IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CRUZ
LANDRY & FOY BUILDERS, INC.,)
A CALIFORNIA CORPORATION, )
)
Plaintiff, )
)
vs. ) No. CV 157690
)
KRISTIN DYER, ERIC LECHNER, )
AND DOES 1 THROUGH 25, )
INCLUSIVE, )
)
Defendants. )
_____________________________)
DEPOSITION OF ANDREW MICHAEL SPRING
Date: March 11, 2008
Time: 10:34 A.M.
Location: Hartsell & Olivieri
621-A Water Street
Santa Cruz, California
A P P E A R A N C E S
For the Plaintiff:
BURTON, VOLKMANN & SCHMAL, LLP
BY: ANNA DiBENEDETTO,
Attorney at Law
133 Mission Street, Suite 102
Santa Cruz, California 95060
(831) 425-5023
For the Defendants:
REDENBACHER & BROWN
BY: GARY REDENBACHER,
Attorney at Law
1414 Soquel Avenue, Suite 212
Santa Cruz, California 95060
(831) 439-8821
Reported By:
RINDON HEINZ, CSR No. 7891
Hartsell & Olivieri
621-A Water Street
Santa Cruz, CA 95060
(831) 423-5911
(831) 423-7189 (Fax)
ALSO PRESENT: Greg Foy and Bob Landry
I N D E X
EXAMINATIONS: PAGE:
By Mr. Redenbacher 5
EXHIBITS: PAGE:
Deposition Exhibit 1 16
(E-mail to Kristin Dyer
from Andy Spring, dated
May, 16, 2006)
Deposition Exhibit 2 22
(E-mail to Kristin Dyer
from Bob Landry, dated
April 20, 2006)
Deposition Exhibit 3 24
(Bid Request for Home
Improvement from Kristin
Dyer, dated March 2, 2006)
Deposition Exhibit 4 25
(Plan Drawings)
Deposition Exhibit 5 40
(E-mails between Andy
Spring and Kristin Dyer,
dated August 14 and 15, 2006)
Deposition Exhibit 6 40
(Time-and Materials
Agreement, dated
August 15, 2006)
(Continued next page)
EXHIBITS: PAGE:
Deposition Exhibit 7 42
(Landry & Foy Proposal,
dated 8/14/06)
Deposition Exhibit 8 58
(Line item estimate
sheets)
Deposition Exhibit 9 60
(Line item cost-to-
complete sheets)
Deposition Exhibit 10 66
(Photograph)
Deposition Exhibit 11 70
(Letter to Kristin and Eric
from Andy, re summary of
charges)
Deposition Exhibit 12 80
(Summary of work outside
the original scope of work)
Deposition Exhibit 13 88
(E-mail to Kristin Dyer
from Andy Spring, dated
February 23, 2007)
Deposition Exhibit 14 91
(E-mail from V Altman
to Andy Spring, dated
July 19, 2007)
(Continued next page)
EXHIBITS: PAGE:
Deposition Exhibit 15 93
(E-mail to Kristin Dyer
from Andy Spring, dated
January 29, 2007)
Deposition Exhibit 16 96
(E-mail to Andy Spring
from Kristin Dyer, dated
March 1, 2007)
Deposition Exhibit 17 102
(E-mail to Kristin Dyer
from Andy Spring, dated
October 27, 2006)
ANDREW MICHAEL SPRING,
being duly sworn by the Certified Shorthand Reporter
to tell the truth, the whole truth, and nothing but
the truth, testified as follows:
EXAMINATION BY MR. REDENBACHER
Q. All right. Mr. Spring, my name's Gary
Redenbacher. I'm counsel for Lechner-Dyers.
Have you ever had your deposition taken
before?
A. No.
Q. So let's go over some basic ground rules for
depositions.
First of all, when you answer, it needs to be
verbal.
A. (Witness nodding head.)
Q. In conversation, we tend to do a lot of
nodding the heads and shaking of heads and grunts and
groans, like "uh-huh," "huh-uh," it's not easily
translatable by the court reporter. So we ask that
your answer always be verbal and clear so that he can
understand that.
