Someone tweeked important parts of this testimony. Someone edited what was said, both by Jana Tabor and Ron McKinney. Is that just another acceptable part of this stupid game too? I guess we will just have to wait and see. I will be highlighting all the differences.
1
IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
INSULATED WALL SYSTEMS, )
INC., )
)
Plaintiff, )
) CIVIL ACTION FILE
vs. )
) NO. 05A06942-9
RON MCKINNEY, )
)
Defendant. )
* * *
DEPOSITIONOF RON MCKINNEY
Thursday, 10:20 a.m.
July 27, 2006
Location: Casey & Associates
4175 Clairmont Road (next door to 4169 where Hilton Lived)
Chamblee, Georgia 30341
Reported by Jackie L. Gunther, CCR B906
* * *
GUNTHER REPORTING
CERTIFIED COURT REPORTING
4010 ROSWELL ROAD #8
POST OFFICE BOX 240275
ATLANTA, GEORGIA 30342
(404) 847-9217
2
1 I N D E X T O E X A M I N A T I O N
2 EXAMINATION PAGE
3 Examination by Ms. Tabor . . . . . . . . . . . 4
4 * * *
5 I N D E X T O E X H I B I T S
6 EXHIBITS (DESCRIPTION) PAGE
7 P-1 (Insulated Wall Systems Business Card) 21
8 P-2 (Insulated Wall Systems Contract) 25
9 P-3 (12/20/04 Letter to Mr. Tabor) 40
10 P-4 (1/3/05 Letter to Mr. Tabor) 52
11 P-5 (1/14/05 Letter to Mr. Tabor) 53
12 P-6 (Copy of Business Cards) 68
13 P-7 (9/12/05 E-Mail to Atlanta Home Technologies) 69
14 P-8 (9/12/05 E-Mail to Border Magic) 70
15 P-9 (9/12/05 E-Mail to TCS Construction) 71
16 P-10 (9/12/05 E-Mail to HardScapes) 72
17 P-11 (9/12/05 E-Mail to SD&B Services) 72
18 P-12 (9/12/05 E-Mail to Sequoyah Vinyl Creations) 73
19 P-13 (9/12/05 E-Mail to Weldon Home Exteriors) 82
20 P-14 (Quote from Sears) 84
21 P-15 (Quote from Renovation Premium Vinyl Windows)85
22 P-16 (Proposal from RJD Exterior Designers) 85
23 P-17 (Office of Consumer Affairs Letter) 92
24 P-18 (Better Business Complaint) 93
25 P-19 (Gooch Consultants Building Report) 96
GUNTHER REPORTING
3
1 (In compliance with OCGA 9-11-28(d) and 15-14-37
(a) and (b), the court reporter disclosed that she
2 was there on behalf of Gunther Reporting. The court
reporter further disclosed that she was retained by
3 Jana B. Tabor, Esq., to take down the proceedings,
for which the standard and customary rates will be
4 charged.)
5 * * *
6 APPEARANCES OF COUNSEL
7 ON BEHALF OF THE PLAINTIFF:
8 JANA B. TABOR, ESQ.
450 Arborshade Trace
9 Duluth, Georgia 30097
(770) 814-8134
10
Also Present: John Tabor (in part)
(JOHN TABOR LEFT THE ROOM AT THE BEINNING SO HE COULD THREATEN TO HAVE ROBYN ARRESTED IF SHE DID NOT GET OUT OF THE HOUSE IMMEDIATELY. BARBARA SPEED WITNESSED THIS. HE THEN STOOD IN THE WAY AND WOULD NOT LET HER GET PASSED HIM TO SPEAK TO RON MCKINNEY)
11
12 ON BEHALF OF THE DEFENDANT:
13 Pro Se
14 * * *
15 (It was stipulated and agreed by and between
counsel for the respective parties and the witness
16 that the signature of the witness to the deposition
be reserved.)
17 * * *
18 MS. TABOR: This will be the deposition of
19 Ron McKinney. It's taken pursuant to notice.
20 It's taken for purposes of discovery and all
21 other purposes as provided by the Georgia Civil
22 Practice Act. Let the record reflect that at
23 this time I am reserving all objections with the
24 exception of the form of the question or the
25 responsiveness of the answer until time of trial
GUNTHER REPORTING
4
1 or other first use of the deposition. Let the
2 record also reflect that Mr. McKinney is acting
3 as his own attorney and he is pro se in this
4 proceeding.
5 If you will swear the witness, please.
6 MR. MCKINNEY: Can I read a statement? (WAS SAID AFTER EXAMINATION STARTED. MS. TABOR REPEATEDLY SAID NO WHEN RON TRIED TO STATE FOR THE RECORD HIS OBJECTIONS.)
7 MS. TABOR: No.
8 RON MCKINNEY,
9 being first duly sworn, was deposed and
10 testified as follows:
11 EXAMINATION
12 BY MS. TABOR:
13 Q Let me ask you a question: have you ever
14 given a deposition before?
15 A No.
16 Q All right. I just want to tell you a
17 couple things about how these things work. First of
18 all, as you can tell, the court reporter is taking
19 down every word that we say. Therefore, it's very
20 important, first of all, not to talk over one
21 another. So if you would, let me finish my question
22 before you respond; and I will try to do the same for
23 you. When you are making a response, I'll try not to
24 talk over you.
25 If there is anything that I ask you and you
GUNTHER REPORTING
5
1 are uncertain about what I'm asking you or I'm not
2 making myself clear, and that can happen, if you
3 would, just let me know; and I'll try my best to
4 rephrase it in a way that you are comfortable with
5 the question. Okay?
6 A Fair enough.
7 Q All right. Another housekeeping rule is
8 that it's difficult for her to take down uh-huh and
9 unh-unh. So if you could try to remember, and
10 everybody forgets, if your answer is going to be yes
11 or no, to use a word like that instead of uh-huh or
12 unh-unh, which we all do when we are having normal
13 conversation. Okay?
14 A Uh-huh.
15 Q Yes?
16 A Yes.
17 Q Will you state your full name for the
18 record, please?
19 A Ronald Wayne McKinney.
20 Q And, Mr. McKinney, tell me your present
21 address.
22 A 4083 Red, as in color, Laurel Way. That's
23 in Snellville, Georgia 30039.
24 Q And how long have you lived at that
25 address?
GUNTHER REPORTING
6
1 A Since 1987.
2 Q Okay. Who lives there with you at the
3 present time?
4 A My wife and mother.
5 Q What is your mother's name?
6 A Lois, L-o-i-s, L. McKinney.
7 Q And what is your wife's name?
8 A Robyn, R-o-b-y-n, McKinney.
9 Q And these individuals, did they live there
10 at the time of the work that was performed by the
11 Plaintiff which is the subject matter of this case?
12 A Yes, ma'am.
13 Q Okay. Did anybody else live there at that
14 time?
15 A No, ma'am.
16 Q Okay. And you said you've lived there
17 since 1987?
18 A That's correct.
19 Q Are you originally from the Atlanta area?
20 A No.
21 Q Where are you originally from?
22 A Everywhere. My father was in the air
23 force.
24 Q Okay. All right. How long have you lived
25 in the Atlanta area?
GUNTHER REPORTING
7
1 A Since 1981.
2 Q Okay. All right. And do you have any
3 children?
4 A I have -- I have three.
5 Q Do any of them live in Gwinnett County?
6 A I had three. I'll put it that way.
7 Q All right. Do any of your children live in
8 Gwinnett County?
9 A No.
10 Q Do you have any relatives other than your
11 mother and your wife who live in Gwinnett County?
12 A No.
13 Q I asked you earlier had you ever given a
14 deposition before, and you said no; is that correct?
15 A That's correct.
16 Q Have you ever been involved in any other
17 lawsuits before?
18 A No.
19 Q All right. I believe somewhere I saw that
20 you are a retired electrical engineer; is that
21 correct?
22 A That's correct.
23 Q All right. Can you tell me a little bit
24 about your educational background, how far you went
25 in school and what degrees you've --
GUNTHER REPORTING
8
1 A That would be a double E from Auburn
2 University.
3 Q And when did you obtain that degree?
4 A 1978.
5 Q Do you have any other degrees?
6 A No.
7 Q Are you retired at this time?
8 A I'm a full-time caregiver for my mother.
9 Q So you do not work outside the home?
10 A No, ma'am.
11 Q When is the last time that you worked
12 outside the home?
13 A 1994.
14 Q And your wife, did she work outside the
15 home either?
16 A No.
17 Q Do you have any business that you conduct
18 out of your home?
19 A No.
20 Q When you say full-time caregiver, that's
21 for your mother?
22 A That's correct.
23 Q All right. Tell me a little about what
24 kind of work you did historically as an electrical
25 engineer. What kind of work did you do?
GUNTHER REPORTING
9
1 A I'm a hardware designer.
2 Q Just explain to me a little bit about what
3 that is.
4 A Everything that's inside that little box
5 right there.
6 Q You are indicating the computer?
7 A That's correct.
8 Q Did you work on computers? Is that the
9 type of machinery you worked on?
10 A Yes, ma'am.
11 Q What is the last company that you worked
12 for?
13 A A company called Tel-Data Computer Systems
14 here in Atlanta.
15 Q What was your position there?
16 A Chief engineer.
17 Q And how long did you work there?
18 A Eight years.
19 Q All right. Prior to the work that was
20 performed on the home by the Plaintiff, have you ever
21 had any opportunity in the past to be involved in any
22 sort of construction or rehab on your home?
23 A No.
24 Q Have you ever had any opportunity to be
25 involved in any --
GUNTHER REPORTING
10
1 A First of all, it's not my home.
2 Q Okay. All right. Well, why don't you tell
3 me --
4 A It's my residence.
5 Q All right. What's the difference?
6 A Well, one, somebody owns it; and the other
7 one, they don't.
8 Q Okay. Do you own your residence?
9 A No.
10 Q All right. Who is the owner of that
11 residence?
12 A It on public record.
13 Q Okay. Well, who is the owner?
14 A It's 3-F Foundation.
15 Q 3-F Foundation, tell me what that is.
16 A You'll have to check with them on that.
17 Q You don't know who owns your home?
18 A As far as inquiring into their business and
19 who they are and all that stuff, I'm not authorized
20 to speak about that. You'll have to talk to them.
21 Q Did you ever at any time hold the deed to
22 your home?
23 A No.
24 Q All right. And so that deed has been held
25 by 3-F Corporation since 1987?
GUNTHER REPORTING
11
1 A It's 1997 I believe. It's public record.
2 Whatever the record says. I can't remember.
3 Q All right. But you said you've lived there
4 since 1987?
5 A That's right.
6 Q And who owned the home from 1987 to 1997?
7 A I'm not real sure.
8 Q You are not sure who owns your home?
9 A I mean it's not my business. Okay.
10 Q It's not your business to know who owns the
11 residence you live in?
12 A What can I tell you? I know one thing. I
13 know one thing, I don't own it.
14 Q You understand you are under oath?
15 A I understand I'm under oath, but I also
16 understand that I don't have to answer questions that
17 have to do with other people's business.
18 Q I'm not asking about other people's
19 business.
20 A Well, actually you are.
21 Q I made a simple statement that it was your
22 home. You have injected into the record the fact
23 that it's your residence that belongs to someone
24 else. You brought it up, and now I'm only trying to
25 understand why you are trying to make that
GUNTHER REPORTING
12
1 distinction.
2 A Well, it's not something that I own. It's
3 my residence. That's all I need to say about that.
4 Q All right. How did you first become aware
5 of a company called Insulated Wall Systems?
6 A A postcard.
7 Q And where did you get the postcard?
8 A Through the mail.
9 Q When you got the postcard what, if anything
10 did you do?
11 A If you'll notice on the copy, there's a day
12 and a time, Thursday at 6:30 I believe it is. Is
13 that what it says?
14 Q Okay.
15 A And I called the number that was on there.
16 Q And so I assume you made an appointment?
17 A That's correct. I think I talked to a Mack
18 Hilton originally, and he said Mr. Tabor here would
19 call me back.
20 Q Okay. At the time you made that call after
21 getting that postcard, tell me what kind of work you
22 were looking to have done.
23 A Siding, windows, a deck, and a slab.
24 Q Prior to making that phone call to
25 Insulated Wall Systems, had you talked to anybody
GUNTHER REPORTING
13
1 else about doing that type of work on your home?
2 A Yes, ma'am.
3 Q All right. Had anybody come out and given
4 you any estimates?
5 A Yes, ma'am.
6 Q Okay. All right. Do you remember the
7 names of any of those folks who had done that?
8 A The individuals?
9 Q Or the companies.
10 A Home Depot.
11 Q Okay.
12 A Sears, RJD. It's called -- well, I guess
13 it's RJD Siding I guess. It's out there in Conyers.
14 Q All right.
15 A And Mr. Tabor.
16 Q Okay. And the other three companies that
17 you named, was that relatively in the same time
18 period?
19 A Yes, ma'am. It was within four or five
20 days.
21 Q All right. And when was this when you got
22 this? I should ask you when you got this postcard.
23 Do you remember what year or what time of year it
24 was?
25 A July 2004. The contract was signed
GUNTHER REPORTING
14
1 August 23rd. It was July -- I think the end of July,
2 somewhere around that.
3 Q So the summertime 2004?
4 A Yes, ma'am.
5 Q All right, sir. After somebody came out on
6 behalf of Insulated Wall Systems, did you have
7 anybody else come out to give you an estimate at that
8 time?
9 A I don't understand the question.
10 Q Okay. You told me you had three companies
11 that had already visited you to give you an estimate
12 about some work, and then you called Insulated Wall
13 Systems and somebody came out. I'm just asking:
14 after an Insulated Wall Systems representative came
15 out, did you have anybody else come out?
16 A No, he was the last one, if that's what you
17 are asking.
18 Q Yes, that's what I'm asking.
19 All right. So was it Mr. Tabor who came to
20 see you?
21 A Yes, ma'am.
22 Q All right. And that meeting was in your
23 home?
24 A Yes, ma'am.
25 Q Your residence I should say. Okay.
GUNTHER REPORTING
15
1 A I mean home doesn't imply ownership.
2 Q All right. Who was present when Mr. Tabor
3 came to see you that first time?
4 A Me and Robyn and Mr. Tabor and my mother. (DOOR SOUND, JOHN TABOR ENTERED OR LEFT, HARASSING ROBYN AGAIN)
5 Q Your mom was there too?
6 A She wasn't at the table listening. She's
7 94-years-old. She requires constant care; and that's
8 part of what I object to here, is having to be away
9 from her during this time. I'm shocked that you
10 would not understand that, but apparently civil
11 procedure trumps civil behavior.
12 Q I move to strike the last colloquy from the
13 record. It's nonresponsive.
14 A I can reserve the right to read this
15 transcript; is that correct?
16 Q Okay. I'm glad you brought that up.
17 Mr. McKinney, you do, as any witness. Let me go
18 ahead and tell you I cannot advise you legally, but I
19 can tell you this: that as you can see, the court
20 reporter takes down every word that is said here.
21 A That's correct.
22 Q Okay. You have the opportunity once she
23 transcribes that into written form to go ahead and
24 what we call read the document and sign it.
25 A I also can make changes on it?
GUNTHER REPORTING
16
1 Q You cannot change the testimony, but you (BUT SOMEONE CAN AND DID)
2 can look at the transcript to assure that she has not
3 made an error in the way that it was transcribed.
4 A Okay. My understanding is that I can
5 clarify the answers as well.
6 Q If you feel there needs to be a
7 clarification, you have an addenda; and you can do
8 that.
9 A Okay.
10 Q Okay. And we'll just go ahead and take
11 care of that. I'm assuming at this time you're going
12 to reserve the right to read and sign. Is that what
13 you are saying?
14 A Yes, ma'am. In fact, I reserve all my
15 rights. I don't waive any objections or anything
16 else.
17 Q All right.
18 A And although I'm not even sure which ones
19 I'm not supposed to waive, but I'll make a blanket
20 waiver of all objections.
21 Q All right.
22 A I will make a -- I'll take that back. I
23 will not waive any objections whatsoever.
24 Q Okay. At the first meeting you had with
25 Mr. Tabor, just tell me what you basically remember
GUNTHER REPORTING
17
1 about it, if you remember anything.
2 A Well, let me set the stage I guess is
3 probably the best way. Robyn, my wife, has worked
4 for Home Depot for five years. Not now, but she had.
5 She was a kitchen designer. She designs kitchens for
6 people, high-end kitchens. She works with
7 installers. She knows the business. She knows the
8 work, that kind of work. She was in charge of the
9 work, and she was also in charge of deciding what she
10 wanted for the house.
11 My role in the work is kind of a step-back
12 role. In fact, I read an article the other day that
13 says 60 percent of all married couples, the wife
14 handles the work.
15 Q Okay.
16 A So it was most appropriate for her to
17 handle it so she gets what she wants. It was also
18 most appropriate for her to deal with the work,
19 because she was experienced in dealing with
20 contractors and dealing with installers and that sort
21 of thing. So I let her lead the show. Basically it
22 started with, you know, the salesman. We told him we (ARE GENERALLY SIMILAR)
23 wanted siding and windows. I don't think the slab
24 was mentioned at that point in time, but we did
25 mention the deck.
GUNTHER REPORTING
18
1 Q Okay.
2 A And he told us, Mr. Tabor, presented us
3 with a brochure of a Series 60 window. Argon gas was
4 the standard. You know, I can't remember all the
5 little details. Argon gas, low heat. We wanted the
6 energy star rating, replacement windows, new siding.
7 He went through the different areas of siding. Let's
8 see what else.
9 Oh, yeah. We went outside. We went
10 through the whole deck and how it was going to be,
11 you know, where she wanted it, the size and the
12 stairs, you know, that sort of thing; and that was
13 pretty much it for that first meeting.
14 Q So you think that they didn't really talk
15 about the slab?
16 A No, ma'am.
17 Q Okay.
18 A The slab was brought up on the second
19 meeting.
20 Q Okay. Let me ask you this just so --
21 obviously I wasn't there. You had a deck on your
22 house already; is that correct?
23 A That's correct.
24 Q All right. It just needed to be replaced?
25 A That's correct. Well, it was more than
GUNTHER REPORTING
19
1 that that was wanted.
