've ever read the height ordinance in Walton County? A Q A Q 50 feet? A I don't remember, John. If it does, I Have I read it? Yes.

The 50-foot height ordinance? Yes. Does it say in there how to calculate

wouldn't be the one who does it. Q Okay. Well, it's saying here, Gary

suggested that unless the contractor is granted a variance, he would have to tear it down. think that that's true today? A Q A Q If you exceeded 50 feet? Yes. Yes. And but you don't know how to calculate Do you

the 50 feet. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I would tell them to go hire a surveyor to I think I actually in the minutes

calculate it.

said they ought to have the surveyor back out there. Q It says that here. It says Gary Shipman

advised to have the building surveyor back out for another report. A Why did you advise that?

Because if we were going to tell you to

tear it down, I would want to make sure. Q Do you think that the survey that you have

there was the second report or the first one? A Q I think this one is the first one. Okay. That sounds in opposite to what you

just testified to me saying if you're going to tell me to tear it down, you would want to have another survey. But I think you're saying that you just

scrapped that idea. A No, I didn't tell you to tear it down. I

never filed a lawsuit against you seeking an injunction to order you to tear it down. In fact, I

believe I even told them at that meeting that until you completed your tower and it actually went over 50 feet, we couldn't make you tear it down. And in

fact, the day after I sent you -- you received this letter, I spoke to your lawyer where your lawyer told me that you had a survey that showed that our KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 survey was wrong. And my very words to Danny

Uhlfelder were, if your client doesn't exceed 50 feet, then he's not going to have a problem. if he does, be advised we will seek an injunction ordering him to tear it down. Q level? A John, it's 50 feet in compliance with the Fifty feet from where? Is it above sea But

county's ordinance and with the association's requirements that the tower not exceed 50 feet. don't do the measurements. that. Surveyors do. I

You know

That's why you had a survey and Danny And before

Uhlfelder referenced to me your survey.

I allowed the homeowner's association do anything further, there was another survey done, and that survey showed a discrepancy showing the present height was lower. And you came to a meeting, after

I told Danny you didn't have to worry about it if you didn't exceed 50 feet, and I told you, you need to complete your tower, and you need to make sure it's under 50 feet. But until it's completed, I

have no way of knowing whether you're going to comply or not. builder. Q As a builder or a homeowner? That's your responsibility as a

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Well, you were both in that case. What's your opinion on it? Is it as a

builder or a homeowner? A It's really both because under the

documents, if you read them, any violation by a builder is construed to the owner. In your case, it

was both, so you would be responsible both ways, as both the owner and the builder. Q Okay. Was John Carroll the builder or Do you know? You switched around

Chambers Street Builders? A

I don't know, John.

the ownership of the thing several times. Q You're right. Okay. You were talking

about Daniel Uhlfelder and that you had a conversation with him, and we're looking at Plaintiff's Exhibit 3. Mr. Shipman. It's a daily timesheet for Is that when you

It's dated June 4th.

said you talked to Danny Uhlfelder? A Q A Q A Q Yes. Why did you call my attorney? I didn't. He called me.

Did he say that he was my attorney? Yes. And what was the substance of his call?

Why did he call you? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Because he had the letter that I had

written you. Q A Q The May 28th letter? Yes. That letter, if you want to review it

yourself, you can, but it's saying in Paragraph 2, your current construction at Lot 24, WaterSound Beach, Phase IV, Walton County, is in violation of the WaterSound Beach community construction guidelines, specifically Page 25 of the WaterSound Beach Patterns for Placemaking 2002. Do you think

that, that regulation that we're talking about, 50 feet, is that Page 25 of the Patterns for Placemaking 2002 booklet? A I assume it is, but I haven't looked at it

in a long time, so I don't know. Q A Where did you get that information? I'm sure I got it from either Tracy Regan

or Mary Joule. Q Do you think that Sandra Matteson might

have helped you with that information? A Q She may have. I don't know.

It also goes on to say, in addition, your

current structure is in violation of county height ordinances along 30A. Is there a height ordinance

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 along 30A? A Q A Yes, 50 feet. And is it only along 30A? I know it specifically applies to 30A.

Whether it applies to other areas of the county, I don't remember. Q How would I find out if it does apply to That's the beach front road, right?

