Go To Other online Documents in this lawsuit.
See the Proper Method of Removal and Installation of the replacement windows John Tabor was selling to see how obviously it was not done by the manufacturers instructions.
Keep in mind when you read this deposition, the Mack Hilton spoken of here by John Tabor is the same Gary Michael Hilton who murdered Meredith Emerson in Jan. 2008. The John Tabor here is the same person who employed a possible Seriel Killer for nearly 10 years. According to both Hilton and Tabor, Tabor housed him for nearly 10 years. (see the real truth of their relationship that he tried to hide from the public that is found in the GBI records) So what did John Tabor know even early in 2007 that he felt it was important to hide this guy, Mack Hilton? What eles is he not telling the whole truth about? You be the Judge!
Meet the real John J. Tabor who now does business under the name Tabor Construction (fka Insulated Wall Systems). Also check out his craigslist postings (a sample shown below the deposition) regarding the McKinney's to see just what kind of person he really is. No matter what he claims to have won, Not a single DIME is or was or wil ever be lawfully owed to him. As shown in the photos all the work done was replaced and done right and was paid for to those who did it right! The real reason for this defamation claim is his pure vindictiveness and revenge upon those who dared to stand up to him. You have now been warned.
See the Proper Method of Removal and Installation of the replacement windows John Tabor was selling to see how obviously it was not done by the manufacturers instructions.
Keep in mind when you read this deposition, the Mack Hilton spoken of here by John Tabor is the same Gary Michael Hilton who murdered Meredith Emerson in Jan. 2008. The John Tabor here is the same person who employed a possible Seriel Killer for nearly 10 years. According to both Hilton and Tabor, Tabor housed him for nearly 10 years. (see the real truth of their relationship that he tried to hide from the public that is found in the GBI records) So what did John Tabor know even early in 2007 that he felt it was important to hide this guy, Mack Hilton? What eles is he not telling the whole truth about? You be the Judge!
Meet the real John J. Tabor who now does business under the name Tabor Construction (fka Insulated Wall Systems). Also check out his craigslist postings (a sample shown below the deposition) regarding the McKinney's to see just what kind of person he really is. No matter what he claims to have won, Not a single DIME is or was or wil ever be lawfully owed to him. As shown in the photos all the work done was replaced and done right and was paid for to those who did it right! The real reason for this defamation claim is his pure vindictiveness and revenge upon those who dared to stand up to him. You have now been warned.
IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
INSULATED WALL SYSTEMS, INC.,)
)
Plaintiff, )
) CIVIL ACTION FILE
vs. ) NO: 05A-06942-9
)
RON MCKINNEY, )
)
Defendant. )
- - -
Deposition of JOHN TABOR,
taken on behalf of the Defendant, pursuant to the
stipulations, agreed to herein, before
Meredith B. Cohen, Certified Court Reporter and
Notary Public at 3025 Bethany Church Road,
Snellville, Georgia, on the 6th day of February,
2007, commencing at 10:03 a.m.
RAJANI REPORTING, INC.
CERTIFIED COURT REPORTERS
1119 BRASELTON HIGHWAY
LAWRENCEVILLE, GEORGIA 30043
(770) 822-9888
2
1 I N D E X
2 EXAMINATION PAGE
3 By Mr. McKinney..............................6
4 By Ms. Tabor.................................147
5
6
7 E X H I B I T S
8 EXHIBIT NO. DESCRIPTION PAGE
9 1 Notice to take 15
Deposition of
10 Plaintiff
11 2 Postcard 15, 16,
33, 35,
12 50, 51
13 3 Business Card 16
14 4 Contract 16, 33,
35, 50,
15 56, 67,
72, 114
16
5 Gwinnett County 17, 55
17 Construction Code
18 5A Gwinnett County 18, 55
Construction Code
19 Original Document
20
6 IRC - International 17
21 Residential Code
22 6A IRC - International 18
Residential Code
23 Original Document
24 7 Gwinnett County Deck 18, 88,
Additions 91
25
3
1 E X H I B I T S (Continued)
2 EXHIBIT NO. DESCRIPTION PAGE
3 8 Gwinnett County 19
Home Addition
4 Monolithic Slab
5 9 VSI - Vinyl Siding 19, 126
Installation Manual 127, 143
6
10 GreenGuard Housewrap 19
7 Production Guide &
Installation
8
11 GreenGuard Fanfold 20, 137
9 Installation Guide
10 12 Insulated Wall 20, 117,
Systems Window Order
11 Form
12 13 Three Letters to 20
Plaintiff from
13 Defendant
14 14 Plaintiff's Letter to 22
Defendant
15
15 Copy of Lien 22
16
16 Complaint 22
17
17 Grover Contract and 22
18 Lien
19 18 Beniger Contract and 23
Lien and Letter
20
19 Gooch Building 23, 78,
21 Consultants 79, 80,
Inspection Report - 87, 88,
22 Gooch 98, 114
23 20 House Smart Home 25, 78,
Inspection Report - 79, 86,
24 Cook 87, 114
25
4
1 E X H I B I T S (Continued)
2 EXHIBIT NO. DESCRIPTION PAGE
3 21 Champia ASHI 25, 93
Inspection Report - 114
4 Berlyoung
5 22 ASHI Standards of 26
Practice and Code
6 of Ethics
7 23 Atrium Letter - 27, 117,
Chris Reilly 119
8
24 Sequoyah Statement - 28
9 Vaungh
10 25 Hardscapes Slab Redo 29
Quote - Beaty
11
26 Decks by Jeff - 30
12 Pettigrew
13 27 Collection of 30, 84,
32 pages of 87, 99,
14 photographs 111,
131,
15 145
16 28 Series 60 Window 30, 31,
Brochure (Back Page) 120
17
28A Series 60 Window 31, 120
18 Brochure - Original
Document
19
29 Physical Injury 31
20 Medical Expense Summary
21 30 Series 40 Window 32, 33,
Brochure - 34, 120
22 (Back Page)
23 30A Series 40 Window 33, 34,
Brochure - Original 120
24 Document
25
5
1 E X H I B I T S (Continued)
2 EXHIBIT NO. DESCRIPTION PAGE
3 31 Ted Lansing Delivery 32
Slip
4
32 Series 40 & 60 Window 32
5 Warranty
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6
1 APPEARANCES OF COUNSEL:
2 On behalf of the Plaintiff:
3 JANA B. TABOR, Esquire
450 Arborshade Trace
4 Duluth, Georgia 30097
(770) 814-8134
5
On behalf of the Defendant:
6
RON MCKINNEY (pro se)
7 4083 Red Laurel Way
Snellville, Georgia 30039
8 (770) 972-2576
9 Also Present:
10 Robyn McKinney
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7
1 MR. MCKINNEY: This is the deposition of
2 plaintiff, Insulated Wall Systems, a Georgia
3 corporation. It is taken pursuant to
4 notice. It is being taken for the purpose of
5 discovery and all others purposes provided by
6 the Civil Practice Act.
7 Today's date is February 6, 2007, and it
8 is approximately 11 minutes past 10.
9 Let the record reflect that present at
10 the deposition is the Defendant, Ron
11 McKinney, who is acting pro se.
12 Also present is Mr. Tabor, plaintiff's
13 apparent designated representative for
14 discovery, and Jana B. Tabor, counsel for
15 plaintiff; and Meredith Cohen, the Certified
16 Court Reporter.
17 Also in the room is Robyn McKinney, wife
18 of the defendant.
19 Let the record also reflect that at this
20 time I am reserving all objections except as
21 to the form of the question and
22 responsiveness of the answer until first use
23 of the deposition.
24 MS. TABOR: That's fine.
25 ///
8
1 JOHN TABOR,
2 was called as a witness, having been first duly
3 sworn, was examined and testified as follows:
4 EXAMINATION
5 BY MR. MCKINNEY:
6 Q Have you ever a given a deposition
7 before?
8 A Yes, I have.
9 Q Could you tell me when and what case?
10 A The year I am guessing was either 1999
11 or 2000. The location was at the lawyer's office
12 for the defendant. I can't tell you the address
13 or the attorney's name or what part of town. I
14 have no recollection as to that.
15 Q The case?
16 A The case was, defendant's name was
17 Grover, Larry Grover, to the best of my
18 recollection.
19 Q So you know how these things work?
20 A I have been to one, if that answers your
21 question, I believe.
22 Q I will lay the ground rules as best as I
23 understand them, because this is my first time
24 giving a deposition, or taking a deposition.
25 I will try not to talk over you. I will
9
1 try not to get into an argument with you. If you
2 don't understand the question, just state so and
3 I will try to rephrase it in a way that is more
4 understandable.
5 The other ground rule is, answer yes or
6 no instead of uh-huh or un-huh; and like I said,
7 again, let's not argue.
8 Would you state your full name for the
9 record, please.
10 A John Joseph Tabor.
11 Q Where do you reside?
12 A 450 Arbor Shade Trace, Duluth, 30097.
13 Q Who lives there with you?
14 A My wife and my son.
15 Q And is Ms. Tabor your wife?
16 A Yes, she is.
17 Q And she is also your attorney, is that
18 correct, or attorney for plaintiff?
19 A That's correct.
20 Q Do you own any property in Gwinnett
21 County?
22 MS. TABOR: Let me stop you right
23 there. The purpose of this deposition is to
24 depose the plaintiff. In your notice of
25 deposition, you have indicated several areas
10
1 to which you would like to depose the
2 plaintiff.
3 You are not to depose Mr. Tabor as an
4 individual. If you would like to ask him
5 questions with regard to the areas you have
6 indicated, that is fine. To the extent you
7 are going to ask him personal related
8 questions, I will instruct him not to answer.
9 MR. MCKINNEY: My understanding is, you
10 can only object to questions that go to
11 privilege, and I am free to ask him whatever
12 I want. However, I don't want to get into
13 his personal life either.
14 MS. TABOR: Okay. Well, then, let's
15 move on.
16 MR. MCKINNEY: That question has
17 something to do with this case.
18 BY MR. MCKINNEY:
19 Q Please state your academic education,
20 beginning with high school.
21 A I went to high school, Druid Hills High
22 School here in Atlanta. I graduated in 1981.
23 From that point I went to Georgia State
24 University in downtown Atlanta.
25 After I received my undergraduate degree
11
1 there, I took some time off, a year or so, and
2 then I went to Georgia State law school. I have
3 a jurist doctorate degree from Georgia State
4 School of Law.
5 Q What was your undergraduate degree?
6 A Business administration and criminal
7 justice.
8 Q And you do have a JD, jurist doctorate?
9 A That is correct.
10 Q Are you a member of the Bar?
11 A No.
12 Q In any state?
13 A No.
14 Q Have you ever been a member of the Bar?
15 A No.
16 Q State your position with the
17 corporation.
18 A I am the president of the corporation.
19 Q When were the incorporation papers filed
20 for plaintiff?
21 A When?
22 Q Yes.
23 A To the best of my recollection, I
24 believe the incorporation was done in 1989, maybe
25 1990, sometime around there.
12
1 Q State the name and title of the officers
2 of the corporation.
3 A I am the president, and the only other
4 officer of the corporation is Robert Tabor, who
5 is the secretary and the vice president. I am
6 treasurer and president.
7 Q You said you were treasurer, is that
8 what you said?
9 A Yes.
10 Q Robert Tabor, is he related to you?
11 A Yes.
12 Q Those are the only officers?
13 A That's correct.
14 Q How many employees does Insulated Wall
15 Systems have?
16 A None.
17 Q Would you consider yourself an employee?
18 A Yes.
19 Q So it has one?
20 A Well, yeah, it has one.
21 Q But you wouldn't consider Robert Tabor
22 an employee?
23 A No.
24 Q Now when I called you the first time,
25 there was a person by the name of Mack Hilton
13
1 there, he wasn't an employee at the time?
2 A No.
3 Q Is this the same Mack that came out and
4 worked on defendant's residence?
5 A No.
6 Q All right. Have you been fully prepared
7 by your attorney and corporation to give binding
8 answers --
9 MS. TABOR: Object to the question to
10 the extent it requires the deponent to answer
11 with regard to any statements he may have
12 made to counsel.
13 Subject to that objection, if you can
14 answer that question without revealing any
15 information, you can do that.
16 THE WITNESS: Repeat the question.
17 BY MR. MCKINNEY:
18 Q Have you been fully prepared --
19 MS. TABOR: I will object to the fact
20 that is a vague question.
21 BY MR. MCKINNEY:
22 Q -- to give binding answers --
23 A I don't understand what you are talking
24 about.
25 Q Let's move on.
14
1 At this time I will introduce the
2 exhibits. They have been pre-marked by
3 Ms. Cohen. All of these I supplied except for
4 one. I think we will determine that as we go
5 through.
6 Your objections will be noted for each
7 one, and we will continue on as if they were
8 admissible.
9 I will reserve my right -- I will let
10 the judge be the decider of what is admissible
11 and -- here's a list and they have been marked.
12 (Exhibits 1 through 32 were marked
13 for identification.)
14 MS. TABOR: Mr. McKinney, to the extent
15 that you present exhibits at the deposition has
16 nothing to do with whether or not they are
17 admissible in a court of law, it is whether or
18 not this deponent recognizes them, and this is
19 not an admissibility issue.
20 BY MR. MCKINNEY:
21 Q We will go through each one.
22 MS. TABOR: He can testify as to his
23 knowledge.
24 BY MR. MCKINNEY:
25 Q Let's go through them first and see if
15
1 we can identify them.
2 MS. TABOR: Do you want to start with
3 No. 1?
4 BY MR. MCKINNEY:
5 Q Number 1 is the notice to take
6 deposition of plaintiff. Do you agree that that
7 is what Exhibit No. 1 is?
8 A That is what it states.
9 Q Exhibit No. 2 --
10 MS. TABOR: Hold on. Do you have any
11 questions with regard to Exhibit No. 1?
12 BY MR. MCKINNEY:
13 Q I will introduce the exhibits and we will
14 just identify them.
15 As I go through this deposition, we will
16 call them up and ask questions.
17 MS. TABOR: All right.
18 MR. MCKINNEY: We can get off on tangents
19 four ways to Sunday if I do it any other way.
20 BY MR. MCKINNEY:
21 Q Exhibit No. 2, Defendant's Exhibit No. 2
22 is identified as a postcard that was sent by
23 Insulated Wall Systems; is that correct? Does
24 that look like the postcard?
25 MS. TABOR: Let's go off the record.
16
1 (Off the record.)
2 BY MR. MCKINNEY:
3 Q Would you please identify Exhibit No. 2,
4 if you can.
5 A It appears to be a postcard that was
6 used to solicit business that was sent by Mack
7 Hilton.
8 Q Is that your handwriting?
9 MS. TABOR: With regard to what?
10 MR. MCKINNEY: On that postcard.
11 THE WITNESS: There is lots of
12 handwriting on here.
13 MS. TABOR: On page 2?
14 MR. MCKINNEY: On both pages. Well,
15 principally, second page.
16 THE WITNESS: That appears to be my
17 handwriting.
18 MS. TABOR: Yes.
19 THE WITNESS: Yes.
20 BY MR. MCKINNEY:
21 Q Let's move on to Exhibit 3. Would you
22 please identify that if you can.
23 A That is one of my business cards with
24 some writing on it.
25 Q Exhibit 4 consists of three pages.
17
1 A That appears to be the work contract for
2 the work that was done on your home.
3 Q On the defendant's house?
4 A Correct.
5 Q Exhibit No. 5.
6 A It says, Gwinnett County Construction
7 Code.
8 Q Exhibit No. 6?
9 A It says, International Residential Code,
10 on page 1, for One and Two Family Dwellings,
11 dated 2006, from the International Code Council;
12 and the next page says it is the Georgia State
13 Amendments to the International Residential Code
14 For One and Two Family Dwellings, 2006 Edition.
15 Q As a matter of record, the full versions
16 are sitting right there.
17 Exhibit No. 7?
18 MS. TABOR: Okay, Mr. McKinney, to the
19 extent that in Exhibit 6 you presented two
20 pages to the deponent and asked the deponent
21 to identify those pages, that is all he has
22 identified.
23 MR. MCKINNEY: That is correct. But it
24 is what they represent.
25 MS. TABOR: To the extent we are not
18
1 talking about representations here, sir, you
2 have asked a deponent to identify a
3 document.
4 If there is something else you want him
5 to identify, you need to present it to the
6 deponent, not put it in the corner of the
7 room and say let the record reflect. If you
8 want to talk about it, you need to present
9 it.
10 MR. MCKINNEY: We have marked 5A.
11 Please mark this as Exhibit 6A.
12 (Exhibits 5A and 6A were marked for
13 identification.)
14 BY MR. MCKINNEY:
15 Q Exhibit No. 7, would you please identify
16 that document. Just read what it says.
17 A Gwinnett County Department of Planning
18 and Development. Deck additions to a home,
19 building permit requirements.
20 Q Page 2 does there appear to be --
21 A It appears to be an architectural
22 drawing of a portion of a deck.
23 Q Page 3, what does that appear to be?
24 A More writing and another diagram of a
25 staircase.