Is that all right?
A. Yes.
Q. There. That is just what we were looking
for.
Another difficulty we have in depositions is
talking over one another. Again, in normal
conversation, we tend to do that, but it doesn't make
for a clear transcript.
So what I'm going to try to do is not talk
over your answer; and at the same time, if you wouldn't
anticipate my question and just wait for the end. It
will make for a much better transcript.
Is that all right?
A. Yes.
Q. Is there anything that would prevent you from
giving your best testimony here today?
A. (Witness shaking head.)
Q. You are not on any prescription drugs?
A. No.
Q. Not feeling unduly burdened by anything else
that would prevent you from giving your best testimony
here today?
A. No.
Q. There may come a time, and Ms. DiBenedetto
may have told you this already, where she will object
to a question, and there are two types of objections.
One type is just to the form of the question,
and you still will need to answer regardless of that
objection; but Ms. DiBenedetto will let you know if it
is of the other kind of objection, which is generally
attorney-client privilege where she will instruct you
not to answer.
But for the most part, I think what you'll
hear today is objections, if any, to the form of the
question and you still have to give your answer.
Do you understand that?
A. Yes.
Q. With that, let me just dive right in.
Can you give your full name to the court
reporter.
A. Andrew Michael Spring.
Q. And can you give me your background in
construction?
A. Well, I started in 1999 in Lake Tahoe as a
laborer, for -- should I list company names?
Q. Sure.
A. For Sagan-Rich Construction, did that for two
months; got a job as an apprentice carpenter for
Lamberth Construction, did that for two to
two-and-a-half years. Then, got a job as a journeyman
carpenter for Pasvantis Construction, again, two to
two-and-a-half years.
Q. Excuse me, do you know where are these people
located?
A. They are all in and around Tahoe City.
Q. Okay.
A. I don't know the specific cities.
Q. Okay.
A. I have it somewhere, if you need it.
Q. Okay. Go ahead. You were then saying you
had a job as a carpenter, you said?
A. Right. Then I was a carpenter for Recom
Development. They are out of Bishop, but the project
was in -- on the Nevada side of Lake Tahoe on the North
Shore in Sand Harbor.
And then --
Q. Can I ask you how long you were a carpenter
there?
A. That one was kind of short. Maybe three or
four months.
And then after that, I went to Marin and I
worked for Kreuger Brothers, who was based out of
San Francisco, for five months; and then Kelly Pacific
Construction, who is based out of Marin, Larkspur
Landing, I think; and then I did that for maybe a year,
and then Landry Foy.
Q. When did you start working for Landry and
Foy?
A. I think it was February of '05.
Q. What did you do for Landry and Foy?
A. I started off as a carpenter.
Q. How did -- how long did you -- well, let me
ask this.
When you say "carpenter," what were you, a
journeyman --
A. Yes.
Q. -- an apprentice?
A. (Witness nodding head.)
Q. Journeyman?
A. Yeah.
Q. What kind of work did you do for them?
A. Typical residential remodel work, everything
from framing to finish.
Q. And how long did you work as a journeyman
carpenter for Landry and Foy, till when?
A. I think I moved into the office in early
January of '06.
Q. What did you do in the office?
A. I started off estimating projects, estimating
the cost.
Q. Do you have any formal education in
estimating construction projects?
A. No.
Q. Where did you learn your craft?
A. From Bob and Greg and drawing on past
experience a little bit.
Q. What did Bob and Greg teach you? Did they
have formal classes or what did they do?
A. No. Basically we dove right in. We looked
at estimates, and in the beginning they would just sit
right by me and work through it with me and show me
their system.
Q. What was their system?
A. What is their system? That's kind of a big
question.
Q. Go ahead.
A. Well, basically we have an estimate sheet,
it's got about 200 line items on it. It serves to
remind you not to miss anything during the estimating
process and to assign prices to all the individual
tasks. So basically you just start at the top and work
through that sheet.