2 Q I know. Just that's, that's what I'm
3 asking. Let me ask you this: when you got the home
4 in 1987, was it new?
5 A No.
6 Q Was that deck that you were looking to
7 replace, was that on the home in 1987?
8 A Yes, ma'am.
9 Q All right. Was there any slab, patio-type
10 thing out there already?
11 A No, ma'am.
12 Q All right. You said at the first meeting
13 you had a discussion about wanting argon gas and
14 energy ratings and all. Had you done any sort of
15 research, we'll call it, into the type of replacement
16 windows you wanted prior?
17 A That's when we started to research, maybe
18 about a week prior. We had looked at the windows
19 that the other people had brought out. I went on
20 line and looked on argon gas. I looked at low heat (LOW-E)
21 and energy star rating and how that would improve the
22 dogs barking. That was the big thing. The dogs
23 barking, soundproofing, energy savings, you know, all
24 these things.
25 Q All right. At the first meeting you didn't
GUNTHER REPORTING
20
1 reach any agreement about doing the work, did you?
2 A No, ma'am.
3 Q All right. At the first meeting was there
4 any discussion on the part of Mr. Tabor as to cost?
5 A I believe there was, if you'll flip the
6 card right there.
7 Q Okay. Let me go ahead -- I've got several
8 documents I would like to go through here today; and
9 just because you have never done this, let me tell
10 you how this is going to work. I'm going to have a
11 copy and you're going to have a copy. I'm going to
12 hand a copy to the court reporter and have her mark
13 it as an exhibit, and then you will have an
14 opportunity to look at the documents as much as you
15 want and tell me when you are ready, and then we'll
16 talk about --
17 A Do you have the originals? I mean I don't
18 know if these have been altered or not.
19 Q Well, let's see. No, we don't have the
20 originals, because as you can tell --
21 A I've got the originals on that. Okay.
22 Q Okay. All right. And if at any time you
23 see something that you think something is different
24 about it, please let me know; but I believe most of
25 these documents came from you. All right. Let me go
GUNTHER REPORTING
21
1 ahead and have her mark what I'm going to call
2 Plaintiff's Exhibit No. 1.
3 (Whereupon the document was
marked for identification as
4 Plaintiff's Exhibit No. 1.)
5 (Mr. Tabor is no longer present
at the deposition.)
(JOHN TABOR WAS THERE ALL DAY GOING IN AND OUT OF THE DEPOSITION ROOM HARASSING ROBYN MCKINNEY EACH TIME, THE DOOR MADE A SOUND ON THE RECORDING EACH TIME HE WENT IN AND OUT)
6
7 BY MS. TABOR:
8 Q All right. I'm going to give you an
9 opportunity to look at that. When you're ready, tell
10 me and we'll talk about it.
11 A Okay. Let me say this right up front, that
12 this has been a combined effort between me and my
13 wife.
14 Q Okay.
15 A Okay. And there are certain aspects she
16 handled more, more of the pricing, more of the work.
17 Things that I directly testify to is the only things
18 that I want to testify to.
19 Q Well, exactly. That's what we want to do.
20 A However, I will testify to things that she
21 told me, not necessarily what somebody else says. I
22 understand they call that hearsay or something like
23 that.
24 Q Well, let me just tell you --
25 A But I can testify to what she has said too.
GUNTHER REPORTING
22
1 Q In this proceeding you can testify to what
2 you know, whatever source you know it from, who told
3 you, whatever; but you don't have to worry about the
4 rules of this concerning hearsay. All right?
5 A Okay.
6 Q I'm looking for what you know and --
7 A That's fair.
8 Q -- the emphasis is on you; and to the
9 extent you feel that there is something about this
10 project that your wife knows about, please let me
11 know so that when we have an opportunity to talk to
12 her, we'll make sure we go over those areas with her.
13 A There was another area, and let me just
14 state this.
15 Q Okay.
16 A The time frame between June of last year
17 and November/December time frame where I was out of
18 it, literally.
19 Q Okay. Well, when we get to that point,
20 we're going to try to go chronologically. You can
21 let me know about that. All right?
22 A Uh-huh (affirmative).
23 Q All right. Now, can you tell us, sir, what
24 is this document that we have now identified for the
25 record as Plaintiff's Exhibit No. 1?
GUNTHER REPORTING
23
1 A This is Mr. Tabor's business card.
2 Q All right. And are there some markings on
3 that card?
4 A Yes, ma'am. I believe it's his writing.
5 Q Okay.
6 A The original thing that we did was the
7 siding, windows, deck, and gutters. Yes, and that's
8 the 14 -- whatever adds up to 14,850. That was the
9 original price.
10 Q All right. Now, let me ask you this, and
11 this is really not a major point; but you told me you
12 didn't talk about the slab the first time. So do you
13 think you guys -- and it talks about a slab on this
14 card. Do you think you got this card in your first
15 meeting or the second meeting?
16 A My recollection is that the 14,850, and
17 this list was done on the first or maybe the second
18 meeting, because I'm pretty sure he didn't give these
19 prices on the first meeting.
20 Q Okay. Well, let me just tell you this.
21 A There were three meetings; and, you know,
22 the problem with memory is that it all rolled
23 together and which occurred on which meeting, and,
24 you know, it's difficult to say. Either way, he
25 wrote the initial items which added up to 14,850.
GUNTHER REPORTING
24
1 Q Okay. Well, that's fine. Let me ask you
2 this.
3 A And then at a later meeting the slab and
4 the 5 x 5 deck was added.
5 Q Okay. Well, let me ask you a question with
6 regard to this exhibit. The numbers that you see
7 beside the individual areas of work, are those the
8 numbers that you understand came to be attached as a
9 value with regard to the sales price to that
10 particular area of work; in other words, the siding
11 was going to be $7,000. The windows were going to be
12 $3900?
13 A Yes, ma'am.
14 Q Okay. All right.
15 A Yeah. We had him specifically break it
16 out.
17 Q Okay. All right. And as far as you are
18 concerned, the numbers that are on the card here are
19 the numbers that add up to 14,850?
20 A Well, no. You need to understand.
21 Q That's 14,850, and then you added the slab?
22 A Right.
23 Q Okay. So we end up with --
24 A The slab and the small deck I believe.
25 Q Okay. That's on the front of the house?
GUNTHER REPORTING
25
1 Is that what that is?
2 A Yes. That's the 5 x 5 deck on the front of
3 the house.
4 Q Okay. All right. So ultimately the
5 price --
6 A That was for my mother.
7 Q -- was 16,000; is that correct?
8 A The original price was $16,850.
9 Q Okay. All right. Well, probably the best
10 thing for right now is to go ahead and mark that as
11 Plaintiff's 2.
12 A Do I give you this back?
13 Q Yeah, if you will. We'll make a pile over
14 here. That goes to the court reporter.
15 (Whereupon the document was
marked for identification as
16 Plaintiff's Exhibit No. 2.)
17 BY MS. TABOR:
18 Q Are you ready?
19 A I'm waiting on you.
20 Q Oh, okay. I'm sorry. All right. Let me
21 ask you what the document you've been handed
22 identified as Plaintiff's Exhibit 2, can you tell me
23 what that document is?
24 A Do you have the original? There is
25 something different about this one. I can tell you
GUNTHER REPORTING
26
1 that right now. Oh. That's it. It didn't copy.
2 Okay. I'm going to hand you this one back and look
3 at this one. Insulated Wall Systems, Incorporated,
4 is gone from it.
5 Q Okay. Other than the fact that the top of
6 the page --
7 A Didn't get copied.
8 Q With regard to the body of the document
9 itself, and maybe what you should do, because I'm not
10 going to put the original one attached to your
11 deposition, can you look at this and see if that's a
12 copy, other than I realize that that has not copied
13 on the top. Is that the same document?
14 A I'm going to object to it, because I would
15 have to study everything; and with that gone, I'm not
16 sure. I mean it appears to me as if it is.
17 Q Okay. It appears to you. All right.
18 A Okay. But I will withhold judgment if it
19 comes back to haunt me.
20 Q All right. So subject to that, what has
21 been identified as Plaintiff's Exhibit 2, can you
22 tell me what that document is?
23 A Excuse me?
24 Q Can you tell me what you've got in front of
25 you there?
GUNTHER REPORTING
27
1 A I believe this is the contract.
2 Q That's the contract between Insulated Wall
3 Systems and you; is that correct?
4 A That's correct.
5 Q Okay. And Plaintiff's Exhibit 2, you
6 signed that document, correct?
7 A That is my signature.
8 Q Is it fair to say that that document
9 outlines all of the work that was performed by the
10 Plaintiff on your residence?
11 A I will answer it this way: it outlines that
12 work which was to be done.
13 Q Okay.
14 A It does not outline the work that was
15 actually done.
16 Q Okay. All right. Let me ask you this: in
17 your initial conversations with Mr. Tabor, was there
18 any discussion about who -- well, strike that.
19 Did Mr. Tabor indicate to you that he
20 generally was not in the business of building decks?
21 A No, ma'am.
22 Q Did he ever tell you he was not in the
23 business of putting in slabs?
24 A No, ma'am.
25 Q All right. Were there any discussions with
GUNTHER REPORTING
28
1 Mr. Tabor in those initial meetings about trying to
2 keep the cost low on those --
3 A No, ma'am.
4 Q All right. Let me finish the question --
5 those two facets of work?
6 A No, ma'am. There was never any discussion
7 like that.
8 Q Okay.
9 A He was free to, and they were all given the
10 freedom, to give me your quote.
11 Q Okay.
12 A No. In fact, there was the opposite.
13 There was a professionalism. I can do this. I've
14 done this for what? 13 years I think at the time.
15 Q Okay. I just want to clarify a point. The
16 other folks that had come out to see prior to that, (I JUST WANT TO CLARIFY)
17 Home Depot and Sears and I think you said RJD, did
18 you have discussions with them about the windows too?
19 Were they looking to put in windows for you?
20 A Yes, ma'am.
21 Q All right. And did Mr. Tabor ever show you
22 a model of the window prior to the work being done?
23 A Yes, ma'am. He initially brought in a
24 Series 60 window.
25 Q Did you have any discussions with him at
GUNTHER REPORTING
29
1 all about the Series 40 window?
2 A That was later on.
3 Q Okay. All right. So let me ask you this:
4 You said you thought you had three meetings with him
5 prior to work starting I guess? I'm trying to
6 understand.
7 A Yeah. The second meeting I think he came
8 back to do some measurements and give us the price.
9 Q Okay.
10 A And that's when we were outside looking at
11 the various things that were to be done, and that's
12 when I brought up the slab.
13 Q Okay. And what, if any, discussion do you
14 recall having with him about the slab?
15 A I told him -- well, we both told him.
16 Robyn and I told him we wanted a slab back here. We
17 wanted it this wide and this far out from the house,
18 and we definitely told him the function.
19 Q What was that function?
20 A A screen porch with a Jacuzzi on it.
21 Q Okay. Fine. The third time he came prior
22 to work, what happened basically at that meeting?
23 A Prior to that he called us and told us, or
24 told Robyn and she came to me and told me, that there
25 had been some change in the window, that the Series
GUNTHER REPORTING
30
1 40 had been upgraded and was replacing the Series 60;
2 and that sounded like bait and switch. I didn't
3 know, but that's what it sounded like; and then it
4 was, Well, what do we do with this?
5 So what we decided was for him to bring a
6 window. Let us look at it. So he brought that
7 window. Sure enough, some of the features of the
8 Series 60 it had; in other words, I think one of them
9 was the handle, you know, that you lift up on the
10 window. On the Series 60 it was down below. On the
11 Series 40 brochure that we had, I think it was up
12 there. Now, don't quote me on this. I can't
13 remember exactly what the feature differences were.
14 Q You're talking about like something you
15 would put your hand up under to lift the window up?
16 A Yes, ma'am.
17 Q Okay. So you think he came back and first
18 he showed you the 60 window; and now he's come back
19 and he's shown you a 40 model?
20 A Well, he said the 40 had been upgraded and
21 changed.
22 Q All right. And how had the upgrade
23 changed?
24 A In the sense that the 40 was replacing the
25 60.
GUNTHER REPORTING
31
1 Q So now --
2 A Now the 60 was going to go away.
3 Q The 60 was going to go away and the 40 was
4 going to replace it. Okay. You had seen the 60?
5 A Yes, ma'am.
6 Q And now you are telling me visually you
7 noticed at least one difference in the 40?
8 A Yeah. My wife was involved with it a lot
9 more. So she noticed a few other features.
10 Q All right.
11 A But what I heard him indicate was that the
12 internal features had changed and been upgraded to
13 the Series 60 and they were just going to have two
14 sets of windows, the 40 and the 80 if I understand
15 correctly.
16 Q All right. And this is after you had
17 gotten the quote of 3900 for the windows?
18 A Yes, ma'am.
19 Q All right. Was there --
20 A Now, wait a minute. Let's see.
21 Q According to the card that's been marked
22 Plaintiff's Exhibit 1?
23 A Okay. It was 3900. We actually added a
24 window, which brought it up -- yeah, there's
25 something missing here from the original. Yes.
GUNTHER REPORTING
32
1 Q All right. As you can see from what you
2 produced to me, I don't have this card. This is all
3 I have.
4 A I'd have to double-check that.
5 Q Okay.
6 A But what we did is added another window,
7 the thirteenth window, which brought it up to 4250,
8 $350 more for that additional window.
9 Q So when he came back with the second set of
10 windows, was there anything special about any -- my
11 question was really was there going to be any price
12 change?
13 A No. It was 4250.
14 Q Okay.
15 A If -- and we asked him this carte blanche, (POINT BLANK)
16 you know, is this the same window as the Series 60?
17 Yes, sir, it is. Yes, ma'am, it is.
18 Q All right. And this third meeting you are
19 talking about your wife was there too, correct?
20 A Yes, ma'am.
21 Q All right.
22 A There was the meeting that we signed the
23 contract.
24 Q Okay. That was going to be my next
25 question. Other than the presentation of this new
GUNTHER REPORTING
33
1 Series 40 window, was there anything else done? You
2 are saying that's the day that he signed the
3 contract; is that correct?
4 A August 23rd is the date on the contract I
5 believe. The 23rd of August, yes, ma'am.
6 Q And that contract, if you'll look on page
7 one, I think in the handwritten part you would agree
8 that it indicates that you are going to get the model
9 40 vinyl replacement windows; is that correct?
10 A Yes, ma'am. He'd said already though that (WITH THE SETUP)
11 it would have the same features as the Series 60.
12 There was no doubt about that. We were believing him
13 on what he said.
14 Q Okay. But the contract itself is for the
15 model 40?
16 A I understand that.
17 Q All right. That's all I'm trying to -- I'm
18 just trying to make sure we are in agreement for
19 that.
20 And there's 13 windows indicated that were
21 installed, correct?
22 A Installed incorrectly, but yes.
23 Q Okay. All right.
24 A Or to be installed.
25 Q Move to strike to the extent it's not
GUNTHER REPORTING
34
1 responsive.
2 There's 13 windows to be installed?
3 A To be installed, that's correct.
4 Q All right. Okay. Still on page one in the
5 handwritten part down in the last little paragraph
6 there it says, All windows white with half screens
7 and grids on front windows only with low-e glazing
8 and argon gas. No work to inside walls on windows
9 that are being reframed.
10 Would you agree with me that the contract
11 specifically states that to the extent there's any
12 work to be done inside the home with regard to the
13 installation of these windows, that Insulated Wall
14 Systems will not be doing that?
15 A That's not what we were told.
16 Q Okay. That's not my question.
17 A Okay.
18 Q My question is: would you agree with me
19 that the contract itself says no work to inside walls
20 on windows that are being reframed?
21 A In an attempt to be as responsive as I can,
22 one must understand what we were told would be the
23 way the inside Sheetrock would look, which was the
24 smooth edges. If you are asking me just simply what
25 the contract says, yes, ma'am.
GUNTHER REPORTING
35
1 Q That's exactly what I'm asking you. I'm
2 asking you what the contract says.
3 A Well, I think it's unfair to tell us to --
4 Q All right. I move to strike as being
5 nonresponsive. I'm going to ask you one more time,
6 sir. Would you agree with me that the contract
7 states no work to inside walls on windows that are
8 being reframed?
9 A Yes, ma'am.
10 Q Okay.
11 A But I will lodge an objection to that,
12 because it doesn't tell the whole story. There's the
13 contract, yes, ma'am. I understand that, but there's
14 also an agreement.
15 Q Sir, would you also agree with me that on
16 the bottom of page one --
17 A Yes, ma'am, there was a verbal agreement.
18 We are not talking about agreements. We are talking
19 about what I was told would happen.
20 Q Okay. Page two of the contract, if you
21 would, turn there, please. The first paragraph it
22 would appear to me to deal with the installation of
23 the vinyl siding. Would you agree with me?
24 A Install Royal woodland 16, yes, ma'am.
25 Q The work that was to be performed?
GUNTHER REPORTING
36
1 A To be performed, that's correct.
2 Q Okay. The next issue on that page deals
3 with the gutters, correct?
4 A Well, no, ma'am. There's shutters, vinyl
5 shutters. It's the next one down, and then there is
6 seamless aluminum gutters.
7 Q All right. With regard to the vinyl
8 siding, would you agree that 16 inch vinyl siding was
9 installed over one quarter inch foam board?
10 A Yes, ma'am.
11 Q Would you agree that 5 inch seamless
12 aluminum gutters and 3 x 4 downspouts were installed
13 on the home?
14 A With both of these questions I would like
15 for you to define the word install.
16 Q It takes on its common and ordinary
17 meaning, but --
18 A Well, generally speaking, ma'am, install
19 means properly installed, installed according to
20 industry standards. You know, obviously someone can
21 slap it up. Obviously someone can think about what
22 they are doing.
23 Q All right. Mr. McKinney, my question is:
24 there are 5 inch seamless aluminum gutters and 3 x 4
25 downspouts attached to your home?
GUNTHER REPORTING
37
1 A After three efforts, yes, ma'am.
2 Q Okay. Going on down it says, Install
3 Greenguard plastic housewrap over quarter inch foam
4 insulating taped at seams.
