Nancy Taylor Deposition
Friday, April 1, 2022
THE ARBITRATOR: Okay. Thank you, Mr. Darling. You're excused. (Whereupon, the witness was excused.)
THE ARBITRATOR: Next witness.
MR. EMRICH: Nancy Taylor, your Honor.
THE ARBITRATOR: Who is Dave Petrella?
MS. WOODCOCK: Dr. Petrella is the representative of the Club at La Peninsula.
THE ARBITRATOR: Okay. His background is totally whited out. I can't even see his face.
MR. EMRICH: I know. This is wild.
THE ARBITRATOR: Okay.
MR. EMRICH: I'm waiting for Nancy Taylor.
THE WITNESS: I'm here. I think I'm on Zoom.
THE ARBITRATOR: There you are.
MS. WOODCOCK: We can hear you, Nancy.
THE WITNESS: Okay.
MR. EMRICH: Could you give your name for the record, please?
MS. WOODCOCK: Oh, sorry to interrupt. I think you need to swear her in.
MR. EMRICH: I was just going to ask him to do that once she gave her name for the record?
THE WITNESS: Nancy Taylor.
THE ARBITRATOR: Ms. Taylor, please raise your right hand.
(The oath was thereupon duly administered to the witness by the Notary.) NANCY TAYLOR, having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
By: Mr. Emrich
Q. Ms. Taylor, are you a resident of 200 building at La Peninsula?
A. Yes, I am.
Q. How long have you lived there, ma'am?
A. Since 2010.
Q. And in connection with that, have you also served on the various boards there regarding the governance of the condominium associations?
A. Yes, I have.
Q. Could you tell us, please, exactly what your role has been in that regard with regard to 200 building?
A. I've been the treasurer of the 200 board since, I think, 2011, maybe 2012. I'd have to go back and look and see when I was first elected.
Q. And as treasurer, you're also a board member?
A. Yes.
Q. And are you still a board member today?
A. Yes, I am.
Q. And did you have any other role on any other
boards at La Peninsula?
A. The 200 building?
Q. With regard to, say, the master board?
A. Yes. I've been the treasurer of the master association for about three years.
Q. So, that would date back to what date?
A. Oh, I think probably 2018. I'm not really sure.
Q. And in connection with your work on those boards, and in particular with regard to the 200 board, were you involved in the -- what we refer to as "the walkway project?"
A. Yes, I have been.
Q. And could you tell us how long you've been involved in that project?
A. Since its inception, which --
Q. And -- I'm sorry. I didn't mean to interrupt. since, I think, 2011, maybe 2012. I'd have to go back and look and see when I was first elected.
Q. And as treasurer, you're also a board member?
A. Yes.
Q. And are you still a board member today?
A. Yes, I am.
Q. And did you have any other role on any other boards at La Peninsula?
A. The 200 building?
Q. With regard to, say, the master board?
A. Yes. I've been the treasurer of the master association for about three years.
Q. So, that would date back to what date?
A. Oh, I think probably 2018. I'm not really sure.
Q. And in connection with your work on those boards, and in particular with regard to the 200 board, were you involved in the -- what we refer to as "the walkway project?"
A. Yes, I have been.
Q. And could you tell us how long you've been involved in that project?
A. Since its inception, which --
Q. And -- I'm sorry. I didn't mean to interrupt.
A. Since we started working on it.
Q. And what exactly was your role?
A. My role was working with the other board members in terms of looking at possibilities, conceptualizing and setting up (audio failure) walkway confirmed, and work through the master board approval process.
Q. And as I understand the timeline -- and again correct me if I'm wrong -- since you are the one that has been working on this since its inception, as you've testified, would you have been -- would you be knowledgeable or familiar with when the project went to the 200 board for consideration?
A. Can you define "going to the 200 board for consideration." There was a number of steps. I'd like to know that I'm identifying the correct steps.
Q. When was the first time that this project was put to the 200 board for a specific approval?
A. For specific legal approval was in June of 2018. And board discussions before that, but the real action was June of 2018.
Q. Okay. And prior to that, would there have been board action, specific board action taken?
A. No. Other than just discussions and information to owners.
Q. Well, let's take a look at exhibit --
A. Oh, wait. No, wait. You're right. I've got to stop. 2017 we looked at that -- a discussion about looking at the plans, of looking at the conception, I'm sorry. 2017.
Q. Any other time that you recall?
A. I don't recall.
Q. Now, when was the project -- you mentioned that you were involved since its inception. When would have been the inception of the project?
A. I would say the official inception would have been that discussion in 2017. I don't think any of the other discussions were more just informational and research. So, they weren't legal or formal steps.
Q. So, were you authorized by the board to take the research -- to perform the research and look into this project by the board?
A. As the board members, yes, we were looking into it.
Q. And when did that start?
A. Again, I'd have to go back, but 2017 is the first I recall officially of having made some movement or something as the board.
Q. What do you recall about that movement, because we've had no -- we've been provided no documentation regarding any activity of the board in 2017. Do you have a specific recollection of when that would have been?
A. No. It would be in some of the minutes that have been provided, I believe, which is in 2017. We had a discussion about looking into the project. And what would be involved with that.
Q. And was there a specific approval or an authorization to move forward to another step at that time?
A. There was an authorization to look at seeing about what would be involved in developing such a proposal. Yes.
Q. And what did you do in response to that particular step?
A. We made overtures to an engineer and contracting company to see what it would take to pull such a plan together.
Q. And would that have been WJ Johnson?
A. Yes.
Q. And you would have been working with them?
A. Yes.
Q. And we've been provided with documents regarding --
THE COURT REPORTER: Can't hear you.
MR. EMRICH: I'm sorry Janet.
BY MR. EMRICH:
Q. Would have been provided with a couple of documents regarding the work that they did, and those would be Exhibit R-1, and there are two documents in that document, in that exhibit. And I'd ask that those be pulled up. That's R-1. (Whereupon, the document was marked as Respondent's Exhibit No. 1 for identification.)
BY MR. EMRICH:
Q. Looking at the first document as part of R-1, we have a letter to the board of directors from WJ Johnson and Associates dated January 26, 2008, sent care of -- sent care of Matt Darling who is Resort Management. Correct?
A. Correct.
Q. And were you working with Mr. Darling on this project?
A. Only in the sense that we looked for probably some recommendation on an engineering company or something like that for it, as we were starting to get past the conceptual ideas of what we were talking about.
Q. So, this would have been the first official document or proposal from anybody regarding the project that you were moving forward with. Correct?
A. Yes.
Q. And at this point, what do you recall being the next steps that were taken?
A. The next steps that were taken was to work with WJ Johnson, and to look at what it would take to secure an engineer, and move forward to develop a plan that we could present to the owners.
Q. When they -- when WJ Johnson gave you the proposal that was referenced in that R-1, were there any renderings included with that particular proposal?
A. I'm not going to tell you -- I can't recall exactly what was attached to each one of these, but we did have renderings done that were showing, like, an overhead view of the project to see what it would conceivably look like. We also had some Photo Shop pictures done that would show what we thought it would look like. I cannot tell you that I am going to attach those drawings to this exact January 22nd, 2018, date, because we were looking at a lot of different documents.
Q. I understand.
A. Excuse me if I -- I'm sorry. I don't know if you guys know. I have COVID, so I'm still working through that. So, excuse me just a second here. Okay. So, I can't exactly attach renderings and drawings to each one unless you have them attached here.
Q. We'll get to that. All I want to know is if you recall receiving any renderings with that particular proposal?
A. I do not recall receiving the renderings exactly with this proposal. I might have, but I do not recall.
Q. After you received this proposal, what do you recall doing?
A. Probably we had continued discussions about what we would do with the drawings, and more particularly how we would secure an engineer who could possibly do the design work and implementation, construction.
Q. And at some point do you recall going back to the board at La Pen regarding these particular minutes? I'm sorry, regarding this particular project?
A. Other than an occasional update between 2017 and 2018, no. I don't recall any formal action.
MR. EMRICH: All right. Let's put Exhibit R-18 on the screen. (Whereupon, the document was marked as Respondent's Exhibit No. 18 for identification.)
BY MR. EMRICH:
Q. I show you what we've introduced as R-18. Could you take look at that, please?
A. Oh, yeah. This is the action that we took in March of '18, in order to draw up a proxy, in order to get approval for the building.
Q. So, again, this would have been following the receipt from RJ -- WJ Johnson of the proposal that you referenced previously. Correct?
A. We had an initial -- a plan and approval from RJ, then we had an official plan. So I'm not sure which one you might be referring to as attached. But yes, we did have some renditions and some pictures that would been referenced in addition to this proposal for a proxy.
Q. And looking at this particular exhibit, if we look at Exhibit 3, and we'll look at Section 3-B, that is where you specifically discuss the walkway. Correct?
A. Correct.
Q. And according to the comments in the minutes, that 200 La Peninsula is looking into approving handicapped accessibilities throughout the 200 building. Correct?
A. That was our goal and our hope. Yes.
Q. All right. And according to that particular -- those particular minutes, you indicated that you authorized Jamie Gruesel, that apparently was one of your association attorneys at the time?
A. Jamie is our legal counsel, yes.
Q. And is it a he or a she?
A. It's a she.
Q. She was authorized to draft a legal document and send to the owners to approve or deny the concept of adding townhouse walkways that connected nine units to the elevator; is that correct?
A. The proxy, I do not believe, specified nine units. I'd have to go back and look, or if you have a copy of it --
Q. We'll get there. I'm just asking about this particular -- these minutes. That's what the minutes say. Correct?
A. Okay. The proxy says -- approve or deny the concept. Yes, it was a concept connecting nine. Yes.
Q. So, this concept that was approved in March of 2018 was going to connect nine units to this walkway. Correct?
A. It was a concept of adding nine units as long as all nine people agreed to it. So, the proxy was not necessarily going to designate that number, but it was going to authorize us to look into that concept and that approval of the proxy. Yes.
Q. And that -- so, again this particular project that was authorized at that particular meeting specifically referred to a walkway that was to connect nine units to the elevator. Correct?
A. At this time on March 28, 2018, we were discussing nine --
THE COURT REPORTER: Discussing what? It totally dropped off.
THE WITNESS: Nine potential connections.
BY MR. EMRICH:
Q. And those were the nine unit owners that were going to be connected to that walkway. Correct? That was the concept or the plan; is that right?
A. That was the concept.
Q. And according to those minutes, that walkway was going to be funded by the owners of those new unit -- those nine units. Correct?
A. If they agreed to it, yes.
Q. So, that was a condition to that particular project going forward. Correct?
A. If the nine current owners at the time of passing the proxy were supportive, then yes, it would be.
Q. So, the answer to my question is yes, that was a condition to the project moving forward. Correct?
A. I think I disagree with some of the -- you're adding into this. So, no. I would say that it was a proxy looking at a concept for nine units to see if owners agreed to it, and then we would move forward.
Q. Thank you. I'll move on. So, again, the next sentence in that particular -- those minutes, it said: If approved by an owners' vote, the concept will then go to ARC for approval. Correct?
A. At the time ARC was the standard of operation, but really it was the master board. The arc was the recommending body, and then it would go to the master board for final approval.
Q. I didn't ask for any explanation. I simply asked if the March 28th minutes indicated that, if this concept, this nine-unit walkway was approved by an owner vote, the concept would then go to ARC for Approval. That's what the minutes said. Correct?
THE ARBITRATOR: Mr. Emrich --
MS. WOODCOCK: Objection. But --
THE ARBITRATOR: -- the documents speak for themselves.
MR. EMRICH: Thank you. Thank you, your Honor.
THE ARBITRATOR: Now, if you want to ask her things about what happened at the unit owners' meeting, or if she denies anything that's on the minutes, that's one thing. But to go sentence by sentence for the rest of this hearing as to what is already printed on the paper, I don't see the sense in that. I could read it. It's there. And I would ask you to tell your questions so that we don't have to go sentence by sentence, and have her either authenticate it, agree with it, or disagree with it.
MR. EMRICH: That's fair enough, your Honor. I'll do my best to do that. I'm just trying to make it clear as that to what the particular project was.
THE ARBITRATOR: Well, then ask her: What did the project include at this point in time?
MR. EMRICH: And that's what I was trying to do.
THE ARBITRATOR: Thank you, sir.
MR. EMRICH: My apologies.
THE ARBITRATOR: All right.
BY MR. EMRICH:
Q. So, following that meeting, the vote of the project then went to a vote by the building owners of the 200 building. Correct?
A. Not following that meeting. At a different meeting.
Q. As I said, following this meeting, it went to a vote of the 200 board. Correct?
A. We did not vote at this meeting on -- I guess I don't understand your question. I'm sorry. At this meeting we voted for this concept and to get a legal proxy. At another meeting we voted to pass the proxy. So, I guess I'd like you to qualify that question, please.
Q. Following this meeting, after this meeting, the proxy was then generated and sent to the owners of building 200. Correct?
A. Yes.
Q. And that proxy dealt with a special meeting that was to be held on June 26, 2018. Correct?
A. Yes.
Q. And if we go to Exhibit 10, put ten up on the board.
MS. WARD: Did you want P-10 or R-10?
MR. EMRICH: P-10.
(Whereupon, the document was marked as Petitioner's Exhibit No. 10 for identification.)
BY MR. EMRICH:
Q. Looking at P-10, Ms. Taylor, have you seen this document before?
A. Yes.
Q. And would that have been the document that would have been sent to the 200 building owners regarding the walkway project that you were requesting authorization to move forward with? Correct?
A. Correct. Yes.
Q. And would that document have correctly stated what the conditions were with regard to the exercise of that proxy, and what was to happen if the proxy were approved? Correct?
A. It dealt specifically with the reflection that the owners of the nine units would bear the construction cost as you have outlined here on this one. I don't who outlined this part. I don't know if you did or if it came that way. That part is correct.
Q. Does that outline -- does that information -- that statement that's in the box correctly state what the project -- what was going to happen with respect to the project if the project was approved?
A. Yes. The nine units would be affected, and the nine owners would have the option of agreeing to the actual cost and bearing the cost of the construction.
Q. And again, it indicates that no action would go forward until all those nine unit owners agreed to the actual cost. Correct?
A. No. It was going to go forward in terms of the structure of the project. The project, if you're not physically familiar with it, it was constructed in four -- it was designed in four --
Q. I'm asking you what that document says, and if it accurately states what the project was. And so, again, your Honor, I will simply refer to the documents.
A. No. It does not accurately reflect the full story. No. It does not.
Q. I don't want to argue with her. The document reflects as to what's to happen at the vote, and with the project. Correct?
A. No.
MS. WOODCOCK: Objection. Asked and answered. She just answered that she did not agree with that.
THE ARBITRATOR: If we're going to get into this, I mean, I'm going to be here all day being a referee. You're asking close-ended questions which are typical cross-examination. The documents speaks for itself. If the witness wants to disagree with something, she's allowed to expand upon her answer. So, I'm going to ask you to stop asking close-ended questions. This is direct examination. Let's get on with this, please. (Whereupon, the document was marked as Petitioner's Exhibit No. 11 for identification.)
BY MR. EMRICH:
Q. Now, the next document is the proxy that was sent to the -- sent to the building owners with that letter. Correct?
A. I'm sorry. I lost the mic there at the end. Would you repeat that?
Q. The proxy, Exhibit 11, was then sent to the owners. Correct?
A. Yes.
Q. And according to that proxy, it indicates that you're asking the owners whether or not the walkway should be constructed for Units 201, 202, 203, 208, 209, 210, 211, 212, and 213. Correct?
A. Yes, if they could. Yes. That was what we intended.
Q. And, in fact, that particular proposal, in fact, passed the 200 board. Correct?
A. Correct. (Whereupon, the document was marked as Petitioner's Exhibit No. 13 for identification.)
BY MR. EMRICH:
Q. And according to the minutes in Exhibit 13, the project was approved to construct walkways connecting Units 201, 202, 203, and on as indicated in that proxy. Correct?
A. Yes. It was indicated for those current owners to have that constructed if they wished to. Yes. (Whereupon, the document was marked as Petitioner's Exhibit No. 12 for identification.)
BY MR. EMRICH;
Q. Now, looking at the actual votes in
Exhibit 12, P-12, three of the affected units did not approve the project. Correct?
A. I'll take your word for it without me going through and counting each one and seeing who's where, yeah.
Q. And why was that -- why did the project then go forward if three of the affected units that were going to be connected by that project did not approve it?
A. Because the vote was to allow the board the authority to look at developing the project. Afterwards the owners in the affected units could decide to opt out, which in effect would have killed the project. But this vote was to allow us to go forward with the project.
Q. So, again, then if those owners opted out, it would kill the project. Right?
A. Eventually it could if they didn't participate. However, as I said -- no, if I'm going to answer, you've got to let me finish.
Q. I said I'm sorry. Go ahead and finish.
A. Okay. Sorry. Okay. We'll go forward slowly here. The units -- the project was broken up into -- it was essentially constructed in four parts: Townhomes on the left, townhomes on the right, ground units on the left, ground units on the right. If any one of those particular sections backed out, the other three could still proceed.
Q. Now, where does it say that in the minutes approving the project? Where does it say that?
A. It says the board has the authority to make this -- to look at it. Go back and read the proxy. The board had the authority to set up this project.
