Trial Transcript Day 2

8/3/2019 Trial Transcript Day 2

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COMMONWEALTH OF MASSACHUSETTS

BRISTOL, SS. LAND COURT DEPARTMENT

OF THE TRIAL COURT

MISC. CASE NO. 254067

******************

Before: Cutler, J.THE LANDING AT SOUTH PARK

CONDOMINIUM ASSOCIATTON

Plaintiff

vb.

BORDEN LIGHT MARINA, INC.

Defendanl

******************

Tuesday, November 9, 2010

Courtroom 5

226 Causeway St.reetBoston, Massachusetts O2LL4

. .' -''::1":ii

'i::i:l

KAKEN SMITHCourt Reporter

14 Palmer AvenueDanvers, Massachusetts 0 I 923

(978) 777-s802Fax (szs) 777-sBoJ

'''iil:::{,.::::li':r::

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G@PY



LANDING v BORDEN LIGHT #254067.Yot. lu9tr0Volume: II

Pages:234

Exhibits: 3

COMMONWEALTH OF MASSACHUSETTSWITNESS

INDEX

DIRECT CROSS REDIRECT RECROSS

BRISTOL, SS.

* * * *** * * * * ** * * * +* *

THE T-ANDING at SOUTH PARK

CONDOMINIUM AS SOCIATIONPlaintiffvs.

BORDEN LIGHT MARINA, INC.Defendant

* ** + * * ** ** +* +* * ** *

I/.ND COURT DEPARTMENTOF THE TRIAL COURT

MISC. CASENO. 254067

Before: CUTLER. J.

DON LEFFORT

@y Mr. Watsky)

(By Mr. Brennan) 31

MARCELLDAQUAY

(By Mr. Seigenberg) 65

(By Mr. Brennan) 87

JAMES HOLMES

@y Mr. Seigorberg) I 14

(By Mr. Brennan) 139

CHARLES EUGENE SCHNITZLEIN JR

(By Mr. Seigarberg) 174

EXHIBITS

No. Description Id.

33 Page 1

33 Pages 2 and 3

33 Pages 4,5 and 6 (REMOVED)

42 Deposition transcript of William Sterling

Wall, taken 10/28110, with exhibits l-7andAandBattached

45

to7

150

Tuesday, November 9, 2010

Courtroom 6

226 Causeway Street

Boston, Massachusetts 021 t4

APPEARANCES:

DANIEL R. SEIGENBERG, ESQ

MAT'|HEW WATSKY, ESQ.

2 Commercial Street

Sharon, Massachusetts 02067

(781)784-8800

Representing the Plaintiff

EDMUND BRENNAN, ESQ.

Brannan, Recupero

One Church Green

P.O. Box 488

Taunton, Massachusetts 02780(508)822-01?8

Representin g the Defendant

Evid.

180

156

tJo

172

NOTES:

KS COURT REPORTING14 Palmer Avenue

Danvers, Massachusetts 01923Phone: (978) 777-5802 ['AX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vor,.I rr/9trOI PROCEEDINGS

2 COURT CLERK: Novenrber 9, 2010,

3 miscellaneous case number 254067, The l-anding at

4 South Park Condominium Association versus Borden

5 Light Marina, lncorporated.

6 THE COURT: I just wanted to see if we were

7 all on the same page as to how we're going forward

8 here, and how you're planning to proceed in the next

9 couple of - Im assuming this is going to go at

l0 leastanothertwodays. Doesthatseemright?

I I MR. BRENNAN: I would estimate through

12 tomorrow aftemoon, Your Honor-

13 THE COURT: Yes. So, let's ta'lk about how

14 we see this going forward. And our plan today is

15 what?

16 MR. SEIGENBERG: Well. we have - can I

17 stay seated, Your Honor, ifthat's okay?

18 THECOURT: Yes.

19 MR. SEIGENBERG: We have Don lrffort, where

20 he's on cross currently. So, we'll finish up with

21 Don kffort. I know Attomey Brennan has requested

22that we take a witness

out of tum.23 THE COURT: Right. So, is that going to be

24 this aftemoon or is that going to be -

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MR. BRENNAN: I can have - if it's

necessary to take him out of hrm, because he's also

available tomonow afternoon, as well.

MR. SEIGENBERG: Okay. That makes -

MR. BRENNAN: It's just tomorrowmorning he

was - he teaches at Northeastern.

THE COURT: Oh, okay. All right. Well,

have you talked about this. Is it going to interrupt

the flow ifwe take him today, as opposed to

tomorrow or how -

MR. SEIGENBERG: The only diffrculty I have

is, I spoke to - I told the court the other day,

Your Honor - I actually do feel comfortable - force

of habit, I think, over the years. I talked to Jim

Holmes. He was the other structuml engineer. He

was the shuctural engineer that I told you about

yesterday - ,

THECOURT: Yes.

MR. SEIGENBERG: - with the insurance

company. He's not available at all tomorrow. I told

him we were going to have a discussion this morning,

and that frankly, it would be easier if I, I guess,

had him come in this aftemoon. And I know you had

suggested it may be rebuttal. Now, to the extent

-6-

I that we weren't going to finish on Wednesday, I would

2 keep him on as a rebuttal witness.

3 THECOURT: Yes.

4 MR. SEIGENBERG: Frankly, at the pace wete

5 going, depending on what we're going to do with the

6 coastal geologist - coastal - I'm sorry, not

7 geologist -

8 THE COURT: So, you have one, poss'ibly two

9 more experts?

10 MR. SEIGENBERG: Correct. We have a

I I coastal geologist, I believe. They have a coastal

12 geologist they want to take out oftum or call at

13 sonre point in time. Our coastal geologist, we've

I 4 agreed he's unavailable. We have his deposition, so

15 we'dbereadinginportionsofthedeposition. So,

16 it would proceed that way. It might be a little -

17 THECOURT: And thafs agreed upon?

18 MR. BRENNAN: I understand - when the time

19 comes, Your Honor, I would ask that my brother simply

20 put on the record the nature ofhis unavailability.

21 Accepting that it's true, I'm not going to object.

22 THECOURT: Okay.23 MR. SEIGENBERG: So, we have that

24 situation. Then I have two more witnesses from The

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1 knding, fwo of the board of managers.

2 TtlE COURT: So they are former or current

3 board of -

4 MR. SEIGENBERG: They're current.

5 THECOURT: Theytecurrent. Okay.

6 MR. SEIGENBERG: One should be

7 significantly less lengthy than the other.

8 THE COURT: Right. Okay.

9 MR. SEIGENBERG: I would expect the more

10 lengthy witness to be similar to the one who's

1 I already testified.

12 THE COURT: Conceivably your witnesses

13 could take up the rest ofthe day?

14 MR. SEIGENBERG: Absolutely, Your Honor.

15 THECOURT: Yes. Includingcross

16 examination and all of that, which would leave

1,7 tomorrow to - you have how many?

18 MR. BRENNAN: I have a surveyor; I have a

19 structural; I have a coastal geologist and my

20 clients.

2I THE COURT: Clients.

22 MR. BRENNAN: There are two clients.

23 THE COURT: Yes. Okay. Wele not going to

24 finish up tomorrow, it sounds like.

NOTES

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Danvers. Massachusetts 01923Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254067 Vor,.I ruglr0I MR. BRENNAN: Well, I would consider - our

2 structural engineer, given Your Honor's inclination

3 yesterday on the structural issue, we've heard from

4 one. I know my brother wants to call yet another.

5 I'm not sure what it adds to the first. I mean, I

6 would consider maybe not calling the structual

7 angineerifweagreethat -I'mnotsurewhatthey

8 addto -

9 THE COURT: Why don't we look at it this10 way. Okay. If this wall - let's assume for the

11 sake of argument this wall were permissible within

12 the easement area. Ifthat's the case. then the

13 structural element and all of that, seems to me wind

14 up in Superior Court ifther€'s nuisance, ifthere's

l5 damage to the foundation because ofthe construction,

1 6 all of that is in Superior Court.

17 If however. we frnd the wa'll shouldn't have

18 been built within this easement, let me tell, you

l9 whether it has a building permit or it doesn't have a

20 building permit, whether it has DEP permits or itZl doesn't, thafs not going to affect the outcome of

ZZ this case in terms of what the remedies are going to

23 be. I can assure you that. Okay.

24 So, ifyou want to push this issue and get

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it on the record that there is or there isn't a

permit, or whatever, at the end ofthe day I'm not

sure how much it's going to help. lm not going to

stop you, you know. I think it's irrelevant, but as

long as it's not taking up too much time, and you

want to get someone in here for five minutes to swear

that there's a permit or not, I don't see the harm in

it. I'11 take it for what it is. I don't think itgoes to the crux of the issue.

MR. SEIGENBERG: Interesting. And I

understand what the court's saying, but the only

question I guess I have is that there's already an

understanding, an agreement that these walls,

particularly the ones in 2008/2009, were constructed

in violation ofthe court order

THE COURT: The contempt is something else

again.

MR. SEIGENBERG: Right.

THE COURT: The issue is whether the

damages are the result of a contempt, or the damages

are the result ofthe wall being constructed in the

easement. okay.

MR. SEIGENBERG: And that's sort of where Iguess - I agree with the court 100 percent on the

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I easement issue. It's either it violates the easement

2 or it doesn't violate the easement. Very straight,

3 black and white, the issue. I agree 100 percent.

4 The issue over the conternpt complicates this a litt'le

5 bit in my mind. And I don't know if it does with

6 you, Your Honor, which is probably more important.

7 THE COURT: Well, it does, only in terms -

8 because the contempt is there. That's in place. I

9 think that's admitted. I don't think there's anyl0 question that the wall was built in violation ofa1 1 standing injunction that was as clear as bell. I

12 mean, there's other issues as you know. There's the

13 questionoflaches,youknow. There'sotherthings

14 that will come into play in tems of what the

15 ultimate damages or the - not damages, I shouldn't

16 say. Ishould -

17 MR. SEIGENBERG: Remedy.

18 THE COURT: - say the remedy is for the

19 contempt. I'm trying to keep those two things

20 separate as we go forward, but I'm afraid they're

2l sortofconflating -

22 MR. SEIGENBERG: Right.

23 THE COURT: - as the testimony is coming

24 in. I just don't want you to put too much emphasis

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1 in terms of spending your client's time and money to

2 prove that there were nuisances as a result ofthis

3 wall being built, that there was physical damages to

4 property and noise and, you know, things ofthat

5 sort. That's not going to come into play so much.

6 Okay.

7 So, when we were talking originally, when

8 we got together and we were talking about experts and

9 what I wanted to hear about this, my understanding

l0 was that these engineers were really going to be

I I talking more to the question ofhow does or does not

12 the construction of this wall materially interfere

l3 with the ability ofthe plaintiffs to have advantage

14 oftheir easernents. All right. And I haven't heard

15 anyofthatsofar,justsoyouknow. Andit'snot

I 6 this is just as good as, thafs not what I want to

l7 hear. I want to hear, does it or doesn't itl8 interfere with this easement, in what way exactly.

19 What did they have before? What could they do

20 before? What can't they do now as a result?

2l So, almost think of it in terms of, the

22 easement hasn't been - that the wall hasn't been

23 built yet. If this were someone coming in for24 declaratory judgment, is there a right to build a

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NOTES:


Danvers. Massachusetts 01923Phone: (978)777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254067 VOI.II rU9trOI wall there? I mean, you almost have to go from that

2 point mther than, no blood, no foul, the wall's up,

3 who cares, you know I don't think that's the point.

4 MR. SEIGENBERG: I see.

5 THE COURT: So, I would like you, if you

6 were going to have all these engineers, focus more on

7 that aspect of the case, as opposed to, what's the

8 resulting damage because the wall was built in

9 violation ofthe order.

10 MR. SEIGENBERG: I understand that, Your

I I Honor. But getting back to the contempt, I mean, I

12 th'ink you pointed out the correct, I guess it would

l3 be the dilemma we all have, that there's an

14 acknowledged contempt. And the question then

15 becomes, what's the remedy? And that's where it's

t6 different than the easement case, and that's why

17 we're attempting to try this case differartly,

18 because the decision - we actually - we just wanted

19 totrythecontemptcase. Youmadethedecision,and

20 I think rightfully so. It's an old case. kt's get

21 the easement issue resolved, too. But in my view -

22 THE COURT: The contempt, as far as lm23 concerned, there's contempt. You know, nobody has to

24 prove there was contempt. That was established at

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1 thehearing. Thequestionis,whatistheproper

2 remedy.

3 MR. SEIGENBERG: And this is why wete

4 tryrng to present you with evidence ofthe fact that,

5 okay,thewallisthere. Ifthatwallwasperfect,

6 right, and it doesn't cause any problems, you may

7 make a decision not to order that wall removed in the

8 contempt. However,ifyoufind,basedonthe

9 evidence, that it's not struchrrally sound and that

10 ifs causing damage to the units, it's going to

I I create a catastrophic failure, I would think in

12 evaluating all those remedies, you would want to know

13 that, including whether permits were applied for

14 because permits are important. Whether or not DEP

15 approval was obtained, all these types ofissues so

i6 you can make the bestjudgment possible on what the

17 contempt remedy should be. And that's why this -

18 what we've been trying to establish is so important I

19 would think, to the court. I agree. Ifyou find -

20 if the case is an easy one, from my view is an easy

2l one, but that's my view. I mean, if you find a

22 violation of the easement, then I would say, we

2l already know it's a structure, the wall. It's over

24 nineteen feet, MSL. They violated the easement.

I Forget everything else, that violates it, end of2 story. But to the extent that you don't see this

3 black and white as I do on the easement area, then

4 we're back to the contempt. And the contempt is

5 going to give us the remedy that we're looking for,

6 as well, which is at this point in time to have

7 T}IE COURT: You know that you've got a

8 slippery slope here because ofthe laches argument.

9 Okay. So, I'm not sure that you get 100 percent even

10 if you win.

1 I Again, I would just like you - I don't

12 want to drag this on unnecessarily long. I think

13 that I don't want to confuse. but I also want to make

14 it very clear. I'm not confused in my mind as we go

15 forward.

16 So, concern to the defendant that lestimony

l7 about the structural integity of the wall is going

l8 to infect my findings with regard to the - to

l9 whether or not it's adequate within the easement,

20 really is not going to. I understand that the two

2l thingsareseparate. Ijustdon'twanttospend

22 unnecessary time ifyou can agree on whether the23 permits were issued, whether they weren't issued, you

24 know, end of story. We don't need lengthy commentary

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1 on that.

2 MR. SEIGENBERG: Your Honor, we\e had this

3 discussion. I still have the - I talked to a city

4 counselor, counsel for the city ofFall River, and I

5 still have the building inspector on standby. Your

6 client's already testified at deposition that that's

1 theissueofpermits. Ithinklsentasubpoenaor

8 intended to, before I did his deposition. Is that

9 still an issue. I told her I'd call her back and

10 tellherwhetherornotweneeded thebuilding -

1l MR BRENNAN: I don't want to waste

12 anyone's time, either. And I think we agreed

13 yesterday that there were no permits pulled for the

14 '08/'09 work. What I wasn't clear on and my clients

15 weren't clear on is probably the previous work.

16 MR.SEIGENBERG: Nottogetintothis,but

l'7 he testified at his deposition to that effect.

l8 Thafs why, I mean, I'll still have him come in if19 youwant,but -

20 MR. BRENNAN: I had suggested that you -

2l that we put him at the end, ifwe decided we need

22 him. I think it would be a one question. Maybe I

23 car resolve the answer between now and then.

24 THE COURT: That's what I'm thinking is,

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NOTES

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Danvers, Massachusetts 01923Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vol.I rU9n0I you may have time to either get a statement of the

2 record or something like that, that you both agree

3 on, and just then can stipulate there is or there

4 isn't a build'ing permit.

5 MR. SEIGENBERG: That's what she's going -

6 MR, BRENNAN: I alreadv did it. It's a

7 good suggestion.

8 MR. SEIGENBERG: She's going to fax me over

9 something today, basically -l0 MR. BRENNAN: This is the building

I 1 inspector regarding building permits?

12 MR. SEIGENBERG: Exactly, yes. So, Im13 going to get something today. Ill talk to counset.

14 THECOURT: Mm-hmm.

15 MR. SEIGENBERG: Maybe we can resolve that.

16 Itdoessoundlikemaybelllcall -I'mhopingl17 get a chance -

18 THE COURT: And there's no question about

19 whetheronewasneeded. Imean,that'snotanissue

20 here.

2l MR. BRENNAN: Apparently not. -- it was

22 required.

23 THE COURT: So, today, if we can just go

24 over this.

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,M

1 at 9:30 tomorrowmoming.

2 THECOURT: Okay.

3 MR. BRENNAN: And then I have - I finish

4 the moming session between the surveyor and my two

5 clients. And then in the aftemoon. I have - at

6 2:30IcanhaveMr.Rosenhere. He'sthe -

7 THE COURT: He is the structural -

8 MR. BRENNAN: - coastal geologist.

9 THE COURT: Oh, he's the coastal geologist.10 Okay.

I I MR. BRENNAN: I'm betwixt and between with

12 the structural - with the structural engineer.

13 THECOURT: Yes.

14 MR. BRENNAN: I don't' want to waste time.

15 Ifit appears that it's a part ofth€ contempt

16 portion of the case, then I will feel compelled to

17 call him. I don't need him for the easement.

18 THE COURT: Okay. So, you think it matters

l9 ifthe wall was built, ifI can get this straight, in

20 violation ofthejudge's orderin this, the

2l injunction, you think it matters whether there was a

22 permit, whether it's structurally sound, or not?

23 MR. SEIGENBERG: Franklv. with an

24 injunction, it -

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I THE COURT: It doesn't matter, right?

2 MR. SEIGENBERG: But I'm not the judge

3 who's going to determine what the remedy is. But if4 you were going to consider remedies, and you were

5 thinking of anything other than having that wall come

6 down, I would say it does matter if we know whether

7 that wall is structurally sound or not. It seems to

8 me somewhat in the nature of, you know, like a

9 deminimis encroachment. almost.

10 THE COURT: What you're saying is, if I

I I were to find that that wall. even if I were to find

12 that that wall could be constructed within the

13 easement, that you could envision a remedy in which I

14 would order the wall taken down solely because it was

l5 built in violation ofthe iniunction and is

16 structurallyunsound.

17 MR. SEIGENBERG: Amongst other things, yes,

l8 absolutely.

19 THECOURT: Isee. Okay.

20 MR. SEIGENBERG: And that's what equitable

21 - is all about. You find a violation, which we

22 already have a contempt, and so what's the remedy

23 going to be. We're certainly not - I would like to

24 suggest we're not going to allow a structuraily

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MR. SEIGENBERG: I think what we'd like to

do, Your Honor, is we finish up with Don l-effort. Iwould call James Holmes. the other structural

engineer and have him come in. He should be -

certainly the direct should be fairly briel And so

we'd get him done, as well, because I don't know

what's available. He's certainlv not available

tomorrow.

THECOURT: Okay.

MR. SEIGENBERG: He is available this

aftemoon. So, ld call him, and then we have two

more, like I said, two more l-anding representatives,

current board members.

THE COURT: And they're here today?

MR. SEIGENBERG: They are here today.

THE COURT: So, you can follow up, if you

finish with Don l.effort this moming, you can start

them while youte waiting for your structural

engineer.

MR. SEIGENBERG: Exactly.

THE COURT: And you are going to bring your

suweyor?

MR. BRENNAN: With that in mind, YourHonor, I would suggest that

]l!**r **.r- n"."

NOTES:





LANDING V BORDEN LIGHT #254067 VOL.II tugn0I unsound wall that threatens a condominium complex to

2 remainstanding. Ifitservedallthepurposes,if

3 it was structurally sound, maybe you would look at it4 differently. But the former point seems like pretty

5 crystal clear, I would suggest. I guess I'm arguing

6 to some extent. If you find contempt, they

7 constructed a wall in violation ofthe court order

8 within the easement area, and the wall's unsound, I'd

9 argue, yes, the wall has to go down and we have to -l0 that would be one ofthe remedies, amongst others.

I I So, that's why we were trying !o present -

12 and certainly what we were trying to do, like I said

13 before, these are, you know, in contempt you have

14 discretion in your remedies. And certa'inly one of15 the factors that I would ask the court to consider is

16 not only they violated an injunction, there were not

17 building permits which have some importance. They

l8 had not DEP approval.

19 THE COURT: There is an altemative. and

20 that is if I found that the wall could be built in

2l that easement, I could require that it be repaired

22and fixed.

23 MR. SEIGENBERG: Which would require

24 testimonytoseeifitcouldberepaired. Idon't

I disagree -

2 THE COURT: I mean, that's the other aspect

3 ofit.So-4 MR. SEIGENBERG: And I don't disaeree with

5 it. That's why -

6 THE COURT: That's why I had wanled to wait

7 on some of this until after we've heard the principle

8 case. Butifyouwanttoproceedtogether,wecan

9 proceed together. I think the reason we had

l0 originally talked about having it all together was

1 I because there were going to be experts'involved.

12 MR. SEIGENBERG: And it does make sense,

13 but -

14 THECOURT: Ijustwanttolimit -Ijust15 want to make sure that werre clear that to the extent

l6 if any, that there was some kind of damage to the

l7 buildings as a result ofthe construction ofthe

18 wall. I'm not getting into the nature of the damage,

19 howmuch itcosttorepair. Asfaras I'mconcerned,

20 that's a separate case someplace else, not here.

21 MR. SEIGENBERG: I agree with that except

22 with one caveat. Certainly you would want to hear

23 that there's already been damage to units, and you24 would want to hear that there is a concem ifthat

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wall stays up in it's current composition, that

there'll be further damage to the units. It all goes

back to that contempt. And I see now where the

court - where you were going early on in this case,

Your Honor, because you were looking at it more as an

easement case, the case in chief. But we're here as

you know, as a lawyer, you worry atrout getting all

yourcase in -

THE COURT: Right.MR. SEIGENBERG: - on everything. And

that was the concern that we obvious'lv had.

THECOURT: Okay.

MR. SEIGENBERG: So -

THE COURT: All right. But I also want to,

you know - to tell you the truth, I haven't had the

foundation yet that these structures are within the

aegis of the board of managers, the trustees. I have

seen nothing. I've seen that you've got the trustees

and that they are representing the unit owners, and

that's it. So, I don't even know if these buildings

are the responsibility, and the maintenance of these

buildings are the responsibility ofthe trustees,just so you know that.

MR. SEIGENBERG: Oh, interesting.

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I THECOURT: Okay.

2 MR SEIGENBERG: We could look - if you

3 really want the condo documents, we could put those

4 in.

5 THE COURT: Or agree - I need to lnow that

6 they have an even standing to talk about that,

7 because I'm hearing, you know, you had a witness here

8 yesterday who was talking about his own personal

9 unit. Irt me just tell you, thafs not an issue

10 here.

ll MR.SEIGENBERG: Andlmadeaoointthat-

12 call board members.

13 THE COURT: Right, right. And I

14 understand, I understand.

15 MR. SEIGENBERG: But I do think the

16 statute -Ihavetoreviewit. Ithinkthestatute

17 does in fact provide for that, that the board of

18 rnanagers, that's the goup that's responsible for the

19 condominium complex as a whole. I recognize it's

20 different for individual units. Ifvou reallv want

2l the -

22 THE COURT: It depends upon how it's

23 defined in the condo documents, how the units are

24 defined and who's resoonsible for what. That's

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LANDING v BORDEN LIGHT #254067 VoL.II rlt9/t0I usually laid out in the condo documents, so ifyou're

2 going in that direction, you know -

3 MR. SEIGENBERG: I don't think it's - by

4 the way, in the answer - the complaint and answer,

5 it's admitted that I do believe that we're - tiat6 the board ofmanagers has that fesponsibility and

7 authority. I don't think that's ever been denied.

8 MR. BRENNAN: Yes. Idon'trecall -

9 THE COURT: So, you don't challenge that at10 all.

11 MR. BRENNAN: I filed an amended answer.

12 THECOURT: Yes.

13 MR.BRENNAN: Idon'trecatl;Ifurther

14 amended it yesterday to add the statute of

15 limitations.

16 THECOURT: Okay.

17 MR BRENNAN: So, I had to get another one.

18 THECOURT: Okay.

19 MR.BRENNAN: Wecancertainlyiookat

20 that. And whatever my answer says -

21 MR. SEIGENBERG: Otherwise, do you really

22 want me to get the condo docs brought in? Is that

23 whatyou -lmean -

24 THE COURT: No, not necessarily, if you can

I agree.

2 MR. SEIGENBERG: I think we just did.

3 THECOURT: Okay.

4 MR. BRENNAN: We can look at it.

5 THECOURT: Okay.

6 MR. SEIGENBERG: I just want to look at my

7 answer on that.

8 THECOURT: All right.

9 MR. SEIGENBERG: That doesn't sound like

10 agreement.

11 THECOURT: Okay.

12 MR. SEIGENBERG: I'm going to bring it up

13 in testimony as to what their understanding is and

14 what the responsibilities are, and I can bring in -

l5 you know, I could call a title examiner and bring the

16 condo documents and the -

17 THE COURT: I don't need it to that level.

18 MR. SEIGENBERG: You need something.

19 THE COURT: I need something.

20 MR. BRENNAN: The statute would say, I

2l think, that the board ofmanagers has that

22 responsibility. Andtheniftheyaretheduly

23 elected board ofmanagers -24 THE COURT: Unless otherwise set forth in

-26-

I the documents- Again, depending upon the

2 condominium, these things are oftor described

3 differently. So, sometimes the unit owners are, in

4 . fact, responsible for the exterior work on their

5 property. And so you need to know what is - who

6 owns or controls what aspect ofthe building.

