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 BOB LANDRY
Date: Wednesday, March 12, 2008
Time: 2:47 P.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
Eric Lechner
I N D E X
EXAMINATIONS: PAGE:
By Mr. Redenbacher 4
EXHIBITS: PAGE:
Deposition Exhibit 31 13
(Builder/Contractor
Approval Summary)
Deposition Exhibit 32 14
(Construction disbursement
budget and schedule, dated
October 3, 2006)
Deposition Exhibit 33 17
(E-mail to Andy Spring
from Kristin Dyer,
dated May 2, 2006)
Deposition Exhibit 34 17
(Client's Estimate Sheets)
BOB LANDRY,
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. Mr. Landry, you've been present here for the
depositions of Mr. Spring and for Mr. Foy, so you
probably heard all the admonishments of how to take a
deposition?
A. (Witness nodding head.)
Q. Do you need any further --
A. (Witness nodding head.)
Q. -- instruction on that?
A. No.
Q. Why don't we start out, then, with your
experience in the construction trade.
A. (Witness nodding head.)
Q. Can you give me a litany of where it began
and where it went to?
A. To the best of my recollection.
Q. All the things are.
A. I started work as a laborer in 1974 and
progressed through the skill levels to the point in
1984 where I got my contractor's license; and I worked
as a sole proprietor for 10 or 12 years; Greg and I
became partners in '96, I think, and I've been working
since then.
Q. Do you have any formal education in
construction?
A. I have a bachelor's degree in architecture,
which is not -- there wasn't one class that had
anything to do with building anything. It's strictly
architectural history, architectural design; no code
classes, nothing like that.
Q. Uh-huh.
A. Just the -- just architecture.
Q. Where did you get that?
A. UC Berkeley.
Q. Berkeley's architecture program.
Did you ever take the test?
A. No.
Q. Any other -- any other construction-related
licenses or --
A. No.
Q. -- experience?
A. I have a B contractor's license which I got
in 1984 --
Q. Okay.
A. -- which is currently inactive. It's got a
nice low number. I've kept it inactive because I've
got a nice low number; I can use it for marketing and
stuff.
Q. Sure.
Do you know if you or are the responsible
owner or employee of your corporation?
A. You know, in the papers of the incorporation,
I'm listed as the president; however, we have a very
informal relationship and we don't -- you know -- you
know, I don't have a tag on my desk or anything that
says that, you know. If it's required that somebody
sign something, who's the president, you know, I do
that --
Q. Okay.
A. -- but we share the responsibilities equally.
Q. Right.
So one of you designated yourselves as the
RMO, but you can't recall which one?
A. Right.
Q. And you had heard a lot of what went on --
you actually were here for the whole thing, what was
said by either Mr. Spring or Mr. Foy.
I'm sure, as you were listening, you were
thinking to yourself, they should have said this or
don't they remember this?
Does anything spring to mind from you after
going through these depositions for a day and a half
that you would add or subtract?
A. I -- you know, I don't have a photographic
memory, and -- and, you know, no, there's nothing
that -- that jumps to my mind right now.
Q. And I know that you've mentioned outside of
the deposition that your main job is in the office
rather than out in the field. Is that correct?
A. Correct.
Q. Was that true also for the Lechner project?
A. It's been true for about six years now.
Q. Okay. You have been out to the Lechner
project a little bit, though; right?
A. Uh-huh.
Q. Can you recall why and when?
A. As part of my job as the owner of the
company, you know, I -- I familiarize myself with all
the jobs and visit them periodically on a irregular
basis, informally, never make on-site decisions, never
give directives. You know, we talk about everything.
Q. You say you "talk about everything" --
A. Well, I'm -- I'm --
Q. Go ahead.
A. Not necessarily everything. We talk
constantly. Our offices are separate now. I -- I
believe when we were working on the estimate for this
job, that all three of us were in the same room.
Q. Uh-huh.
A. Subsequently, we have a couple of offices
upstairs, and -- so there is times when I'm downstairs
with the bookkeeper and Andy, or most of the time I'm
upstairs in the last couple years.