Q. The board -- it says the board had the final approval of the plans; is that correct?
A. That is correct. So, we would have plans
that would have this set up, and that would be the final approval of our plan.
Q. And the first part of it indicates that the vote was to construct a walkway connecting those nine units. Correct?
A. That was an option for those ground units to look at, or the townhouse units to look at.
Q. Now, as I understand it, the project that this was based on had some renderings that were submitted to the --
THE COURT REPORTER: The what?
THE WITNESS: I can't hear you. When you speak away from the mic, I cannot hear you.
BY MR. EMRICH:
Q. I'm sorry. The project that was approved in this meeting to connect these units was subject to some renderings that were presented to the board; is that correct?
A. Yes. We had renderings that would depict what we hopped to be the project. Yes.
Q. And looking at Exhibit 2, if we put Exhibit 2 from Respondent's submission up on the screen. (Whereupon, the document was marked as Respondent's Exhibit No. 2 for identification.)
BY MR. EMRICH:
Q. And if we click down to -- if we click through the first four pictures and get to the fifth picture, we see the renderings that we're referencing that were sent to the membership. Correct?
A. Correct.
Q. And that particular rendering shows a project that connects all of the nine units. There's a walkway along the base of the right wing or the -- I guess that would be the --
MS. WOODCOCK: I'm just going to object. Mr. Emrich is testifying.
THE ARBITRATOR: Mr. Emrich, we've been over this before. I'm not going to do it again. Objection sustained.
MR. EMRICH: All right. Thank you.
BY MR. EMRICH:
Q. Looking at that particular document, that -- those renderings had a walkway along the bottom of the -- of the -- each wing of the unit. Correct?
A. Those renderings were drawn by someone who made an assumption about certain conditions. The current sidewalk, if you went and looked at the renderings, would see was outside of the walkway. So we used these as general guidelines, not as specific. It was to show a concept that these walkways would go over to the elevator tower.
Q. So again, that was what was to be included in the project: A sidewalk along the building connecting those three units on the lower part of that wing, each wing, to that elevator. Correct?
A. If the three unites agreed to it after the final concept was done.
Q. And again, that was what was approved at the meeting. Correct?
A. Yes. What was approved was the concept of this nine units being connected if the nine unit owners at the time all agreed.
Q. What happened after that particular -- after that meeting?
A. Which meeting?
Q. The meeting in June 26th of 2018.
A. After June of 26th, we proceeded to get with an engineer who could draw up more specific drawings that could be used for permitting.
Q. And if we go back to Respondent's Exhibit 1 -- I'm sorry, Exhibit -- hang on a second. Bear with me here. Respondent's Exhibit 1 and the document that is dated November 2, 2018, from WJ Johnson included as part of that document, that's what you're referring to. Correct?
A. I'd like to read through this, please.
Q. Sure. Go ahead.
MS. WARD: Ms. Taylor you can just let me know when you're ready for me to move to the next page.
THE WITNESS: Thank you. Okay. Next page. Yes. That looks like our initial contact with WJ Johnson, saying we're going to go forward and try to get all the specifics in order to build this.
BY MR. EMRICH:
Q. All right. And again, would there have been any renderings with that that were included, to your knowledge, that were different from what had been submitted to the building owners on June 26th of 2018?
A. No. We would have taken that set of pictures you had used earlier and the renderings, and gone to the engineer to start to put this together to be an actual permitted project.
Q. And again, this was operating on the assumption that there were going to be nine unit owners connected to that. Correct?
A. Nine unit owners if they agree. It was not an assumption it would automatically be nine without discussion with those owners, and without approval by those owners. Current owners.
Q. You then took the project to the master board at some point in 2019. Correct?
A. We took it to the master board a number of times in 2019. There was, I believe, a preliminary presentation by Bob White. There was a more detailed presentation in March by myself and Bob White. There was a review of it in July of 2019 or '20. I'd have to go back and look at my dates, by Bob White and myself. And then there was the final approval.
Q. So, in 2019, there was -- the project --
THE COURT REPORTER: The project what?
BY MR. EMRICH:
Q. The project was taken to the master board on March 12th of 2019. Correct?
A. That was the second time it was taken to the master board.
Q. Do you remember when the first time was? Was that January?
A. It's in the meeting minutes. Yeah. In January. Bob did a preliminary of it.
Q. Was there any official board action in January of 2018?
A. (Audio break) in February. They might have tabled the motion until we came back.
Q. Do you know why that was?
A. They just wanted to review it, I believe.
Q. And what would have been submitted to them?
A. At that point I think Bob might have given them the initial documentation. I was not physically at that meeting as I was still living in Michigan at the time. So, I probably would have called in. So I can't tell you that I was physically there to see what was actually --
Q. And again at that particular meeting -- (audio break) would the project have, that was submitted, included renderings that showed nine unit owners being connected to that walkway as was authorized and passed by the board on June 26 of 2018?
A. As would have been presented at that meeting, it would have shown the renderings of nine potential units being given the option of participating in the meeting -- in the production.
Q. So, at that point had you reached any agreements with those nine owners that were potential, as you put it, unit -- or participants in the project?
A. After the June vote, we went to the six townhome owners and the six current owners of the units, and determined who was interested in proceeding.
Q. You indicated you went to six. But the project that was passed was for nine. Why was that?
A. Six townhome owners, and the other three ground level owners.
Q. So, you would have went to all nine affected owners. Correct?
A. At some point during that period -- I cannot identify the exact dates that we did it, but we would have done it shortly after that meeting as we were then proceeding.
Q. Shortly after the June 26, 2018 meeting. Correct?
A. Yes.
Q. And before you went to the master board. Correct?
A. I believe so. I cannot recall exactly.
Q. And so at that point, then you would have known that at least three of the owners of the affected units that were part of the original proposal and the March -- or June 26, 2018, approval, did not want to participate. Correct?
A. I would have to go back and actually look at sales records. I'm sorry. But by then we had six townhome owners who were all supportive of that.
Q. You knew that 201 and 208, and then 213, who originally approved it, was not approving it. Correct?
A. 201 had no interest at the time. 208 had no interest at the time. And 213, which was Bill Zammer(phonetic), who was in the process of selling but he was still the owner, and he indicated he was not interested at that time.
Q. So, again, three of the nine owners were not participating in the project. Correct?
A. They were not participating --
MS. WOODCOCK: Asked and answered.
THE WITNESS: I have answered that.
BY MR. EMRICH:
Q. Thank you. So, again, at that point you only had six owners, and earlier you indicated that if three -- if any of those nine owners had backed out, it would kill the project. Correct?
A. No. I did not say that.
MS. WOODCOCK: Objection. Mischaracterizes the testimony.
THE WITNESS: Thank you.
THE ARBITRATOR: She's saying -- the testimony was that it was going to go forward conceptually, and that the --
MR. EMRICH: So then you go to the master board.
THE ARBITRATOR: The approval would go back to the owners. That was the testimony that she gave, Counsel.
MR. EMRICH: I'm sorry, what did you say, your Honor?
THE ARBITRATOR: The testimony was that it was conceptually approved back -- we're talking about
Respondent's Exhibit 2. And then they would go back to the owners at a later date to see who wanted to go forward, and who would not go forward.
MR. EMRICH: All right.
THE ARBITRATOR: That's all, Counsel.
MR. EMRICH: All right. Thank you.
BY MR. EMRICH:
Q. So, then the project goes to the master board in March of 2019 -- or January of 2019, it's tabled, and then goes in March of 2019. Correct?
A. Yes.
Q. And at that point the renderings that you would have showed the master board would have been the renderings from WJ Johnson that we had looked at previously as part of the Exhibit R --
A. You have to keep your face in front of the computer. I can't hear you.
Q. As part of R-2. Correct?
A. Would you repeat it? I only caught half of that.
Q. Okay. So, when you went to the master board, you went to the master board with the plans that had been -- the renderings that had been prepared by WJ Johnson, which had been presented to the members previously, and then presented to master board in March of 2019, which showed a walkway that was going to connect all nine units. Correct?
A. At that point the initial renderings, which were very rough, and then we really relied upon the pictures with the kind of the cad cam addition of the railing across the top from the townhomes. We used that as a better explanation to the general membership who were at the March 19 meeting, in order for them to understand how the walkway was conceived as connecting across the top, and explain how it would connect underneath. That was what was really relied on as part of the very extensive, long March 19 presentation, which when David Petrella comes up, he can confirm exactly what the master board saw.
Q. (Inaudible.)
A. I cannot hear you.
Q. If we look at the pictures that you're referring to, are those the pictures that are found in
Exhibit 2, that are in the first part of the -- of that exhibit?
A. Well, either you have to put them up, or you have to wait while I open up my big book and look at them. Can you tell me exactly which ones --
Q. Okay. We'll put up all the pictures from Exhibit 2.
A. Thank you.
MS. WARD: Ms. Taylor, I can put them up one at a time for you so that they're visible for you. Do you--
THE WITNESS: You know, that's all right. What's the -- what is it? Is in the -- I'm sorry, Barbara. I have two binders here. Is the large one? Is it the small binder? Which one am I looking for?
MS. WOODCOCK: It should be the larger one.
THE WITNESS: Okay. Which number is it?
MS. WOODCOCK: I believe that's Exhibit 2.
Mr. Emrich, correct?
MR. EMRICH: Exhibit R-2.
THE WITNESS: Actually that was easier than I thought. Okay. So, I have my picture here, which we said right said today, right side tomorrow. And then there's -- elevators, a gray and blue drawing. Is that what you're referring to?
BY MR. EMRICH:
Q. I'm not sure what you mean. I'm talking about the pictures of the actual building itself. The Photo shopping showing the walkway that is proposed on the right side.
A. Yes. Those are what we would have -- we would have used all of those in the presentation in March of 2019.
Q. And where are the pictures showing the right side along the units that would be to the right, along the lower level of the building? Did you show them?
A. No. We went back to the renderings, and said that they would somewhat represent that. But anybody familiar with -- would know that those sidewalks were never in the right spot in the renderings; that they were conceptual drawings that then would have been reflected by sidewalks in a slightly different location.
Q. So, you would not have shown those then to the members?
A. No, but we explained them.
Q. And so, when you went to the master board, there was also an issue that the building was going to be ADA compliant. Correct?
A. When we initially conceived of this, we thought that ADA compliance was going to need to be a very specific requirement, I guess. And as we went through this, it became more of an issue of other things the owners were looking for. So, we relied on the engineer. But really we were trying to get to the point where we could get an engineer to design them, and say what we could and couldn't do.
Q. So, the project design that had come from WJ Johnson in November of 2018, indicated that the project would be ADA compliant. Correct?
A. Those were the goal of it. I don't know that those renditions went through any kind of ADA approval process to certify that those were ADA compliant.
Q. And in order for it to be ADA compliant, it would have had to connect all nine walkways. Correct? All nine units to the walkway. Correct?
MS. WOODCOCK: Objection. Calls for a legal
conclusion.
THE ARBITRATOR: Well, just a moment, Mr. Emrich.
MR. EMRICH: Yes.
THE ARBITRATOR: If the witness knows the answer to that question, then she can answer it. It she doesn't know, then she just says she doesn't know.
THE WITNESS: Okay. Can you ask the question again, please, sir?
BY MR. EMRICH:
Q. Yes. I can ask the question again. Was it your understanding that in order for the project to be ADA compliant, as indicated by WJ Johnson, that the project would have had to connect all -- the walkway would have had to connect all nine unit owners?
A. No.
Q. What was your understanding of what it would have been?
A. Our understanding is that we would have connected a walkway that would have connected those that were interested in being connected. Now, if the people on the lower level decided not to do it, that would not affect the connectivity of the people in the upper legal.
Q. And but it would certainly affect the handicap accessibility of the entire building to the walkway. Correct?
A. Yes. But given that most of the units in the middle level are not handicap accessible either because they have two steps in from the elevator pad, it did not seem to me that we were ever going to -- you know, that was an issue that was going to have to be decided by engineering drawings.
Q. And at some point when the -- vote that the master board and -- THE COURT REPORTER: Henry, I missed the beginning of your question.
BY MR. EMRICH:
Q. At some point it went to a vote of the master board on March 12 of 2019. Correct?
A. Yes. During that meeting, it went to a vote.
Q. I'm just trying to find that particular document here, if I can just have a minute. Your Honor, could we take a short break?
THE ARBITRATOR: Sure. Five minutes? Ten minutes?
MR. EMRICH: Ten minutes would be great.
THE ARBITRATOR: Okay. Ten minutes. Thank you. (There was a break taken, after which the deposition was resumed as follows:)
MR. EMRICH: All right. We're back on the record. Your Honor, I was asking about the master board meeting of March 12 of 2019. And I would like to put Exhibit R-21 up on the screen, please.
MS. WARD: Got it, and I'm working on it right now.
MR. EMRICH: All righty. (Whereupon, the document was marked as Respondent's Exhibit No. 21 for identification.)
BY MR. EMRICH:
Q. All right. Looking at Exhibit 21, if we go to the second page of that document, and I direct your attention to Subsection F. At that time, the master board indicated that there was a discussion of ADA compliant access to the elevators for those units without access. And then you mentioned that you gave this presentation as to the possible visual impact, as well as the access provided. Now, when you did that, were you indicating that, again, all nine owners were going to be attached to this walkway? Was that the walkway that you were showing them? I can't hear you.
A. Sorry. I was muted because I was coughing. We showed the design with all nine units attached with the information that we had said at the original meeting, was that if people opted out, they opted out. But this was what the overall intention was.
Q. And at that point, again, you did not have nine owners that approved it. Correct? Or authorized it? Of the nine, all nine had not indicated that they would participate. Correct?
A. I'll have to go back. You're asking me to -- I can't answer that directly, because I'd have to go back and try and recreate exactly when I spoke to each owner, or Bob spoke to each owner, when the meetings were, et cetera. During that time period, we approached owners about did they want to participate or not, trying to get a general direction. But all that was predicated on the final, the final cost, and we couldn't do any of that until we had the master board.
Q. And this particular meeting according to the minutes, there was no ARC approval given. Correct?
A. That was explained in the master board minutes if you go back in later.
Q. I'm just asking you about what the minutes indicate. There is no indication of arc approval?
A. There was no arc approval because there was no ARC.
Q. There was no ARC. So --
A. Not at that time.
Q. And at the time of the original meeting approving this in June 26 of 2018, the board had indicated that an arc approval would be sought; is that correct?
A. That is correct. We were in June of '18, and bylaws were being re-written by both arc and by the master board and implemented. We were still working with assumptions about ARC, but ARC was not in existence, and so it didn't go to ARC. It went to the master board.
Q. Now, what happened following the master board
action of March 12 of 2019?
A. We proceeded with our plan.
Q. And what did that involve?
A. Continuing our work with our engineer.
Q. And what did you decide to do?
A. We decided to have him draw up plans.
Q. And was that plan to be consistent with what had been approved by the board on June 26 of 2018: A walkway with nine unit owners connected, or a walkway with six unit owners connected?
A. It was a --
MS. WOODCOCK: Objection. Compound question.
THE WITNESS: Thank you.
THE ARBITRATOR: Rephrase it, Counsel.
MR. EMRICH: I'm sorry. What was the objection? I didn't hear it.
MS. WOODCOCK: Compound.
THE ARBITRATOR: Just rephrase it, please.
BY MR. EMRICH:
Q. When you went back to your -- when you -- after this particular project, you mentioned that you had engineering drawings drafted up; is that correct?
A. Yes.
Q. And were those drawings based on a walkway that connected nine of the unit owners as had been indicated in the prior June 26, 2018, proposal, or was it to be six?
MS. WOODCOCK: Objection.
THE WITNESS: Sorry. I missed that, Barbara.
MS. WOODCOCK: Objection. Compound question.
THE ARBITRATOR: I think what you could just ask, Counsel, is how many unit owners -- how many --
BY MR. EMRICH:
Q. How many unit owners were to be included in the proposal that you or the drawings that you had drawn up after this meeting?
A. We did not have drawings immediately after the meeting. Those drawings with the engineers took many months. During that time we decided to draw up plans that would include both the six above and the three below with separate actions available for each depending on owner's preferences.
Q. So you had -- what you're saying then is that you had two sets of plans drawn up: One that would have included nine, and one that would have included six; is that correct?
A. No. That's not correct. That's not what I say. I'd said we were in the process of drawing up plans that would allow for either six or nine, depending on how the owners wanted to proceed. Or three on one side, or four on one side, two on the other. We were setting it up very compartmentalized.
Q. So, I guess my point is that whatever plan was going to be going forward, it was not going to include nine owners as the board had authorized the project back on June 26th of 2018. Correct?
A. No, not correct.
Q. Sorry. What's that?
A. Someone has banging going on. It might be construction.
THE ARBITRATOR: Is that in your unit?
THE WITNESS: No, not in mine.
MR. EMRICH: The court reporter's.
BY MR. EMRICH:
Q. All right. So again, the plans that were being drawn would not have included all nine unit owners as was approved in June of 2018. Correct?
A. Correct.
MS. WOODCOCK: Objection. Asked and answered numerous times.
BY MR. EMRICH:
Q. You're saying it wasn't, but you're telling me there were different plans depending on who approved it.
A. No. I said there was one plan we were drawing up with an engineer as we developed it that would allow for flexibility with both sides, top and bottom, one plan.