7 MR. SEIGENBERG: I don't think we have a

8 difference of opinion on that. We al1 agee that the

9 common areas are not owned ifthey have an undivided10 interest. Butthey'retheresponsibilityofthe

1 I board ofmanagers.

12 THE COURT: That's right.

13 MR. SEIGENBERG: We also agree that

14 anything inside the walls is the unit owner's.

15 THE COURT: But sometimes it goes outside

16 wal1, and sometimes it doesn't. It depends upon -

17 MR. SEIGENBERG: Right.

18 THECOURT: -howthecondo -

19 MR. SEIGENBERG: But I don't think that -

20 I'm not so sure that's an issue in this case because

2l we're talking about walls in the common area, and the

22 only relation to the units is the fact that

23 there's - based on work in the common areas there

24 was damage to individual units.

11

1 THE COURT: Again, when we're talking about

2 damage to individual units -

3 MR. SEIGENBERG: And I'm not trying to - I

4 agree 100 percent.

5 THE COURT: - that's outside this space.

6 MR. SEIGENBERG: We have no intention to

7 present anything as to the monetary damage to the -

8 THECOURT: Okay.

9 MR. SEIGENBERG: - individual units.

l0 Thereareonly,onceagain -andonceagain,l'm1 1 glad the court is having this discussion with us now

12 It goes to the whole conternpt issue, what's your

13 remedygoingtobe,giventhatcontempthere. Andit

14 just seemed to me, and it still seems to me that

15 knowing that there's already been damage to

16 individual units directlyrelated to this excavation,

17 that's something I think the court would want to know

l8 when -

19 THE COURT: No. If it's related to the

20 excavation, it's not related to the construction of2l the wall, is it?

22 MR. SEIGENBERG: The excavation was part of

23 the construction of the wall. That's the excavation.24 Your Honor, yes.

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NOTES:


I)anvers, Msssachusetts 01923

Phone (978)777-5802 FAX: (978) 777-5803



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THE COURT: Yes. It's very complex here.

Okay. But let's get back to our organization. So,

today we're finishing up with Mr. kffort's cross

examination and recross. We're having the second

structural engineer in the afternoon. Wete having

the two current board managers.

MR. SEIGENBERG: And we also have the

deposition that will -

THE COURT: And the deposition of thatgeologist.

MR. SEIGENBERG: Which we've tried to -

we've tried to'limit somewhat, Your Honor.

THE COURT: Okay. That will be this

afternoon.

MR. SEIGENBERG: Yes: I think that would

get us through today.

MR. BRENNAN: I feel safe, Your Honor thal

starting - I feel safe having my witnesses available

as of 9:30 tomorrow morning.

THE COURT: I think that works, yes. If we

break a little early today, that's fine. Yesterday

we went a little too long. I just want to remind you

that, you know, rye are not fully staffed any longer,

and we need to make rur" ,nl;;u_*ody is out of the

I courtrooms by 4:15 so that the court officer can

2 leave on time and close up. So, it really is

3 important to keep that - because me, I could stay

4 here all night. That's not an issue. But we do have

5 otherpersonnel to be concemed about.

6 So, okay. With that, I think we're ready

7 to go.

8 MR. BRENNAN: If we don't frnish tomonow,

9 will we resume Friday moming?

l0 THE COURT: I€t me just - I didn't bringl l my calendar in w.ith me. Yes, I think there's one

12 thing on Friday morning. I mean, if we only have one

13 witness to finish up, or a cross examination or

14 something, we probably could do that on Friday. But

15 we might have to interrupt it with something as we're

16 goingforward. Ifitlookslikewe'vegotseveral

17 witnesses to go, I think we're going to have to

18 schedule another day and we can figure that out

19 tomorrow.

Z0 All right. You maybring - and I think

Zl we'llgountil ll:15. We'lltakeabreakforten

22 minutes, and then we'll go again until 12:30. Okay.

23 MR. BRENNAN: Your Honor, I'm going to have

24 my client notify Mr. Rosen -

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THECOURT: Okay.

MR. BRENNAN: - 2:30 tomonow, and the

other people will be here. They're all waiting on

telephone ca11s.

THE COURT: Okay. Certainly.

(Trial paused)

THE COURT: Mr. Seigenberg, are you -

MR. SEIGENBERG: I'm sorry, Your Honor?

THE COURT: Are we ready?MR. SEIGENBERG: Oh, yes. I'm sorry, Your

Honor. I thought Mr. Brennan was going to call Mr.

kffort.THE COURT: He's your witness, though.

MR. SEIGENBERG: No. no. It's Don lrffort.I think we're still on cross with Don I€ffort.

THE COLIRT: Oh, okay.

MR. BRENNAN: Finishine Mr. kffort this

morning.

THE COURT: All right. Mr. l,efforr, can

you please - you're still under oath from yesterday.

Resumed Cross Examination of DON LEFFORT

(By Mr. Brannan:)

Good moming, Mr. teffort.

Good moming.

- 3l -

I Q At the end of yesterday's session, we were talking a

2 bit about what you have done or hadn't done

3 investigation-wise about the historical use ofthis

4 siteinquestion;isthatcorrect? Doyourecall

5 that?

6 A lt's correct.

? Q And by the site in question, do you understand that

8 means the embankment area between The tanding

9 property and the Marina property?

10 A That's correct.11 Q Now, there was some mention of consolidated

12 materials. Do you recall that?

13 A Yes.

14 Q Is theterm,consolidated orunconsolidated? Idon't

15 recall.

16 A lt'snaturalvirginsoilthat'sconsolidated,

l7 compacted.

1 8 Q If I recall correctly, your testimony was that your

19 opinion was based on this embankment providing

20 particularbenefits to The l-anding property as

2I consolidated material; is that correct?

22 A That's correct.

z)24 Q And you said that if it wasn't consolidated material,

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NOTES:


Danvers, Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT.#254067 VoI.II tugn0I that could affect your opinion?

2 A That's correct.

3 Q Mr. kffort, do you still have the index of exhibits

4 in front ofyou?

5 A Yes.

6 Q If you would, Mr. Irffort, would you tum to exhibit

7 number 34-9?

8 A Okay. I found it.

9 MR. BRENNAN: May I approach the witness,10 Your Honor?

11 THECOURT: Yes,youmay.

12 Q Mr. tcffort, if I could see the photo you're

i3 referring to.

14 MR.BRENNAN: YourHonor,Idohavea

15 better copy made. It's the same copy as that. May I

16 have it with this witness?

17 THE COURT: Okay. Would you testifu from

18 that, then.

19 THE WITNESS: Yes.

20 Q Mr. lrffort, looking at exhibit 34-9, and looking at

21 the earth materials that are shown in thatpicture,

22 can you tell me whether or not that would - the

23 materials would be consistent with conso'lidated

24 materials or fill materials?

-33 -

1 A The exposed areas are disturbed. It's - it would be

2 probably hard to state that this was fill or not fill

3 material.

4 Q Well, looking at what is shown in that picture, if5 that were in fact the existing conditions in front of6 buildings 3 and 4 prior to the construction ofthe

7 wall in question, would that change your opinion in

8 any way as to whether or not the wall would provide

9 sufficientprotectiontoThel-andingpropertyfroman

l0 ocean event as you described?I 1 A There would certainly be serious erosion during a

12 hurricane event.

13 Q Iflmay -maylplease?

14 A Yes.

15 Q fd like to ask you ifyou would lookat what is

16 exhibit number 34-10.

17 MR. BRENNAN: And I also have a better

l8 photo, an original for you.

19 THECOURT: Okay.

20 Q Take a moment and look at 34-10, and Iwould askyou

2l ifyou could tell me based on what you see in that

22 photograph whether you could determine whether or not

23 the earth materials were consolidated materials or24 fill materials?

,34 -

Visually, I can't make a statement if it's fillmaterial. not -

Is there any characteristics shown in that photo ofthe earth material that would lead you to believe

that it's fill material?

It appears that there is some erosion that's taking

place.

I'd like to show you a photograph, exhibit 34-1 l, and

ask you also ifyou would take a look at thatphotograph and teli me whether or not from that

photograph if there's anyhing in there that would

indicate whether the material shown is consolidated

materiat or fiIl material?

Again, without doing any exploratory work on that, I

couldn't tell you if it was fill or not. Again

though, it's eroded material. It's erosion.

Sure. So, it's fair !o say that there is erosion

shown in that photograph?

Absolutely.

I'd like to show you a photograph marked

exhibit 34-12. And I've also got a glossy photo, ifyou would look at that?

Now, looking at that photograph, do you

recognize that as being the s:o::herly end of the

I Borden Light Marina/landing South Park Property?

2 A I can't be certain. Is the building on the top left,

3 is thatbuilding 3?

4 Q Directingyourattention tothephotograph,ifthe

5 southemmost building on that photograph is building

6 number 3, does that orientale you as to where it is

7 on the property?

8 A Yes.

9 Q Would it be fair to say that's in the southerly end?

l0 A Yes,that'scorrect.1 I Q Do you see the access road coming in from the

12 southerlyend?

13 A Yes.

14 Q And do you see the embankment to the left of the

15 access road?

16 A Conect.

17 Q Fromthatphotograph, is there any way you can

l8 determine whether or not that embankment was

19 consolidated materials or as a result ofprevious

20 fill?

21 A From this photo it's concrete debris which we would

22 call fill.

23 Q fd liketo directyourattention to exhibit34-31.24 And I'd ask you, looking at that photograph, if I

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NOTES:


Danvers. Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vor,.I were to tell you that that - if you would assume for

2 a moment that that is in front of building number 3,

3 could you describe what's shown in thatphotograph?

4 A It loolc like in the winter, and all the vegetation

5 is obviously dormant.

6 Q Do you observe anything in that photograph that would

7 indicate erosion ofthe embankrnent?

8 A Yes. Around the centerofthebuildingthereis some

9 soil movement.l0 Q Now again, exhibit number 34-37,I would ask you if11 youwouldtakealookatthatphotograph. Andifl12 were to tell you that that is the King Phillip Boat

13 Club, do you know where that is in orientation to The

14 l-anding and Marina properties?

l5 A Ibelievethat's south ofthe site.

16 Q So, it would be King Phillip Boat Club is shown in

17 that photograph. Would it be fair to say that the

18 building number 3 would have been built or was built

19 to the left ofthat?

20 A Yes.

2l Q Can you tell me what's described, or what - would

22 you describe what you see in that photograph?

23 A There's quite abitofconstruction debris laid in

24 the sun.

-37 -

I Q Would it be fair it doesn't show consolidated

2 material?

3 A It's hard to say. There is vegetation here.

4 Q Well, vegetation alone certainly is not an indication

5 ofconsolidated materials; is that correct?

6 A Right.

7 Q Thevegetationcould growonfill.

8 A Absolutely.

9 Q You do observe construction material on that site -

l0 A That's correct. i

ll Q -inthephotograph?

12 A Yes.

13 Q fd like to showyou one morephotograph, which is

t4 marked 34-38, and I would ask you ifyou would take a

15 look at that and tell me ifyou recognize what is

16 shown in that photogaph?

17 A There's construction debris on the top surfaceof

18 this material.

19 Q Mr. l-effort, when you were out at the property, did

20 you have an opportunity to observe the tank farm, the

2l oil tanks to the north of the Marina?

22 A No. I did not.

23 Q Looking at that picture, can you orientate yourself24 as to whether or not that is looking from the

-38-

tr/9tr0I southerly end ofthe property, northerly towards

2 where the Marina and the club house are now built?

3 A I'm sorry. I probably can't because I'm not fam'iliar

4 with it.

5 Q Is there anything in that photograph that would allow

6 you to make - form an opinion as to whether or not

7 that construction area depicts consolidated matedal

8 or fill material?

9 A Yeah. You can see that there is construction debrist0 on the top surface.

11 Q Now, Mr. kffort, directing your attention to exhibit

12 number 5 in the binder that vou have before vou.

13 A Yes.

14 Q That is entitled a non-exclusive easement; conect?


16 Q Have you had an opportunity prior to this moming to

17 review and read that document?

18 A I'velookedatitpriortothis -

19 Q Would it be fair to say you're familiar with it?

20 A I am familiar with it, yes.

2l Q Do you understand that this document forms at least

22 the basis ofsome part ofthis case thaCs pending,

23 and you're here this morning for?

24 A Yes, correct.

-39 -

I Q Directing your attention to midway down through the

2 firstparagraph, starting with thewords, "as

3 hereinafter described," do you see where that is?

4 A Yes. You mean, here and after described it for

5 construction?

6 Q Skip down to the second sentence after that, starting

7 with the words, "for construction and maintenance of

8 drainage systems, and for construction and

9 maintenance ofa sloped gtaded erosion and flood

l0 protectionbarrier." Didlreadthataccurately?l1 A Yes,that'scorrect.

I 2 Q Now, given the photographs that you just examined,

13 and your testimony on cross examination yesterday

14 that your opinion may vary, depending on whether it

15 was consolidated or unconsolidated materials, after

16 looking at these photographs in the vicinity of

17 building number 3, would it be fair to say that a

l8 retaining wall, a vertical, segmented block retaining

19 wall constructed in the area ofthe soils that you

20 observed in those three - on those exhibits, would

21 act as a flood protection barrier for The l-anding at

22 South Parkproperty?

23 A If itwere designed properly,yes,

itcould.24 Q That opinion is based in part upon your review of the

-40-

NOTES



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #2s4067 Vor,.I tugn0I exhibits that wejust went over; is that correct?

2 A Correct.

3 Q And would it be fair to say that a retaining wall4 constructed as youjust described, would also5 adequately serve or be better than a sloped graded

6 bank ofthis unconsolidated material forerosion7 control?

8 MR. SEIGENBERG: Objection, your Honor,9 form of the question. It assumes it,s unconsolidated

10 material. I think that,s what the witness said.

I I THE COURT: Do you want to rephrase your12 question?

t3 MR. BRENNAN: yes, your Honor.

14 Q Mr. trffort, based on your examination of the photos

15 that we went over moments ago, it,s youf testimony16 that you observed fill material in a number of those

17 photos; is that correct? Construction debris?

18 A Yes, north of the site and south of the site.

19 Q Conect. Now, it would be fair to say that

20 construction debris would not be consolidated

2l material?

22 A That is correct.

23 Q So, givan the presence in the vicinity of buildings24 on the southerly end ofThe tanding at South park

- +l -

1 THE COURT: I,m not allowing the question.2 Q Mr. trffort, the photographs that you examined, which3 were exhibits 34-39, 37 , 31, g,10, I 1 and 12, you4 identified the area in those photos as being the

5 southerly end in the vicinityofthe King phillip

6 boatyard - I mean, Boat Club?

7 A Yes, correcl

8 Q Do you understand buildings 3 and 4 to be in the

9 southerly end of The I_anding at South park property?l0 A Yes, north of the King phillip.

I I Q In the photo$aphs, you have identified the

12 embankment as consisting at least in part of13 construction debris; is that correct?

14 A Yes, the one that was shown by King phillip.

15 Q Givor the fact that that embankment in the vicinity16 of - would you agree that's in the viciniW of17 building 3?

18 MR. SEIGENBERG: Objection, your Honor,19 just to the vagueness of term, ,'in

the vicinity.,'20 THE COURT: No. I,ll allow the question.

2l Q Doyouagreethat -

22 A Itappears to be in the vicinity ofbuilding 3.

23 Q Right. So, givor that t1pe of soil material in the24 vicinity ofbuilding 3, and focusing your attention

I on building 3, would it be fair to say that a

2 retaining wall constructed as you described, would3 afford The landing in South park erosion control and

4 flood protection?

5 A Yes, that's conect.

6 Q Given the soil materials that you have seen in these

7 photographs, at least those that consist of8 construction debris, would it be fair to say that the9 retaining wall would give The landing at South park

l0 greater erosion control and flood protection than the1 I photographs that you observed, which you testified12 showed erosion; is that fair to sav?

13 A That'sfairtosay.

14 Q Youtestified yesterdayabouterosion to coastal

15 banks, and different ways coastal banks may erode.

16 When a reta.ining wall has been constructed in a

l7 coastal bank area, what lpe oferosion would you, as

18 an engineer, be concerned with, on the top ofthe19 wa1l, or on the bottom of the wall?

20 A At the base of the wall is - in a storm event is

21 subject to the most scouring and erosion based about22 the waves as it hits the wall. A lot of energy is

23 absorbed right in that area, which ifnot properly24 addressed, you could lose quite a bit ofsoil._44-

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property, given the presence ofthe construction

debris, which we agree is unconsolidated materiat,

would it be fair to say that a retaining wall

constructed as you described, would serve the

function oferosion control and flood protection

equal to or better than an embankrnent ofunconsolidated material?

MR. SEIGENBERG: Objection, your HonorThe dilficulty is, he,s talking about debris that's

not necessarilynearthe blocked area. As such, it's

not necessarily unconsolidated. So, he's asking the

witness to give an opinion on facts that are not inevidence.

THE COURT: I'm not sure he's asking in the

vicinity of the premises as we have defined them. Ithink he's talking about in general, ifthere were

construction debris, would a wall replacing that

construction debris adequately serve for flood

control. It's a -

MR. SEIGENBERG: It's a hypothetical.

THE COURT: It's a hypothetical.

MR. SEIGENBERG: Which doesn't have anyreality, any basis in reality in this case.

MR. BRENNAN: I'm sorry, your Honor?

NOTES:



Phone: (978) 777-5802 FAX: (978) 777_5803



LANDING v BORDEN LIGHT #254067 VOT,.I tugn0I Q Now, itbeing avertical wall, would itbe fair to

2 say that it will absorb from a perpendicular impact

3 most ofthe energy from a storm wave?

4 A Yes. If it's the - on certain waves, the majority

5 ofthe waves do hit straight on.

6 Q And is it then your opinion that the erosion that may

7 occur is at the base ofthe wall, and thafs a

8 gteater concem than on the top ofthe wall?

9 A Yes, because it could result in sudden failure of thel0 entire wall if the base is compromised.

I I Q In your engagement with The landing at South Park as

12 a consultant/expert for them, were you asked to look

13 at The l-anding at South Park's drainage system at

14 all?

15 A No, it was not-

16 MR. BRENNAN: Thank you. I have no further

17 questions, Your Honor.

18 THE COURT: Redirect?

19 MR SEIGENBERG: Your Honor. could I have

20 just a moment?


22 REDIRECT EXAMINATION

23 (By Mr. Watsky:)

24 Q Mr. lrffort, you were asked on cross examination to

-45-

I talk about the different alternatives ofways to

2 restore stability 0o the slope. Could you explain to

3 us why you chose, and why you testified on direct

4 examination that doing the lifts and rebuilding the

5 coastal bank?

6 A Yeah. That was one of the preferred solutions. We

7 looked at other altemates such as reinforced

8 concrete retaining walls, sheet piling, auger piles.

9 The difficulties with the reinforced concrete wall

10 would be that a fair amount of The tanding's property

1 I would have to be excavated beyond the property line.

12 And in close proximity to the buildings there wasn't

13 adequate enough room to construct that type ofwall.

14 An altemate plan would have probably used

15 asheetpilingmechanismofaverticalwall. The

16 concems we had with that is that driving sheet piles

17 so close to a building could be detrimental to the

18 building. Inter-finishescouldbequiteabitof

19 damage. Didn't seem - it would be a very risky type

20 ofconstruction. And giving thoseparameters, it21 would seem like the logical thing we'd do is to

22 restore the embankment as it originally was.

23 Q Counsel hasjust asked you questions about the24 easement, the so-called non-exclusive easement.

-46-

I Could you turn to that exhibit again, please? I

2 think that's exhibit 5.

3 MR. WATSKY: Dan, if you could bring that

4 to me.

5 Q You got it, Mr. l€ffort?

6 A Yes, yes, correct.

7 Q Counsel had pointed you to the language and part that

8 reads, "for construction and maintenance ofdrainage

9 systems, and for construction and maintenance ofa10 sloped graded erosion and flood protection barrier;"

1 1 correct?

12 A Correct.

13 Q Tell me something. Is something that's vertical

14 sloped?

15 A No, ifs not.

16 Q What is it? What does sloped mean?

I 7 A Anything that's greater than horizontal, up to, but

18 not including vertical.

19 Q And so,whatwould thenormalmeaningfroman

20 engineering perspective, be it having a sloped graded

2l erosion and flood protection barrier mean?

22 A It would be service - soil - it would be a grade of

23 material that has a slope to it, anywhere from zero

24 de$ees to - I mean one degree to eighty-nine

A1

I degrees.

2 Q Butif it's -

3 A But it has to - you know, and maintain,

4 maintainable.

5 Q It has to be maintainable. So, if one is

6 constructing and maintaining a sloped graded erosion

7 and flood protection barrier, would you interpret

8 that to mean a coastal engineering structure that's

9 made of con$ete blocks or is that to be of some

10 other material?

1l A Of othermaterial, not concrete blocks.

12 Q What would it be?

13 A It would be - you could use - it would be soil. It

14 could be earth.

15 Q What's the meaning of the word, "graded," used in

16 that tefm?

17 A The pitch of the material, the slope of the material.

18 Q Butdoyou gradeconcreteblocks?

19 A No.

20 Q What do you - what is something - when it's

21 referring to something that's graded, whatis that

22 referring to?

23 A That would refer to soil.24 Q Soil. So, ifthere'saverticalconcretewall,isit

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'" illfmliDr.pt'.tr.r*o' ,tl

NOTES:



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vor-. ru9n0I possible than to actually have a graded sloped area

2 there?

3 A It would seem - no, you could not.

4 Q One is exclusive oftheother; is that correct?

5 A Correct.

6 Q Ireferyou toexhibit 34-23. Tellme when you've

7 found it.

8 A Yes, I have it.

9 Q Just orient us at flrst, before I ask you a question.l0 Can you tell me what we're looking at here?

l1 A It would appear that we're looking in the southwest

12 direction along the shoreline in front ofThe

13 landing.

14 Q And just !o get oriented, along the water side, can

15 you see where there's a stone wharf?

16 A Yes.

I 7 Q And you see a vegetated area that's between that and

18 the last building of The l:nding?

19 A Yes,Ido. Iseeafullyand vegetated area, yes.

20 Q Okay. Would this area constitute a sloped and gr"aded

2l arca'l

22 A Yes,youarecorrect.

23 Q Is what you're seeing in those photographs depicting

24 something that's consistent with the language used in

-49-

I the easement?

2 A Yes, it does.

3 MR. BRENNAN: Objection, Your Honor. That

4 would be for Your Honor's determination.

5 THE COURT: Yes, I agree. Sustained.

6 MR WATSKY: I'll rephrase. Im sorry.

7 Q Would what you're seeing here be consistent with the

8 words sloped and graded?

9 A Yes, correct.

10 Q lrt me move on. I'm just going to orient you. On

I I direct examination yesterday, you testified about

L2 doing your four test pits -

13 A Yes.

14 Q -whereyouexaminethe geofabdc. And thenon

15 cross examination, counsel asked you a number of

16 questionsaboutit. Tellme,whydidyoutakefour

17 test pits?

18 A Webased itonengineeringpractices. Wefigured

19 that based on the length of the wall, four pits would

20 give us a good indication of what was installed

21 behindthewall. Becauseitdidnotvaryfrompit -

22 from observation pit to observation pit, it was the

23 same. We did not see any variation in it. So, our24 feeling was that the amount ofgeo grade was only

-50-

I four feet in width, two feet underneath the b'lock,

2 two feet into the soil.

3 Q So, in a standard pract'ice as an engineer, would

4 you - strike that.

5 Did you use standard engineering practices

6 to determine the number oftest pits that you needed?

7 A lt's a judgmort, yes, it's an engineering judgment.

8 Q Do you agree then with counsel's characterization

9 that you only really have an understanding of fow10 feet out ofthe 500-p1us feet, or do you feel you

I I have an understanding ofthe conditions along this

12 entire wall?

13 MR. BRENNAN: Objection. kading.

74 THE COURT: I'11 allow it. lll allow the

15 question.

16 A Yes. We seemtohaveabetterunderstandingof

17 what's there, as well as we were able to review an

18 invoice on the material, the amount of material that

19 was purchased for the site, and it seemed like it was

20 consistent with our determination.

21 Q Youjustreferred to aninvoice. Ibelievethat's in

22 the book as exhibit 37. Mr. kffort. Would you tum

23 to exhibit 37?

24 A Yes, that is correct.

-51 -

I Q Can you identify exhibit 37, please?

2 A Exhibit 37 is an invoice for geogrid that was

3 purchased from Noah (phonetic) Environmental

4 Corporation to Borden Light Marina.

5 Q What's your understanding of what this repressnts?

6 A It describes the quantity of material that was

7 purchased for the site, and it appears to be the only

8 invoice showing the amount purchased, total amount

9 purchased.

l0 Q Now, tell me, using just basic math, were you able to

l1 determine whether the quantity of gmfabric shown rn

12 that invoice was sufficient to provide the amount of

13 geofabric necessary that you testified to yesterday,

14 extording back into the bank?

15 A Itseemed to bea lesserquantityneeded to fulfill

16 thestabilityneeded. Andactuallyit -conversely

17 we were able to verify our findings mathematically,

1 I because ifyou take the quantity that they purchased

19 over the length of the wall, it would only leave you

20 a little over three feet ofmaterial per layer for

2t the entire wall, and assuming that the wall was only

22 eight feet for the entire length, although we know it

23 doesjump up to ten feet in spots.24 Q lrt me ask you to elaborate on that and clarify.

-{r-NOTES



Phone: (978) 717-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #2s4067 Vol. I Lugn0I What do you mean by, "It only provides a little over

2 threefeetofwidth?" Isthatpercouse,usedper

3 course?

4 A Per layer, yes, geogrid being every two feet.

5 Q Is thatthree feetextending from the backofthe

6 wall into the slope, or thr€e feet total?