Q. Um, in preparing the estimate, were you
involved in any of the talks --
A. (Witness shaking head.)
Q. -- in preparing the estimate?
A. Just overhearing.
Q. Were you at the meeting where your proposal
for a fixed price of $592,000 was presented to the
Lechners?
A. Yes.
Q. Can you remember any of the conversation that
went on at that meeting?
A. A little bit.
Q. Can you share that with me?
A. It was stated by someone, I'm not sure who,
that the 592 was too much, and then, you know,
typically what happens is people say, Thank you very
much and leave.
Q. Is that what happened?
A. No, that's not what happened.
We were asked, Is there anything that you
think we could do to bring that cost down, and I
trotted out my tried and true explanation that in the
course of bidding a project, assumptions are made that
are not necessarily -- happen, and that if we went to a
T and M contract, there would be the potential to save
money and that potential was based on making
inexpensive decisions all the way along. Then they
left.
Q. Then they left?
A. Then there was some conversation, but, you
know, that's -- that's the gist of it; and then they
left. And I think the next day or shortly thereafter,
we heard back that they were willing to go for the
T and M contract, potentially save some money.
Q. Did you elaborate with them at all about the
inexpensive decisions that needed to be made?
A. I don't remember.
Q. Was there -- do you remember anything
suggesting, for example, that the plans themselves
would have to change?
A. I remember suggesting that perhaps we could
use plywood siding, and apparently that dis -- that
suggestion was -- I don't know whether it was
considered or not, but it wasn't implemented.
Q. Were you familiar with any of the bids from
any of the subcontractors?
A. No.
Q. So you wouldn't know whether the bids were --
A. (Witness shaking head.)
Q. -- high or low --
A. (Witness shaking head.)
Q. -- or --
A. We have subs that we've worked with for many
years and we're very confident that they do good work
at a fair price.
Q. Is there any place else, other than the
siding that you -- that came to mind --
A. I can't remember.
Q. -- that you -- okay.
As you looked at the plans -- actually, I
should ask you: Did you look at the plans much -- you
didn't do the estimating; right?
A. I've seen the plans, yeah.
Q. Was there anything in the plans, other than
the siding that you said, you know what, you know,
that -- that's really high. We could save a lot doing
this or that?
A. (Witness shaking head.)
Q. No?
A. You know, that's not really what I do in the
company.
Q. Uh-huh.
A. So, you know, having training in
architecture, I'm reluctant to suggest things that
compromise the aesthetic things.
Q. And --
A. I don't recommend plywood siding lightly.
Q. T-111?
A. I believe that's what it's called.
Q. Now, did you do a site visit before the
estimates were prepared?
A. As is in the record, we did two previous jobs
at that building, so we've been there.
Q. When?
A. Been inside and out.
Q. Inside and out?
A. Yeah.
That's my site visit.
Q. And you were there, too. Were you
personally --
A. In the same capacity that I've just
described.
Q. I see.
Once again, you are not the guy with the nail
bags?
A. (Witness shaking head.)
MS. DiBENEDETTO: You have to say "yes" or
"no."
THE WITNESS: Yes -- oh, I'm sorry. Yes, I'm
not the guy with the nail bags.
MR. REDENBACHER: That's right. See, we did
have to remind you --
THE WITNESS: Yeah.
MR. REDENBACHER: -- of a few things. We all
revert to our normal way of conversing, which is
shaking heads and grunting.
It looks like that you might have had
something to do with the bank.
Q. Did you have much contact with the bank that
was financing the project?
A. After we began -- well, let me go back.
We had that meeting where we presented the
proposal, the consideration of doing the T and M
contract was discussed, and then the T and M contract
was signed; then Kristin or Eric, I'm not sure which,
called me and said, can we go down and sign some papers
at the title company for the loan; and I said, What
loan? And they said, The construction loan. And I
said, Hmm, that's interesting. It's not my
understanding, that a T and M contract is compatible
with a bank loan. And she said, Oh, well, it's okay.