MS. WOODCOCK: Your Honor, I would just ask that when I make an objection, if both counsel and Ms. Taylor can wait until you make a ruling on the objection?
THE ARBITRATOR: Yes. From now on, if she objects, everybody please stop. And I'll rule on the objection, and we'll move on from wherever we're going.
MS. WOODCOCK: Thank you, your Honor.
BY MR. EMRICH:
Q. Now, if we look at this next step, again I'm just trying to understand whether or not the project that was going to go forward was to connect all nine unit owners affected by the walkway that was approved in June of 2018. That's all I'm trying to ascertain from you.
THE ARBITRATOR: I don't understand the question.
BY MR. EMRICH:
Q. What owners were to be impacted or affected by these new renderings, these new plans?
A. Potentially, all nine.
Q. So, you're moving forward as if you had nine unit owners as was authorized originally. Correct?
A. We moved forward with the option to give all nine unit owners an idea of what would be involved so they could agree or not agree to participate.
Q. And at some point then you obtained a proposal from Florida (audible break) Fabrications in September of 2020; is that correct?
A. I will take your word for it if that's the date.
Q. I don't want you to take my word for it. I want if you recall. And just to help you with your recollection, we'll put Exhibit R-13 on the board.
THE COURT REPORTER: And I missed the name. What Fabrications?
MR. EMRICH: It would have been All Florida Industrial fabrication. (Whereupon, the document was marked as Respondent's Exhibit No. 13 for identification.)
BY MR. EMRICH:
Q. Could you take look at that, please,
Mrs. Taylor?
A. If you go to the next page? Yes. That looks like the communication we had from the engineer.
Q. Now, when we -- if we go back to the first page, looking at the second section of that page, there were certain amendments that were being made to the project at the owners' request. Okay? Do you see that section?
A. No. Tell me which one you're talking about.
Q. Talking about the second paragraph: We are now acknowledge the design documents set by Structure Design and Consulting dated 8/21/2019, with the following amendments at the owners' request."
A. Okay. What's your question about that?
Q. Would that have reflected how the plan changed at that point, that was going to be actually put up?
A. That would have reflected one change that we made. Yes.
Q. By looking at that document, there's actually three changes that are reflected on the project from what it had been -- what you had asked for back in August of 2019. The walkway was going to be four feet wide instead of five feet wide. Correct?
A. Uh-huh.
Q. Was that a yes?
A. Yes. I'm sorry, yes.
Q. And it was to have a T-frame column assembly in lieu of a portal frame column assembly. What did that mean?
A. We were going to have almost a -- it was going to have a double set of columns, and the engineer figured out how to design it with a single set of columns. And also that parens part which removed provisions for first floor matching units or a matching path, by the time we got to September, we had gotten -- we had had the preliminary "no participation" in -- between March and April from 201, 208, 213. So, we moved forward with that with no further information.
Q. So, in other words, the project that you were moving forward with, as of that time, had removed three of the units on the west side of the lower level of the building. Correct?
A. No. Two level. Two units on the west side. One unit is on the east side.
Q. So, there was not going to be a path or a sidewalk that was going to run along the bottom lower level of the west side of the building to connect the units. Correct?
A. As we had indicated in the meeting in March 19th, that we would check with the owners, and only move forward with those who wanted to participate. As we had the three lower level units decline participation when we started this work with the engineer in March and April of 2019, we then worked with the design so that we could use the different column, and still provide the space should the bottom levels ever wish to add themselves in. We allowed that to be built into the possibility, but we did not include it in the planning.
Q. So, again, the project now, as it was going forward at the time and after you received the bid from the board, was not going to connect nine unit owners. Correct?
A. If they wanted it, we would have. But no, it
did not.
Q. It did not. And you then -- you indicated that you were asking various owners about the project. Did you ask Mr. Meiresonne about the project?
A. He was not an owner at the time when we made this movement forward.
Q. I'm sorry?
A. He was not an owner at the time we made this discussion going forward.
Q. You're talking about in June of 2018?
A. I'm talking about through April of 2019.
Q. In April of 2019, you're saying he was not an owner?
A. I believe he closed on his unit in May of '19.
Q. And this project that was eventually put together by All Florida Industrial Fabrication was dated September 9 of 2020. He certainly was an owner by that time. Correct?
A. He was --
MS. WOODCOCK: Objection.
THE ARBITRATOR: I'm sorry. What was --
MS. WOODCOCK: The objection is argumentative.
THE ARBITRATOR: If you can just ask -- rephrase the question as to when he became an owner, sir.
BY MR. EMRICH:
Q. Do you know whether he was an owner as of the date of September 9th, 2020, Mrs. Taylor?
A. Yes, he was.
Q. Did you ever ask him prior to the All Florida Industrial Fabrication bid that we just talked about as being Exhibit 13, whether or not he wanted to participate in the project?
A. He was notified through his sales agreement, I believe, that there was a project in place. We had spoken to the other -- you've got to let me finish. You asked me a question. We had -- we went to the other two owners. They gave us a no. They'd let us know if they changed their mind. We talked to Mr. Zammer(phonetic). He said he left it up to the new owner. He informed them of it, but he wasn't an owner at the time that Bill was -- Bill hadn't sold it to him yet. Bill Zammer, the owner of the unit. So, we did not pursue it with him, because we knew he had the adequate information about it. And if he had wanted to participate, we assumed he would have come forward.
Q. So, the answer to my question -- so, the answer to my question is: You did not ask him to participate at any point up until the time of the All Florida Industrial Fabrication bid. Correct?
A. I did not ask him to participate, because he evidenced no interest in participating.
Q. And there were two other owners that were not participating. Correct?
A. Correct.
Q. So now again we had a walkway that was going to connects only six of the owners -- affected owners by the walkway. Correct?
A. Six owners who had expressed interest; three owners who had declined.
Q. Thank you. And that was not what was approved by the board or the building owners back in June of 2018. Correct?
A. Owners -- if you read the proxy, the owners approved a proxy that said that the board was allowed to move forward on this project, and had the decision making authority on it.
Q. I understand what you say the proxy said. I just asked you simply whether or not the project that was going forward was what was approved back in June of 2018? That's all.
A. Yes.
Q. It was now only going to have six?
THE ARBITRATOR: Counsel, we've been over this. Move on.
MR. EMRICH: All right. Thank you.
BY MR. EMRICH:
Q. You then went to the master board in November of 2020. Correct?
A. Yes.
Q. And at that point you obtained -- you requested that they give a final approval on the project. Correct?
A. Well, there was an interim meeting. Are you going to address the July meeting in 2019 as well?
Q. I can. Tell me about the July meeting in July 2019.
A. We went forward, and we updated the master board that we were doing exactly as we had told them we would do and approved for in March of 2019.
Q. And that was what?
A. That we were -- had a plan; that it was adhering to the pictures we had shown; that we were securing a permit, and that we had engineering plans underway.
Q. And that was with -- that would affect either nine or sic. Correct?
A. Nine or six as we said, as according to what the owners if the nine owners wished.
Q. And then in July you went, and what did the master board do at that time?
A. They indicated that we were doing what we said we would do. There was no vote of approval at that point. There was just confirmation that we were doing exactly as we had been told to do.
Q. In July?
A. In July.
Q. Okay. And at the time that you did that, did the master -- did you provide the master board with the minutes of the approval that had been obtained in June of 2018?
A. I believe the master board might have probably had that in March of 20119, when they --
Q. Do you know one way or another?
A. No. That would be up to the master board to confirm that or not.
Q. And so, again, in July was there any kind of architectural review control approval sought?
A. No, because we were past that point. In March of '19, we had had approval from the master board, so there was no longer any need for any architectural review committee review or approval.
Q. And again, that's based on your recollection of what the master board did at that time?
A. It's based on my recollection of it, as well as a review of those minutes, when you read both the March and July, and then the --
Q. Where in the March minutes does it say that there was architectural review control approval given?
A. I'm going to say I'm not going to confirm or deny that, but we'll leave that to the master board to
discuss that, because that was under their purview, not mine.
Q. So, you don't know one way or another?
A. I know what I believe I know, but I'm not going to assert it here.
Q. Thank you. And so, at the time then that you went to the master board in November of 2020, at that point the project was only going to have a walkway that connected six units. Correct?
A. Which date did you just say.
Q. On November -- I believe it was November 24 of 2020.
A. By that point, yes. We would have been confirmed that we were going according to the wishes of the six owners and the three owners at the time of the approval, at the time of the confirmation of the planning, at the time of contracting the engineer. And we were going for six interested townhome owners, and no interested ground level owners that we were aware of.
Q. So, again, six of the nine --
THE COURT REPORTER: Could we hold on one second? I'm sorry. I can't hear a word. (There was a break taken, after which the deposition was resumed as follows:)
MR. EMRICH: So, your Honor, may we resume?
THE ARBITRATOR: Please.
MR. EMRICH: Thank you.
BY MR. EMRICH:
Q. Mrs. Taylor, are you there?
A. I'm here.
Q. All right. So, again, when we talk about the next step of the project, you are now at the master board in November of 2020, and you're getting -- going back in front of them, and telling them that you're moving forward with the project. Correct?
A. Correct.
Q. All right. Now, at that time, we've already established that the project now is only going to connect six of the owners. Do you know whether or not it was ADA compliant at this point one way or another?
A. It only connects six of the owner, because it's the six owners that agreed. I want to clarify that. And no, it is not ADA compliant at this point, which was made clear to the master board.
Q. So, you would agree then it wasn't ADA compliant at that point?
A. Yes.
Q. And as I understand it, this walkway was no longer the one that is elevated along the second floor, is no longer connected to the building; is that correct? It's moved out?
A. I don't understand.
Q. Originally, the walkway proposal that you had presented to the board showed the walkway connected to the building. Correct?
A. No. The renderings that were very rough and incomplete might have showed that. But the drawings that we used for the basis of the approval shows the walkway extending directly from the pad in front of Units 203 and from Unit 209 directly over to the building, not connected or hugging the walls.
Q. When you say "the units regarding the approval," are you talking about the master board approval?
A. Yes.
Q. So, again, the original approval that your building owners and your 200 board gave, at that time the renderings showed the walkway against the building. Correct?
A. No. We showed them both. They had both the pictures and the renderings, which we showed them were very preliminary. They showed --
Q. The renderings showed the walkway against the building. Correct? The renderings, not the photos. The renderings.
A. I find that answer difficult, because you're separating two things that were one.
Q. Only if you recall, ma'am. The renderings had the walkway against the building, directly against the building.
A. Yes. I believe that the renderings did; the pictures didn't.
Q. Thank you. Now, also at that time the renderings showed the walkway going over to the tower by the elevator, and showed a flat or -- it was just a flat walkway that went over and connected to the wall. There were no stairs; is that correct? Where it connects to the tower?
A. You mean on the ground level?
Q. On the second level.
A. The renderings were not that detailed, I don't believe. I don't recall that. They just showed an extension.
Q. Okay, but if we look at your pictures that we talked about -- (audio break) and we went to the pictures that were shown what was proposed, and we go to -- if we can put Exhibit 2 back up on the screen.
THE ARBITRATOR: I can't hear you.
BY MR. EMRICH:
Q. If we put R-2 up on the screen --
MS. WARD: Working on it.
MR. EMRICH: Okay.
MS. WARD: Ms. Taylor, is this a better view for you to be able to see more of those pictures at one time?
THE WITNESS: Yes, it's good. Thank you. You keep talking about the drawings that are below the level you're on now.
BY MR. EMRICH:
Q. All right. If we look at what's the right side -- the picture that's identified as Right Side Proposed in R-2 on the left of your screen, do you see that?
A. Uh-huh.
Q. That was what was a rendering that was shown the board, shows that walkway that goes over and it is level as to where it attaches to the elevator tower. Correct?
A. That was the initial plan, to try to have it level. Yes.
Q. And that particular part of the plan had
changed by the time you went back to the master board in November of '20. Correct?
A. Yes, because the board was authorized to make decisions and plans for this as --
Q. I don't -- I just -- I'm just asking you whether or not it had changed. Yes or no?
MS. WOODCOCK: She can provide an explanation for the response.
THE ARBITRATION: We've been through this. You ask the question, she gives the answer. You don't interrupt, please.
BY MR. EMRICH:
Q. And that was because there were stairs that were put in there. Correct?
A. Yes. As the board was authorized to determine what was in the best interests of the building, unit owners had expressed concern about privacy, and did not wish to have owners to have a walkway directly under their windows. So we went with the drawing as proposed to the master board because that accomplished both those objectives.
Q. So again --
A. Let me finish.
MS. WOODCOCK: She's still talking, Mr. Emrich. Please let her finish.
BY MR. EMRICH:
Q. Sorry. I thought you were done. My apologies.
THE ARBITRATOR: Continue, ma'am.
THE WITNESS: The walkway was -- as drawn was a direct extension off that pad in front of unit -- as you see in Right Side Proposed, from Unit 209 across. And then as we moved through the planning with the engineer, what would accomplish ADA, what would accomplish privacy, the board exercised the authority granted in the proxy to make the decision about what would (audio break), and that was to have the extended go out directly from the pad in front of 209 and 203, even if that then precipitated two shallow steps.
BY MR. EMRICH:
Q. And the walkway there was also raised two feet. Correct?
A. Which walkway was raised two feet?
Q. Thank you.
A. No. I don't understand that question. I didn't say yes or no.
Q. Was the walkway raised two feet from how it is shown in that particular document -- in that photograph?
A. No, it wasn't raised two feet. It extends out from the pad, made a turn and went into the --
Q. I'm talking about right where the level of the walkway itself, was it raised up from what had been depicted in that picture or rendering?
A. No. (Whereupon, the document was marked as Petitioner's Exhibit No. 7 for identification.)
BY MR. EMRICH:
Q. So, if we go then -- if we put Exhibit P-7 up on the screen, and we go to the third picture in that screen, that shows the walkway --
MS. WOODCOCK: Objection. Mr. Emrich is testifying.
BY MR. EMRICH:
Q. Does that show --
THE ARBITRATION: Sustained. Ask her what it shows. Counsel, I'm not going to let you get away with this anymore.
BY MR. EMRICH:
Q. Does that show the walkway --
THE ARBITRATOR: Sir, am I clear? Ask her open-ended questions. Don't testify.
MR. EMRICH: I was just doing that, your Honor.
THE ARBITRATOR: I'm going to start cutting you off.
BY MR. EMRICH:
Q. Does that picture --
MR. EMRICH: May I proceed?
THE ARBITRATOR: Yes, sir.
MR. EMRICH: Thank you.
BY MR. EMRICH:
Q. Does that picture show the walkway at the second level as it was constructed?
A. Yes.
Q. And if we go to the next picture, if we look at the next picture, does that show the underneath of that walkway?
A. As it was at construction, yes.
Q. Now, the original plans had, as we were going back to the contract that the Florida company had put together for you, changed the original columns that had been in the plan that supported the deck; is that correct?
A. Yes.
Q. And those column had originally come out to the edge as opposed to this T-shaped column underneath the elevated portion of the walkway. Correct?
A. I don't understand -- oh, I'm sorry, Barbara.
Go ahead.
MS. WOODCOCK: I didn't say anything.
THE WITNESS: Oh, I'm sorry. I thought I heard something. I don't understand your comment about to the edge. We substituted the double column for the T-shaped column in order to reduce the impact and the footprint of the column.
BY MR. EMRICH:
Q. So, the original column -- was the original column or supporting beam or whatever you want to call it -- column, was it on the exterior of that walkway as you're looking -- in other words, on the left side of the walkway?
A. It was in the exact same location.
Q. So, was it --
A. In the engineering, he could have move it an inch or two. So, I'm not going to say exact. It's in the general location of the T-column.
Q. And this particular document is looking down from Unit 213 towards the elevator tower; is that correct?
A. Yes.
Q. Now, I'd like to put Exhibit 22 on the board, on the screen.
MS. WARD: P22 or R22? MR. EMRICH: P-22. (Whereupon, the document was marked as Petitioner's Exhibit No. 22 for identification.)
THE WITNESS: Can I clarify something that was said earlier about those pictures? I don't know if I made it clear, but I'd like to definitely say that the attorney definitely inferred something was raised two feet, and I'd want to reiterate it was not raised two feet.
BY MR. EMRICH:
Q. Okay. That's fine. Okay. Following the board meeting on November 24 of 2020, after the master board, you then sent an e-mail to building 12; is that correct?
A. That is correct. After this meeting I sent the e-mail.
Q. And that is part of Exhibit 22; is that correct?
A. You say Exhibit 22, and I don't see it identified as 22. Thank you.
Q. P-22.
A. Thank you.
Q. And if we go to the third page of that, there is a document that you then also sent out to the board that kind of goes through the history of the project; is that correct?
A. That's correct.
Q. And that was sent to all the building owners; is that correct?
A. Correct.
Q. And in that -- in that particular document, you indicate that you did not go back to your board and seek an approval of the -- of the new plan that only had six owners; is that correct?
A. Which I made clear was not required by the proxy vote.
Q. I understand that. I understand what you made clear. But again, just my question is: You did not go back to the owners or to the board for 200 and get substantive approval that the plan was only going to connect six unit owners as opposed to what had originally been said; is that correct?