19
1 Q Exhibit No. 8?
2 A Exhibit No. 8 is apparently another
3 document from the Gwinnett County Department of
4 Planning and Development and the heading on this
5 page is, Building Addition to a Home Building
6 Permit Requirements, revised April, 2004.
7 Q Page 2, what does it appear to be?
8 A Page 2 is another page apparently from
9 the Gwinnett County Department of Planning and
10 Development, the development division, and it
11 seems to be titled, Minimum Plain Concrete
12 Footings and Foundation Requirements for One and
13 Two Family Dwellings.
14 Q Okay. Exhibit No. 9?
15 A Page 1 is entitled, Vinyl Siding
16 Installation Manual.
17 Q Exhibit No. 10?
18 A Exhibit No. 10 appears to be from
19 GreenGuard, it's Pactiv Building Products,
20 Product Guide Specification.
21 Q That is good enough -- well let's go
22 back to that one. Do you see there under air
23 barriers, where it says specifier notes?
24 A I see where it says specifier notes,
25 yes.
20
1 Q Would you read that sentence, the
2 following sentence.
3 A Specifier notes, this section covers
4 Pactiv building products, GreenGuard Value Wrap,
5 Housewrap.
6 Q All right sir. That is good enough.
7 Exhibit No. 11, read the top line would be good
8 enough.
9 A The top line for Exhibit No. 11 says,
10 Installation Instructions for GreenGuard Fanfold
11 Siding Underlayments Used as a
12 Water/Weather-resistive Barrier.
13 Q That is good. Exhibit No. 12. Can you
14 identify that document.
15 A That appears to be an order form that
16 was used to order the windows for your house.
17 Q Your order form or Insulated Wall's
18 order form?
19 A Correct.
20 Q Exhibit No. 13?
21 A Exhibit No. 13 appears to be a copy of a
22 letter from Defendant Ron McKinney to John Tabor,
23 Insulated Wall Systems, referencing first notice
24 contract dated 23rd August 2004 between Insulated
25 Wall Systems Inc. and Rob McKinney.
21
1 Q Okay. Move on to page 4 of that
2 exhibit. There are three pages on the first one,
3 the fourth page is --
4 A There is no page 4. Are you referring
5 to just the page marked number 1, after page 3?
6 Q The fourth physical page in the
7 document.
8 A What about it?
9 Q Would you read what that is. Would you
10 identify that, please, sir.
11 A It appears to be a copy of a letter from
12 Ron McKinney, the defendant, to John Tabor,
13 Insulated Wall Systems Inc., referencing second
14 notice and demand, contract dated 23rd August
15 2004 between Insulated Wall Systems Inc. and Ron
16 McKinney.
17 Q And the next page, can you identify
18 that?
19 A The next page appears to be another copy
20 of a letter from Defendant Ron McKinney to John
21 Tabor, Insulated Wall Systems Inc., referencing
22 third notice, contract dated 23rd August 2004
23 between Insulated Wall Systems Inc. and Ron
24 McKinney, response to letter dated January 4,
25 2005 from John Tabor to Mr. and Mrs. McKinney.
22
1 Q That identifies it.
2 Exhibit No. 14, could you please
3 identify that.
4 A It appears to be a copy of a letter from
5 Insulated Wall Systems Inc., dated January 4,
6 2005 addressed to Mr. and Mrs. McKinney.
7 Q Did you write that letter?
8 A Yes, I did.
9 Q Exhibit No. 15.
10 A What about it?
11 Q Please identify it.
12 A It appears to be a copy of the lien
13 filed and recorded, Clerk Superior Court of
14 Gwinnett County, January 4, 2005 at 10:10 a.m.
15 Q Did you file this lien?
16 A Yes, I did.
17 Q Exhibit 16, please identify it.
18 A It appears to be a copy of the Complaint
19 filed in the Superior Court of Gwinnett County,
20 Insulated Wall Systems Incorporated vs. Ron
21 McKinney, Defendant.
22 Q Exhibit 17, can you identify that.
23 A It appears to be a contract from
24 Insulated Wall Systems, Inc. for work performed
25 on a home owned by George Grover and Vera Grover
23
1 at 960 White Birch Way in Lawrenceville, dated
2 8th day of March 1999.
3 Q Did you enter into that contract as the
4 agent for Insulated Wall Systems?
5 A Yes, I did.
6 Q Exhibit 18, would you please identify
7 that.
8 A It appears to be a copy of the contract
9 between Insulated Wall Systems Inc. and Andy
10 Binegar at 3403 Wood Laurel Drive in Snellville,
11 Georgia dated the 22nd day of November 2004 for
12 siding to be installed on their house.
13 Q Did you enter into that contract for
14 Insulated Wall Systems?
15 A Yes, I did.
16 Q Exhibit 19, would you please identify
17 that document.
18 A It appears to be a copy of a letter from
19 Macon E. Gooch Building Consultants Inc.,
20 addressed to Ronald McKinney, the defendant,
21 regarding the residence at 4083 Red Laurel Way,
22 Laurel Creek Subdivision, Gwinnett County.
23 Q Would you agree that that is the
24 engineering report that we have supplied to
25 Insulated Wall Systems?
24
1 MS. TABOR: Restate your question.
2 BY MR. MCKINNEY:
3 Q Do you agree that this is the
4 engineering report that we supplied to Insulated
5 Wall Systems and plaintiff's attorney?
6 A I don't know, you would have to show me
7 the one you supplied my attorney, and I can
8 compare the two and tell you.
9 Q Well you should have it.
10 Have you reviewed all the documents that
11 defendant has supplied you?
12 A To the best of my knowledge, I have.
13 Q And this is one of the documents that
14 defendant has supplied you; is that correct?
15 A I just told you, I don't specifically
16 remember every document. There has been so many
17 documents in this case, it is impossible to pick
18 up any one and --
19 Q Who is the document signed by, or what
20 is the stamp on this document, page 3?
21 A It doesn't appear to be signed by
22 anyone.
23 Q Okay what does the stamp say or the
24 typewritten, these are bad copies or maybe not
25 copies but -- what does it say on the bottom of
25
1 the right hand --
2 A It says Macon E. Gooch III, Ga. P.E. No.
3 8889, ICC PEF002999, Residential Combination
4 Inspector.
5 Q That is good enough. Exhibit 20.
6 Please identify the best that you can.
7 A It is titled, Inspection Report
8 Details. The heading says, General. There is
9 another heading that says, Exterior.
10 Q Look at the top where it says record
11 number, McKinney. Does this appear as if it is
12 an inspection of the defendant's residence?
13 A What are you asking about the record
14 number? I don't understand what you are asking.
15 Q Would you read what it says up there
16 after the record number.
17 A It says record 0725062-McKinney, Ron,
18 4083 Red Laurel Way, Snellville, Georgia 30039.
19 Q Does this look like an inspection
20 report?
21 MS. TABOR: If you know.
22 THE WITNESS: I guess it does.
23 BY MR. MCKINNEY:
24 Q Let's move on to Exhibit 21. Please
25 identify that.
26
1 A This document is entitled, Champia Real
2 Estate Inspection Report, the date of inspection,
3 July 5, 2006.
4 Q Did you supply defendant with this
5 document? Did Insulated Wall Systems or
6 plaintiff's attorney?
7 A I believe so.
8 Q So you will agree that this is the real
9 estate inspection performed by someone on behalf
10 of plaintiff?
11 A I can just tell you what the document
12 says.
13 Q But you have seen this document before,
14 is that true?
15 A You are handing me a copy of something,
16 I can't say I have ever seen this copy before.
17 Q This is what you supplied me with was a
18 copy.
19 A It looks like it may well be a copy of
20 the original; but since I don't have the
21 original --
22 Q Let's move on. Exhibit 22. Could you
23 please identify that document.
24 A This document is titled, The Standards
25 of Practice and Code of Ethics of the American
27
1 Society of Home Inspectors.
2 Q Okay.
3 A Effective January 1, 2000.
4 Q That is good enough.
5 Exhibit 23, please identify that
6 document.
7 A This appears to be a copy of a letter
8 from Atrium Windows and Doors, dated
9 September 15, 2005 to the defendant and
10 Mrs. McKinney.
11 Q And it is from who, who signed the
12 letter?
13 A Apparently Chris Reilly. That is what
14 it says on the bottom of page 2.
15 Q Have you ever heard of Atrium?
16 A Yes, I have.
17 Q Who are they?
18 A They are a window manufacturer.
19 Q Do they manufacture the Windjammer
20 windows?
21 A To the best of my knowledge, yes.
22 Q And these are the windows that were
23 installed by plaintiff in defendant's residence?
24 MS. TABOR: Object to the form of the
25 question.
28
1 BY MR. MCKINNEY:
2 Q Were these the window manufacturer of
3 the windows that were installed in defendant's
4 residence?
5 A I believe so.
6 Q Exhibit 24.
7 A This document is entitled Sequoyah
8 Builders Inc./Sequoyah Vinyl Creations Inc. from
9 Canton, Georgia, period ending 8/28/06.
10 Q Does it have the word "statement" on it?
11 A Repeat the question.
12 Q Does it have the word "statement" on it?
13 A Yes, this page has the word "statement"
14 on it.
15 Q So does this look like a bill?
16 A I have no idea if it is a bill or what
17 it is.
18 Q Let's move on. You haven't seen this
19 document before?
20 MS. TABOR: Which document?
21 MR. MCKINNEY: Exhibit 24, the one he
22 was just looking at.
23 THE WITNESS: I don't have any
24 recollection of this.
25 BY MR. MCKINNEY:
29
1 Q Exhibit 25, have you ever seen that
2 document before?
3 A I don't recall seeing this document
4 before.
5 Q What does it look like to you? What
6 does it appear to be?
7 A The page is titled Hardscapes - Brian
8 Beaty, BrianHardscapes@yahoo.com, from Buford,
9 Georgia.
10 Q What does the document appear to be?
11 A It says, Bill/Quote, dated 8/14/05.
12 Q And what is the quote concerning?
13 A You want me to read this document to
14 you? It says customer, Ron McKinney.
15 Q Read the comment part.
16 A Comments, tear out existing concrete
17 slab/repour 14x19 w/footings, rebar, vapor
18 barrier, cost $2,800.
19 Q So it looks like a quote for tearing out
20 the slab and rebuilding it?
21 MS. TABOR: Object to the form of the
22 question.
23 BY MR. MCKINNEY:
24 Q Does it look like a quote for --
25 MS. TABOR: You can answer, if you know.
30
1 THE WITNESS: I don't know.
2 BY MR. MCKINNEY:
3 Q Exhibit 26, what does that appear to be?
4 A This document is titled, Sketch
5 Estimate, Decks by Jeff with a phone number, and
6 it appears to have a drawing, a rough drawing --
7 I am not sure what, it says "house," and there is
8 some other writing on it.
9 Q Does it look like a quote for a deck?
10 A I don't know what it is.
11 Q Look on the second page; does that look
12 like a receipt or invoice?
13 A I don't know what this is.
14 Q Does it say, remove and replace 10 by 20
15 deck, 2 landings and stairs, materials and labor,
16 $4,883.00?
17 A I suppose that is what it says.
18 Q Let's move on to the next one, 27. It
19 should be a booklet of 32 pages of photographs.
20 Is that what you see?
21 A It appears to be 32 pages of copies of
22 photographs.
23 Q Okay. Exhibit 28, can you identify that
24 document?
25 A This document appears to be a copy of a
31
1 paper with information from Ted Lansing
2 Corporation regarding high performance glass.
3 Q Is this concerning the Windjammer
4 windows?
5 A That appears to be the case.
6 Q And this is a product you sell or
7 Insulated Wall Systems sells; is that correct?
8 A Yes, we have.
9 MR. MCKINNEY: Would you mark that as
10 Exhibit 28A.
11 (Exhibit 28A was marked for
12 identification.)
13 BY MR. MCKINNEY:
14 Q I am handing you Exhibit 28A. Take a
15 look at that document.
16 A The document is entitled Windjammer
17 Series 60, vinyl replacement windows.
18 Q Is that a window that Insulated Wall
19 Systems sells?
20 A Yes, I have sold this window --
21 Insulated Wall Systems has sold this window.
22 Q Is Exhibit 28 the last page or the back
23 page of that?
24 A It seems to be.
25 Q Exhibit 29, read the first two lines for
32
1 identification purposes.
2 A The first two lines starting from the
3 top of the page, first line says, injury
4 damages. Second line says medical bill damages,
5 due to back injury.
6 Q Exhibit No. 30, can you identify that
7 document.
8 A This appears to be another copy of a
9 page with information on high performance glass
10 from Ted Lansing Corporation.
11 Q Are you looking at Exhibit 30?
12 A Yes.
13 Q Let's pull out Exhibit 31, what does
14 that look like?
15 A It appears to be a shipping invoice from
16 Ted Lansing Corporation.
17 Q Do you agree that that is the order
18 acknowledgement or the order that was sent to
19 defendant's residence, the materials that
20 Insulated Wall Systems ordered and sent to?
21 A It appears to be.
22 Q I will try to straighten the exhibit
23 number out, I am not sure what happened. Let's
24 move on to Exhibit 32. What does that appear to
25 be?
33
1 A It is titled Windjammer by Ted Lansing
2 Corporation, transferable lifetime limited
3 warranty replacement products.
4 Q So it looks like a warranty for
5 Windjammer windows?
6 A That's correct.
7 MR. MCKINNEY: Let's take a ten-minute
8 break.
9 (A recess was taken.)
10 BY MR. MCKINNEY:
11 Q If you would pull out Exhibit No. 2 and
12 Exhibit No. 4.
13 MS. TABOR: Before we go further, let me
14 ask a question on the record to the extent
15 you did not identify number 30 at all.
16 MR. MCKINNEY: Did I miss one?
17 MS. TABOR: You seem to have some
18 confusion about.
19 MR. MCKINNEY: Let's look at 30. Take a
20 look at Exhibit 30.
21 If you will mark this as Exhibit 30-A.
22 (Exhibit 30A was marked for
23 identification.)
24 BY MR. MCKINNEY:
25 Q Does Exhibit 30 appear to be the last
34
1 page of Series 40 which is Exhibit 30A --
2 MS. TABOR: I will object to the form of
3 the question to the extent that there has
4 been no identification of Exhibit 30A.
5 BY MR. MCKINNEY:
6 Q Would you identify Exhibit 30A.
7 A Exhibit 30A appears to be a brochure by
8 Windjammer Windows by Ted Lansing Corporation,
9 Series 40 Vinyl Replacement Windows.
10 Q Does Exhibit 30 look like a back page of
11 Exhibit 30A?
12 A It appears to be.
13 MR. MCKINNEY: I believe all the
14 exhibits have been identified.
15 MS. TABOR: I would like to make note
16 for the record that exhibits 1, 2, 3, 4, 5,
17 5A, 6, 6A, 7, 8, 9, 10, 11, 19, 20, 22, 23,
18 26, 27, 28, 28A, 29, 30, 30A, 31, and 32, no
19 testimony has been solicited with regard to
20 the deponent's personal knowledge of any of
21 these exhibits; and to the extent the
22 deponent has made any identification, it has
23 been a mere recitation of wording that
24 appeared on the document.
25 MR. MCKINNEY: Noted.
35
1 BY MR. MCKINNEY:
2 Q If you would pull out Exhibit 2 and
3 Exhibit 4 --
4 Let's go off the record.
5 (Off the record.)
6 BY MR. MCKINNEY:
7 Q Okay. Exhibit 2 and 4 you have out. Do
8 you have any personal knowledge of Exhibit 2?
9 A I have already identified it. I don't
10 know what you mean by personal knowledge.
11 MS. TABOR: I will object to the form of
12 the question.
13 BY MR. MCKINNEY:
14 Q Do you have any personal knowledge of
15 Exhibit 2?
16 MS. TABOR: Same objection.
17 MR. MCKINNEY: What is the objection?
18 MS. TABOR: Form of the question.
19 Vague.
20 MR. MCKINNEY: Vague?
21 MS. TABOR: Yes, sir. Do you have any
22 personal knowledge of the document.
23 BY MR. MCKINNEY:
24 Q Is this a document that Insulated Wall
25 Systems sent out in August of 2004?
36
1 A No.
2 Q July 2004?
3 A I don't know about the date. I can just
4 tell you that it wasn't sent out by Insulated
5 Wall Systems.
6 Q Do you have any knowledge of who sent it
7 out?
8 A Yes, I believe it was sent out by Mack
9 Hilton.
10 Q What is the return address, the name on
11 the front page of the postcard?
12 A Front page of the postcard says John
13 Tabor, 4169 Clairmont Road, Chamblee, Georgia
14 30341.
15 Q Is that you?
16 A What do you mean, is that me?
17 Q Is that your name and return address?
18 A That is my name and that return address
19 is for the office of Insulated Wall Systems.
20 Q Did you send out that postcard?
21 A No, I did not.
22 Q Did you write those words?
23 A I believe that is my handwriting.
24 Q And on the second page, did you write
25 these words?
37
1 A That appears to be my handwriting, yes.
2 Q Would you read the second paragraph,
3 third line.
4 A Second paragraph doesn't have a third
5 line.
6 Q Well, the third line down from the top,
7 second paragraph, where it starts, this year.