5 Was Greenguard plastic housewrap attached
6 to your house?
7 A Would you -- I'm going to have to ask you
8 to read the entire line, because it was not.
9 Q Sir, I ask the questions as I see fit.
10 Now --
11 A Well, I object to that question because --
12 Q Well, you can object to the question,
13 but --
14 A -- because the housewrap is there. The
15 seams are not taped.
16 Q Okay. Well, all right. That's fine. But
17 the housewrap is there?
18 A The seams are not taped.
19 Q Is there quarter inch foam board there?
20 A Yes, ma'am.
21 Q Okay.
22 A In a lot more places than it's supposed to
23 be.
24 Q Okay. The next paragraph says, Remove deck
25 on back of house and dispose of. Was that done?
GUNTHER REPORTING
38
1 A Yes, ma'am.
2 Q Okay. Then rebuild new deck, approximate
3 dimension of 10 foot floor joists and 20 foot wide
4 with 3 foot x 3 foot platform for stairs -- I hate to
5 make this a long question, but I guess I'm going to
6 have to -- dropping halfway to second 3 foot x 3 foot
7 platform, 2 inch x 2 inch pickets, and 4 inch x 4
8 inch posts on corners and to steps.
9 Okay. Was that construction attached to
10 your house?
11 A Loosely defined, yes, ma'am.
12 Q Okay. The third page, Build wood deck
13 approximately 5 foot wide by 5 foot deep from front
14 door with one step and rails.
15 Was that work attached to your house?
16 A No, ma'am, it's not actually attached to
17 the house.
18 Q Okay. Is it present by the front door?
19 A Yes, ma'am.
20 Q Okay. Next it says, Pour slab on back of
21 house approximately 14 feet deep, away from house,
22 and approximately 19 feet wide, smooth finish,
23 customer to remove shrubs first.
24 Is there a slab now behind your house
25 approximately 14 feet deep away from the house and
GUNTHER REPORTING
39
1 19 feet wide?
2 A And a smooth finish.
3 Q I didn't ask that question.
4 A Well, I'm not sure how you -- I must object
5 because reading part of the question doesn't seem to
6 be fair to me; but, yes, ma'am. You have seen the
7 concrete slab. It's back there, but it definitely
8 does not have a smooth surface.
9 Q Okay. Now, with regard to the elements of
10 construction that are supposed to be contained within
11 this contract, you did not receive two pairs of vinyl
12 shutters; is that correct?
13 A No.
14 Q Okay. And I'm not talking about your
15 belief as to the quality of work, but as to the
16 actual items that were supposed to be installed on
17 your home. Other than those two pairs of shutters,
18 what in this contract did you not receive other than
19 that?
20 A Argon gas for the windows.
21 Q Okay. Anything else?
22 A Seams taped, smooth finish, and the
23 shutters.
24 Q How long after you signed this contract did
25 someone come out to start the work?
GUNTHER REPORTING
40
1 A Let's see. I think the windows arrived
2 somewhere at the end of September, the last week in
3 September.
4 Q Okay. I'm going to mark this document as
5 Plaintiff's Exhibit 3.
6 (Whereupon the document was
marked for identification as
7 Plaintiff's Exhibit No. 3.)
8 THE WITNESS: Now, this original you should
9 have.
10 BY MS. TABOR:
11 Q Take a look at the copy that I've given
12 you.
13 A It appears as if this is one, but I will
14 object because it isn't -- I know this isn't the
15 original, but we can work off this.
16 Q Okay. All right.
17 A With my noted objection.
18 Q At any time you see any document that you
19 think does not reflect what you stated, let me know.
20 All right? I'm not here to try to trick you. I'm
21 just trying to get information. All right?
22 A When your husband tells me to shut up,
23 ma'am, I tell you, that is a little --
24 Q I cannot --
25 A -- that's a little bit much.
GUNTHER REPORTING
41
1 Q I cannot control my husband.
2 A I understand that.
3 Q Okay.
4 A But it is a family affair.
5 Q I move to strike as nonresponsive.
6 Okay. Mr. McKinney, can you identify for
7 me and the record what has now been marked as
8 Plaintiff's Exhibit No. 3?
9 A It appears, and I'm not absolutely
10 convinced, but it appears as if it's the letter I
11 wrote to Mr. Tabor on December 20th, 2004.
12 Q And what prompted you to write this letter?
13 A The work was not completed. The work had
14 problems.
15 Q Would it be fair to say at the time you
16 wrote the letter you expressed therein all of the
17 problems that you saw with the work?
18 A I'm sorry?
19 Q Would it be fair to say that at the time
20 you wrote this letter on December 20th, or it's dated
21 December 20, 2004, to Mr. Tabor, that you expressed
22 in that letter all of the problems as you saw them
23 with the work?
24 A The letter expresses what I knew at the
25 time.
GUNTHER REPORTING
42
1 Q Okay. All right.
2 A And I really can't say if it expressed
3 everything that I knew. We had just had an emotional
4 moment there five days earlier.
5 Q Okay. All right. Well, we'll go back to
6 that; but let me ask you a question. In this second
7 paragraph under the word slab there it says, The slab
8 has been determined to have been poured on
9 uncompacted soil by a qualified house inspector. Who
10 is that house inspector?
11 A Originally the person who came and looked
12 at it was a friend of ours, and I think you have his
13 name on our witness list. James -- well, shoot. I
14 can't remember his last name now. Crisp, James
15 Crisp.
16 Q Crisp, C-r-i --
17 A C-r-i-s-p.
18 Q And this is a family friend?
19 A Yes, ma'am.
20 Q All right. But he's also a home inspector?
21 A He's been a builder for 25, 30 years.
22 Q Okay. So he's a builder; he's not an
23 inspector?
24 A Well, he is an inspector now.
25 Q Okay. All right. Was he an inspector back
GUNTHER REPORTING
43
1 on December 20th, 2004?
2 A Yes, ma'am.
3 Q All right. This is probably a good time to
4 ask you since obviously I was not present at any of
5 these transactions you had with the Plaintiff. You
6 said something had happened five days earlier on.
7 I'm assuming approximately December 15th. Can you
8 tell me what you are referring to?
9 A Let's -- could we -- I know you want me to
10 answer your question, but I think a setup is
11 appropriate here to go back and look at what I was
12 told what the contract says about the quality.
13 Q No, I want you to tell me what happened
14 five days earlier.
15 A Okay. Mr. Tabor appeared in my yard with a
16 cellphone stuck in his ear. That's what I remember.
17 Q Okay. I'm sorry. I don't want to
18 interrupt you, but let me ask you this: five days
19 earlier had the siding on the house been completed?
20 A It was on the house.
21 Q Okay. What about the gutters? Had they
22 been put up on the house?
23 A I believe they were on the house.
24 Q What about the deck?
25 A Yes, ma'am.
GUNTHER REPORTING
44
1 Q All right. How about the front stoop we'll
2 call it?
3 A Yes, ma'am.
4 Q How about the slab?
5 A Yes, ma'am.
6 Q Okay. And the windows?
7 A Yes, ma'am.
8 Q Okay. All right. So what happened now?
9 Go back and tell me. You see Mr. Tabor in your yard
10 five days later on December 15.
11 A And that was when we were supposed to have
12 a walk-through --
13 Q All right.
14 A -- a walk-through to verify that everything
15 was done according to the contract and per the
16 contract.
17 Q Okay.
18 A He told me that -- well, this is earlier.
19 This is why I wanted to go back, because I need to
20 give you the proper setup as to why he was there,
21 that, you know, I didn't have to pay until I'm
22 satisfied that the work was completed in accordance
23 with the contract.
24 Q Okay.
25 A He went on to say that there would be a
GUNTHER REPORTING
45
1 walk-through and that there would be a sign-off sheet
2 and that we would list all the things that the
3 contract called for; and if anything was not done, he
4 would take care of it. We would then go and look at
5 the work, and any problems with the work he would
6 fix.
7 Q Okay.
8 A Okay. Fair enough. We had -- I had asked
9 Robyn -- we had already determined some things back
10 in November, the end of November that there were some
11 problems with, serious problems with the work,
12 serious problems with both the deck, the slab. The
13 windows didn't have argon gas. We had determined
14 that. No shutters obviously, and she had called him
15 sometime at the end of November and told him that we
16 had serious problems with the work; and we didn't
17 hear anything from him for four to five days. We (45 DAYS)
18 didn't know what was going on.
19 Q Okay. You just told me she called the end (HOLD ON)
20 of November, but --
21 A No. I'm sorry. The first of November.
22 Q Okay. But he shows up on the 15th?
23 A The 15th, yes. So it was about
24 November 4th, 5th, somewhere in there. I can't
25 remember exactly, but anyway four or five days (45 DAYS)
GUNTHER REPORTING
46
1 passed. We had no earthly idea what was going on.
2 He appears. I go outside and bring him back in, and
3 he starts talking. We asked him how he's doing.
4 What is going on?
5 And he starts talking about you, to say
6 that you had had some sort of surgery; and we
7 expressed our sympathies, you know, we told him we
8 were real sorry about that; and, you know, would he
9 like to do the walk-through. Sure enough.
10 Okay. So we all go outside and we point to
11 the slab and tell him basically what the home
12 inspector tells me. This is going to break. I do
13 remember him saying he had never heard of compact
14 soil being -- and then I thought, oh, God. Then we
15 went over to the deck.
16 Now, all this time Robyn is talking to him
17 and discussing the problems. I'm standing off. And
18 suddenly things got heated, you know, we talked about
19 we've got this whole side of the deck is supported by
20 16 nails that are nailed into rotten wood. It had
21 already been discussed by Mr. Payne and Mr. Tabor,
22 that there was going to be support there. Okay.
23 Q Okay.
24 A Now, whoever heard of nailing into rotten
25 wood. That's not going to hold anything. He made
GUNTHER REPORTING
47
1 some smart aleck remark about why don't you just
2 build brick columns or something. (DOOR NOISE TABOR AGAIN)
3 Well, sir, I didn't order brick columns.
4 If I did, I think it would look most inappropriate
5 here. What we want is a good, solid deck. I told
6 him that I had the money to pay him; and that if we
7 would fix these two things, which there was a
8 solution to the slab, which would have required I
9 think four holes, that we knew about at the time, and
10 we had come up with a method in which to repair the
11 deck, or at least that portion of it, not the entire
12 deck but that portion of it; and he went ballistic.
13 He said, and I quote -- this is burned in my brain --
14 I don't have to put up with this bull shit, unquote.
15 Q All right.
16 A He ran off. He said I'll see you in court.
17 Q Okay.
18 A And what in the world is going on here?
19 Q At that meeting was there any discussion
20 about putting a post under the deck to support it?
21 A Yes, ma'am. He wanted to put a post right
22 in the middle of that and in a storage area that I
23 had planned.
24 Q So he had offered at that time to do
25 something to rectify your concern?
GUNTHER REPORTING
48
1 A Well, actually it was not a solution.
2 Q I didn't ask that, sir. I said he offered
3 to do something --
4 A Yes, ma'am.
5 Q All right. Okay. But you found that
6 unacceptable?
7 A Well, the engineers found that unacceptable
8 too.
9 Q I didn't ask that. I move to strike.
10 You found it unacceptable, correct?
11 A I didn't think it would work. (DOOR SOUND TABOR AGAIN)
12 Q Okay. All right. And did it have
13 something to do with the fact that it would have some
14 sort -- it would block an area that you used for
15 storage?
16 A The primary problem -- I mean that as a
17 layman and not a construction engineer -- that was my
18 problem with it, the real problem is that it won't
19 work.
20 Q All right. At the time that the slab was
21 poured did you try yourself to put some sort of drain
22 in the slab when it was being poured?
23 A That was Keith's idea.
24 Q You are talking about Mr. Payne?
25 A Mr. Payne, yes, ma'am.
GUNTHER REPORTING
49
1 Q All right.
2 A I mean the gutters came right down on the
3 side of the slab. What happens is that the water is
4 going to pour out of the -- what do you call it --
5 and then go down the side of the slab washing all the
6 dirt out from under it.
7 Q Okay.
8 A He had to put it there.
9 Q Did he put it there, or did you put it
10 there?
11 A I went and bought the little cap, and I
12 bought the PVC on his suggestion that it be moved.
13 Q But when he came to pour it -- I'm just
14 trying to understand. Again, I wasn't there -- were
15 you physically out there trying to put this drain in,
16 or was that something Mr. Payne was out there doing?
17 A Oh, no. He was doing all the installation.
18 Q Okay. All right. Prior to this
19 walk-through on the 15th we'll call it, did you have
20 any discussion with Mr. Tabor about the lack of argon
21 gas?
22 A On the 15th?
23 Q Prior to that time.
24 A Yes. Me personally?
25 Q Yes.
GUNTHER REPORTING
50
1 A No.
2 Q You didn't?
3 A No. My wife did.
4 Q Okay. All right. I can ask her about
5 that.
6 At any time have you had any discussion
7 with Mr. Tabor about any sort of masonry work being
8 done around those two windows on the front of the
9 house that are in the stone?
10 A The only thing he told us about the
11 installation of the windows there was that the stone
12 might drop off of the screen. See, when they do the
13 stone on there it's got the screen behind it, and the
14 stone is plastered or mortared onto that screen. He
15 said that might fall off.
16 Q Okay. But was there really any suggestion
17 from him that his company or someone that he would
18 contract with would come and do any sort of repair to
19 the stone facade?
20 A He said that if the stone fell, he could
21 not repair it; but he did say that the window would
22 be finished if there were no stones that were broken
23 off; and Jimmy, the window installer, said he could
24 fix that. He could solve that problem in minutes if
25 he was told to do it, but he didn't.
GUNTHER REPORTING
51
1 Q Okay. Other than Mr. Crisp, who had come
2 out and looked at the slab at the time of this letter
3 that we've marked as Plaintiff's Exhibit 3? Had you
4 had anybody else come out and review the work that
5 was done by the plaintiff?
6 A When?
7 Q When you wrote this letter, Plaintiff's
8 Exhibit 3. By that time had you --
9 A No, ma'am. This was --
10 Q Just Mr. Crisp?
11 A Yes, ma'am.
12 Q And he only looked at the deck? I mean --
13 I'm sorry -- the slab?
14 A The slab and the deck.
15 Q All right. So he talked to you --
16 A No, I take that back. No. I think he
17 looked some at the window installation too and saw
18 problems there. I'm not sure if I mentioned them in
19 here. I know we had argon gas. Yeah. Yeah, he did,
20 because I said it here, it's not properly installed.
21 That was the installer. Adam was his name. He put
22 two screws in that, which we couldn't understand why.
23 Q And there is one of the windows --
24 A But at that point, no, we had not discussed
25 any other problems. The problems in the work is a
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52
1 learning experience obviously.
2 (Whereupon the document was
marked for identification as
3 Plaintiff's Exhibit No. 4.)
4 THE WITNESS: Once again, I object because
5 it's not an original; but it does appear as if
6 it's the letter I wrote to -- is there another
7 one in here? No, maybe not.
8 BY MS. TABOR:
9 Q Can you identify subject to your objection
10 what we've called Plaintiffs 4?
11 A Yes, ma'am, it does appear as if this is a
12 letter that I wrote to Mr. Tabor.
13 Q Okay. And it's dated January 3, 2005?
14 A Yes, ma'am.
15 Q I'm going to ask you two questions here:
16 One, between the meeting there on the 15th when he
17 came out to your house, Mr. Tabor, and the letter
18 that you sent on the 20th, which -- or is dated the
19 20th marked 3, did you have any conversations with
20 Mr. Tabor during that time?
21 A No, ma'am.
22 Q Okay. From the time you wrote the letter
23 on the 20th of December until you wrote the letter on
24 January 3rd that we have now marked Plaintiff's 4,
25 did you have any contact with him?
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53
1 A No, ma'am.
2 Q Okay.
3 A And after December 15th, you know, the ball
4 was in his court. I figured I was going to get a
5 lawsuit here.
6 Q Okay. All right.
7 (Whereupon the document was
marked for identification as
8 Plaintiff's Exhibit No. 5.)
9 THE WITNESS: Once again, I lodge an
10 objection because this is not an original.
11 BY MS. TABOR:
12 Q Mr. McKinney, you can have that standing
13 objection if you would like, because none of these
14 are originals.
15 A All right.
16 Q All right. Take a moment to look at it and
17 then can you tell me what the document marked as
18 Plaintiff's Exhibit 5 is?
19 A It's a letter I wrote to Mr. Tabor on
20 January 14 in response to a letter he sent me on
21 January 4th, 2005, and it is a compilation of the
22 three letters that I had planned on writing.
23 Q All right. Paragraph number four says, The
24 contract is very clear when it states no verbal
25 agreements recognized. So any
GUNTHER REPORTING
54
1 agreements/arrangements/deals we have/had outside the
2 contract cannot be a part of any negotiation.
3 Is it fair to say that's a sentence that
4 you wrote?
5 A Yes, ma'am.
6 Q Okay. Mr. McKinney, let me ask you: do you
7 think that you as a citizen has the authority or the
8 right to enforce building codes?
9 A I'm not trying to enforce building codes,
10 but I am subject to the building codes, or the house
11 is.
12 Q I move to strike as nonresponsive.
13 A And anyway, he said they were going to be
14 built by the code, not me.
15 Q I move to strike as nonresponsive.
16 Paragraph seven says, The siding is
17 complete and in my opinion rates good?
18 A From what I knew at the time, yes.
19 Q Paragraph eight, The gutters are complete
20 and in my opinion rates good. Is that a fair
21 statement? That's what you said?
22 A Based on what I knew at the time, yes,
23 ma'am.
24 Q And paragraph nine says, The front deck is
25 complete and I will accept it as fair. What's wrong
GUNTHER REPORTING
55
1 with the front deck? What was wrong with it? Why is
2 it fair?
3 A It's shoddy work.
4 Q Why do you say shoddy? What about that was
5 bothering you back on January 14th?
6 A Well, the caps were done.
7 Q You mean the post caps?
8 A Uh-huh (affirmative). It's almost fallen
9 off. I keep having to move it. My understanding was
10 it was going to be concrete there.
11 Q All right.
12 A You've got to put the concrete down there (WHAT ELSE DO YOU DO WITH DECKS)
13 to hold the thing in place.