A. The original assumption was, it was the nine voting owners that participated. Six didn't participate. We did not directly go back. That was made very clear at that board meeting, which meant that the owners (audio break) had access to that area.
Q. I understand your position, ma'am. I'm just asking you one real simple question. Did you go back and get -- you indicate in that letter you did not go back and get approval. You did not think you needed it. Correct? Yes or no?
A. Yes. We did not need to go back and get approval.
Q. And you did not go back and get that approval?
A. I believe I stated that.
MS. WOODCOCK: Objection. Asked and answered.
THE ARBITRATOR: Sustained.
MR. EMRICH: All right. I don't have any further questions of this witness, your Honor.
THE ARBITRATOR: All right. Redirect.
MS. WOODCOCK: Yes, your Honor.
THE ARBITRATOR: Or cross, whatever you want to call it.
MS. WOODCOCK: Thank you, your Honor.
CROSS-EXAMINATION
By: Ms. Woodcock
Q. Ms. Taylor, earlier in your testimony you referenced several times townhomes versus ground floor ynits. Can you explain what you mean by townhome units and ground floor units?
A. There are six townhome units in the building. There's 25 units. The buildings are connected prior to this lateral convenience construction by stairs that go up from the sidewalks in front of the building. That was the only access into the townhome units. Then there were three ground-floor level units that also had stairs between them and the elevator pad. So, we constructed or we conceptualized a plan that would then connect the ground floor units across the bottom, and the townhome units across the top. The reason that we broke it into six -- or four pieces, two townhomes on the east, four townhomes on the west, two ground levels on the west, one ground level on the east was that not only did we want to offer the owners the option of participating or not, but the cost differential was going to be significant. The cost for the townhomes to build that elevated walkway was borne by the townhome units. If the ground floor level units had decided to participate, they would not be participating in any of the cost of the townhomes. We were going to separately bill them. As the upper level floor units, the townhome units costs were predicted to be between 20 to $25,000 each unit paid by the owner. And the cost for the sidewalk -- it would be a simple sidewalk across the grounds from the door opening of 201, 208 and 213 from in front of 208 with a simple sidewalk that we thought estimated would cost about $2,000 per sidewalk. So, we constructed this very definitely, separately, compartmentalized in order to provide that flexibility, and that no one was penalized by participating at a level greater than what they would have the benefit of from the construction. So, that is why we have delineated this townhome versus ground so distinctly in this package, why we made it clear at the master board level, and why we made it clear to the owners, and why we made it clear as we proceeded through this project.
Q. Thank you. The six townhome unit owners, were any of those unit owners handicapped?
A. Yes. In 209, the Turras(phonetic) who live there, I believe Linda has significant back issues. No. Are they classified as handicapped or do they have ADA? I can't attest to that. I just know that Ms. Turra(phonetic) has had back issues, and expressed an interest in participating with her husband because of that.
And I know that Roland and Jeanine Geradol(phonetic), who live in 210, are 87 or 88 years old, and have mobility issues that are probably not called handicapped but fall under certainly senior or other ADA guidelines or something. But then I know that Robert Krohn(phonetic), who is in 211, has scoliosis, multiple surgeries over the past few years, and at times can only access his unit by going up the stairs, seated, one step at a time in order to access his unit. We were very aware of these challenges by our fellow owners, and so that is another reason that we thought given that there was no access other then these steps, very significant steps up to the top, that we would go forward with this project.
So, we did not have any ADA filings. We did not have any ADA assertions from these people, but we certainly had a lot of information to say that a couple people were considering ADA filings against the building. And we thought preempted by providing what would be -- as what the County called a lateral convenience, that would minimize the access problems and difficulties they had totally at the cost of the owners who would wish to have this access.
Q. I'm going to show you Exhibit R-26. (Whereupon, the document was marked as Respondent's Exhibit No. 26 for identification.)
MS. WOODCOCK: Your Honor, it says that -- or I guess Mr. Emrich, it says that Host Has Disabled Participant Screen Sharing. Can you please enable that for me?
MS. WARD: Yes, I will. I'm sorry. I didn't realized that was even an option. So, let me work on that.
MS. WOODCOCK: Thank you.
MS. WARD: Okay. I think I just fixed it. So let's try that again.
MS. WOODCOCK: Okay. Thank you. Yes. That works.
BY MS. WOODCOCK:
Q. Ms. Taylor, I'm showing you on the screen what's previously been marked and admitted into evidence as Respondent's Exhibit R-26. It is a three-page document. I can scroll through it so you can see it, and I'm going to ask you some questions. Okay?
A. Okay.
Q. Have you seen this document before, Ms. Taylor?
A. Yes. These are the detailed plans provided by the engineer.
Q. Well, which engineer provided these plans, if you know?
A. Keith Blackwell with the aforementioned engineering company.
Q. And what -- do you know when these plans were made?
A. I'd have to go back and look at e-mails from Mr. Blackwell, but I would assume that these came in about the time that we were going for final approval. Honestly, I don't remember.
Q. Would you have (inaudible)?
A. We had a lot of discussions. We had a lot of planning around these.
Q. I'm trying to zoom in here. On the first page of these plans, there is a date of July 23, 2020. Was that --
A. That would sound about right. We were -- it was a slow process as our engineer developed COVID over the summer during the worst of COVID. So, we were a little delayed on that as well.
Q. These plans in Exhibit R-26, is this ultimately what was constructed?
A. Yes.
Q. And are these plans shown in R-26, were they
provided to The Club at La Peninsula?
A. Yes.
Q. Let me bring back up for you Petitioner's Exhibit 7. One moment. My computer is fading as I'm trying to get to the right exhibit here. Bear with me one minute. These are Petitioner's Exhibit 7. And this is the first page. Can you describe what's shown in the photograph?
A. What's shown on the bottom is the -- bottom center, is the sidewalk approaching Unit 2-- I'm trying to see the number. Oh, I'm on the right side. That's 208. This is on the west side of the building. So Unit 208 is one of the units that could have been interested in having the sidewalk access. And then above it on the immediate lower right corner is the original stairway going up, which makes a turn outside of the camera range, continues up to the top of the platform. And shows the original platform leading into 209 and 210. The -- obviously from 209 where the window is to the left of that 209 door is where the platform for the extension occurred, connecting it to the walkway.
You can see in front of the unit that's labeled 224. What was also a possibility was if the walkway had been continued, it would have gone off the sidewalk that you see center, it would have extended through the yellow-green bushes, the red Thai plants, the red Thai's, and connected via sidewalk to the elevator platform, again in front of the unit you see as 207 on the far left.
Q. Thank you. And I'm going to show you the next photograph in P-7.
A. I can describing it without rotating.
Q. Thank you.
A. That's the view from 211 and 212 on the upper level. Across the area that was previously -- that is now occupied by the walkway, you can see that there was trees that extended across this area. And below it you can see the open area that is now landscaped again. And there's air conditioning units on the left side. And so the walkway now occupies this space across the right side of the picture.
Q. I'm going to show you -- wait. We talked about the third photograph, so I'm not going to talk about that again. Now, this fourth photograph, can you see that? Do I need to rotate it?
A. No. It's okay. I can see it. This is --
Q. What does this photograph show?
A. This is as you stand outside of Unit 213 and look to your immediate right, you would see an area that previously had been covered by some fairly dense vegetation and vines crawling up the wall, and then the trees above were over the top of it. We trimmed the trees back. The walkway was extended into that. And since then that has been heavily landscaped.
Q. What about P-7 Photograph 5? What does this show?
A. That's a picture of the area that I just described prior to the digging of posts and the putting up of the walkway. So, we trimmed the trees back as you can see. No trees were being cut down or damaged right there. And then we cut out all of the vegetation. You can actually see the orange squares, which is where the posts were dug. And we hand dug in order to minimize any damage to the building. We had those hand dug.
Q. What is shown in P-7, page 6?
A. This is the actual walkway. Above as it -- up in the upper right you would see Unit 209's doorway. It comes across. And as you can see it was higher than the elevator landing on the second floor, which precipitated us with the shallow two steps. That was the one change we did make in order to not have this walkway go into that alcove on the right, and be attached directly above and below and onto the windows of those units. So, we took this walkway across. You can also see below it to the right of the red Thai's --those are those bright red plants, that there is a space there. The reason that we created it with the single bars as well is allowed us to in the future should the three ground floor units wish to add in a sidewalk, we left the space for them to do so; And so at any point 201, 208 and 213 can add a sidewalk.
Q. And in P-7, page 7 -- hold on. My computer is doing something.
A. I would answer, but I'm kind of --
Q. Okay. Can you see what's shown on page 7? What's shown in this photograph?
A. So, there it is on the left side looking up, the walkway is going up into 208. Where the green hose is, because I think they were watering plants at the time -- is where we allowed for a sidewalk to be put in if 208, 213 had desired it. And then above it is the walkway as it was built, coming out from 209 on the left, coming around and making its turn, and connecting to the elevator -- I've always called it the elevator pad. I don't know what to call the access point across each of the floors where the elevator stops. But this is where you would walk across this, go into the walkway in front of the other unites, and walk down to the elevator. I think I already described this one. Oh, no. This is farther -- yeah. I --
Q. Hold on one second, Ms. Taylor. The next photograph, I guess is eight photograph in P-7. What is shown in this photograph?
A. I think -- okay. This is after the walkway is built. I described it before, before the walkway was built. So, sorry. This is the walkway up. This is the sidewalk up to 208. The stairs up to 209 and 210. This shows the walkway coming off the pad from in front of 209 and 210, going to the left where it eventually connects with where the elevator access is. And this also shows the area under the walkway to the left where the red Thai's are, which is where a sidewalk could be added if 208 and 213 wish to add it.
Q. And where is Unit 213 located in relation to this photograph?
A. To the far right. 208 and 213 share a common wall to the right of this picture.
Q. Now I'm going to show you what's previously been marked and admitted as Respondent's Exhibit 28. (Whereupon, the document was marked as Respondent's Exhibit No. 28 for identification.)
BY MS. WOODCOCK:
Q. This is a composite exhibit of several photographs. We're going to go through them and talk about them. All right. This is the first photograph shown in Respondent's Exhibit 28. What is shown in this photograph?
A. This shows the east side of the building. It shows Unit 202 and 203, with the stairway that goes up to it from the lower sidewalk. And Unit 201 below it, which all three of them were listed in the original nine-unit plan. What eventually occurred then obviously was the walkway, the lateral convenience was constructed off from the 203 doorway, and went to the right, and connected with the elevator plan.
Q. You just said the word "lateral convenience." I think that's first time I've heard that today. What do you mean by a "lateral convenience?"
A. When we applied for a permit with the County, and they wanted to decide what they were granting us, given that we had put -- included steps because we were not willing to put in the -- all the extensive detail that went around into the buildings. People wanted privacy. They didn't want walkways in front of their windows. So, we created a plan that, in fact, actually mirrors what we had gone to the master board with initially in March of 2019.
So, when we built according to that preferred plan, approved plan, in March of '19, we created this walkway. The County looking at it said that we had created was a lateral convenience. So, we had created a walkway that was a convenience for the people from 202, 203, 209, 10, 11 and 12 to access the elevator.
Q. Yeah. And Photograph 2 of R-28. What's shown in this photograph?
A. The same one, or are you showing me another one?
Q. This is the second photograph. This is the first photograph we looked at that you just described, and this is the second photograph.
A. I think -- oh, I'm sorry. That shows the walkway rendition of what we thought -- what we were proposing the pathway would look like.
Q. And where the extra railing and pathway is put in, that is Photo Shopped in; is that correct?
A. That is correct.
Q. Photograph 3 of R-28 is on the screen. What does this photograph show?
A. The actual picture of the building with no pathway constructed. It would be before we started the project.
Q. And what does Photograph 4 that's being shown demonstrate?
A. This was the Photo Shop demonstration of what the walkway would look like extended over to the elevator area.
Q. And in Photograph 6 in R-28. What's depicted in this photograph?
A. This is a picture of the building as it was -- as it existed prior to the construction of the walkway. And it shows -- it's hard to see through the vegetation, but obviously there's a stairway up to 209, 210. There's a stairway up to 211, 212. There is no extension over to the left to connect to the elevator tower.
Q. This is Photo 11 in R-28. What does this photograph show?
A. This is a picture of the extreme west side of the building. It shows the window on the bottom level to Unit 213. To the immediate left in the darkened area between the tree and the white wall is the doorway to 213. Above it is Unit 212, which is a two-story townhome. And you can see to the left of the first floor window on 212 the recessed doorway that is also their doorway into Unit 212. The top floor then shows the upper floor window of 212. The next window is the bathroom of 212. The next window is the bathroom of 211, and the final window is the bedroom of 211.
This shows that the walkway which is beginning at the doorway of 212 on that second floor extends to the left. You can barely see the white line of it through the trees, and does not cover the front part of the window of 213, but does extend over the third floor -- or the third bedroom window, I think, on 213. That was previously in the same area under the trees.
Q. Do you know when this photograph was taken?
A. Yes. It was taken about a week or two ago.
Q. And who took this photograph?
A. I did.
Q. This is Photograph 12 of R-28. What does this photograph show?
A. This is another perspective of the same area of the building. You can see now the walkway. You can see the stairs going up to Unit 212 and 211. 211's doorway is behind the palm tree. The doorway. That stairway was always there. It was always over the doorway into 213. So, there is no extension of the walkway over the front of Unit 213's doorway, nor of the window. And then the walkway continues on east from that point, passing in front of 211, 210, 209, and going over to the elevator tower.
Q. Showing you the next photograph, what does this photograph show?
A. This is a closer picture of the same thing I just described, which is the stairs that have always been there going up to Unit 211 and 212; the walkway extending from it. The walkway railings, as you can in the lower level, the walkway railings are dark and railings going up the stairs are dark.
And then you look on the railing of the walkway as it begins to extend eastward towards the center, that shows an opacity because we were in the middle of a huge building remodel, and those railings are wrapped because they were already installed with the correct color of paint as opposed to the new railings going up, which have just recently been painted.
So, the contractor covered those railings with a white plastic. So, while it looks more visible, it's only visible because we were protecting the brand new repainted railings of the walkway. I should clarify. The brand new railing of the walkway that are now matched by the brand new painted railings of the stairs.
Q. And what about on the backside of the building? What is depicted -- what is being depicted in this photograph?
A. That's depicting both 213 and 212 from this point. If you continue on with the view, looking out over the waterway, it's totally on the opposite side of where the walkway is constructed. So, the waterway view is on the right side of the picture, and the walkway view to the road and the air conditioning units and the trees is on the left side.
Q. What does this photograph depict?
A. This is the south side of the building. These are the four townhomes across the top level, and Unit 208 on the right side lower level, and Unit 213 on left side lower level. This depicts the view of these units out across the walkway. So, the first floor is 208, 213, and the next two stories of each unit.
So, you can see they're divided by fireplace chimneys. So, there is 212 on the end. There's a fireplace, then it's 211. There's a half stairway was always there. It was always over the doorway into 213. So, there is no extension of the walkway over the front of Unit 213's doorway, nor of the window. And then the walkway continues on east from that point, passing in front of 211, 210, 209, and going over to the elevator tower.
Q. Showing you the next photograph, what does this photograph show?
A. This is a closer picture of the same thing I just described, which is the stairs that have always been there going up to Unit 211 and 212; the walkway extending from it. The walkway railings, as you can in the lower level, the walkway railings are dark and railings going up the stairs are dark.
And then you look on the railing of the walkway as it begins to extend eastward towards the center, that shows an opacity because we were in the middle of a huge building remodel, and those railings are wrapped because they were already installed with the correct color of paint as opposed to the new railings going up, which have just recently been painted.
So, the contractor covered those railings with a white plastic. So, while it looks more visible, it's only visible because we were protecting the brand new repainted railings of the walkway. I should clarify. The brand new railing of the walkway that are now matched by the brand new painted railings of the stairs.
Q. And what about on the backside of the building?
What is depicted -- what is being depicted in this photograph?
A. That's depicting both 213 and 212 from this point. If you continue on with the view, looking out over the waterway, it's totally on the opposite side of where the walkway is constructed. So, the waterway view is on the right side of the picture, and the walkway view to the road and the air conditioning units and the trees is on the left side.
Q. What does this photograph depict?
A. This is the south side of the building. These are the four townhomes across the top level, and Unit 208 on the right side lower level, and Unit 213 on left side lower level. This depicts the view of these units out across the walkway. So, the first floor is 208, 213, and the next two stories of each unit.
So, you can see they're divided by fireplace chimneys. So, there is 212 on the end. There's a fireplace, then it's 211. There's a half wall, and then it's 210. There's a fireplace, and then it's 209. The rest of the picture on the right depicts the center unit that are all one story, and they extend out.
Q. And what about this photograph? What's shown in this photograph?
A. This is a picture of the very end of the building. The gap between 200 building which -- and then what you can't see immediately on the left out of the photo is the 203 building. And this demonstrate some of the vegetation that's in the area, including the sea grape bush at the very low level. It's a three or four-foot bush that, I believe, was also part of the discussion.
Q. And just to clarify, to the left of this photograph is the 300 building. Correct?
A. Correct.
Q. And what's shown in this photograph?
A. This is --
Q. I'm going to rotate it. Hold on one second. Okay.
What's shown in this photograph?