And I said --
Q. Who said it was okay?
A. Kristin.
Q. Hmm.
A. And I said, Well, again, that's not my
understanding that the two forms of contract are
compatible. If I may, I'd like to talk to the bank.
So I got the phone number of the guy and I
called him up and I said, Explain what's going on, and
he said, Not a problem, we'll make it work.
I'm sorry, I don't have a record of that
conversation and there's no tape of it anywhere, I
suppose, so --
Q. Yeah.
A. -- that's the best of my recollection.
Q. Yeah, there's -- why don't we do this as next
in line.
THE REPORTER: 31.
(Exhibit identified: Deposition 31.)
MR. REDENBACHER: This was, as you can see
down at the bottom, "PHH Mortgage Services," which I'm
referring to as "the bank," and you'll see where it
says the project costs and the builder name.
THE WITNESS: I'm sorry, where does it say
that?
MR. REDENBACHER: Up near the top on the
left, project costs, it shows $592,190.
THE WITNESS: Okay.
MR. REDENBACHER: So at least the bank,
according to their records, had a fixed price coming
from Landry and Foy.
Q. Do you have any idea where that came from?
A. I've never seen this document before.
Q. You don't know where they get that number
or --
A. Well, it's the same number as our proposal.
Q. Yeah.
A. Of course, they got it from Kristin and Eric,
because they didn't call me.
MR. REDENBACHER: Okay. Let's do next in
line 32.
(Exhibit identified: Deposition 32.)
BY MR. REDENBACHER: Q. I assume that's
your signature at the bottom --
A. Uh-huh.
Q. -- of Exhibit 32?
A. Uh-huh.
Q. And of course, it says, "I have reviewed the
construction disbursement budget and schedule this
date, and agree to comply with the disbursement
procedures as outlined above." So they had to have
gotten something from you.
Do you know what that was?
A. Would you say that again, please.
Q. It says, "I have reviewed the construction
disbursement budget and schedule this date, and agree
to comply with the disbursement procedures as outlined
above."
Do you know what it was?
A. They didn't -- to the best of my knowledge,
they didn't get anything from me and I didn't see
anything prior to sitting down at the title company.
Now, again, I don't have a photographic
memory and I may be wrong about that, but I do remember
thinking that and bringing it to everybody's attention,
that traditionally a T and M contract on a construction
loan are not compatible.
Q. Do you remember the gentleman who was part of
PHH Mortgage Services named Rick Montalvo?
(Greg Foy exits proceedings.)
THE WITNESS: Not specifically, no.
BY MR. REDENBACHER: Q. You can't recall
any discussions either with him or Lily Montoya?
A. I remember speaking with the bank, so I may
have spoken with one of those people and getting their
verbal assurance that everything would be fine.
Q. Do you remember telling him that -- did you
tell him what kind of arrangement you had with him,
whether it was a fixed price or a time --
A. I told him what my concerns were. I said --
I mean, I don't remember verbatim conversations, and --
so my recollection is that I explained the situation,
and I was assured that it would not be a problem.
MS. DiBENEDETTO: Gary, on that, can we just
stop for five?
MR. REDENBACHER: Yes.
MS. DiBENEDETTO: My client's here with
documents. It will take a minute.
MR. REDENBACHER: No problem.
(Recess taken.)
MR. REDENBACHER: Back on the record.
Can you read back where we left off?
(Record read as requested.)
MR. REDENBACHER: All right. With that, mark
this next as 33.
(Exhibit identified: Deposition 33.)
MR. REDENBACHER: This, of course, wasn't
from you, but it was from Andy Spring and between Andy
Spring and Kristin Dyer.
One sentence it says there, "Hi, Andy. That
all sounds fine. I'd like to include everything in the
bid as much as possible to make it easier to deal with
the loan company; their approval of the amount is going
to be based on the contractor bid."
This was in May.
Q. Do you have any idea when you talked to the
loan company that it was a time-and-materials contract
and not a fixed-price bid?
A. I think it was, you know, right around this
time (indicating).
Q. What exhibit are you looking at?
A. I'm looking at Exhibit 32, and the date is
October 3rd; but again, I'm not sure about that.