14 Q All right. If we refer back to Plaintiff's
15 Exhibit No. 2, page three, it says, Build wood deck
16 approximately 5 feet wide x 5 feet deep from front
17 door with one step and rails. Is that your
18 recollection of what the contract provided?
19 A Uh-huh (affirmative).
20 Q Is that a yes?
21 A Yes, ma'am.
22 Q All right. And nowhere in there is there
23 any mention of concrete; is that true? Is that a
24 fair statement?
25 A I object to that. It's like selling a car.
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56
1 Q You can't object to that. Mr. McKinney,
2 answer the question.
3 A Well, it's leading and it's misleading;
4 because it's like the contract selling a car and
5 there are no wheels on it. Is there anywhere in the
6 contract where it says wheels?
7 Q I move to strike as nonresponsive.
8 Now, I'll ask you the question again. Does
9 the contract itself at any time state that there
10 would be any concrete associated with the
11 construction of the --
12 A No, ma'am.
13 Q All right.
14 A Tack on the end, for crying out loud. (LIKE JACK ONEILL SAYS)
15 Q I move to strike as nonresponsive.
16 All right. Paragraph 10 --
17 A Not to mention -- can we --
18 Q No, we can't.
19 A Okay.
20 Q Paragraph 10 says, The back deck is not
21 complete as it has insufficient support for the
22 11-and-a-half or over half the length of the deck,
23 just the first sentence. My question regarding
24 paragraph number 10 really resolves around the last
25 sentence. We had received a bid for this work that
GUNTHER REPORTING
57
1 comes to $320.
2 Who gave you a bid for that work?
3 A You'll have to talk to my wife about that
4 one.
5 Q Okay. Did you ever have any discussion
6 with Mr. Tabor about the concrete slab wherein he
7 told you the concrete alone for that job cost him a
8 thousand dollars?
9 A No, ma'am.
10 Q Did your wife ever tell you she had a
11 conversation to this?
12 A No, ma'am. That seems to be -- why would
13 somebody tell me what the materials cost?
14 Q Move to strike. Nonresponsive.
15 Okay. Mr. McKinney, you have made
16 allegations in this lawsuit that at the time
17 Mr. Tabor had discussions with you about argon gas in
18 the windows that he full well knew, he knowingly told
19 you something that was incorrect. He defrauded you.
20 He told you those windows had argon gas; and they, in
21 fact, didn't come with argon gas. Tell me what facts
22 you have that support that Mr. Tabor knew at the time
23 he made those statements about the argon gas, that
24 when the windows came they would not have argon gas
25 contrary to what he told you?
GUNTHER REPORTING
58
1 A You'll have to repeat the question, because
2 I --
3 Q Okay. All right. You've made allegations
4 in the lawsuit --
5 A Which allegations?
6 Q Well, you know, okay. Mr. McKinney, you
7 have stated time and time again that Mr. Tabor
8 defrauded you when he told you that the windows would
9 have argon gas; and then when they came, they didn't.
10 And all I want to know is if that is your position,
11 that at the time that Mr. Tabor told you those
12 statements about the windows that he full well knew
13 they weren't going to have argon gas in them, what
14 facts support that? How do you know Mr. Tabor was
15 lying when he said those windows will have argon gas?
16 A He didn't order them. It says so on the
17 order sheet. He has no place for argon gas on the
18 order sheet.
19 Q Okay. So if he doesn't have a place for
20 argon gas on the order sheet, that is the only fact
21 which supports your belief that he was defrauding you
22 when he said it would come with argon gas?
23 A Well, I'll have to think about that for a
24 while, if that's the only fact I have. I don't know
25 for sure if that's the only fact I have.
GUNTHER REPORTING
59
1 Q Well, at this time the only one you can
2 think of is there's no place to check on the order
3 sheet? Is that not what you just testified to?
4 A Yes, ma'am.
5 Q Okay. Can you tell me who, if anyone --
6 well, strike that.
7 Has anyone ever told you that the warranty
8 on those windows as installed is void?
9 A You'll have to talk to Robyn about the
10 warranty issues.
11 Q All right. But my question is: has anyone
12 ever told you that?
13 A I believe. Yes. I'm pretty sure that the
14 rep for -- let me -- let me be careful right here and
15 make sure I really understand what you are asking.
16 Has anyone told me that the warranty would be voided?
17 Q Due to the way they were installed.
18 A No, ma'am.
19 Q Okay. All right.
20 A My wife, maybe she could answer.
21 Q Okay. Fair enough.
22 Paragraph 14 of the letter, referring back
23 to Plaintiff's Exhibit No. 5, says, The masonry grout
24 work for the windows in the stonework comes under
25 the, quote, good work clause of the contract and we
GUNTHER REPORTING(door opens John Tabor is there)
60
1 have a bid of $50.
2 What do you mean by that statement?
3 Do you want something to drink?
4 A I've got a diet Coke right here. I would
5 like to take a break if I could.
6 Q Okay. Well, answer this question; and then
7 we'll take a 10 minute break.
8 A Fair enough. You'll have to talk to my
9 wife about bids.
10 Q Okay. All right. Then it's not true as
11 you testified earlier that the contract itself did
12 not provide for any masonry work to be done by
13 Insulated Wall Systems?
14 A Excuse me?
15 Q Did you not tell me earlier today that the
16 contract did not provide that Insulated Wall Systems
17 would do any masonry work?
18 A I don't think it does, does it?
19 Q That's what I'm saying. Would you agree
20 with me that the contract does not provide for
21 masonry work?
22 A Yes, ma'am.
23 Q But in paragraph 14 here you are demanding
24 that Insulated Wall Systems do something about it, or
25 you're going to get --
GUNTHER REPORTING
61
1 A No, ma'am, not masonry work. This is not
2 what we're asking for I don't think. What we are
3 asking for is that the window be finished off.
4 Q Okay. It says, The masonry grout work for
5 the windows and the stonework comes under the, quote,
6 good work, close quote, clause?
7 A Because the windows are exposed. Out in
8 the wall envelope it's exposed to the atmosphere, to
9 the environment.
10 Q All right. Paragraph 14 dealing with,
11 quote, masonry grout work --
12 A That's the grout around the window, yes,
13 ma'am.
14 Q All right. And you testified to me earlier
15 that the contract with Insulated Wall Systems had
16 nothing to do with masonry work? There was no work
17 in the masonry field to be done by anybody on behalf
18 of Insulated Wall Systems?
19 A It's not in the contract. That's true.
20 Q All right. Why don't we go ahead and take
21 our break, and it's about 25 till, so to quarter
22 till.
23 A Quarter till?
24 Q Yes.
25 (A short break was held.)( John Tabor is there)
GUNTHER REPORTING
62
1 BY MS. TABOR:
2 Q All right. Mr. McKinney, we are back on
3 the record. I'm still referring to what we've marked
4 Plaintiff's Exhibit 5.
5 A Okay.
6 Q All right. Referring to paragraph 12, this
7 paragraph deals with the windows.
8 A Okay.
9 Q Let me ask you a question with regard to
10 argon gas, and I'm not asking you for a technical
11 opinion or anything like that. I just want your
12 understanding of what benefit that is in the window.
13 A 50 percent drop in the sound level that
14 comes through the window, 25 drop in the energy
15 saving or 25 percent energy savings over the life of
16 the windows.
17 Q All right. And since you've quoted some
18 very specific percentages to me, can you tell me
19 where you acquired or where you got this information?
20 A Well, they are not specific in the terms
21 that they are technical. I'm not --
22 Q I just want to know how you came to know
23 those specific things that you are talking about.
24 A I went on the Web and found them.
25 Q So these are things you got off the
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63
1 Internet research?
2 A Yes, ma'am.
3 Q Prior to installing these windows did you
4 have the original windows in the home, maybe original
5 wood windows I guess?
6 A No they were aluminum.
7 Q They were aluminum?
8 A Yes, ma'am.
9 Q So what we call storm windows, or were they
10 just windows that went in a house?
11 A We had the windows that came with the house
12 obviously, and we also had what they call -- we had
13 energy efficient windows installed by Sears, and I
14 can't recall when; but it was supposed to mimic the
15 double pane windows in that you have a magnetic strip
16 around the inside of the window, and you have another
17 plexiglass, I guess it's called, pane that goes in
18 there.
19 Q In this system you are talking about, was
20 that on the interior of the house or the exterior?
21 A It was on the interior.
22 Q Oh, okay. All right. Going back to
23 something I recalled about the home inspection, the
24 bottom floor of your home, prior to this work that
25 the plaintiff did, were you guys using that as living
GUNTHER REPORTING
64
1 space, or was that -- I remember your wife saying
2 something about this was unfinished space.
3 A Yes, ma'am, but that was years ago.
4 Q Okay.
5 A The garden -- I mean the -- garden, the
6 garage was that area in which -- well, it's our kind
7 of what we call a living room I guess. That was a
8 garage at one time.
9 Q All right. Okay. But you already had all
10 that set up, that living area and the bedroom there
11 in kind of the back corner of that bottom floor. Was
12 all that setup prior to work being done that we are
13 talking about today?
14 A Yes, ma'am.
15 Q The reason I'm asking that question, so
16 you'll know where I'm going, is I want to know if
17 prior to the installation of these windows that we
18 are here about today, were you using that bottom
19 floor as living space?
20 A Yes, ma'am.
21 Q Okay. Have you noticed at all -- and I
22 don't know if you've even kept track of these
23 things -- since you had these replacement windows
24 installed any drop in the cost that you are paying I
25 guess per unit for energy?
GUNTHER REPORTING
65
1 A My power bill has gone up.
2 Q But would you agree that's for reasons
3 other than the work that the Plaintiff had done?
4 A Excuse me?
5 Q Okay. Everyone's power bill has probably
6 gone up for energy cost reasons. I'm just trying to
7 see if you have noticed -- have you noticed any
8 savings at all in a relative way by having these
9 windows installed?
10 A No, ma'am.
11 Q All right. Mr. McKinney, if I understood
12 you correctly, you were saying that the benefit of
13 the argon gas as you knew it was for sound and -- a
14 sound buffer and energy savings?
15 A Yes, ma'am.
16 Q That's a fair statement?
17 A Yes, ma'am.
18 Q Okay. With regard to the energy savings
19 have you had anybody calculate what the lack of the
20 argon gas, what has been the consequence of that as
21 far as energy savings over the life of the window?
22 A No, ma'am. I have done some calculations
23 of my own.
24 Q All right.
25 A But I can't recall the exact numbers.
GUNTHER REPORTING
66
1 Q Okay.
2 A But if you figure it up based on the data
3 that I have and have studied over the life of the
4 windows, which my understanding is 20 years, it comes
5 to a considerable amount.
6 Q Are you contending in this lawsuit that if
7 they had argon gas in them, you would be saving money
8 on your energy bills?
9 A I'm contending that I ordered argon gas in
10 the widows.
11 Q Move to strike.
12 I'm asking are you contending that an
13 element of your damage in this lawsuit is that if you
14 had the argon gas, you would be afforded an energy
15 savings that you are not getting?
16 A I'm not -- I don't believe we have -- let's
17 see. What is the word I'm looking for? I don't
18 believe we have included that in our damages, no.
19 Q So with regard to the windows, the crux of
20 your complaint is we didn't get what we ordered?
21 A That's correct.
22 Q Okay. And just because I want the record
23 to be clear, were there any screens that you were
24 missing off of the windows or screens that are
25 damaged?
GUNTHER REPORTING
67
1 A There are at least three that are damaged.
2 Q Okay. Are there any that just didn't get
3 there?
4 A I do not know that. I could not tell you.
5 I mean I would have to go -- I do not believe that
6 there are. I'll put it that way.
7 Q All right. Okay. So on page three of this
8 letter, Plaintiff's Exhibit 5 in paragraph 17, at
9 that time says, The total in dispute at this point
10 comes to 6570. Therefore, the most I could sign off
11 on and pay for is 9430?
12 A That's correct.
13 Q But given the wording of the contract,
14 tying low within the lower bounds of the contract --
15 A I believe that I am, or was.
16 Q Well, let me finish the question.
17 A Okay. I'm sorry.
18 Q Because she can't do it all.
19 -- by refusing to do so; and, therefore, I
20 will not pay you at this time unless you want to
21 accept this as payment in full.
22 All right. So is it fair to say that on or
23 about January 14, 2005, you are saying, Look, I'll
24 pay you 9430 for this job, and that's it?
25 A Based on what I knew at the time, yes,
GUNTHER REPORTING
68
1 ma'am.
2 Q Okay. I've just got some documents I just
3 want to go over so I will have a better
4 understanding. These are documents I'll submit to
5 you that you provided to me in the course of
6 discovery, and I just want you to let me know so that
7 I will have a better understanding of what they are.
8 A Can I say something? I may not be able to
9 speak to them.
10 Q Okay. If you can't, and that's the whole
11 point here, sir. If you can't, you let me know.
12 A But I can tell you the person who can.
13 Q That's right. That's fair enough. Okay.
14 I'm going to mark this as Plaintiff's Exhibit No. 6.
15 (Whereupon the document was
marked for identification as
16 Plaintiff's Exhibit No. 6.)
17 BY MS. TABOR:
18 Q Take a look at that and tell me if you -- I
19 realize it's got several things on it, but can you
20 tell me what those are?
21 A Ma'am, I cannot speak to this.
22 Q All right. Can you tell me what they are?
23 A They are I believe business cards from
24 people who have come and looked at the work.
25 Q All right. And who would be in a better
GUNTHER REPORTING
69
1 position to speak to those than you are, if you know?
2 A Robyn.
3 Q Okay.
4 A Ms. McKinney.
5 (Whereupon the document was
marked for identification as
6 Plaintiff's Exhibit No. 7.)
7 BY MS. TABOR:
8 Q All right. I'm going to have marked what
9 you've been handed -- what I'm going to identify as
10 Plaintiff's Exhibit 7. Take a look at that and tell
11 me, if you know, what that document is.
12 A Yes, I believe that's an e-mail to Bill
13 Lambdin at Atlanta Home Technologies that involves
14 getting a quote for the window replacement. It would
15 be better if my wife speaks to this.
16 Q Okay. Did you ever have any conversations
17 or dealings with Mr. Lambdin at Atlanta Home
18 Technologies?
19 A No, ma'am. My wife has taken care of all
20 of this.
21 Q Okay. Would you agree with me that
22 Plaintiff's Exhibit 7 indicates on the top that this
23 e-mail was sent on September 12th, 2005?
24 A That's what it says; but, again, this is a
25 copy; and on e-mails who knows? I can't, you know, I
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70
1 wouldn't vouch for this document at all. She may or
2 may not know. You would have to ask her.
3 Q Okay. All right. That's fair.
4 (Whereupon the document was
marked for identification as
5 Plaintiff's Exhibit No. 8.)
6 BY MS. TABOR:
7 Q The same question I've asked you with the
8 two prior documents.
9 A The same answer, if you want me to repeat
10 the answer.
11 Q All right. Plaintiff's Exhibit 8 --
12 A Yes.
13 Q -- appears to be correspondence --
14 A Now, let me say this: these are 9/12. I
15 was down on my -- I was in sciatica pain like you
16 have never seen.
17 Q All right. Okay. All right. But for the
18 record we are going to make this clear on the record.
19 All right. Have you ever seen Plaintiff's Exhibit
20 No. 8 prior to right now?
21 A I believe so.
22 Q Okay. Can you tell me what your
23 understanding of that document is?
24 A I believe -- now, this is a belief. This
25 is not a --
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71
1 Q I'm only asking for your understanding.
2 That's all.
3 A That's a -- it looks like a -- it looks
4 like a quote for the slab. The slab, yes.
5 Q All right. On page one of Plaintiff's
6 Exhibit No. 8 it appears that this is directed to a
7 person named Rick Lorenz at Border Magic. My
8 question to you, sir, is: have you ever had any
9 conversations or any other dealings with Rick Lorenz
10 at Border Magic?
11 A No, ma'am.
12 Q All right.
13 A Once again, my wife handled that.
14 Q Okay. All right. Fair enough. Thank you,
15 sir.
16 (Whereupon the document was
marked for identification as
17 Plaintiff's Exhibit No. 9.)
18 BY MS. TABOR:
19 Q All right. I hand you what has been marked
20 Plaintiff's 9.
21 A Okay.
22 Q Okay. Plaintiff's 9 appears to be a
23 transmittal to James Ferguson at TCS Construction
24 Services, Inc. My question is: have you ever had any
25 conversations or any other contact with Mr. Ferguson
GUNTHER REPORTING
72
1 at TCS Construction Services, Inc.?
2 A Once again, my wife handled the work.
3 Q So the answer is, no, you have not had any?
4 A No.
5 Q All right.
6 (Whereupon the document was
marked for identification as
7 Plaintiff's Exhibit No. 10.)
8 BY MS. TABOR:
9 Q If you would, take a look at what has now
10 been identified and marked as Plaintiff's Exhibit 10.
11 A Yes, ma'am. Yes, ma'am.
12 Q Okay. It appears to be a transmittal to
13 Bryan Beaty, I guess, of HardScapes. Let me ask you
14 the same question I asked you before. Have you ever
15 had any conversations or any other contact with
16 Mr. Beaty at HardScapes?
17 A No, ma'am.
18 Q All right. And if you have not, who would
19 be the person most suited to discuss this document?
20 A My wife.
21 Q All right. Thank you, sir.
22 (Whereupon the document was
marked for identification as
23 Plaintiff's Exhibit No. 11.)
24 BY MS. TABOR:
25 Q All right. If you will, look at what has
GUNTHER REPORTING
73
1 been marked Plaintiff's Exhibit No. 11.
2 A Okay.
3 Q Okay. Let me ask you first, sir: have you
4 ever seen this document prior to today?
5 A I think I have looked through it, yes,
6 ma'am.
7 Q Okay. On the first page it appears to be
8 correspondence to Dan Bishop of SD & B Services.
9 A Yes, ma'am.
10 Q My question is: have you ever had any
11 correspondence or conversation or any other contact
12 with Mr. Bishop at SD & B Services?