8 A It says, This year has been slow, and
9 I --
10 Q Second line after that, read the whole
11 sentence.
12 A This year has been slow, and I need work
13 for my people.
14 Q And you wrote that?
15 A That is my handwriting.
16 Q Was that the case when you wrote it?
17 A I suppose so.
18 Q So that year was 2004?
19 A Yes, it was the year 2004.
20 Q And you need work for your people at
21 that time?
22 A That is what it says.
23 Q Okay. Let's look at the third
24 paragraph, would you read that for me into the
25 record.
38
1 A I will give you the best discounts
2 you'll ever see on name brand products and
3 quality work. Satisfaction guaranteed; license
4 and insured, 100 percent financing.
5 Q What do you call this? I guess it is a
6 postcard. Is that what you identify it as, a
7 postcard?
8 A Yes, I would identify it as a postcard.
9 Q Would you identify it as some type of
10 advertising literature?
11 A Yes.
12 Q That originated from Insulated Wall
13 Systems?
14 A No, actually this was Mack Hilton's
15 design, it just happens to be in my handwriting,
16 I see it has his --
17 Q Is Mack Hilton's name on this document
18 at all?
19 A No, it is not.
20 Q What are the two names?
21 A His phone number is on the document,
22 that is how I know that it was directed from him.
23 MS. TABOR: Hold on. If you ask him a
24 question, let him answer.
25 MR. MCKINNEY: I'm sorry.
39
1 THE WITNESS: The name is not relevant.
2 How I know him is because that is his phone
3 number, that is not my phone number; so
4 therefore, he would be fielding any calls
5 that were generated from this advertisement.
6 BY MR. MCKINNEY:
7 Q What is the name at the bottom of the --
8 or right below your name, John Tabor, and the
9 phone number and 24 hours?
10 A The very last line on this postcard it
11 says, Insulated Wall Systems, Inc..
12 Q And right above that is your name?
13 A That's my name.
14 Q So one can -- this is advertising from
15 Insulated Wall Systems?
16 A No, this is advertising designed by Mack
17 Hilton.
18 Q Is this advertising -- so you are not
19 saying that this is advertising from Insulated
20 Wall Systems --
21 MS. TABOR: I will object to the form of
22 the question, because before it was for
23 Insulated Wall Systems, and now is it from
24 Insulated Wall Systems.
25 BY Mr. MCKINNEY:
40
1 Q Is this advertisement from Insulated
2 Wall Systems?
3 A I think I have answered that question,
4 no, I told you it was from Mack Hilton, that is
5 why his number is there, to field calls that
6 generated from this advertisement.
7 Q Is this advertisement for Insulated Wall
8 Systems?
9 A I believe he was doing it for Insulated
10 Wall Systems, yes.
11 Q Was he doing it under your control and
12 supervision?
13 A No.
14 Q Does Insulated Wall Systems offer best
15 discounts on name brand products?
16 A I think Insulated Wall Systems always
17 offers good value for the money. I have a long
18 history of doing that and was doing that in 2004
19 and it does that today.
20 Q Does Insulated Wall Systems give you the
21 best discounts you will ever see on name brand
22 products?
23 MS. TABOR: I object to the question to
24 the extent it is asked and answered.
25 MR. MCKINNEY: No, ma'am, he answered
41
1 another question.
2 MS. TABOR: Okay, restate your question.
3 BY MR. MCKINNEY:
4 Q Does Insulated Wall Systems offer the
5 best discounts you will ever see on name brand
6 products?
7 A Like I said, I think Insulated Wall
8 Systems always offers good discounts on name
9 brand products. Always has and always will.
10 Q Does Insulated Wall Systems offer
11 quality work?
12 A Insulated Wall Systems offers quality
13 work, absolutely.
14 Q How do you define quality?
15 A Get a dictionary and look it up.
16 Q So you are using the customary
17 definition of quality?
18 A That's correct.
19 MR. MCKINNEY: Off the record.
20 (Off the record.)
21 BY MR. MCKINNEY:
22 Q What is your definition of quality?
23 A I think the word speaks for itself.
24 Q Again, I will ask the question, what is
25 your definition of quality when it's used as an
42
1 adjective?
2 A Quality is quality. I don't think the
3 word needs any further definition.
4 Q I am asking you for your definition of
5 quality and you refuse to answer the question?
6 A Give me a dictionary and I will read you
7 the definition of quality.
8 Q I have the definition of quality if you
9 want to accept that. I didn't happen to bring my
10 dictionary here, but I will happily read it to
11 you and see if you agree; how about that
12 approach?
13 A Are you testifying?
14 Q No.
15 MS. TABOR: You need to ask a proper
16 question.
17 MR. MCKINNEY: I am.
18 MS. TABOR: No, you are not. You are
19 getting closer.
20 Do you want to ask him the definition of
21 "quality" and see if he agrees with you.
22 MR. MCKINNEY: That is what I was about
23 to do.
24 BY MR. MCKINNEY:
25 Q Quality, when used as an adjective, in
43
1 my opinion means having a high degree of
2 excellence. Do you agree with that?
3 A Sure.
4 Q Here we go again, give me your
5 definition of "satisfaction guaranteed."
6 A Satisfaction guaranteed, simply that,
7 assuming you are a reasonable person, you would
8 be satisfied with the quality of the work that
9 has been performed. It is based on a standard of
10 reasonableness.
11 Q Here again, I have a definition of
12 satisfaction and I will tell it to you. It is,
13 fulfillment or gratification of a desire, need or
14 appetite.
15 A If that seems to be the textbook
16 definition, fine.
17 Q Guarantee, what is your definition of
18 guarantee?
19 A Like I just said, I explained
20 satisfaction guaranteed. You need to read it
21 altogether.
22 Q I am asking you your definition of
23 satisfaction guaranteed.
24 A Satisfaction guaranteed, something that
25 a reasonable person would be satisfied with the
44
1 results.
2 Q Guaranteed uses a noun, according to my
3 understanding is something that assures a
4 particular outcome or condition. Do you agree
5 with that?
6 A Here again, I don't have the dictionary,
7 but I assume that is your definition from the
8 dictionary, that is fine with me.
9 Q What is your definition of licensed as
10 used in this?
11 A It means I have a business, that
12 Insulated Wall Systems has a business license.
13 Q Does that mean you are licensed as a
14 contractor?
15 A I just said it is a business license.
16 Q How about the definition of insured?
17 MS. TABOR: I will object to the
18 question, to the extent that the deposition
19 notice that was sent here today and did not
20 specify insurance as one of the areas to
21 which the deponent would be asked.
22 BY MR. MCKINNEY:
23 Q Corporate history, corporate services --
24 corporate services would include insurance?
25 MS. TABOR: Mr. McKinney, you can argue
45
1 with me if you want.
2 MR. MCKINNEY: We can go before the
3 judge.
4 MS. TABOR: What part of your claim has
5 anything to do with insurance? You don't
6 have an insurance claim. Stick to what
7 you're complaining about.
8 MR. MCKINNEY: We are talking about the
9 advertising.
10 BY MR. MCKINNEY:
11 Q Are you advertising that Insulated Wall
12 Systems is insured?
13 MS. TABOR: Same objection.
14 MR. MCKINNEY: Noted.
15 Please answer the question.
16 THE WITNESS: The document speaks for
17 itself.
18 BY MR. MCKINNEY:
19 Q What does "insured" mean in reference to
20 this document?
21 MS. TABOR: Same objection.
22 MR. MCKINNEY: Noted.
23 THE WITNESS: We just covered that.
24 BY MR. MCKINNEY:
25 Q What does "insured" mean in the context
46
1 of this document?
2 MS. TABOR: Same objection.
3 MR. MCKINNEY: Noted. Answer the
4 question.
5 MS. TABOR: He doesn't have to answer.
6 If you would like to go to Judge Davis
7 and explain to him what you need to know
8 about the insurance --
9 MR. MCKINNEY: I have a claim of fraud
10 and inducement; and one of those inducements
11 is that he's insured and he provides
12 liability insurance; so I would be happy to
13 go to Judge Davis.
14 MS. TABOR: I am instructing him not to
15 answer the question, and you need to move on.
16 BY MR. MCKINNEY:
17 Q What does 100 percent financing mean?
18 A 100 percent financing means that
19 Insulated Wall Systems has arrangements with
20 different financial institutions whereby we can
21 direct customers to these financial institutions
22 to determine their creditworthiness in order for
23 the lending institution to make a loan to the
24 customer so that they can pay for the services
25 rendered by Insulated Wall Systems.
47
1 Q Do you require a banking license to do
2 any of that?
3 A No.
4 Q Do you have a banking license or does
5 Insulated Wall Systems have a banking license?
6 MS. TABOR: When?
7 MR. MCKINNEY: During the time the
8 contract was signed.
9 THE WITNESS: In 2004, I would have to
10 check the records and see. I am not really
11 sure. Because for a number of years,
12 Insulated Wall Systems was licensed as a
13 mortgage broker with the Department of
14 Banking and Finance, however --
15 MS. TABOR: Insulated Wall Systems or
16 you personally?
17 THE WITNESS: Actually, it was me
18 personally. I was licensed as a mortgage
19 broker, and I can't tell you whether that was
20 continued through 2004, because beginning in
21 2002 or 2003, as the interest rates dropped
22 substantially in the mortgage arena, the
23 demand for secondary financing sources that I
24 referred people to diminished greatly.
25 Then around that time, I decided to
48
1 discontinue the renewal of my mortgage
2 broker's license, and I can't tell you
3 whether that was 2003 or 2004. There was a
4 lot of changes in the industry.
5 The only time a mortgage broker's
6 license was required was for loans that
7 required a deed to secure debt therefore
8 creating a lien against the property, subject
9 to nonjudicial foreclosure.
10 There was a legislation past in the
11 Georgia Assembly restricting the rights of
12 these various lenders to do business in the
13 State of Georgia.
14 So therefore, around this period of
15 time, a lot of those lenders either closed up
16 shop or else they changed their method of
17 securing the loans from a deed to secure debt
18 to simply a UCC contract --
19 MR. MCKINNEY: Let me stop you right
20 there. That is sufficient.
21 MS. TABOR: You can't do that
22 Mr. McKinney. That is not how we play this
23 game.
24 You asked a question, he gets to
25 pontificate.
49
1 MR. MCKINNEY: Tell me the question that
2 I asked.
3 (Question read back.)
4 MR. MCKINNEY: It was a yes or no.
5 MS. TABOR: The deponent decides how to
6 answer the question.
7 THE WITNESS: Can you read back where I
8 left off.
9 (Answer read back.)
10 THE WITNESS: The reason they did such
11 was for several reasons, but number one, it
12 was to avoid the need for a mortgage broker's
13 license, here again, the State of Georgia
14 passed legislation that restricted the
15 ability of these lenders to do so.
16 So all this goes to answering your
17 question about the 100 percent financing and
18 whether or not a mortgage broker's -- at this
19 time, I am explaining why I don't remember
20 the exact date.
21 I quit renewing my mortgage broker's
22 license for all the reasons I just outlined.
23 As long as you are doing the financing and
24 you are not using a deed to secure debt or
25 putting a lien on these people's property,
50
1 then no license to be a mortgage broker is
2 required.
3 So there was a big change in the
4 industry around that time 2003, 2004, and so
5 that is the best I can answer your question?
6 BY MR. MCKINNEY:
7 Q Let's move on to Exhibit 2 and Exhibit
8 4.
9 Would you agree that Exhibit 2 is just
10 advertising, marketing?
11 A The postcard, yes, it is.
12 Q And would you agree that a sensible or
13 reasonable person would look for each one of the
14 promises in Exhibit 4, which is a contract?
15 A I think a reasonable person would be
16 able to read this and see it for what it is,
17 simply literature to solicit business, plain and
18 simple.
19 Q Exhibit 2, the second page.
20 MS. TABOR: I am clarifying when you
21 look at this, you are speaking of two
22 exhibits.
23 MR. MCKINNEY: I thought I said Exhibit
24 2.
25 BY MR. MCKINNEY:
51
1 Q And if you would look at Exhibit 2 and 4
2 and look for the items that are in Exhibit 2 and
3 Exhibit 4.
4 A I don't understand your question.
5 Q Well, if this is advertising literature,
6 then, for it to be honest advertising, wouldn't
7 one look for those items in the contract?
8 A No, I don't necessarily think you would
9 need to reprint everything that is in the
10 advertising postcard onto a work contract.
11 Q I didn't ask that.
12 Would you look for the principles or the
13 concepts in the contract.
14 A That doesn't make any sense to me. But
15 for re-writing it, I don't know what you mean.
16 Q If you are offering best discounts in
17 your advertisement on brand name products, could
18 you find brand name products in the contract?
19 A Well let's look at the contract.
20 Windjammer is a name brand product.
21 Q So you would agree that that is one that
22 meets -- that the contract meets; is that
23 correct?
24 A I'm not saying meets anything.
25 Q Well there are name brand products in
52
1 the contract; is that correct? And your
2 advertisement advertises name brand products?
3 A That's correct.
4 Q And you would say -- there is a dollar
5 amount in this contract, and it could represent
6 best discounts on those name brand products?
7 A Are you asking a hypothetical question.
8 Q No, I am asking you, could it?
9 MS. TABOR: That is a hypothetical
10 question.
11 BY MR. MCKINNEY:
12 Q Let's move to the next one, quality
13 work. Are their statements in the contract that
14 go to the quality or nature of the work?
15 A Contract simply states in detail what
16 will be done to the property.
17 Q Do you see the sentence that says,
18 contractor agrees to do all the work in a good
19 and workmanlike manner?
20 A Yes, I see that.
21 Q What does that mean to you?
22 A Exactly what it says.
23 Q What is the standard of good and
24 workmanlike?
25 A That means it is done correctly in
53
1 accordance with standards in the industry.
2 Q And what are those standards in the
3 industry?
4 A That it is done in a good and
5 workmanlike manner.
6 Q Does good and workmanlike mean it is
7 done with a code?
8 A No there is no code. It simply means it
9 will be done in a fashion that is in accordance
10 with standards in the industry when it's
11 installed on the house.
12 Q Is there a construction code for any
13 part of the work that was done on Defendant's
14 residence?
15 A There are construction codes from coast
16 to coast.
17 MR. MCKINNEY: I didn't ask him that.
18 MS. TABOR: I object to the extent,
19 Mr. McKinney --
20 MR. MCKINNEY: I asked a question and
21 then he changes it when he doesn't like the
22 answer.
23 Let me strike it and rephrase it.
24 BY MR. MCKINNEY:
25 Q Are there construction codes within
54
1 Gwinnett County that govern the construction of
2 any aspect of the work that plaintiff did on
3 defendant's residence?
4 A Here again, there are lots of different
5 construction codes, not only with Gwinnett
6 County, but city and towns.
7 MR. MCKINNEY: Move to strike.
8 Nonresponsive.
9 BY MR. MCKINNEY:
10 Q The question was within Gwinnett
11 County -- are there construction codes within
12 Gwinnett County that govern the construction of
13 any aspect of the work that plaintiff did on
14 defendant's house?
15 A I was answering your question when you
16 interrupted me. I told you there are codes in
17 Gwinnett County and within the cities within
18 Gwinnett County.
19 MR. MCKINNEY: Move to strike as
20 nonresponsive.
21 MS. TABOR: Off the record.
22 (Off the record.)
23 BY MR. MCKINNEY:
24 Q Are there any construction codes that
25 cover any aspect of the work within Gwinnett
55
1 County that cover the actual work that you do
2 that Insulated Wall Systems does?
3 A For the third time, I am familiar with
4 codes that Gwinnett County has, and there are
5 many codes is my point.
6 There are codes not just within Gwinnett
7 County, but within the cities and municipalities,
8 townships and whatnot, and I am sure that there
9 are codes that cover some of the work that was
10 done on your house. That is probably true.
11 Q Did you make any commitment to build in
12 accordance with that code?
13 A There was no specific code that was
14 referenced on any of these documents, no.
15 Q Let's move to, if you will add to your
16 pile, Exhibit number 5 and 5A.
17 Is there any part of the construction
18 that is covered by those codes, that code?
19 A I don't know. I haven't read this
20 entire document. And it is a document that
21 apparently has a hundred pages.
22 Q Did you make any commitment to meet that
23 code on any of the construction work --
24 A No, I didn't reference this code on any
25 material.
56
1 Q Did you tell defendant or defendant's
2 spouse or anyone else you were talking to that
3 the work would meet Gwinnett County construction
4 codes?
5 A Did I verbally tell anyone that?
6 Q Yes.
7 A No.
8 Q Did you make any reference whatsoever to
9 any codes or any standard of work?
10 A Nothing more than what is put on the
11 contract, that is why the contract says, no
12 verbal agreements recognized. Everything spelled
13 out on the document was to be done to the house.
14 Q Does good and workmanlike mean to any
15 code or not?
16 A It doesn't specifically reference any
17 code, no.
18 Q Okay. What does the sentence where it
19 says on Exhibit 4, Contractor will do all said
20 work in strict accordance with the ordinances,
21 rules and requirements of the city, town, village
22 wherein the above mentioned property is located.