MR. REDENBACHER: All right. Let's go next
in line.
(Exhibit identified: Deposition 34.)
MR. REDENBACHER: You'll see this is a fax on
August 14th, the day of the proposal, to fix -- the
fixed-price proposal to the Lechners, and it's to PHH
Mortgage Services, and it is a line item breakdown of
the fixed-price bid.
You can see -- on the last page, you can see
it came from Andy Spring, and it also says, "Lily, I
was able to firm up a couple of loose ends so I wanted
to send you a new bid sheet with a lower cost."
Q. Did Andy discuss this fixed-price bid in that
he was communicating with the loan company with you?
A. Well, them -- the conversation I had with
their bank must have been before that -- before No. 32
here.
Q. Before October 3rd?
A. No, before -- yeah, before October 3rd;
because, you know, as soon as I found out that it was a
construction loan situation and that we were using a
fixed-price contract -- I mean using a T and M
contract, you know, that was an indication to me that
that -- that we needed to clarify that and make sure
everything was okay.
Q. But as far as you know, there's no
documentation or there's no e-mails between yourself
and the loan company --
A. No.
Q. -- working that out?
A. No.
Q. No?
A. I -- as far as I know, there is not. It was
a phone call situation -- that's my preferred means of
communication.
Q. Did he give you any indication or did you
talk about how you would handle this if the
time-and-material contract started to exceed the -- the
bid?
A. I took his assurance that everything would be
okay as an implication that everything would be okay,
and that they would work that out on their end.
Q. Can I assume that you've done jobs before
with construction loans?
A. Uh-huh, yes.
Q. So I gather that you are familiar with when
the bank will release money and when they won't?
A. There are two forms of construction loans
that I'm familiar with.
One is on a milestone of completion payment
schedule; the other is on a monthly billing as
percentage of line items.
I don't know how they -- this one was
structured, and I didn't care, because the bank said
everything will be okay.
Q. You know, of course, what happened in January
with your January draw, you requested what, $103,000?
A. And we were paid less.
Q. And you were paid about $40,000?
A. Some amount less. I --
Q. Right. But it was as a result of the bank's
appraiser coming through and saying, Hey, you've only
gotten 40 percent done rather than 80 percent done --
A. (Witness nodding head.)
Q. -- you know, therefore we're only going to
release $40,000.
A. (Witness nodding head.)
Q. Have you -- did you have any conversations
with the bank when that happened?
A. No.
Q. Had you any feelings of how that could be
resolved?
A. Do I have feelings of how that could be
resolved?
Q. Knowledge, knowledge.
A. I don't have any knowledge, because I'm --
you know, I'm not a banker; but apparently there were
so many changes along the way that by the time we got
to January we're looking at two different jobs. The
scope of work had changed, and it became apparent to
the bank and it became apparent to everyone involved
that somebody was going to have to renegotiate
something.
Q. You said "it became apparent to the bank." I
thought you said you hadn't talked to the bank at that
time.
A. Well, I'm assuming it became apparent to the
bank, because, you know --
Q. Assuming --
A. -- they -- they got a bill and they paid, you
know, less than that.
Q. Uh-huh. You said that it had apparently
become a different job. Was that a
A. Well, I don't literally mean --
Q. Remember, we don't want to talk over each
other.
A. Yeah.
Q. You say "apparently." Is that based on your
own actual observations or from information that you
were receiving from Greg as the project manager or
other employees?
A. I don't literally mean a different job. I'm
using that figuratively, that there was quite a bit of
difference in the scope of work from the original bid
to what -- where we were at that point in time.
Q. And is that from your own personal
observations, or what is being told to you by others?
A. Hearsay.
Q. So from others?
A. Uh-huh, yes.
Q. You wouldn't be able -- or would you be able
to share with us what those extras in the scope of work
would be?
A. I believe they are already in the record.
Q. But do you -- could you personally tell me
what they are right now?
A. Not off the top of my head.
Q. Looking back on Exhibit No. 34, which is the
client's estimate sheet, were you aware that Andy
Spring had sent this over to the bankers?