13 A No, ma'am.
14 Q All right. Who would be the person most --
15 A My wife.
16 Q There you go. All right. Thank you, sir.
17 (Whereupon the document was
marked for identification as
18 Plaintiff's Exhibit No. 12.)
19
20 THE WITNESS: Okay.
21 BY MS. TABOR:
22 Q Okay. I think we are up to No. 12. After
23 Jackie marks it, if you will just take a look at it.
24 A Okay.
25 Q Okay. This seems to be correspondence to
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74
1 Mr. Thomas Vaughn at Sequoyah Vinyl Creations, Inc.
2 The first question is: have you ever seen this
3 document before?
4 A I believe that I have.
5 Q All right. Did you, in fact, send this to
6 Mr. Vaughn?
7 A Not personally, no. It was sent on my
8 behalf.
9 Q And who sent the document on your behalf?
10 A Robyn.
11 Q All right. Did you get a quote from
12 Sequoyah Vinyl Creations, Inc., in response to your
13 request?
14 A Yes.
15 Q All right. And have you provided that to
16 us?
17 A I would have to check on the list of things
18 that we have done.
19 Q If I submit to you that I do not have a
20 copy of Sequoyah's quote and ask you if you would
21 please provide that to me, you know, on a piece of
22 paper?
23 A I can write on the back.
24 Q Okay. And my understanding is that
25 Sequoyah has now been back out to your house since
GUNTHER REPORTING
75
1 the home inspection; is that correct?
2 A Yes, ma'am.
3 Q Go ahead and write down whatever you want
4 to. Then I'll ask you a question.
5 A You want me to provide the quote from
6 Sequoyah?
7 Q Yes, sir.
8 A Okay.
9 Q All right. Now, to jump ahead just a
10 little bit since we are on the subject of Sequoyah,
11 apparently they have come out to your house since the
12 inspection that we had on the 5th and done some work
13 to the home, correct?
14 A No, ma'am.
15 Q All right. Tell me: but they did come out
16 and remove some siding from the house?
17 A We wanted to know what was under the
18 siding.
19 Q Okay. Just can you tell me what they did
20 that day?
21 A What they did is removed the siding
22 underneath the window that's above the slab.
23 Q Okay. The window on the first floor?
24 A Yes, ma'am.
25 Q All right. All right. Did they remove it
GUNTHER REPORTING
76
1 from any other portion of the home?
2 A No, ma'am.
3 Q And I know that you sent me via e-mail a
4 couple of photographs in that area that you
5 photographed for me below that window?
6 A Yes, ma'am.
7 Q Okay. Since I don't have your quote from
8 Sequoyah, I'm just going to have to kind of ask you
9 some questions. I'm kind of in the dark here. What
10 have you secured a quote from Sequoyah to do?
11 A Replace the siding and windows.
12 Q And was the exercise that you went through
13 the other day that we've just been talking about, was
14 that part of the effort to do that?
15 A No, ma'am.
16 Q Okay. What was the purpose of doing that
17 the other day?
18 A Part of siding is the way I understand it
19 from reading the installation manuals, you know, it's
20 kind of like -- gee, I don't know what I would
21 describe it to; but it's more, you know, when you
22 look at a house that's got new siding on it, it can
23 look good; but the devil is always in the details of
24 what's underneath, and what we were concerned about
25 was what is underneath.
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77
1 Q Okay.
2 A Okay. And we were told that wood would be
3 replaced with wood, rotten wood for example. We were
4 told that when that window was going to be replaced,
5 that, you know, the proper -- well, that window
6 wasn't replaced. That was a new installation. So
7 what the window has to have is a proper header on the
8 top and the bottom.
9 Now, as -- well, obviously I cannot testify
10 to those. I'm just trying to make a decision as to
11 without those headers, you've got all that weight
12 from the house on the window. Okay. What we wanted
13 to determine or what I wanted to know is whether or
14 not there was a proper header there that's going to
15 support that whole part of the house; and also what
16 was done underneath the window, because I couldn't
17 remember, and as it turns out, all that wood was
18 taken off and just replaced with five layers of foam
19 board.
20 Q All right. Let me break down a couple of
21 things. As far as the header above the window, is
22 there a header there?
23 A It's not done properly.
24 Q Okay. Is there a header there?
25 A No, ma'am.
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1 Q There is no wood above the window?
2 A Well, there's a difference between a header
3 and wood.
4 Q Okay. Tell me what's there since I wasn't
5 there, that's your understanding. Again, this is not
6 a technical -- I'm not asking you for that. I'm just
7 asking what you know.
8 A There's a piece of wood there, but it is
9 not tied on the ends as far as I can understand to
10 the 2 x 4 supports, and that's the problem.
11 Q Okay. Now let me ask you a question about
12 the second part of what you said about the five
13 layers. Your house prior to this work that was done
14 that we're here about today had a composite siding on
15 it; is that correct?
16 A No, ma'am.
17 Q Did it have cedar wood?
18 A Yes, ma'am.
19 Q Okay. So my understanding is that was
20 removed from the home?
21 A No, ma'am.
22 Q It was not removed?
23 A No.
24 Q Were any portions of that cedar removed?
25 A As it turns out, yes, ma'am.
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1 Q Okay. All right. And so with regard to
2 this area that you have now had exposed, just tell me
3 a little bit more about what you are talking about.
4 You said as it turns out all that's under there is
5 five layers. I'm just trying to understand.
6 A Yeah. Well, you've seen the picture.
7 What's underneath the window from the window bottom
8 all the way to the bottom of the house, I guess you
9 would call it, is no wood. It's just five layers;
10 and you obviously can't nail into foam board.
11 Q The studs are still there, correct?
12 A Yes, ma'am.
13 Q Okay. And on top of the studs is foam
14 board?
15 A Well, let me -- I would have to go look at
16 the pictures again. You don't have them?
17 Q No.
18 A Yes, ma'am.
19 Q Right. But you keep referring to five
20 layers, and I'm trying to figure out what five layers
21 is.
22 A Five layers of foam board were folded up
23 and put in that entire area.
24 Q Okay. All right.
25 A And the siding was nailed to that, and
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1 that's why it's all loose.
2 Q The siding wasn't nailed to the studs?
3 A No, ma'am.
4 Q Just to the foam board?
5 A Yes, ma'am, in that area.
6 Q All right. Do you have a price from
7 Sequoyah for the new siding and the new windows?
8 A I believe Robyn does.
9 Q Okay. And you don't know what that figure
10 is?
11 A I don't have it handy.
12 Q Do you know what it is?
13 A I'm not sure it would be fair for me to
14 repeat it when I don't know exactly what it is.
15 Q Well, what have you heard?
16 A Somewhere around -- well --
17 Q It's just your guess, sir. Just the best
18 you can do.
19 A Nine to 10,000, something in that
20 neighborhood.
21 Q For the whole job?
22 A For the siding alone.
23 Q Has anyone from Sequoyah told you that the
24 siding that's on the house right now that was put up
25 by the Plaintiff or on behalf of the Plaintiff is
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1 improperly installed?
2 A Yes, ma'am.
3 Q Who?
4 A Thomas Vaughn.
5 Q And what is your understanding of
6 Mr. Vaughn's relationship to Sequoyah?
7 A I believe he's the owner. I'm not sure.
8 Q All right. But at the present time in just
9 trying to make sure I understand, other than this
10 project you did the other day where y'all looked
11 under the window, none of the siding had been removed
12 from the home otherwise?
13 A That's correct.
14 Q Do you have any intension in the near
15 future to have that removed?
16 A Yes, ma'am.
17 Q What I mean by that -- I should clarify.
18 I'm sorry -- is: do you have a date, you know, that
19 we are going to get to it in a month? We'll be out
20 there. We've put it on the schedule, so to speak?
21 A Yes, ma'am, it's going to be replaced.
22 Q And the windows? They are going to replace
23 the windows?
24 A Yes, ma'am.
25 Q Has anyone at Sequoyah told you that these
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1 windows are improperly installed?
2 A Yes, ma'am.
3 Q All right. And would that be Mr. Vaughn?
4 A Yes, ma'am.
5 Q All 13 windows are improperly installed?
6 A Yes, ma'am. We saw them. They are two
7 inches stuck into the siding. But he's not the only
8 one.
9 Q I'm just asking with regard to Sequoyah.
10 All right.
11 (Whereupon the document was
marked for identification as
12 Plaintiff's Exhibit No. 13.)
13 THE WITNESS: Okay.
14 BY MS. TABOR:
15 Q All right. Now let me ask you with regard
16 to Plaintiff's Exhibit No. 13, do you recognize this?
17 A I have seen it, yes, ma'am.
18 Q Can you tell me what this document is?
19 A I believe it's communication between us, me
20 and my wife, and Mr. Weldon concerning the siding I
21 believe. You'll have to get more information from
22 her.
23 Q Let me ask you this: did Mr. Weldon ever
24 come out -- it appears from the document he came out
25 and he was to give you a quote?
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1 A Yes, ma'am.
2 Q Do you know whether or not he actually gave
3 you a quote?
4 A No, ma'am.
5 Q You don't know, or he didn't.
6 A I don't know.
7 Q Okay. All right. And your wife would be
8 the better person to ask that?
9 A Yes, ma'am.
10 Q Okay. All right. Have you ever met
11 Mr. Weldon?
12 A No, ma'am. That's what I was going to
13 explain. This was September 12th,'05. I didn't meet
14 anybody then. I was on my back.
15 Q All right.
16 A I was incapacitated I guess would be the
17 best word to put it.
18 Q Sir, this next document that I want to show
19 you, I think what I'll do first is this is a
20 compilation of some pages that you provided. I'm
21 going to let you look at the whole thing. I didn't
22 copy the whole thing. I copied where that little
23 mark, the little yellow tab is, about where that is;
24 but look at the whole thing first.
25 A Yes, ma'am.
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1 Q And I think you saw the page I was
2 referring to. It's this one. I'm going to mark that
3 and the two pages behind it as an exhibit. All
4 right?
5 A Yes, ma'am.
6 (Whereupon the document was
marked for identification as
7 Plaintiff's Exhibit No. 14.)
8 BY MS. TABOR:
9 Q That's these three pages, and I want you to
10 take a look at it and tell me -- you can tell me what
11 it is.
12 A It appears -- again, it's a copy. Jana,
13 it's not complete. So I have -- so my standard
14 objection stands. It appears as if there is -- it is
15 a quote on the siding and windows as far as I recall.
16 Yes. And Sears was astronomical.
17 Q Okay. All right. I'm going to ask you:
18 this, what we believe to be a quote from Sears, is
19 this something you got after the work was
20 performed --
21 A No, ma'am.
22 Q Wait. Let me finish the question. -- by
23 Insulated Wall Systems, or is this a quote you got
24 prior to ever having any work by Insulated Wall
25 Systems done?
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85
1 A It was a quote we got prior to having any
2 work done.
3 Q Okay. All right. That's what I wanted to
4 know.
5 (Whereupon the document was
marked for identification as
6 Plaintiff's Exhibit No. 15.)
7 BY MS. TABOR:
8 Q Okay. All right. Mr. McKinney, I show you
9 what we've marked as Plaintiff's 15. Earlier you
10 testified you had a quote from Home Depot prior to
11 the work that was done by Insulated Wall Systems; and
12 I'm just asking: do these documents have to do with
13 that quote you've been talking about?
14 A This is a quote that we received prior to
15 any work done by Insulated Wall Systems.
16 Q All right. Thank you.
17 (Whereupon the document was
marked for identification as
18 Plaintiff's Exhibit No. 16.)
19 BY MS. TABOR:
20 Q Mr. McKinney, can you identify what has
21 been marked as Plaintiff's Exhibit No. 16?
22 A Once again, it's a copy. It appears as if
23 it's a quote from R.J.D. Exterior Designs for siding,
24 shutters, gutters; and we had the deck and the other
25 that's on the second page of this document.
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86
1 Q And is this a quote you got for the work
2 prior to the work done by the Plaintiff?
3 A Yes, ma'am.
4 Q Okay. And that's the one that you had
5 referred to earlier in your testimony, correct?
6 A Yes, ma'am.
7 Q All right.
8 A Now, this man was actually lower than that.
9 Q All right. Are you seeking damages in this
10 lawsuit for personal injury?
11 A Yes. Well, we have not modified it or not
12 amended my counterclaim; but, yes, ma'am.
13 Q Okay. And even though it's not been
14 amended, tell me your understanding of -- well,
15 strike that.
16 Are these personal injuries that you
17 sustained yourself personally?
18 A Yes, ma'am.
19 Q And tell me how you sustained the injuries.
20 A There are two things in June that I wound
21 up doing. The first one was having to remove all
22 that concrete that Insulated Wall Systems left. It
23 came from the concrete that was holding down the post
24 of the old work. We have pictures that we've just
25 supplied that shows all that mess that was left
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87
1 uncleaned.
2 Q And when you say June, what year?
3 A This is June 2005.
4 Q Okay. All right. I'm sorry. Go ahead.
5 A Since we anticipated having -- I'm not even
6 sure of all the quotes we got. I think they were in
7 September, but I was anticipating having lots of
8 folks come and look at the work, to come and look and
9 give us quotes, and even lawyers since we are right
10 in the middle of a lawsuit; and the last thing I
11 needed was someone to trip over that. So I had to
12 remove all that and clean up the place.
13 Q Okay.
14 A That, when I did that first in June,
15 sometime in June. I can't recall. I had to lift up
16 the concrete and put it in the wheelbarrow and tote
17 it off down to the place where we could put stuff
18 like that. That strained my back enormously. The
19 next thing I did was after we had gotten
20 acknowledgement that the staircase was weak --
21 Q Are you talking about the deck?
22 A Yes, ma'am.
23 Q All right.
24 A -- in two areas, I decided it would be best
25 to get some 4 x 4 posts and put under there to
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88
1 provide the support so that it wouldn't break if we
2 had people walking on the deck. I went to Home Depot
3 and bought -- I think we even have the receipt for
4 that -- 4 x 4s, and I went and got them myself and
5 brought them back; and apparently doing that twisting
6 and holding a 4 x 4 I ruptured a disk.
7 Q All right. Referring back to
8 Plaintiff's -- if you'll look in your stack there,
9 Plaintiff's Exhibit 5.
10 A Okay.
11 Q On the third page, paragraph 16, it's
12 talking about something removed away. It says, A
13 handyman said he would charge me $100 to get rid of
14 this. Do you know who that was?
15 A It was one of the guys down the street if I
16 recall. I'm not sure.
17 Q All right. So at the time you wrote this
18 letter you believe you had at least at that point
19 looked into someone else picking up this concrete and
20 removing it?
21 A I had thought about it and we had talked
22 about it, but it just didn't work out, and I wound up
23 having to do it myself.
24 Q Okay.
25 A But it wasn't -- I mean, you know, it's --
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89
1 it was the posts that did it. There's no doubt about
2 that. It was the posts.
3 Q When did you install these portions on the
4 deck? You just talked about the posts. When did you
5 do that? Was that also in June of '05?
6 A No. That was closer to July, somewhere in
7 the first part of July.
8 Q All right. Had you ever had any back
9 problems prior to that time?
10 A Yes, ma'am. I've had ruptured disks
11 before.
12 Q All right. When is the last time you had a
13 ruptured disc prior to the time that we just talked
14 about?
15 A 2001.
16 Q Did you have surgery?
17 A 2002, yes, ma'am, I had surgery.
18 Q Do you remember what disk that was?
19 A If you want me to tell the number, no,
20 ma'am, I can't tell you.
21 Q All right. Did you see the same doctor you
22 did for the one you --
23 A The same office.
24 Q The same group?
25 A The same group. Not the same -- not the
GUNTHER REPORTING
90
1 same doctor.
2 Q All right. What's the name of that group,
3 because I just want to make sure I --
4 A Atlanta Neurological.
5 Q Atlanta Neurological Associates?
6 A Is that what you've got there?
7 Q On Tree Lane Road in Snellville?
8 A Yes, ma'am.
9 Q All right. And with regard to the injury
10 you sustained in the summer of 2005 that we are
11 talking about, other than the doctors at Atlanta
12 Neurosurgical Associates did you go see anybody else
13 about that?
14 A Dr. Casteel.
15 Q Can you spell that, please?
16 A C-a-s-t-e-e-l.
17 Q Casteel?
18 A Linda. She's a woman.
19 Q And where is she located?
20 A Right there in Centerville around the
21 corner from us.
22 Q And what kind of doctor is she?
23 A She's a family practitioner.
24 Q And you had surgery for this disk?
25 A Yes, ma'am.
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91
1 Q And that was outpatient surgery?
2 A September 20 --
3 Q Outpatient?
4 A Yes, ma'am.
5 Q All right. Did you have to go to any
6 physical therapy or anything after that treatment?
7 A No, ma'am.
8 Q All right. The surgery that you received,
9 did that correct the problem you were having?
10 A Not entirely.
11 Q All right. Do you still see a doctor about
12 that?
13 A No, ma'am.
14 Q Okay.
15 A To correct it, it was just sciatic pain,
16 but it damaged the nerve and has left the right leg
17 numb.
18 Q Okay. Do you plan to have any other
19 treatment about your back, other than that which
20 you've already received?
21 A No, ma'am.
22 Q Let me tell you what I'm going to do,
23 Mr. McKinney. I don't have -- let me just kind of
24 give you an outline of what I've got to do here.
25 I've got a couple more documents and I need to ask
GUNTHER REPORTING
92
1 you about your counterclaims and a few other things.
2 I think what we'll do is we'll go for about 30
3 minutes, and we'll take a break for 30 minutes and
4 have something to eat; and then we'll come back, and
5 hopefully we can finish up in the middle of the
6 afternoon so we can all get home before everybody
7 else goes. All right?
8 A All right. So you want to go 30 more
9 minutes.
10 Q We'll go to one. Let's go to one, and then
11 let's just take a quick break, 30 minutes. You guys
12 can run out and get something. We'll do the same and (JOHN TABOR IS THERE)
13 come back and finish up. All right?
14 A (Nods head up and down.)
15 (Whereupon the document was
marked for identification as
16 Plaintiff's Exhibit No. 17.)
17 BY MS. TABOR:
18 Q All right. Mr. McKinney, we have marked
19 and you have been handed what has how been identified
20 as Plaintiff's Exhibit No. 17. I want you to take a
21 look at that; and if you can, tell me if you have
22 ever seen this document before.