Highway 30A?

How would somebody look to see if the ordinance applies to Highway 30A? A Q A Q Go look it up and read it. In the Walton County ordinances? Right, or Walton County codes. It says we have reviewed the Voelker's

survey, a copy of which is attached for your review. It indicates that the present unfinished tower without the roof is 48.53 feet. you talk about in there? A Q I assume the we is the board. Is that the design review board or the Who's the we that

board of directors? A Q member? A I don't think she was on the board. I Both. Was Tracy Regan a design review board

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think she worked for them. Q What about Mary Joule, was she a design

review board member? A Again, I don't remember whether she was

actually on the board or whether she worked for them at the time. Q A Okay. It says here --

And I guess the we would also include me

because I read the survey. Q Got you. So based on that survey that you

have that says 48.53, was my construction in violation? It says in addition, your current

structure is in violation of county height ordinances. ordinance? A I believe the way I explained it cause I Was it in violation of the county

say in here, if you read the next sentence, I say, no structure may exceed 50 feet in total height. This leaves one and a half feet for the roof structure, which is not practical nor would it meet the design criteria. Based on the plans that you

had submitted at that time, and you can see from the picture, you don't have a roof on it yet. Q survey. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 That's right. You're looking at the

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A And the plans that you had submitted that

were approved, the way the roof structure was designed, you couldn't possibly do it in one and a half feet, and that's what I say in the letter. you read the minutes and you read what I'm saying here, technically, until you complete it and it goes over 50 feet, it's not in violation. Although, if If

you complete it and something is different than the plans that you had approved, it would be in violation. So this letter was intended to tell you,

you can't go over 50 feet period. Q It is talking about without the roof

design as submitted and approved by the design review board. A Q Right. The plans that were submitted for Lot 24

to the design review board, do you know what that top plate height was? 48.53 feet? Do you think it was

I mean, that's what we're seeing there Do you know

is the building just the top plate. what was the top plate height? A

All I know is that the survey that we had

without a roof was 48.53 inches, and that the angle that was required on your roof based on the plans that were approved were taller than one and a half KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 feet. Q Well, that's what I was getting at. Have

you framed a roof before? A Q A Have I framed a roof? Yeah. Have you framed a roof yourself? What

No, I have not framed a roof.

possible difference would that make? Q I'm wondering, the plans that were

approved, were there structural drawings in those plans? A Q A Do you know? You mean for the roof? For Lot 24 plans? Did you have to submit a complete set of

plans, including the structural components of the plans? Q Yes. And who reviewed those to see what the top

plate height was? A Q A In your plans? Yes. I'm sure it would have been the architect

on the DRB. Q Did the architect and the DRB tell you

that, that top plate 48.53 exceeded the height on the plans? A What I got told was that 48.53 feet

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. without a roof, if you built a roof structure that was approved, the roof structure required more than one and a half feet, and you would exceed 50 feet. Q A Who told you that? Whoever I got the information from, I don't

whether it was Tracy Regan or Mary Joule. remember. Q A Q A Was it somebody at that meeting?

It would have been after the meeting. Would that be an executive session? No. When they asked me to write the

letter, I requested the survey, and then I requested information on if you completed the tower, cause it's obviously not complete, how high would it be if you had built the plans, and I was told it would exceed one and a half feet. Q A Q Did you yourself review those plans? No. I'm not an architect. Well, there we have

I appreciate that.

This is my main problem I keep getting back to, And it's

and I really need to get an answer.

saying, without the roof design I submitted and approved by the design review board, it's 48.53 feet. A Right.

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Is it your opinion, or was it your opinion

at that time, that my structural drawing did not say I should build it 48.53 feet to the top plate? A I think if you read my letter, John, and

you read my next sentence, please be advised you must lower the tower structure so that it complies with the approved roof design and does not exceed 50 feet. And as I talked to your lawyer the very

next day after you got this letter and Danny and I discussed it and Danny assured me that your tower could be completed per the plans and it not exceed 50 feet, and I told Danny -- as I later told you in a meeting -- that as long as it didn't exceed 50 feet and it complied with the plans that had been approved, then you didn't have a problem. But until

the tower was completed, there's no way for me to know whether or not it meets the 50 feet. Q That survey that's attached to that

letter, it was dated -- the letter is dated May 28, but I think the survey is dated May 16th. How was I

as the owner or the builder to determine exactly what the board wanted to do? A The board wanted you to not exceed 50 feet

on your tower. Q And when you say not exceed 50 feet,

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2008. 50 feet from where? A ordinance. Q anywhere? A No. But Danny, your lawyer, knew what I In fact, Is that ordinance number in your letter Fifty feet in accordance with the county

was talking about because we discussed it.