7 A Three feet total.

8 Q So, lefs assume that the geogrid was installed such

9 that it's underllng all of the two feet of each

10 block. How much geogrid is there available to extend

1 I behind the blocks into the slope?

12 A Itwould appearbased on whattheypurchased, it13 should only been about a foot.

14 Q What did you observe out there when you actua'lly did

15 your test?

16 A We actually observed a liule bit more in spots of17 two feet.

18 Q Howmuchwas actuallyneededbased onyour

19 calculations?

20 A Based on the - depanding on where you are on the

2l site, because ofthe grade, behind the wall changes

22 from about l0 percent to about 26 percent in slope.

23We figured that it would go

from anywhere from seven24 to nine feet.

-53-

I stable.

2 Q Over time, what happens to the earth within the

3 drainage - the flood protection erosion control

4 easement, and then the earth behind it with the wall

5 as it's been constructed?

6 A As the wall will progressively move outward until the

7 soil behind the wall will have to fill in the void

8 spaces, which will cause settlement. And that will9 continue to propagate until the wall is to a point

l0 where it's totally unstable and will fail and fall1l over. And thejeopardyofthatisthatthebuildings

12 behind there would also be subject to soil settlement

l3 issues, which could be detrimental to the buildings.

14 MR. WATSKY: May I have just a moment, your

15 Honor?

16 Q Mr. Ifffort, 111 redirect your attention to

17 €xhibit 34, number 23. Tell me when you have it.

18 A Yes.

19 Q Could youcomparethe apparentstabilityofthe

20 sloped and graded area as visible there with the

2l condition that now exists with the wall having been

22 built the way you described it? kt me rephrase the

23 question, Mr. I-effort.24 Can you compare what's visible in that

-f,)-

I photograph to the conditions that you have described

2 with the wall as it is today for flood protection and

3 erosion control purposes?

4 A The wall as it's built today would not provide

5 adequate flood protection, the fact that it -

6 because it does not have any scour protection at the

7 base. The block wall is laid on stone, a stone

8 course with absolutely no protection from scouring

9 during a hurricane event or a storm event with

10 significant waves. And with the wall being - not

I t providing arough stability, there will be a serious

12 erosion problem with the material behind the wall.

13 Q That's a serious erosion problem as compared to what?

I 4 A Based on the original vegetation down on the southern

15 part ofthat photo.

16 Q Mr. kffort, Im going to tum youl attention to a

17 couple of other photos, if I may, photo exhibit 3 I ,

18 letter Q. What do you see there?

19 A Q is a picture of the existing segmented wall to the

20 right, and boat stored to the left.

21 Q Any impression about the wall in that location?

22 A You can see the geogrid further down, sficking out of23 the wall adjacent to the boat.

24 Q Areall ofthe section ofthewall installed

-56-

I

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3

5

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8

9

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11 Q

12 A.

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14A15

16

t7

t8Q19

20

2l

22}^L)

1^

NOTES:

MR. BRENNAN: I'm sorry, Your Honor. Icouldn't hear that.

THE COURT: I didn't understand the

question. I didn't understand the question or the

answer. Could we go through that again?

Just to clarifu. This is something you testified

about yesterday. How much geogrid did you determine

would actually be necessary at each course ofb'lock

to extend into the slope?

That would be seven to nine feet in lensth.

Pardon?

Seven to nine feet in length.

What's the purpose of the geofabric again?

That is to reinforce the soil that is behind the

block, and integrate the block with that soil mass as

a stable mass, so that it would retain soils behind

that from moving.

So, let's assume that there's only one to two feet ofgeogrid behind each block of this wall. How does

that affect the stability of the earth within the

flood protection and erosion control easement?

It doesn't provide enough stability for maintaining a

stable slope for the site. So, there's a potantial

failure of the wall based on the fact that it's not-54-


Danvers, Massachusetts 01923Phone: (978) 777-5802 FAk (978) 777-5803



LANDING v BORDEN LIGHT #254067 VoL.II tugn0I 'improperly in this location?

2 A From this photo, there's a waviness to the wall.

3 Q Okay. I'll move on. kt's turn to photograph U in

4 section 31. With me?

5 A U, yes, correct. I'm sorry.

6 Q Noq I believe that this has already bean identified

7 as the condition of the bank after it was excavated

8 prior to installation ofthe next section ofwall.

9 What do you observe about the condition ofthe soils10 in this location?

ll A Thesoilslookrelativelywell fromthis -ldon't12 see any fill consistent with what we had assumed of

13 uniform-type gravel material.

I 4 Q Counsel on cross examination showed you pictures of15 construction debris that were lafng on the surface

16 andthelike. Isthereanyconstructiondebrisin

11 this area?

l8 A No,notatall.

19 Q Does this appeartobe arelativelynatural

20 consolidated-typesoil?

2 I A Again, without going further into investigation of22 the material, but I certainly don't see any debris

23 that would tell me this is fill material.

24 Q And so, it would appear to be what?

-)/ -

I A It could be natural material.

2 Q Therearesomeotherphotos. Tumtophotograph S,

3 justbeforethe -

4 A Yes. I have it.

5 Q What do you see in photograph S?

6 A [t would appear dur - it looks during construction

7 of the retaining wall.

8 Q Mm-hmm.

9 A And to thetop of thephoto onceagain, you see

l0 material that would be well - it would probably beI I termed well graded gravel material, no debris.

12 Again, it's happening during construction, so I

13 couldn't testifu what was there prior to that.

14 Q Does itappear -doyouseevegetationinthat

15 photograph on the material where construction hadn't

16 already removed it?

I 7 A Further up I see what appears to be vegetation, north

18 at the top ofthe photo.

19 Q Would that be consistent with the term "sloped," as

20 it's used in the -

21 A Yes.

22 Q -theeasement?

23 A Correct. It seemed to match withthe

-

24 Q Is that consistent with the term "graded,,,as used in_58-

I that easement?


3 Q Is the idea ofhaving vegetation -

4 MR.BRENNAN: Objection. Idon'tmindthe

5 witness testifoing what he observed, Your Honor, but

6 not confirming what counsel is testifoing. Object to

7 leading.

8 THE COLIRT: Yes. Okay. Sustained.

9 Q Mr. Irffort, let's talk about the difference between10 slope and vertical as it relates to wave energy.

1 I When a wave hits a vertical face, what happens?

12 A The changing of the wave, the energy fromthe wave

13 has to be absorbed by the vertical structure.

14 Q Is the waveenergydeflected ordissipated?

15 A It'smostdeflected andnotdissipated atall.

16 Q Compare that to what happans when a wave hits

17 something that's sloped, the way something would be

18 sloped ifit's sloped and graded.

19 A The advantage ofa sloped surface under a waveis

20 that a large amount ofthe wave force can be

2l dissipated as it travels along the stoped surface,

22 and absorbed by the material itself.

23 Q Compare for me the location of the area that you've

24 seen in the photograph that's called "sloped." It

I was in the last photo we looked at. I think

2 thafs S-

3 A Yes.

4 Q Horizontally, in relation to where the top of the

5 wall is.

6 A Repeat tha! I'm - I'm sorry. Could you repeat that

7 question?

8 Q Illdoitasahypothetical instead.

9 IfThe I-anding maintained the sloped and

10 graded flood protection and erosion control easement

l1 as you've described something would be s'loped and

12 graded with vegetation, and it was throughout that

13 twenty feet, where would waves be breaking, and where

14 would the wave energy be as cornpared to where it is

15 today, givar the construction ofthe retaining wall?

16 MR. BRENNAN: Objection, Your Honor. This

l7 was all gone over on direct yesterday. This is

l8 essentially the same direct that went through

19 yesterday. It'sbeenaskedandanswered.

20 THE COURT: I don't think so. no. I think

2l this is a little bit different, and it follows up on

22 some ofyour questions.

23 A On the sloped portion, the wave would be dissipated24 along it's length to a smaller amount up to the top

-60-NOTES


Danvers. Massachusetts 01 923

Phone: (978) 777-5802 r'AX: (978) 717-5803



I

3

4

5

6

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8

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14AlsQ16

l7

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21

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L)

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LANDING v BORDEN LIGIIT.#254067 VoL. tugn0of the wall, or up to the top of the slope. Wlere as

opposed to, the wave would not be - there would be

no anergy dissipated all until it hit the vertical

sfucture, which would be in close proximity of the

buildings, in some cases only eleven feet away, with

the possibility of spray or ov€rtopping and hitting

the buildings.

And in my opinion, it would probably be, if

the wave topped the wall, it would hit the buildingsat a higher velocity than it would have been if it

had traveled up the slope, because the slope would

have been able to dissipate some of that energy.

Energy?

From the wave.

With the slope, where is the wave - where's the

energy start being dissipated ifyou have the slope

in place instead ofthe wa1l, horizontal

relationship?

Right. Further from the buildings at the toe of the

slope, closer to the shoreline would actually be the

first areas where dissipation ofthe wave or even

possibly, everr breaking ofthe wave could take place,

lower and further away fiom the buildings.

During a storm event whe*:1"I_r flooding and these

I waves, is it just flooding and waves that are moving

2 and gets against a slope, or are the waves carrying

3 anything else?

4 A Typicallyin ahurricaneevent,youwouldprobably -

5 you would find debris with that water due to possibly

6 boats that weren'ttaken out. Docks orpiers that

7 were broken up there in the storm usually are on top

8 ofthe water and could become missiles or projectiles

9 as they crash on shore.

l0 Q Now again, compare the relative affect of a slopedI I graded area throughout that 2O-foot easement, and

12 it's affect on those, you call it projectiles, as

13 cornpared to the function ofthe wa11, particularly

14 where the wall is in it's positions closest to the

l5 buildings.

16 A The debris on the surface ofthe wateras it17 approaches the vertical faced wall, ififs on top of18 the wave, which would most likelihood, it's floating,

1 9 could go over the wall and could be a projectile into

20 the buildings.

21 Q Bettermovealong. Counselaskedyouoncross

22 examination about the letter of maD amendment.

23 Remember that?

24 A Yes.

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8

9

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l6

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l9

20

21

22

23

z4

-62-

Do you rernember that he noted that the rnap amendment

had changed the V zone elevation from elevation I 9 to

22. Do you remember that?

Yes.

Tell me, ifthe elevation has changed in the southem

end of the property from elevation 1 9 to elevation

22, what is the effect with regard to flood levels

and wave energy along the top ofthe wall in that

area2It'll be higher than -

It's thepredicted -

- the predicted, yes.

MR. WATSKY: I have no further redirect.

YourHonor. Thankyou.

THE COURT: Do you have anything further,

Mr. Brennan?

MR. BRENNAN: Just one question, Your

Honor.

RECROSS EXAMINATION

(By Mr. Brennan:)

Mr. I€ffor| if I were to tell you that if you looked

up the word "graded" in the dictionary, it would

read, "to level offto a smooth or sloping surface."

Would you have any reason to disagree with that?

63-

No, I wouldn't.

And ifI looked up the word "slope," it would be, "a

surface ofwhich one end is higher than the other, a

rising or falling surface." Would you -

That's correct.

- have any reason to disa$e€ with that?

So, when they talk about a sloped and

graded easement, there's nothing in the easement that

tells you what that slope or grade must be; is that

correct?There's no language of the slope - how much?

Just a sloped and graded.

That's correct.

So, it would be fair to say then that if it was

sloped and graded at two percent, it wou'ld be sloped

and $aded?

True.

MR. BRENNAN: Thank vou. No further

questions, Your Honor.

THE COURT: Okay. I think now is probably

the best time to take a break. and then we'll resume

in ten minutes at I 1 :15, and continue with the next

witness.

MR. SEIGENBERG: Thank you.

64-

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NOTES



Phone: (978) 717-5802 FA* (978) 777-5803



LANDING v BORDEN LIGHT #2s4067 Vor,. lugnoI (Morning break)

2 MR. WATSKY: Your Honor. Attornev

3 Seiganberg is

4 THE COURT: Call your next witness.

5 MR. SEIGENBERG: Oh, thank you, your Honor.

6 I don't know ifhe's been swom yet, Your Honor.

7 THE COURT: Not yet. You haven't called

8 himyet.

9 MR. SEIGENBERG: Oh, I,m sorry, Your Honor.10 IcallMarcellDaquay. Thankyou,YourHonor.

1l * * * * * * * * * * * * *

12 MARCELLR. DAQUAY

13 * * * * + * * * + * * * *

14 (Witness swom.)

15 DIRECT EXAMINATION

16 (By Mr. Seigenberg:)

17 Q Sir, could you please state your full name and spell

18 it, the last name?

19 A Marcell R. Daquay, D-A-Q-U-A-Y.

20 Q Sir, where do you live?

21 A 700 ShoreDrive, Unir40l.

22 Q Can you try tospeakupjustalittlebit?

23 A Okay.

24 Q Where do you live?

-65-

I A Fall River, Mass., 700 Shore Drive, Unit 401, at The

2 t anding.

3 Q And specifically, when did you move to The I-anding in4 that particular unit?

5 A December of '02.

6 Q Sir, you're currently a member of the board of7 managers ofThe l-anding; is thatconect?

8 A That's conect.

9 Q When did you become a member of the board?

10 A 2005,inApril,Ibelieve.11 Q How many board members have there been since -

12 strike that.

13 How many members serve on the board?

14 A Five.

15 Q And that's been since you'vebeen amember in 2005;

16 correct?

17 A Conect.

I 8 Q Can you tell us what the responsibilities and duties

l9 are as a member ofthe board ofmanagers at The

20 tanding?

21 A Well, we're responsible for the financing, the common

22 areas, safety and welfare of the unit owners, just

23 about every little problem that comesup.24 Q And the bigger problems that come up?

_66-

I A And thebiggerproblems,too.

2 Q Specifically, you mentioned the common areas. Wnar

3 do you understand to be the common areas ofthe4 condominium complex known as The landing?

5 A That would be the land, the hallways, the outside of6 the buildings, the garage spaces, the roadway.

7 Q So, for a common area, certainly an example would be

8 like - a swimming pool would be a common area?

9 A Yes.l0 Q There's been testimony during this trial which you've

l1 heard about, and you're aware personallyof

12 excavation and construction ofwalls that has

13 occurred on or near The l-anding property; is that

14 correct?


16 Q And that area, is that something that's the

17 responsibility ofyou, as a board ofmanagers ofThe18 hnding?

19 A Yes,Iwouldsayso.

20 Q Nowsir, can you tell us whatyoureducational

2l backgrotmd is?

22 A I went to URI, high school, Rogers, and I've done

23 education mostly through General Dynamics. I worked

24 there for 34 years.

-67 -

I Q What was your position at General Dynamics?

2 A I was a special projects in the Trident pro$am,

3 responsible for electronics weapon systerns, hydraulic

4 systerns, ship control. I did that for 34 years

5 there. I also did quality assurance for them for6 twelve years.

7 Q I see. What's your current occupation?

8 A I o!r,n a restaurant and I cook there.

9 Q What's the name of your restaurant?

10 A Moulin Rouge.

11 Q Where is that located?

12 A Tiverton,Rhodelsland.

13 Q I see. Now, sir, you indicated you moved to The

14 tanding in 2002. Could you describe The landing15 property when you moved in?

16 A Well, when I moved in, it was - the reason I bought

17 there was that it had a nice view ofthe bay, a lot

18 ofsailboats, nice views, and it was quiet.

19 Q As a member of the board of managers of The Ianding,20 what do you believe is your duty and responsibility

2l relative to the views and the area that The hndins22 is situated?

23 A Wel1, I mean, when I first bought unit, one of the24 first things that was told to me was that we had a

-68-NOTES



Phone: (978) 777-5802 FAX: (978) 777-3803



LANDING v BORDEN LIGI{T #254067 VoL.II lugltOI water view visual easement ofsome sort that the real

2 estate told me about. And, you know, at the time it3 made a lot of sense that the views would not be

4 obstructed in the future, you know. And that was a

5 selling point. I like the area, you know, it was

6 quiet. Itwasmoreofanelderlypopulation,andit

7 was-

8 Q I appreciate that. More than as a unit owner, I

9 think my question was, what duties andl0 responsibilities did you feel thatyou have - do you

ll haveasaboardofmanagerrelativetothese -

12 A Well, to maintain all that, to maintain the rights of

13 the unit owners, and to, you know, maintain the

14 property, make sure that the finances are in place,

15 and that we keep it up, so to speak.

16 Q Sir, I wantto showyou - it should be in frontof

17 you,anexhibitboolgthebluebook. Doyousee

18 that?

19 A Yeah.

20 Q Ifyou could tum to exhibit 34, and then ifyou

2l go - each ofthose photographs are numbered 1

22 throughanumberofothernumbers. Andifyoucould

23 turn to photo$aph 23 in exhibit 34. Are you able to

24 locate that okay?

-69-

I A Okay. That would be 23 on 34.

2 Q Correct. And that photograph should have on the top

3 left,thedateof200l. Doyouseethat?

4 A Conect.

5 Q Now sir, when you moved in - this photograph, 34-23,

6 is that a fair and accurate depiction of The hnding

7 area from the water when you moved'in in 2002?

8 A Yeah. I'd say it looked about the same, yeah.

9 Q And specifically, can you locate for Her Honor where

l0 building 4 was, buildings 3, 4 and 5, where they're

1 I depicted on that photograph?

12 A Is this looking fromnorthto south orsouth to

13 north?

14 Q Well, I suggest the fact that it's in the water that

15 totherightwouldbethesouth,andtotheleft -

16 A So, it would be the second building to the lastfrom

l7 the top ofthe picture.

18 Q Well, let's do this. I asked -

19 A In otherwords, to theright, itwould be the second

20 building.

2l Q Would be building 4?

22 A Conect.

23 Q But what about the first building on the right? What24 building is that, sir?

1 A Thatshouldbe3.

2 Q And next to 4 - then there's 4, and I assume the

3 next building would be building 5; correct?

4 A Correct. You base this - two edges of the building

5 because it's L-shaped, so to speak.

6 Q Alsodepicted onthatphotograph,belowthe

7 buildings, going towards the water, do you see that

8 green sloped area?

9 A Mm-hnnn. Yes.10 Q I take it that's how that area looked when you moved

ll in in 2002?

12 A Yeah.

13 Q Did that - the composition of that area remain the

14 same up until 2008?

15 A Correct.

16 Q Now sir, there's been testimony during a previous

l7 witness'examination, Mr. Bouffard, about a

18 settlement agreement in 2006. Do you recall that?

19 A Well, there was - in 2006, there was an agreement

20 between Borden Light Marina and The Landing regarding

21 a condominium complex that the Lunds wanted to build

22 atthenorthend. Andtheywantedustohaveno

23 opposition to it.

24 Q Were you involved in that settlement agreement as a

-71 -

I member ofthe board ofmanagers ofThe landing?

2 A Yes.

3 Q And specifically, whatrole, ifany, did youhaveas

4 a board ofmanager?

5 A Wel'1, we worked out the details of the agreement with

6 the attomeys and with Mike Lund.

7 Q Now, you mention attorneys, who, ifanyone, was

8 representing Borden Light Marina?

9 A I'm not sure. I think it was -

l0 Q Ithinkcounsels agree that itwas Ed Brennan.

il A Yeah. Ineveractualiygotinvolvedwiththe

12 attomeys, per se.

13 Q I-et me ask you a question. Are you aware of what

14 attomey, if any, represented The hnding?

15 A We have attomeys up in Braintree that we used, the

16 condo attomeys.

17 Q Was that law firm Marcus Errico?

18 A That'sconect.

19 Q You indicated they were the condo attomeys. What do

20 you mean by that?

2l A Well, they're supposed to specialize in condo law.

22 Q Prior to the discussions about that settlement

23 agreement, you, as a board ofmanager, were you aware24 of any l-and Court litigation that was sti'll pending?

-72 -

NOTES:



Phone: (978) 717-5842 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 VOI.II lug/r0lANo.2 Q What knowledge did you as aboard ofmanagerhave as

3 to any preliminary injunction issued by the Land

4 Court?

5 A Iknewnothingofit.

6 Q During these discus - strike that.

7 ltakeitdudngthese -letmerephrase

8 thatquestion,iflcould. Atsomepointintime

9 while there was discussions with the board, didl0 either Michael or John I-und come and appear before

I I the board?

12 MR. BRENNAN: Objection, Your Honor.

13 Discussions ofwhat?

14 MR. SEIGENBERG: The settlement agreement.

15 MR. BRENNAN: It's a written document, Your

16 Honor. It speaks for itself.

17 THE COURT: I don't think he's asked what

l8 itsays. Ithinkhejustasked,didanybodyappear

19 before the board in connection with it.

20 MR.SEIGENBERG: Right. Iwasjusttrying

2l to focus the witness.

22 MR. BRENNAN: I'm sorry- I withdraw m;

23 objection.

24

-73 -

I THECOURT: Okay.

2 MR. SEIGENBERG: Thank you.

3 A Yes. Mike Lund came to a meetins -

4 Q Inwhatyear?

5 A - to discuss what his intentions were as far as, you

6 know, he was going to build a condo complex. And he

7 kind ofgave a history ofthe whole thing, that this

8 wasaprojectthathad -Iguesstheyhad

9 contemplated this back in - before. And now they

l0 revised it, and they wanted our agreement to go alongl1 with it.

12 Q At this poinl in time, did you know where Mike -

13 this was in 2006, sir: is that corect?

14 A It was 2006, late 2006, maybe, maybe the beginning of15 2007. I'mnotsure.

16 Q Was it before or after the settlement agreement was

l7 signed?

i8 A Oh, itwasbefore,yeah.

19 Q What, if anything, did Michael Lund say about the

20 land Court litigation?

2l A Well, that's when I first heard that the litigation

22 wasstillopan. Open,butkindofdormant,theyway

23he described it,

24 Q Who did you hear that from?1A

1 A Mike Lund.

2 Q What did Michael Lund say to you?

3 A Well, I mean, he said that this - he basically went

4 through what they wanted to do, and he said the

5 litigation was still open. And he said it in a way

6 which it appeared that the litigation went his way.

7 Before that, I didn't - I had heard about the

8 lawsuit,butthoughtitwasclosed. Ineverthought

9 that it was actually still open, you know.10 Q Noqwhenyouhad thisconver -whentheboardof

11 managers had this conversation with Michael Lund,

12 where was Michael Lund living?

13 MR. BRENNAN: Obiection. Your Honor.

14 A ldon'tknow.

15 MR. SEIGENBERG: I'd be happy to explain

16 the relevance ifthe court would like.

17 A Ihavenoidea.

18 MR. SEIGENBERG: Michael Lund lives in The

19 Landing. I think it is potartially germane.

20 THE COURT: Why does that matter?

21 MR. SEIGENBERG: Because I guess to the

22 extent that they're even making the - even though

23 there's litigationthat's been pending since 1999,

24 even ifthey're making a claim oflaches, obviously

1 you would want - it would tre relevant for the court

2 if Michael Lund was also a unit owner at The landine.

3 THE COURT: He wasn't a board member.

4 right?

5 MR. SEIGENBERG: He was never a board

6 mernber as far as I know. I'll move on.

7 THE COURT: I don't think it mat0ers.

8 MR. SEIGENBERG: That's fine, Your Honor.

9 I appreciate that, thank you.

l0 Q So, you had this conversafion with Michael l,rrnd. II I want to direct your attention now to 2008/2009. Did

12 something happen relative to any construction work at

13 The landing?

14 A In 2008 and 2009, theystarted constructionofthe

15 segmented wall on the southern portion ofthe

16 property.

l7 Q And that was near what building, sir?

l8 A Theentrancewayand towards thenorthem partof

19 the -well,towardslguess,building5.

20 Q Prior to this excavation and construction work

21 occurring, commencing in 2008, did you, as a member

22 oftheboardofmanagers -strikethat.

23 Were you, as a member of the board of24 rnanagers, aware ofthe construction work that was

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Danvers, Massachusetts 0l 923

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LANDING V BORDEN LIGHT #254A67 Vor,.I tu9tr0I going to be done?

2 A Not until it started, no.

3 Q And you were describing the construction, hrstthe

4 southerly entrance, and what other work occurred,

5 sir?

6 A I think the southerly, and also around buildings 5

'1 and 6. And then in2009, they completed those

8 sections, married them up.

9 Q After the construction work began, was this an

11 l-anding?

12 A Yeah. We were concemed about a number of things,

13 yeah. When it started, the closeness to the

14 buildings and the sleepness ofthe slope, you know.

15 It was stafiling how much land they were taking.

16 Now. we were told it was all his land and so forth.

17 Q You were told it was all his land. Who told you

18 that. sir?

19 A I'm sure Mike told the board that all the work was

20 being done on his land. I know he had conversations

2l with Bert and so forth. I did not directly have

22 conversations with Mike on that.

23 Q Okay. l'm justasking -

24 A But that was our frame of mind.

-77

1 Q Oftheboardofmanagers?

2 A Yeah.

3 Q These were discussions that occurred at the board; is

4 that correct, sir?

5 A Yeah. Yes.

6 Q As a result of the concems that the board of

7 managers had relative to this construction and

8 excavation work that was occurring, what, il9 anything, did the board ofmanagers do, sir?

l0 A Well, one of the first things we did was, we hired1l Mount Hope Engineering to put our property lines in

12 so that we - '

13 Q Why did the board of managers hire Mount Hope

14 Engineeringtodeterminetheirboundarylines?

15 A Well, you mean that particular firm?

16 Q No, any engineering firm.

17 A Okay. We wanted to get an idea because there seemed

l8 to be a lot ofdoubt on where the property line was.

19 There were different stakes that were here and there

20 allthroughoutthepropertyline. Somepeople

2l thought the fence was the property line; some people

22 didn't. We just didn't know.