23 A Yes, ma'am.
24 Q Okay. Can you tell us for the record what
25 is that document?
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1 A It has no title on it, so I'm not really
2 sure what it would be identified as. It looks like
3 it's from the Governor's Office of Consumer Affairs;
4 and I'll tell you right up front it would be best to
5 discuss this with Robyn.
6 Q Let me ask you: did you ever have any
7 discussions or conversations with anyone on behalf of
8 the Governor's Office of Consumer Affairs?
9 A Personally?
10 Q Personally with regard to Insulated Wall
11 Systems.
12 A No, ma'am. September 12th, my surgery was
13 scheduled September 19th. I was on heavy drugs.
14 Q Have you personally ever filed a complaint
15 against Insulated Wall Systems with the City of
16 Chamblee?
17 A I have not personally.
18 Q Do you know of any complaint that was filed
19 on your behalf with the City of Chamblee with regard
20 to Insulated Wall Systems?
21 A You'll have to ask my wife about that, but
22 I believe she did. I'm not sure.
23 (Whereupon the document was
marked for identification as
24 Plaintiff's Exhibit No. 18.)
25 BY MS. TABOR:
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94
1 Q You have been handed what has now been
2 marked as Plaintiff's Exhibit 18. I would like you
3 to look at that, and let me know if you can tell me
4 what that document is.
5 A It looks like correspondence with the
6 Better Business Bureau in Atlanta.
7 Q All right. Have you personally ever had
8 any correspondence or conversations with anyone on
9 behalf of the Better Business Bureau with regard
10 to --
11 A No, ma'am. Once again, my wife is handling
12 all of that.
13 Q Have you personally ever made any complaint
14 or charge against Insulated Wall Systems to any
15 governmental entity?
16 A No, ma'am.
17 Q Other than the complaints that we have just
18 referred to, to the Better Business Bureau, to the
19 City of Chamblee, to the Governor's Office of
20 Consumer Affairs, are you aware of any complaint that
21 was filed on your behalf with any other governmental
22 entity with regard to Insulated Wall Systems?
23 A You can get a more accurate answer from
24 her; but, no, I have not.
25 Q Okay. All right.
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95
1 A That doesn't mean it didn't happen.
2 Q I'm just asking for what you know.
3 A And even there I'm not sure; because, as I
4 told you, during that time period I couldn't testify
5 to much of anything.
6 Q From the time that the work was done back
7 in the fall of 2004, let's say from December 2004
8 until this lawsuit was initiated in I believe -- let
9 me get you the right date -- June of 2005, did you
10 have anyone, whether they be an inspector or another
11 contractor, come out and look at the work that had
12 been performed by Insulated Wall Systems?
13 A First of all, I'm going to object to the
14 work is done part. We never felt or believed that
15 the work is done; and by virtue of what is not done,
16 which is not fulfilled, and by the standard of work,
17 so I would object to that first part of the question.
18 Now, what was the last part.
19 Q All right. I move to strike as it's
20 nonresponsive.
21 And I'll rephrase the question. By
22 December of 2004 no one on behalf of Insulated Wall
23 Systems was working at your house, correct?
24 A That's correct.
25 Q All right. From that time period until
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96
1 June of 2005 did you have any home inspector, any
2 other governmental inspector, any builder, any
3 contractor, come out and look at the work that had
4 been done by Insulated Wall Systems?
5 A It would be best if you talked to my wife.
6 Q Do you have any knowledge?
7 A I believe we did is what I'm -- would be my
8 response, but I couldn't tell you specifically who it
9 was.
10 Q All right. Do you recall whether during
11 that same time period you had anyone come out and
12 give you an estimate to replace that work?
13 A Yes, ma'am, I believe we did. Again,
14 you'll have to refer to Robyn.
15 Q Other than the quote that we think you got
16 from Sequoyah, is it your testimony that you have
17 provided to me ever estimate that you have been
18 provided by another contractor with regard to
19 repairing or replacing the work that was done by
20 Insulated Wall Systems?
21 A I would have to check with her to answer
22 your question.
23 Q All right.
24 (Whereupon the document was
marked for identification as
25 Plaintiff's Exhibit No. 19.)
GUNTHER REPORTING
97
1 THE WITNESS: Okay.
2 BY MS. TABOR:
3 Q All right. Mr. McKinney, you've been
4 handed a document that has now been marked
5 Plaintiff's Exhibit No. 19. Now that you've had an
6 opportunity to look at it, can you tell me for the
7 record what this document is?
8 A It appears as if it's an engineering report
9 from Macon Gooch Consultants.
10 Q All right. And the letter is dated
11 September 28, 2005; is that correct?
12 A That's correct.
13 Q Has Macon E. Gooch, III, ever personally
14 inspected your home?
15 A I don't believe he has.
16 Q Who do you believe did the inspection?
17 A Nathan, his son.
18 Q Nathan, Jr.?
19 A Nathan, Jr.
20 Q Okay. All right. And when did -- I'm
21 going to call him Mr. Gooch, but I'm referring to
22 Nathan.
23 A Okay.
24 Q When did Mr. Gooch come out?
25 A You would have to discuss that with my
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98
1 wife.
2 Q Did you employ Mr. Gooch to come out?
3 A He was employed on my behalf, yes, ma'am.
4 Q All right.
5 A Ma'am, I was in no position to employ
6 anybody.
7 Q All right. I move to strike as
8 nonresponsive.
9 Did you employ him?
10 A Personally?
11 Q Yes.
12 A No, ma'am.
13 Q Okay. All right. When he came out to
14 inspect the home, were you present?
15 A I was in the house on my back.
16 Q Okay. Did you have any conversations with
17 him?
18 A No, ma'am.
19 Q And that was handled by your wife?
20 A Yes, ma'am.
21 Q Now, I've asked you the time period between
22 the cessation of work and the initiation of the
23 lawsuit. I'm going to follow-up with that and ask
24 from the time this lawsuit was filed in June of 2005
25 until Mr. Gooch came out, do you know of any other
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1 inspectors that came out to look at your house?
2 A No. The answer is no. I would refer you
3 to my wife.
4 Q All right. Other than Mr. Nathan Gooch, do
5 you know of any other inspectors that have come out
6 to look at your home since then?
7 A Yes, ma'am.
8 Q Okay. Who would that be?
9 A Keith Cook. You will be receiving that
10 report soon.
11 Q All right.
12 A He's with Home Smart, and we have the eight
13 page report that you -- as soon as we get a signed
14 copy or a certified copy or whatever it's supposed to
15 be, we will be updating our discovery.
16 Q Okay. Anybody else?
17 A No, ma'am.
18 Q Since you are telling me that you are going
19 to be sending me a report from Mr. Cook, are you
20 going to designate him as an expert?
21 A Yes, ma'am, more than likely.
22 Q All right. What about Mr. Gooch?
23 A Yes, ma'am, more than likely.
24 Q All right. Other than this document we
25 have before us signed by Nathan Gooch, do you have
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100
1 any other documents that Nathan Gooch has authored
2 with regard to his inspection?
3 A This is the 19th?
4 Q Yes.
5 A No, ma'am. I believe this is the only one.
6 Q This is all you have. Okay. All right.
7 All right. We've got a few minutes, so we might as
8 well keep on going.
9 All right. I want to refer now,
10 Mr. McKinney, to your affirmative defenses in
11 counterclaim that you have filed in this lawsuit; and
12 I've got my copy of it here, and at any time you want
13 to look at it, I'll be glad to let you refer to it.
14 In the answer you have listed several
15 affirmative defenses; and since you are operating as
16 your own counsel, I would like to ask you the basis
17 for which you have asserted a couple of these
18 defenses. The first one I would like to ask you
19 about is the third defense, Plaintiff's claims are
20 barred by the doctrine of estoppel. What does that
21 mean to you?
22 A Estoppel means you are prevented from
23 saying certain things that are not true is the way I
24 understand it.
25 Q Okay.
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1 A I will have to go back. It has been a long
2 time since I did that. I went through the
3 understanding that brought me to that reasoning; and
4 of course as things move along, I will have to go
5 back and reestablish that understanding.
6 Q Are you contending in this lawsuit that the
7 Plaintiff has no right to pursue you for damages
8 because -- well, I guess that's my question. Are you
9 contending in this lawsuit that the Plaintiff has no
10 rights to bring a lawsuit against you?
11 A Yes, ma'am.
12 Q Okay. And on what basis?
13 A That the contract is not fulfilled is the
14 first one.
15 Q All right.
16 A The second one is --
17 Q Have you heard the phrase breach is good?
18 A Excuse me?
19 Q Have you ever heard the phrase breach is
20 good?
21 A No, ma'am.
22 Q All right. The next question is your
23 eighth defense which is: the plaintiff through its
24 negligence and fraud has an assumption of the risk.
25 Can you tell me what you meant by that statement?
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1 A My understanding of that is that when you
2 take on a job, you assume the risks, you know, you
3 assume -- gee, I feel like I'm in law school 101 --
4 you know, it's like any job that we had as an
5 engineer. If I take it on, I assume the risks of
6 failure.
7 Q Of failure?
8 A Yes, ma'am.
9 Q All right. And we touched on this a little
10 bit ago. Can you articulate for me what facts you
11 have to support that the Plaintiff has engaged in
12 defrauding you?
13 A Professional is the first word that comes
14 to mind, professional work. The work is not
15 professional. If we go into the contract and talk
16 about the things that my understanding as a contract
17 was, I believe the contractor agrees to do all work
18 in a good and workmanlike manner. The term he used
19 most often was professional. The engineering reports
20 that we have show it's not anywhere close.
21 You have every -- my understanding of the
22 acknowledgment of the completion of work signed by
23 the owner of said premise shall be sufficient notice.
24 When I look at sufficient, I see a required notice;
25 in other words, you can't get to Florida without
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1 sufficient gasoline; and this is the way it was
2 explained to me. Okay. That there would be a
3 walk-through. There would be a checklist of all --
4 to make sure all the items were done in the contract.
5 There would be a punch list created of things that
6 needed to be fixed and --
7 Q Let me ask you a question: let's say --
8 A I would like to finish.
9 Q Okay. Go ahead. I'm sorry. Go ahead.
10 A There will be a punch list, and he would
11 come back and he would fix these things.
12 Q Okay.
13 A There would be a sign-off sheet. I would
14 sign off, and then I would hand him the money. That
15 was explained that way in pretty much detail.
16 Q All right. Let me ask you a question:
17 using that rationalization, hypothetically the
18 work -- you signed the contract and the work is
19 performed. Mr. Tabor comes out, and you have a
20 walk-through.
21 A That hasn't occurred.
22 Q This is a hypothetical question.
23 A Okay.
24 Q But he doesn't bring a form for you to
25 sign, has the contract been fulfilled?
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1 A If the work had been done in a professional
2 manner and all the items, we could have pulled out a
3 white piece paper.
4 Q Well, let's just say he says I'm not going
5 to sign anything else. Do you think then because he
6 wouldn't sign a piece of paper --
7 A Well, of course not.
8 Q Okay.
9 A But the items certainly had to be done on
10 the contract.
11 Q I understand, and my hypothetical
12 question --
13 A Am I hung up on a piece of paper? Is that
14 the point you are trying to make?
15 Q I'm just trying to get a better
16 understanding --
17 A I mean it is what the contracts says.
18 Acknowledgement --
19 Q You just told me certain things that you
20 understood the contract to be --
21 A I understand.
22 Q -- including a walk-through, a punch list,
23 and a sign-off sheet; and my question to you was:
24 hypothetically speaking the work was performed, a
25 walk-through was done and there was no punch list,
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1 has the contract been fulfilled?
2 A If the work had been done --
3 Q That's my question.
4 A If the work had been done in accordance
5 with the contract, the listed items, is it absolutely
6 necessary? I can waive that if I wanted. Would I
7 hold off paying him because he didn't have a piece of
8 paper? No, ma'am.
9 Q Under your interpretation of the contract,
10 because part of the form says and I quote: The
11 acknowledgment of the completion of the work signed
12 by the owner of said premises shall be sufficient
13 notice that this contract has been satisfactorily
14 completed by the contractor on the day thereof in
15 accordance with the terms of the contract.
16 I'm asking you: do you believe that such
17 signature was necessary, hypothetically speaking, if
18 all the work is performed properly and all the
19 repairs that you want have been done, does that piece
20 of paper signed by you at your --
21 A I'm not a lawyer, ma'am.
22 Q No, sir, but you are acting as one. So
23 here is my question: or is it your contention that
24 this contract as you understand it says that unless
25 and until you sign off on work, you don't owe any
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1 money?
2 A No, ma'am. That's kind of ridiculous, but
3 I have looked up that sentence, and you can find that
4 exact sentence on the Web. It's in the FHA
5 contracts. It's a completion certificate. It's
6 usually a formal situation where --
7 Q Mr. McKinney, I move to strike as
8 nonresponsive. That's not my question.
9 A To answer your question in a legal sense, I
10 can't because I'm not a lawyer.
11 Q Okay. Paragraph 42 of your complaint, or
12 counterclaim we'll call it. It says: Plaintiff's
13 first breach occurred on or about September 22, 2004,
14 and subsequent breaches as follows. See exhibit.
15 All right. My question to you, and I'm
16 going to let you look at this, is: I want to know
17 what you think the first breach of that contract was.
18 A We received the windows on September -- I
19 believe they were late -- on September 22nd, and we
20 received them, and they do not have argon gas.
21 Q Okay. You believe that the first breach of
22 the contract was the fact that the windows were not
23 constructed with argon gas?
24 A Were not ordered with argon gas.
25 Q Okay. My question was: they were not
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1 constructed with argon gas?
2 A That's a fact. They were not constructed
3 with --
4 Q Okay.
5 A -- and we did not receive windows with
6 argon gas.
7 Q And when did you become aware of the fact
8 that those windows did not have argon gas?
9 A It would be best if you talked to my wife.
10 She pulled the labels off. When the windows were
11 delivered, she pulled several labels off; and she
12 talked to Jimmy at that point.
13 Q So she was --
14 A When she was looking at the label and said,
15 Do these windows have argon gas? And he said no, and (SOMEONE ADDED THE WORD NO)
16 then they had a conversation. It would be better if
17 she --
18 Q All right. Well, that's fair enough.
19 But you have some understanding that prior
20 to the installation of these windows there was some
21 question of whether they possessed the argon gas?
22 A Yes, ma'am.
23 Q Okay. All right. Paragraph 43 of your
24 counterclaim says, and I quote, Plaintiff's breach is
25 total, and it is the direct cause of damage to
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1 Defendant and to the residence, which includes among
2 other things a loss in market value and saleability
3 of the residence, plus the cost of repairing and
4 replacing Plaintiff's improper and defective work on
5 Defendant's residence.
6 Okay. My question is: you're making an
7 allegation in there that the work done by the
8 Plaintiff has resulted in a loss in market value to
9 your home; is that right?
10 A That was the alleging, yes.
11 Q And have you had anyone qualified in the
12 field of appraising real estate inform you that the
13 work that was done by the Plaintiff has in some
14 manner devalued the value of your home?
15 A No, ma'am.
16 Q Okay. All right. I tell you what. It's
17 almost 1:00 o'clock, and we are going to go into a
18 new subject. So why don't we stop, and we'll come
19 back at 1:30. All right?
20 A What time do you want to come back?
21 Q 1:30. All right?
22 A Fair enough.
23 (A short lunch break was held.) (JOHN TABOR IS THERE)
24 BY MS. TABOR:
25 Q All right. We're back on the record.
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1 Okay. Mr. McKinney, prior to lunch we were
2 discussing certain aspects of your counterclaim, and
3 I want to go back to that. All right?
4 A Yes.
5 Q Count 2 is entitled, Assumption of Duty.
6 What do you mean by assumption of duty? What kind of
7 legal claim is assumption of duty?
8 A Well, I thought I looked it up in Georgia
9 law, but I may have not been thorough enough in that
10 respect; but to me assumption of duty is -- I've seen
11 the elements. In fact -- well, to tell you the
12 truth, I haven't really reviewed them lately. So
13 that's what? Almost a year-and-a-half old.
14 Assumption of duty is that when he takes on
15 a task like the deck or the slab, when a contractor
16 takes on that, he assumes a certain amount of duty to
17 the safety of the people and the safety of the house.
18 Q Okay.
19 A Now, that may be modified, you know, to
20 represent what Georgia would call it.
21 Q All right. In paragraph 47, and I'll go
22 ahead and read it to you: Plaintiff's failure to
23 exercise reasonable care in the construction of the
24 deck has damaged Defendant's residence in that the
25 entire bay area bump out, which consists of two
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1 windows and a door, have sunken, making the door not
2 function properly since work stopped uncompleted on
3 November 2, 2004.
4 Tell me what you mean by that statement.
5 A I believe you saw the door. What we think
6 happened between the deck and even the siding on the
7 window sides of the door, there was so much wood
8 taken off -- I mean what I really know more than
9 anything else is that before construction started the
10 door worked just fine. After, it didn't work at all.
11 Q Have you had anybody who has inspected the
12 home look at the home on your behalf since the
13 construction done by the Plaintiff and indicate to
14 you that they think that that area has sunken making
15 the door not function?
16 A I think it may be on the report, the
17 engineering report.
18 Q Are you referring to Exhibit 19, the Macon
19 Gooch letter?
20 A Yes, ma'am.
21 Q All right.
22 A Yes, number 7.
23 Q Number 7. Okay.
24 A A section of that appears to have settled,
25 causing the door on the deck to not open properly.
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1 Q All right. In Paragraph 48 it says:
2 Plaintiff's failure to exercise reasonable care in
3 the construction of the deck in accordance with
4 Gwinnett County building code has exposed Defendant
5 and Defendant's family to a hazardous condition and
6 risk of injury in that the deck is not properly
7 attached to the house or supported or braced, the
8 stairs are not reinforced, and the landing is
9 insufficient in size to be safe, among other things.
10 Tell me what hazardous conditions and risks
11 of injury you are referring to in that paragraph.
12 A The hazards are for starts --
13 Q Okay.
14 A -- the stair -- the step sizes are of
15 different heights. Okay.