23 What does that sentence mean?
24 A They simply require that as boiler plate
25 language, and that is the reason that is on this
57
1 contract.
2 Q What does it mean?
3 A Well you just read it.
4 Q What does it mean to you?
5 A That we are not going to do anything
6 that is outside the scope of what is normal and
7 standard practices in this industry for any work
8 that is being done to the home.
9 Here again, it goes back to the issue of
10 all the different rules and regulations from
11 county, city, towns, villages and whatnot, there
12 are different building codes and requirements for
13 new construction versus remodeling; and to the
14 best of my knowledge, any rules or requirements
15 by the city, town or village that would affect
16 any of the work done at your house is not
17 enforced.
18 It would be kind of like the 55 mile an
19 hour speed limit on 285; it may be on the books
20 somewhere, but for all practical purposes, it's
21 voluntary. There are no rules and requirements
22 for the work that was done, other than what the
23 manufacturer requires to be done in accordance
24 with their standards, which I think are the most
25 important.
58
1 Q You have got me confused. What do you
2 mean by the 55 mile an hour? It says, Contractor
3 will do all said work in strict accordance
4 with --
5 A I was explaining what it meant to me and
6 I explained it to you.
7 Q So are you saying that it means that
8 there may be rules, but Insulated Wall Systems
9 doesn't have to follow them. Is that what I am
10 understanding?
11 A That is not what I said.
12 Q Repeat what you said.
13 A I said that there are so many rules and
14 regulations in various jurisdictions, that nobody
15 can possibly keep the ball in line; and the fact
16 is, if there are any rules and requirements,
17 specifically covered work down to your house,
18 they are never enforced; because here again, it
19 has more to do with what is required by the
20 manufacturer regarding the installation of their
21 products; and most people working for the cities
22 or towns or villages don't seem to have a good
23 grasp of that.
24 Q All right. Let's move on.
25 The next sentence down says, We carry
59
1 adequate insurance to protect our customers
2 against injuries to our workman or the public.
3 This is where the insurance comes in.
4 Could you explain what insurance that is?
5 A We have already discussed that.
6 Q Not in light of the contract. So please
7 answer the question.
8 A Is it the same objection?
9 MS. TABOR: Just answer the question.
10 It is irrelevant, but just answer the
11 question.
12 THE WITNESS: We carry adequate
13 insurance to protect our customers against
14 injuries to our workman or the public during
15 the performances of our contract.
16 Here again, this is more boiler plate
17 language that is required by the financial
18 institutions who are making these contracts
19 part of their record. That is the reason
20 that that is there.
21 BY MR. MCKINNEY:
22 Q Does plaintiff have any general
23 liability insurance that that sentence covers or
24 any insurance at all?
25 MS. TABOR: Again, to the extent that
60
1 you are asking that question in the abstract,
2 I object. This witness is not here to answer
3 questions about insurance.
4 MR. MCKINNEY: He is here to answer
5 questions.
6 MS. TABOR: If you have a question as to
7 insurance --
8 MR. MCKINNEY: Does Insulated Wall
9 Systems carry adequate insurance to protect
10 customers?
11 MS. TABOR: That is not related to this
12 contract, sir. I object to that question.
13 MR. MCKINNEY: How can it not be? It
14 says, and I quote, We carry adequate
15 insurance to protect our customers against
16 injuries to our workman or the public during
17 the performances of our contract.
18 MS. TABOR: In relation to this
19 contract, what was your question?
20 BY MR. MCKINNEY:
21 Q Do you carry adequate insurance?
22 MS. TABOR: I have an objection to the
23 extent whether or not insurance is in place
24 today is irrelevant.
25 MR. MCKINNEY: At the time of the
61
1 contract.
2 THE WITNESS: My subcontractors are
3 required to carry their own Workers' Comp
4 insurance, and Insulated Wall Systems carries
5 a general liability policy, and that is
6 exactly what was in place in 2004.
7 I would have to check my records.
8 BY MR. MCKINNEY:
9 Q Would you please provide that
10 insurance -- have you provided that to defendant?
11 MR. MCKINNEY: I am making a discovery
12 request that I want the insurance mentioned
13 in this --
14 MS. TABOR: You have made that request,
15 and to the extent we have responded, we are
16 not going to respond again. It is
17 irrelevant.
18 BY MR. MCKINNEY:
19 Q Isn't it a fact that you didn't have any
20 insurance at the time this contract was signed,
21 Insulated Wall Systems?
22 MS. TABOR: I think he testified he
23 didn't know what he had.
24 BY MR. MCKINNEY:
25 Q He didn't know what insurance he had.
62
1 A I already explained it to you.
2 MS. TABOR: He already testified.
3 BY MR. MCKINNEY:
4 Q Let's move on.
5 Tell me what the sentence right after,
6 Contractor agrees to do all work in a good and
7 workmanlike manner. The acknowledgement and
8 completion of the work -- would you read that
9 sentence into the record.
10 A What sentence do you want read?
11 Q Start with the word, The acknowledgement
12 of the completion of the work.
13 A The acknowledgement of the completion of
14 the work, signed by the owners of said premises,
15 shall be sufficient notice that this contract has
16 been satisfactorily completed by the contractor
17 on the date thereof in accordance with terms of
18 this contract.
19 Q Tell me your understanding or Insulated
20 Wall Systems' understanding of that particular
21 sentence.
22 A Here again, that is a sentence that is
23 required by the financial institution that
24 provides the financing. They require a
25 completion certificate to be signed by the
63
1 customer before they would release the funds to
2 Insulated Wall Systems.
3 So that is the only relevance of that
4 sentence.
5 Q So it is a completion certificate, that
6 is what you said?
7 A As a general rule, they would have a
8 document that would be titled a completion
9 certificate or something to that effect; but here
10 again, would be part of the documentation for the
11 loan that was prepared by the lending institution
12 and presented to the customer before the funding
13 of the loan.
14 Q Isn't it a fact that the lending
15 institution would not release the funds until
16 that document is signed?
17 MS. TABOR: In what case?
18 MR. MCKINNEY: Whatever case it applies
19 to. That is what he just got through saying.
20 MS. TABOR: Are you asking as a general
21 rule?
22 MR. MCKINNEY: As a general rule. I was
23 just reiterating the facts.
24 Go back to where he is testifying as to
25 the meaning of that sentence.
64
1 Did he say something about the funds not
2 being released?
3 (Answer read back.)
4 BY MR. MCKINNEY:
5 Q Signed by a --
6 A What is your question?
7 Q My question is, I want to reiterate, it
8 is a completion certificate, that is a fact?
9 MS. TABOR: I will object to that.
10 There is no question there. What is your
11 question?
12 BY MR. MCKINNEY:
13 Q My question is, are the funds released
14 until -- the funds are not released until a
15 document is signed?
16 MS. TABOR: What situation?
17 MR. MCKINNEY: In the situation he was
18 just referring to. He is the one that said
19 it.
20 THE WITNESS: Well, this doesn't have
21 any bearing on the contract at hand, because
22 we weren't arranging financing for you the
23 defendant.
24 If you are asking in the great scheme of
25 things as a general rule of thumb, my
65
1 recollection is, most lenders require a
2 signed completion certificate as part of
3 their lending portfolio, in addition to all
4 the other loan documents that are prepared by
5 the bank -- the right to rescission, the
6 interest rate, and the other required
7 documentation had to be submitted as a
8 package before the funds are released to the
9 lender.
10 BY MR. MCKINNEY:
11 Q So my understanding to your response,
12 and I will ask you to agree after this --
13 MS. TABOR: He can't agree to your
14 understanding. Objection. He can't testify
15 as to your --
16 MR. MCKINNEY: I am not.
17 MS. TABOR: You just said -- ask the
18 question.
19 MR. MCKINNEY: I will ask him if he
20 agrees with it or not at the end is my point.
21 BY MR. MCKINNEY:
22 Q Did you say this sentence didn't apply?
23 A It has no application to this particular
24 contract.
25 Q Do you ever cross this sentence out on
66
1 any of the contracts?
2 A Usually I do.
3 Q On finance sales?
4 A What do you mean?
5 Q Well you have testified in the past, I
6 think in the interrogatories, that this sentence
7 only applies to finance sales; is that correct?
8 A That's correct.
9 Q So that whole paragraph which you
10 scribbled out at the top has to do with finance
11 sales, you didn't scribble out that particular
12 sentence.
13 A That is true, I didn't scribble out that
14 particular sentence, just the area above it.
15 Q And you don't scribble it out because
16 why?
17 A Not to make a mess of the contract, I
18 suppose.
19 Q So this particular sentence has nothing
20 to do with satisfaction guaranteed, is that what
21 you are testifying to?
22 A I don't know how to explain it any
23 better than I already have. It is part of the
24 documents that is provided by the financial
25 institutions.
67
1 Q Did he ever state to defendant or anyone
2 associated with defendant in this case that no
3 payment was due until work was done to the
4 satisfaction of the customer?
5 A That is the general rule of Insulated
6 Wall Systems is not to require payment before the
7 completion of the work.
8 Q Let's go back to that. Let's see, that
9 part of the contract says, All of the above work
10 for the total sum is payable in cash upon
11 completion of the work --
12 A Where are you?
13 Q Right in the middle of the page, Exhibit
14 4.
15 MS. TABOR: Page 1?
16 BY MR. MCKINNEY:
17 Q Page 3. It is the same on each page?
18 A No, it is different on each page.
19 Q The pre-printed form?
20 A Yes.
21 Q Read where it starts off, all the above
22 work.
23 A All of the above work to be done for the
24 total sum of 16,000 even.
25 Q The next sentence?
68
1 A Payable in cash, net upon completion of
2 the work.
3 Q Who defines completion of the work
4 according to this contract?
5 A Reasonable people.
6 Q And who may that be in this particular
7 case?
8 A Me.
9 Q So the contract states that it is a
10 unilateral decision on your part?
11 A The contract doesn't specify. It just
12 says the amount is due upon completion of the
13 work. We completed the work; so at that time,
14 the money is due. It is very simple.
15 Q But according to your testimony, you are
16 the decider?
17 A I said reasonable people.
18 Q Did you tell defendant or anyone
19 associated with defendant that there would be a
20 walk through, a punch list created?
21 A Did I tell anyone that?
22 Q Yes.
23 A No.
24 Q So you didn't tell defendant that there
25 would be a walk through when you decided that
69
1 work was completed, that we would look at
2 everything?
3 A No.
4 Q And there would be a punch list created?
5 A No. Typically my crews finish a job,
6 they have done it, done it correctly; and
7 reasonable people understand that and they pay
8 what they owe.
9 Q I continue to hear this word
10 "reasonable." What does that mean to you?
11 A I think that normal people understand
12 that word.
13 Q I am asking for your definition of
14 reasonable.
15 A A reasonable person would be one who
16 understands that the work is done in a correct
17 fashion and pays what they owe. That is what a
18 reasonable person does.
19 Q In light of this work contracted for by
20 defendant; correct?
21 A It means it is installed the way it was
22 spelled out in the contract. The contract tells
23 you what is going to be done. Once that is done,
24 it is done the way it is contracted to be done.
25 Q By what standards?
70
1 A The standards that are outlined in the
2 contract.
3 Q Would that mean any codes, any
4 construction codes?
5 A I just told you, what is on the
6 contract.
7 Q Would that be according to any
8 manufacturer's specifications?
9 A It is important to do that, certainly.
10 Q Okay, for load bearing items, such as
11 the slab and the deck, what manufacturer's
12 specifications would you use?
13 MS. TABOR: Object to the form of the
14 question.
15 MR. MCKINNEY: Okay. I will rephrase.
16 MS. TABOR: It is a compound question.
17 MR. MCKINNEY: I will rephrase the
18 question.
19 BY MR. MCKINNEY:
20 Q Under what standards was the slab
21 constructed?
22 A The slab was constructed under the
23 standards I wrote on the contract. It is clearly
24 explained to you how it would be installed and
25 what the cost would be to the slab, and that it
71
1 was done as a favor to you since you cried about
2 how little money you had, and you really wanted a
3 slab; and I explained to you what would be done
4 to pour a simple slab that would meet your
5 budget, and I did it at cost for you.
6 Q Is it your testimony that I revealed my
7 financial situation or defendant revealed his
8 financial situation to you?
9 A Absolutely, yes, repeatedly, you
10 repeatedly told me you hadn't worked in ten years
11 and you didn't have any money and you listened to
12 the Clark Howard Show and you agreed with his
13 suggestion that it was always more important for
14 you to take lower quality for a lower price, the
15 price was the utmost concern to you.
16 Q Do you have any facts or evidence to
17 support this?
18 A I remember it very clearly.
19 Q Do you have any other facts, anything
20 other than your testimony?
21 A I don't think I need anything else.
22 MR. MCKINNEY: Let's take a break and go
23 to lunch.
24 (A lunch recess was taken at
25 12:04 p.m.)
72
1 (Deposition resumed at 12:40 p.m.)
2 BY MR. MCKINNEY:
3 Q If you would pull out Exhibit 4, and
4 turn to page 3. Would you read into the record
5 where it says the handwritten, pour slab.
6 A Pour slab on back of house approximately
7 14 feet deep away from house and approximately 19
8 feet wide. Smooth finish, customer to remove
9 shrubs first.
10 Q Is it reasonable for defendant to expect
11 a smooth finish?
12 A It would be reasonable to expect that
13 until you went in and changed and put a drain in
14 the center of the slab, so then it became nearly
15 impossible to put a smooth finish on the slab.
16 Q How is that the case?
17 A Well, there is nothing in here about
18 putting a drain in it; when you put a drain in
19 the center and attempted to slope the concrete
20 toward the drain, you complicated it and you were
21 doing something that wasn't provided for in the
22 contract.
23 Q I still do not understand, maybe again
24 explain it, how that prevented a smooth surface.
25 A You put a hole in the middle of it. You
73
1 ran a pipe through it you cut a hole through the
2 supports that were supporting the concrete.
3 There was never any agreement to do such a
4 thing. You went in and molested what we were
5 doing, and therefore what you did, it affected
6 the finish and it affected the strength of the
7 form that was used to support it.
8 Q Isn't a smooth finish done just with a
9 trowel?
10 A I can't explain to you better than I
11 just did.
12 Q Isn't it true that your worker,
13 plaintiff's workers did not bring a trowel?
14 A All I can tell you is that my workers
15 were prepared to put a smooth finish on it until
16 you tampered with a product by putting a drain in
17 the center of the slab, and then you complicated
18 things and then you demanded that they do
19 additional work to correct your mistakes.
20 Q Is it your position that plaintiff's
21 workers brought everything they needed to do the
22 job?
23 A That is my -- yes, they did. They
24 brought everything they needed to do it.
25 Q Who provided the wheelbarrow?
74
1 A I don't have any knowledge of a
2 wheelbarrow.
3 Q Who provided the shovels?
4 A I don't know any anything about any
5 shovels.
6 Q Did your workers bring a broom?
7 A I don't know exactly what they had on
8 the job site. I wasn't there when they got
9 started.
10 Q So you can't testify that they brought
11 everything to do the job?
12 A I didn't say that. I think they had
13 everything they needed to do the job whether, you
14 actually provided them some additional tools
15 probably to do extra work that you hadn't
16 contracted for, then they might have needed your
17 tools, but with you changing the terms of the
18 contract and changing the specs of the work they
19 would have performed.
20 Q So it is your position then or Insulated
21 Wall Systems' position then that whatever you say
22 I did, prevented you from doing a smooth surface?
23 A I just testified that yes, you
24 complicated things, you demanded something that
25 wasn't in the contract and you changed the terms
75
1 of the contract.
2 Q Did you discuss that with me before the
3 pour -- did you discuss this change in the
4 contract with the defendant before the pour of
5 the concrete?
6 A No, you are the one that changed the
7 terms right there on the job site. You
8 repeatedly changed the terms of the contract.
9 You repeatedly gave my workers instruction to do
10 things they were not required to do.
11 Q What instructions do you give to your
12 workers when a customer asks for something
13 different?
14 A If a customer asks for something
15 different, then quite often my workers are
16 trained to try and accommodate the customer the
17 best they see fit. Now, for most customers, it
18 may be just a very small change to what they are
19 doing; but in your situation, your requests were
20 unreasonable, they were way beyond the scope of
21 what we had contracted to do and therefore it
22 made it very difficult for my employees on site
23 to attempt to make any changes that would satisfy
24 you.
25 Q Did your workers stop work and consult
76
1 with you prior to continuing with the pour of the
2 slab?
3 A I don't specifically recall any one
4 instance where they stopped work on the slab.
5 There is nothing I remember about them stopping
6 work on the slab.
7 Q Is it reasonable for a defendant to
8 expect the slab to be square, rectangle?
9 A It would have been rectangle. It would
10 be reasonable to expect that, except for the fact
11 that you had gone in and cut a hole through the
12 supports that were holding up the concrete.
13 Q Now, how many holes did supposedly
14 defendant cut?
15 A There was at least one large hole that I
16 witnessed.
17 Q And that prevented the slab from being
18 square; is that your testimony?
19 A It weakened the supports that they
20 installed to the point that it caused it to bow
21 out.