A. This is just a closer-up view of the doorways into 213 and 212. You can see the beginning of the stairway at the bottom by the red Thai to go up to 212 and 211. The rest of the stairway to 212 and 211 is behind that green tree. That is the original platform that was always part of the stairs for access to 211 and 212. The walkway continues on from the left, going east towards the central elevator tower. The door below on 213 shows its historically same position with only the walk -- with only the stair pad. It's been there since the building was built over that doorway, and nothing over the windows in either 213 or 212 on the right side.
I'll just note the reason you see different colors painting, we're in the middle of painting the whole building white. That's why you see some of it beige and some of it white.
Q. And then what about this last photograph? What does this photograph show?
A. This shows the walkway -- I think I've done this one. But this shows the walkway immediately to the right of the door of 213. This would be shortly after construction. And since then, this has been fully landscaped.
Q. In the current view of the outside of this area, are these 18 units still visible?
A. Yes. Maybe not as visible, because of the landscaping that's in. But I think that you would see them marginally, but they're still somewhat visible.
Yes.
Q. I'm going to show one last document. This has been marked as Exhibit R-4. (Whereupon, the document was marked as Respondent's Exhibit No. 4 for identification.)
MS. WOODCOCK: And Mr. Emrich and Mr. Arbitrator, Mr. Emrich has objected to this exhibit. This is one of the ones we could not stipulate on. It as we had it revised. The prior Exhibit R-4, which is what you have in your records, Mr. Arbitrator, is just the amended and restated bylaws. And this exhibit is correcting that, and we're going to explain it in a minute. I just wanted to get that kind of background first.
THE ARBITRATOR: I've just got a quick question. I've got two quick questions. This is the 200 -- this is the amended bylaws or -- oh, or the declaration?
MS. WOODCOCK: So, what you have in the binder that you have, sir, is the amended bylaws. But there is an amended declaration and Articles of Incorporation, which is what we were trying to amend R-4 to reflect the entire amended and restated declaration, Articles of Incorporation, and bylaws.
THE ARBITRATOR: Okay. Because I'm going to tell you right now, I have questions for the witness regarding both the original declaration of bylaws and the amended declaration of bylaws. So we're going to get to that. Okay? So, I just want everybody to be aware that I've got questions regarding both for this witness. So, there could be an objection to this. That's fine. But I'm going to tell you right now, I'm going to look at them, and I have questions for the witness.
The second thing I've got, it's now -- what, 12:30 or 12:29. Do you need to take a break, Ms. Woodcock?
MS. WOODCOCK: I'm almost finished with Ms. Taylor. So, what I'd like to do is finish my questioning, and then perhaps we can take the break, and then come back and you can ask your questions if that would be okay.
THE ARBITRATOR: Okay. So, what I'm going to say now is, while I've interrupted, you finish your questions. We'll take, what, a half an hour break is it?
MS. WOODCOCK: Yes, sir.
THE ARBITRATOR: And then, Ms. Taylor, do you have both the original and the amended declaration and bylaws with you?
THE WITNESS: I know I have the amended. I'll look in my records and double-check, and try to get a hold of both before you ask me questions.
THE ARBITRATOR: Okay, because I've got some questions for you, ma'am.
MS. WOODCOCK: And I can make sure that she has them, sir.
THE ARBITRATOR: Okay. Thank you.
BY MS. WOODCOCK:
Q. All right. Ms. Taylor, this is -- showing you Respondent's Exhibit 4. It's a 77-page document. I'm not going to scroll through the whole thing here, but have you seen this document before?
A. I probably have, but I can't recall it exactly, other than what you just sent me.
Q. So, in 2018 the 200 La Peninsula Association amended the declaration Articles of Incorporation and the bylaws. Correct?
A. The 200 building we did in March of 2018. Is that your question, or did you ask about the --
Q. Yes. That was my question.
A. Okay.
Q. And are you familiar with Section 15.5 of the amended declaration regarding all -- MR. EMRICH: Your Honor --
BY MS. WOODCOCK:
Q. -- to common elements and association property?
MR. EMRICH: Your Honor, I'm going to place my objection again on the record here as to any questions about this document. As I indicated earlier, it was produced to me for the first time last night -- late last afternoon, close to 5:00. This is a document -- these are documents that we requested in the original document request that was sent to Resort Management.
Mr. Darling indicated that he did not produce it, and would have had it if he had it, if it had been in existence. And I'm going to object to it being introduced, as it was not on the witness list that this court -- that this arbitrator indicated had to be filed back on February 1.
THE ARBITRATOR: Okay.
MS. WOODCOCK: If I may just respond briefly, your Honor?
THE ARBITRATOR: Hold on. You don't have to. I'm looking at Respondent's exhibits that they submitted timely. Okay? And I'm looking at the amended and restated bylaws. So, while you may have -- you may say that they didn't give them to you in response to the records request, they gave them to my as an exhibit, and I'm assuming that they gave them to you as an exhibit when they filed their exhibits.
MR. EMRICH: But I believe these documents -- this document -- these documents are different than what's in Respondent's submission. That's why she tried to submit the amended document yesterday. That's what she told me. It had not been submitted.
MS. WOODCOCK: Yes, your Honor. If I can just clarify again for the record and for yourself. What is originally R-4 is the 200 building's amended bylaws. At the same time that these bylaws were amended, the declaration and Article of Incorporation were also amended. By clerical error they were left out of R-4. These are documents that are recorded in the public record of County of Collier County. And these are the governing documents of the association.
THE ARBITRATOR: Okay. So, what you're saying here is R-4 that I have in front of me that you gave me for hearing was amended again or something? Or just --
MS. WOODCOCK: The exhibit was amended and it was sent out to you yesterday, your Honor, but I guess you haven't received it yet, the paperwork. But if it's helpful in some way that I could e-mail it to you so you have it directly, I don't know if you're amenable to that.
THE ARBITRATOR: Because the document I've got, R-4, and I'm looking at it right here, goes up to page 24. And it ends with -- it's got Section 15 as miscellaneous. Okay?
MS. WOODCOCK: Those are the bylaws, which are a portion of this amended R-4 that I'm trying to present, your Honor.
THE ARBITRATOR: When were they amended?
MS. WOODCOCK: When were the documents amended?
THE ARBITRATOR: Wait a second. Now, they were -- the one that you're talking about here for this hearing has got -- on the first page it's got an amendment date of May 1st, 2018. Correct?
MS. WOODCOCK: Correct, your Honor.
THE ARBITRATOR: Okay. Well, have you -- did you get this last night, Counsel?
MR. EMRICH: I did last night, yes, your Honor.
THE ARBITRATOR: Okay. Well, you know what? I'm going to let her ask her about this, and then you get to cross-examine her. And that's going to be it. Objection noted, but I'm going to let it in. I mean, I gave you great latitude, counsel, in your presentation. So I'm going to let it in. Go ahead.
MS. WOODCOCK: Thank you, your Honor.
BY MS. WOODCOCK:
Q. Ms. Taylor, do you need me to repeat the question?
A. Yes, please.
Q. Are you familiar with Section 15.5 of the amended and restate declaration of condominium?
A. Yes.
Q. And what does Section 15.5 of the amended and restated declaration of condominium provide?
A. It talks about what we're allowed to make replacement and repair up to a certain dollar amount, the $20,000 aggregate. It also says at least a majority of voting interest who are present and are in person have to agree. And then it goes into some other already existing common elements. But the two key things, I think, were the dollar amount and the majority voting.
Q. Prior to the amended and restated declaration of condominium being in effect, what was -- or were you aware of what the provisions regarding material alterations in addition to the common elements were?
A. I believe that prior to this bylaw change, that we were -- that we had the standard Florida statutory requirement of 75 percent in place. The bylaws were amended effective -- began to -- if I could explain why they -- how they came into existence.
The bylaws were begun discussion based on our counsel's recommendation, Jamie Greusel, sometime in '15 or '16 that we had a number of errors in our bylaws, just dated. You know, they were old, and they hadn't been touched in quite a few years. Maybe a decade or more. So, she told us that she thought we should clean these all up.
And one of those changes was to go to a majority vote, because that was representing what was more common among condominium associations rather than the statutory 75 percent that's in Florida statute. So, going along with this, we asked her to please fix the bylaws. We had some meetings with her in '15, '16 or '17. I can't even remember. We have to go back to Jamie's billings. And we went through and cleaned up the bylaws, and took her recommendations on all points, including this change to a majority vote.
So, after that, then we were ready to move on this in -- I think sometime in '17. And again, our billing with Jamie Greusel's office would show when she completed the bylaw change. And at that point she came to us and told us that she was also working on the master board bylaws and revising them, because they also had a very dated document that she was updating.
And she suggested that we hold onto our bylaw change and the vote on it, because we needed obviously a vote of two-thirds vote of the membership because we were still under a 75 percent majority with the old bylaws. She would suggest that we waited until the master board finished their bylaws, then she would make sure there were no tweaks in the master board that would cause us to have our bylaws out of sinc again with the master board. And so we agreed to that.
So, we literally sat on this bylaw change for -- I can't tell you if it was six months or a year, but it was a substantial amount of time that we waited until the master board -- which I think David Petrella can speak to later -- amended their bylaws and updated them as well.
Once that was done, Jamie said we were back in sinc with the master board. And we proceeded then in March of 2018 to vote the bylaw change to correct all of the major changes and smaller tweaks that Jamie had put in for us as our general counsel. Thus we were exempt from the statutory requirement in Florida statute of a 75 percent majority, because we as a board had approval with a 75 percent majority the change to a simple majority. And these are what you see here.
So, what's different is we had the bylaws, and then we had the declarations, and we had this filing that did not get into the record. And on behalf of my attorney and us, we will apologize for that. But what this is just reflecting the bylaws that are in the submission of all these documents. The final -- the full piece of the puzzle of the change in our condominium bylaws.
And this was a building vote that was taken place. And if you go into the documents -- I don't know where it is, but the proxies for the building vote is there, showing that 75 percent majority.
MS. WOODCOCK: I don't have any other questions for Ms. Taylor.
THE ARBITRATOR: Before we leave this document, I want you to go back to the beginning of this document to where it says Definitions. Stop. Go up a little bit. Keep going. I want you -- is there a definition of voting interest here?
MS. WOODCOCK: Yes, sir. Section 5.21.
THE ARBITRATOR: Okay. Can you just go up to where it says Definitions?
MS. WOODCOCK: Yes, sir.
THE WITNESS: I think you went past it.
THE ARBITRATOR: Okay. Do you have any more questions?
MS. WOODCOCK: I do not have any more questions for Ms. Taylor. No.
THE ARBITRATOR: Okay. Mr. Emrich, do you have cross-examination or what?
MR. EMRICH: I do.
THE ARBITRATOR: All right. Why don't we let
Ms. Woodcock deal with her child, and we'll come back. What time is it? It's 12:43. How about quarter after 1:00?
MR. EMRICH: Sounds good.
MS. WOODCOCK: Thank you, your Honor. (There was a break taken, after which the deposition was resumed as follows:)
MR. EMRICH: We are ready to rock. Your Honor, you had --
THE ARBITRATOR: I can't hear you. You're on mute.
MS. WOODCOCK: You're on mute, Henry.
MR. EMRICH: My apologies.
THE ARBITRATOR: That's okay.
MR. EMRICH: The first time through on this kind of thing.
THE ARBITRATOR: I suspect it won't be the last given the state of the world.
MR. EMRICH: Yeah. Unfortunately, I think you're right, your Honor. You had indicated you were going to ask some questions of her.
THE ARBITRATOR: Yes. And let me clarify something that we did before the break here. You objected to this new document coming in that you were not provided with until last night. The question -- I had a series of questions that I still have these questions. Okay? Regarding both declarations and both sets of bylaws, both the originals and the amended.
And now I find out today that I was not given the amended as we're talking about today. So, it would only be logical at some point in time when I'm talking about an amended document that is outdated or incomplete that it's going to lead into this other document that is now complete. Okay.
And while I understand your objection about, quote, what could possibly be described as surprise evidence," the natural and logical course of things based on the questions that I had in comparing the original documents, meaning the declaration and bylaws of both associations, to those as have been amended would have led to discussion of this other document. This now -- what I'll call the complete document.
So, while I understand that you may have a case in that it wasn't presented to you or your client in regards to their records or documents request, my questions are going to lead there, sir.
MR. EMRICH: Well, again, I've got my objection on the record.
THE ARBITRATOR: Yes, sir. You do.
MR. EMRICH: And I respect your ruling. And you've already said it's coming in. You said that previously. And so, my point was real simple: One of the reasons we submitted a document request and asked for this right out of the block, is according to what the witness has already said, it was in existence as of -- it looks like what's scratched out on the certificate is that it was in existence on May 1 of
2018. And so, we had asked for this, your Honor. And we never got it. And Ms. Woodcock indicated that it was filed, it was on file. Yada-yada-yada. We heard from
Darling -- I don't want to rehash all that, because I'll talk about that when we get to the stage where I'm writing what my proposed findings and order -- you know, my recommendation.
But at the end of the day, I've expressed to you what my concerns are. You've indicated -- you're a trial lawyer. You understand what happens. You know, you proceed, you prepare, you do things based on what is given to you, what an arbitrator like yourself sets up in terms of a -- in terms of, you know, the rulings and what's going to happen and when you got to do stuff. And, you know, we try to comply. And things happen. I get that.
So, please understand where I'm coming from. I'm not trying to be obstreperous. I'm not trying to be a jerk. I understand your rules. I read your procedures. You know, again, I'm trying to get a list of the facts out to support what we have submitted.
And so, that's all I'm going to say about it. And again, I respect where you're coming from. But, you know, you make your record, and we can, you know, argue about it later if need be. But at this point you know how I feel about it. I mean, there was information that was submitted that was supposed to be -- that we had requested with that, you know, the packet of things that went with that. And none of that was produced. Until -- and then we get these amendments last night.
So, again, I'm not making any accusations here. I'm going to do that. But at the end of the day, we strongly objected to it coming in that late hour. I mean, I had, you know, I just --
THE ARBITRATOR: I've been a litigator 30 years, sir. Okay? And I understand your concern. I sympathize. All I can say is once again, I had numerous questions regarding these documents, and it's only natural that the answers to those questions would lead to these new documents. So, your objection is noted.
I appreciate your position thoroughly. I've been on that side of the coin, so to speak. But I am going to move forward because we're going to get there whether you ask the questions or whether I ask the questions.
MR. EMRICH: And that's fair. Again, you know where I'm coming from. This is exactly why we asked for the documents back when we filed our document requests.
THE ARBITRATOR: I got it. I got it.
MR. EMRICH: Okay. Thank you. Thank you for understanding my position, you know, as somebody who does this kind of thing. You get it.
THE ARBITRATOR: As I told you before, I have not been a desk jockey for the last 30 years.
MR. EMRICH: And I respect that. I try not to be, too. And I appreciate where you're coming from. And you know where I'm coming from.
THE ARBITRATOR: Okay. So, you will please redirect the witness?
Ms. Taylor, how are you doing?
THE WITNESS: I'm fine. Thank you.
THE ARBITRATOR: Okay. I will have questions once
Mr. Emrich is finished, just to clarify some things in my mind. Okay?
THE WITNESS: Okay.
THE ARBITRATOR: All right.
MR. EMRICH: Thank you.
REDIRECT EXAMINATION
By: Mr. Emrich
Q. Ms. Taylor, you mentioned that the new bylaws and other documents that were submitted last night, you indicated that were passed on May -- or effective as of May of 2018, had been in the works for some time, and had been held back, as you indicated I believe, for the purposes of waiting for the master board to amend their documents; is that correct?
A. Yes.
Q. And you indicated that that was going to happen at some point around the same time that you did this; is that correct?
A. I did not know when it was going to happen. I stated that it did happen around that same time.
Q. Have you had an opportunity to look at Exhibit R-12 of your attorney's presentation of exhibits?
A. Which is?
Q. It's the certificate of amendment of the bylaws and the other documents that are listed, governance documents that are listed in Exhibit 12 for La Club -- the Club at La Peninsula?
A. The ones that are dated 2017?
Q. No. The ones that are dated August 26, 2015. If you look at -- you're looking at the first page?
A. Uh-huh.
Q. If you scroll down and look at when those were amended, they were amended three years -- almost three years before the documents that you said were being held back to wait for the master board's amendments.
A. That might be correct, but in 2014 it was still causing consternation to our general counsel. And they were being redone in 2017 and '18.
Q. But again, what was redone was not put into effect until May of 2018. And my only point is that what was being done here with the master board had been done almost three years before. They weren't being redone at the time of this -- at the time that you were redoing them?
A. I'll have to refer back to Dave Petrella when he speaks. It was my understanding that they were --
Q. That's fine. I'm just referring to the document here as to when those were in place. Was there any other reason why you changed the voting percentages from 75 percent to 50 percent on the eve of this vote by your board, 200 board and your building owners on this project?
A. Well, I -- Barbara, want to object? I did not -- that's a supposition that I did it on the eve. We did not do it on the eve.
Q. All right. Excuse me for the characterization.
A. Let me finish. You've asked a question. I get to finish, please. We did not do it on the eve. We actually had these drafted up quite some time earlier. And by direction of our general counsel, which we relied on for legal matters and by -- matters and bylaw drafting, she asked us to wait. So, we waited. There was no eve of waiting for something else. We waited on general counsel advice.