Q. Is it in a spreadsheet?
A. Yes, it's in Excel.
Q. Do you have a database of material costs?
A. I keep a database of some material costs.
More frequently, I go to the lumberyard, or wherever
I'm going to get it from, to get the current price.
Q. When you say you do -- keep a database of
some costs, is that a commercial database or a private
one of your own?
A. Private.
Q. And --
A. I do have some books in the office, but I
never use 'em.
Q. Some of the like Means National Construction
Estimator, things like that?
A. As I said, I never use 'em, so I don't know.
Q. Okay.
A. I think they sent them to us for free. They
are sitting there, but I don't use 'em.
Q. Okay. So generally to get current costs on a
project, you call the supplier?
A. (Witness nodding head.)
Q. For example --
A. Uh-huh.
Q. -- you might call Big Creek's estimator and
say, Can you bid this job?
A. Yeah, give them a material list and he gives
me the cost.
Q. Do you actually do the takeoff or does the
lumber company do it?
A. I do it.
Q. You do it?
A. (Witness nodding head.)
Q. How many estimates have you done now for
Landry and Foy?
A. I really couldn't say.
Q. Would you say that it's more than a dozen --
A. Yes.
Q. -- less than -- or let's keep on going. More
than twenty?
A. Yes.
Q. More than a hundred?
A. I don't think so. But I couldn't say for
sure --
Q. Okay.
A. -- more than a hundred. That's highly
unlikely.
Q. So somewhere between, say, twenty and fifty?
A. I couldn't say.
Q. Okay. Would you -- how many estimates had
you done before you did the Lechner-Foy job?
A. I couldn't say.
Q. Do you know when the Lechner-Foy job started?
MR. LECHNER: Dyer.
MR. REDENBACHER: I'm sorry, Lechner-Dyer.
THE WITNESS: When construction started?
MR. REDENBACHER: No.
Q. When the estimate -- when you were asked to
start doing the estimate.
A. No.
Q. Would April of '06 or March of '06 sound
about right?
A. Sounds about right.
Q. Maybe even February of '06?
A. April or March sounds closer; but I mean
without reviewing my notes, I couldn't say.
Q. Okay. So you started doing estimates in
January of '06?
A. Yes.
Q. Do you have any idea how many estimates you
had done before you got to the Lechner-Dyer project?
A. No.
Q. It was your first estimate?
A. No.
Q. Can you think of any that you did before it?
A. Massey. I remember there was one, I think it
was Johnson or Johnston; other than that, I'd have to
look through the old files to see. That's a long time
ago.
Q. What kind of a project was the Massey
project?
A. New construction.
Q. Do you know if you got that job?
A. Yes, we did.
Q. And the Johnson or Johnston estimate, is that
new or remodel?
A. Remodel.
Q. And do you know if you got that job?
A. No, we did not.
Q. How extensive a remodel was it?
A. Adding a second story to an existing
building.
Q. Can you think of any other estimates you had
done before the Lechner job?
A. I can't.
MS. DiBENEDETTO: Gary, do you mean just for
Landry and Foy or even before that?
MR. REDENBACHER: Well, yeah, that's a good
question.
Q. Were you an estimator -- you had said you
were a carpenter on all these jobs.
Were you actually an estimator on any -- for
any of these previous employers?
A. No.
MS. DiBENEDETTO: Okay.
MR. REDENBACHER: Okay. Let's go here.
Exhibit 1.
(Exhibit identified: Deposition 1.)
BY MR. REDENBACHER: Q. Okay. Mr. Spring,
do you recognize this e-mail?
A. Yep -- yes.
Q. Very good.
It says here, based on similar projects you
think that the costs will end up between 350 and
$400,000.
Was the Johnson-Johnston project the similar
project that you were thinking of?
A. I can't remember for sure.
Q. Can you think of any other similar projects
on which you were basing this estimate?
A. I do not remember.
MS. DiBENEDETTO: Gary, I'm going to object
as I think it might assume facts in evidence, because I
don't think that you've asked him whether or not he was
basing prior estimates that he might have done, you
know, basing this estimate on anything outside of the
cost for this project, so...