22 Q Who did that hole?
23 A It was done at your direction. Whether
24 you helped them do it or had them do it, I'm not
25 quite sure. It wasn't part of our contract. It
77
1 was never agreed to, and it was something that
2 you arbitrarily added and forced them to do.
3 Q Isn't it true your worker cut the hole?
4 A I just explained that to you.
5 Q I just asked a question.
6 A I wasn't there. I didn't witness it.
7 All I know is it was at your direction.
8 Q Isn't it true that your workers should
9 have the knowledge to know how to shore up
10 concrete in a form?
11 A My workers have the knowledge to do what
12 they set out to do. Unfortunately, when you
13 intervened and gave them instructions, they
14 simply did the best they could to accommodate
15 you.
16 Q Is it reasonable for a defendant to
17 expect a straight and level slab?
18 A Within the guidelines in the industry,
19 yes, but I would say straight and level, here
20 again, that to the extent that you come in and
21 change things and damage the supports for the
22 concrete.
23 Q Have you actually measured the slab?
24 A No, I have not actually measured the
25 slab.
78
1 Q You have testified or at least responded
2 to an interrogatory that defendant made you aware
3 of the purpose of the slab.
4 Do you recall what that purpose is?
5 A The best of my recollection was that you
6 wanted to put a simple, little screen porch.
7 That was always your dream to have a little,
8 simple screen porch, shed roof and screen walls
9 at some point in the future.
10 Q Is it reasonable for a defendant to
11 expect a slab that will support a structure?
12 A The slab that was poured was designed to
13 support what we had agreed, what would eventually
14 be supported.
15 Q Let's go to Exhibit 19 and 20. Have you
16 read these reports concerning the slab aspect of
17 it? Let's just focus on the slab right now.
18 A I may have read it at some point.
19 MS. TABOR: Which one?
20 MR. MCKINNEY: Both of them.
21 MS. TABOR: Okay. When you say, I may
22 have read some aspect of it, which report are
23 you referring to?
24 BY MR. MCKINNEY:
25 Q Let's refer to Exhibit 19. Have you
79
1 read that report as it relates to the slab?
2 A I may have some time ago.
3 Q And how about Exhibit 20, have you read
4 that report as it relates to the slab?
5 A Here again, I may have some time ago.
6 Q Do you have any facts or evidence or
7 reports that contradict either one of these
8 reports or what they are saying in terms of the
9 slab?
10 A Well, let me reread it.
11 MR. MCKINNEY: Let's go off the record
12 while you read it.
13 (Off the record.)
14 THE WITNESS: What was your question?
15 BY MR. MCKINNEY:
16 Q Do you have any facts or evidence to
17 contradict what is said about the slab in these
18 reports?
19 A I can just tell you the slab that you
20 got is the slab you contracted for. I did
21 exactly what I told you we would do regardless of
22 what these reports say. They are irrelevant to
23 the facts at hand. You got what I told you you
24 would get, and that is the bottom line.
25 Q So the answer to the question is no?
80
1 A That was not my answer.
2 Q Well, I will ask it again.
3 Do you have any facts or evidence to
4 contradict what is said about the slab in these
5 reports?
6 A Not other than what I just said.
7 Q Okay. Is it reasonable for a defendant
8 to want, desire, expect from this contract, a
9 slab that would support a structure as he has
10 related it to you?
11 A Repeat the question.
12 Q Is it reasonable for defendant to expect
13 the slab that would support the structure?
14 A What structure?
15 Q The structure that you just described.
16 A A simple screen porch?
17 Q Uh-huh.
18 A I think so, yes.
19 Q And you will note on Exhibit 19, where
20 on the second paragraph, last sentence that this
21 slab as constructed cannot be used for its
ded purposes. Do you read that?
23 A I don't know what you are asking me.
24 Are you asking me, is that what that document
25 says?
81
1 Q Is that what that document says?
2 A I don't understand your question. Are
3 you testifying as to what this document says?
4 Are you asking me? What is your question?
5 Q Well, my question is, is it reasonable
6 for me to expect a slab that would support a
7 structure?
8 A And I asked you what kind of structure.
9 Q The structure that you described.
10 A I believe you can put a screened-in
11 porch on the slab that was constructed, yes.
12 Q Do you think there was any danger of it
13 sinking?
14 A I don't think so. It's been there for
15 years. It doesn't seem to be sinking. It seems
16 fine to me, but the point here is that we poured
17 the slab exactly the way we told you we were
18 going to pour it.
19 Q What is your qualifications to speak to
20 contract work?
21 A I don't understand your question.
22 Q What is your qualifications to speak to
23 the structure integrity of the concrete slab?
24 A I can just tell you, as I told you the
25 day we entered into this contract, that my
82
1 company is not in the business of pouring
2 concrete slabs, never has been. And I explained
3 to you very clearly, I had handymen that had
4 worked for me on properties that I owned that had
5 done things like poured slabs, extended driveways
6 and such.
7 And I said as a favor to you, I would be
8 more than willing to have one of those guys pour
9 this little slab that you so desperately want,
10 and I will do it for you at cost; and I explained
11 the cost of the concrete alone would be about
12 $1,000, and maybe a few hundred dollars for the
13 labor to frame it up and set it for you. And I
14 left it at that.
15 You seemed to indicate that is precisely
16 what you wanted, that was all good for you, so
17 that is what we did.
18 Q Did you make any notations in the
19 contract that we were changing the standard of
20 work?
21 A I don't believe we changed the standard
22 of work.
23 Q So is the standard of work professional,
24 good and workmanlike?
25 A Here again, you got exactly what I told
83
1 you we would give you. For the amount of money
2 you were charged for that slab, you got exactly
3 what you paid for. You didn't pay for these
4 additional things -- you can pour a slab that
5 will support a skyscraper if you wish. However
6 that is not what you paid for. That is not what
7 our understanding is. You got exactly what I
8 told you you would get.
9 Q Was the understanding for a structure,
10 though?
11 A I have said repeatedly I understood that
12 there was to be a screened porch, a very simple
13 screened porch at some point in the future.
14 Q Let's move on to the deck. Well, let me
15 see if I'm finished with this. No, I'm not quite
16 finished.
17 Water pools in the wrong direction in
18 the slab, is that professional and workmanlike?
19 A I don't understand your question.
20 Q Is it good and workmanlike to build a
21 slab where the water pools toward the house?
22 A I don't know. You would have to show me
23 an example of it. I don't know what you are
24 talking about.
25 Q Let's pull out the pictures, Exhibit No.
84
1 27.
2 MS. TABOR: Can we go off the record.
3 (Off the record.)
4 MR. MCKINNEY: I was going to refer him
5 to Exhibit 27, I think it is, the pictures.
6 MS. TABOR: I mean with specificity.
7 MR. MCKINNEY: Page 6, bottom left
8 picture, you see the water circle, damp,
9 dampness area there.
10 BY MR. MCKINNEY:
11 Q The pictures that I have are the actual
12 pooling against the water or against the wall of
13 the house; but my question is, isn't a slab
14 supposed to pool water away from the house?
15 A I'm not aware that slabs are supposed to
16 pool water, so I don't know what you're talking
17 about.
18 Q I mean run water off the slab.
19 A If the slab is level, then no, I don't
20 think it is supposed to drain water off in any
21 one direction or the other.
22 Q In the industry, what is usually done in
23 the case of slabs next to the house?
24 A I told you, I am not in the concrete
25 industry. I can only relate my personal
85
1 experience, as I did the day before we signed the
2 contract, what would be done. And it was done
3 according to those specifications.
4 Q Would you agree that it is installed
5 above the line --
6 A I guess so.
7 Q Do you agree that there is no footers?
8 A Footers in the sense of a foundation
9 below the slab?
10 Q Yes.
11 A I don't believe there is any -- there is
12 nowhere in the contract where I agreed to put a
13 foundation under the slab, footers or any such
14 thing.
15 Q Did you do any probing of the ground to
16 determine its capability to hold a slab?
17 A I simply walked on it like I walked on
18 many yards in the past. It looked like some good
19 old Georgia red clay, didn't seem to be an area
20 that was disturbed or back filled, same type of
21 situation where I poured slabs before, poured
22 additions for driveways, and that is the
23 experience that I bring to the table when I
24 looked at your backyard and looked at the soil in
25 that area.
86
1 Q So the answer is no?
2 A I just explained what I did as far as
3 probing, I mean, I walked. I looked at it, I
4 inspected it. There was never any agreement that
5 I would have some special probes to probe your
6 ground with, no.
7 Q Did you obtain a building permit?
8 A No, we didn't obtain a building permit.
9 I never told you I would, you never did ask for a
10 building permit.
11 Q Have you had the concrete slab inspected
12 by a qualified concrete inspector?
13 A No, I didn't have anyone inspect the
14 concrete slab -- I never agreed to have anyone
15 inspect the slab. I never told you I would have
16 anyone inspect the slab. I simply poured the
17 slab as I told you I would. And did it at cost
18 as a favor to you.
19 Q Is that stated in the contract?
20 A Is what stated in the contract?
21 Q That you were doing it as a favor?
22 A No, but I told you that in person.
23 Q Let's move on to the deck, same
24 exhibits, 19 and 20. And we can keep out Exhibit
25 27, the pictures.
87
1 Did you agree to build the deck to any
2 standards of the industry?
3 A I read all the specifications on the
4 work order. If you like, I can read them back to
5 you.
6 Q We are talking about the quality of
7 work. Did you agree to build the deck to code,
8 Gwinnett County's construction code?
9 A No, I did not.
10 Q What standards, what level of
11 professionalism did you tell defendant to expect?
12 A A functional deck that was a heck of a
13 lot better than the one you had up there.
14 Q But it would not meet any standards of
15 any sort?
16 A That would be fit for its use.
17 Q Would it be safe?
18 A Absolutely.
19 Q Have you read the two reports, Exhibit
20 19 and 20 as it concerns the deck?
21 A Yes, I am familiar with Exhibits 19 and
22 20, your hired inspectors and their analysis of
23 the deck.
24 Q Do you have any facts or evidence to
25 contradict what they are saying?
88
1 A Well, it seems that Exhibit No. 19
2 references an ICC code, and there's nothing in
3 our contract about preparing an ICC code, so I
4 would object to the statements that the landing
5 is less than required, that the staircase is less
6 than required. It is referencing a code that
7 wasn't part of our contract and I am not familiar
8 with, and so as far as I am concerned, it isn't
9 relevant.
10 Q Okay. Would you turn to Exhibit 8 -- I
11 am sorry, Exhibit 7. Are you familiar with that
12 document, have any personal knowledge of that
13 document?
14 A No, I am not personally knowledgeable of
15 this document.
16 Q Would you agree with any of the
17 specifications that are on that document?
18 A Are you asking me to go through each
19 sentence on this document and ask whether I agree
20 with it?
21 Q Let's address the one that you just
22 addressed. You've said the landing of the steps
23 is less than the required landing size; is that
24 correct? Do you agree with that?
25 A I said that there is nothing in our
89
1 contract to specify that the landing or the width
2 of the staircase, so therefore, there was no
3 violation of any agreement.
4 Q So is it your position that you did not
5 build a deck or the deck was not built according
6 to Gwinnett County construction codes?
7 A I just told you, I am not familiar with
8 every detail of this Gwinnett County construction
9 code. There is nothing in our contract that says
10 anything about the Gwinnett County codes relating
11 to the building of your deck.
12 I simply laid the specifications out in
13 the contract, and that's what we did.
14 Q Is it Insulated Wall Systems' position
15 that it can come into Gwinnett County and build
16 without building to county construction codes if
17 there are requirements?
18 A There is nothing in our agreement that
19 says I will do that.
20 Q Please answer the question.
21 A You are asking a hypothetical question?
22 Q If Insulated Wall Systems can come into
23 Gwinnett County and build structures that do not
24 meet the Gwinnett County construction code.
25 A We can come in and contract with a
90
1 private individual to come in and build anything
2 they want to on the property, so unless I have
3 agreed in writing to specifically follow a
4 particular code then no, it wouldn't be relevant.
5 Q How large do you think a landing should
6 be?
7 A Where? On what? What are you talking
8 about?
9 Q The landing that you just referred to,
10 the landing of the steps is less than the
11 required landing size.
12 You think there should be some minimum
13 width that it should be?
14 A As long it serves the purpose of what
15 the deck is built for, and it is functional, and
16 you can walk on it, and you can stand on it, then
17 so be it.
18 If you want a particular dimension or
19 the width of the staircase all somebody had to do
20 is specify it. If you wanted a specific width or
21 height or any other specification of the landing,
22 all you simply had to do was specify it in the
23 contract.
24 You just can't arbitrarily determine
25 after the fact that you want it to some certain
91
1 standards you haven't mentioned before.
2 Q Look on page 2 of Exhibit No. 7, even
3 though I didn't realize you didn't adhere to
4 that. Right in the middle of the page it says,
5 Minimal landing to be no less than 36 inches
6 square.
7 A Are you testifying, or do you have a
8 question?
9 Q No, I am pointing it to you. My
10 question is, why do you think that is there?
11 A This was probably a best case scenario
12 for someone who wants to build the best deck
13 possible. That is not what you contracted for.
14 You wanted to do the least expensive deck
15 possible that would still function for its
16 intended purpose.
17 There are lots of things you can add to
18 decks. You can add all kinds of metal hardware,
19 you can build extra supports, you can reinforce
20 it, you can build a $50,000 deck to your
21 dimensions, or you can build one at a very low,
22 reasonable cost and give you value for your
23 money, which is what Insulated Wall Systems did
24 for you.
25 So you can come back and complain that
92
1 it wasn't done to the specifications for the best
2 built deck in Gwinnett County, you just didn't
3 pay for that. That's why you didn't get that.
4 Q What does money have to do with the size
5 of a landing 36 inches square?
6 A It has to do with every aspect of
7 construction.
8 Q How so? I fail to understand.
9 A You get what you pay for. What don't
10 you understand? If you want something done to
11 specific specification, then specify it. If you
12 specify that you wanted something more, then most
13 likely the greater the cost would be.
14 Q Do you think it is important to have the
15 stair treads the same size?
16 A Depends what you mean by the same size.
17 Q Same height, same rise -- let's take an
18 example.
19 A Here again --
20 MS. TABOR: Are you going to let him
21 answer the question?
22 THE WITNESS: In your situation, if you
23 demanded that each step be exactly six inches
24 or seven inches or eight inches with a
25 tolerance of one millimeter, then fine, you
93
1 are free to specify that in the contract, and
2 I certainly would have walked away from
3 contracting with you at that point.
4 So all I can tell you is the deck was
5 built, the stairs are functional. An average
6 normal person can go up and down the stairs,
7 they can stand on the deck at any time. They
8 can jump up and down on it. It's not going
9 anywhere.
10 BY MR. MCKINNEY:
11 Q What facts or evidence do you have to
12 support this?
13 A I have walked on it myself.
14 Q How times have you walked on it --
15 MS. TABOR: Let him answer the question.
16 THE WITNESS: I walked on the deck. I
17 had an inspector out there to look at the deck.
18 BY MR. MCKINNEY:
19 Q What does your own inspector say, that
20 is Exhibit No. 21.
21 A Your question is what?
22 Q What does your inspector say about the
23 deck?
24 A Let's turn to page 3 of Exhibit 21. If
25 you go down to G under the title "Deck Balcony."
94
1 First question is, is the deck properly attached
2 to the house? And the box yes has been checked.
3 Columns, adequate has been checked.
4 The decking itself, adequate has been
5 checked.
6 The steps and railing, inadequate,
7 however at the time my inspector looked at this,
8 the deck had been molested by the defendants.
9 Q Molested?
10 A I am not finished. The flashing is
11 adequate, and the framing is adequate. And that
12 is page 3.
13 Let me see if there is anything else
14 that you asked me about.
15 The inspection report summary states
16 that the rear wood deck/steps on concrete
17 footings, 4x4 inch pillars and PT framing. Deck
18 is mostly finished. However, some stair
19 balusters are to be finished. Cut to stair
20 angle.
21 Deck is flashed and attached to house
22 with bolts. Joists are on metal hangers. Hand
23 rail loose on deck sides, recommend add
24 additional bolt attachment at hand rail support
25 uprights. Block joists outside to limit
95
1 movement.
2 Q So isn't it true your own inspector says
3 the steps and rails are inadequate?
4 A I just read what it says. The day we
5 actually did the inspection, I think that you
6 and/or your wife had been pushing on the rails to
7 loosen them up as much as possible.
8 You had taken caution tape and wrapped
9 it around the stairway as if there was some
10 hazard that didn't exist other than possibly your
11 own creation.
12 The report does say that even with the
13 damage you had done to the deck --
14 Q Where does the report say that?
15 A Well, the report says that the deck was
16 loose on the sides.
17 Q Where does it say damage performed by
18 defendant?
19 A I am suggesting that you damaged it.
20 Q That is your suggestion, but you said
21 the report says that and it doesn't say that.
22 A The report says that even though the
23 hand rails are loose, it recommends simply adding
24 an additional bolt at hand rail support
25 uprights. So a very simple problem to fix with
96
1 one bolt is what he recommends.