Q. So, what your testimony then is, is that had nothing to do with this project, getting this project through with a 50 percent vote as opposed to a 75 percent vote?
A. No.
Q. And as I understand it --
A. Awhile ago -- we have a lot -- we have other votes that occur. This isn't the only vote that ever has occurred that needed to be recorded.
Q. As I understand it --
A. Our general counsel stated that it was becoming common practice in a lot of condominium associations to go to a simple majority rather than three-quarters.
Q. As I understand it, your building is the only building and the only association building that has changed its voting requirements regarding the 75 versus 50; is that correct? Or any change in the common areas. Correct?
A. That is correct, as far as I know. I would not know the status of each building's bylaws. But I do know that was a decision by the 200 building based on counsel's recommendation.
Q. As of this date, the master board has not changed its voting percentages from 75 to 50 percent for any material change, have they?
A. That was a decision by the master board.
Q. What's that?
A. That was a decision by the master board. So, if you say they haven't, David Petrella can confirm that. I don't believe they have either.
Q. We'll ask him. I just want to understand what we're talking about here.
Now, one of the things that you talked a lot about when you were answering Ms. Woodcock's questions was that this accessibility issue to these unit owners on the second floor was something that was a very big concern to you because of their difficulties in getting around, I think as you put it; is that correct?
A. Accessibility for the townhome owners, yeah.
Q. The townhome owners. And the townhome owners, for the arbitrator's benefit, are the town -- are the owners on the second floor of the wings of this building; is that correct?
A. Those are the townhome owners that are on the east and west wings of the building, with no access except for the stairways.
Q. So, again the answer would be that's correct -- I'm correct. Right?
A. These are two-storey units. So, there's not eight of them there -- or yeah.
Q. And the walkway that had been approved by the 200 board building owners in part was to service those townhome owners, in addition to those along the ground to give them accessibility to the elevator; is that correct?
A. Yes.
Q. Now, just so I'm clear and so the arbitrator is clear, the people that live in those townhomes, where do they park their cars?
A. In the parking lot.
MS. WOODCOCK: Objection. Relevance.
MR. EMRICH: Well, I believe it -- I think it's relevant, your Honor, because I think it goes to question her about why they -- her justification for the decision they made on moving forward with this project.
THE ARBITRATOR: I'll just allow it, Counsel,
Ms. Woodcock.
MR. EMRICH: Thank you.
BY MR. EMRICH:
Q. How do they get to their -- they park their vehicles in garages underneath the ground floor units; is that correct?
A. They park their vehicles in ground floor parking spaces either underneath the building, in the visitor parking spot out front, or in the side parking spots that are all ground floor, which are all then accessible by wheeled conveyances to the base of the elevator that they would take to go up to the second floor.
Q. And my point is, at least with respect to some of them, they have to come up some stairs to get to the ground floor or to the second floor if they go up the stairs to their unit; is that correct?
A. If they were not to use the Elevator, yes. They had stairs to use.
Q. And as you indicated, they also have second floors where the bedrooms are located in those units; is that correct?
A. Correct.
Q. With stairways going up to those units; is that correct?
A. Correct.
Q. So they have to climb stairs in their units as well. Correct?
A. That is a decision with regarding their own personal inside of their unit.
Q. I understand that. But there are stairs that go up to their bedrooms, a set of stairs if you will. Correct?
A. Yes.
Q. All right. Now, with regard to your -- you live in one of these townhomes; is that correct?
A. Yes.
Q. And you live on a second floor where you have the walkway outside your window that runs along below your windows; is that correct?
A. No. The walkway is to the left of my windows.
Q. But it's underneath the windows; is that right?
A. You mean the walkway we constructed?
Q. That you constructed.
A. No, it is not underneath my windows. It is to the (audio break).
Q. When you look out, you see the walkway from your windows in your unit?
A. No. If you look at the pictures, I'm in 202. There is no walkway below my windows. The platform for access to the handicap -- handicap, I shouldn't call it that -- the elevated walkway is to the left of my front door.
Q. So, when you look out your windows, you don't look at a walkway that's over the top of those windows, covering those windows, shading those windows?
A. No.
Q. Right? Is that correct?
A. Correct.
Q. And you -- when we looked at some of the photographs here, and if we could put the photographs back up from Exhibit No. 7, P-7, and if we go to the last photograph of that group?
A. Are you putting them up, or am I supposed to be looking?
Q. We're going to put them up on the screen for you.
A. Thank you.
Q. When you look at that photograph, what you had previously indicated was from looking from the doorway of 213 towards the elevator tower, you can see that that walkway that was constructed, the darker area of that walkway covers the windows -- a couple of the windows into 213 as well as the other units on the ground floor. Correct?
A. I would disagree with your description of covering. It does not cover because it does not attach to the wall. There is definitely a space with light coming through between the walkway and those windows.
Q. But there is also a walkway that obscures some of their view from their windows. Correct?
A. I will say yes, but no different than the trees that used to be there.
Q. And there are now pillars outside of that window that those folks look at; is that correct?
A. Yes. That is correct. There are now pillars.
Q. And you folks that had this approved on the second floor, you don't have that, do you?
A. No, we don't. We have railings.
Q. Now, with regard to the considerations of the people on the ground floor, was one of the concerns that was discussed when this project was presented, and the reason why that it was voted on the basis that it was to be a project connecting all nine units was because of concerns expressed by some of the building owners about the potential obstruction, if you will, that we're looking at in that photograph for the ground floor owners?
A. First off, it wasn't approved specifically for nine. It was nine units mentioned within the proxy allowing us to --
Q. I get that.
A. Well, if you get it, then please misstating it to me. Thank you. So anyway, what we said was -- well, go back to the -- go back to the meat of your question and not the supposition part, please.
Q. Again, was that a consideration that was expressed by some of the building owners, the 200 building owners, who were asked to vote on this at the time of the vote in June of 2018, and one of the reasons why the minutes and the project that was passed was a project to connect nine units that are enumerated in the proxy to the walkway?
A. I don't agree with you.
MS. WOODCOCK: Objection. Asked and answered.
THE ARBITRATOR: Could you just make a short statement? Was it? Yes or no, I mean?
THE WITNESS: It was designed -- I don't know there's a short statement to that question, because there's so many pieces to it. But there was -- it was recognized that there would potentially be something in front of some of the lower units. There was also the recognition that the ones up above did not want it attached directly to their building, which is why we have it extended out from the building. So, we tried to make it as away from the building as possible while we did it. But not withstanding that, it was also voted by a majority to allow it.
BY MR. EMRICH:
Q. I understand that. But there were concerns expressed by some of the building owners about the impact of that walkway overhanging those windows in the lower units. Correct?
A. I don't recall anyone saying that one to me specifically, no. The only ones who would have objected to me were 201, 208, and the current at-the-time owner of 213. They did not say that to me. The only person that said that to me was probably Mike after he moved in.
Q. So, he was one of the owners that was impacted concerned --
A. After the fact. He was not an owner at the time of the vote.
Q. I understand that. So, he was one of the persons that was impacted? His view was impacted. Correct?
A. He has a post in front of his window, yes. And he has an air conditioning unit.
Q. So, just so I'm clear, you were going over some pictures that showed the front of his unit that had been taken the other day. And those were in --
THE ARBITRATOR: Can't hear you.
BY MR. EMRICH:
Q. -- R-28 of the Respondent's exhibit list. And if we go to the last couple of photographs that were looked at, that were looking at Mike's unit from the front, you talked about the fact that there was a stairway that went up to the unit above Mike's unit, that there was a deck that was over his doorway. Correct?
A. Correct.
Q. And we're looking at one of those photos right now. Okay?
A. Yes.
Q. And you indicated that the -- that there was already a walkway of some sort, porch or whatever you want to call for the unit above Mike that was overhanging his doorway. Correct?
A. That is correct. That is what has been placed over his doorway since the building was built in 1989.
Q. And your point in making that was what? Making that statement was what?
A. The walkway did not extend further to the east -- or west over his doorway.
Q. So, the window to his kitchen, which is to the right of his doorway, did not have any walkway over
it. Correct?
A. That is correct.
Q. Thank you. Now, if we go back to Exhibit R-2 for a minute, R-2? And if we go to the second picture in R-2, that is a proposed right side, if you will, right side proposed. That's the area looking into that corner that goes or connects the walkway or was going to connect the walkway to the elevator tower building. Correct?
MS. WOODCOCK: Objection. Mr. Emrich is testifying again.
BY MR. EMRICH:
Q. Is that what that is?
THE ARBITRATOR: Rephrase the question to an open-ended question.
BY MR. EMRICH:
Q. What does that picture depict?
A. That picture depicts --
MS. WOODCOCK: Asked and answered.
THE ARBITRATOR: Go ahead. I'll allow it one more time.
MR. EMRICH: Thank you.
THE WITNESS: That picture depicts the walkway as proposed from the landing on the top of 209 and 210, extending across the open space to the elevator landing.
BY MR. EMRICH:
Q. It also shows a picture of a -- of what appears to be some sort of a support column; is that correct?
A. That gray line could be. Perhaps not. I think so.
Q. And that was what was in the original renderings that were provided with the original project; is that correct?
A. Yes. Those were the renderings that were very loosely designed, waiting for an engineer to give us actual placements.
Q. If we go back to R -- better yet, let's go to P-7. And we go back to the eight page of that document. I'm sorry, the seventh page. That is from inside of that area, looking out at what appears to be there now. Correct?
A. Yes.
Q. And as you can see, there are several more structural supports than what were depicted in the proposed rendering. Correct? That we just looked at?
A. I'm going -- I told you the rendering was set up as a guide for what we would want it to get look like. The actual design that the engineering drew in order to support it, then brought in the number of posts. We also minimized the posts from double posts to single posts. So I can't say that there are many more, because you are counting double posts versus single posts.
Q. Well, when we look at that, we can clearly see that there are more posts than what had been in the rendering. Correct? That we looked at first?
MS. WOODCOCK: Objection. Asked and answered.
THE ARBITRATOR: You covered the differences between the renderings and what was actually built.
MR. EMRICH: Okay. As long as that point is in the record, that's all I need.
THE ARBITRATOR: It's different. I got it.
MR. EMRICH: Okay. Thank you.
BY MR. EMRICH:
Q. Now, one of the issues that you talked about here was that -- that were you trying to make decisions about accessibility versus privacy. And what -- explain that for me. I didn't quite understand the point you were making when you were asked about that in connection with these particular decisions that were made regarding the project going forward.
A. If you look at the picture that's still on the screen, if you stop at the first railing where it clears the building, you would have made a sharp right turn. If we had gone for 100 percent ADA acceptability, which required a greater slope, then we would have turned the corner on the right, attached it to the building, gone back and attached it in front of -- in that case it would have been 224, I believe. And come around the front in front of 224's exit railing before opening up to go onto the Elevator.
We had had a lot of comments from owners, including the owner of 224 in that they valued their privy. And the option then was to take this walkway, and take it straight out from the building, and make the small turn that we did, and keep this walkway from attaching to the building, and being in front of numerus windows or directly over numerous windows.
And when I say "directly over," not with the gap that's shown in the other picture that shows the gap between 213 and 208 that has a gap between the walkway and the windows, but this would actually be attached to the building. So, there would be no gap, no allowance of any privacy. So, we took this ramp, and we took it out across.
Now, in the end, this extension of the ramp this way, which we had originally planned on but found did not provide enough slope, was then the one that exactly matches what the master board approved.
Q. And as I understand what you're saying then, is that the impact on the lower unit owners, in terms of how this might impact their units, was secondary to the considerations that you just mentioned?
A. No.
MS. WOODCOCK: Objection. Mischaracterizes the testimony, and assumes facts not in evidence.
BY MR. EMRICH:
Q. Was there any consideration given to the impact of this particular walkway on how it might impact the potential value of the lower units along the ground floor?
THE ARBITRATOR: Mr. Emrich, you're on redirect. I don't recall your direct talking about the impact on value of the lower units.
MR. EMRICH: Well, but I would indicate that she was -- in her testimony, she was talking about the considerations that were made regarding the placement of this walkway. So, I think that it's only appropriate for me to cross-examine her on that, and ask some questions about that on redirect.
THE ARBITRATOR: All right, fine. A few questions will be fine on that basis.
MR. EMRICH: Thank you.
BY MR. EMRICH:
Q. Was there any consideration as to the impact on the financial value of those units by the placement of this walkway in the position that it was along the second floor area over the windows with those posts placed where they were along the ground floor of the units on either side of the elevator tower?
A. We did not do these for discussions -- any discussion of value on the units, whether it was the townhomes other the lower ones. We focused on privacy and accessibility for our owners. That was the sum total of our discussions as we talked to owners, and as we talked to engineers. If other people brought up value issues, it was not something that we based our decisions on.
MR. EMRICH: All right. I think I'm done, your
Honor. And can I just take a minute before I complete, and go off record?
THE ARBITRATOR: Sure.
MR. EMRICH: Thank you. (There was a break taken, after which the deposition was resumed as follows:)
MR. EMRICH: Back on the record. Can you hear me?
THE WITNESS: Yes.
BY MR. EMRICH:
Q. All right. So, one last question, then I'll be done.
When this project was finally approved, the ADA compliance aspect of it was no longer something that was relevant to the project given what had -- what decision you had made about moving forward; is that correct?
MS. WOODCOCK: Objection. Asked and answered.
THE ARBITRATOR: This is his last question. I'll just let it go ahead.
THE WITNESS: I thought that was has last question. Am I supposed to answer that? I'm sorry. I'm confused.
THE ARBITRATOR: Just answer. This is his last question.
THE WITNESS: Okay. I'm sorry. Please say that again.
BY MR. EMRICH:
Q. So, as I understand it, at the time that this project -- the final project with the six units as opposed to the nine units that was -- that you moved forward with, as I understand what you're now saying based on what was done, the concern about the one of the features or aspects of it that had been advertised to the building owners was the ADA compliance aspect was no longer a consideration?
A. I would answer that by saying that it's not something -- it's not something that I am now saying. It was something that was discussed with owners verbally and at meetings, and it was discussed at the master board. It was gone through in detail in March, July, November at the master board, and it was a decision based on what we were voted authority in the proxy, which was to make a decision about this as board in the best interests of the building.
Q. So, the answer is: It was not a concern at that point. It was not something that was part of this project?
A. I will not use the word concern.
MS. WOODCOCK: Objection.
THE WITNESS: Thank you.
THE ARBITRATOR: It's been asked and answered. I understand her answer, sir. So --
MR. EMRICH: All right. I have no further questions, your Honor. Thank you.
THE ARBITRATOR: Ms. Woodcock, do you have anything?
MS. WOODCOCK: No, your Honor.
THE ARBITRATOR: How are you doing, Ms. Taylor?
THE WITNESS: Pretty good, thank you.
EXAMINATION
By: The Arbitrator
Q. Okay. I need to get some facts straight in my head, ma'am. And do you have a complete list of exhibits for Respondent's exhibits?
A. Yes. I believe I do. It's what Barbara gave me.
Q. And what I want to discuss with you, it is Respondent's 15, 16 and 17.
A. 15 the proxy votes.
Q. Yeah.
A. Okay. And 16 the proximate votes? Okay.
Q. And 17 is proxy votes.
(Whereupon, the document was marked as Respondent's Exhibit No. 15 for identification.)
(Whereupon, the document was marked as Respondent's Exhibit No. 16 for identification.)
(Whereupon, the document was marked as Respondent's Exhibit No. 17 for identification.)
THE WITNESS: Okay. I have it here. I've got them open. What's your question, please? Thank you.
BY THE ARBITRATOR:
Q. These exhibits seem to have some different dates on them as I go through them.
A. Okay. Under 15 --
Q. Right?
A. 15 is March 6th. That was the vote on the proxy. That's why -- that was the vote on the bylaws.
Q. Okay. 15 is to amend bylaws?
A. Yes.
Q. Whose bylaws?
A. 200 building bylaws.
Q. Now, in Exhibit 15, is actually two sets of votes it seems.
A. If I could explain? I think somehow in all of these connections of trying to copy things, the second set of proxy is the actual vote on the walkway. The first set is the vote on the bylaws. There are various PDF creations and connections. These are both in the same document.
Q. So, Exhibit 15 contains two sets of votes: One vote in the upper right-hand corner is 3/6/18.
A. Correct.
Q. And the second set of votes in the middle of the page is 6/26/18.
A. Correct.
Q. Okay. The 3/6/18 represents the vote to amend 200 building bylaws; is that correct?
A. Correct.
Q. So, that's the vote for that. Then what is the 6/26/18?
A. The 6/26/18 is the vote for permission for the proxy to go forward with the planning for the walkway. And the approval of it.
Q. And these are those units on the votes?
A. I'm sorry, pardon.
Q. These are the votes of building 200 unit owners; is that right?
A. Yes.
Q. Now, let's go to R-16.
A. Okay. That seems to be a repeat of the vote of March 6 of the bylaw change. Another copy of it, with all of the votes attached.