BY MR. REDENBACHER: Q. Can you think of
any other basis for this e-mail, that it would end up
between 350 and $400,000?
A. What do you mean "any other"?
Q. Any other basis?
You can't remember any similar projects, so
now I'm wondering if there's anything else that you've
based these numbers on?
A. It's just too long ago for me to -- as I
said, I can't remember specifically what projects I'd
estimated prior to that; and, you know, I don't
remember whether or not I had a discussion with Bob or
Greg about their past experiences before writing the
e-mail. It's just -- it was a long time ago.
Q. Okay. Can you remember any details about,
for example, the Massey estimate?
A. Do I remember any details about the Massey
estimate? I remember details about the estimate, yeah.
Q. What kind of details do you remember with
that estimate?
A. Can you be more specific or --
Q. Well, just generally first, and I'll drill
down to more specific details.
A. About the estimate?
Q. Uh-huh.
A. It's new construction, house; it's a stem
wall foundation, detached garage on a slab stucco
finish, tile roof, about 3,300 square feet.
Q. What was your estimate for the cost?
A. It was 800-something thousand dollars.
Q. Did it come in on budget?
A. Yes, it did.
Q. Do you remember many details on the
Johnson-Johnston estimate?
A. I remember that there was an existing stem
wall foundation, and the second floor was going to be
built by putting in concrete bearing pads with steel
columns to support a network of floor framing to
support the second floor.
Q. Uh-huh. And do you remember what the
estimate was for that?
A. No, I don't.
Q. Can you give me any other details why you
would say that this project would end up between 350
and $400,000?
A. Not at this time.
Q. In retrospect, looking at -- are you familiar
with the plans -- let me ask you that first -- the
plans of the project?
A. Uh-huh, yes.
Q. And now, knowing what you know about the
plans, would you say that 350 to $400,000 estimate was
accurate at the time?
MS. DiBENEDETTO: Based just on the plans?
MR. REDENBACHER: Yes.
THE WITNESS: Well, based on the fact that it
would not be a formal estimate, but be a ballpark; and
as I stated without, contacting any subs or knowing
what any of the finishes were going to be, I don't --
yeah, it could be.
BY MR. REDENBACHER: Q. Where did you get
the ballpark figure, though, for, say, the interior
finishes?
This was 350 to 400; there must have been
somewhere where you got that ballpark figure.
Where was that?
A. I'm -- all -- I'm -- all I can recall is just
kind of having a general impression, based on what I'd
learned so far as an estimator, that I thought it could
be around that price.
Q. Did Bob and Greg give any input to you on
this?
A. As I said before, I don't recall if I
discussed it with them or not.
Q. Uh-huh. So no more details that you can come
up with regarding that 350 to 400,000 guesstimate?
A. No.
Q. Are you familiar at all with the discussions
that led up to the signing of the fixed price contract,
the proposal?
A. There was no signing of a fixed price
contract.
Q. Correct. I stand corrected.
Are you familiar with the events that led up
to drafting of a proposal for $592,000 fixed price?
A. I believe so.
Q. Can you give me the details of that?
A. The events that led up to the drafting of the
proposal?
Q. Yes.
A. Our -- the way we do all of our proposals is
we go through our estimate sheet, we determine our
price, and then we have a proposal form where we lay it
out in laymen's terms, and then usually has project
specific inclusions and exclusions and the costs.
Q. By the way, backing up, do you have a
software program, estimating program of any kind?
A. No.
Q. There's no digitizing of plans or anything
else that goes in --
A. No digitizing of plans. All the software
that we use is just Excel and Word and Quick Books.
Q. So going back to the $592,000 contract, do
you remember that that was the price that was being
offered?
A. Yes.
Q. Okay. Was that a price that you would come
up with?
A. No. It was a price that the three of us came
up with, yes.
Q. Can you give me an idea of how the three of
you came up with that price?
A. By going through the spreadsheet and looking
at each line item and determining a cost for it.
Q. Have you any idea why the costs came up to be
around 600,000, compared to your earlier guesstimate of
350 to 400,000?