A. I don't recall.
Q. When was it that you became aware that the
bank was operating under the assumption that it was a
fixed-price bid but that you had a T and M contract?
MS. DiBENEDETTO: Can you read that back?
(Record read as requested.)
THE WITNESS: I don't think I ever assumed
that the bank thought it was a fixed price.
BY MR. REDENBACHER: Q. Then why would you
call them about a T and M contract?
A. Because a construction loan is for an amount
of money and structured on payment schedules that's not
compatible with our monthly billing, as far as I knew.
I mean, you've seen our bills. They are
itemized on an hourly basis and for the materials that
we used during that -- during the course of that month.
And the bank loans I've worked with in the past, which
aren't very many, you know, it was either a percentage
of completion or a milestone.
Q. I'm just wondering what was it that would
have triggered in your mind, wait a minute, there's a
loan on this project and the loan is not going to work
with a T and M contract?
A. I'm sorry, but I can't remember the exact day
or the conversation.
Q. Did you talk about this with your partner,
Greg?
A. Yes.
Q. Do you remember what was the gist of that
conversation?
A. Just what we've -- what I've already stated.
Q. Did Mr. Foy express any concern that this
could create some serious problems?
A. I don't recall.
Q. Do you remember anything about that
conversation?
A. No.
Q. It wasn't enough of a concern to where --
well, let me back up.
Did you have any more conversations about it
later down the road?
A. I don't recall.
Q. When the bank wouldn't give you any more than
$40,000 on that January request, did you have any
understanding of how you could be paid the additional
60, $70,000?
A. I guess I assumed that the owners would write
a check. I mean, I -- I don't care where the money
comes from, you know. It's not my business to finance
the project.
Q. You had had a meeting back in August when you
presented a fixed-price contract of $592,000 --
A. (Witness nodding head.)
Q. -- and at that time you testified they said
that's too much.
If that's too much, where would the
expectation the money would come from other than a
bank?
A. I don't think I've ever presented a proposal
where the client didn't say that's too much ever.
MR. REDENBACHER: Could you read back my
question?
(Record read as requested.)
MR. REDENBACHER: Yeah, I'm just repeating
that question.
THE WITNESS: I don't know.
BY MR. REDENBACHER: Q. When the project
started going well over budget, did you have any
meetings with the Lechners regarding that?
A. Once a job goes into production, my role in
the company is sit in on the foreman meetings, comment
where I think I can be helpful; but the management of
the project is in the hands of the rest of the company.
Q. Okay. So for the most part, that answer is
you really didn't have any conversations?
A. I don't think I did.
Q. Okay.
A. That would not be in the normal course of
events.
Q. Going back to August, August 14th, can you
recall anything else that was said when you presented
the time-and-materials contract on the next day? Were
you there when they presented the time-and-materials
contract the next day, August 15th?
A. I'm not sure, but I presume.
Q. Do you recall any --
A. I'm not sure, but I think my name's on the
contract.
Q. Okay.
A. My signature's on the contract.
Q. Do you recall any conversations that went on
that day on the presentation of the time-and-materials
contract?
A. No.
Q. Any conversations on how you were hoping to
save money over the fixed-price bid?
A. The siding is the thing that sticks out in my
mind, the -- the -- when you asked me if I recall
anything, that's what I recall and I don't remember
anything else.
Q. Okay. Do you know if anybody in the company
did anything to check to see if a time-and-materials
contract could come in less than a fixed-price bid?
A. No, I don't know.
Q. Do you recall ever having conversations about
the foundation out there?
A. There's a photograph somewhere, one of the
exhibits. I received a phone call from.
MS. DiBENEDETTO: Those are all the exhibits
right there.
THE WITNESS: Oh, okay. I received a phone
call from the field upon Charles Campbell's -- when he
started excavating, and I'm not sure why I was there
and Greg wasn't.
Greg might have been on another job or
something, but I was in the office and Charles said
something like, We better look at this foundation
again. I've started digging and I don't think it's
adequate to support this building, and I said, Okay.