23 Q Who was the chairman of the board of managers at that24 time?

-78

1 A I don't knowifit was Paul or if it was Charlie.

2 I'm not sure. That was in 09. Oh, Bert was, yeah.

3 Q BertBouffard?

4 A Yeah.

5 Q What responsibilities, if any, did Mr. Bouffard take

6 as the chairman of the board of managers relative to

7 these concerns that the board was having?

8 A Well, he went to city officials, fire department,

9 mayor's office, building inspector, for a number of10 different concems. We were concerned about safety

11 with the fire department. And he started looking to

12 the building permits, and that's why he went to the

13 buildinginspector. Ittookusawhiletogetthe

14 information.

15 Q Thiswas a1l informationthatwas reportedbackto

16 the board by Mr. Bouffard as chair -

17 A Yes.

18 Q Specifically -this I-andCourtlitigation,who, if19 anyone, represented The landing in the [:nd Court

20 litigation from the time that you were a board of2l managers, up until 2009?

22 A No one. No, we had no attomey working on that. My

23 understanding afterwards was that the attomey that

24 they had at that time was discharged, and no one was

I replaced.

2 Q Isee.

3 A And we, as a board, were involved in other things

4 after that, and never got involved in it, and mostly

5 because we thought it had ended.

6 Q Now sir, after Mr. Bouffard reported track as to what

7 had occurred based on his investigation, what's the

8 next thing that the board ofmanagers did, sir?

9 A Well, with the fire department, we wrote them a

l0 letter requesting what their plan ofaction was inI I case of a fire, because we were concemed with the

12 fact that you couldn't get around the buildings. We

13 were concemed that the boats that now were ten or

14 twelve feet away from the buildings, ifthey caught

15 on fire, what would happen? With the building

16 inspector,wefoundouttherewerenopermits. And

17 we then went to the mayor's office and registered our

18 complaint there and we got some feedback from them.

19 Not much, but...

20 Q What was the next thing that the - after not getting

21 any satisfactoryresults, what's the next thing that

22 the board ofmanagers ofThe l-anding did?

23 A Well, we hired attorneys.24 Q And the attomey would have been Attomey Watsky; is

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LANDING VBORDEN LIGHT #254067 Vol. I tu9n0I that correct?

2 A Yes. And as a matter of fact, we were told about an

3 advertisement in October or September of a '91

4 license that the Marina was asking for. And Bert

5 looked into that, because that's atrout the same time

6 we hired Matt -

7 Q Isee.

8 A - and we started looking into that.

9 Q This work that was done in 2008, and then was done inl0 2009, as a board ofmanagers, can you please tell us

I I what impact, if any, it's had on The landing

12 facility?

13 A The work that was done in 2009 became extremely close

14 to the buildings, and it's made it almost irnpossible

15 to walk safely around the corners ofthe buildings 3,

16 4,5and6. It'shardtomaintaintheareainback

17 ofour buildings as far as cutting grass, and so

18 forth. We have a number of elderly people that used

19 to use that area, walking, you know, in the

20 summertime. And I know there was a couple of21 incidents where, you know, someone almost fell. So,

22 it's become unsafe to use. And so I think there's a

23 lack ofuse now back there because ofthat.

24 Q What concerns, if any, did the board of managers have

-81 -

I as to the wall itselfthat was constructed?

2 A We felt it was unsafe and it was poorly constructed.

3 And as we progressed through the stages offinding

4 how close it was to the property line and getting

5 some engineering expertise to look at it to give us

6 their opinion, you know, we found that the wall was

7 not constructed to standards that are safe.

8 Q Nowsir, afterthis excavationofthebankarea

9 occurred - strike that.

l0 Prior to this work being done in 2008 andl1 2009, what use, if any, was used of the Marina

12 property at the bottom of the bluff, towards the

13 wateredge, nearbuildings 3 to 5?

14 A Well, there was a little activity that I noticed in

15 the years that I lived there.

1 6 Q And after the wall was erected, what was the level of

17 activity?

l8 A Itincreaseddramatically.

19 Q Can you descdbe that, please?

20 A Well, I mean, there wasn't an ealhance at the south

2l end at all. Nowthere is. And there's the traffic

22 that goes by this is increased dramatically.

23Q

What impact, if any didit

haveon the amount of boat24 storage that occurred in that area, sir?

-82 -

1 A It increased dramaticallv because there was more area

2 te storeboats.

3 Q As a member of theboard of managers ofThe tanding,

4 can you tell us the impact that that boat storage had

5 on the l-anding complex?

6 A Buildings 3,4 and 5, theboat storagewas closeto

7 thebuildings,soitwas -theystoresome

8 significantly large boats in that area now. And a

9 lotoftheunitownerscomplainedthat -especiallyl0 the unit owners that only have first floors, they

I I lost their entire view.

12 Q Now, sir, did you personallyobservesome of the

l3 excavation that occurred near building 4?

14 A Ohyeah. Iwatchediteveryday.

15 Q Canyoudescribe the excavationworkthatyou saw?

16 A Well, they dug within a few feet of the buildings.

17 And they had, basically, a nine foot drop, maybe four

18 orfivefeetawayfromthebuildingcomer. Theyput

19 theirblocks up and wentrightby.

20 Q Is there a particular day that you recall relative to

2l the excavation that occurred near building 4, sir?

22 A Yeah. They basically ended the day at my building,

23 and then resumed the next day. So, basically I had

24 an exposed area for twenty-four hours in front ofmy

-83-

1 building.

2 Q You say, "exposed area," you mean -

3 A With no protection, no wall.

4 Q The next day did you made any observations, sir?

5 A Yeah. I started receiving crack from thern until

6 probably May of 2010.

7 Q Where? In your unit, sir?

8 A Yeah.

9 Q Time-wise, how was that related to the excavation?

l0 A Well, Imean, when theywentbymyunit, within a dayI I or two after that, I start seeing new cracks. I can

12 actually measure the cracks. One day it would be

13 three inches, and the next day it would be larger.

14 MR. BRENNAN: Are the cracks in the wals

15 thatyoulereferringto?

16 THEWITNESS: Yeah.

17 MR. BRENNAN: In the wall of the unit?

18 THEWITNESS: Yeah.

19 MR.BRENNAN: YourHonorhasalreadymoved

20 thatalong.

2l THECOURT: Yes,yes.

22 THE WITNESS: Okay.

23 MR. SEIGENBERG: I'll move on.24 Q Sir, I want to direct your attention to December of

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Danvers, Massachusetts 01 923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #2s4067 VoI.II tu9n01 2009. Do you recall any meeting or conversation that

2 you had at that time?

3 A Excuse me?

4 Q fd like to direct your attention to December of

5 2009. Doyourecallanyconversationyoumighthave

6 had with Michael Lund at that time?

7 A Oh, yeah. It was in December of 2009. Mike came to

8 therestaurantonaFridaynight. Iwasn'tthereat

9 the time, my son was. He left a number to call, and10 I cal'led him later on thatnight.

11 Q You called him. That would be Michael Lund?

12 A Yes.

13 Q Did yourecognizethatpe$onas Michael Lund?

14 A Yes.

15 Q Tell us whattheconversationwas,sir.

16 A He asked me about the lights.

17 Q Heaskedyouaboutthelights?

18 A Thelighting. Oneoftheissues thatwas taking

19 place was he put security lights along the back, and

20 they had no deflectors or anything, so they were

2l shining into a lot of the units. And he asked me why

22 [ was against that, and I told him. I said, "You

23 know, my unit has lights coming in but it didn't

24 bother me, in particular." But it did bother other

-85-

I unit owners, and as a board membet, you know, I have

2 to follow through with those conplaints. And then he

3 said, "Well, what issues do you have personally?"

4 And I said, "Well, the wall. I'm afraid of the wall,

5 that it's not safe and my unit being one of the

6 closest ones to it." So...

7 Q Did you also haveaconcem as aboard ofmanagers

8 about the safety ofthat wall?

9 A Yes.

l0 Q What, if anything, did Mr. l-und say to you, sir?I I A He got very agitated and basically said, "I'11 get

12 you for this."

13 Q Howdidyoutakethat?

14 A Itookitasathreat.

15 Q Now, sir, howdoes itworkon theboard? Since

16 you've been on the board ofmanagers since 2005, how

l7 are decisions made by the board ofmanagers?

18 A They're made as a group.

19 Q I'm sorry?

20 A Theyte made as a group. In other words, we vote on

21 ever).thing, and you know, majority takes place.

22 Q Did the board of managers at any point in time, sir,

23 ever have a meeting where there was any vot€ on the24 excavation or construction that occurred?

-86-

lANo.2 Q Didtheboard ofmanagers ever givepermissionto

3 Borden Light Marina to proceed with any of the

4 excavation and construction work that occurred in

5 2005 to the present?

6 A No. I don't think we were ever asked of either.

7 MR. SEIGENBERG: Thank you, sir. Nothing

8 further.

9 CROSS EXAMINATION10 {By Mr. Brennan:)

1 I Q Mr. Daquay, you - did I pronounce that correctly?

12 A lt's good. Daquay, yeah, fine.

13 Q Mr. Daquay, you moved into The I-anding in December of

14 '02; is that correct?

15 A Yeah.

16 Q And you mentioned that one of the reasons you moved

17 there was the view?

18 A Yeah.

19 Q Didyou everinvestigate whatlega'l rights a unit

20 owner may have to a view or not to a view?

21 A No, just what I was told.

22 Q You just relied upon something someone told you about

23 aview, nothing further?

24 A Correct. at the time.

-87-

I Q Now, you mentioned that the board of managers is the

2 responsible party for the common areas ofThe Ianding

3 at South Park; is thatcorrect?

4 A Yes.

5 Q Would that also include balconies that project off a

6 second floor ofa unit?

7 A They'renon-exclusive -well, itdepends. There's

8 some balconies that are common to more than one unit,

9 and there's some balconies that are common just to

10 oneunit. Imean,therearesomebalconieswhere1 I more than one unit shares it. Okay.

12 Q Would the exterior sheathing of a balconybe under

13 the control ofthe board ofmanagers?

14 A Yes, I would say so.

15 Q So, theboard ofmanagers is responsible forthe

l6 maintenance and repair ofthe balcony?

17 A Yes.

18 Q When you moved in in 2002, there was a board of

19 managers formed at that time; correct?

20 A Yes.

2 I Q To your knowledge, there has been a board of managers

22 since the condominium project was created. Would

23 that be fair to say?24 A Yes.

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LANDING V BORDEN LIGHT #254067 Vor,.I tt/9n0I Q So, there's been someone in charge ofrepresenting

2 the interests of the - the common interest of the

3 unit owners since the condominium was created?

4 A Correct.

5 Q {t's never been a rudderless group ofunit owners.

6 It's always had a -

7 A Yes.

8 Q -boardofmanagers?

9 A Yes.10 Q When you moved in, did you observe boats being stored

11 inthenorthem -towardsthenorthernendofthe

12 property?

13 A Yes.

14 Q The storage of boats came down ptobably midway; would

15 that be fair to say, in 2002?

16 A There was a fewboats at the southem end all the

1'7 time. They looked like they were abandoned, but

18 there wasn't a lot, you li:now. I know there was one

19 in front of my unit, a small one, there for a long

20 time.

2l Q Would you agree that the Marina was using the

22 southem end of the property for some Marina purposes

23 since you moved in?

24 A Yes.

-89

I Q Theboard ofmanagers nevertookissuewith that; is

2 that correct?

3 A Correct.

4 Q So, the board ofmanagers acts onbehalf of the best

5 interest ofthe unit owners, and you've be.en on that

6 boardsince 19 -I'msorry,2005;isthatcorrect?

7 A Yes.

8 Q April of2005? And you testified that - why don't

9 you tell me, when is it that you flrst became aware

l0 ofthe litigation that was pending in this courtI I since 19 - since 2000?

12 A When Mike Lund came to a board meeting, which I

13 believe was in 2006, to describe the fourteen-story

14 condominiumcomplexthattheywereproposing. And

15 part ofhis conversations to the board was he told us

16 about, that the lawsuit was still active.

17 Q Was that what instigated the negotiations between The

1 8 tanding board of managers and the Marina, which

19 resulted in the settlement a$eement that's been

20 marked as exhibit number 39?

2l A Well, what started the negotiation was, he was

22 proposing putting a condominium complex there. And

23 he was proposing that there was a number ofthings24 that he wanted to do. He wanted to put a gate up and

-90-

I all sorts ofstuff, and he wanted us to be involved

2 in it.

3 Q So, that's what started the negotiation.

4 A Yeah. Right, right.

5 Q Andyoudo -Imsorry. Gorightahead.

6 A It was not him specifically talking about the lawsuit

7 that slarted it. lt was -

8 Q It was the high-rise, we'll refer it.

9 A Yeah.10 Q Ithinkitwasreferred to as thehigh-rise.

11 A Right.

12 Q And once he approached The hnding at South Park, The

13 landing board of managers then retained an attomey

14 out of Marcus, Errico, Emmer and Brook in -

15 A Well, I think they were always retained by us for

16 quite a while. It wasn't that specific incident. We

17 just used them since they were already retained.

I 8 Q And the board of managers brought them into the loop

19 on the negotiations?

20 A Correct. Yes.

2 1 Q Do you recall how extensive the negotiations were and

22 how long it took to arrive at an agreement?

23 A It was a couple of months.

24 Q So, as the dateofthatagreemsnt, certainlythe

-9t -

I board ofmanagers that was in place on the date that

2 agreement was signed, and I believe it was March of3 2006, you would a$ee that at that point, the board

4 of managers was fully cognizant of the litigation

5 that was pending in this court?

6 A We were only cognizant that it was still open. We

7 didn't investigate what it even pertained to, because

8 part of - the way Lund approached it, was that if9 you agreed to all this, the lawsuit would be dropped,

l0 landswouldbeexchanged,andsoforth. Andwe1 I didn't actually go and investigate, you know, pull

12 out the lawsuit and start reading it.

13 Q Did you know that you were the plaintiff in that

14 case?

15 A No.

16 Q Andyoutook -

17 A Ineverreadituntil -

18 Q Until you obtained Attomey Watsky?

19 A Yeah,basically.

20 Q Thatwould havebeen in the fall of2009?

21 A Nine, yeah.

22 Q Inyourcapacityasrepresentatives ofthe unit

23 owners, you agreed to the dismissal ofa lawsuit, as24 pursuant to that settlement agreement, and you don't

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LANDING v BORDEN LIGHT #254067 Vor,.I tt/9trO1 even know what the lawsuit was about: is that

2 correct?

3 A At the time, yeah, did not know.

4 Q You're testifying here todayonbehalfof theboard

5 ofmanagers?

6 A Myknowledgeon the board ofmanagers, yeah.

7 Q At that time, did you agree the board of managers

8 included Bert Bouffard, yourself, Joseph Richards,

9 Paul Beatty and Charles? I'm going to let you say

l0 Gharles's last name for me.

I I A Schnitzlein.

12 Q Which are fouroutofthe fivecurrent -

13 A Right.

14 Q -boardofmanagers.

15 A Right. Georgeisno longerthere. Actually, there's

l6 only four boards ofmanagers right now.

17 Q Has someonerecentlyresigned?

l8 A Yes.

19 Q Was that Mr. Flanagan?

20 A Yes. And we haven't had time to -

21 Q While we're talkiag about that, you have a member of22 the current board ofmanagers who is a practicing

23 attomey; is that correct?

24 A Iknowhewasan attomey. Idon'tknowifhe

-93 -

I practices.

2 Q Wtals his name?

3 A Dan Vevieros.

4 Q How long has Mr. Vevieros been a member of the board

5 ofmanagers?

6 A In April it will be three years, I believe,

7 April, 'l l.8 Q At what point in time was Mr. Bouffard doing his

9 investigation at city hall on behalfofthe board of

10 managers?

11 A Iwould sayfrom -towards theend of'09,probably

12 starting in October or November, maybe, or it could

13 havebeen August.

I 4 Q As a member of the board of managers, the board keeps

15 minutes; is that correct?

16 A At the meetings, yeah.

17 Q At the meetings. Do they post -

l8 A The monthly meetings.

19 Q - they generate agendas as to whatthe topics are

20 going to be at a meeting?

2l A Right.

22 Q And yourtestimonyis thatyou were unawareofthe

23 lawsuit until the fall of2009. when vou retained24 Attomey Watsky?

-94 -

I A Say that again?

2 Q You've testified that you were unaware of t*re lawsuit

3 until 2009, when you retained Attomey Watsky?

4 A No, that's not true. I was aware of the lawsuit

5 probablyin2003. Iheard -therewasalwaystalk

6 by the unit owners about the lawsuit. They said,

7 "Oh, we don't want to spend money on lawsuits." But

8 I always thought that the lawsuit was closed out

9 until Mike Lund came to a meeting in '06 and '07 and

10 told us that it was active. It wasn't until '09 that

I I I knew about the content ofthe lawsuil

12 MR. BRENNAN: Your Honor, may I approach

13 the witness?

14 THECOURT: Yes,youmay.

15 MR. SEIGENBERG: Can I see what vou're

l6 showing him first.

17 MR. BRENNAN: It's the aganda of April 1 I ,

18 2007.

19 MR. SEIGENBERG: Can I take a look?

20 MR. BRENNAN: Yes.

21 MR. SEIGENBERG: Thanks.

22 (Counsel reviewing document.)

23 Q Mr. Daquay, I'd like to show you a document that's

24 entitled, "agenda" for the April 1 lth, 2007 meeting

-9J-

I ofthe board ofmanagers, and ask you ifyou will

2 look at paragraph 28.

3 A "No update on lawsuit."

4 Q Firut, do yourecognizethatas an agordaofmeeting?

5 A Yeah.

6 Q Were you on the board at that time?

7 A Yeah.

8 Q What is the topic identified in paragraph 28?

9 A It says, "no update on lawsuit."

l0 Q What is the date of that?

1 I A That's April 1 1, 2007.

12 Q Would it be fair to say that a prior board of

13 managers meeting, there was some question about the

14 lawsuit?

15 A Oh, yeah. But this lawsuit's not the one that wete

16 talking about.

17 Q All right. Which one are you talking about?

18 A Thisonehere?

19 Q Yes.

20 A Well. we had a lawsuit with one of the unit owne$ to

21 get into his unit to - because there was

22 contamination probtems, mold problems. And I believe

23 that's the lawsuit that theyte talking about there.24 We also had - because ifs a resident issue, we also

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LANDING V BORDEN LIGHT #254067 VoI,.II lugltOI had lawsuits when we were trying to collect condo

2 fees.

3 Q So, your best recollection is that that reference on

4 that agarda is not to this case?

5 A No, no. It wouldn't be a resident issue. We would

6 probably put it in another area. But this lawsuit

7 here is about resident issues. It would be one of

8 those two, and you could probably go to a number of

9 meetings, because that thing went on for over a year.

10 Q Okay. Thankyou.

l1 MR. BRENNAN: May I approach the witness,

lZ Your Honor?

13 THE COURT: Yes, you may.

14 Q Mr. Daquay, I'd like to showyou someboardminutes

l5 ffom a meeting, May 13th, 2009, and ask if you will

16 directyourattantiontoparagraphtwo. Putacheck

17 mark there.

18 A Okay.

19 Q Have you had an opportunity to read that?

20 A Yes.

21 Q Now, would itbe fair to saythat thatparagraph

22 references the wall construction bv the Marina?

23 A Yes.

24 Q And in the vicinity of unit 301, which was owned by

-97 -

I Sharon Grace?

2 A Correct.

3 Q Does it say that when - the last sentence says,

4 "Paul said you will call John and Mike on what's

5 going to be done with the wa11." Who do you

6 understand Paul to be?

7 A Paul Beatty.

8 Q And itsays, "Dannywill also go byand inspectthe

9 wall area." Who do you understand Danny to be?

l0 A The other board member. Dan Vevieros.

1l Q Vevieros, lm sorry. Would it be fair to say that

12 the minutes certainly reflect that on May 13th, 2009,

l3 the board ofmanagers, the goveming body ofthe

14 condominiums, were discussing the wall

15 construction --

16 A Yeah.

17 Q - that's reflected in the minutes?

18 A Yeah.

I 9 Q So, certainly the board of manage$ had knowledge of

20 the wall constnrction at that time?

2l A Well, we were watching it going up.

22 Q Evay day, you said.

23 A Yeah. That was probably -24 Q There's no question.

-98-

1 A Oh, lm sorry.

2 Q Mr. Daquay, Id like to show you minutes of a meeting

3 from June 3rd,2009, and I would ask ifyou would

4 look at the paragraph I have checked off, entitled,

5 "Marina."

6 A (Witness reviewing document.) Okay.

7 Q Based on the minutes of the - and I'11 double check

8 the meeting time, of June 3rd,2009, which you've

9 just referenced, does that refresh your memory thatl0 theboard ofmanagers discussed the wall and the

1l fence being constructed by Borden Light Marina?

12 A Itappearstobe, though that'snotmethat

13 theyte -

14 Q Butdo you recognize these as minutes of -

15 A Yeah. Correct.

16 Q -theboardofmanagers?

l7 A Yes.

l8 MR. BRENNAN: I apologize, Your Honor. I

19 didn't flag that one.

20 Q Mr. Daquay, from a board of managers meeting of

2l September 12th,2009, and I will direct your

22 attention to paragraph D on the top ofpage 3, and

23 I'll ask you if you will take a minute of your time

24 tojust read that paragraph.

-99-

1 A Which paragraph was it?

2 Q The top paragraph.

3 A This one here?

4 Q Yes.

5 A Okay. (Witness reviewing document.)

6 Q Do you recogrize this documents as being minutes of

7 the board ofrranagers meeting?

8 A Yes.

9 Q Thedate on the meeting is September 12thof2009?

10 A Ididn'tsee that. September l2th,yeah.1l Q Is it fair to saythatbased on yourreview of these

12 minutes, that Paul - who do you understand Paul to

13 be?

14 A Paul Beatty, one ofthe managers.

15 Q -states that, "until all theretainingwall is

l6 done, you will not replace any'thing."

1'7 MR. SEIGENBERG: Objection, Your Honor

18 Thedifficulty -iflmaybeheard,thedifficulty

19 with these things is what they discuss at board

20 meetings, while it might be relevant that the board

2l was discussing the excavation and construction

22 project, which we would stipulate to, but to the

23 extent he's asking what an individual board member24 may say at the meeting -

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I

3

^

5

6

7

8

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lll2IJ

14

15

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LANDING V BORDEN LIGHT #254067 VOr,.II ru9trOTHE COURT: Yes, it's hearsay, it is.

MR. SEIGENBERG: It's irrelevant because

it's only a vote of the board.

THE COURT: Well, I mean, what the board -

whether the board took action. it's relevant.

MR- SEIGENBERG: It's agreed.

THE COURT: Not what individual members mav

have said.

MR. SEIGENBERG: Thank you, Your Honor.MR. BRENNAN: Your Honor. the witness has

identified the individual at a meeting of the board

of managers, and the minutes of the board reflect

that a board member as participating in a discussion

of the board said until all the retaining wall is

done, he will not replace anything, referencing the

fence. So, it's certainly relevant.

THE COURT: It's hearsay. I don't know who

took those minutes. This is not based upon a

transcript.

MR. BRENNAN: But the witness has

identified these as the minutes of the board of

managers of which he's a member.

THE COURT: But they're minutes, that's all

it is. There's no record ofa vote. or is there?

r0l -

I MR. BRENNAN: It'sjustminutes.

2 THE COURT: So, it's discussed. I think

3 the content ofthe discussion is not evidence, but

4 the minutes. Just the topic.

5 Q Mr. Daquay, do you have anyrecollection ofattending

6 the minutes of - Im sorry, the meeting of

7 September 12th,2009?

8 A I attended every meeting except for one, over my

9 seven years. So, I must have attended that one.

I 0 Q Do you have any recollection of the board of managers

1 I discussing not taking any action until Borden Light

12 Marina had completed the wall construction?

13 MR. SEIGENBERG: Objection, Your Honor.

14 Q Doyou,personally, haveanyrecollection?

15 MR. SEIGENBERG: It's a discussion. It's

16 not a note -- the question; I'm sorry, Your Honor.

17 THE COURT: He can testify as to what he

18 recollects was discussed by the board.

19 A Can you say thatagain?

20 Q Yes. Do you havearecollectionofattendingthe

2l board of managers meeting on September 12th,2009 -

22 A Yes.

23 Q- in which there was

discussion by the board members24 that the board would take no acfion until the wall

t02

I was completed, meaning the wall that Borden Light

2 Marina -

3 A I don't think that's what that means there. Why

4 don't I read that again?

5 Q Certainly.

6 A (Witness reviewing document.) Where it says, "Paul,

7 until the retaining wall is done, he will not replace

8 anything."

9 Q Corect.l0 A Ithinkwhatthey're talking aboutis that Borden

l1 Light Marina wasn't going to put up a fence, which we

12 were concemed about because ofthe steepness ofthe

1 3 slope, that people would fall off, especially kids.

14 And I think - the way I interpret that is, that

15 Bordan Light wasn't going to take any action to fix

l6 our complaint.

17 Q Until the wall was done?

18 A And thafsprobablywhat theysaid, yeah.

19 Q So, the board had knowledge ofthat statementby

20 Borden Light Marina as reflected in those minutes?

21 A Yeah, And at that time, on September l2th, the wall

22 was probably three weeks from being completed,

23 because they had two crews and going very fast.

24 Because I know by October, it was pretty much done, I

-103-

I think.

2 Q It was completed with full knowledge of the board of3 managers?

4 A Well, we knew it was going up, yeah.

5 Q Now, you testified that you felt threatened by

6 Michael Lund?

7 A Thatonetime,yes.

8 Q What did you do about that?

9 A Nothing.

10 Q You mentioned traffic incrsase in the souther'ly end

I I of the Marina property now that the wall has been

12 completed; is that correct?

13 A Yes.

14 Q Do you believe the traf{ic, automobile/truck haffic

15 to b€ within the 20-foot easement?