MS. DiBENEDETTO: I'm going to object. It
lacks foundation.
Can you -- can you let us know what you are
indicating brought it up to 600, Gary?
MR. REDENBACHER: Well, we don't know.
Q. That's why I'm asking Mr. Spring, if he has
any idea why it jumped from a guesstimate of 350 to 400
to 600.
A. Um, I would have to say at the time that I
made the guesstimate. I hadn't reviewed the bid
documents from Kristin, which includes more
specifications and that and you -- I may have been
off -- I mean, clearly I was off on that guesstimate.
MR. REDENBACHER: Let's mark this as the next
in line.
(Exhibit identified: Deposition 2.)
MR. REDENBACHER: I recognize this e-mail
isn't to you. It's an e-mail from Mr. Landry to
Kristin, but you see the date there is April 20th,
2006.
THE WITNESS: Uh-huh -- yes, sorry.
MR. REDENBACHER: Yeah. And there Mr. Landry
says, "Hi, Kristin, thanks for the specs. We'll review
them and take them into account for your bid." And you
can see, of course, from Exhibit No. 1, that your
guesstimate was about a month later.
Q. Did Mr. Landry ever give you those specs?
A. I don't recall when he gave them to me.
Q. Do you know if he gave them to you before
your guesstimate of 350 to 400?
A. No.
MS. DiBENEDETTO: He did not or you can't
recall?
THE WITNESS: I can't recall.
BY MR. REDENBACHER: Q. But as you are
sitting here today, when you did your guesstimate, you
don't think you had the specs?
A. I hadn't reviewed them carefully. I hadn't
gotten any prices for any of the specs.
Q. So are you saying you do think that
Mr. Landry handed you the specs?
A. No, I didn't say that.
Q. Okay.
A. I said any specifications or plans that I may
have had. As I stated, I just based it on an
impression of the job, not based on specific
information.
Q. Uh-huh. What about the specifications was it
that you can recall sitting right here today that
caused the price to go up substantially?
A. I -- I can't recall anything specific. I
don't think that -- I don't think that it's really
accurate to say that the price went up substantially
from a ballpark estimate to a -- to a real estimate are
two different things, I think.
Q. Okay. And why is that?
A. You know, if I get a set of plans and I see
how many square feet the project is and I kind of look
at what's involved, and I say, Here's a guesstimate,
that's much different than going through the specifics
of the job and assigning prices to each thing.
Q. So are you saying that the basis for your
guesstimate was looking at the square footage and
assigning a per-square-foot cost to it?
A. No, it wasn't. It was more like looking at
the -- looking at the plans, the square footage and
thinking of other similar projects, and just kind of --
my general impression of how much I thought it would
cost.
MR. REDENBACHER: Let's mark this next in
line here, No. 3.
(Exhibit identified: Deposition 3.)
BY MR. REDENBACHER: Q. Do you recognize
this, Mr. Spring?
A. Yep -- yes.
Q. And go ahead and take a little bit of time to
review it. And what I'd like you to do, as you are
reviewing it, see if there's anything in there that
sticks -- you know, jumps out at you as an estimator
that would seriously increase the cost from your
original guesstimate of 350 to 400.
A. I really don't think I could do that without
researching the things in here to find out how much
they are going to cost.
Q. Okay. Just as you sit here today, do you
recall anything in this bed -- bid specifications that
just jumps out into your mind saying, oh, my, that's
going to cost an extra $50,000 or anything like that?
A. No.
Q. No, okay.
Do you recall the focus of this bid request?
And by that, I mean, is it changing the structural
requirements of the home, or is it just detailing the
types of finish material that are both being looked at?
A. I don't --
MS. DiBENEDETTO: Objection. Vague.
If you understand, you can answer.
THE WITNESS: I don't recall.
BY MR. REDENBACHER: Q. Did you have a
chance to read much plans when you were a carpenter, or
were you just assigned tasks?
What were your general duties as a carpenter?
A. No, I read plans.
Q. So you would be familiar with plans,
generally?
A. Yes.
MR. REDENBACHER: And so if we look at this
set of plans, and I don't know how we're going to do
this, but let's mark this next.