Danny discussed with me that he had talked to you and that you had insisted that the surveyor measured the base of the tower from the wrong point. Q A He did? Yes, he did. And that's when I told him,

if you don't exceed 50 feet, you don't have a problem. But if you do, be advised, we will seek an

injunction and make you tear it down. Q Well, that was on June 4th, 2008. When

did you tell the board that, about your discussion with my attorney? A The full board or when did I have a

communication? Q Well, I see a letter dated December 19th, Did you tell anybody at the full board prior

to this? A Yeah. There were at least two board

meetings where you were in attendance, John. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A When were those? I don't remember the dates, but they would

have been in between this letter and that letter. The next board meeting, I believe you were there. believe by that point in time, we had a new survey. I right away told -- I believe it was Sandy Matteson, who is the board manager, who was my contact -- that we needed to get a new survey, and we did. And at the next board meeting, you showed I

up wanting a new letter saying that your tower was in compliance. In fact, you did that at least two

board meetings, and I told you both times, there's no way for us to say your tower complies until you complete the tower. Q Do you know if in the covenants and

restrictions for WaterSound if an owner can request such a letter, whether or not construction is in compliance or not? A Yes, you can, but you have to complete the

portion that you're seeking a letter of compliance on. Q Well, this is what I'm seeing here. It

says, please be advised that you must lower the tower structure so it complies with the approved roof design. Apparently, you're saying, your

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 current construction is in violation. A And then I talked to your lawyer and we

got a new survey, and my understanding is -- I've seen the email. Mary Joule sent you an email saying

here's the new survey, and if you complete your tower in conformance with what has been approved, then it will meet the 50-foot requirement. Now,

when you came to the board and you wanted a letter saying that your tower was in compliance, I repeatedly told you in at least two meetings that until you completed the tower, we couldn't do that because you hadn't completed it, and we didn't know until you completed it that you were complying with the approved plans. And under the declaration that

you're talking about where you can seek a letter advising you that your construction is compliant, you have to complete whatever the portion is of the construction that you're wanting a letter telling you it's compliant on. Q Right. Well, there you go. I mean, are

you not understanding that I'm saying your letter says, your current construction is in violation, and I'm asking you to tell me whether or not my current construction was in violation or not. Apparently

the board writes me a letter certified saying your KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 current construction is in violation, and I'm asking for the board to write me a letter saying is my current construction in violations or not? already said it is. A And you got an email from Mary Joule after You've

the second survey telling you that if you completed your tower in accordance with the approved plans that it would comply. And I told your lawyer when

he called me and said you disputed the survey, that it wasn't done correctly, Danny and I specifically had a discussion where I said, Danny, if he doesn't go over 50 feet, then he's not going to have a problem. In fact, you sent out an email to probably

everybody and their brother in WaterSound saying we have now reversed our position. Q A read it. Q A Q Do you have that email? No. Where is it now? Apparently you're How do you know that's true? Because you copied me on the email and I

telling me that you read it? A Q Probably out in cyberspace somewhere. I don't know the email you're talking

about, but I do remember something that was a KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. CARROLL: Q I guess I want to sum this up because we You discussion that was held on the WaterSound homeowner's chat board. Do you think that's the

email that you're talking about? A Q You wrote it, John. And you read it because I sent it to you; I mean, that's what you're saying.

is that right?

I've got to object otherwise -A email. I got a copy of it. I mean, it was on my After awhile I

I got a lot of your emails.

got to the point where I just deleted them. Q A Q A Q A Q Did you read them? Not all of them, no. I bet. Why not?

I have better things to do with my time. Was I a homeowner at the time? You were at least a lot owner. That's true. Good point.