16 A I'm not sure. What youle asking me is that - is

17 the roadway within the 20-foot easement?

l8 Q Doyouknow?

19 A Not without measuring it, because the roadway is more

20 towards the water, you know what I'm saying?

2l Q Conect.

22 A I know the boat storage is within. I don't know

23 where that line is, how close it is to the road.24 Q Noq the other thing that you mentioned on direct

-104-

NOTES:

KS COURT REPORTINGl4 Palmer Avenue

Danvers. Massachusefts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



LAIIDING V BORDEN LIGHT #254067 Vol. I tugn01 A Was not going to happen?

2 Q Was not going to happen; right.

3 A Probably February of '09. I mean, I would say that

4 once the economy tumed, I probably even had a pretty

5 good idea that they - because who was going to build

6 condo complexes during - but to say definitely is

? one thing.

8 Q I'm not looking -

9 A I certainly had an opinion that it wasn't going to10 happen at a certain point, yeah.

11 Q When did youhavea definitiveunderstanding asto

12 the trigger evort not occurring? Would that have

13 been the February, 2009?

14 A Yeah, yeah. I felt it defrnitely wasn't going to

15 happen.

16 Q So, givan thefactthatthere was a settlement

17 agreement in effect that didn't end until February of

l8 2009, did that in any way impact the actions or

19 inact'ions of the board of managers relative to this

20 Land Court litigation?

21 A No, it had no impact.

22 Q Do you understand the question, sir?

23 A No.

24 Q I'm sorry?

-109-

I A I'mnotsure.

2 Q I-etme tryto go throughitwithyou. Theboard of

3 managers enters into a settlement agreement -

4 A Right.

5 Q - in March of 2006 that's going to resolve the [and

6 Court litigation; correct?

7 MR. BRENNAN: Your Honor, I object. He's

8 leading the witness. If he wans to ask the witness

9 what the settlement agreement means to him, that's

l0 fine. Buthe's -l I MR. SEIGENBERG: I already did that.

12 THECOURT: Yes.

13 MR SEIGENBERG: lf I may, Your Honor. All

l4 I'm doing is rehashing what he's already testifred

15 to, bringing the witness to a point where I can ask

16 him the question. I'll rephrase if you'd like me to,

17 though.

l8 THE COURT: Well, I think you were the one

19 who objected to having the content ofthe settlement

20 agteementdiscussed.

2l MR. SEIGENBERG: Your Honor, I'm happy to

22 enter into - lm happy to enter it as an exhibit,

23 this settlement agre€ment, if you would like. I just24 said the only way the settlement agreemant is even

-110-

I relevant to this lawsuit is, it explains why The

2 I-anding did not take any action relative to the land

3 Court litigation until at least 2009. So, that's all

4 I'm trying to go into, and that is relevant to -

5 MR. BRENNAN: It's in evidance and we ean

6 briefthat one.

7 THECOURT: Yes.

8 MR. SEIGENBERG: I agree, and I'm just

9 trying to go through with the witness.10 THE COURT: It's in evidence.

11 MR.SEIGENBERG: Well,Idon'tthinkitis,

L2 though. It's not marked.

13 MR. BRENNAN: Itis.

14 MR. SEIGENBERG: Is it really?

15 THECOURT: Yes.

16 MR. SEIGENBERG: I didn't realize it eot

l7 added in

18 THE COURT: But you were objecting to

19 questionsaboutthecontentofwhatitmeant. I

20 was -

21 MR. SEIGENBERG: I didn't - and youYe

22 righttoraisethat,YourHonor. Ididn'trealizeit

23 was an exhibit. I had it in my notes that it hadn't

24 been introduced even though we talked about it. So,

lll

I great. So, I withdraw my objections as to the

2 contents, because it's an exhibit. Irt me try to get

3 this through, though.

4 Q So, you have a settlement agreement that's exhibit

5 39, that was entered into byThe Landing; correct?

6 A Yes.

7 Q What was the understanding of The landing as to that

8 l-and Court litigation that was pending, up until

9 February of2009?

10 A Itreallywasn'taconsideration.l l Q Why is that?

12 A Because we didn't know what was in it.

13 Q Okay.

14 A What we mostly were concerned about were the other

15 things that were on the table in that settlement at

16 the time.

17 Q Noq you indicated thatin SeptemberorOctober,

18 that's when Mount Hope did their survey of the

19 property; is that correct?

20 A Yeah.

21 Q What other activities was The t-anding doing - was

22 the board ofmanagers ofThe landing doing or

2l discussing relative to the - this is in 2009 -24 relative to the work that was being performed by

-ttz-

)

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NOTES



Phoner (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGIIT. #254067 VoL.II tu9n0I

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Borden Light Marina?

This would be in the September time frame?

No, in any time in 2009.

Well, we were concerned with the wall, how close itwas. We wanted to find out where the property line

was to get an idea ofhow everything was fitting

together. We were concemed about our 20-foot going

away, so to speak, in the whole southem end.

And this was all before September/October of 2009?Yeah. Also, that license came up for - the 9l

license came up. We were trying to educate ourselves

on all these fronts, on our property line, on what

the Marina was doing, how it was affecting orn

residents, how it was affecting our property line,

the entrance, you know. Tliere were a lot of things

going on. We were trying to get up to speed. So,

that was our frame of mind. Thafs what we were

doing.

We were talking about getting lawyers.

There were other things going on, too. We had our

flood elevation problems that a lot ofour residents

were facing, and we had to get Mount Hope Engineering

to solve that problem. So, there was a lot ofactivity going on that we were trying to get our

- 113 _

I handles on, you know.

2 MR SEIGENBERG: Thank you, sir.

3 THE COURT: You have no further questions?

4 MR.BRENNAN: No.

5 THECOURT: Okay. Youteexcused.

6 (Witness stepped down.)

7 THE COURT: We'll take a break for lunch,

8 and when we come back, we will have -

9 MR. SEIGENBERG: Mr. Holmes. He's coming

l0 in at two. If we have additional time, we have someI I other things we could do for the court.

12 THE COURT: Okay. Well, lefs come back at

l3 quarter oftwo?

14 MR. SEIGENBERG: That's fine.

15 THE COURT: Quarter of two.

16 MR. SEIGENBERG: Crreat, great. Thanks

17 (Lunch Break)

18 MR. SEIGENBERG: With the court's

19 permission, can I proceed by calling James Holmes?

20 THECOURT: Okay.

21 *************

22 JAMES HOI},IES

23 ****++*******

24 (Witness swom.)

- 114-

DIRECT EXAMINATION

(By Mr. Seiganberg:)

Good aftemoon, sir.

Good aftemoon.

Would you please state your full name for the record?

James Edward Holmes.

Mr. Holmes, what is your residential address?

It's 50 Robinson Creek Road, Pembroke, Massachusetts

Are you currently employed, sir?Yes.

Who are you employed with?

Aegis Engineering Services, Inc.

THE COLIRT: Speak up a little bit, please.

THE WITNESS: I'm sorry.

THECOURT: Thankyou.

Il's Aegis Engineering Services.

And you spell Aegis how?

A.E-G-I-S.

What is your position at Aegis Engineering?

I'm a structural engineer.

Sir, could you tell us your educational backgror.md?

Yes. I have a Bachelor's of Science and a Master's

of Science in civil engineering, both from Rensselaer

Polvtech Institute.

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I Q What year did you graduate with your Bachelor's from

2 Rensselaer?

3 A 1998.

4 Q And once again, your degree was what, again, sir, a

5 BSin -

6 A Civil engineering, with a concentration in structural

7 engineering.

8 Q You also indicated you obtained your Master's also

9 from Rensselaer Polytech?

10 A Yes.

11 Q What year did you obtain your Master's?

12 A 2000.

13 Q Specifically, what was that Master's degree in, sir?

14 A Same thing. Civil engineering with a concentration

15 in structural engineering.

16 Q Mr. Holmes, can you tell us your work experience?

17 A Yes. Since2000, I'veworked atvariouscompanies

l8 doing structural engineering senrices, be it design

19 ofstructures, analysis ofstructures, field

20 monitoring to make sure that things were constructed

2l as per plans. That includes residential, commercial

22 properties, various materials, wood, concrete, steel,

23 basically anything that, you know, the common24 building materia'ls that structures are constructcd

-l16-



Phone: (978) 177-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #2s4067 VOr,.II tugn0I of.

2 Q Can you tell us, if you would, tell us the employers

3 that you've had since 2000. Is that when you

4 commenced your employment?

5 A Yes. From 2000 to 2004, it was Engineers Design

6 Group ffom Cambridge, Mass. From 2004 to 2006 -

7 Q kt'sjustslowdownasecond. I'msorry.

8 A Yes.

9 Q The first company was what, again, sir?10 A Engineen Design Group.

1l Q They're in Cambridge, Massachusetts; conect?

12 A I believe they're in Medford now. They were in

13 Cambridge when I was there.

14 Q What was your position at that company, sir?

15 A Project eng'ineer. I wasn't licensed as a structural

l6 engineer yet, so my title, it was a project engineer.

l7 Q Andsir,areyoucurrentlylicensed -

18 A Yes.

19 Q -inanycapacity?

20 A Yes.

2l Q What are your licensures in, sir?

22 A, A, licensed structural engineer in the state of

23 Massachusetts.

24 Q When did you obtain your license, sir?

-1t7 -

1 A h 2006.

2 Q What's the requirements in order to obtain that

3 license?

4 A You need to have a minimum number of years of

5 service, I believe it's four years ofworking in the

6 industry, before you can apply to take the test. At

? that time, you have to apply, have references from

8 employers who attest to your ability at that point,

9 at which time you're allowed to take the professional

10 engineertest. It'saneighthourtest,andupon1 1 passing that, youte granted licensure in whatever

12 field you've taken the test in, you lnow, civil or

13 sfructura'I, environmental. There's all the different

14 fields.

15 Q And the testyou tookin, was it2006?

16 A Yes.

17 Q Thatwas forstructuralengineering -

18 A Yes.

19 Q - correct?

20 A Yes.

21 Q After 2004, who was your employer?

22 A Gale Associates, and theyte out of -

23 Q G-A-L-E?24 A G-A-L-E, in Weymouth, Massachusetts.

- 118 -

I Q What was your position at Gale Associates?

2 A Also a prqiect engineer doing design of commercial

3 and residential properties, building evaluations,

4 things like that.

5 Q You were with Gale Associates until 2008; is that

6 correct?

7 A Until 2006.

8 Q I'm sorry. And after 2006, who were you employed

I with?10 A Iwas -during2006,twocompaniesduring2006. I

I t had pre-stint with Ocean and Coastal Consultants out

12 of P1)rnouth. And I spant the summer in the field

13 doing construction monitoring, making sure that a

14 waterfront sffucture, a seawall, was built

15 appropriately, as per the design, and also to address

16 any issues that came up in the field.

17 Q Where was that seawall located?

18 A Everett, Mass.

19 Q And specifically, whatdid you torelative to that

20 seawall, again, sir?

21 A It was basically full-time on site resident

22 angineering, to make sure that things were built as

23 per the plans, and I had also - it was a fairly

24 complexjob, so there were also a lot ofissues that

-l19-

I came up as the construction went along, things that

2 couldn't be foreseen in the design phase. So, I was

3 sort ofthe point ofcontact there when they had a

4 specific question regarding the structure, questions

5 that needed to be addressed, fixes that needed to be

6 done. I would handle those.

7 Q From a structural engineering -

8 A Yes.

9 Q - perspective?

l0 A Yes.

1 I Q Have you been involved in any other coastal-type

12 projects?

13 A Yes. Ive actually - later in 2006, I worked at

14 Coastal Engineering Company in Orleans,

15 Massachusetts. I did a lot of work on Cape Cod. So,

16 we've done a lot of seawalls, retaining walls, things

17 like that. So, yeah, I do have experience doing

18 waterfrontstructures.

I 9 Q Once again, either constructing or evaluating the

20 structures from a structural engineering component?

2l A Yes, or monitoring.

22 Q Or monitoring.

23 A Yeah.24 Q What was your next emp'loyer, sir?

-t20-

NOTES



Phone: (978) 777-5802 FAX: (978) 777-5803



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LANDING v BORDEN LIGIIT. #254067 Vor.. lugltOAfter that, Aegis Engineering, where I'm currently

employed.

Where is Aegis Engineering located, again?

Rockland. Massachusetts.

What's your position at Aegis Engineering?

Structural angineer.

As part of your employment at Aegis Engineering, tell

us the type ofprojects you've been involved with.

We - what we do is, fororsic inspections oftypically failures. My job is, any failure that

occurs that insurance corpanies want investigated, I

will go out there and gather all the information, all

the evidence, measur€rnents, photographs, and

typically determine cause, you know, be it a failure

of a roof or a settlement, or a wall failure,

anything like that, fire damage, explosions from Hyde

Park. I'm very busy with now the adjacent

properties. Things like that, where structurai

damage has occurred, determining the extent ofdamage, and potentially the cause of that damage.

In your employment with Aegis Engineering, how many

retaining walls have you evaluated?

I would say probably about twenfy.

And once again, from a structural component?

-t21-

1 A Yeah. Either movernent, failure, you know, collapse

2 versus movement, things like that, yes.

3 Q Sir, when did you firsthaveany involvement, ifany,

4 with The l-anding property?

5 A My first involvement was in March of 2009, I believe.

6 Q Are you sure on the date?

7 A I don't know the exact date. It would be on mv

8 report. lmnot -

9 Q Do you have your report with you?

l0 A Actually, I believe it is in my -

11 MR. SEIGENBERG: With the court's

12 permission, can hejust -

13 THECOURT: Yes.


15 Q Sir, could you look atyourreport and see if that

16 refreshes your recollection as to the date that you

l7 were first involved in this project?

18 A I visited the sit€ on March 4th, 2010.

19 Q Priorto goingto thesite, was thereanythingelse

Z0 that you did relative to this project?

2l A Only just setting up the appointments. That was it.

22 Q And specifically, who retained you to go out to The

23 landing?24 A We were retained by Friedline, Carter and Rotondi

1 Adjustment.

2 Q And they are an adjustment company for an insurance

3 cornpany; is that correct?

4 A Yes.

5 Q What insurance company is that, if you know?

6 A Philadelphia hsurance.

7 Q So, the first thing that you did is, you went up to

8 the site; is that correct?

9 A Yes.l0 Q What was the date you went up to the site, again?

11 A March 4th.

12 Q Couldyou tell us whatyoursitevisitrevealed?

13 A Yes. Bytheway, Ithink Isaid 2009, before, when I

t4 was out there, it was March 4th of -

15 Q 2010? Was it'10 or'09?

16 A 2010. Yes. When I went out there I met with some of

17 the residents, and we looked at the damages to the

18 units numbers 301 and 401.

19 MR. BRENNAN: Objection, Your Honor. He's

20 going to testifu, it would appear, to damages to

21 units -

22 THE COURT: Well. he hasn't testified to

23 the damages to the unit. He says that is what he did

24 when he went out to the site. He looked at those

123 -

1 units. So, that's fine.

2 MR. SEIGENBERG: Thank you. I understand

3 the court's understanding ofthe case, so, thank you.

4 Q Go ahead.

5 A So, we looked atthose units, and then afterwards, we

6 went out and took a look at the block retaining wall

7 that was recently constructed behind the property.

8 Q At any point in time, did you take any photographs of

9 inside. or -

l0 A Yes. I tookphotographs ofinside each unitofthe11 site, and of the wall.

12 Q Idirectyowattentionto - it shouldbe overin

l3 front ofyou, an exhibit book, exhibit 33.

14 MR. SEIGENBERG: If I may, Your Honor,

15 approach?

16 A Yes.

l7 Q In the firstphotograph, sir, can you describe what

18 that is?

19 A This photographwas aphoto tlatlobtained, an

20 aerial photograph. I believe it was a camera called,

2l This Google Earth, a windows local aerial photograph

22 that showed the condition of the property prior to

23 construction of the retaining wall.24 Q I see. And specifically, you have identified the

ta/

NOTES:


I)anvers, Massachusetts 01 923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #2s4067 VoL.II tvgn0I buildings that are depicted on that photogaph, sir?

2 A Yes.

3 Q Once again, I think you - are those your labels you

4 put there, sir?

5 A Yes.

6 Q So, specifically, sir -7 MR. SEIGENBERG: Just to move this alono

8 Your Honor.

9 Q - unit 31, thatwould be in building 3; is that your

10 understanding?

ll A Yes.

12 Q Do you even knowthat?

13 A I'mnotsure whatbuildingnumbers. Ijustknowwhat

14 these two units -

15 Q Fairenough.

16 A -are.

l7 Q Now, ifyoujustmove on, sir, the next page there's

l8 acoupleofotherphotographs. Thetopphoto$aph,

19 can you tell us, is that a photograph that you took,

20 sir?

21 A Yeah.

22 Q Can you te'll us what -

23 THE COURT: Can I just clarify - I'm

24 sorry. Did you say 2010, March, 2010 -

-125-

I THE WITNESS: Yes.

2 THE COURT: - was the first thing that you

3 did, but you said you took this photograph? Did I4 hearthat?

5 MR. SEIGENBERG: I think he said he took

6 the first photograph, Your Honor. I think he

7 indicated he got it from Google or -8 THE WITNESS: Yeah, for that first

9 photograph that was -

l0 THE COURT: That you obtained from where?

I I THE WINESS: Ifs somewhere off of the

12 intemet that has aerial photographs.

13 THE COURT: All right. I missed that. I14 justwanted to clarify that.

15 THE WITNESS: Because I wanted to try to

16 get a sense ofwhat was there before.

17 Q And I'll clari$ it. These second photos, these are

l8 second photos on page 2, sir, those are photos that

19 you took, though?

20 A Yes.2l Q Whendidyoutakethosephotographs?

22 A March4th,2010.

23 Q When you went out to the site?

24 A Duringthatinspection,yes.

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I Q kt's talk about the top photograph. Can you tell us

2 what that photograph depicts?

3 A Itdepicts the location ofthe recently, atthat

4 time, built block retaining wall.

5 Q Does itshowsomeofThe tanding buildings, as well?

6 A Yeah, it shows the proximity of the units to the7 wall, and it also shows the line ofexcavation as

8 shown by the disturbed soil. It's a little bit

t harder to see in the black and white.

10 Q And you also made anotation, "newretaining wall

11 built closer to insured's property." Why did you

12 make that notation, sir?

13 A I was trying to illustrate the difference in the

14 location ofthe retaining wall versus the sloping

15 hillside that was shown in the previous photo.

16 Q kt thebottomofpage 2 there's a secondphotograph

I7 What does that depict, sir?

18 A Itdepicts essentiallythe same as theprevious,

19 showing the location of the new wall, it's proximity

20 to the comer of 301. And it also shows that again,

2l that there was work being done behind the wall, based

22 on the tracks in the dirt.

23 Q That was my next - I know it's difficult, once

24 again, with the black and white here, but are there,

I in fact - where are these tracks that youire

2 referring to?

3 A They are, as youte looking at the photo,just to the

4 leftofthe white fence.

5 Q And you understood those to be what, sir?

6 A I understood those to be from the work that was done

7 to construct the wall.8 Q Now, ifyou go to the page 3 ofthatexhibit, sir -

9 A Mm-hmm.

l0 Q -thosetwo otherphotographs. Onceagain,thetop

I I one that says, "blocks have shifted" -

12 A Mm-hmm.

13 Q -did youtakethatphoto -these twophotographs,

14 as we1l, sir?

15 A Yes. Idid.

16 Q Whatdoes thetopphotographdepict,sir?

I 7 A lt's showing that the interlock between the concrete

18 blocksisnotatightinterlock. Andwhatthat

19 indicates to me is that either the wall was not

20 initially constructed properly, tight, with the locks2l in - the interlocks, or it was and has since moved,

22 forcing the displacement to occur.

23 Q What is the significance of any of that observation,

24 sir?

-r28-




LANDING V BORDEN LIGHT #2s4067 Vor.. rugtrOI A Those would both indicate some instability in the

2 wall. If had moved after the fact that they were

3 constructed initiallytight, and nowthey're in this

4 position, it indicates to me that obviously the wall

5 has moved. and it's not stable. If it was

6 constructed in that position, again, that illustrates

1 to me some poor worknanship, in that tight interlock

8 oftheseblocksisrequiredforthewallto -for

9 it's strength.10 Q And specifically, the wall that you observed, can you

1 1 describe the construction, not the quality, but the

12 type of construction it was.

13 A Yeah. Itwasbuiltusing, Ibelieve, six footby two

14 foot by two foot corrcrete blocks.

15 Q You saysix feetbytwo feetbytwo feet. That's six

16 feet -

17 A Six feet long by two foot high by two footwide,

18 approximately. Asyoucanseeinthefirstphotoon

19 that same page, you know, it appears that at least

20 some of them have some interlock potential. I

2l couldn't verify that all ofthe blocks were

22 constructed like this. The blocks themselves, they

23 didn't appear to be part ofany sort ofa24 manufactured system. These blocks to me looked like

-129-

I oftentimes they're poured on a construction - on a

2 concrete site, leftover concrete from trucks. They

3 typically will pour large blocks like this, and they

4 get used for walls at times.

5 Q Im going to try to get back to that question, but

6 you were describing how this wall was constructed -

7 A Yes.

8 Q -butnotquality.

9 A Okay.

l0 Q So, you had the block.l1 A Yeah, had the block, and I could see in between some

12 ofthe courses ofblock, I couldn't see them all, a

13 geofabric, or something thatresembled a geofabric,

14 extending into the high side, the hill side behind

15 the wall.

16 Q What's the significance, ifany, ofthe factthatyou

l7 indicated that these blocks appeared to be not part

l8 ofan angineered system, but where they were like,

I t how did you describe it, concrete blocks that were

20 just make at a concrete plant?

21 A Right. Typically,blockretainingwalls are -

22 they're part of a fully engineered system. There are

23 various manufacturers that produce the blocks and24 have their own desigr specification to go with them.

-130-

I Aretaining wall this heightbycode, Massachusetts

2 code, is required to have an engineered design by a

3 registered professional, a civil engineer or a

4 structural engineer or a geotechnical engineer,

5 someone like that. And there was no indication that

6 that was done.

7 Q Well, you were talking about these were a different

8 type ofblocks, though.

9 A Mm-hmm.10 Q What did you mean by that, sir?

ll A Itindicates to me that it was notpartofa syst€m.

12 Like I said, typically there are systems where they

13 setout -thesearetheblocksyouuse,theseare

14 the geogrid reinforcing you use. They provide you

15 this information and the materials, and you build it16 with that. This, to me, look like it was more of -

17 just sort ofleftover block that was used. I mean,

18 you can see on that photo on the lower, you know,

19 there'ssomegraffrtietchedintothe -

20 Q lrt's talk about the next photo on page 3, the bottom

21 one.

22 A Yeah.

23 Q What does that photo depict, sir?

24 A Again, it's just - it's demonstrating the unevenness

-131-

I and misalignment of the wall.

2 Q What's the significance, if any, of -

3 A Again, it's similar to my explanation on the photo

4 before that either the wall was not constructed even

5 and aligned, and the interlocla that are therc are

6 doing theirjob, or they were and the wall has since

7 moved and become displaced and put into this

8 position.

9 Q From your experience sir, and your training and

10 education, would you expsct to see a properly

1l designed wall with this type of misaligned blocl<s?

12 A No, I would not.

13 Q Nowsir, you indicated you talked to unitowners, you

14 took a visit ofthe site; correct?

15 A Yes.

I 6 Q Did you speak to anyone else or go anyi;vhere else as

17 part ofyour investigation, sir?

18 A Yes. After inspecting the Foperty, I visited the

l9 Fall River Building Department.

20 Q Why did you go to the Fall fuver Building Departrnent?

21 A Iwas intsrested to see if there were anydesign

22 plans for this wall, if there was anything that was

23 submitted to the building department. Like I said, a

24 wall this height in proximity to the building needs

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NOTBS



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LANDING V BORDEN LIGHT #254067 Vor,. rugtr01 tobeproperlyengineered. Theyshoutdhaveplans

2 and engineering documents submitted. So, Iwas

3 interested to see ifany ofthose were available for

4 review at the Fall fuver Building Department.

5 Q And based on your review at the investigation at the

6 Fall River Building Department, did you, in fact,

7 find out whether or not there are any plans as

8 required?

9 A There were not.10 Q Now, you said that in a retaining wall of this

I I nature, engineered plans were required to be

12 submitted prior to the building inspector?

13 A Yes.

14 Q Underwhat -isitacodeprovisionor -

15 A Yeah. TheMassachusetts statebuildingcode,seventh

16 edition, under which this was constructed, section

17 1806.4, retaining wall design states, "Retaining

l8 walls that support unbalanced height ofretaining

19 material $eater than six feet in any retaining

Z0 system or slope that could impact public safety or

Zl the stabilify ofan adjacent structure shall be

22 designed by a registered design professional."

23 MR. SEIGENBERG: This is part of the

24 regulations that are part ofthe agreed upon

_133_

I hndings.

2 Q On the geofabric; correct?

3 A Yes.

4 Q From your experience, as part of your investigation,

5 ifin fact you found out therc was an engineer who's

6 alreadymade an evaluation ofthe structural wall

7 that you were reviewing, would it be common pracf,ce

8 for you to contact that engineer?

9 A Yes.I 0 Q Now sir, based on your observations and inspections

l l of this wall, the information provided to you, and

12 your education, training and experiance sir, do you

13 have an opinion as to the construction ofthis wall?

14 A Yes. It's my opinion that the wall was not built

15 properly.

16 Q And when you saythe wall was notbuiltproperly,

17 what do you mean by that?