I'll come over and check it out.
So I went over and saw what he was talking
about, and I think I even took a picture, which is in
here somewhere -- this one right here, marked 135.
BY MR. REDENBACHER: Q. No. 135 on
Exhibit -- it's on the front?
A. It shows a sledgehammer underneath --
Q. Exhibit 22?
A. -- the foundation.
Q. Yes.
A. And at that point we became aware that we're
going to need to change the -- the foundation, and, you
know, I took the picture and brought it back and we
talked about it, at that point decided that perimeter
footing was necessary.
Q. Are you familiar with the alternate
foundation?
A. Let's see. I recall reviewing the plans when
we first got 'em and being confused on the foundation
design and saying, It looks like there's two different
foundations here.
And I believe, based on what I've heard other
people say, that we looked for clarification from the
owners and from their designers, and that -- I'm not
sure whether it was an either this or that or some of
this and some of that, you know, column A1 -- from
column A1, from column B, but that what we decided
would be the new plan of attack was not contradictory
or other than what was shown on the plans. In other
words, it wouldn't require a change order with the city
for the permit.
Q. Do you recall Mr. Foy saying that a good
number of the piers were put in along with the
perimeter foundation?
A. No, I don't.
Q. Do you have any knowledge or recollection
regarding the pier foundation?
A. There was lots of conversation about, you
know, what to pour here and there and -- and, you know,
since that's details of crawling around under the
house, it was not really my purview to do that. I
don't second-guess the foreman or the -- or anybody
else.
Q. So you didn't -- you personally didn't have
any conversations with either the engineer or the
architect?
A. Not to my recollection.
Q. So you wouldn't know why they continued to --
or somebody continued to put in the piers despite going
to a perimeter foundation?
A. Well, just what Greg already said, that, you
know, sounded like at the time they deemed that that
would -- was a good thing to do, would yield a better
product in the end, which was implied in our mandate
for the contract, was to do a good job.
Q. Do you recall any conversations about the
braced wall lines?
A. Nothing specific.
Q. Okay.
A. I mean I recall that there were conversations
about raised wall panels, but, you know, I...
Q. Any conversations that you can recall at all
about the need to tear down the first floor walls?
A. Again, that's just kind of calls from the
field that, you know -- I mean, we've remodeled a lot
of old houses, and, you know, you tear sheeting off or
whatever and you find a bunch of live bugs, and, you
know, something needs to be replaced or something needs
to be torn down, and it -- it's, you know, all in a
day's work. It's not something that, you know, that
I'll go out and, you know, well, let's see, 35 percent
of this stud is rotten so it needs to be replaced, you
know.
Q. That's not in your purview?
A. It's a field call.
Q. Yeah. And you are not in the field?
A. It's a judgment call and it's based on many
variables.
Q. And that's -- again, you are not in the
field?
A. Right.
Q. So -- and you'll have to excuse me, I expect
that a lot of these questions are, I'm sorry, I'm not
in the field, but I need to know anyway.
A. (Witness nodding head.)
Q. You can't recall any other conversations
about going two-sided --
A. No.
Q. -- braced wall panels versus one-sided?
A. No.
Q. Can I assume, though, that you can read
plans?
A. Yes.
Q. I know that you are not intimately familiar
with these plans, but if we do turn to page A-9, we
have the braced wall sections here and one of the
things that it says is that you can either do each face
with three-eighths or one face with three-quarter inch
plywood. And those are the approved plans.
Would you want direction from either an
engineer or the city before you built anything other
than to plan?
A. Yes.
Q. Are you aware of the engineer ever sending
you any directive to change it -- bring it back to the
city and change the approved plans?
A. No.
Q. Did you have difficulties working with either
Eric or Kristin?
A. Nothing, other than simple personality
things.
Q. And by that, you mean?
A. Well, you know, people don't necessarily get
along with everybody in the world, but as a
professional I pride myself on being able to work with
everyone.
Q. So you felt you could work with both Kristin
and Eric?