Q. So, that's a repeat of part of 15, just with the votes attached. I got that right?
A. Yes.
Q. Now, 17.
A. That is a repeat of the vote on the walkway.
Q. So, essentially, I could throw Exhibit 15 out, and just use 16 and 17.
A. Yes.
Q. Because 16 is to amend the bylaws with the votes, 17 is a vote on the walkway with proxies?
A. Yes. And I believe it's just 15 got included in an overabundance of documentation.
Q. Shame on you.
A. Right.
Q. Now, you're going to need -- and I'm going to need some help here from counsel -- the master amended declaration of bylaws, and the master amend -- and the 200 building amended declaration and bylaws. Let me know when you're with me.
MS. WOODCOCK: I'm not sure what your question was. I'm sorry.
THE ARBITRATOR: Okay.
MS. WOODCOCK: You want me to clarify which documents are which documents?
THE ARBITRATOR: I need four documents.
MS. WOODCOCK: Okay.
THE ARBITRATOR: Let me ramble on for a second. Okay? And I'm going to give counsel some understanding where I'm going here. I just need some facts. It seems that about the time that the vote to amend the bylaws and the vote on the walkway -- what we're calling the walkway -- are all pretty much around -- kind of around the same time. I need to determine at the time the vote was taken which set of bylaws and declarations controlled. Okay? That's what I need to know.
MS. WOODCOCK: Understood.
THE ARBITRATOR: Because to me, whether this project was voted on correctly is determined by the date that those amendments were or were not enacted.
MS. WOODCOCK: Yes.
THE ARBITRATOR: So, we can either do this through the witness, or we can do this through counsel.
MS. WOODCOCK: I suggest doing it through counsel, because the documents are what the documents are. And they were recorded and passed when they were passed and dated. I don't think we really need witness testimony as to that. But that's my opinion.
THE ARBITRATOR: Mr. Emrich, do you got a problem with that?
MR. EMRICH: No, your Honor. No.
THE ARBITRATOR: Okay. So, let's go off the record a moment, and we'll get this straight between the counsels.
(Whereupon, a discussion was held off the record.)
THE ARBITRATOR: We can go back on the record. Does either counsel want to recap of what we've just gone through for purposes of the record? Mr. Emrich?
MR. EMRICH: I'm not going to, your Honor.
THE ARBITRATOR: Ms. Woodcock?
MS. WOODCOCK: No, your Honor.
BY THE ARBITRATOR:
Q. Okay. Ms. Taylor, we're back on the record. And we had a conversation about various sections of the amended declaration for building 200, the amended declaration and bylaws for the master association. Right?
A. Yes.
Q. Okay. Did you follow that conversation?
A. I believe so, but I'm assuming that when you ask me a specific question, if I have a doubt, you would clarify it for me. Thank you.
Q. Absolutely, ma'am. I read -- now, I don't know if you were privy to this.
Did you get a copy of -- I'll strike that. It's been brought up during the course of this hearing that certain unit owners who opted into the walkway project would pay for the construction of the project. Is that a correct understanding of the facts?
A. Yes.
Q. So, people who are on the elevated first floor would pay for the walkway. And if a sidewalk had been installed, those people on the ground floor would pay for the sidewalk.
A. Correct.
Q. Now, it's also my understanding that maintenance of the walkway is going to be incumbent upon unit owners or association owners. Who gets to pay for maintenance?
A. As it's written in the proxy, that after the unit -- after the walkway was developed and fully paid for, that it would become part of the common elements of the building and maintained through the building.
Q. Only building 200 unit owners pay for maintenance of it?
A. Correct.
Q. So, the cost of any maintenance is not -- is or is not dispersed over the master association?
A. No. None of the 200 building maintenance is dispersed to master board.
Q. Are there any costs resulting from the walkway that are dispersed over master association?
A. Since the walkway was finished, there have not been any costs that were dispersed over to the -- I'm sorry, did you say the master, or the building?
Q. The master.
A. No. I'm sorry. No. No walkway expenses were dispersed to the master at all, nor will they ever be.
Q. Does that include insurance?
A. Insurance is all paid individually by the building. Property, casualty, wind, fire, et cetera.
Q. Does the master incur any other liabilities aside from insurance casualty that would be associated with the walkway?
A. No. Zero.
Q. I'm going to get a little facetious here, if you don't mind, ma'am?
A. Please, go ahead.
Q. So, Hurricane Zelda comes up the coast, and -- you're in Naples. Right?
A. The Naples address; closer to Marco Island.
Q. I know the area very, very well. Okay? Hurricane Zelda comes up and blows that walkway away just like Dorothy in the house, and it lands somewhere in Naples.
Who is liable based on your understanding of insurance liability, things like that?
A. The 200.
MR. EMRICH: I object to her answering that question, your Honor. She's not a lawyer.
THE ARBITRATOR: I said based on her understanding of the documents. She's a board member.
MR. EMRICH: Okay.
THE WITNESS: I'm also in the middle of dealing with Citizens and Irma. I actually have Irma and Zelda close in my mind, also being facetious, sir.
Anyway, the buildings' insurance would be approached, and obviously a claim would be made for the repair of that. And then depending on building deductibles and determination, it would be a cost borne, we hope, by insurance. And then it would be a question if the owners had to have any responsibility after an insurance claim was made. The building.
BY THE ARBITRATOR:
Q. So, it's basically building 200. They're all on the hook for this walkway if something happens?
A. That would be correct as with any other common element. Yes.
Q. Aside from the governing documents that we've discussed, meaning the building 200 amended declaration and amended bylaws, and then the master association amended declaration and amended bylaws, are there any other documents that, to your knowledge, that reflect the liabilities associated with the walkway being placed squarely on the owners of units in building 200?
A. I would say only the bylaws as it related to the proxy being voted and approved that the owners would -- the townhome owners would pay for construction, and the approval by the building owners to accept the maintenance expense as a common element going forward. I would say that would be authorizing to put it into the bylaws if it was necessary.
Q. Could you just give me a moment, ma'am?
A. Yes, of course.
Q. So, in some point of your testimony, it was when Ms. Woodcock was, I'll say, redirecting you or cross-examining you technically, because you were called as a witness by petitioner, you were briefly described cleaning up the bylaws as you called it.
A. I did use that term casually, yes.
Q. Excuse me?
A. I said I did use that term. Yes.
Q. Can you just give me a basic chronology on how that cleanup started?
A. Sometime after I became the treasurer -- so probably after '13 or '14, and it might have been after we commenced -- we had a settlement for Hurricane Irma back in '12 or '13, and proceeded to do some building repairs. And as we were looking at pieces of the building and how it was being managed, our general counsel said that there were a number of aged flaws in our bylaws. Just a matter of time and age. You know, as things become outdated with time or with changes within the building. And she suggested that we re-do the bylaws.
And so it was that discussion after --perhaps after the Wilma Hurricane fixes that we went through and said we should clean up the bylaws, and have those as efficient as possible. And that was upon recommendation of general counsel, Jamie Greusel. So, we proceeded to meet with her a couple of times as she went through our bylaws, and pointed out what she felt were old language, possibly some areas that were in conflict with Florida statute. Nothing -- what do I want to say -- debilitating that would stop us from running the association, but just to recognize the fact that we had old bylaws.
And so we agreed to that, and went through a long process with her of reviewing and exchanging. As part of that, one of the recommendations was to go to a simple majority, which she had also indicated was a more common direction that boards were going instead of the three-quarter vote for a lot of changes. So, we went along with her recommendations.
I can't tell you that I remember those changes. I'm assuming that in Jamie Greusel's records somewhere are detailed descriptions of what she went from bylaw Version 2013 to bylaw Version 2018. But that was all done at general counsel recommendation. So, it was a long process which then, as I explained earlier, became halted when Jamie Greusel said to us, "I'm also looking at the master board."
And I know they were doing something at the master board. And I wasn't serving on the master board at the time, so I can't -- it was my understanding they were changing the bylaws. But if they didn't, Jamie still gave us counsel to hold off on ours until she had rewritten the master's to make sure that we tried to stay in sinc with what she considered to be upcoming master bylaw changes. So, we were going on the advice of general counsel to make all those steps to keep the building as updated as possible.
Q. I don't want you to necessarily tell me what your lawyer said. That's none of my business.
A. Sorry.
Q. No. I mean, well, I don't want to get into specifics.
THE ARBITRATOR: Counsel Woodcock, can you please go to the definition of voting interest again in the 200 bylaws?
BY THE ARBITRATOR:
Q. So, Ms. Taylor, are you able to see that on your screen: Voting interests?
A. I can read part of it. The problem is the view. Just a minute. I got to shut down the view of all the screens. Okay. "Voting interest shall be defined as the arrangement established in the condominium documents." Is this the one you were referring to? 5.21?
Q. Right. This is one of the changes that got adopted?
A. (Witness pausing.)
Q. Is this one of the changes that was adopted?
A. I don't believe I know if that's one of the ones, because that doesn't address the simple majority.
Q. Okay. Because in the original documents, there was no definition of voting interest for building 200. It only appeared in the declaration of the master bylaws.
A. And I would say that was probably one she suggested. That's the only conclusion I could draw from your information.
Q. Can you just give me a moment? I'll give both counsel an opportunity to ask some questions based on the stuff I've asked if they want to. I think I got this straight in my mind now. Mr. Emrich?
MR. EMRICH: No questions, your Honor.
THE ARBITRATOR: Ms. Woodcock?
MS. WOODCOCK: No questions, your Honor.
THE ARBITRATOR: Okay. Thank you for your time, ma'am. You've been very patient. I appreciate it.
THE WITNESS: Thank you. (Whereupon, the witness was excused.)
THE ARBITRATOR: Mr. Emrich, do you have any more witnesses?
MR. EMRICH: Yes, I do, your Honor.
THE ARBITRATOR: Okay. Who's next?
MR. EMRICH: Mr. Petrella. Or Doctor. I understand he's a doctor. Dr. Petrella.
THE WITNESS: Present.
MS. WOODCOCK: Dr. Petrella isn't listed as an representative of the association -- of the master association on petitioner's witness list. So, I'm going to state an objection to that. But I had talked with counsel prior, and he stated that he would have him near and available to testify, so I'm going to allow it to proceed.
THE ARBITRATOR: Okay. This is how I feel about it. I mean, you know, we're not Circuit Court, we're not in the DCA, we're not part of the Supreme Court of the U.S. Supreme Court here. Okay? There was a bit of a surprise from Mr. Emrich's part about the amended bylaws.
MS. WOODCOCK: Understood, your Honor.
THE ARBITRATOR: Mr. Petrella is here. You know, let's just have it out here today, folks. Make a record, and whatever I decide, you know, you go to the next level.
MS. WOODCOCK: Yes, your Honor. Understood.
THE ARBITRATOR: Mr. Emrich, call your witness.
MR. EMRICH: Yes. Dr. Petrella.
THE WITNESS: Yes.
THE ARBITRATOR: Sir, would you please raise your right hand.
(The oath was thereupon duly administered to the witness by the Arbitrator.)
THE ARBITRATOR: Okay.
MR. EMRICH: Your name for the record, sir?
THE WITNESS: David Petrella.
NANCY TAYLOR
having been first duly sworn, was examined and testified as
follows:
EXAMINATION
NANCY TAYLOR
BY MS. WOODCOCK:
Q. Were you present this morning during Mr. Meiresonne's testimony where he stated that you instructed him not to take meeting minutes when he was secretary of the Board?
A. Yes, I was present.
Q. Did you ever give Mr. Meiresonne that instruction?
A. I would have told him that following normal policy with Resorts management is Resorts keeps the basic minutes and that's where we record any actions, votes, etcetera, but we do not do detailed minutes, and thus, it has been practice that Resorts keeps those for us, and those are the minutes we vote on at subsequent meetings.
(Off the record 2:34 P.M.)
(Back on the record 2:41 P.M.)
CONTINUING BY MR. EMRICH:
Q. Ms. Taylor, prior to when we went on a break, I was going to ask you, there's been a lot of back and forth and testimony about the proxy that was voted on by the 200 membership. From the 200 Board's perspective, what was voted on by the membership?
MR. EMRICH: Your Honor, I'm going to object to that. The proxy speaks for itself, and the minutes that were passed based on that proxy speak for themselves. I don't think it's appropriate to have a witness comment or try to explain away what the actual records of the Board action reflect.
MS. WOODCOCK: There's been plenty of testimony --
MR. EMRICH: I've made an objection, your Honor.
MS. WOODCOCK: I understand. I'm responding to your comment.
MR. EMRICH: But the Arbitrator has always indicated to me that I can't say anything until he rules on the objection.
MS. WOODCOCK: Okay, that's fine.
MR. EMRICH: What's good for the goose is good for the gander.
MS. WOODCOCK: May I respond to Mr. Emrich's comments?
ARBITRATOR: You're not going to need to, Counsel.
MS. WOODCOCK: Thank you, your Honor.
ARBITRATOR: What I'm going to do is this. I'm going to allow the question and the response, then, Mr. Emrich, take it easy there, sir, you can cross-examine her on it and you can bring out through documents or other questions what I may call impeachment testimony, okay? This way, everybody take a deep breath, calm down, and we'll just get through this without any more fireworks.
MR. EMRICH: I'm very calm, your Honor.
It's just my nature.
ARBITRATOR: I understand, sir.
MR. EMRICH: I'm a litigator.
ARBITRATOR: Ms. Woodcock, if you would please repeat the question and the witness will be able to answer without any objection, sir.
MS. WOODCOCK: Thank you, your Honor.
CONTINUING BY MS. WOODCOCK:
Q. Ms. Taylor, my question was: What was the membership voting on via the proxy?
A. The membership was voting to allow the construction of a walkway to the nine potential units that were numbered in the proxy. It was listed that the townhome owners would pay for them, and it was listed that the Board would have final approval because we knew that changes and alterations would develop with engineering and we wanted the ability to have that flexibility to respond to engineering and county code requirements.
Q. Was there anything attached to the proxy that was voted on?
A. No. There were communications that were sent out as explanations. There was e-mails. There was a lot of discussion at meetings, but there was not a legal document attached to the proxy, as far as I understand.
Q. So are you familiar with the renderings that have been talked about a lot in the testimony, correct?
A. Yes, very familiar with all of them.
Q. The renderings, were those attached to the proxy?
A. No, and, in fact, I'd like to clarify that the renderings has two or three iterations. There was the ones I call the blue ones, which have the bright blue background, and those were the very early ones that we had someone draw up for us to try to give an early representation of what we thought it would look like, then we had the actual pictures that were done where you have a picture of the building with no walkway and then a picture of the building with a computer-generated walkway across it, and those were to give a better idea of what we believed they would physically look like using the building rather than those more indecipherable blue drawings that we had.
And then finally at the end, we had the actual very detailed engineering drawings developed by our engineer which were the basis for the permitting and the final review by the Master Board.
Q. But none of those were attached to the proxy?
COURT REPORTER: I didn't hear an answer.
THE WITNESS: No.
CONTINUING BY MS. BALLARD:
Q. I'm showing you on the screen what is Respondent's 5
R-2.
A. Yes.
Q. And this shows the photographs that you were referencing that were made of what would potentially 9· be shown, correct?
A. Correct.
Q. And then also attached to R-2 is some drawings. Is this what you're referring to as the blue drawings?
A. Yes.
Q. And you also referenced the engineer drawings, final engineer drawings?
A. Yes.
(Referenced Exhibit R-7.)
CONTINUING BY MS. WOODCOCK:
Q. I'll show you what is R-7. Are these the drawings that you're referencing?
A. Yes.
Q. In June of 2018, how many directors were on the Board of Directors?
A. Three.
Q. And who were they?
A. Robert White, myself, Nancy Taylor, and William Zammer.
Q. And Mr. Zammer was the owner of Unit 213 at the time, correct?
A. Yes.
ARBITRATOR: Barbara, can you hold your question just one moment?
(Off the record 2:49 P.M.)
(Back on the record 2:50 P.M.)
ARBITRATOR: Go ahead.
CONTINUING BY MS. WOODCOCK:
Q. When the walkway was constructed, were all county permits and county requirements complied with?
A. Yes, everything.
Q. In the proxy that was voted on, is there any reference to the proposed walkway being ADA compliant?
A. No.
Q. The final engineer drawings that we looked at in R-7, why were changes made in those final drawings compared to the initial conceptualization that is in R-2?
A. Two parts. The most obvious being that where the county would give us a code compliance instruction, we abided. So if the railings were supposed to be a certain height, if the railings were supposed to have so much space between bars, those things were done to be a hundred percent code compliant.
The other things were things that were done to try to make the walkway as easily fitting into the environment as possible. That's why we did a narrower walkway. We also changed the number of columns underneath to minimize the impact of columns underneath in front of other units. We also changed the bed of the walkway in order to eliminate any sound. So the aluminum, the other structure and concrete layers of padding were to make it so that when someone walks on it, there was no rattling.
And those were changes that were not -- especially, say, the aluminum bed, were not made with any huge change of the walkway's purpose, but to make them all a better fit within the building.
Q. The changes that were made in the final engineer drawing, were those agreed to by you and Bob White?
A. Yes, but mostly, those were things that were agreed to because we needed to have compliance with the code and the engineering's recommendations. We secured the services of a very good engineer and we weren't about to second-guess him on things that would make this a sound, better structure.