18 A I mean, based on my observations of the misalignment

19 ofthe block, which indicates either it was not

20 initially built properly, or has since moved, and

21 discussions with Mr. lrffort, who informed me that

22 the geogrid reinforcing only extanded about two feet

23 behind the wall, in my opinion that's not sufficient

24 length to develop enough weight to hold the wall in

-135-

I place.

2 Q In a concrete block retaining wall like this -

3 A Yes.

4 Q -whatis the significance, ifany, ofgeofabric to

5 the structural soundness ofthe wall?

6 A A geofabric will - it locla in between the blocks

7 and extends into the uphill side, and it works to use

8 the weight ofall that retained soil, and the geogrid

9 will hold all that soil together. And if the wall

l0 tries to move outward, tries to displace, itI I essentially has to drag that geogrid through all that

12 massofsoil. So,itessentially -you'reusingall

13 ofthat soil behind the wall to help keep the wall in

14 place. So you need to have that geogrid extend far

15 enough that it catches enough ofthe soil trehind the

16 wall to hold it in place.

17 Q This geognd, is it something that in the normal -

1 8 following proper procedure would be placed along each

l9 row ofthe concrete blocks?

20 A Notnecessarilyeachrow. Itdepends -itvaries,

21 depending on the design, on the height ofthe wall.

22 It could be every - it could be every other cowse

23 ofblock. Itreally -itdepends.24 Q It would depend on the calculations?

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exhibits, Your Honor.

So, in your professional opinion, this wall required

engineered plans to be submitted?

Yes.

Did you determine whether or not a building permit

had been issued when you did your investigation?

I was told that there was not.

Did you speak to anyone else, sir, as part of your

investigation?

I spoke to Mr. trffort.Don lrffort?

Don Lrffort at Northeast.

Why did you speak to Don I-effort?

I spoke to Mr. lrffort because our - my evaluation

was visual at the time we were asked to go out there,

and based on what we can obtain visually to provide

our opinion. From speaking with some of the

condominium residents, they had informed me that

Mr. kffort had also been out there to do some work.

So, I contacted him to see what information he had

available regarding construction of the wall. I

understood he did test pits. He dug out behind the

wall to determine if the geofabric was present and

the length of it. So, I spoke to him to discuss his

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LANDING v BORDEN LIGHT #254067 VoL. rlt9n0I A Yeah. There's no one answer to that.2 Q In orderto determine the amountofgeofabric that3 would be necessary to provide structural support for4 a wall ofthis nature, how would a structural5 engineer or a professional engineer determine that.i6 A Well, he would have to take into account all the7 various factors, the weight ofthe wall itself, the8 soil conditions behind the wall. The various soil9 conditions will play a large role in how much

l0 geofabric you would need. Different soil conditionsI 1 exefi different pressures on the wall, so I would _

12 in one that I was doing, I would employ a

13 geotechnical engineer to go out there and take a look14 at the soils themselves, and tell me the various15 properties ofthese soils that you need to know to16 properly design the wall.

17 Q So, these are calculations that are -18 A Yes,yeah.

19 Q Are they based on state building code or engineering20 standards?

2l A Engineering standards, definitely, yeah.

22 Q And is there - strike that.

23 You indicated earlier that a wall ofthis24 nature based on the state building code had to be

- lJ I -

I engineered, that is, with engineering plans.

2 A Yes.

3 Q As partofthatengineering, would oneofthe4 requirernents be to determine the amount of geofabric5 that was necessary?

6 A Yes.

7 Q Did you see any tlpe calculations when you went to-8 the building inspector?

9 A No, nothing.

l0 Q Sir, underthe statebuilding code, would itbe

I I appropriate for a non-engineer to do those

12 calculationsthemselves?

13 A No.

14 Q Alandowner?

15 A No. Ithastobealicensed,registereddesign

l6 professional.

17 Q So,sir, based on youreducation, trainingand18 experience and observations ofthis wall, do you havel9 an opinion or not whether this wall is structurally20 sound?

2l A Yeah. I don't believe that it is.

22 Q As partofyouranalysis, did you make any23 detffmination as to what could be done _ strike

24 that. l,et me withdraw that question.-138_

I Based on your education, training and2 experience and observation ofthis wall, sir, do you3 have any recommendations as to what could be done, or4 what should be done relative to this wall?5 A My recommendation would be that this wall be removed6 and either rebuilt - there,s many methods you could7 do it, but rebuilt properly, or the hillside be8 replaced back to it's original condition.9 Q Aspart ofyour duties orservices, that,s not a

l0 determination that you made, right, as to what wasI I the best course?

12 A No, no. I was not asked to determine a fix.13 Q Sir, whatconcems, ifany, do you haverelative to14 this wall as constructed?

15 A Based on myobservations and potential movernent, Ii6 would be concerned prirnarily with further movement of17 that wall and potential failure, collapse.

l8 MR. SEIGENBERG: Thankyou. Ihavenothins19 furtherofthiswitness, yourHonor.

20 THE COURT: Mr. Brennan.

2I CROSS EXAMINATION22 @y Mr. Brennan:)

23 Q Mr. Holmes, the use of a segmented block wall under24 certain circumsiances and designs is an accepted

-139-

I engineering design; is that correct?

2 A Yes.

3 Q So, the use ofasegmented blockwall in this area,4 this location in which youVe inspected the wall, the5 fact that it,s cement blocks doesn't make the wall6 bad; is that correct?

7 A Conect.

8 Q Now, did you inspectthatportionofthe blockwall9 that nrns approximately from building 4, southerly to

l0 the entrance to the Marinaproperty?11 A I'm not sure which direction south is. I,m sorry.

12 Q Well, if your back was to the bay, and you were

13 looking at the condos, south would be to your right.14 A Yes.

15 Q Howmany - is itapproxirnately500 feetofblock16 wall thatyou inspected?

17 A Idon'trecallthelength. Based on thephotograph,l8 thatlook -

19 Q Did you inspectanyrhingnorthofbuilding4?

20 A I went as far as the block wall terminated. I2l believe it terminates at a sheet pile, a steel sheet22 pile wall.

23 Q So, yourresponsibilities were to lookat thatblock

24 wall, and I'mgoing to saysoutherly, ifyou now

-140-

.l: - ''|.

NOTES

KS COURT REPORTING14 Palmcr Avenue

Danvers, Massachusetts 0l 923Phone: (978) 777-5802 FAX: (978) 777-SBO3



LANDING V BORDEN LIGHT #2s4067 Vor,.I tu9n01 MR.SEIGENBERG: Youstillneedtoeivehim

2 your answer.

3 A Yes.

4 THECOURT: Yes.

5 MR. SEIGENBERG: Thank you, Your Honor.

6 Q What makes a cement block suitable for an engineered

7 package?

8 A What makes it suitable is that it's - it's part of

9 an entire system where the block is designed to work10 in unison with the geofabric, with the footing. With

11 the soil mass it's all - it all works together.

12 Q So, howis it that you can tell by looking at a

13 block, whether ornot it's suitable for an engineered

14 system?

15 A The systems that I'm referring to are

16 pre-manufactured block from a manufacturer; they're

l7 delivered. And the block that I see here looks like

I 8 it was just site cast, poured on site.

19 Q So, it looked a little rough?

20 A Yes.

2 1 Q Does that mean that ifs not suitable for integrating

22 into a segmented block wall?

23 A No. Ifall theotherparts areproperlydesigned,it

24 could.

I Q You testified abitaboutthe heightofthe wall, and

2 would it be fair to say that if a segmented block

3 wall is constructed so as not to exceed a particular

4 height, that it could be a straight gravitywall, and

5 not require geofabric? Would that be ffue?

6 A Yes, it's true, itcould.

7 Q Now, is there a height requirement for getting into

8 geofabric? Forexample, could you do what I'll refel

9 to as a gravity wall up to maybe six feet without

l0 geofabric?I I A It's a possibility. Again, it depends on a lot of12 different factors, soil conditions, things like that.

13 And that would be up to the engineer to determine.

14 Q So, there isn'tan automatic heightthattriggers

15 geofabric? It's an engineering determination?

16 A Yes,sitespecific,yes.

17 Q You were asked on direct examination - you were

18 asked a lot of things. I-et me find my notes.

19 Oh, your recommendation was that the wall

20 be taken down and rebuill is that correct?

2l A Yes.

22 Q You mentioned that as one possible solution to a wall

23 that was not structurally sound. And you mentioned24 that there were many methods. What, other than

-t46-

I taking it down and rebuilding it, were you rpferring

2 toby "many other methods?"

3 MR. SEIGENBERG: Otrjection. That's not

4 what the witness testified to. That's a misstatement

5 of the witness'testimony, Your Honor.

6 THE COURT: Yes. That's not what I

7 remember.

8 MR. SEIGENBERG: He did not say that.

9 THE COURT: Objection sustained.10 MR. SEIGENBERG: Thank you, Your Honor.

11 MR. BRENNAN: I don't take very good notes,

12 I guess.

13 Q If you did testify that a way to remedy this wall, in

14 your opinion, would be to take it down and rebuild

i5 it? Didyoutestifyto that?

16 A Yes.

17 Q Now,thatwouldbeto address thestructural

18 integrity ofthe wall; correct?

19 A Yes.

20 Q Areyou awareofanyothermethods thatcould be

2l utilized or onployed in order to address what you

22 opine as structural integrityofthe wall?

23 A Withoutremoving -

24 Q Yes.

-147-

I A - without taking the wall down and reconstructing

2 ir?

3 Q Yes.

4 A The only one that comes to mind immediately is

5 somehow buttressing the wall from the 1ow side,

6 basically where the boats are being stored, to

7 prevent the wall from being pushed outward further,

8 to basically - to buttress the wall.

9 Q You have to bear with me here. When you say,

10 "buttress the wall," would that be by sheathing, for

l1 example, or some other method? How would you

12 buttress the wall from the bay side, let's say.

13 A You could install a sheet pile in the wall, or

14 actuallypmviding at certain intervals, a large

15 wall, basicallyperpandicular to the retaining wall,

16 so that it will restrain it from moving forward.

17 Basically, a large, heavy structure, ifyou will,

l8 just to keep it from moving the - from pushing

19 outward.

20 Q Would lowering the wall be an option?

2l A Yeah, lowering the wall would reduce the forces and

22 the pressures acting against the wall. Again, I

23 don't know how far you'd have to lower it, and how24 that would affect the foundations nearby ofthe

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LANDING v BORDEN LIGHT.#254067 VOL. I tlt9n0I condominium.

2 Q Thatwould be an engineering calculation?

3 A Yes.

4 Q So, it may be that you would have to lower the wall

5 and move it further on to the Marina property, for

6 exarnple, in order to address that concem?

7 A lt'sapossibility.

8 Q Itwould be increasing the slope?

9 A I'm sorry. Excuse me?l0 Q If you lowffed the wall and you moved it closer to

11 the water, or further onto the Marina property,

12 that's a possible solution?

13 A lt's possible, yes.

14 MR. SEIGENBERG: Objection, Your Honor.

15 I'm not so sure we're dealing with possibilities in a

16 court of law. We ganerally deal with probabilities

l7 or-18 THECOURT: Well,youopenedthedoorto

1 9 that. You asked what the options were for correcting

20 the situation. So -

2l MR. Seigarberg: I withdraw my objection,

22 Your Honor. I appreciate that. I take it that's

23 overruled.

24 THE COURT: Overruled.

-t49-

I Q You did not do any geotechnical investigation, for

2 example, testanyofthesoilsthatareoutthere -

3A No.

4 Q -isthatcorrect?

5 A No, I did not.

6 Q And you didn't do any testing of the cement that was

7 used to make the blocks that are out there: is that

8 correct?

9A No.

l0 Q And cementhas different,what, PSlratings? IsthatI I how cement gets calculated?

12 A Different strengths, yeah. There's different design

13 strengths, yes.

14 MR. BRENNAN: I have no further questions,

15 Your Honor.

16 MR. SEIGENBERG: A few on redirect. if I11 could. Thank you.

18 REDIRECT EXAMINATION

19 (By Mr. Seigenberg:)

20 Q The lastquestion you were asked had to do with

2l different design strengths ofthe concrete block.

22 That's the PSI; correct?

23 A Yeah.24 Q The relative strength of these concrete blocks, how

-150-

I would that impact the struc - how would that.impact,

2 if at all, the structural stability of this watl?

3 A Thedesignstrength,theactual strengthofthe

4 concrete, I would not expect to be a factor in this.

5 It's more stability of the wall, whether it's going

6 to overtum, whether it's going to slide, whether the

7 blocks are going to - the interlocks are going to

8 fail. The PSI, the design strength, the pounds per

9 square inch, the stratgth ofthe concrete, that wouldl0 basically be crushing on the concrete, under ifs own

I I weight. lt's not really an issue in my opinion.

12 Q Nowsir, you were also asked during cross examination

13 about test pits. As part ofyour - were you aware,

14 by speaking to Don Irffort, how many test pits he

15 performed?

16 A No,Iwasnot.

17 Q You indicated that in your mind, the appropriate

l8 amount, givor this length ofwall, would have been

19 between four to six test pits, total; correct?

20 A Yes.

21 Q What results - strike that.

22 What impact, if any, would the results of

2l these test pits have on your determination as to the

24 amount of test pits? Do you understand the question?

-151-

I [,et me rephrase.

2 A No, Idon't.

3 Q I'mnotsosurelunderstand thequestion.

4 My question is, if the results of the test

5 pits were consistent with each other, would that have

6 any impact to you as an engineer as to the number of7 test pits that you utilized?

8 A Yes.

9 Q How would that have an impact?

10 A If in doing my initial test pits that I determined

I I was adequate, if I was finding consistent results

12 throughout, I would be satisfied. Ifl was finding

13 some large variation throughout, that would sigtrify

14 that there's obviously a large variation throughout,

15 and that more test pits would be required to get a

16 true sense ofthe construction.

17 Q And so that's why - it's because of mathematical

18 probability is why four to six test pits would be

19 engineering acceptable for a wall ofthis length;

20 correct?

21 A Yes.

22 Q Now hlpothetically, if in fact, four test pits were

23 built in this area, and all four ofthese test pits24 revealed that the geofabric was one or two inches

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I THECOURT: Yes.

2 MR.SEIGENBERG: Ournextwitnesswillbe

3 Sterling Wall. That's the expert who was

4 unavailable, so we're going to go through this. lll5 be on the witness stand and Attomey Watsky will be

6 asking questions for the record.

7 THECOURT: Okay.

8 MR. WATSKY: Deposition hanscript starts

9 with William Sterling Wall being properly identified

l0 and swom, testified as follows in answer to directI I interrogatories. Would you go through the -

12 THE COURT: Could you spell the name,

13 please?

14 MR.WATSKY: It'sWilliamSterling,

15 S-T-E-R-L-I-N-G, and Wall, like a wall.

16 THE COURT: Okay. So, it's three names.

17 MR. WATSKY: Yes. He goes by Sterling, but

l8 his first name is William. Usually, just -

19 MR SEIGENBERG: Sterling Wall.

20 MR. WATSKY: Just call him Sterling.

21 Q Good afternoon. Would you please - Dan, we going to

22 start page 4, line 23.

23 MR. SEIGENBERG: You have to ask the24 question.

-158-

(Exhibit Number 33, pages 4, 5

and 6 removed from evidence.)

MR. SEIGENBERG: And just for the record,

Your Honor, just to make it a record, I would object,

I do think that the damage to these individual units,

Your Honor, is a relevant consideration for the court

in the contempt action. And I'd make an offer of

proofjust for the record that we would have elicited

testimony, ifallowed, indicating that the excavationdone in consfucting these walls did, in fact, cause

damage to these individual units, Your Honor.

yes

THE COURT: I understand you would have,

MR SEIGENBERG: Thank you, Your Honor.

MR. WATSKY: With the court's permission,

we'd cal'l our next witness. This is Sterling Wall.

THE COURT: I'm sorry.

STENOGRAPHER: Page 1, is still in the

book?

THE COURT: Page I has not been decided

yet.

STENOGRAPHER: Okav. 2 and 3 are?

THECOURT: Yes.

STENOGRAPHU*:,k,t;td"n"".

I *****

2 Eeading from the deposition transcript

3 of William Sterling Wall, taken on

4 r0/28/r0)

5 Q Good aftemoon. Would you please state your name and

6 residential address?

7 A My full name is William Sterling Wall. My

8 residential address is Eight Sheep Pen [ane,

9 Chilmark, Massachusetts.10 Q Could you state youreducational background?

11 A Educational backgromd. High school and college

12 education with a Bachelor's degree in geology,

13 concentration in coastal geology from the University

14 of Massachusetts. And then approximately 32 years of

15 professional work in the area ofcoastal wetlands.

16 Q Where did you first work as a professional in the

17 area ofcoastal wetlands?

18 A I was first employed by Commonwealth of Massachusetts

19 through the Coastal Zone Management Program to serve

20 as a consulting coastal geologist to utlat at that

21 time was the Department of Bnvironmental Quality

22 Engineering, known as DEQE, which subsequentlyhas

23 been renamed the Department ofEnvironmental

24 Protection.

-159-

1 Q What were your responsibilities there at what is now

2 known as the DEP?

3 A My responsibilities were several. One was the

4 implementation of the Wetlands Protection Act

5 regulations that are found at 310 CMRI0,

6 specifically, those regulations that pertain to

7 coastal wetland areas. My work also included

8 delineating for the department the boundaries of

9 these coastal wetland resource areas.

l0 I also reviewed filings that were made to

11 conservation commissions in the coastal communities

12 of Massachusetts, with copies sent to the then DEQE,

13 for the purposes ofdetermining their completeness,

14 and that the proposals contained within what is

15 called a notice ofintent, were adequate to addrcss

16 protectionforpublicinterests.

l7 Q Did you do any work with what is known as the Coastal

18 Zone Managernent Pro$am?

19 A Iworked extensivelywith staff at Coastal Zone

20 Managanent. Part of the work with Coastal Zone

21 Managernent included delineating certain areas, such

22 as beach barrier - I'm sorry, such as barrier beach

23 areas, and also working withCZM to identifyprojects24 that were proposed, their compliance with CZM

-160-

;ll.l: :\r:i::::l



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BSC Group.

And what was next after the HMM Associates?

After Earth Tech, I then joined the staff at Daylor

Consulting Crroup where I was a senior product

manager, a coastal geologist providing expertise in

coastal areas in Massachusetts and New England for

Day'lor Consulting Group. And two years ago, 2008,

Daylor Consulting Group was sold to TekaTech, Inc.,

and I was on the staff at TetraTech up throughJanuary of this year. And I now consult generally

and specifically to TetraTech, lnc. on coastal

maiters.

Do you have a copy with you today ofyour resume or a

curriculum vitae?

I do, I do, and I present it here as exhibit 1.

(End of reading of deposition transcript.)+****

MR. WATSKY: And Your Honor. we had each ofthe exhibits. I'm not sure how you want to deat with

this. Counsel has a full set, obviously fromthe

deposition, and I have extra copies here. I lnow the

witness has one.

To facilitate this, should I provide the

court with two copies of eve44hing now?

-165-

I THE COURT: Assuming that this is going to

2 come in, I guess we should wait to mark that until,

3 you know, if the testimony is admitted, then we will4 mark that exhibit.

5 MR. WATSKY: We'll deal with it at the end.

6 Okay. Very good, Your Honor.

7 Q (Reading) "So, u,hat you've just handed me is, if you

8 could,just describe it?

9 A A four page CV.

t0 MR. WATSKY: I would like to offer this as

ll exhibitnumber l. Doyouwanttoseeit,Kevin?"

12 And it's referring to cotrnsel handling the

13 deposition.

14 MR. BRENNAN: I have no objection to that,

15 Your Honor.

16 THECOURT: Okay.

17 MR. BRENNAN: Your Honor, just a point of18 clarification, my partner called it "his deposition,"

19 so when they're talking about Attomey McAllister, he

20 was my partner.

2l THECOURT: Okay.

22 MR. SEIGENBERG: I don't think this is -

23 we'd like to step out of our role, Your Honor, I24 apologize, but this is an agreed upon exhibit. I

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THE COURT: Right. Okay. And whar exhibit

was this?

MR. SEIGENBERG: It's in the book.

MR. WATSKY: It's in book -

MR. SEIGENBERG: It has to be near the end,

Your Honor. I know that. Maybe 38, Matt? Matt, the

index in the front.

MR. WATSKY: I'm sorry. I'mjustnotfinding it, Your Honor.

There are Sterling Wall photographs.

MR. SEIGENBERG: You know, Your Honor, this

is why witnesses should not speak out of tum. Itwasn't listed here.

THE COURT: No, I don't see it.

MR. WATSKY: I don't think it was.

MR. SEIGENBERG: I'll go back to my role.

MR. WATSKY: I don't believe any of the

exhibits that were olfered and marked in the

deposition are actually part of the official record

yet.

THE COURT: Right. And the deposition is

not admitted yet.

MR. WATSKY: Correct. What we were

-t67 -

I hguring we were going to do is just have him read it2 in, and then the actual document itselfwould not

3 necessarily have to become a part ofthe record,

4 although counsel may ask that we do that.

5 THE COURT: Do you have any objections to

6 having this deposition admitted as testimony?

7 MR BRENNAN: I have read it, Your Honor,

8 and there were objections raised bymypartner. I

9 would say that the transcript could go in in it's

l0 entirety,butbothdirectandcrossgoesin. And

I I that was the deposition that was taken with the

12 understanding that Mr. Wall would not be present.

13 So, even though all objections except to form were

14 reserved, I think they were made on the record.


16 MR. BRENNAN: So, that would allow Your

11 Honor to rule on it as she's readins the

18 transcript -

19 THECOURT: Yes.

20 MR. BRENNAN: - and when you're

2l considering the case?

22 THE COURT: Well, my concern is, you still

23 need to establish the unavailability ofthis.24 MR. WATSKY: Yes. I -

168

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LANDING V BORDEN LIGHT #254067 VoL.II rugtr0I THE COURT: That is where I was going.

2 MR. WATSKY: Why don't I address that now,

3 Your Honor.

4 THECOURT: Yes. Okay.

5 MR. BRENNAN: We discussed that this

6 morning.

7 MR. WATSKY: Yes, we did. And I -

8 MR. BRENNAN: I understand the situation

9 and I'm not going to object to it as long as ifs put

10 on-l l MR. WATSKY: Put on the record.

12 THECOURT: Yes.

13 MR. WATSKY: So, let me explain. Mr. Wall

14 is suffering from throat cancer. He is undergoing an

15 intensive rcgimen of both chemo and radiation

16 therapy. And by the time of this trial, it was

17 expected that the swelling that he would experiorce

I 8 as a result of the radiation would make him unable to

19 speak. And that's why we did the deposition early.

20 THE COURT: I think that satisfies the test

2l for unavailability, so -

22 MR. BRENNAN: Yes. No objection.

23 THE COURT: Okay. So, you will be using

24 the entire deposition? Is that the intent here?

-169-

I MR. WATSKY: What I had anticipated doing,

2 actually, if we were going to read it in was, there

3 were sections I was going to skip past that dealt

4 specifica'lly with details of the DEP's Wetlands

5 Protection Regulations and how things are defined,

6 and the procedures under those regulations. So, I

7 was going to skip, I don't know, thirty pages or

8 something like that.

9 MR. BRENNAN: I think he should put it all

l0 in- YourHonorcancertainly -l l MR. WATSKY: It's up to you, Your Honor.

12 THE COURT: Yes. I think -

13 MR. WATSKY: Ifs whatever is your

14 preference.

15 THE COURT: I think the whole thing should

16 goin. Ifpartofitgoesin,youknow,Ithinkwe

l7 ought to see the whole thing.

18 MR. WATSKY: Okay. Very good, Your Honor

1 9 So, your preference, Your Honor, we'll just put the

20 entire -

2l THE COURT: Right.

22 MR. WATSKY: - deposition transcript, plus

23 the exhibits?

24 THE COURT: And wirh their exhibits ro the

-170_

I trans$ipt. It will be all one -

2 MR. WATSKY: All one document.

3 THE COURT: - all one document. Okay?

4 MR. WATSKY: All right. Very good, Your

5 Honor.

6 MR. SEIGENBERG: Need it be read into the

7 record, Your Honor?

8 THE COURT: The entire deposition?

9 MR. SEIGENBERG: I think the intent is-

l0 can I step down in my role again here, Your Honor?

11 THECOURT: Yes.

12 MR. SEIGENBERG: We went through this.

13 It's difficult enough for me. I can't imagine you

14 having to listen to it.

15 THECOURT: Yes.

16 MR. SEIGENBERG: But our intention, Your

17 Honor, is somewhat to highlight a little bit - we

l8 selected certain portions, hardly the whole

19 deposition.

20 THE COURT: Well, I think you can highlighl

21 those in your post-trial memos, if you wish to bring

22 particular sections to my attention.

23 MR. BRENNAN: I don't even know how to

24 highlightthemifl'mjustreadingthetranscript.

- ltt -

I You can only say what it says.

2 'tHE COURT: Right.

3 MR. BRENNAN: So, howdo you highlight it4 other than reflecting your voice in some manner.

5 THE COURT: No, no. I mean pointing to

6 specific statements made by this witness as being

7 evidence or not being evidence.

8 MR. BRENNAN: By that, you mean in our

9 briefs?

10 THE COURT: In your briefs, yes.11 MR. BRENNAN: Yes. I agree with that, yes.

12 THE COTIRT: So, I think unless there are

13 specific concems that you have about it, introducing

14 the entire testimony, relevancy or anything ofthat

15 sort, his competence to testit/ or whatever, I think

16 we will take it as it comes. And your objections are

17 on the rccord, and lll consider those at the time.

18 And I think wete done.

19 MR. SEIGENBERG: May I step down, Your

20 Honor?

2l THECOURT: Yes.

22 MR. WATSKY: Your Honor, would you prefer

23 the full size - I'll step to the microphone - the

24 full size deposition or the consolidated version?