A. Uh-huh, yes.
Q. And you were able to do that?
A. Yes.
Q. Would you describe Eric and Kristin as detail
oriented?
A. Yes.
Q. And --
A. Well, I should back up a little bit. I
wouldn't say that.
A majority of our communication with the
owners on the project was with Kristin and very little
with Eric.
Q. And would you describe Kristin, then, as
detail oriented?
A. Yes.
Q. Was she thorough?
A. She thought she was.
Q. But you didn't?
A. She's a homeowner that knows what she knows;
based on how she learned it, I don't know. But my
personal opinion is that she probably -- I want to say
this without hurting anybody's feelings.
She knew enough to get herself in trouble.
Q. Little bit of knowledge is what you are
saying?
A. Yes.
Q. Were you able to work with that, though?
A. Sure.
Q. I think you had heard earlier that we found
some memos to the effect that the owner is a nut and
we're curious if that frustration or anger affected
anybody in the company and made it difficult to
complete the project.
A. I wouldn't characterize it as anger, and I
write the agendas; I write that. Not everybody that
writes things intends for everybody to see the things
they write, and it was a surprise to me that my agenda
made it to the owners.
It was never my intention for that to happen,
so I'm sorry that -- that that was -- that they got
that and I would never say that to anybody, you know --
you know, that's that.
Q. Okay.
A. My least intention in the world would be to
hurt somebody's feelings.
Q. So really it was more of a -- it wasn't to
say that you couldn't work with her; it's just that
sometimes it took extra effort?
A. We've had tough customers in the past and I'm
sure we'll have tough customers in the future.
Q. Which is --
A. We're going to work with them all.
Q. Which is to say, that you could work with
her?
A. Yes.
Q. Did you ever see Andy Spring's e-mail that he
felt that the project could come in from 350 to
$400,000?
A. Yes.
Q. Did you see that before this litigation
started?
A. I don't recall.
Q. But you -- let me guess, then, that you did
not see it before you gave a fixed-price bid of
$592,000?
A. I don't recall.
Q. In your best estimation and knowledge of
construction costs, would this set of plans ever come
in at that time for between 350 and $400,000?
A. This set of plans, the way it sits here today
stamped by the City of Santa Cruz, could easily be
built for that number if decisions were made based on
the assumptions in that quote in an inexpensive way.
That was not done on this project.
Q. If we were to go to Exhibit 3, you'll find it
there, Exhibit 3.
A. There we go.
Q. Have you ever seen this bid request for home
improvement before?
A. Yes.
Q. And do you know that Andy testified, and he
said he took it into consideration in coming up with
the estimate?
A. Yes, I know that he said that.
Q. For a residence, do you usually see
specifications in addition to plans?
A. Do I?
Q. Yeah, for a residence?
A. Sometimes.
Q. Sometimes.
If an architect is involved?
A. Sometimes.
Q. Do you usually see designers draft up a list
of specifications?
A. Sometimes.
Q. It happens once in a while.
Here, as I read through, there's a lot of
detail: bathroom fixtures by Dura-Fit, bathroom sink
part is 040110 point 00 on page 7 of 10, floor of the
kitchen will be hardwood, Bosch dishwasher, American
Standard silhouette; in other words, I'm seeing a lot
of detail on precisely what is going to be in here.
A. (Witness nodding head.)
Q. So my question to you is: With the
specifications here, what kind of decisions could have
made this less expensive?
A. Well, in a remodeling project, especially
one -- you know, an older house like this, you run into
stuff on a daily basis that decisions need to be made.
The plans aren't super complete, and, you know, you
have to ask for clarification and -- and what are we
going to do here?
If we were trying to minimize the cost on the
project, we would make those decisions based on, okay,
you know, what are the options? We'll choose the
cheapest one.
I wasn't on the job every day. You know,
I -- I'm just repeating hearsay that when presented
with options on how to do something, the decisions were
not made by the owner for the cheapest solution to the
problem. It was based on -- well, their own
preference.
Q. Do you know if any of those items were
already a part of the plans, though? Do you know what
I mean by that?