(WHEREUPON, a short break was taken.)

talked so much about so many different things. were saying that -- correct me if I'm wrong --

you're not Tracy Regan's attorney; you're not Mary Joule's attorney. Were you the attorney for the

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DRB? A No, I've already told you that four or

five times. Q Okay. Got you. Would the letter that

you're referring to -- I think you said that Mary Joule sent me an email talking about the height violation or something, that they had a new survey. Would that have been a letter from St. Joe to me? A I think it would have been a letter from

the DRB to you. Q Okay. MR. GEORGE: I think you're actually Remember

referring to the Tracy Regan email.

she sent you an email mid June saying we have a revised survey. Based on that, we don't think

you're going to exceed 50 feet? MR. SHIPMAN: MR. GEORGE: Mary Joule. I confuse the two of them -I think you're talking about

I've got that email in my trial

exhibits in my car if you want me to go get it. MR. CARROLL: It might even be in these

exhibits, but maybe not. MR. GEORGE: You want me to go grab my

trial exhibits out of the car cause it's one of mine? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A MR. CARROLL: MR. GEORGE: It is? And they're in a binder in

the trunk of my car. MR. CARROLL: Yeah, okay. Thanks a lot.

Is it already marked as a trial exhibit? MR. GEORGE: Well, it's in my binder.

We're going to put together a complete set of trial exhibits. (WHEREUPON, a short break was taken.) So that I can correct this, I've been Apparently So it's

using the name Mary Joule on this email. it's Tracy Regan. She copied Mary Joule.

an email dated June 17th, 2008.

And then said, so

there's no misunderstanding, when Mr. Carroll has repeatedly asked about, you can ask for a certificate of architectural compliance. refers to Section 4.7 of the declaration. That And what

it provides for is an owner may request in writing that the reviewer issue a certificate of architectural compliance certifying there are no known violations of this article in the design guidelines, and the reviewer is defined as the DRB or the developer. directors. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 This would not be the board of

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Thank you. The letter that we were just

talking about from Tracy Regan, I'm marking it as Plaintiff's Exhibit 4 to this deposition so it's clear. And I'm reading it, yeah, it says based on

revised survey completed by Voelker's Surveying for Lot 24, we believe that the height of the tower can be maintained at 50 feet or less when the roof is completed. letter? A No. And under the declaration, the board Did the board of directors write me this

of directors wouldn't be the one that would write it to you. Q Under the declaration, would it be the

board of directors who was to write Plaintiff's Exhibit 1 to me, or would that be the DRB? A It could be either one. If you read

Section 4.8 under enforcement, it provides enforcement powers to both the declarant, which would be St. Joe, the association and the DRB. Q When it talks about enforcement,

enforcement of what? A Any construction, alteration or other work

done in violation of the article or the design guidelines. Q Okay.

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CARROLL: revised survey? Do you have Voelker's Can I please have it? If not,

I'll have to look through my things here. MR. GEORGE: You can get a copy made. I

don't have an extra one in here.

Do you want

to mark it or do you just want to ask him a question about it? MR. CARROLL: MR. SHIPMAN: I'd like to mark it. You want to just let me look

at it and mark it later after this is over? MR. CARROLL: Okay. We're going to call

that when it's ready Plaintiff's Exhibit 5. BY MR. CARROLL: Q Is that the revised survey that Ronald

Voelker prepared for the board of directors? A Well, I assume it's the revised survey.

I'm not attesting as to the originality, but I assume that this was what was produced by Mr. Voelker. And whether or not it was ordered by I

the DRB or the board of directors, I'm not sure. assume it was ordered by the DRB. Q Okay. Got you. Does the revised survey

indicate that the tower as constructed was in violation of the county height ordinance? A Are you talking about the one dated -- I

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Okay. Q one. Q A I think you put a little asterisk. Oh, I see. Revised, June 9th, 2008. can't read the date on this. Q There's kind of a thin note that says -MR. GEORGE: Yeah, here's a better copy.

This is part of another one of our trial exhibits. A No, this isn't it. This is the May 16th

So what was the question? Does that survey, that revised survey,

indicate that the tower is in violation of the county height ordinance? A Q A Q As of June 8th, 2008? Yes. No. And does the survey from Plaintiff's

Exhibit 1 indicate that the tower is in violation of the county height ordinance? A Q A Q A So now we're talking about May 16, 2008? Yes. The survey alone? Yes. It doesn't show it as exceeding 50 feet.