2 Q Did you offer to do that?
3 A We made many, many adjustments to your
4 deck, because you were out on a daily basis, you
5 were supervising it.
6 Every hour my workers were there, you
7 constantly made changes. They called me
8 repeatedly. They had to go back to Home Depot
9 repeatedly to get more materials and supplies
10 after you made your changes.
11 Q Please list all the changes.
12 A Well, my recollection from my
13 conversations with my workers on site were that
14 you basically wanted to direct where each and
15 every nail went; you changed the design for the
16 railing on several occasions, you changed the
17 design for the stairs, you changed the design for
18 the landing; and you complained about the
19 supports, and you basically complained about
20 everything they did.
21 Q What was the first change we requested?
22 A Read it back.
23 (Answer read back.)
24 BY MR. MCKINNEY:
25 Q What was the design change?
97
1 A You changed the design of the railing.
2 Q How did we do that?
3 A I don't remember all the specifics. It
4 has been over two years since I had these
5 conversations with my workers.
6 Q Do you know of any specific changes we
7 requested?
8 A I know you changed the location of the
9 stairs. You complained about the rails -- I am
10 just repeating what I have already said. I have
11 already answered your question to the best of my
12 ability.
13 Q These are just general statements, but
14 none of these are specific changes in the design
15 of the deck.
16 You say we complained a lot. That is
17 all I am hearing. I am not hearing any specific
18 design changes.
19 A Yes. They had pulled the stairs apart
20 and you had to redo the stairs, you weren't happy
21 with some of the stairs. They had to take the
22 railing down and redo that because you complained
23 about that.
24 Q The end result on your inspector's
25 report is he declares the step and railing
98
1 inadequate. So that does not contradict with my
2 report or Exhibit 19?
3 A Are you testifying? Is there a question
4 here?
5 Q That is a question. Isn't that true?
6 A Repeat the question.
7 Q Your expert says that steps and railings
8 are inadequate. And that is basically what I see
9 or read in Exhibit 19. Would you say that the
10 three experts are in agreement on the steps and
11 railing?
12 A No.
13 Q Did your worker do a 2 by 8 single band
14 around the outside edge of the deck?
15 A Let me look at the contract to refresh
16 my memory.
17 There is nothing in the contract about
18 that. And I don't have independent recollection.
19 Q Okay. According to your philosophy,
20 which I've heard and listened to today, if it
21 isn't in the contract, would you say a band was
22 not even required?
23 MS. TABOR: Object to the form of the
24 question.
25 BY MR. MCKINNEY:
99
1 Q How many bolts were used to connect the
2 deck to the house?
3 A I haven't looked at that deck in two
4 years. I can count them, I suppose, is that what
5 you are asking me to do?
6 Q Page 8 might be helpful.
7 A I can't say from these photographs how
8 many bolts are being used.
9 Q Was it bolted all the way across?
10 A There appear to be bolts all the way
11 across.
12 Q I see four bolts, and that is it. And
13 you say you see bolts all the way across?
14 A I told you I can't see --
15 Q I should have brought a magnifying
16 glass, is that what you are telling me?
17 Look at page 8, Exhibit 27, the pictures
18 that you have, the picture in the middle. Do you
19 see a bolt right in the -- in the center picture,
20 do you see a bolt?
21 A I believe that is a bolt.
22 Q Do you see any bolts to the right, and
23 the last portion of the right part of the deck is
24 down below.
25 A That adds to the confusion. You don't
100
1 have one single picture that encompasses the
2 spanning of the deck. I do remember that there
3 was an issue with a rotten structural or partial
4 rotten structural framing to your house that was
5 exposed, and for that reason, it became apparent
6 that they would have to do additional work to
7 support the deck in that corner.
8 At this point, we had already determined
9 that you were a completely unreasonable customer
10 who was refusing to pay for anything.
11 And in my opinion, we weren't going to
12 do any additional work at that point, because I
13 realized that you were adding work to the
14 contract that wasn't contracted for, and that you
15 were going to refuse to pay for, so I instructed
16 the crew just to secure it the best they could;
17 but we were not to do any additional work to your
18 house to increase the support.
19 However, after the fact, in the spirit
20 of goodwill, I did offer to add another 4 by 4
21 post to that corner, which would have provided
22 more than enough support, and you rejected that
23 proposal outright.
24 At that point, nothing more was to be
25 done.
101
1 Q And what point was this that you decided
2 I became unreasonable?
3 A Fairly early in the project it became
4 apparent that you were unreasonable. Every one
5 of my workers that worked on your house
6 complained that you were unreasonable, that you
7 were changing things, you were telling them how
8 to do their work, and you had no idea what you
9 were talking about; so the problem became
10 apparent early, and it got worse each day that
11 the project went on.
12 Q And at what point did you decide I
13 wasn't going to pay?
14 A I started having my suspicions early
15 on. But I finally reached that conclusion when I
16 left your property for the last time, when you
17 stated to me, I have your money; and at that
18 point I realized that all hope for solving this
19 problem, for a reasonable person, had passed and
20 I was not to return to the job site from that
21 point forward.
22 Q While we are looking at these pictures,
23 let's turn to page 9. What do you think you are
24 looking at at the bottom of page 9, that
25 photograph?
102
1 A What was your question?
2 Q What do you think you were looking at?
3 A I can't tell. I didn't take this
4 photograph.
5 Q So you have no idea what you are looking
6 at?
7 A I didn't take the photograph.
8 Q Are you aware that aluminum siding or, I
9 am sorry, aluminum flashing in the pressure
10 treated wood used on the defendant's residence
11 was incompatible?
12 A Repeat that again.
13 Q Are you aware that aluminum flashing in
14 the pressure treated wood that utilized with the
15 deck on defendant's residence are incompatible?
16 A No, I am not familiar with that, no.
17 Q Are you aware that aluminum flashing on
18 pressure treated wood deteriorates?
19 A All metals deteriorate over long periods
20 of time. I would expect the same with aluminum.
21 We are talking decades.
22 Q Are you aware that the deck collapsed?
23 A There is nothing to my knowledge about
24 the deck collapsing. I walked on your deck. I
25 don't know anything about that.
103
1 Q Turn to page 12. Did defendant tell you
2 at the bottom left picture, do you see a red
3 piece of tape?
4 A Yes, I see that is red tape.
5 Q Do you see that concrete? How did that
6 concrete get there?
7 A What concrete?
8 Q Are you on page 12?
9 A Yes.
10 Q There is a bed of concrete with red tape
11 on it. You certainly must have seen the concrete
12 when you were out there.
13 A Well, this picture seems to show dirt
14 between the red tape. So I don't know if that is
15 concrete covered with dirt --
16 Q I don't recall seeing --
17 A I didn't take this picture. I don't
18 know when it was taken.
19 Q Did you see the concrete when you were
20 out there to inspect the work?
21 MS. TABOR: Which inspection?
22 MR. MCKINNEY: July 5, 2006.
23 THE WITNESS: I don't recall. We didn't
24 contract to do any additional concrete on
25 your house. I know your wife had requested I
104
1 do so. However, I turned her request down
2 because I already had realized I was being
3 taken at this point.
4 It was nothing that was contracted for
5 or that I agreed to do for you, and this was
6 something you did on your own.
7 BY MR. MCKINNEY:
8 Q Did you make defendant aware that he had
9 to deal with any other concrete?
10 A I don't understand your question.
11 Q Did you make defendant aware that he
12 would have to deal with any unused concrete that
13 is coming out of the truck --
14 A That wasn't talked about, no.
15 Q Are you aware that defendant's septic
16 tank is underneath that concrete?
17 A I don't know anything about your septic
18 tank. That wasn't anything that was in the
19 course of our business.
20 Q Did defendant tell you where the septic
21 tank was during negotiations of this contract?
22 A I don't recall there being any
23 discussions about your septic tank.
24 Q Did you ask defendant where the septic
25 tank was?
105
1 A I don't recall having any specific
2 conversations about your septic tank.
3 Q When you build decks, do you ask people
4 where their septic tank is so you can avoid
5 building on top of it?
6 MS. TABOR: Object to the form of the
7 question.
8 THE WITNESS: What was your question?
9 BY MR. MCKINNEY:
10 Q Do you normally try to build -- do you
11 normally build on top of people's septic tank?
12 MS. TABOR: Same objection.
13 THE WITNESS: I don't know what you are
14 talking about. All I know is that the deck
15 was being built where your old deck was; so
16 if there was any issue of a septic tank, that
17 would be your responsibility to put that into
18 the contract.
19 BY MR. MCKINNEY:
20 Q Did defendant explain to you where the
21 septic tank was?
22 A I told you repeatedly I don't have any
23 specific recollection of discussing your septic
24 tank.
25 Q Is there any requirement that you know
106
1 of that -- we are still on page 12, is there any
2 requirement that you know of that says that cross
3 beams should be used on a post of this height for
4 bracing?
5 A What was your question again? Is there
6 any regulations I know of?
7 Q Do you know of any requirements to put
8 cross beams on posts of this height?
9 A Not specifically, but I am sure there is
10 something out there. You can always make a deck
11 more secure by putting on cross beams. There is
12 a lot more you can do. You don't have any cross
13 beams on your deck because that is not what we
14 agreed to do.
15 Q Let's go to page 13. Is it normal for
16 Insulated Wall Systems to use ungalvanized nails
17 in the construction of a deck?
18 A What does page 13 have to do with your
19 question?
20 Q Ungalvanized nails rust rather quickly,
21 do they not?
22 A I suppose so.
23 Q Do you think -- are you finished?
24 A Yes.
25 Q Do you think it is good and workmanlike
107
1 to use ungalvanized nails in the construction of
2 a deck?
3 A As a general rule, you want to use
4 galvanized nails in the construction of a deck.
5 Q And if it was determined that Insulated
6 Wall Systems did not use galvanized nails, would
7 the conclusion be it was not good and
8 workmanlike?
9 A Not necessarily, you can always add
10 nails if you thought there were some that weren't
11 galvanized.
12 Q Let's turn to page 15 in the
13 photographs, bottom left corner.
14 What do you think you are looking at
15 there?
16 A You said the bottom left of the page?
17 Q Page 15, bottom left.
18 A It looks like some railing post.
19 Q The picture on the right is the same
20 picture just moved out further; is that correct?
21 A I don't know what you mean.
22 Q The picture on the right bottom is the
23 same picture as left, it is just zoomed out?
24 A It is not the same picture.
25 Q Similar?
108
1 MS. TABOR: I will object to that to the
2 extent these two photographs do not depict
3 the same image.
4 THE WITNESS: The sign is a different
5 color. The door is a different color.
6 MR. MCKINNEY: I agree with that.
7 BY MR. MCKINNEY:
8 Q Let's look at the bottom left. You said
9 that looks like a rail attached to a 4 by 4 or
10 something similar --
11 A It is hard to tell.
12 Q Do you think the attachment of that rail
13 is adequate?
14 A In this photograph, there appears to be
15 a 2 by 4 that is not completely secure to the
16 post. I'm not sure how long after the fact this
17 photograph was taken.
18 If this day is correct, August 14, 2006,
19 I am assuming that this picture was taken two
20 years after it was built. I don't have any
21 recollection of the deck looking like that when
22 the job was completed in 2006.
23 Q Looking at that picture, the left rail,
24 the rail that is coming up this way, do you think
25 that is adequately connected to the 2 by 4 --
109
1 MS. TABOR: Object to the form of the
2 question.
3 BY MR. MCKINNEY:
4 Q Do you see it attached to only about a
5 half-inch of the 4 by 4?
6 MS. TABOR: Same objection. You are not
7 making clear what you are talking about.
8 MR. MCKINNEY: All right.
9 BY MR. MCKINNEY:
10 Q Turn to page 17. Do you have any idea
11 what those pictures are?
12 A I can only guess. I don't know what
13 they are.
14 Q Earlier you gave testimony that there
15 was a problem with the -- I can't recall the
16 exact words you were using, but we were talking
17 about the bolts, and you were talking about it
18 was your understanding that there was rotten wood
19 or something under that right area of the deck.
20 Is that what you think you are seeing in
21 these pictures?
22 A It may be. Here again, I wasn't on site
23 to see it. It was brought to my attention that
24 there was some pre-existing damage to the
25 structural lumber in that area, and it was not
110
1 part of our contract to correct that. It was
2 your responsibility and you chose not to do
3 anything about it, and that is the way it is.
4 Q Did you order your workers just to go
5 ahead and nail that aspect --
6 A To repair the deck, yes, and they were
7 going to put a 4 by 4 post to support that up
8 against the wall of the house, which you refused
9 to let them do.
10 Q You did order your workers to do that
11 and the answer was yes; is that correct?
12 A You would have to read back the
13 testimony.
14 MS. TABOR: Objection. It has been
15 asked and answered.
16 BY MR. MCKINNEY:
17 Q Did you order your workers to nail the
18 deck up --
19 MS. TABOR: It has been asked and
20 answered.
21 MR. MCKINNEY: Okay. Off the record.
22 (Off the record.)
23 BY MR. MCKINNEY:
24 Q Let's finish up the deck. In the stairs
25 of the deck, do you think it is possible that
111
1 steps of different height could be a tripping
2 hazard?
3 MS. TABOR: I will object to the form of
4 the question to the extent it implies facts
5 not in evidence.
6 MR. MCKINNEY: Okay.
7 BY MR. MCKINNEY:
8 Q Did you measure the steps on the deck?
9 A Of course not. No one goes out and
10 measures every step on a deck. That is kind of
11 silly. There is no point for me to do that.
12 These guys were subcontractors. I give them the
13 dimensions and tell them basically what we need
14 to build, and basically they go out and build it.
15 So the answer is no, I don't go around measuring
16 every step.
17 Q Let's look at page 7 of the photos,
18 Exhibit 27. Do you see that step that is sitting
19 on a 2 by 6 or something?
20 A The middle photograph?
21 Q Yes.
22 A Yes, I see that.
23 Q What is the width of a 2 by 6 that it's
24 sitting on?
25 MS. TABOR: I will object to that to the
112
1 extent there is no way to tell if that is a 2
2 by 6.
3 BY MR. MCKINNEY:
4 Q There's no way of telling if that's a 2
5 by 6?
6 MS. TABOR: I will still object.
7 BY MR. MCKINNEY:
8 Q What do you think it is sitting on?
9 A It is a piece of wood. I don't know
10 what dimension it is.
11 Q So you measured none of the steps?
12 A I already answered that question.
13 Q Look at page 14, middle picture to the
14 right. Are there any pickets missing there?
15 A I'm not sure they are missing. If you
16 are asking about that second stair up, that
17 doesn't seem to have any pickets attached, there
18 is no handrail there and I vaguely remember some
19 conversation and the guy said you were
20 complaining about the location of the pickets
21 there at all.
22 Q What is the purpose of pickets?
23 A They could have many purposes. They
24 could be used to support the hand rail, up on the
25 top of the deck you can use them to keep things
113
1 from falling off the deck.
2 Q So in that particular area, do you think
3 something can fall through there?
4 A Anything is possible.
5 Q In your estimation, what is the width?
6 Can you measure that? Can you estimate?
7 MS. TABOR: I will object to this
8 photograph. It will be nothing more than
9 sheer speculation from a photograph to make
10 such an estimate -- if he can answer.
11 THE WITNESS: It would be easy to add a
12 couple of pickets there if that was desired.
13 However, like I said, I think this goes back
14 to the problem with you changing your mind
15 and having the guys change things all the
16 time.
17 I don't remember if they left it this
18 way or they had pickets there and you ordered
19 them to remove them, I don't remember.
20 But like I said, it is a very minor
21 issue, either add pickets there or remove
22 them. I think they cost about 89 cents a
23 piece.
24 BY MR. MCKINNEY:
25 Q So they could have been added if they
114
1 were not put there in the first place?
2 A They certainly could have been added,
3 sure.
4 Q Let's move on to the windows. I guess
5 we have the contract, Exhibit 4. We have the two
6 reports we have been looking at, and your report,
7 Exhibit 19, 21 and 20.
8 Did you provide argon gas in the windows
9 that you ordered for defendant's residence?
10 A Did I provide argon gas?
11 Q Well, let me put it this way. Let's go
12 back to the contract.
13 Let me strike that question and start
14 over again.
15 Let's go back to Exhibit 4, the
16 contract. What windows were ordered in this
17 contract for defendant's residence?
18 A The question is what windows were
19 ordered?
20 Q Yes.
21 A Exactly what it says, model 40 vinyl
22 replacement windows, as follows: One slider over
23 kitchen sink, two double hungs beside the
24 fireplace, one double hung framed into the
25 basement wall, nine double hungs, same
115
1 dimensions, all windows white in color, half
2 screens, grids, up front windows only with Low-E
3 glazing and argon gas. No work to inside walls,
4 on windows that are being reframed.
5 Q Were the windows that are installed in
6 defendant's residence have argon gas?
7 A That was subject to a lot of debate; but
8 from the documentation, it seems like the argon
9 gas was left off.
10 The reason for that was that typically
11 when I ordered Low-E glazing on a window, the
12 manufacturer typically added the argon gas
13 automatically without having to specifically
14 request it.