16 Q Okay.
17 A So anybody that walks down the stairs with
18 different heights -- I don't know if you have stairs
19 in your home, but you can imagine what would happen
20 if you've got stairs of different heights. That's
21 the first one.
22 Q Okay.
23 A The -- let's see. We were talking about
24 the landing. The landing is way too small. So what
25 happens if you are moving at any speed whatsoever, if
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1 you walk down that and you hit that landing and it is
2 so small you cannot get your balance, you start
3 tumbling over.
4 Q All right.
5 A The stair treads themselves, you can
6 already see they are cracking. There is no support
7 there. They are too long for their -- for the -- the
8 span is too long is what I understand. I think it's
9 in the engineering report.
10 Q Okay.
11 A And that whole area of the deck underneath
12 the bay area is supported by approximately 16 nails
13 and into rotten wood.
14 Q Okay. All right. Paragraph 49 says:
15 Plaintiff's failure to exercise reasonable care in
16 the construction of the deck in accordance with
17 Gwinnett County's building codes has exposed the
18 Defendant's residence and deck itself to hazardous
19 conditions that further risk damages from collapse.
20 Have you had anyone indicate to you that
21 the deck is going collapse?
22 A Yes, ma'am.
23 Q Who?
24 A I mean the question is not whether or not
25 it's going to collapse. It's when.
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1 Q Okay. My question was: who told you it was
2 going to collapse?
3 A Well, to actually testify in this thing
4 I'll have to read this over to -- well, the deck as
5 constructed is unsafe and remedial action must be
6 taken.
7 Q And what are you referring to, sir?
8 A 12.
9 Q 12 talks about the septic tank.
10 A Yeah. The sentence down below it. This
11 deck as constructed is unsafe for --
12 Q Okay. I see it. Okay. So this deck as
13 constructed is unsafe and remedial action must be
14 taken. And so from that you are taking it that the
15 deck itself will collapse?
16 A That area over there, it's possible in my
17 opinion.
18 Q Okay. And that's your opinion, but has
19 anybody told you that the deck will collapse?
20 A Well, actually no.
21 Q Okay.
22 A But, then again, the best person to consult
23 with that question is you know who.
24 Q All right. Okay. Paragraph 52 says:
25 Plaintiff completely destroyed Defendant's stated
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1 purpose for contracting the slab, which was for a
2 future screened-in porch attached to the house. The
3 slab Plaintiff provided is totally unsuitable for
4 this purpose and is deteriorating after age 12 months
5 and will continue if not corrected, potentially
6 leaving the home unmarketable.
7 Is it your contention in this lawsuit, sir,
8 that if that slab deteriorates that your home is
9 unmarketable?
10 A What I understand from the way he described
11 it, since it's not on compacted soil and there are no
12 footers there, if you take a look at the deck from
13 the side viewpoint, from the side you have a deck
14 that looks like that. I mean a slab that looks like
15 that. As this moves downward, it's going to break
16 somewhere in there.
17 Q The slab itself may crack is what you are
18 saying?
19 A It's more than crack. It can break, and
20 this could keep moving down. That's very well
21 possible.
22 Q The remainder of the slab?
23 A Yes, ma'am.
24 Q The portion furtherest from the house?
25 A Yes, ma'am.
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1 Q And my question was: how does this leave
2 your house unmarketable?
3 A Well, nobody is going to buy it if it does
4 break.
5 Q So no one has told you if that happens, the
6 home is unmarketable?
7 A No, but it stands to reason.
8 Q So that's just your conclusion?
9 A A loss of value.
10 Q All right. Moving on to Count 3, the
11 heading would be, Negligent Installation Home
12 Improvement. At Paragraph 61 it says, Even though
13 many rotten boards on the Defendant's residence were
14 removed, Plaintiff failed to replace those boards
15 with new wood. Instead the Plaintiff used quarter
16 inch foam board pieces as no wood was delivered for
17 this purpose.
18 If you'll turn that over, Plaintiff's 2, if
19 you'll refer to that, sir, can you tell me wherein it
20 indicates that rotten wood that was removed was to be
21 replaced with wood?
22 A It's not in the contract. It's in the
23 installation manual of siding.
24 Q Are you aware, sir, that there are
25 thousands of homes in Gwinnett County alone where
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1 vinyl siding is attached to homes that has no other
2 structure but foam?
3 A Yes, ma'am, and I also know that they
4 changed the law on that apparently and they require
5 it now.
6 Q Okay.
7 A And the reason was because people can punch
8 right through the siding.
9 Q I move to strike. Nonresponsive.
10 All right. Moving on to count number five,
11 paragraph two says: Plaintiff's representatives
12 complete lack of any effort to satisfy the Defendant
13 is evidence that Plaintiff's representative knew that
14 the statements were false at the time he made them.
15 Actions speak louder than words.
16 Specifically what statements are you
17 referring to that at the time that they were made
18 were false?
19 A Professional work. The walk-through, the
20 whole story line of how it was going to work. I mean
21 I can't -- I'll have to look at my counterclaim and
22 think about it for a while.
23 Q Okay. Well, we're doing this now. We're
24 not thinking about it for a while. You are entitled
25 to look at it. (Hands document to witness.)
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1 A Which one were you referring to?
2 Q I'm sorry. Paragraph one and then two.
3 A Okay. Well, it's more or less what I
4 stated here. All I was presented with was a card and
5 a contract with satisfaction guaranteed before
6 payment; and that he wouldn't even try to make or
7 collect payment until all the things in the contract
8 were completed to my satisfaction --
9 Q Okay.
10 A -- in accordance with the contract.
11 Q All right. Let me ask you this, sir: just
12 hypothetically speaking --
13 A I mean usually when people tell me
14 something and they lay out how it's going to work and
15 then they do something diametrically opposite of
16 that, that's not fulfilling the contract.
17 Q Let me ask you this question: are we -- can
18 we agree that cost or the amount of money that you
19 were charged for the slab was $1400?
20 A That was the quote, yes, ma'am.
21 Q Okay. And, in fact, a slab was poured?
22 A Concrete was poured.
23 Q Yes. And the dimensions of that slab of
24 concrete was somewhere close to those listed in the
25 contract; is that correct?
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1 A The dimensions?
2 Q Yes.
3 A Yes, ma'am.
4 Q Okay. And you're not satisfied -- let's
5 just speak in hypothetical terms. Let's say that you
6 became unsatisfied with that work because water was
7 running down from the drain from the gutter and
8 running across it and may cause some damage to it.
9 We are just making this up.
10 All right. Under the premise of
11 satisfaction guaranteed, is it reasonable in your
12 opinion to have the contractor then jackhammer up
13 that slab, put in a drain underneath it, and then
14 pour another one on top of it?
15 A I would prefer not to answer it.
16 Q Well, you have to answer, sir.
17 A I mean hypothetical situations?
18 Q Yes, that's all it is.
19 A I really don't think so.
20 Q That's too much to ask?
21 A Yes.
22 Q Okay.
23 A Because that's not what I'm asking for.
24 Q It's just a hypothetical situation.
25 A You know, there are so many factors that go
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1 into one making a decision such as the one that I've
2 made, that to narrow it down to one narrow thing I
3 think is most inappropriate; and it certainly can't
4 be answered in any positive way.
5 Q All right. I move to strike as
6 nonresponsive.
7 Do you think it's reasonable hypothetically
8 speaking that if you or someone on your behalf was
9 aware prior to the installation of the 13 replacement
10 windows, that they may not contain argon gas, that
11 it's reasonable to demand that the contractor remove
12 all those windows and replace them with ones with
13 argon gas?
14 A It's reasonable to expect him to replace
15 the sashes. That's what could have been done.
16 Q The sashes?
17 A Yes, ma'am.
18 Q Okay.
19 A Very low priced compared to the entire
20 window.
21 Q At any time have you ever requested that
22 Insulated Wall Systems replace the sashes on those
23 windows?
24 A No, ma'am. I didn't find that out until
25 months later that that could be done. I'm not a
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1 contractor.
2 Q Do you have any knowledge one way or the --
3 A I mean I think -- let's go back.
4 Q I'm sorry. I'm asking a question.
5 A I'm sorry. I didn't mean to interrupt.
6 Q Do you have any knowledge one way or the
7 other -- do you have any knowledge one way or the
8 other whether or not the deck that was on your house
9 previously met Gwinnett County building codes?
10 A At the time it was built, yes, ma'am.
11 Q And were you aware of that at the time that
12 you contracted with the Plaintiff for the new deck?
13 A I'm sorry. I didn't follow you there.
14 Q What I'm trying to find out is: at the time
15 you contracted with the plaintiff for a new deck,
16 whether or not you knew that the old deck met
17 Gwinnett County building codes?
18 A It probably did not. I don't know for
19 sure, but probably --
20 Q You don't know? Yes or no. You either
21 know or you don't know.
22 A Well, that depends on whether you are
23 asking the question at the time the house was built,
24 I'm pretty sure it was to code.
25 Q But do you have personal knowledge whether
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1 it was or not?
2 A No, ma'am.
3 Q At the present time you contracted for this
4 deck with the Plaintiff, did you have any discussions
5 with Mr. Tabor or anybody else on behalf of the
6 Plaintiff about building codes before you built the
7 deck?
8 A Oh, yes, ma'am.
9 Q You did?
10 A Yes, ma'am.
11 Q Okay. Tell me about that.
12 A All right. I'll start with the contract.
13 Strict accordance with --
14 Q No, no, no, no. I said did you have any
15 conversation?
16 A Oh, yes, ma'am.
17 Q Okay. That's what I want to know.
18 A Yeah. I asked him point blank if permits
19 were required. He said no. My wife asked him point
20 blank is it going to be built to code; and he said,
21 yes, ma'am. Or yes, sir. No, I guess he said, yes,
22 ma'am.
23 Q Let me ask you this: so there were no
24 permits issued on these jobs, correct?
25 A That's correct.
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1 Q What damage have you suffered by the fact
2 there was no permit issued?
3 A Well, none yet.
4 Q What damage are you going to suffer because
5 no permit was ever issued?
6 A My understanding is if the inspector came
7 out and if he does inspect it, I will be charged for
8 certain -- I don't know how much money.
9 Q Okay. What permit? A building permit?
10 You are complaining that no building permit was
11 issued by Gwinnett County --
12 A As I understand --
13 Q Let me ask my question. You are
14 complaining that no building permit was issued by
15 Gwinnett County for this work, correct?
16 A (Nods head up and down.)
17 Q Yes?
18 A Yes, ma'am.
19 Q And I'm asking you what damage, first of
20 all, what damage have you suffered because no permits
21 were issued?
22 A None right at the moment.
23 Q What damage do you anticipate that you are
24 going to suffer?
25 A Money.
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1 Q From whom?
2 A Gwinnett Planning Commission.
3 Q And how are they --
4 A They have code enforcement that charges you
5 a certain amount of money for not getting the
6 permits.
7 Q So hypothetically speaking if a year ago I
8 went out and I built a screen porch on the back of my
9 house, and the county inspector comes out today and I
10 as the homeowner don't have a copy of the permit for
11 it, you are contending that you can be cited by the
12 County because you don't have it?
13 A That's my understanding, yes, ma'am.
14 Q All right. Where did you --
15 A And it's not --
16 Q Wait a minute. Where did you acquire this
17 understanding?
18 A Asking the people at Gwinnett Planning
19 Commission, the county commissioners.
20 Q In a telephone call to the commissioner's
21 office?
22 A Actually I went up there.
23 Q You went up there. Okay.
24 A Yes, ma'am.
25 Q Do you remember who you talked to?
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1 A No, ma'am.
2 Q All right. But no one on behalf of
3 Gwinnett County has ever come out to check on this
4 work?
5 A No. Not as of yet, no.
6 Q All right. In your discussions --
7 A But --
8 Q In your discussions with folks at Gwinnett
9 County, did they indicate to you that they perform
10 surprised or random inspections to see if people
11 actually had building permits?
12 A No. What they did tell us is that when we
13 did decide to build, we would have to get a permit.
14 They may come out and inspect; and then when they
15 start inspecting one thing, they generally speaking
16 inspect everything.
17 Q All right. So what you are telling me is
18 that if they come out to your home today because you
19 might be putting up a screened-in porch and you have
20 applied for a building permit, if you cannot produce
21 to them the building permit for the house itself, you
22 might get cited?
23 A To answer your specific question, it's not
24 me who has to present it.
25 Q Well, who would have to present it?
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1 A It's in the computer system.
2 Q Okay.
3 A They already know.
4 Q Okay. But if they don't have one on
5 file --
6 A They could cite me.
7 Q -- they could cite you?
8 A Yes, ma'am. That's what they said.
9 Q All right. All right. May I have that
10 back, please, sir.
11 A (Hands document back.)
12 Q Okay. Going on to count six, conspiracy,
13 who is in a conspiracy?
14 A I guess you and your husband.
15 Q Okay. And what conspiracy is that?
16 A I don't know.
17 Q You don't know? You pleaded conspiracy in
18 court, sir. You need to tell me what the conspiracy
19 is.
20 A Well, the conspiracy is trying to cram this
21 shoddy work down my throat.
22 Q All right. That's it?
23 A Yeah.
24 Q And how have I conspired to do that?
25 A Well, you are an acting lawyer.
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1 Q And so any time anybody performs any work
2 and someone doesn't pay for it and they hire a
3 lawyer, the lawyer is now in a conspiracy with their
4 client?
5 A No, ma'am.
6 Q No?
7 A No, ma'am.
8 Q Well, then can you tell me how other than
9 representing the Plaintiff in this lawsuit I have
10 become --
11 A And I keep asking myself does a husband and
12 wife have the unity of interest? Yes, ma'am, they
13 do.
14 Q So that's it? Merely a familial
15 relationship creates a conspiracy?
16 A A familial relationship.
17 Q That's it?
18 A It depends on what you are trying to do
19 with it.
20 Q Well, sir, I want you to tell me what that
21 is.
22 A You are trying to cram the -- using the
23 power of the state to force this shoddy work down my
24 throat. Both of you are.
25 Q Would you not agree with me that everybody
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1 is entitled to their day in court?
2 A Ma'am --
3 Q Answer the question.
4 A I don't know under the circumstances.
5 Q All right. Is there a possibility in this
6 lawsuit that if I follow proper channels and file a
7 lawsuit and go before a jury that you may prevail?
8 A Yes, ma'am.
9 Q And if you're right, you should prevail?
10 A Yes, ma'am. I think that --
11 Q Okay. And then how in the world is filing
12 a lawsuit a conspiracy?
13 A Well, it puts a lot of pressure on folks
14 like me.
15 Q So the only people involved --
16 A You're trying to set me up to spend 20,
17 $25,000 to hire an attorney, which he knows how --
18 he's as much a lawyer as you are, ma'am, and you know
19 it.
20 Q I move to the strike as nonresponsive.
21 Sir, are Mr. Tabor and I the only two
22 people in this conspiracy?
23 A Well, I don't know; and we are thinking
24 about adding some more, because some of the comments
25 like Keith Payne, he was telling us it was being
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1 built to code left to right, for example. So is he
2 being instructed to do that?
3 Jimmy, for example, he was telling us that
4 the window had argon gas, even though it was not on
5 the label. So I don't know. I mean it's a
6 consideration. We shall see.
7 Q All right. Okay. Count number seven says
8 conspiracy to commit extortion. Can you tell me how
9 that differs from conspiracy?
10 A Well, to me extortion is trying to use
11 force or -- threats or force to get want you want.
12 Q All right. But you just told me with
13 regard to count six that that's what I was doing. So
14 I want to know why you have two counts in here. You
15 are making a distinction.
16 A May I take a look at that?
17 Q Sure.
18 A Well, can I ask for a legal opinion?
19 Q Well, you are acting as your own lawyer.
20 So I have every right to ask you what that is.
21 A Yeah. And I also reserve the right to
22 modify the claim if need be, which you may have a
23 point.
24 Q You need to answer the question the best
25 you can. What is conspiracy to commit extortion?
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1 How is that different from conspiracy?
2 A It may not be different.
3 Q All right.
4 A But I don't know that for sure. I will
5 have to go back and study it and try to make a
6 determination if that's the case; and if it is, then
7 I will make appropriate modifications.
8 Q Okay. How is the lien on your house
9 unlawful?
10 A Because he didn't have the right to file a
11 lawsuit and he didn't have the right to put the lien
12 is the way I understand it.
13 Q Would you not agree that there is a certain
14 amount of product that is on your home that you did
15 not purchase?
16 A And he will get that product back.
17 Q That's not how things work. Would you
18 agree there is a certain amount of material on your
19 home that you did not purchase that was actually
20 purchased by the plaintiff?
21 A Yes, ma'am.
22 Q Okay. In paragraph or subparagraph number
23 130, It's a matter of record the federal definition
24 of extortion is the obtaining of property from
25 another without his consent induced by wrongful use
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1 of actual or threatened force or violence or fear and
2 under color of official right.
3 What property of yours has been obtained
4 from you without your consent?
5 A None.
6 Q Okay.
7 A It's an attempted extortion.
8 Q Count eight is intentional infliction of
9 emotional distress. Is it your contention in this
10 lawsuit that you personally have the legal right to
11 forward or attempt to recover for any damages
12 suffered by your wife?
13 A Of course not.
14 Q All right. The same question with regard
15 to your mother.
16 A No, of course not, but whatever suffering
17 they go through I suffer as well.
18 Q I move to strike as nonresponsive.
19 A And what he did was in the presence of all
20 of us.
21 Q I move to strike as nonresponsive.
22 What is your date of birth?
23 A January 31st, 1951.
24 Q All right. I'll want to ask you a question
25 about a document that you e-mailed me. I don't want
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1 to make it an exhibit. I just want to talk about it
2 a little bit. It was a project inspection checklist;
3 do you recall that?
4 A Uh-huh.
5 Q Yes?
6 A Yes, ma'am. I'm sorry.
7 Q Is that something that you prepared?
8 A No, ma'am. It's something my wife
9 prepared.
10 Q Have you looked at it?
11 A Yes, ma'am.
12 Q Okay. And I want to let you look at it in
13 detail, and I want to ask you some questions about
14 it.