It shows it at 48.53 feet, but it's an incomplete KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A architect. Q A tower. Q Was that tower as presently built there on

May 16th, 2008 in violation of the county height ordinance? MR. GEORGE: Object to form.

As of May 16, 2008 in its incomplete

condition, as I also stated in my letter, it had not exceeded 50 feet and therefore wasn't in violation. However, it was incomplete. Q It had to be completed.

Knowing everything you know today about

the county height ordinance, would that -- could that tower have been built, even if it were 48.53 feet, could it have been built in compliance with the plans and still not exceeded the county height ordinance? I'll put it in simpler terms. If

I put the roof on as was designed and approved by the DRB on top of the 48.53 plate height, would the building have violated the county height ordinance? A Based on what I understand your approved

plan showed for your roof line, the height of the roof was more than 1.47 inches. MR. GEORGE: Or feet. You mean feet. But I'm not an

Excuse me.

I don't know. That's good. When Tracy Regan wrote this

KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 letter on June 17th, I guess she's saying, based on the revised survey completed by Voelker's Surveying, we believe that the height of the tower can be maintained at 50 feet or less. the board of directors? A Q A Q I believe she's speaking for the DRB. Okay. Or St. Joe or both. You were saying -- I see Sandy Matteson is Do you see anybody Was she speaking for

copied and Mary Joule is copied.

else who was copied on this transmission? A Q A Joule. Q What was Sandra Matteson's position at The document speaks for itself so. Okay. It only shows a cc to Sandy and Mary

WaterSound at the time? A region. Sandy was vice president of CCM for this CCM managed WaterSound. The actual manager

was Alex -- I think her last name was Fambri, F-A-M-B-R-I, I believe. So she would have been the

manager's boss in the management company. Q Okay. Got you. Does Florida statute talk

about managers, for instance, does it say that an HOA must have a manager? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A An HOA does not have to employ a manager,

but if they do, they need to employ a CAM. Q A license. Q Okay. We were talking a minute ago about And a CAM is the -Community Association Manager. It's a

a letter that you said -- or email that I sent to everybody saying something about a retraction. was that? What

You made reference to something, but you

don't have that email. A Right after I spoke to Danny Uhlfelder,

you sent something out to the community talking about that now your tower was in compliance and that we had changed our opinion or position or something. It was a very long rambling email to be honest. briefly read it and deleted it. Q A Q Okay. Like I did most of your emails. Did you talk to Daniel Uhlfelder after I I

wrote that letter and tell him that the board did not retract their -- did not give a complete retraction? A Q No. Did you only talk to Daniel Uhlfelder one

time about this tower? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Formally, yes. And the formal one is memorialized by this

June 4th timesheet? A Q A Yes. What about informally? I ran into him in the hallway in the

courthouse one day. Q A Was it around this period of time? I think it was later, but he no longer

represented you at that time. Q Okay. Got you. Did you pass on any

opinion to him either way at that time about whether or not the building was in compliance or not? A To the best of my memory, I think I asked I told him that Did he know

him if he still represented you.

you still hadn't completed your tower.

what was going on with you as to why you weren't finishing your tower, and he told me that he didn't represent you and didn't know. Q The conversation that you had on June 4th,

2008 is not rectifying with what Mr. Uhlfelder told me, and I'm just going to tell you or ask you a question about this. I remember writing a letter

and sending it out to all the homeowners in WaterSound saying that Sandra Matteson had made a KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complete retraction. And I remember Daniel

Uhlfelder calling me the next day and say, I just got off the phone with Gary. mouth. You put words in his

The board did not make a complete They told you that until your tower was

retraction.

complete, they weren't going to say one way or the other. A recall. Maybe I called him a second time. I don't

When I looked through my timesheets, if I

did, I didn't bill for it. Q Do you remember Sandra Matteson making a

complete retraction? A Q No. Do you remember talking to Daniel at all

and telling him that? A That Sandra Matteson made a complete

retraction? Q That Sandra Matteson did not make a

complete retraction and that for me to send out a letter to the homeowners saying she had was wrong? A If I had such a conversation with Daniel,