(Exhibit identified: Deposition 4.)
MR. REDENBACHER: I'm going to let you look
at these plans.
Q. Do those look familiar?
A. Yes.
Q. And it says that that's the job copy.
Were you -- did you ever see the job copy?
A. I don't recall.
MS. DiBENEDETTO: So, Gary, you are going to
mark the entire set?
MR. REDENBACHER: Yes.
MS. DiBENEDETTO: Okay.
MR. REDENBACHER: The whole set was marked as
No. 4.
MS. DiBENEDETTO: Okay.
BY MR. REDENBACHER: Q. Can I get your
opinion, if you recall, of the quality of these plans
and why you consider that quality either good, bad or
indifferent?
MS. DiBENEDETTO: Quality -- I'll object to
the term "quality," what that represents.
MR. REDENBACHER: If it's vague, I'll try
again.
MS. DiBENEDETTO: I mean, you can answer.
MR. REDENBACHER: Fine.
MS. DiBENEDETTO: I mean you can answer.
These are just form objections.
THE WITNESS: I remember thinking the quality
was low.
BY MR. REDENBACHER: Q. And why did you
think the quality was low?
A. I thought they were -- I don't know. I
don't -- I can't recall why at the time I thought that
the quality was low.
Q. I don't expect you to digest these plans
right -- sitting here right now, but does anything
stick out particularly as being incomplete?
A. No.
Q. Did you believe that this project could be
done for less, if it was done on a time-and-materials
basis?
A. I believe that the framing could be done for
less based on what was in the plans, yes.
Q. Why is that?
A. Why did I believe it could be done for less?
Q. (Witness nodding head.)
A. My recollection is that at the time, going
through the structural plans, I felt that there were
things that were vague that were going to require some
figuring out on the site; and so to make a bid for that
work, I had to make sure that we could cover our costs.
My impression was that when the carpenters got there to
do it, they could do it more quickly.
Q. Can you point to anything on the framing here
that was vague that would have had to have been figured
out in the field?
A. I don't think I could now.
Q. Okay. Let's go to -- sorry.
MS. DiBENEDETTO: That's okay.
MR. REDENBACHER: This is a first- and
second-floor floor framing plan, page A-4.
Q. Is there anything there that sticks out as
being difficult to frame or vague to where it had to be
changed in the field or figured out in the field?
A. It's not the kind of thing that I could do
just sitting here looking at it. It takes time to
really go through, and it's the type of thing that
jumps out at you doing -- during your material takeoff,
where you construct the building in your mind.
Q. But that was your impression, from when you
did do the takeoff, that the framing could be sped up,
shall we say, if it went by time and materials rather
than trying to do a bid?
A. Yes.
Q. Anything at all that you can recall that you
had to pad the bid for?
A. No.
MS. DiBENEDETTO: Do you mean the fixed-price
bid, Gary.
MR. REDENBACHER: Yes, the fixed-price bid.
THE WITNESS: I can't recall the -- anything
specific.
MR. REDENBACHER: All right.
THE WITNESS: I don't think "pad the bid" is
an accurate term either.
BY MR. REDENBACHER: Q. What would be an
accurate term?
A. An accurate term is just to ensure that
there's enough time to handle things that are vague.
Q. Okay.
A. "Pad," has a negative connotation.
Q. Yes, you are right. Sorry about that.
A. Okay.
Q. Although I know when I was a builder, that's
what I called it, you had to cover yourself.
Are you familiar with the braced wall panels
that were called out for in the plans?
A. Am I familiar with the braced wall panels on
these plans?
Q. Yes.
A. Yes.
Q. Can you describe to me their construction?
A. Not off the top of my head.
Q. Do you know what the code will allow as a
standardized braced wall panel?
A. Not off the top of my head. I have read it,
but I cannot recall the specifics of it.
Q. Uh-huh. Do you recall whether braced wall
panels on this plan were to code?
A. Um, I recall that they are not to code.
Q. And do you know why?
A. I don't recall the specifics, but I believe
there's something in the detail. Can we flip to that
detail?