A. Yeah, I think I understood the question, and
I don't know.
Q. Let me say, for example, in the hydronic
heating, the specifications call for underfloor
hydronic heating on page 4 of Exhibit No. 3.
Now, you may have heard from some of the
other testimony that it was presented to Kristin that
she should just simply go with radiators downstairs,
and I agree, radiators are much easier to install and
far cheaper than doing a staple-up system underneath,
but the specifications ask for a staple-up as part of
the bid.
So what I'm seeing right now is for -- with
that one example, is people saying, okay, you need do
it cheaper, but the expectation that Kristin and Eric
had was that it would be done -- the estimate would be
done according to the plans and the specifications; so
now you are asking them to move off of those plans and
specifications and go to something less than what they
had anticipated.
So I guess my question to you is: Do you
know of any decisions that she was asked to make that
were not on the original plans or the original
specifications?
A. It's my recollection that -- well, it may be
faulty, that our hydronic contractor looked at these
specifications and said, I think we could do this
cheaper and that, okay. And then I'm sure that there
was some back and forth with e-mails and stuff, and it
was agreed that we would use our normal hydronic
contractor, and that he would be able to save some
amount of money, which I'm sure that number was in the
bid, and that's how we got to where we got.
But as far as the details of how we got from
here to there, I'm sorry, but I don't know.
Q. I see. So in that particular instance,
somebody said, Listen, we've got to bring this in under
what we said, the 592, yeah, they are talking about
staple-up, but is there a way do it for less --
A. (Witness nodding head.)
Q. -- and then your hydronic guy said, Yeah, if
we don't do staple-up downstairs, we just do a
radiator, it will be a lot less. Is that correct?
A. It's possible that -- that conversation
transpired but I don't know.
Q. Okay. Do you have any knowledge of any other
alternatives or any other decisions that were asked of
Kristin where she wouldn't drop down to save money?
A. No, I don't. It wasn't part of -- I -- I
wasn't involved in that part of the project.
Q. Did you ever hear any concerns from anyone on
the project that Mr. Foy was having difficulties with
the project, that he didn't want to run it and didn't
want to deal with Kristin?
A. No.
Q. From your observation, was Mr. Foy spending
adequate time on the project?
A. I don't follow Greg's schedule. I -- when I
asked him questions about the project, I got answers,
so that's, you know -- that's the way I recall.
MR. REDENBACHER: We are just about done, and
I'm about ten minutes faster than I'd hoped, so let me
confer with Eric see there's anything else, and we
might be done here.
MS. DiBENEDETTO: Okay.
(Recess taken.)
MR. REDENBACHER: Back on the record.
Mr. Landry, if I were to come to you and say,
You know, Mr. Landry, I have real concerns about how
you communicated during this project with the owners.
Q. Other than what's already been said here the
last two days, is there anything else that you would
respond or defend with?
MS. DiBENEDETTO: Now, let me just object.
THE WITNESS: Say that again?
MS. DiBENEDETTO: You mean him or anyone from
his company?
MR. REDENBACHER: His company.
THE WITNESS: I'm sorry, will you say that
over?
MR. REDENBACHER: Yeah, he'll read it back to
you.
(Record read as requested.)
THE WITNESS: I would ask, What problems are
you alluding to, or what -- what's -- where's the beef?
BY MR. REDENBACHER: Q. So you are not
aware of any communication problems that went on?
MS. DiBENEDETTO: Objection. Vague and
ambiguous.
I mean define "problem," Gary.
MR. REDENBACHER: Just difficulty
communicating what you wanted to do versus what they
wanted to do.
THE WITNESS: We wanted to build these people
their dream house, and, you know, say very -- have
another list -- or have another person for our list of
happy clients, you know; and if you say that there was
a lack of communication, I say, Where's the beef?
Because there was daily communication and back and
forth between the field and the office. And I mean,
there was all kinds of communication, so, you know, I
just don't see the problem.
BY MR. REDENBACHER: Q. So you wouldn't say
that there was anything more that you could add?
A. No. I would say that the communication was
good.
Q. Kind of the same