I would have told him that I read your email and it was incorrect. And your email was basically

something to the effect that your tower was in compliance and -KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A I remember that. -- and you hadn't completed it. As I told

you in repeated meetings, until you completed the tower, there was no way for us to tell that your tower was in compliance because it was incomplete. Q And that's what I'm seeing in this We're calling it Plaintiff's

December 19th letter. 2. A

Which was perplexing because now we're in

December, and you still have done nothing on your tower. Q There was a meeting that we talked about

in depositions that was in November of 2008 between myself and Sandra Matteson, Alex Fambri and Jack Luchese and Tracy Regan. That meeting, we were

supposed to discuss how to move forward on Lot 24. At the end of that meeting, Sandra Matteson said she wrote you a letter saying -- she told us she would get a letter from you, the board's attorney, saying that the tower was not in violation. remember anything about that? A I remember whatever meeting occurred Do you

before this December meeting where we discussed what we could write you, and once again, as we had in several other meetings, I advised that until you KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 completed your tower, we could not write you a letter that said your tower was in compliance. Q And like you said, you were perplexed

because here it was December 19th and your letter says, your roof structure had not been -- and at the point of this letter -- has still not been placed on the tower. Do you know if the roof structure was on

the tower 10 days later? A Q I have no idea. Do you know when the roof structure got

put on the tower? A Q No. Do you know if the roof structure is on

the tower now? A To be honest, John, I think it is, but I

haven't examined your house. Q Did you receive, as the board's attorney,

a survey which depicted the height of the finished tower at any point? A Unless the board wanted me to act on

something, there would be no reason for them to give it to me. Q I think we were saying I made a request

for architectural compliance, and I think your response was, until your tower is complete, we can't KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 give you that letter. Yeah, that's interesting.

Did you ever as the board's attorney write a letter saying your tower is in compliance with the height ordinance? A As the board's lawyer as opposed to the

DRB's lawyer, which I'm not? Q A Q A You never were the DRB's attorney? No. Okay. Unless the board specifically requested

that I do so, I would not, because that's the DRB's job. Q A Okay. The only reason I wrote that letter is

because you had been at several meetings where you repeatedly -- and it was like a broken record -- you would talk about wanting us to tell you that your tower was in compliance, and you were repeatedly told, until you put the roof on, there's no way to know. Q Well, that's my point. I think at some

point the other parties all said, yeah, we observe John building over there, and we know that the tower is built. He's got his shingles on the roof. Do

you know of anybody who wrote me a letter after the KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 Gary. that. MR. CARROLL: Well, that's all I have for on. tower roof was on that said your tower is in compliance with the height ordinance? A After the tower roof was on, did you ever

come to the board and ask them to write you that letter? Q A Or ask them again? Well, you never asked when the roof was

Did you ever come and ask after you put the

roof on? Q I did. I actually sent this certified

letter asking for a complete retraction and told y'all that I was going to sue for liable if I didn't get it. A And you deem that as a request under

Section 4.8 of the declaration as a advisory letter as to whether or not you're complying with the building requirements? Q A Yes. Well, that isn't how I would interpret

Thanks a lot, Gary. MR. GEORGE: I don't have anything.

(Deposition completed.)

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 _____________________________ KATHRYN B. PEACOCK Notary Public, State of Florida WITNESS my hand and official seal this 23rd day of August, 2011. A STATE OF FLORIDA COUNTY OF OKALOOSA I, the undersigned authority, certify that GARY A. SHIPMAN personally appeared before me and was duly sworn. CERTIFICATE OF OATH

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 KATHRYN B. PEACOCK Freelance Court Reporter I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in this action. I, Kathryn B. Peacock, Freelance Court Reporter, certify that I was authorized to and did stenographically report the foregoing deposition; that a review of the transcript was not requested; and that the transcript is a true record of the testimony given by the witness. STATE OF FLORIDA COUNTY OF OKALOOSA REPORTER'S DEPOSITION CERTIFICATE

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 Subscribed and sworn before me this ____ day of ________________, 2011, by GARY SHIPMAN, who has shown me the following identification or is personally known to me. ____________________ NOTARY PUBLIC STATE OF FLORIDA COUNTY OF OKALOOSA ___________________ GARY SHIPMAN, PAGE SIGNATURE PAGE I, GARY SHIPMAN, do hereby certify that I have read the preceding pages and that they are correct with the following exceptions: LINE CHANGE/REVISION