Q. A-9.
A. I'm not sure -- yeah, I believe there's
something stated on one of these details that if you
read the code is untrue.
Q. Do you know what that would be?
A. Not off the top of my head I don't.
Q. And --
A. It might be -- it -- I think it's this
alternate three-quarter inch, one face.
Q. And from an estimating standpoint, what is
the significance of that?
A. On the Dyer-Lechner job, the significance is
that they intended to keep their interior lath and
plaster; so if this is incorrect, and you need to brace
both sides, then they cannot keep that lath and
plaster.
Q. So you are saying that the alternate of the
three-quarter inch ply on one side isn't appropriate?
A. I believe --
MS. DiBENEDETTO: Objection. Misstates prior
testimony.
I'm sorry, go ahead.
THE WITNESS: I think that's right. I
couldn't say with any certainty, without reviewing the
code.
BY MR. REDENBACHER: Q. But if it's
correct, would it have any impact at all on the
estimate?
A. Yes.
Q. What would that impact be?
A. It would have an impact on the time it would
take for the carpenters to build the braced wall panel,
it would have an impact on the Drywall estimate, the
demolition estimate; those are just a few off the top
of my head.
Q. Okay. And I think I actually -- we got at
cross-purposes here.
I was asking if it could be faced on a single
side, then you'd be able to maintain the plaster on the
one side, wouldn't have to reframe the walls; correct?
MS. DiBENEDETTO: And I'm going to belatedly
object that it calls for an expert opinion.
But if you can answer, go ahead.
THE WITNESS: Could you say the question
again?
MR. REDENBACHER: I think we got at
cross-purposes.
Q. I was actually asking if, in fact, you could
sheer just one side of the walls, and then, in fact,
you'd be able to maintain the plaster and the framing;
correct?
A. I believe so.
Q. Do you know if there was any problems,
whether Landry and Foy had to decide to go to sheering
both sides?
A. I believe that Hugh Zike -- is that the
engineer's name? -- pointed out that this was incorrect
and not part of the code.
Q. I don't think Hugh Zike is an engineer, but
that's okay.
A. Okay. With the Streeter Group?
Q. He's an architect, he's not an engineer.
A. Sure about that?
Q. Yeah.
A. Hmm.
Q. At least that's what he labels his name, as
an architect, not as an engineer.
MR. LANDRY: I think --
MS. DiBENEDETTO: That's okay, Bob. You can
tell him all you want tomorrow.
MR. LANDRY: Okay.
MR. REDENBACHER: You mentioned that you
thought the framing could be done for less going by
time and materials.
(Bob Landry exits proceedings.)
BY MR. REDENBACHER: Q. Were there any
other aspects of the construction that you believed
could be done for less by way of time and materials?
A. Not that I recall.
Q. With your experience in estimating today, is
there anything that generally can be done for less time
and materials than for a fixed-price bid?
A. I think that with a good set of plans there
shouldn't be any difference between time and materials
and a fixed-price bid.
Q. Fair enough.
You haven't had a chance to really go through
these plans again to refresh yourself; but if you would
take a minute, just take a look through to see if
anything else jumps out at you that was vague or that
required extra effort.
A. I can tell you right off the bat there's
something else that's vague. Um, the foundation
plan -- do you remember the page number?
Q. Try 4.
A. Is that 4.
Q. 5, A-5.
A. So it shows these interior paths and a new
footing.
Q. New perimeter footing?
A. New perimeter footing.
Q. And -- did you -- I'm sorry, was there
something else you were going to say?
A. At -- at the time this appeared to be two
foundations.
When we questioned Hugh Zike, who was
presented to me as the engineer on the project,
although I never checked his credentials, he told me
that he had drawn that as an either/or for Winston, and
he didn't know why Winston put them both in there.
And Kristin's e-mail instructed me to -- or
maybe it was Kristin who told me that -- yeah, I think
Kristin told me that Hugh had drawn these as an
either/or, Winston had put them both in there in error,
and that I was to focus my bid on the interior pad
footings and beads.