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NOTES:



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGTIT #254067 Vor,.I rugtrOI THE COURT: I would prefer the full size

2 version. My eyes are not that great.

3 (Exhitrit Number 42, marked in4 evidence; deposition transcript

5 of William Sterling Wall taken

6 10/28/10 with exhibits t_? and

7 Aand B attached)

8 MR. WATSKy: Now, is that 42?

9 THE COURT: Were theretwo copies, or

justt0 one? Canyougetasecondcopytous?

ll MR. SEIGENBERG: Of thedeposition?

12 THE COURT: Of the deposition and the

13 attachments.

14 MR WATSKy: I have the consolidated

15 version. Idon'thaveasecondcopyofthefull

16 size.

17 THECOURT: Okay.

18 MR. SEIGENBERG: Would you like us ro rake

19 the original, the full size? We can bring it20 tomorrow to court with a copy.

21 THE COURT: yes. That would be hetpful22 because as I read. it, I have, you know, a separate

23 copy to mark up ifl need so.

24 STENOGRA?HER: I'll give this back to them

-173-

I for now?

2 THECOURT: yes.

3 STENOGRAPHER: Okay.

4 THE COURT: So, you'll retum that

5 tomorroW?

6 MR. WATSKy: yes. Thank you, your Honor.

7 MR. SEIGENBERG: I was quick to volunreer

8 that when he has to make the copies. With the

9 court's permission, I'd call our next witness.

l0 THECOURT:yes.

I I MR. SEIGENBERG: Charles Schnitzlein.

12 THE COURT: Before we start, I really -

l3 what's your preference about taking any kind ofa14 break? Do you feel you need to before we go to the

l5 next witness, or are you okay?

'16 Okay. Let's go.

17 *****************

18 CFIARLES EUGENE SCHNITZLEIN JR.

lg * * * * * * * * * * * * * * * * *

20 (Witness swom.)

2I DIRECT EXAMINATION

22 @y Mr. Seigenberg:)

23 Q Sir, good aftemoon. Can you please state your full24 name?

-174-

I A Charles Eugene Schnitzlein Junior.

2 Q What's yourresidential address, sir?

3 A 700 Shore Drive, u it202, Fall River, Mass.

4 Q So, you're in building 2; correct?


6 Q Where is building 2 in relation to buildings - units

7 3 and 4 - I'm sorry, buildings 3 and 4.

8 A lt's behind buildings 3 and 4. We,re not on the

9 water side.10 Q Can you tell us briefly your work experience, sir?

1l A I'vebeen in control ofthecorporations through

12 various times in my life.

13 Q Are you currently employed now?

14 A I'm self-employed. I have my own business, somewhat

15 semi-retired.

16 Q And sir, you currentlyhave a position at The

17 landing?

18 A Yes,Ido.

19 Q What's your position at The landing?

20 A Chairpersonoftheboard.

2l Q Howlonghaveyoubeen thechairperson oftheboard

22 ofmanagers ofThe Landing?

23 A I'vebeen chairperson, this time, since April of24 2010.

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I Q Ten. And prior to that, did you serve on the board?

2 A Yes, Idid.

3 Q What years did you serve on the board?

4 A 2005 through the current year.

5 Q Sir, can you tell the court your understanding as to

6 what the responsibility and duties are ofthe board

7 ofmanagers ofThe tanding?

8 A Responsibilityoftheboard is a fiduciaryone, whicn

9 is intended to oversee the common areas, deal with

10 the business ofthe condominium association on behalfI 1 of the unit owners to protect their rights, to make

12 sure that the property is properly maintained, and

13 anything else that may come under our jurisdiction,

14 which would be common areas. Litigation that may be

15 necessary to protect unit owners'rights, or to

16 collect monies,just a general responsibility to take

17 care of -

18 Q Understood. When you use the term, "common areas,,.

19 what does the term, "common areas.mean in The

20 Landing complex?

21 A Commonareas can include thepool area, the club

22 house, hallways, areas where there may be easements.

23 Those are our rights to protect.24 Q In fact, The Landing at South park, is thata

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Phone: (978) 777-5802 FAX: (928) 777-5t03



LAIIDING v BORDEN LIGHT #254067 VoL.III condominiumassociation?

2 A Yes. it is.

3 Q Organized in general laws?

4 A Yes, under 183-

5 Q Sir, when did you move into unit202?

6 A Approximately 1998.

? Q Have you lived in the - have you lived at The

8 Landingsince 1998?


10 Q Are you - have you been ayearround resident at The

11 landing?

12 A Yes,Ihave.

13 Q So Idon't forget,could you please open up the

14 exhibit book to exhibit 33 on the first photograph

15 thatyou'llseethere? Doyouseethatphotograph,

16 sir?

17 A Areweworking forwardorbackwards?

18 MR. SEIGENBERG: May I just sort of - with

19 the witness going on the

20 THE COURT: To help locate 33?

21 A I'm not sure whether this is 33 or this is 33

22 (indicating).

23 Q That would be 33 (indicating).24 A Okay.

-LII-

I Q We stopped at tab -

2 A Okay. That's what I didn't see.

3 Q Understood. Lnoking at the first photograph on

4 exhibit 33 on page l, do you recognize that

5 photograph, sir - strike that.

6 Do you recognize what that photograph

7 depicts?

8 A It depicts -

9 Q Yes or no, sir.

l0 A Yes.

i 1 Q And what does that photograph depict, sir?

12 A Buildings at The landing which here have been marked

13 301 and 401.

14 Q Are you able to tell us which buildings are depicted

15 in that photograph, sir?

l6 A Building 3,building4 and itappears partof

17 building5. I'mnotsure. Itlooksthatway.

l8 Q Well, if you look at it sir, do you see the arrow

19 pointing to unit 401?

20 A Okay. No, it's actually building - I'm sorry, this

21 isthebackofbuilding3. So,itwouldbebuilding

22 3 and a part ofbuilding 4.

23 Q And specifically looking at the first building, which

24 is - it looks like a V shape; correct, sir?

-178-

ru9n0I A Yes, sir.

2 Q Are those buildings designated in any way other than

3 building 3? For example A and B, or anlhing of that

4 nature? lrtmerephrase.

5 This building 3 depicted on this photograph

6 is a V shaped building; conect?

7 A Yes. it is.

8 Q Is there anydistinctionbetween the sizeofthe V of

9 the building?

10 A No.

l1 Q So,that'sbuilding3. Andsir,therestofthe

12 buildings that are along the waterfront, what are the

l3 building numbers?

14 A Itruns frombuilding 3 throughbuilding 11.

15 Q Do you knowhowmany buildings there are along the

16 waterfront? Maybe I can help you out here a little

t7 bit.

18 A Nine buildings along the waterfront.

19 MR. SEIGENBERG: I think we have a phasing

20 plan, Yow Honor, as one ofthe agreed upon exhibits,

2l if I can just locate it. While I'm looking, I1l ask

22 the witness another question.

23 Q Earlier on, you had spoken about the cornmon areas.

24 How do the cofitrnon areas relate to the units

-179-

I themselves? What's cornmon areas in a unit or outside

2 the unit?

3 A Common areas are all the areas of the condominium

4 association from the studs, out. Anything from the

5 studs in, becomes the unit itself.

6 Q Noq before I moveon to thatphasing plan, going

7 back to exhibit 33 once again, what does that

8 photograph depict again, sir?

9 A It depicts The tanding - building 3 and part of

10building 4 at The landing at South Park, and part of

1l the waterfront.

12 Q Noq sir, are you ableto tell fromthis photograph,

13 approxifiiately when this photograph was taken?

14 A Itwastakenpriorto2008.

15 Q How are you able to make that determination, sir?

16 A There's no wall there.

1 7 Q And when you say "there," where are you referring to?

l8 A There's no wall by the bank.

19 MR. SEIGENBERG: Your Honor, at this point

20 in time. I move that document be admitted that is

21 31-l asthenext -asinclusionofexhibit33.

22 THECOURT: Okay. It'sexhibit43? No,

23 I'm sorry. It was part of exhibit 33 to begin with,

24 so thatis in. Right.

- 180-

NOTES





LANDING V BORDEN LIGIIT #254067 Vol.I w9na1 (Exhibit Number 33,page I marked

2 in evidence)

3 Q Now, sir, if you could go to 1,rrur book, exhibit 20.

4 Are you able to locate that, sir?

5 A Yes.

6 Q And thedocumentyou're looking at says, "phase 11,

7 phasing plan for The tanding;" is that cofiect?


9Q

Looking at this photograph, can you please describe

l0 to the court the buildines that are located on The

ll tandingproperty?

12 A As you enter at the south, you have building I and 2

13 in the back. In front ofbuilding 1 and building 2

14 is 3. Then comes 4, 5,6. Building 7, which

15 includestheclubhouse -

I 6 Q Is clubhouse designated on that plan, the'location of

17 it?

18 A Yes, it is.

19 Q And that's rightto the leftofbuilding 7; correct?

20 A That is to the left ofbuilding 7 and the pool behind

2l it.

22 Q Or in ftont of it, depending on which way you're

23 looking at it, right?

24 A Yeah, depending.

-181-

I Thenyouhavebuilding8. Thenalongthe

2 water you have building 10, I 1; 9 is set back next to

3 8, and behind building 10. And then you have

4 building 12, closest to Almond Street at the north

5 exit.

6 Q Now specifically, sir, you had mentioned the

7 southerly entrance. Is there a roadway - is there a

8 public roadway that leads to the southerly entrance

9 to The tanding?

l0 AYes.

l1 Q What street is that?

12 A ThatwouldbeClubStreet.

13 Q Is that, in fact,shown on thephasingplan,sir, on

14 the left-hand side?

15 A Yes,itis.

16 Q When you moved into The l-anding, sir, were these the

17 buildings that existed at The hnding?

18 A Theywere.

l9 Q Also, looking at this phasing plan, towards the top

20 of it there is written, "Mount Hope Bay."

2l A Yes.

22 Q And tha! ofcourse, is what sir?

23 A The water.

24 Q Where is the - never mind. I'm sure the court

-182-

1 knows. Thank you, sir.

2 Actually, one other thing while we have

3 this phasing plan up. There is some - you've been

4 here during the trial. There was some talk about a

5 proposal back in 2006 for the - by the Lunds or the

6 Marina to construct a high-rise. Did you hear that

7 testimony?

8 A Yes, Idid.

9Q

Looking at this phasing plan, can you tell the court

10 approximatelywherethe -basedonyour

I 1 understanding, where the high-rise was proposed?

12 A The high-rise would be to the left ofbuilding 1 I,

13 pretty much next to Almond Street - I mean - I'm

14 sorry, to the right of building 1 I .

15 Q So, ifAlmond Streetextended further, that's where

16 the proposal was for the high-rise building?

17 A Thatiscorrect.

I 8 Q Do you know whose property that currently is, where

19 that high-rise was proposed?

20 A My understanding, it Admiral Realty Trust.

21 Q Now, sir, when you moved into The landing in 1998,

22 can you describe the setting ofThe landing, other

23 than the buildings thatyoujustdescribed?24 A The setting ofThe tanding was sortofarural

-183-

1 setting in Fall River, in a city. It had a view of

2 Mount Hope Bay. There was a marina at the north end,

3 whichreallyhadnotbeenexpanded. Youcouldsee

4 across the river. You could see heading towards part

5 of Newport. You could see Braga Bridge. We had a

6 grass area, a slope that went down to the water.

7 There was a fence that ran the middle ofthe back of

8 the lot.

9 Q What about in the southerly side? Was there any -

10 when you moved in, was there any entrance on the1l southerly side, down to the Marina property, down

12 below?

13 A There was what was really a path. It wasn't really

14 an entrance as we know it today.

15 Q When you say, "an entranceasweknowtoday," you

16 mean what. sir?

l7 A Thatwhichhasbeen excavated since 2008/2009.

18 Q So, you mean the driveway-type way?

19 A Thatiscorrect.

20 Q Sir, I wantyou to, ifyou would, please, in your

2l book, ifyou could look at what's been marked as

22 exhibit 34.

23 For point ofreference, sir, there's these

24 - when you get to 34, these photographs are labeled

-184-

l

NOTES:





LANDING V BORDEN LIGHT.#254067 Vol. I tugtrOI

z

3

5

6

7

8

o

10

11

t2

t5

15

16

t7

l8

l9

20

2l

22

231A

aA

a

on the bottom right-hand side. The first one would

be 34-1, and they continue on numerically,

so - but I'm going to direct you to some photographs

specifically.

If you could go to 34-6, sir, the first

photograph. Were you able to locate that?

Yes.

Can you tell us what that photogaph depicts?

That depicts The landing at South Park.

Oh, I'm sorry. You know, I didn't - you moved in

1998, didn't you? Right, sir?

That is correct.

So, maybe I can move up here a little bit. Sir, ifyou could please go to number - photograph 14. Have

you located that?

Yes, I have.

Can you tell us, sir, what photograph l4 depicts?

It depicts the back of one of the buildings at The

Ianding at South Park, with a slope bank and rocks

that are placed at the water.

Are you able to tell us which building that is

depicted there, or buildings?

Based on the wall that's there -

You're referring to that concrete wall?

r85 -

I A This is a short concrete wall. I think that may be

2 part of building 6. It's not building -

3 Q Is this photograph a fair, - the date on it is 1998.

4 A 1998.

5 MR- SEIGENBERG: Just so the court's aware,

6 that's something that I think Michael Lund has put on

7 these photogaphs. That will come out, Your Honor.

8 Q Is thata fairdepiction of thatareain 1998 when

9 you moved in, sir?

l0 A Yes, it is.1l Q Why don't we go to the next photograph, 15.

12 A Pardon?

13 Q Go to the nextphotograph,number 15. Areyou there,

14 sir?

15 A Yes. Iam.

16 Q Do you krowwhat thephotograph depicts?

17 A That'sbehind building 7, looking upward to The

18 landing property from the Marina.

19 Q And there are someboats located in there?


2l Q Canyouus wherethoseboats arelocated?

22 A Theyte located at what we now know is a sloped

23 easement.

24 Q And then ifyou could, there's 16, sir. Can you tell

- 186 -

us what building - first of all, 1 6, if you look

down to the back right ofthe photograph, do you see

a pier extording out?

Yes, I do.

Do you know what pier that is?

That's King Phillip Yacht Club.

And that's, once again, that's on the southerly

border of The Landing property?

That is correct.

What does this photograph depict, sir?

It depicts building3,4 and I believe a small

portion - no, actually I think it's just building 3

and 4.

Is this photograph a fair and accurate depiction as

the bank looked when you moved in in 1998?

Yes, it is.

At least the bank. as it was located around

building 3,4 and towards 5; correct?

Yes, it is.

Sir, are you aware of what the - what purpose that

bank served for The landing?

The purpose ofthe bank, it's my understanding now,

is that it was there to maintain erosion contro'l in

the case of a high storm, so that the water wouldn't

-187-

I rise to the buildings itself, and it would protect it2 as abarrier.

3 MR. SEIGENBERG: I apologize for the delay.

4 The exhibits were interchanged at the start oftrial.

5 I had to organize them in different ways.

6 Q And ifyou could, sir, if you could tum to number 23

7 in the same exhibit. And can you tell me whai that

8 photograph depicts?

9 A That's looking from Mount Hope Bay at the Marina

10 south, to King Phillip Yacht Club.1l Q Thedateonthisphotograph is 2001.

12 A 2001.

13 Q Is thatafair depiction of The landing and the

14 coastal bank in that area at that time?

15 A Yes, it is.

16 Q Sir, there's been some testimony already in this

l7 trial about various construction activities that have

18 occurredalongthebank. Startingfrom2000,canyou

19 tell us what the first excavation and construction

20 that you can recall in the bank area?

2l A Ibelievetheconstruction thatlfirstcanrecall

22 was sheathing that was being put in - I almost want

23 to think somewhere around 2002/2003. somewhere around

24 that time.

-188-

a

a

A

a

a

I

4A5Q6A7Q8

9A10Q11 A

t2

13

14Q

t)

16A17Q

l8

19A20Qzl

22AL)

1A

NOTES:





LANDING V BORDEN LIGHT #2s4067 VoI.II tugn0I Q That was located near what building, sir?

2 A I want to say somewhere around building 10.

3 Q Which building, sir?

4 A I'm not sure whether it was building 10 or somewhere

5 around building 6. There's two sheathings there, and

6 I wasn't active on the troard at that time, and I -

7 Q Well, why don't we do this. You indicated you became

8 a board member in 2005: correct?

9 A That is correct.l0 Q So, lefs talkaboutthe activities thatoccuffed

l1 whileyouwereatroardmember,iflcould. Firstof

12 all, that you were aware that there was already

13 marked as an exhibit in this matter, a settlement

14 agreement?

15 A Yes,lamaware.

16 Q And that settlement agreement is marked - that

17 settlement agreement is dated March of 2006. Can you

18 tell us what involvement, ifany, the board had

19 relative to that settlement agreement?

20 A We were approached try Michael Lund, represanting

2l Bordar Light Marina.

22 Q When you say "we," you mean the board?

23 A The board, yes. And we were asked for cooperation so

24 that we not oppose when the land was - when their

-189-

I deal was consummatec.

2 Q This is the high-rise again?

3 A That is correct. In other words, that we would not

4 oppose the high-rise construction.

5 Q And in retum for that, what do you understand the -

6 just in general, what would The [-anding receive in

7 return?

8 A The t and'ing would receive property that was behind

9 the wall that was in the north side, or lands that -

I0 landsbehindupper -atthenorthendwouldbe1l tumed over. We would receive $200,000 for

12 development gates. We had previously put a gate in

13 the back end to secure the property, and that would

14 have helped compensate for that security.

I 5 Q Directing your attention, if I could, to exhibit 39,

16 which is the settlement agreement, and specifically

17 to page 4, there's some talk about new retaining

18 walls. Do you see that, sir?

19 A Yes.ldo.

20 Q And specifically, what was your understanding as a

21 board member, as to the tlpe of retaining walls that

22 would be constructed -

23 MR. BRENNAN:Objection, Your Honor.

24 Q - if the settlement went through?

-190-

1 MR. BRENNAN: The document soeaks for

2 itself.

3 THE COURT: I guess it's his understanding

4 as opposed to what does the document say. I'11 allow

) rt.


7 A That they, at some point in time, would construct

8 steel sheathing wall, running at least a part of the

9 length ofthe property.10 Q Was it your understanding that that would - that

11 these type ofwalls wouldn'tbe consfucted until

12 certain triggerevents occured?

13 A Thatiscorrect.

14 Q What was the trigger event in the board's mind or the

15 board'sunderstanding?

16 A My understanding was that the trigger event would

l7 have been basically the shovel going in the ground to

18 start building the high-rise condominium.

19 Q And specifically,theconcrete -strikethat.

20 The retaining walls that were constructed

2l in 2008 and 2009 in front ofbuilding 3 and 4 and 5,

22 what type of construction were they, sir?

23 A Concrete block.

24 Q Obviously, not the sheathing?

-191-

1 A Not sheathing.

2 Q Now sir, also referring to exhibit 39, it talks about

3 a dismissa'l at a certain time of the so-called - of

4 a lawsuit; correct?

5 A Thatiscorrect.

6 Q And that you now understood to be the - this tand

7 Courtaction?

8 A Yes.

9 Q As a member of the board, what was your understanding

10 as to the tand Court litisation back in March of11 20062

12 A Itwas aproperfy dispute, and part of itdealt with

13 visual easement of a cuoola that was on the Marina

14 piopefy.

15 Q Didyouknowthatin2006?

16 A As faras thevisual portion, yes.

l7 Q Right. Were you aware of any - in 2006, what

18 knowledge do you have as a board member as to whether

19 or not the court had a preliminary injunction in

20 effect?

21 A I had none at all.

22 Q Now sir, the land Court litigation, was the board

23represented in that tand Court litigation in 2006?

24 A I don't understand the question.

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!



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING VBORDEN LIGHT #254067 VoL.II tu9n0I Q Did you have a - I'm sorry. I'm talking about this

2 Land Court case, did the board have an attomey who

3 represented the board in the l-and Court, this l-and

4 Court case we're here today on?

5,A' No.

6 Q What's the year that The land - what year, if any,

7 did The landing retain counsel in this l-and Court

8 action?

9 A 2009.10 Q Sir, can you tell us what your state of mind was

I I relative to the dispute involving The landing and the

12 Lunds as you went into 2006 and 2007 and 2008?

13 A My state of mind as a board member was that we would

14 try to live harmoniously with the Matina, and to

15 cooperate rather than end up in a situation like

16 we're in today.

17 Q And specifically, sir, did the settlement agre€ment

18 have any impact as to your view as a board member,

19 relative to the dispute with The tanding?

20 A Idon'tunderstandthequesfion.

21 Q Okay. There's a settlement agreement that was

22 executed in March of 2006. And let's talk about

23 this. Therewasatriggerevent,wastherenot,sir?

24 A Therewas.

I Q What was the trigger event that made this

2 agreement - allowed this agreement to be

3 accomplished?

4 A Again, the shovel in the gromd that would have

5 allowed or started to commence when the building -

6 Q What was your understanding as to the period of fime

7 that the Marina had to obtain their permits to begin

8 construction?

9 A It would expire, I believe, somewhere between March

10 and May of 2009. No, I'm sorry. I think 2010,1 I right.

I 2 Q It was either a three or four year trigger; correct?

13 A That'scorrect.

14 Q So, once again, sir, knowingthattherewas that

15 three year or four year trigger point, what was your

I 6 state of mind as a board membet, relative to disputes

17 thatexisted involving The landing and Borden Light

18 Marina?

19 A I thought most'ly -

20 MR. BRENNAN: Objection, Your Honor. We're

2l talking about the board, not the individual.

22 THE COURT: Correct.

23 THE WITNESS: That's what fm saying.24 MR. BRENNAN: His state of mind -

194 -

1 THE COURT: His state of mind doesn't

2 rcally go to the state of mind of the board.

3 MR. SEIGENBERG: I'm happy to rephrase.

4 THE COURT: You know I'll take it for what

5 it is. I don't see -

6 MR. BRENNAN: To the extent that. what did

7 board members know at the time based on the

8 settlement agreement, I can understand that. But his

9 individual state of mind -10 MR SEIGENBERG: Your Honor, I can tie -

1l I'm sorry, counsel. I can tie this in.

12 THE COURT: Will you rephrase it?

13 MR. SEIGENBERG: Iwill. If Icanhavehim

14 answer that question, I'll tie it in, Your Honor, so

15 it's the board's state of mind.

16 THECOURT: Allright. [rt'sdo -


18 Q You as a board member, sir, what was your state of

19 mind relative to that dispute, given this settlement

20 agreement and the trigger point?

21 A Thatwehad resolved a lotofthings. Therewasn't

22 goingtobealotofconfrontationanymore. Andwe

23 werejust waiting to see whether they built the high-

24 rise.

1 Q Frombeingamemberoftheboard, was thatyour

2 understanding as to the feeling ofthe board at that

3 time. as wel'l?

4 A I think the members of the board at that time would

5 be in agreement with that. Again, thafs only my

6 opinion.

7 Q Butfrombeingontheboard?

8 A From being on the board, yeah, I think the board was

9 looking for harmony at that point.

10 Q So, youasaboardmember -strikethat.I I Based on your understanding, when did the

12 board first become aware ofthe preliminary

13 injunction that was entered in this case?

14 A When Attomey Watsky was hired to do the legal work

15 for us in the 91 hearings.

16 Q Oh, the title or section 1991 [sic]?

17 A tught.

18 Q What year was that, sir?

19 A 2009.

20 Q Now, you described some sheathing wall of

2l construction that was done. I think vou said -

22 A 2002/2003.

23 Q And what was the next area of construction, if any,24 onthe -relativetobuildingofwallsbythe

-196-

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NOTES


Danverg Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254067 Vor.. tugn0I inconsistent with what Borden Light Marina has done

2 over the years?

3 A Over the years, Borden Light Marina's done whatever

4 they pleased without asking the Marina - without

5 asking The Landing at South Park.

6 Q You were not on the board in 2002; conect?

7 A No. I was not.

8 Q You're now aware there were some discussions back rn

92002: correct?

l0 A Yes.ldo.

1l Q Now,ifyou could,sir, could you tum to thelast

12 photograph on exhibit 32?

13 A That would be - it looks like double H: is that

14 correct?

15 Q Yes,right. Whatdoes thatphotographdepic! sir?

1 6 A That photograph depicts the parking lot and the south

17 end prior to the excavation. You can see the

18 boulders that are in place that were blocking what

1 9 was best to say, a very naffow path that you mighl

20 have gotten a Jeep down there, or something like that

21 that was four-wheel drive, but you wouldn't want to

22 take a car down there ifthe boulders were removed.

23 Q So, sir, as a board then, the board had some concems

24 about the work that was being done. What, if-201 -

I anything, did the board do about it?

2 A We investigated. As a board, we've got a

3 responsibility to do things properly, so we can't

4 justjumpanddothings. So,thenweinvestigatedas

5 to what was going on. Mr. Bouffard approached the

6 city an various agancies. We found that there were

? things lacking, like, permits, drawings, engineering,

8 et cet€ra, et cetera. At that point, we also found

9 out that there was something going on with DEP. We

10 found that through a newspaper advertisement. Wel1 contacted Attomey Watsky.

12 When Attomey Watsky went into what was

13 going on, he also unearthed the injunction. And that

14 was the first time we had any knowledge of the

15 injunction.

16 Q Now, you indicated the board made complaints to the

17 various govemmental agencies; correct?

18 A Thatiscorrect.

19 Q What results, ifany, did the board receive by doing

20 that?

21 A Basically, thecityofFall River ignored us.

22 Q And that's when you tumed eventually to counsel?

23 A That's when we tumed to counsel, yes.

24 Q Now, sir, the construction occurred both in 2008 and

-202 -

I 2009; correct?