15 So I wrote "argon gas" on this work
16 order expecting there to be argon gas; and if
17 there was no argon gas, then therefore it was an
18 oversight that could have been easily rectified.
19 Q How would that have been rectified?
20 A You could have either deducted from the
21 amount owed for the windows, what the additional
22 charge for argon gas would have been, which was a
23 very small amount of money.
24 I think that is something that
25 reasonable people would agree on, and even at the
116
1 worst case scenario, you could pop the sashes out
2 of the windows and have them replaced with sashes
3 that have argon gas.
4 Q Did you offer to do that in defendant's
5 case?
6 A In your case, it got to the point where
7 I realized there was no point in doing anything
8 further than we had already done to satisfy you.
9 You had proven yourself to be unreasonable and
10 were expecting things to be provided to you free
11 of charge that you had not contracted for or had
12 agreed to pay for.
13 So after completing everything we could
14 on these work contracts, it became apparent to me
15 that the only way to ever get you to pay one
16 penny would be to sue you in a court of law,
17 which is exactly the course of action I took in
18 this matter.
19 Q When did you find out the windows did
20 not have argon gas?
21 A I don't know the specific date, it was (LIE)
22 sometime -- I don't know the specific day. To
23 this day, I am not exactly clear. I don't have a
24 clear understanding of why they didn't come with
25 the argon gas.
117
1 Q Pull out Exhibit 23. And also Exhibit
2 12. My question is -- I will establish this in
3 just a second, these exhibits.
4 Exhibit 12, let's look at that one
5 first. That is your window insulated wall
6 systems order form?
7 A I think we have identified that already,
8 yes.
9 Q And that is the order form you wrote up
10 and sent to Lansing Building Products?
11 A Correct.
12 Q Does it have argon gas on there?
13 A No, it simply says Low-E, yes. And here
14 again, like I just said, typically when I would
15 order the windows, I was accustomed to get the
16 argon gas added with the Low-E without any
17 special request.
18 Q It comes automatically; is that what I
19 am understanding?
20 A I don't know how better to say what I
21 just said.
22 Q Let's refer to Exhibit 23. Now, we have
23 identified that a letter, or you have, from
24 Atrium to Mr. And Mrs. McKinney. Is that your
25 previous testimony?
118
1 A That's correct.
2 Q Would you read the bottom paragraph of
3 the first page, please, sir -- you have
4 identified --
5 MS. TABOR: Hold on.
6 BY MR. MCKINNEY:
7 Q I want to be sure I have laid foundation
8 for this letter. You testified earlier, Atrium
9 is the manufacturer of Windjammer Windows; is
10 that correct?
11 And this is a letter you also identified
12 as Chris Riley, director of marketing to Mr. and
13 Mrs. McKinney?
14 MS. TABOR: Did you ask him had he
15 previously identified this as Atrium?
16 MR. MCKINNEY: That's what I am asking.
17 MS. TABOR: Restate the question.
18 BY MR. MCKINNEY:
19 Q You previously identified this as a
20 letter from Atrium, the manufacturer of
21 Windjammer Windows, to Mr. and Mrs. McKinney?
22 A Yes.
23 Q You have also testified that argon gas
24 comes typically with windows anytime you specify
25 Low-E.
119
1 A Repeat that.
2 Q Why don't you give me your testimony
3 again concerning this order form. When you say
4 yes to Low-E, what does that mean?
5 MS. TABOR: At the time he filled out --
6 MR. MCKINNEY: At the time he filled out
7 this specific order for our contract.
8 THE WITNESS: As I said when I ordered
9 Low-E, it was typically provided with argon (LIE)
10 gas without any traditional specifications to
11 order it. That is why there is nothing on
12 this form that says argon gas, yes or no. If
13 I ordered the Low-E, then I would typically
14 expect it or I wouldn't have written it on
15 your contract.
16 BY MR. MCKINNEY:
17 Q Would you read the bottom paragraph of
18 the letter, then.
19 A You are referring to Exhibit 23?
20 Q Yes.
21 A We offer Low-E gas as an option with
22 argon and without argon. We have never combined
23 the two into one option package. The list price
24 for Low-E gas is $16.00. To add argon gas there
25 is an additional $8.00 list price charge. I
120
1 cannot reveal Ted Lansing's cost, but I will say
2 that their cost is more than $3.00, so I doubt
3 that a dealer would sell that option to a
4 homeowner for that amount.
5 Now, of course, I did not order these
6 windows from Atrium, so my pricing arrangements,
7 my option arrangements is all through Ted Lansing
8 Corporation. So the fact that Atrium may not
9 have ever offered the two in one option package
10 is irrelevant to me.
11 Here again, I bought these from Ted
12 Lansing Corporation, and I would imagine that (LIE)
13 deal was worked out between me and my sales rep
14 from Ted Lansing Corporation. I never had any
15 contractual arrangement with Atrium Windows and
16 Doors. I've never bought anything directly from
17 Atrium Windows and Doors. This sentence about
18 never combining the two in one option package is
19 not relevant to our situation.
20 Q Look at Exhibit 28 and Exhibit 30 -- 28A
21 and 30A.
22 MS. TABOR: The two brochures?
23 MR. MCKINNEY: Yes.
24 BY MR. MCKINNEY:
25 Q Did you give defendant those two
121
1 brochures or brochures concerning those windows
2 at the time of negotiations, discussions?
3 A I don't have any specific recollection. (LIE)
4 However, since I wrote that you were getting the
5 model 40 window, I assume that I gave you this
6 Series 40 brochure, but I don't have any specific
7 recollection of that since it was two and a half
8 years ago.
9 Q Did you present defendant with a Series
10 60 window and brochure at the time of meetings?
11 A No, I don't believe so. (LIE)
12 Q Is there a copyright date on those
13 brochures that you see anywhere or a date printed
14 or anything like that?
15 A Tell me specifically what you are
16 referencing so I can answer your question.
17 Q Here's what I want to know from you, my
18 reading of those brochures indicates that Low-E
19 and argon gas are options. Is that what you see
20 in those brochures?
21 A All these windows can be purchased with
22 or without Low-E and argon gas.
23 Q So it doesn't come standard with it?
24 A I don't believe it does on the model
25 40. I will have to read the brochure for the 60,
122
1 if that is what you are asking.
2 Q It is right there on the back. You can
3 read it.
4 A No, it is not on the back.
5 Q Flip it over.
6 A What is your question?
7 Q My question is, doesn't that brochure
8 indicate that argon gas is an option, not a
9 standard feature of the Series 60?
10 A That may be true. Here again, they
11 change the specifications for these windows from
12 time to time, so I'm not sure when this brochure
13 was printed. At the time your windows were
14 ordered, 60 series may have well incorporated
15 that into the windows at that point. I am really
16 not sure.
17 I know at some point the State of
18 Georgia started requiring Low-E glazing on all
19 windows for new construction, and I think around
20 that time is when most of the window
21 manufacturers started adding Low-E to all their
22 windows and didn't really require it as an option
23 anymore. But since I don't know the date these
24 were printed, they are not relevant to that.
25 Q Did you coordinate the work between the
123
1 window installer and the siding installer?
2 A Here again, they are subcontractors, I
3 give them the address. I give them the
4 requirements, what needs to be done, and for the
5 most part they set their own scheduling.
6 Q So the answer is no or yes or, what is
7 the answer? Did you coordinate between the
8 window installer and siding installer?
9 A Well, to some extent, sure.
10 Q Let's go to the pictures again. And we
11 still have the exhibits for the window
12 installation.
13 Let's go to page 19 of the pictures. Is
14 it plaintiff's contention that the windows were
15 installed correctly?
16 MS. TABOR: Which picture?
17 MR. MCKINNEY: On the top.
18 THE WITNESS: These windows were
19 installed by Jimmy Staylor, so they were
20 probably the most competent window
21 installers, and I would stand by his work any
22 day of the week.
23 I am sure they are installed correctly.
24 If you are referring to the jagged edge
25 around the window where the stone had to be
124
1 broken away to remove the old metal window,
2 that is to be expected.
3 As a matter of fact, I think he did a
4 very good job of limiting the amount of
5 damage that had to be done to that stone
6 facing in order to remove the old window to
7 properly install the new window.
8 And as I told you, we are not stone
9 masons and as my window installer told you,
10 it is not our responsibility to go back and
11 do any masonry work around the windows. So
12 this is exactly what I explained to you. It
13 is actually better than what I explained to
14 you. So yes, I think he did a good job
15 installing those windows.
16 BY MR. MCKINNEY:
17 Q At the top picture, do you see any
18 Sheetrock visible?
19 A I can't tell what that is. I can't tell
20 the particulars of the way your windows were
21 framed.
22 Q When you came out to inspect the window,
23 did you inspect that area around the window?
24 A What area?
25 Q Around say up there at the top of page
125
1 19, the top picture?
2 A It looks to me like the window is
3 installed correctly. It was your responsibility
4 to do any corrective work to the stone around the
5 window.
6 Q I am not discussing the stone around the
7 window. This isn't about that. This is about
8 sealing the window and protecting the wall from
9 the environment.
10 If that window was not sealed in any
11 way, is that a proper installation?
12 A I am sure it was secured.
13 Q With screws?
14 A Typically.
15 Q Is there any type of flashing that is
16 supposed to be --
17 A No. There is nothing that we contracted
18 for to build flashing around these windows on the
19 stone, of course not.
20 Q Is flashing a normal part of window
21 installation?
22 A No, it is not. (LIE)
23 Q Flashing is something extra that has to
24 be specified in the contract?
25 A If it needs it, that is correct.
126
1 Q Now, you say you install windows and
2 siding to the manufacturers' instruction?
3 A Yes, my subcontractors do that.
4 Q Let's look at Exhibit 9.
5 You have identified that document as a
6 vinyl siding installation manual -- at least read
7 it.
8 A I haven't read that.
9 Q Go ahead.
10 MS. TABOR: I think what he was just
11 trying to say that you just read the name of
12 it into the record.
13 BY MR. MCKINNEY:
14 Q Have you ever seen this document before?
15 A No. (LIE)
16 Q Does this document represent anything to
17 do with the industry standards that you know of?
18 A I just told you I have never seen it. (LIE)
19 I haven't read it.
20 Q Is Royal a member of the Vinyl Siding
21 Institute?
22 A I don't know. I don't know the roster
23 for the Vinyl Siding Institute's membership role.
24 I have no idea.
25 Q Look on page 19.
127
1 MS. TABOR: Of Exhibit 9?
2 MR. MCKINNEY: Of Exhibit 9, yes.
3 THE WITNESS: I am also noting this is
4 updated October 2004, which is after the date
5 of the contract.
6 MR. MCKINNEY: You are right.
7 BY MR. MCKINNEY:
8 Q Okay. Windows, doors and roof lines --
9 why don't you read that over for me.
10 A Are you asking me about the statement
11 that says, Vinyl siding should be installed over
12 a continuous weather resistant barrier to stop
13 the intrusion of incidental water?
14 Q That's correct. And the one down below
15 it.
16 A Which one down below it?
17 Q Under "Flashing," it says,
18 Code-compliant flashing; would you read that into
19 the record.
20 A Flashing. Code-compliant flashing
21 should be integrated with the weather resistant
22 barrier and applied around windows, doors and
23 other openings.
24 Flashing should also be applied to
25 inside and outside corners and the intersection
128
1 of walls and roofing to prevent water
2 infiltration.
3 Q Is it your testimony that defendant was
4 supposed to have asked and specified all flashing
5 around windows and doors in the contract?
6 A The way the windows and siding were
7 installed on your home is the way it is done in
8 the industry.
9 What this refers to, this could be
10 referring to new construction where you don't
11 have the layers of old siding and the weather
12 barrier behind the old siding as we had in your
13 project.
14 So not only did we have the old siding
15 with the sheathing behind it, we also added two
16 more layers of a weather resistant barrier before
17 the siding was installed; so you basically had
18 four levels, four layers of weather resistant
19 barrier.
20 Q Can you testify to what was done around
21 the windows? Is that what I had? Did you
22 actually see the windows being cut out?
23 MS. TABOR: I am going to object to the
24 form of the question to the extent it is a
25 compound and convoluted question.
129
1 BY MR. MCKINNEY:
2 Q I'm sorry. Did you actually see the old
3 windows removed?
4 A I was not on site to witness the removal
5 of the old windows.
6 Q So you cannot testify to what defendant
7 had around his windows at the time of the
8 installation of those windows?
9 A I don't understand your question. What
10 are you referring to?
11 Q You were saying earlier, in my case or
12 in defendant's case, I had all these layers when
13 the window was installed. But you cannot testify
14 to that directly, can you?
15 A Well, I know we didn't remove the siding (LIE)
16 from your house. So, yes, I can testify to that.
17 We did not remove the siding; that was not part
18 of the contract. And if we didn't remove the
19 siding, then we would not have been removing the
20 sheathing behind it.
21 Q What happens if you removed up to six
22 inches around the windows of siding, foam and all
23 those layers?
24 MS. TABOR: Hypothetically?
25 MR. MCKINNEY: Hypothetically.
130
1 THE WITNESS: I don't see what you are
2 getting at.
3 BY MR. MCKINNEY:
4 Q In the installation of the new windows,
5 if all the barriers you are talking about was
6 removed, what would have to be done?
7 A Nothing in particular, just build it
8 back out so the wall's level.
9 Q What would you build it back out with?
10 A Styrofoam, the old siding, whatever
11 fits.
12 Q Would you say that if all of that was
13 cut out when the windows were installed -- if you
14 want to see what I am talking about, you can go
15 to page 25 of the pictures.
16 MS. TABOR: If you want to talk about
17 page 25, you need to tell him page 25.
18 MR. MCKINNEY: I believe you all saw
19 this with your own two eyes, page 22 of the
20 pictures --
21 MS. TABOR: Do you have a a question in
22 there, sir?
23 BY MR. MCKINNEY:
24 Q Page 25. This is what the windows
25 looked like when the old windows were cut out,
131
1 and the new windows were put in.
2 MS. TABOR: Do you have a question
3 there?
4 BY MR. MCKINNEY:
5 Q What was done to repair all that damage,
6 to put all those barriers back in there to
7 prevent water from getting down in there?
8 MS. TABOR: I will object to that to the
9 extent it calls for facts not in evidence.
10 You have not had this witness identify to his
11 recollection what is depicted on page 25.
12 BY MR. MCKINNEY:
13 Q What I am asking him is, if the windows
14 were cut out so that exposed areas like that --
15 MS. TABOR: Like what?
16 MR. MCKINNEY: Like on page 25 of
17 Exhibit 27.
18 MS. TABOR: You can answer, if you can.
19 THE WITNESS: I don't understand what
20 his question is.
21 BY MR. MCKINNEY:
22 Q You went into a house, or on the outside
23 of the house, and cut the windows out, the old
24 windows out, using a circular saw, four to six
25 inches beyond the jamb of the windows, exposing
132
1 the wall envelope of the house to the weather.
2 What do you do in a situation like that
3 to make it waterproof?
4 A First off, I am not sure what you are
5 talking about, cutting a six-inch diameter around
6 these windows.
7 If I recall, you had metal windows that
8 had a nailing flange that was behind the window.
9 Typically those nailing flanges are not more than
10 two inches. So you pull out the old window and (LIE)
11 the new one fits right back in its place, and you
12 just run the siding back up to the window.
13 Q Let's turn to page 22, the pictures.
14 This is a picture of the slider, which I think
15 you saw.
16 MS. TABOR: Which picture?
17 MR. MCKINNEY: The top four are the same
18 picture.
19 MS. TABOR: You are representing to the
20 witness that the top four pictures depicted
21 on page 22 are the sliding window in the
22 kitchen?
23 MR. MCKINNEY: That's correct.
24 BY MR. MCKINNEY:
25 Q Does it look like the water can get into
133
1 the wall envelope of the house?
2 A Well, the top pictures appear to show
3 metal flashing that is abutting up to the
4 window. Given the circumstances of what we were
5 dealing with here, that is about the best you can
6 do. Caulk that and that is sufficient. That is (LIE)
7 all you can do in this situation.
8 The pictures below that, I'm not sure
9 what they represent. At one point it looked like
10 you or your wife or someone had been pulling on
11 the siding underneath the window and here again
12 molested it and pulled it away from the side of
13 house, and that seems to be what I remember
14 seeing on my inspection.
15 Q Would you agree that the windows were
16 installed back to the frame and not to the
17 envelope of the house?
18 A The windows are designed to be installed
19 to the 2 by 4 framing of the house, and that's
20 how they were installed.
21 Q A sunken in look, if you will?
22 A Unless you remove the siding from the
23 house, you are adding two layers of siding to an
24 existing structure, of course you will be
25 building the wall out.
134
1 Q The window could not have been installed
2 out to the envelope of the house?
3 A Absolutely not. (LIE)
4 Q Did you explain all this to defendant?
5 A Everything was explained to the
6 defendant.
7 Q That the windows were going to be sunken
8 in like that?
9 A That the windows were exactly where the
10 old windows were.
11 Q That is true that you had the option to
12 recommend windows that would've been out to the
13 envelope of the house; is that true?
14 A I had the option to -- you need to
15 clarify.
16 MS. TABOR: Read the question back,
17 please.