Q. So you didn't put in any estimate for a
perimeter foundation in your fixed-price bid?
A. No.
Q. Did you ever go out to the site and inspect
the site?
A. Yes.
Q. How many times did you do that?
A. I don't know.
Q. Did you do it before you did your estimate?
A. Yes.
Q. And did you do it before you did the
guesstimate of 350 to 400?
A. It's doubtful, but I couldn't say with any
certainty.
Q. Uh-huh.
When you did go out to the site, what were
you looking for?
A. Typically, when I go do a site visit, I like
to see what type of siding, what type of soffits, how
big the rafter tails and fascia are, how they are cut,
window trim details, door trim details, get an
impression for the style, the lay of the land.
Q. Did you do any investigation on construction
techniques?
A. Of the existing construction techniques?
Q. Yes.
A. No, I did not.
Q. Did you ever go out there with either Bob or
Greg?
A. I was there with Greg.
Q. And what was Greg doing at the time?
A. The same thing I was doing.
Q. Looking at the various details --
A. (Witness nodding head.)
Q. -- the construction details?
A. (Witness nodding head.)
Q. Do you know if he performed any evaluation of
the current construction?
A. I don't think he did.
Q. About how long were you on the site?
A. Couldn't say.
Q. All day?
A. No.
Q. Few hours?
A. Couldn't say.
Q. Drive by --
A. Less than half a day.
Q. Do you have any notes on that site visit?
A. I'm not sure.
Q. And was it the only one site visit you can
recall?
A. I can't recall if there was more than one.
Q. Okay. But it was probably in the summer, I
assume?
A. Or the spring, perhaps if we -- if we first
began looking at the project, I think we agreed earlier
it was March or April, so --
(Bob Landry enters proceedings.)
THE WITNESS: -- anytime from when we first
were approached about the project, we may have gone out
and looked at the site.
MR. REDENBACHER: Uh-huh.
Q. Does Landry and Foy use time-and-material
contracts on other projects?
A. Not anymore.
Q. Well, before this lawsuit.
A. Yes.
Q. And can you tell me the names of the people
with whom those were with?
A. No.
Q. Can you remember any of 'em?
A. I really wasn't a party to that information.
Q. You weren't the one that usually drafted up
the contracts?
A. I didn't draft up any time-and-materials
contracts that I can recall prior to working on Kristin
and Eric's project.
Q. So did you draft the proposal for them, for
the time-and-materials contract?
A. The proposal?
Q. I'm sorry, let me back up.
Did you draft the time-and-materials contract
for Eric and Kristin?
A. I don't recall, honestly.
Q. Okay. Have you drafted some
time-and-materials contracts for clients?
A. I don't recall.
Q. And why is it that you don't use
time-and-material contracts anymore?
A. This situation has brought to light the fact
that they are frowned upon by the CSLB.
Q. Frowned upon or illegal?
MS. DiBENEDETTO: Objection. Calls for a
legal conclusion as to that term.
MR. REDENBACHER: To the best of your
understanding.
THE WITNESS: To the best of my
understanding, I don't think that you can answer the
question, is it legal, and I'm not really privy to the
information from the CSLB.
BY MR. REDENBACHER: Q. Okay. Do you
recall the results of construction with any other
time-and-material contracts that were used by Landry
and Foy?
A. What do you mean "the results"?
Q. Results as far as coming in on price, higher,
lower than, any estimates that you might have given the
owners?
A. No.
Q. Okay. Did any of the subs that you contacted
for Eric and Kristin's project indicate that they had
bid high?
A. I don't recall.
Q. Do you know if any of them said that going by
time and materials would save Eric and Kristin money?
A. I don't think any of them did.
Q. Before Bob and Greg had the
time-and-materials contract presented, do you know if
any calls had been made to any subcontractors asking
whether there's ways to shave money or save money?
A. I don't recall.
MR. REDENBACHER: Let's put this next in
line.
(Exhibit identified: Deposition 5.)
BY MR. REDENBACHER: Q. Does that e-mail
look familiar?
A.