Q. And did you and Bob White constitute a majority of the Board of Directors?
A. Yes, we did.
Q. And the proxy that was voted on by the membership gave the Board control to make the final renderings --
A. Yes.
MR. EMRICH: I object to that.
CONTINUING BY MS. WOODCOCK:
Q. -- correct?
MR. EMRICH: I object to that. That's not what the proxy -- that's not what the proxy or the minutes that were based on that proxy say.
ARBITRATOR: I'd say that requires a legal conclusion on the part of the witness, because what has happened here is that I don't think there's any debate about whether this was going to be material alteration, and as the amended bylaws, is it 2.9 or 2.6, it must be the members of the Association by majority vote to approve the material alterations. It's not vested in the Board. So while -- what the witness may think that is, I don't believe that the governing documents support that legal conclusion, because that's even in some of the materials I wrote.
So if the witness wants to testify what she thinks that proxy does, I'll let her testify about what she thinks, but the governing documents control here.
MS. WOODCOCK: Well, I would ask you to allow her to testify about what she thinks because you allowed Mr. Meiresonne to testify about what he thought.
ARBITRATOR: And part of the good part and bad part of bench trials or hearings like this is you do not get to argue the law and the memos, and as a trier of fact, I can give a witness' weight what I want it to be, and that's going to be her opinion, that's her opinion. I'm going to let her answer the question, Mr. Emrich, and just like I said before, you can cross-examine her. Okay?
MR. EMRICH: Even though it calls for a legal conclusion?
ARBITRATOR: I'm going to let her testify.
MR. EMRICH: I understand, I heard. Thank you.
ARBITRATOR: Bring it out on cross-examination. Okay?
MR. EMRICH: Thank you.
ARBITRATOR: Ms. Woodcock? Barbara, please state the question again.
MS. WOODCOCK: I'm afraid I don't remember what the question is. Madam Court Reporter, can you possibly read back what the question was?
(Requested portion of the record read by the reporter.)
MS. WOODCOCK: So then the question was already answered. I don't have any other questions for Ms. Taylor.
EXAMINATION
BY MR. EMRICH:
Q. Ms. Taylor, to follow up on what the Arbitrator just stated, it would be true that the final plans that were taken -- that were utilized to construct this walkway were not the plans that were submitted at the initial 2018 meeting, correct, when the Board -- when the Building owners voted on this plan and voted on the proxy; is that correct?
A. I'm not following that question, I'm sorry. What the Building owners voted on were the two renditions, the blue pictures and the other pictures, and obviously, the very last picture -- or the last rendition, R-7, which was the engineering (inaudible) were not available until after an engineer made them.
MR. EMRICH: Let's put Exhibit 13 on the board.
MS. WARD: P-13?
MR. EMRICH: P-13, I'm sorry, P-13.
CONTINUING BY MR. EMRICH:
Q. If we look at Exhibit 13, we look at "New Business: Discuss and vote on Altering the Common Elements to Construct Walkways Connecting units 201, 202, 203, 208, 209, 210, 211, 212 and 213 to the Elevator"; is that correct? Did I read that correctly?
A. Yes, you read it correctly.
Q. And that was the plan that was passed in June of 2018, correct?
A. You didn't read it all, but, yes.
Q. The plan that was eventually -- the project that was eventually built did not include a walkway connecting at least three of those units; is that correct?
A. That is because when you complete --
Q. I don't want to know "because". Is that correct, "yes" or "no"?
A. I'm going to say "no".
Q. You're saying that the plan that was passed in -- on the walkway that was put up connected all of the units that -- as mentioned in those minutes?
A. With the full proxy language, yes.
Q. I'm talking about what the minutes and what was passed by the Board in 2018. I just want to know, was the project that was put up, did that connect all of the walkways that said that it would connect in those minutes, that's the plan that was passed in those minutes as reflected in those minutes, "yes" or "no"?
A. The walkways that were connected were the ones that followed the entire proxy direction.
Q. That's not my question. My question is: Was the walkway --
A. Sir, I don't know what to do. I disagree with your question.
Q. Was the walkway that was put up, did it connect all nine units with walkways as it said in those minutes in that proxy, "yes" or "no"?
A. The gesture was there to connect them all, but three declined.
Q. So the answer is it did not connect all nine walkways, correct?
A. It did not connect all nine walkways per the --
Q. For all nine units.
A. -- the proxy.
Q. So, again, what was put up did not comply with what was passed in 2018 as far as what units were to be connected to this walkway, correct?
MS. WOODCOCK: It's been asked and answered.
THE WITNESS: You are reading part of a proxy, not --
MS. WOODCOCK: Hold on, Nancy, hold on one second. The Arbitrator will rule on my objection, please.
ARBITRATOR: Mr. Emrich, I got it the first time, and the document does speak for itself, and I don't think it's in dispute that three of the units were not connected as provided for and voted on from the proxy. Therefore, since there's no dispute about that evidence --
MR. EMRICH: Okay, thank you.
ARBITRATOR: -- I don't see the necessity repeating of the question at this time. It's already been established by prior testimony in facts in the case.
MR. EMRICH: All right, thank you. I won't ask it again.
CONTINUING BY MR. EMRICH:
Q. My next question, then, is: As I understand in reading what is contained in Exhibit P-22, which was presented to the Board, the Master -- I'm sorry, to the 200 Board prior to the December 2nd, 2020, meeting, along with what you read, indicated that the Board -- that the Board never voted on the new plan; is that correct?
ARBITRATOR: Which Board? We have two Boards.
CONTINUING BY MR. EMRICH:
Q. The 200 Board never voted on the new plan; is that correct?
A. There was not a new plan.
Q. The 200 Board never voted on the walkway that was connected that only connected six units; is that correct?
A. There was no new plan. The other three units could be connected at any point during that process --
MR. EMRICH: Your Honor, she's not answering my question.
THE WITNESS: I'm trying.
MR. EMRICH: No, you're not.
ARBITRATOR: I know things get heated during a heat period, okay? He didn't ask you if it was a new plan. He asked you something else. So please repeat your question, sir, and if you could please answer the question that's asked of you, ma'am.
CONTINUING BY MR. EMRICH:
Q. Did the 200 Board ever vote on the walkway that was constructed that only connected the six units on the second floor?
A. Yes.
Q. When?
A. At the original vote
Q. You're claiming that that original vote was what controlled the ultimate walkway construction?
A. Yes.
Q. So, again, coming back to what I asked you: Did you ever go back to the Board and ask them or have them vote on the project that was put up that only connected six of those units and not all nine of them, "yes" or "no"?
A. Say that again.
Q. Did the 200 Board ever vote on the project that was put up, any plans for the project that was put up that only connected the six units?
A. Yes. We approved the plan as approved by the Master Board to proceed, and at that time, it was six units.
Q. I'm not asking about what the Master Board. I'm asking when -- whether or not the 200 Board approved the plan that was put up?
A. Given that we had the flexibility we believed to include them if the owners wanted to participate, then we worked forward with the plan as approved by the 200 Owners.
Q. Okay.
So you did not go to the 200 Building Owners with the plans that were changed to not only -- to only include six of the nine units, correct?
MS. WOODCOCK: Objection, asked and answered.
MR. EMRICH: No, it's not, your Honor. She keeps ducking the question.
THE WITNESS: Your words that there was a second plan. My contention, we were always on the original plan.
ARBITRATOR: Mr. Emrich, you know, you can ask the witness what information the owners of the building had in front of them when they took the vote and then you can ask, you know, how, what was built made differ or may be the same from the information which they voted on, and I think that may alleviate some of this problems that we're having here.
MR. EMRICH: Your Honor, with all due respect, the minutes of what was voted on very specifically say that it was a walkway that was going to connect nine units, and we've heard repeated testimony that the project that was put up did not connect all units. I don't understand how someone could not answer a simple question that indicates that what was put up was not what was referred to or passed by the original Board.
We can argue what that meant. That's all fair. We can -- Ms. Woodcock and I can argue about the legal effect of that. But you, yourself, indicated that it's not something that the Board is in a position to do when you make a material change to the common areas surrounding this building, and at the end of the day, this was never voted on.
The plan that was put up was never voted on by the building owners of the 200 unit because -- of the 200 Building because it only connected six of those units.
ARBITRATOR: Then perhaps --
MS. WOODCOCK: Your Honor, may I briefly respond?
ARBITRATOR: Sure.
MS. WOODCOCK: Mr. Emrich said himself just in his lengthy argument that he made repeated testimony about the same subject. It's been asked and answered numerous times throughout all of this all-day hearing and the previous all-day hearing where Ms. Taylor testified, I believe, for about three hours.
ARBITRATOR: So what I'm going to suggest, Mr. Emrich, is this: You're on cross-examination, you're allowed to ask closed-end questions, right?
MR. EMRICH: Yep.
ARBITRATOR: So the way I've done it before it, isn't it true that the proxy says X, Y, Z, which is a simple "yes" or "no" question, and isn't it true that as built is X, Y, Z, simple "yes" or "no" question, right?
MR. EMRICH: Well, if that's what it takes, I think that's what I was asking. Maybe not as simple as you put it, but that's what I was asking.
ARBITRATOR: Oh, I'm a simple man. You can ask anybody. They accuse me of it all the time, sir.
CONTINUING BY MR. EMRICH:
Q. Ms. Taylor, isn't it true that the walkway that was passed -- that the walkway project that was passed by the Board of Directors on June 26, 2018, states that the walkway is to connect Units 201, 202, 203, 208, 209, 210, 211, 212 and 213 to the elevator; is that correct?
A. Yes.
Q. And isn't it correct -- isn't it correct, Ms. Taylor, that the walkway as constructed only connects six of those units to the walkway?
A. Yes.
Q. Thank you.
Ms. Taylor, have you given any notice to the new Board about today's proceeding?
MS. WOODCOCK: Objection, totally outside the scope of representation -- or the scope of Direct.
ARBITRATOR: Sustained.
MR. EMRICH: Let me just have a moment, your Honor, if we might, and I may be done.
CONTINUING BY MR. EMRICH:
Q. Final question, and I'll finish. Isn't it true, Ms. Taylor, that the project -- the walkway that was constructed that only connected six of those nine units was never approved by your Board of Directors? "Yes" or "no"?
A. Yes, it was approved.
MR. EMRICH: Thank you, no further questions.
ARBITRATOR: Ms. Woodcock?
MS. WOODCOCK: No further questions for
Ms. Taylor.
ARBITRATOR: I just have a few things to clarify with you, ma'am, if you don't mind, a few more minutes.
THE WITNESS: Sure.
E X A M I N A T I O N
BY THE ARBITRATOR:
Q. At some point in your testimony a couple moments ago -- you doing okay?
A. I'm fine, thank you.
Q. At some point in your testimony just a couple minutes ago, I don't know if I wrote this down correctly, but the original vote controls walkway construction.
Do you recall saying that?
A. Yes. I meant the original vote on the proxy, yes, that's what I was trying to convey, my belief.
Q. And by the vote, you mean the unit owners' vote?
A. Yes.
Q. Now, unit owners vote, do you remember when that was?
A. June 26, 2018.
Q. At the time that the unit owners voted by proxy, what visual or pictorial representations as to the walkway did they -- was disbursed to them, what did they have in front of them to look at?
A. I believe that they had what I called the blue drawings, which were the drawings that we had gotten originally that were just not clear enough, and then we had the pictures with the representation of what a walkway would look like. I believe that was included, but we are talking about something upwards of four years ago. So please bear with me if I would be mistaken on that, but I believe that's what they had. Plus the verbal explanations of what we were doing.
ARBITRATOR: Can Counsel agree at this time
what exhibit represents the blue drawings?
THE WITNESS: Pardon?
MR. EMRICH: I think from Petitioner's standpoint, your Honor, we put them up on the board as part of, I believe it was R-3 and there are four blue pictures of that -- we've been looking at.
MS. WOODCOCK: That's not correct, it's not 8 R-3, it's R-2.
MR. EMRICH: R-2, whatever.
MS. WOODCOCK: That's what he's asking,
Mr. Emrich, is which exhibit it is.
MR. EMRICH: Okay. R-2. Excuse me,
Ms. Woodcock, I was wrong.
ARBITRATOR: Okay.
So can I put in my notes that there's a stipulation between the parties at this time that R-2 represents what we've been calling the renderings; is that correct?
MS. WOODCOCK: The initial rendering.
THE WITNESS: The initial, the first renderings were the blue drawings.
ARBITRATOR: It's basically eight documents, four pictures and four -- someone have R-2, put it up on the screen just so I know what it is. Okay, so it is R-2, that's what I figured it was. Okay, thank you. I'm done with that.
CONTINUING BY THE ARBITRATOR:
Q. At some point, Ms. Taylor, you would agree that the renderings, what we've been calling R-2, which is what 5· the unit owners had when they did the vote, right?
A. Yes.
Q. Those show the elevated walkway, and when I talk about the walkway, I'm not talking about the one on the ground floor, I'm talking about the elevated walkway.
Okay?
A. Yes.
Q. It depicts, based on from what I can see, that walkway built being up against the building, correct?
A. The blue one did, but the pictures that we did do not show that turn tighter to the building, it more reflected the extension across from the pad of the (inaudible) to the center elevator tower. It's a depth thing. I didn't believe it looked like they would hug the wall in the non-blue drawings.
Q. But I'm talking about the blue drawings.
A. The blue drawings were the first pass at it when we thought that -- sorry. I'm sorry.
Q. Do the blue drawings reflect the walkway being up against the building?
A. Yes.
Q. What were the reasons that the walkway was moved three foot out from the building?
A. In order to hug the building the way the blue drawings had initially shown, we would have windows in front of unit owners and tighter into the corners and the unit owners had expressed reluctance to having any walkways placed right in front of their windows. So by extending it out from the exits from the townhomes across that expanse right over to the elevator tower, we kept those walkways from hugging the building and being right on owners' windows.
Q. So if the walkway had been built hugging the building, it would have still been code compliant, do you know?
A. Yes, because we would have complied with all the codes on railing height, railing distance, material, etcetera, structural integrity.
Q. Were you ever a member of the Master Board?
A. I am now, but I was not at that time.
Q. You weren't at that time?
A. No.
Q. In 2020, were you a member of the Master Board?
A. I served as a treasure, as an ex officio, and I probably would have to ask David Petrella if he remembers when I was -- actually took the position. I think it might have been -- wait, I have a two-year term. So I went on in '21. Sorry, the years blend.
Q. So you weren't there -- you weren't a member of the Master Board for the November 24th, 2020, Master Board meeting?
A. No.
Q. Do you have any reason to believe that the minutes of that meeting are generally not correct?
A. I believe the minutes are generally correct. They were approved. I believe that David Petrella believed that they were correct.
Q. Did the Board of 200 ever receive written approval for the walkway project?
A. I don't believe we got written approval. I believe that the approval that was given at the meetings and then reflected in the minutes served as the approval process.
Q. When you mentioned that -- we talked about separating the walkway from the building as represented in the renderings as opposed to what got built, the reasons for that, and you also talked about fewer columns and the bed of the walkway. Who made those decisions and when were they made?
A. Those were recommendations from our engineer on how to make the walkway a better situated, structurally sound, quiet structure, and we abided by those.
ARBITRATOR: I don't have anything. Does anybody want to follow up with the witness just based on what I asked?
MS. WOODCOCK: No, your Honor.
ARBITRATOR: Mr. Emrich?
REEXAMINATION
BY MR. EMRICH:
Q. So when you say "quiet", that's what you referenced in your earlier testimony last time about privacy concerns, about moving it away from the building?
A. No, quiet and privacy were two distinct issues.
Q. What were the privacy concerns that you were concerned about and changed plans based on?
A. That if we had the buildings hug -- if the walkway hugged the building, they would be mounted onto the windows of a number of units and they did not wish to have that.
Q. Additionally, there were some steps that were put on the walkway on the second-floor level that went down to the elevator on the -- I guess it would be the west side of the elevator tower. Do you recall that?
A. You mean the two steps that are on both sides of the walkways?
Q. All right, on both sides of the walkway, yes.
A. Yes, there were two steps added because we did not hug the building. We did not have the necessary feet of a walkway to not have the steps. So we went with the shorter walkway and the two steps.
Q. So, again, those were something that were added after the original June 2018 meeting; is that correct?
MS. WOODCOCK: Objection.
MR. EMRICH: I'm just trying to understand when they were added.
MS. WOODCOCK: I'm still stating my objection, Mr. Emrich, asked and answered and it's outside the scope of what the Arbitrator asked about.
ARBITRATOR: I'm inclined to agree with her, Mr. Emrich. I went through just a couple of things and I think that those steps were covered in the prior hearing.
MR. EMRICH: All right. Thank you. I have no further questions.
ARBITRATOR: Ms. Taylor, thank you very 20· much for your time.
THE WITNESS: Thank you.
MS. WOODCOCK: Nothing further from the Respondent, your Honor.
ARBITRATOR: Okay. So we're done?
MS. WOODCOCK: Yes, your Honor.
MR. EMRICH: Yes.
ARBITRATOR: Why don't we go off the record. I'd like to talk to the lawyers for a little bit, if that's okay.
COURT REPORTER: Would you like to order the transcript?
MR. EMRICH: Yes.
MS. WOODCOCK: No.
(Arbitration concluded at 3:24 P.M.)