18 (Question read back.)
19 THE WITNESS: That I had the option? Is
20 that what I heard?
21 BY MR. MCKINNEY:
22 Q That's what you heard.
23 A You know, I suppose, the options are
24 limitless. There are a hundred things that could
25 have been done to this house. For purposes of
135
1 our conversation, for purposes of our contract,
2 we were taking out your old metal windows,
3 putting in the new vinyl windows here, just like
4 the contract says.
5 Q But what I did hear you say under
6 testimony is that you created a situation where
7 you had to use these break metal pieces as
8 flashings, and that is the best you could do.
9 I don't understand that. It seems to
10 me, since you had the option of choosing or
11 offering as a salesman a particular window, why
12 in the world choose a window that was going to
13 cause you problems in the future -- that would be
14 hard to flash?
15 MS. TABOR: I will object to the form of
16 the question -- if it was a question.
17 BY MR. MCKINNEY:
18 Q Why did you recommend these style
19 windows when this problem was facing you?
20 A These type of windows are installed in
21 your type of home every day of the week. It has
22 been done thousands of times. There is nothing
23 unique about your situation. It isn't my job to
24 show you what to do to your house. This is what
25 I offered, you accepted.
136
1 Q Did you cause yourself more trouble by
2 recommending these windows?
3 A The only way I cause myself trouble is
4 by doing business with a person like you.
5 Otherwise, like I just testified, this is done
6 every day of the week on homes like yours, same
7 type of replacement windows used, and there are
8 no problems doing it.
9 Q Page 22, top windows. Is it your
10 estimation that that break metal piece is going
11 to prevent water from entering?
12 A It's my testimony that all the work that (LIE)
13 was done to those windows was the best you could
14 do under the circumstances with what we had to
15 work with. And it is exactly what we contracted
16 to do.
17 Q Page 23, these are pictures of the
18 corners of some of the windows with caulk. So
19 you would agree that you caulked each one of the
20 windows in that fashion?
21 A The windows need to be caulked after
22 they are installed in certain areas to do the
23 best you can to prevent water infiltration.
24 Whether these pictures represent work we did, I
25 have no idea.
137
1 Here again, these pictures seem to be
2 dated two years after the work was done. So what
3 has happened in those two years, I can't testify
4 to. I know after my guys got done with them, (LIE)
5 they all looked good to me.
6 Q Let's move on. Is it your contention
7 that everything is installed to industry
8 standards or manufacturer specifications?
9 MS. TABOR: Object to the form of the
10 question.
11 BY MR. MCKINNEY:
12 Q Is it your contention that fanfold, the
13 quarter inch fanfold foam that was purchased and
14 placed on defendant's residence, that was
15 installed in accordance with the manufacturer's
16 specifications?
17 A Yes, to the best of my knowledge, it
18 was.
19 Q Let's look at Exhibit 11.
20 Did plaintiff use GreenGuard fanfold
21 siding on defendant's residence?
22 A I believe that is the case.
23 Q And the documents you are looking at,
24 does that cover the installation of that fanfold?
25 A What is your question?
138
1 Q My question is, does this accurately
2 represent an installation manual for the
3 GreenGuard fanfold used on defendant's
4 residence?
5 A No, this has no application to your
6 residence. This document clearly says that these
7 requirements apply to the following applications:
8 Residential new construction and next, all
9 exterior walls in retrofit construction in which
10 the existing weather resistant barrier located
11 under the old siding has been removed. So no,
12 this does not apply to your house.
13 Q Look at section 2 on E under
14 installation instructions; does it call for
15 taping the seams?
16 A I just told you this document has no
17 relevance to your project.
18 Q I understand that.
19 A This was not a situation where we had
20 new construction. This was a 20-year-old
21 dilapidated house. We did not remove the (LIE)
22 existing siding, nor did we remove the weather
23 barrier underneath it.
24 This is irrelevant.
25 Q Does the contract call for taping of the
139
1 seams?
2 A There is nothing about taping the seams
3 of the GreenGuard fanfolds.
4 Q How about taping any seams?
5 A There is a reference to taping the
6 seams, but that was regarding the plastic house
7 wrap.
8 Q Was that done?
9 A Well, I wasn't there to see it. I am
10 not certain if it was done or not. However, if
11 it wasn't done, I can't see any harm that that
12 would do.
13 If I recall, I think this is something
14 you insisted upon out of ignorance; because when
15 you consider that you already have the old
16 siding, the weather barrier underneath it, and
17 you added another quarter inch fanfold barrier,
18 and then we added house wrap, and then we are
19 adding vinyl on top of that.
20 I think it is kind of silly to suggest
21 that the seams would need to be taped or that it
22 would make any difference at that point.
23 Q You have no testimony whether it was
24 done or not?
25 A I wasn't there to witness it. I wrote
140
1 it down. So I imagine I told the guys to do it. (LIE)
2 If the guys didn't do it, I don't know. If not,
3 they might have thought it was a bad idea.
4 Q Do you have any facts or evidence to say
5 that it was done?
6 MS. TABOR: I want to object to the
7 question; he testified now twice that he
8 wasn't there to see whether it was done or
9 not.
10 MR. MCKINNEY: I realize that, but I am
11 asking if he had facts or evidence other than
12 his own eyeballs that it was done.
13 THE WITNESS: I don't know how else to
14 answer that, other than what I already have.
15 BY MR. MCKINNEY:
16 Q Vinyl siding. Did you tell the
17 defendant the rotten wood would be removed and
18 replaced with wood?
19 A No. (LIE)
20 Q Do you ever tell customers that?
21 A Depends on the circumstances. There
22 could be rotten areas of wood on the house. Some
23 areas are more important than others.
24 A lot of times if fascia boards are
25 completely rotten, then they have to be pulled
141
1 off and replaced, because you are nailing
2 directly into them, and that is what is holding
3 the material to the board.
4 So in those situations, I will usually
5 specify how many linear feet of fascia board will
6 be replaced and with what dimension of lumber and
7 charge accordingly.
8 Other areas, like on your house, the
9 best I recall is that your house was in a
10 dilapidated condition. It looks as though the
11 home had never been painted or stained in 20
12 years. So it was difficult to casually observe
13 how much rotten siding there was on the home.
14 As a general rule, they are attaching
15 the siding material to the studs on the house.
16 So when you have a home such as yours, pretty
17 much all the siding is damaged to some extent.
18 So therefore, if certain areas are just
19 crumbling, then, the installers can fill the void
20 with insulation or whatever they have to do to
21 make sure the area is as wide and flat as
22 possible when they're working in this area.
23 Q So you don't give your employees -- not
24 employees, I'm sorry -- contractors,
25 subcontractors, any instructions as to what to do
142
1 when they come to rotten wood, just do the best
2 you can or what?
3 A They know how to handle it. They're
4 professionals. They know how to handle it. Each
5 situation is different, and they handle it
6 correctly.
7 Q So it is common practice in your
8 industry to use multiple layers of fiber board?
9 A If siding has been removed in an area,
10 then the objective is to fill the void so that
11 someone pressing on it doesn't feel the void. It
12 doesn't serve any structural purpose since it is
13 not being nailed into. It is not supporting the
14 siding, so it is irrelevant.
15 Q Doesn't nailing in the fiber board
16 reduce the wind-load resistance of the siding?
17 A I don't understand your question.
18 Q Doesn't using fiber board reduce the
19 wind-load resistance of the siding? In other
20 words, if you had nothing but fiber board,
21 wouldn't its resistance to wind be reduced?
22 A You are not making sense to me. I don't
23 know what fiber board you are referring to.
24 Q The fanfold, that's what you refer to.
25 A That's not fiber board.
143
1 Q Or fanfold, whatever it's called, what
2 is the technical term for it?
3 A It's foam board insulation.
4 Q Foam board insulation, okay.
5 A And your question is?
6 Q At all areas where you removed rotten
7 wood, wouldn't that reduce the wind-load
8 resistance?
9 A Not necessarily. I suppose if you
10 removed all the siding of a house and all you had
11 was fanfold, that might be an issue. But a spot
12 here and there, no, I can't imagine that would
13 have any effect on the siding, wind load, or
14 anything else.
15 Q Does Royal recommend just nailing siding
16 into the studs only?
17 A As a general rule, the instructions
18 state that you should put a nail into every stud,
19 every 16 inches, however your studs are laid out
20 in the existing structure.
21 Q Let's refer back to Exhibit No. 9, page
22 16. I believe it is the page entitled, Preparing
23 The Walls. Look where it says "Residing" and
24 read what it says.
25 A You want me to read what it says?
144
1 Q Yes, sir.
2 A Residing. Nail down loose boards of
3 existing siding and replace any rotten ones. Do
4 not install vinyl siding over rotting wood.
5 Next scrape off loose caulk and recaulk
6 to protect doors, windows and other areas from
7 moisture penetration.
8 Q Thank you. That is plenty.
9 When you face nail into a siding piece,
10 does that void the warranty?
11 A Void the warranty of maybe the
12 individual piece?
13 Q Right.
14 A Possibly.
15 Q Why is that?
16 A Well, if you don't do it carefully, it
17 can cause the board to warp.
18 Q And that is due to what, or why is that
19 true?
20 A Because vinyl siding moves on the wall.
21 Q How does it move?
22 A It expands and contracts.
23 Q So when it's firmly nailed down, it
24 can't do that; is that correct?
25 A That is true, but certain areas on the
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1 house have a less expansion and contraction and
2 also depends on the length and size of the board
3 being nailed.
4 Occasionally face nailing will help
5 secure the very top board on a wall where you
6 have to remove the nailing strip.
7 It has been one of the most effective
8 ways to secure boards in that area that I have
9 found; and as long as it is done carefully, it
10 works just fine.
11 Q Turn to page 2 of Exhibit 27.
12 What do you think you are looking at?
13 A Mostly some dirt and rocks.
14 Q Did those rocks come from the old deck? (LIE)
15 A I have no idea where they came from.
16 Q Did your workers dispose of all the deck
17 including the footers that they were sitting on?
18 A Repeat your question.
19 Q Did your worker dispose of all the deck
20 including the concrete that the poles were
21 sitting in of the old deck? Did he dispose of
22 the entire old deck?
23 A We disposed of everything we were (LIE)
24 required to. My understanding is, there was some
25 trade off too, because you had somewhat of a
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1 health hazard in your background. You had a
2 large above-ground pool with black water, and I
3 know my guys dissembled that on your behalf and
4 removed that.
5 Q Did they tell you that I paid them and
6 contracted with them outside of your contract?
7 A All I know is there was a trade off (LIE)
8 between the cleanup versus removing that pool.
9 So my testimony is that everything that was
10 supposed to be removed from your property was.
11 Q Okay. Now, you sent me piles of
12 responses to interrogatories and requests for
13 admissions. Are those all verified? Do you
14 stand by all of your answers that were given in
15 those interrogatories?
16 MS. TABOR: To the extent you are asking (LIE)
17 him whether they have all been verified, I
18 don't know, I know one that has not been
19 verified. We don't need to verify those
20 until they are introduced as evidence, and
21 they will be verified at the appropriate
22 time.
23 If they are used as evidence in this
24 case, they will be verified.
25 MR. MCKINNEY: Okay.
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1 MS. TABOR: And besides that, request
2 for admissions are never verified, the only
3 discovery responses ever verified are the
4 interrogatories.
5 MR. MCKINNEY: That's all I have.
6 EXAMINATION
7 BY MS. TABOR:
8 Q Mr. Tabor, earlier in your testimony, I
9 believe you used the term "employees" to
10 reference people who did work on behalf of the
11 plaintiff with regard to the defendant's home.
12 Does Insulated Wall Systems in fact
13 employ anyone who actually did construction work
14 on this home?
15 A No. I just misspoke. They are all (LIE)
16 subcontractors. No employees.
17 Q With regard to your testimony concerning
18 problems concerning the slab, I was a little bit
19 confused.
20 Could you basically restate in your own
21 words what your position is with regard to any
22 problem that now exists concerning the slab that
23 was constructed by the plaintiff on the back of
24 defendant's home?
25 A Well, I think primarily what the (LIE)
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1 defendant complains of is caused by his own
2 actions, interfering with the construction of the
3 slab by attempting to install a drain in the
4 center of the slab and cutting a hole in the
5 supports that were used to form the frame for the
6 concrete.
7 Q Is your testimony that, subject to that
8 interference and without that interference, the
9 deck as contracted for and as you had instructed
10 subcontractor to do would have been in accordance
11 with what was contracted for?
12 A That's correct. (LIE)
13 Q With regard to the deck, there was some
14 discussion with Mr. McKinney concerning your
15 offer to install an additional support on the
16 right side of the deck where I believe there was
17 some testimony concerning some rotten wood on the
18 house itself where it should be attached.
19 A Yes.
20 Q Could you just explain in a little bit
21 more detail why that additional support, which
22 was not originally contracted for, was not
23 installed?
24 A Because Mr. McKinney refused to have a (LIE)
25 post installed in that location. He claimed that
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1 he needed it for storage space, and therefore, we
2 were prohibited from doing so.
3 Q With regard to the deck itself, how did
4 the design of the deck come about?
5 A The defendant stated he wanted a deck to
6 a certain dimension and the same location where
7 the old deck stood, so it was primarily the
8 defendant to --
9 Q Did you ever sketch out any sort of
10 graphic and give it to your subcontractors to
11 construct the deck?
12 A No, just a certain dimension with a
13 simple staircase down to the backyard and that's
14 it.
15 Q All right. With regard to the windows
16 and the siding, I believe you used the phrase "It
17 was the best we could do or the best I could do"
18 with regard to the installation.
19 Were there other types of materials or
20 systems that could have been used on the
21 defendant's house that would have been of higher
22 quality?
23 A Of course. Certainly. There is a
24 multitude of products on the market these days,
25 and back when this was done, that are more
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1 expensive products; but that is clearly what the
2 defendant had budgeted for this project and what
3 we agreed to do it for.
4 Q In an optimal world, where you could go
5 out to the site and repair the home as you saw
6 fit with unlimited means, what would be the basic
7 components that you would have used to work on
8 his home?
9 A Well, if money weren't an issue,
10 considering, like I said, the house was in
11 dilapidated condition, I would have removed all
12 the old siding, and the sheathing and redone
13 that, and then used a plywood siding with vinyl
14 on top of that and a new construction window.
15 Q How long have you been in business?
16 A Since 1989, almost 18 years.
17 Q How many vinyl siding jobs would you say
18 you have done in that amount of time?
19 A Oh, I would estimate somewhere in the
20 neighborhood of 1,500 to 2,000.
21 Q How many times have you ended up in
22 litigation?
23 A Twice. (LIE)
24 MS. TABOR: That's all I have.
25 MR. MCKINNEY: Nothing else.
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1 E R R A T A S H E E T
2 Pursuant to Rule 30 (7)(e) of the
3 Federal Rules of Civil Procedure and/or Georgia
4 Code Annotated 81A-130(B)(6)(e), any changes in
5 form or substance which you desire to make to
6 your deposition testimony shall be entered upon
7 the deposition with a statement of the reasons
8 given for making them.
9 To assist you in making any such
10 corrections, please use the form below. If
11 supplemental or additional pages are necessary,
12 please furnish same and attach them to this
13 errata sheet.
14 I, the undersigned, JOHN TABOR, do
15 hereby certify that I have read the foregoing
16 deposition and that to the best of my knowledge
17 said deposition is true and accurate (with the
18 exception of the following corrections listed
19 below.)
20 Page_______Line_______Should read:____________________
21 Reason for change:____________________________________
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21 Signature _______________________
22 Sworn to and Subscribed before me_____________________
23 Notary Public: This______day of _________, 2007.
24 My Commission Expires:
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1 DISCLOSURE STATEMENT
2 Pursuant to the Official Code of Georgia
Annotated 9-11-28, I make the following
3 disclosure:
4 Rajani Reporting, Inc. was hired by the party
taking this deposition to provide court reporting
5 services for this deposition.
6 Financial arrangements between Rajani
Reporting, Inc. and the parties to the deposition
7 are the usual and customary fees charged by me
for the original and one copy or copies to the
8 other parties and any direct expenses for
production of the same. A financial discount
9 will not be given to any party to this
litigation.
10
Further, Rajani Reporting, Inc. has not
11 entered into any contractual arrangement,
financial or otherwise, with any person or entity
12 in this matter and thereby I am taking this
deposition in full compliance with O.C.G.A.
13 15-14-37.
14 I hereby certify that the above disclosure
statement is true and correct and that copies
15 have been furnished to all counsel and/or
parties.
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18 _______________________________________________
Meredith B. Cohen, Certified Court Reporter
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1 C E R T I F I C A T E
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3 STATE OF GEORGIA )
4 COUNTY OF GWINNETT )
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6 I hereby certify that the foregoing
7 transcript is a true, correct, and complete
8 record of the said proceedings; that I am not a
9 relative, attorney, or counsel of any of the
10 parties; am not a relative of the attorney or
11 counsel for any of the parties, nor am I
12 financially interested in the action.
13 This, the 23rd day of February, 2007.
14
15 ____________________________
Meredith B. Cohen
16 Certified Court Reporter
Certificate No. B-2093
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