15 A Okay.
16 Q Is it your contention in this lawsuit that
17 each and every one of those things enumerated therein
18 is somehow or another a breach of the agreement you
19 had with the Plaintiff?
20 A Is it my contention for every one of them?
21 Q Yes, sir.
22 A Gosh, you would have to ask about each one
23 in particular; but the vast majority, yes, ma'am, and
24 possibly all of them.
25 Q Okay.
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1 A I mean, yes, it's all of them I guess. I
2 mean everything I see here.
3 Q Okay.
4 A Now, with so many it's, you know, I
5 hesitate to say -- well, no. Yes, I have to say it's
6 my contention.
7 Q All right. Before I forget about it I want
8 to ask you a question kind of out of context; but
9 earlier I asked you if you had a business that you
10 ran out of your home, and I believe your testimony
11 was you didn't.
12 A Uh-huh (affirmative).
13 Q I don't want to have a Bill Clinton moment
14 here. You don't have a business you run out of
15 anywhere on that property, do you?
16 A I have -- I make pepper mills in the barn,
17 but I don't, you know, do I call it a business? I
18 don't think so.
19 Q But that's something you sell on the
20 Internet?
21 A A few of them, yes, ma'am.
22 Q Okay. Do you market them in any other
23 ways?
24 A No, ma'am.
25 Q When you have a chance to look at that, if
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1 I could see it. I can ask you some questions about
2 it.
3 A Okay.
4 Q Okay. Was there ever any discussion with
5 the Plaintiff prior to the work being done that some
6 sort of written plans were going to be drawn up and
7 submitted to the county?
8 A Of course not. I didn't know any of this
9 then. He was the contractor. He was supposed to
10 know.
11 Q All right. And if no plans were drawn up
12 and submitted to the county, have you been damaged by
13 that?
14 A Well, we can go back to the building
15 permits, which I could be damaged by not getting
16 building permits. You can't get a building permit if
17 you don't have a plan.
18 Q Okay. Hypothetically speaking let's just
19 say that a deck was constructed on the back of your
20 home, and it is in accordance with the Gwinnett
21 County codes, but there was no plan drawn up and no
22 building permit was issued. Would you be damaged by
23 the fact that the plan and the permit had not been
24 issued or drawn up?
25 A Ma'am, at the time if he had built a deck
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1 in accordance with the contract --
2 Q That's not my question. Would you please
3 answer the question?
4 A No. The answer to your question is no.
5 Q Okay. All right.
6 A What we are pointing out is what the
7 contractor's duties were.
8 Q I move to strike. Nonresponsive.
9 Tell me specifically, and I'm talking in
10 terms of injury, what is the harm that could come to
11 individuals from the deck?
12 A There's one place in particular that
13 someone can bust their head wide open on the slab.
14 Q I'm talking about the deck.
15 A Yes, ma'am, you are; but let me show you
16 how to get there real quick.
17 Q Absolutely.
18 A All right.
19 Q If you need a piece of paper, I'll give you
20 a piece of paper.
21 A I mean that one is just an accident waiting
22 to happen.
23 Q Okay.
24 A I'm going to give you a side-view where the
25 stairs are as you come down. Okay. The problem is
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1 the artist. I can't draw, so you'll just have to
2 forgive me. And down here is the slab, and these are
3 the steps; and I don't know if you recall the --
4 shoot. I can't draw 3-D. I shouldn't even try; but
5 the last step is about an inch-and-a-half taller than
6 the rest of the steps going up the upper staircase.
7 You didn't bring the pictures, did you?
8 Q I don't have any.
9 A Okay. That last step is about an
10 inch-and-a-half taller. So what you do is when you
11 are coming down the stairs, that last step represents
12 a trip hazard. Now, you've tripped. Okay. Imagine
13 you've tripped and you're going to fall forward where
14 you are going to hit the rail that's part of the
15 lower platform. That rail is -- there's a 4 x 4, and
16 the rail is like this, and it's nailed I think right
17 in there. Yes. It's barely hanging on. The first
18 trip -- the first time somebody trips it's going to
19 probably knock that rail off. The person is going to
20 wind up in the slab and bust his head wide open, and
21 that's about a four foot drop there.
22 Q Okay. And that's on the last -- I remember
23 that the stairs kind of turn.
24 A It's the middle platform.
25 Q Okay. All right. Anything else?
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1 A Oh, gosh. Yes. I mean the bay area. I
2 mean we've got 16 nails into rotten wood. That's
3 going to give sooner or later. The rails -- the
4 rails on all three sides, I can push up to four
5 inches from the center line. They are supposed to
6 hold up to 250 pounds I believe, and that's not going
7 to happen. So I mean there's four or five areas that
8 are unsafe on the deck, very definitely.
9 Q What's wrong with the deck pickets?
10 A They are all bowed and they are beyond the
11 four inches.
12 Q What is the four inches?
13 A The four inches between the pickets.
14 Q And where does this standard come from?
15 A The standard comes from the building code
16 apparently; and it's to keep small animals and small
17 children from falling off of the deck. In some
18 places there are not even pickets. So if I have, you
19 know, granddaughters or other people with their
20 children, they are not going out on the deck.
21 Q Has anybody who has given you an estimate
22 that you are aware of said they would put a slab up
23 out there for about $1400?
24 A The least amount of the ones I've had is
25 $1800. Most of the slab quotes that you get, they
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1 include tearing it out. It's going to be about a
2 thousand dollars to tear it out. Like one of them
3 has $2500. So a thousand dollars to tear it out.
4 He's $1500. In other words, you seem to be trying to
5 say that -- I mean at the time I didn't know anything
6 about construction costs, and Mr. Tabor was giving
7 the freedom to charge whatever you want. I mean
8 quote whatever you want.
9 Q I move to strike as nonresponsive.
10 There is a high-risk of harm with the
11 windows as done is number five under the window
12 sheet. What does that mean?
13 A They've not got tempered glass inside the
14 living room.
15 Q And so?
16 A When a window is below a certain area, you
17 are supposed to have tempered glass in them; and the
18 reason is for protection of children, because they
19 can bust out the window and fall out the window.
20 Kids do that all the time.
21 Q Were there any discussions ever with
22 Mr. Tabor about having tempered glass due to where
23 they were in the house?
24 A No, ma'am. That's part of the -- that's
25 part of the building codes.
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1 Q You didn't contract for a window with
2 tempered glass, did you?
3 A But we contracted for a window that was in
4 that slot; in other words, it was down to this point.
5 Q Right.
6 A Okay. We thought we were dealing with a
7 professional contractor that knew what he was doing.
8 Q Do you have any small children in your
9 home, Mr. McKinney?
10 A No, but I have grandchildren.
11 Q Did you ever express to Mr. Tabor at any
12 time I've got grandchildren, and I need to make sure
13 that the windows are tempered glass?
14 A These are --
15 Q Please answer the question.
16 A No, ma'am, but these are the CABO rules,
17 you know, I mean --
18 Q Caulk is not to be relied on. I heard your
19 wife say that before. What do y'all mean by that?
20 A It dries out in environmental conditions.
21 Any builder will tell you that.
22 Q Caulk where?
23 A Certainly outside.
24 Q And this was referring to windows. If you
25 are not going to caulk them and in your dealings with
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1 all of these contractors and inspectors, what are you
2 supposed to do that you now know?
3 A Ma'am, I haven't talked to contractors.
4 Q Well, I just asked you what you knew.
5 A I'm not --
6 Q You don't know, but caulk is not to be
7 relied on?
8 A If you want me to tell you what I would do
9 is I would put flashing up on the window, down the
10 window, and around the window; and I would also have
11 the windows set out so it's actually over the siding.
12 So then you don't have to worry about flashing on the
13 top and you don't have to worry about flashing on the
14 bottom, because the water is going to hit the window
15 and it's going to run off and miss the siding
16 entirely and go down on the ground.
17 Q Okay. Would you agree with me that on many
18 portions of your home the siding was put over the
19 cedar that was already there?
20 A Yes, ma'am.
21 Q Okay. And that underneath this siding
22 there was a certain amount of quarter inch foam board
23 installed?
24 A Yes, ma'am.
25 Q Okay. And would you agree with me that if
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1 you installed that in an area where the wood on the
2 home remained and you added a quarter inch foam board
3 and you added some siding, that would bump out the
4 dimension of the house by some degree?
5 A Yes, ma'am.
6 Q Okay. And if your windows had been framed
7 at a time when the home's exterior consisted of the
8 cedar siding and you added these other components on
9 top of that cedar siding, would it not seem that the
10 windows would appear now to be inset?
11 A No, ma'am. I mean it would appear that
12 way.
13 Q All right.
14 A But let me say one other thing.
15 Q Okay.
16 A He installed the windows. He had control
17 over that.
18 Q Okay.
19 A If we had not gotten windows, I certainly
20 wouldn't have a complaint on that aspect of it, but
21 he had the windows installed and he could certainly
22 install them -- I mean it's obvious what he did. He
23 didn't have the window guy talk to the siding guy.
24 Q I move to strike as nonresponsive.
25 Why is housewrap unacceptable?
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1 A It's not taped.
2 Q Where?
3 A Around the windows and doors.
4 Q And you've seen this on each and every
5 window?
6 A Yes, ma'am.
7 Q And each and every door?
8 A Well, if you want me to -- I will see it
9 soon, but --
10 Q Just answer the question.
11 A The answer to the question is no.
12 Q You've got here that there is a risk of
13 harm where the housewrap is down. Tell me what that
14 harm is.
15 A Okay. The harm is that water gets behind
16 the housewrap. You yourself have admitted that water
17 gets behind siding.
18 Q I have admitted nothing.
19 A Well, my understanding is that you banged
20 on the siding and water came out and -- but be that
21 as it may, it's the water that gets behind the
22 housewrap. When that water gets behind the
23 housewrap, it gets into the envelope, the wall
24 envelope, into the insulation, and eventually to the
25 Sheetrock.
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1 Q From all the folks that have been out there
2 have you seen any indication that water has gotten
3 into the Sheetrock?
4 A All the way to the Sheetrock?
5 Q Yes.
6 A Not as of yet.
7 Q Have you seen that it has gotten behind the
8 housewrap?
9 A Yes, ma'am.
10 Q Where?
11 A The window upstairs.
12 Q Which window upstairs?
13 A The one over the deck, the slider. Water
14 is definitely getting down there.
15 Q The kitchen window?
16 A Yes, and also the window downstairs.
17 Q Which window downstairs?
18 A That's the one below the deck.
19 Q Directly underneath the kitchen one?
20 A Yes.
21 Q That's what you are saying?
22 A Yes. And the two windows next to the bay
23 area. The caulk has already cracked.
24 Q Nails were put through the siding, what are
25 you talking about there?
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1 A It voids the warranty.
2 Q Okay. Has anybody told you that the --
3 A Yes, ma'am.
4 Q Who has told you that?
5 A The siding guy.
6 Q Who?
7 A For Royal. What is his name? Frank I
8 believe is his last name. I'll have to verify that.
9 Q He attended that where Sequoyah took off
10 the --
11 A Ma'am, he came about --
12 Q Is that the --
13 A -- three hours after that.
14 Q Okay. But it was that same day because I
15 believe he's named --
16 A Yes, that same day.
17 Q -- in an e-mail. That's why I'm asking.
18 A Yes, ma'am. He pointedly told us that any
19 siding with a face nail, that the warranty is voided.
20 Q All the siding on the house?
21 A No, the ones that have nails in it, that
22 whole siding piece. Now, the problem you run into
23 then is when you start pulling off that piece and
24 replace it, you've got color differences.
25 Q Okay. The gutters were not installed to
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1 drain properly. What's going on with that? What do
2 you mean by that?
3 A We had Clifford with C & M Gutter Works
4 out there at least three times. We still believe
5 that there is water leaking behind the gutters. It
6 definitely -- I mean when he first installed them, it
7 was pouring out of there.
8 Q Do you know of anywhere on the home that
9 you have actually seen evidence that there was water
10 getting behind the gutter?
11 A Do I have what now?
12 Q Do you know of somewhere on the home where
13 water is actually being turned back and going behind
14 the gutter?
15 A I think the third time he came out there --
16 I think they are fixed.
17 Q You think they are fixed?
18 A Yes, but we are not sure.
19 Q All right. But you are claiming that they
20 are not in this lawsuit, or are you?
21 A We are claiming there are still problems.
22 Yes, there are still problems we believe.
23 Q All right. And tell me what the
24 problems --
25 A We believe some water is getting back from
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1 what --
2 Q -- as you understand them are.
3 A As I understand it, water is still getting
4 back there, as I understand it. Also I know water --
5 I don't think there, you know, they have to go
6 from -- they have to -- the gutters have to drop an
7 inch over 10 feet or something like that to get the
8 water to go downhill obviously. There around the --
9 a particular problem area we think is around the
10 fireplace on the front of the house.
11 Q On the front of the house. Okay. What do
12 you think is happening there?
13 A I don't think he's got them slanted away
14 from it.
15 Q Now, Clifford also installed on a separate
16 deal the gutter tops?
17 A Yes.
18 Q Has he looked at the gutters other than the
19 three times -- for these problems, other than the
20 three times you've told me he came out during
21 Insulated Wall Systems' work?
22 A No, ma'am, we hadn't had him out there yet.
23 Q Failed to provide all needed tools,
24 material and labor, what are you talking about there?
25 A James coming to me borrowing a wheelbarrow, (Keith Payne, Someone Changed the name said to James, there never was anyone going by the name James working at our house)
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1 plastic, lights. He didn't have floats or whatever
2 you call it to make the smooth surface. I didn't
3 loan him that, but I did loan him a lot of stuff; and
4 me and my wife were out there in the rain trying to
5 help him out because it was pouring -- you've got
6 very little time between the time you pour concrete
7 and come to find out he didn't have these tools. We
8 wound up having to offer them or basically risk
9 having the concrete pour out into the yard. It was a
10 disaster. We were up to 11:00 o'clock; and, see,
11 this was in November time frame. So it gets dark
12 around 6:00.
13 Mr. Tabor insisted on having them pour it
14 at 4:30 in the afternoon with less than an
15 hour-and-a-half of light left; and Mr. Payne didn't
16 have no lights. He didn't have no plastic. He
17 didn't have no wheelbarrow. He had nothing to
18 actually do the job, even what he did do correctly,
19 and I wound up having to loan him all kinds of stuff
20 in an emergency situation.
21 Q No warning of damage to driveway from
22 cement truck; what do you mean by that?
23 A The cement truck backed down and broke the
24 driveway.
25 Q Okay.
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1 A I mean do you know how much one of them
2 trucks weigh?
3 Q Yes, I do.
4 Give me just a minute. I want to see if
5 there's anything else I want to ask you.
6 Okay. You are going to provide me with the
7 Sequoyah estimate in accordance with the question
8 I've already asked?
9 A I've got it on the back of here.
10 Q And you're going to provide me when it's
11 ready the report from this Mr. Cook, correct?
12 A Yes, ma'am.
13 Q All right. I think that's all I have,
14 but --
15 A We are in the process of getting the report
16 that we can send out.
17 Q All right.
18 A We've got a preliminary --
19 MS. TABOR: Let's go off the record.
20 (Deposition concluded at 2:45 p.m.) (JOHN TABOR WAS THERE ALL DAY GOING IN AND OUT OF THE DEPOSITION ROOM HARASSING ROBYN MCKINNEY EACH TIME)
21
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1 E R R A T A S H E E T
2 Pursuant to Rule 30(e) of the Federal Rules
of Civil Procedure and/or Georgia Code Annotated
3 9-11-30(e), any changes in form or substance
which you desire to make to your deposition
4 testimony shall be entered upon the deposition with
a statement of the reasons given for making them.
5
To assist you in making any such corrections,
6 please use the form below. If any supplemental or
additional pages are necessary, please furnish same
7 and attach them to this errata sheet.
8 * * *
9 I, the undersigned, RON MCKINNEY,
do hereby certify that I have read the foregoing
10 deposition and that said deposition is true and
accurate (with the exception of the following
11 corrections listed below).
12 * * *
13 Page _______ Line _______ Should read: ____________
14 Reason for change: _________________________________
15 ____________________________________________________
16 Page _______ Line _______ Should read: _____________
17 Reason for change: _________________________________
18 ____________________________________________________
19 Page _______ Line _______ Should read: _____________
20 Reason for change: _________________________________
21 Page _______ Line: _______ Should read: ____________
22 Reason for change: _________________________________
23 ____________________________________________________
24 Page _______ Line _______ Should read: _____________
25 Reason for change: _________________________________
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1 ____________________________________________________
2 Page ______ Line _______ Should read: ______________
3 Reason for change: _________________________________
4 ____________________________________________________
5 Page ______ Line _______ Should read: ______________
6 Reason for change: _________________________________
7 ____________________________________________________
8 Page ______ Line _______ Should read: ______________
9 Reason for change: _________________________________
10 ____________________________________________________
11 Page _______ Line _______ Should read: _____________
12 Reason for change: _________________________________
____________________________________________________
13
Page _______ Line _______ Should read: _____________
14
Reason for change: _________________________________
15 ____________________________________________________
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17
_____________________________
18 RON MCKINNEY
19
20 Sworn to and subscribed before me, this
the _____ day of ___________, 2006.
21
22 ____________________________
Notary Public
23 My commission expires:
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1 C E R T I F I C A T E
2 G E O R G I A:
3 FULTON COUNTY:
4 I hereby certify that the foregoing
5 deposition was stenographically recorded by me as
6 stated in the caption. The deponent was duly sworn
7 to tell the truth, the whole truth, and nothing but
8 the truth. The colloquies, statements, questions and
9 answers thereto were reduced to typewriting under my
10 direction and supervision and the deposition is a
11 true and correct record of the testimony/evidence
12 given by the deponent.
13 I further certify that I am not a relative
14 or employee or attorney or counsel of any of the
15 parties, nor am I a relative or employee of such
16 attorney or counsel, nor am I financially interested
17 in the action.
18 This, the 15th day of August, 2006.
19
20
21 _______________________________
JACKIE L. GUNTHER, CCR No. B906
22 Certified Court Reporter and
Notary Public. My commission
23 expires: 2/18/08.
24
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