3 Q Can you describe for us the work that was done in

4 2009, ifyou can recall?

5 A The work in 2009 was, hurry up and get it done. They

6 were working from the north end and from the south

7 end to meet in the middle, sort of like the

8 Califomiarailway. Alotofdirt,alotofdust,a

9 lot ofnoise, and it appeared they were trying to getl0 it done before the storage season arrived, so that

I I they could store boats.

12 Q hr fact, did they - and whatwas theperiod ofthat

13 construction in 2009?

14 A It ended in Novernber,just about Novernber lst,2009,

15 maybe mid-October, 2009.

I 6 Q Is it fair to say that the construction work that has

17 occurred over the years generally is in the fall?

18 A Mostly, yes.

19 Q So, afterthis workwas done in 2009, what, if20 anything, did Borden Light Marina do relative to

21 storage ofboats?

22 A Theyjustbacked boats right up against the wall,

23 mostly indiscriminately. They had raised the level

24 ofthe roadway, put stanchions, or whatever

_203 _

I Mr. Bouffard described them as, placed their boats on

2 them.

3 I'm not even sure how stable that roadway

4 was to put boats on, because I never saw any

5 compacting equipment to go in there. And I know that

6 there have been occasions where they've to realign

7 boats based on the fact that they started to lean.

8 Q Sir, I'd like

9 A Itwassortofhaphazard.

10 Q fd like you to tum, if you would, to exhibit 1, and1 I go to the second page. As you're looking at that,

12 sir, that easement - that document, which is a deed,

13 also provides that it's subject to an easement,

14 including a 20-foot wide easement for the benefit of15 lot I and 2 for construction and maintenance ofa

16 drainage system, and for construction and maintenance

l7 ofa sloped graded erosion and flood protection area.

l8 Now, sir, that 20-foot easement area, do you know

19 where that - where that is located?

20 A Yes. where it was located.

21 Q Good point. And where was it located relative to The

22 landing and Borden Light Marina properties?

23A

Itwas located westof the Marina, s'lopingdown to24 the water.

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Phone: (978) 777-5802 FAX: (978) 777-5803



LAI{DING V BORDEN LIGHT.#254067 Vor,.I ru9tr0I Q And specifically, sir, before - let,s talk about the

2 construction and excavation that occurred in 2008

3 into 2009. You've already described the coastal bank

4 thatwas there that -

5 A Prior to the bank was an avemge coastal bank that

6 had shrubs and grass, vegetation. There was debris

7 occasionally because people thought it was a good

8 place to dump stuff. So, yeah, there would be

9 occasional debris down there. Sometimes there were

l0 tires that were dumped. But it was a coastal bank.

I I Q And from your understanding, sir, what benefit did

12 that bank provide The Landing relative to flood - as

l3 a flood protection barrier?

l4 MR BRENNAN: Objection, Your Honor,

15 qualifications to render that opinion.

16 MR. SEIGENBERG: It's understanding, your

17 Honor.

18 THECOURT: Yes.

19 MR. BRENNAN: It's understandins versus

20 opinion.

2l THE COURT: It's understanding, what he

22 thought it - that's all.

23 Q We've already had expert opinion, but understanding,

24 sir.

-205 -

I A My understanding was that if there was to be any kind

2 of high water, with any kind of wave effect, that the

3 slope ofthis bank would first ofall, probably slow

4 the water down, and actually direct any kind ofwave

5 back towards Mount Hop€ Bay, rather than allowing it6 to come up against the buildings.

7 Q What about for erosion control?

8 A Where it was solid, sloping down from the buildings,

9 it allowed water to flow naturally as drainage coming

l0 offthe property, naturally down into the bay.I I Q So, this sloped graded bank provided protection to

12 The landing; correct?

13 A Thatiscorrect.

14 Q Now, sir, whatuse, ifany, did The Landingmake of15 the easement area for drainage?

16 A In the easementarea, we did havedrainage, a

17 drainage system with PVC pipe that want into catch

18 basins that then went into a master pipe, that went

19 into the Fall River sewer lines.

20 Q Howwere you aware ofthat, sir?

21 A Well, we knew there were grates there. We knew that

22 there were piping coming offthe buitdings, going

23 into that. That was visual and very obvious.

24 Q What impact, if any, on this drainage system, did the

-206 -

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excavation that occurred in 2008 and 2009 result -Damaged portions ofit between buildings 5,4 and 3.

Now, sir, relative to buildings 3, 4 and 5 - strike

that.

I'm going to go tlrough this. Instead ofthat sloped graded bank that existed after the

excavation and construction ofthe wall in 2008 and

2009, what existed after that?

A minimal area at the top of the bank - I mean, thetop of the wa1l. Much of it, where they had actually

cut into the property, they didn't bother to seed;

they didn't bother to do anything with - and

actually while we were getting, and we presently are

getting, is erosion over the wall.

So, you say there's just a little bit on the other

side of the wa1l, you mean, going towards The L:nding

buildings; correct?

That is correct.

And when you say, "just a little bit," you mean the

20-foot wide easement, sir? There's only a little

bit left?

Right. Correct.

What's your understanding as to how much of the

20-foot wide easement was excavated, sir?

-207 _

I A In some places, all of it, plus more. In some cases,

2 they excavated into actually our property, beyond the

3 property line when they put up the wall, even though

4 the wall was within that 2O-foot easemealt. It was

5 basically an invasion ofproperty in a lot ofplaces.

6 Q After this excavation, sir, what use, if any, can The

7 landing make of the 20-foot wide easement in that

8 areanearbuildings 3,4and5?

9 A None.

10 Q Now, prior to the excavation and the construction of1 1 the wall in 2008 and 2009, you had described this

12 graded sloped vegetated area; correct?

13 A Thatisconect.

14 Q What, if anything, did The hnding do to that slope

15 over the years?

16 A We maintained it.

l7 Q How did The landing maintain that graded sloped

18 easement area?

19 A Wehavelandscapers thatwehire on an annualbasis

20 to tend to the property, and we also rnaintain the

2l slope by cutting glass. And it was our understanding

22 that was our responsibility.

23 QAnd you

say it wasyour

understanding it was your24 responsibility. Where did that understanding come

-208-NOTES



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #2s4067 Vol.I rugn0I from?

2 A From Borden Light Marina.

3 Q In what way did Borden Light Marina communicate to

4 you that it was The landing's responsibilig to

5 maintain that easement area?

6 A This is from Michael Lund himself.

7 Q And in what way was it - d'id Michael l,und -

8 A Verbally. It was a verbal communication.

9Q

Do you know approximately whenthat happened?

trO A No, but it's been -

I I Q Has anyone from Borden Light Marina ever attempted to

12 interfere rvith The l-anding's maintenance of that

13 graded sloped easement that you described?

14 A Yes,theyhave.

15 Q In what way?

16 A When litigation began, we were informed by Michael

17 [-und that if we cut the gmss, he was going to have

18 us arrested.

19 Q When you say, "whan litigation -"

20 A Well, it wouldn't mean us arrested - litigation that

21 wete presently here for.

22 Q kt's back up a little bit. This litigation was

23 instituted in 1999. Do you mean the contempt action

24 that was filed -

-209 -

I A Yes.

2 Q -in2009/20102


4 Q Okay. So, after that, there was a conversation with

5 Michael t und.


7 Q What did Mr. Lund tell you?

8 A We were told that we could not cut the grass. He was

9 going to just let it grow to block the view of our

10 residents. Hedidn'tcare. Itwaslike,well,youI I did this. Now, you're going to live with what I'm

12 goingtodotoyou. Andthishasbeenaconstant,

13 constantactionbythe -byMichaelandBordenLight

14 Marina.

15 Q Bywho? Sorqfl

16 A By Michael and Borden Light Marina. It's been a

17 bullying effect forever.

18 Q Well, forever,certainlywhileyou'vebeen onthe

19 board?

20 A Aslongas I'vebeen around,yes.

2l Q Sir, I'd like to go through with you various

22 photographs that I believe you've taken.

23 MR. SEIGENBERG: Again, I think they're 32,

24 Your Honor' Yes' 32'- 2ro

I Q So, ifyou could directyourattantionto exhibits

2 32, we'll go through these with you.

3 Are these the photographs that you toolg

4 sir?

5 A Not looking at al1 of them, I would say yes, probably

6 these are all that I've taken.

7 Q Do you know approximately when these photographs were

8 taken?

9 A These were taken within the last thirty days.l0 Q So let's go through them. Going with A, what does AI I depict, sir?

12 A That's looking north at the wall behind building 11,

13 and -

14 Q Building I 1 would be on the right, top right-hand

15 comer?

16 A Thatiscorrect.

17 Q What's on the backgromd of the - towards the

18 background ofthe -

19 A Background is Braga Bridge, part of the Marina, boats

20 that Borden Light Marina has in storage, and the

21 fence that -

22 Q Now,alsoonthatexhibitA -photogaphA,there's

23 a concrete wall. Do you see that, sir?

24 A Yes.

1 Q Has thatwallbeenthere as longyou'vebeen around,

2 sir?

3 A Yes.

4 Q As long as you've been at The landing, I should say

5 And going to B, sir, what does that photograph

6 depict?

7 A Actually, that's to the right of building I l. That's

8 a wall that runs towards Almond Street.

9 Q There a'lso seems to be a - I guess, a boat there,

10 right?l l A Yeah. There's two boats there.

12 Q Are thoseboats in what's beencalled in this case,

13 as shrink wrapped?

14 A Yes, they are.

15 Q Is thatshrinkwrapfairlyconsistent -

16 A Well, actually, one appears tobe shrinkwrapped.

17 Theotherappearstobecanvas. Itmaybelongtothe

18 boat itself.

19 Q Which is shrink wrapped?

20 A Shrink wrapped is to the right.

21 Q The one with the horrific -

22 A Right.

23 Q- things

sticking out there?24 MR. BRENNAN: Objection, Your Honor, toat1

.: .t:: :::;,.i1{tmrfi{biii.L., t ^ - -^ -'

NOTES


I)anvers, Massachusetts 0l 923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT.#254067 VoI.II rugllot horrific.

2 MR.SEIGENBERG: No,it'sjusta-I'm3 sorry. It was a bad attempt at humor.

4 THE COLJRT: Yes. I don't think we need

5 that. Sfike that, please.

6 MR. SEIGENBERG: It's late in the

7 aftemoon. I apologize, Your Honor.

8 MR. BRENNAN; Unless I can cross examine mv

9 brother.10 MR. SEIGENBERG: That I'd welcome.

11 Q Going to exhibit C - photograph C, sir, what does

12 that depict?

13 A That's the same wall, looking south. That's behind

14 building 11.

I 5 Q And to the right, what's depicted in the right of the

16 photograph?

17 A Thereareboats. There's theclubhouse, there's a

18 tent structure, roadway. Also in that picture,

19 there's a boundary marker towards the left, towards

20 the building, just behind the fence where it sort of

2l V's in.

22 Q lsee. So, that'sthebound -youbelievethatto

23 be the boundary line for the -

24 A That's the boundary line that we had - we paid to

_213 -

t have measured.

2 Q Is it fair to saythat anything to the rightof that

3 boundary line would be the twenty - without

4 anything, but the twenty feet to the right ofthat

5 would be where the easement is located?


7 Q What building is there, do you knou/? Can you tell?

8 Isitl0orll?9 A It's within the areaofbuildings 10 and 11.

l0 Q And also, there is in theright-hand sideoftheI I photograph, I know there's a better one coming up,

12 but there's a building there above that tarped area?

13 A Yes. That'stheirclubhouse.

14 Q I see.

15 A I think that's what they call it.

16 Q And going to D, and that's a - is that a picture of

17 thatbuildingyoujustdescribed?

18 A Yes, it is.

19 Q And the top of thatbuilding, is that the cupola

20 thafs been referred to in this litieation?

21 A Yes. it is.

22 Q These boats that are depicted in D, sir, at least in

23 the foreground ofthepicture,

those two boats, are24 those on the land or offthe land?

al A

They're on the land.

And the boat on the left, what type of material is

that encased in?

It appears to be shrink wrap.

Then go to photograph E. E.

I have it.

What does that depict, sir?

It depicts the end of that concrete wall into an area

where their travel lift is -Where's the travel lift. sir?

The travel lift is to the right and south ofthe tent

afea.

It's that tall metal object?

That is correct.

When you say "travel lift," what do you understand

the use of that travel lift?

A travel lift is to put boats in and out of the water

and bring - during the changes of the seasons.

And this grass here, to the right of the fence, who

naintains that? Who has maintained that?

The landing at South Park.

Has there ever been any objection to The l-anding

maintaining that area?

Only after we filed the contempt.

-215 -

I Q And thafs when the statements were received by

2 Michael Lund that -


4 Q - you testified to? [rt's go to photograph F. And

5 that's generally the same area -

6 A Same area.

7 Q And there's a picnic table there; is that correct?


9 Q Has that picnic table been there - for how long,

l0 sir?ll A Iwouldliketo sayprobably, maybetwoyears. I

12 truthfully - I can't say exactly.

13 Q Do you know who put the picnic table there? Was

14 it - first of all, did The hnding put the picnic

15 table -

16 A No. We assume Borden Light Marina put it there.

l7 Q And this also shows the travel lift alittle closer

18 up; correct?

19 A Thatiscorrect.

20 Q AndphotographG,sir?

2 1 A That's a picture taken behind, I believe, building 8,

22 looking out over the boats that are being stored on

23 land.24 Q And if we go to H.

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Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vor,. rltgn0I A Again, this is depicting, and I can't tell which

2 building this is, but it's somewhere in that area of3 boats being stored on land.

4 Q Now, sir, we have as an exhibit in this case, an

5 elevation plan that talks about the elevation level

6 relative to mean sea level ofall these retaining

7 walls. Do you understand?

8 A Yes,lunderstand.

9 MR. SEIGENBERG: And I just poinr out to

l0 the court that that elevation plan as an exhibit

I I would indicate that all the walls are - that exceed

12 19 MSL, mean sea level. So, I think it's important

13 for the court to understand as we go through these

14 photographs to get views ofheights.

15 Q Now, thattravel lift, sir, is thatkept at The

16 tanding, on The landing property year round?

17 A No, on Borden Light Marina.

l8 Q I mean, Borden Light Marina.

19 A Yes, it is.

20 Q Based on the fact that the retaining wall is at least

2l nineteen feet mean sea level, are you able to

22 determine the approximate height ofthat travel lift23 that's kept on the Marina's property?

24 MR. BRENNAN: Objection, Your Honor. The

I witness is going to measure the heightofthe travel

2 lift. I don't think he's qualified to do that.

3 THE COURT: I don't think it's been

4 established whether he measured it or not.

5 MR. SEIGENBERG: I don't even think lm6 asking to do that, Your Honor. I'm just trying to -

7 I guess to have him state almost the obvious that

8 the -obviouslyvisually,ifyoutestandingonthe

9 wall, and you know the wall's at twenty mean seal0 level, and you see a lift that extends fifteen feet

I I up, then you can know that it's going to be thirty to

12 forty feet at mean sea level.

13 THECOURT: Idon'tlnowifyou'dknowhow

14 many feet above sea level it would be.

15 THE WITNESS: May I answer the question,

16 Your Honor?

17 MR. SEIGENBERG: lrt me rephrase. Can I18 rephrase it, Your Honor.

19 THECOURT: Okay.

20 MR. SEIGENBERG: lrt me rephrase.

2l Q Sir, knowing that the retaining walls are at least

22 nineteen feet MSL, are you able to visually determine

23 that that lift exceeds nineteen MSL??

24 A Yes.

I Q What have you determined visually, sir?

2 A That the lift exceeds nineteen foot MSL.

3 THE COURT: Counsel, do we have a plan that

4 shows the actual dimensions ofthe easement area,

5 showing some of these objects within that - do we

6 know, for example, that that lift is within that

7 easementarea? Hasthatbeenestablished?

8 MR. SEIGENBERG: I think I had asked that9 question. I think the witness had said it's kept on

l0 the Marina's property year round.

I I THE COURT: On the property, but do we know

12 that it's in the easement area? I don't want to have

13 questions about the height ofthings that are outside

14 the easement area.

15 MR. SEIGENBERG: I understand. And that's

16 aimed more at the visual easement. Your Honor.

17 THE COURT: But the visual easement relates

l8 to the easement area; am I correct?

19 MR. SEIGENBERG: No.

20 THE COURT: You're salng it's an unlimited

2l area?

22 MR. SEIGENBERG: And I apologize I didn't

23 bring this to the court's attention. The visual

24 easement encompasses at the minimum, all of lot 3.

-2t9 -

I So, anything that's on lot 3, which is the Marina

2 property, is subject to that nineteen feet visual

3 easement.

4 THE COURT: And you a$ee with that?

5 MR. BRENNAN: Oh, I couldn,t disagree more.

6 THECOURT: Okay.

7 MR. BRENNAN: Your Honor, let me just -

8 THE COURT: So, we've got a problem here.

9 MR. BRENNAN: - clarify the point ofl0 disagreement.

ll THECOURT: Okay.

12 MR.BRENNAN: Idon'tsaythevisual

13 easement encompasses only the twenty feet.

14 THECOURT: Okay.

15 MR. BRENNAN: But the visual easement. bv

16 it's definition, the specific term says "over a

17 portion oflot 3."

18 THECOURT: Okay.

19 MR. BRENNAN: Ifs not over the entire lot.

20 THE COURT: So, there's a dispute -

21 MR BRENNAN: But it's not limited -

22THE

COURT: - over the portion -23 MR. BRENNAN: - to the point -

24 THE COURT: - that it covers.

NOTES:

-218- 220 -

KS COURT REPORTINGl4 Palmer Avenue




LANDING v BORDEN LIGHT #2s4067 VoI.II 1u9n0I MR. BRENNAN: It's due west of The landine2 property.

3 THE COURT: Due west.

4 MR. BRENNAN: The defendants will put in5 evidence ofwhat due west means.

6 THE COURT: Okay. I don't wanr to get into

7 what the evidence will show, but just more, did we

8 have a plan that depicted where these items were in

9 relation to the easement?

10 MR. SEIGENBERG: No. But once again, ifs11

-aimed at the visual easement. They may argue as to

12 the -obviouslywehaveadifferentviewofit,and

13 the portion. It seems to me clear from the

14 documents, the easements and plans that are attached

15 thar -

16 THE COURT: Okay. I see where vou're

l7 coming from.

18 MR. SEIGENBERG: So, that's all.

19 Q So, sir, Ithinkwe'vealreadyestablished this.

20 kt's go to photograph H, sir.

21 A I'm there.

22 Q Great. And whatdoesthatdepic! sir?

23 A Boat storage at Borden Light Marina.24 Q Now, sir, have you determined, once again, relative

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to the wall, does that boat exceed nineteen MSL?

Based on the height of the wall, we have numerous

boats that exceed nineteen foot MSL.

And these boats that are situated, do you know how

long boats have been stored in that area as deDicted

on that photograph?

You mean, how long have they been this year, or -

h general, I mean, how many years back had that area

been used for boat storage?

Probably as long as I'vebeen there, in this

particular area.

Then going to photograph l, sir.

Okay.

What does that depict?

That's looking south towards the end of the Marina.

This is behind - actually this is behind building

I 0, because next becomes building 8. I can see the

pool, and then that would be building 6. So, this is

behind building 8, looking south.

In these first row of boats closest to the wall, are

they within the 20-foot easement, sir?

I'm not - it's difficult to tell, because I'm not

seeing -

Okay.

-222-

I A -firstofall, they'reblackandwhite. Andsecond

2 ofall -

3 Q If you don't know, that would be -4 A - but based on -- my assumption is that they are.

5 Q Maybe this photograph will hetp you, sir, going to

6 photograph J. It looks like on the left-hand side

7 there's --

8 A Oh, yes. This is a property boundary mark that was

9put

inby

Mount Hope. And based on that, yes, they10 would be within the 20-foot easement.

I I Q And thor K, sir?

12 A Northem ord of building 7 with the pool.

13 Q Thefenced area is where the pool is located;

14 correct?

15 A Thatiscorrect. And theboatsthataredirectly

16 behind the pool are definitely within the easement

l7 area.

18 Q Now, sir, in this photograph on theright-hand side,

19 there is aconcrete wall. I think it,s concrete. Do

20 you agree?

2l A Actually it's concrete block, I believe.

22 Q Concrete block. Do you lorow when that was

23 constructed?

24 A Ibelievethatwas 2005/2006.

-tzJ-

I Q That's that area you testified to?

2 A Yes.

3 Q Once again, also,just to theright of the pool area,

4 there's numerous boats there: correct?


6 Q Those boats have been - what season are those boats

7 stored there?

8 A Usually somewhere starting late October until I would

9 say, May, very early June.

10 Q And photograph L?I I A Basically the same.

12 Q And then going to M. There's another wall there, a

13 sectionofwallneartheboats,doyouseethat? Is

14 that the same concrete wall that you testified to

15 earlier, concrete block wall, ifyou know.

16 MR. SEIGENBERG: Once again,

17 geographically, Your Honor,just to situate the

l8 court, these photographs are all taken, starting from

19 the northerly end, going to the southerly ard ofthe

20 property.

2l A Actually, that's more behind building - I believe

22 building 6. And really, thafs not the same as the

23 concreteblockwall. That'sanoldconcretewall

24 that was there prior to 2000.

114

NOTES:


Danvers, Massachusetts 01923Phone: (978)

777-5802 FAX: (978) 777-5503



LANDING v BORDEN LIGHT,#254067 VoL. tu9n0lQz

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And then going to photograph N. What do€s that

depict, sir?

It depicts the boats that are stored against the

wall. And I'm saying here, probably behind building

6, 5, 4 and 3.

Well, okay, going all the way in the back.

Going - go all the way up, yeah.

I see. I think the nextphoto - if you tum to O,

do you see that stake in the middle of the

photograph?

Yes.

What is that stake?

That's a property boundary marker that we had from

surveying the property.

So, anything to the left ofthat would be The landing

property?

That is correct.

And anything !o the right of that, at least twenty

feet, would be the 20-loot wide easement: correct?

Yes. it would.

What building is that boundary stake directly across

from, if you knov/?

Again, I think it's building 6.

Maybe this will - if you go to photo$aph P, and

-225 -

what does that depict, sir?

That again, depicts the boat storage, the troundary

marker, and this may be -

Where the sheathing wall starts, too?

That's where the sheathing wall starts, yeah.

When was that sheathing wall constructed, if you

knou/?

I couldn't be exact on it.

Was it after - was it 2000 beyond?

Ibelieve so, but I can't testify to that.

Sir, based on your understanding, how much room is -

to the sheathing wall to that stake, do you know

approximately how many feet there are?

I can tell you it's less than twenty.

And photograph Q, sir, what does that depict?

That was taken from behind one ofthe buildings, and

depicts present storage ofboats. And this is moving

towards the southerly end, but I can't tell you

whether it's building 5 or building 4, or building -

I know it's not building 3. Based on the fence, Ithink it may be building -

MR. SEIGENBERG: Your Honor, I'm going to

bring the court's attention, if I could at this point

in time, to exhibit 4, the visual easement, and it-226 -

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indicates the following, "that John Lund and Brian

Corey grant to The l-anding at South Park, *nc., the

following perpetual right and easement in connection

with the construction of 140 condominium units on the

premises directly to the west of the premises herein

described, which shall run with the premises as

hereinafter described, for a view unobstructed by any

structure in the area, nineteen feet above mean sea

level on the premisesbeing bound and described as

follows."

And sir, going back to photograph Q, what impact, ifany, what's depicted on this photograph, have on that

visual easement?

He didn't preclude anybody in any of the lower units

from being able to see anything ofthe bay at all.

Well, you can sort of see some of the bay, can't you?

Not if you were in the bui'lding -

Okay.

- looking out your window.

Once again, is this the type ofstorage that occurs,

once again, I think you said from October to -

This is typical.

Ifyoute standing, once again, ifThe tandingproperty goes from southerly to northerly, if youte

1aa

I looking at Mount Hope Bay, what direction are you

2 looking at?

3 A West.

4 Q Sir, if we can go to photograph R.

5 A I'mthere.

6 Q Oh,great. Andwhatdoesthatdepict?

7 A Absolutely no view at all. I have boats in my way.

8 I can't even see the water for the most part.

9 Q And that's what's -

10 A I mean, I might be able to peek through and see'it,I I but that's about it.

12 Q And photograph S, as well, sir?

13 A Thatis correct. Very, verylittleviewofthebay,

14 and that's standing on the land.

15 Q And that's once again, nearthat sheathing wall;

16 correct?

17 A Thatiscorrect.

18 Q And then T, thafs going furthersoutherly; conect,

19 sir?


2l Q Isthere -doyou seeany, onT,anystakeor

22 anything in -

23 A There's a boundary marker, and it's up against the

24 wooden fence.

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NOTES


Danvers. Massachusetts 01923Phone: (978)

777-5802 FAX: (978)?77-5803



LANDING V BORDEN LIGHT.#254067 Vor,.I tltgn01 Q So once again, that wooden fence is right on the

2 boundary line, almost?

3 A Yes. it is.

4 Q And then go to photograph U. Does thatphoto$aph

5 also depict another boundary marker?

6 A Yes, it does. It's very difficult for me to see it7 here, but yes, it does.

8 Q What kind of wall is this, sir?

9 A This is the latest block wall that BML -10 Q Oh, this is approximately 650 feet that was

I I constructed in 2008 and 2009?

12 A Thatiscorrect.

13 Q This is that concrete block wall. Now, on this

14 wall -depictedhereis also somesortofaroadway

15 area. Do you see that?

16 A Yes.

l7 Q Did thatexistprior tothe excavationin 2008 and

18 2009?

19 A Notto thatextent. There mayhavebeen apath, but

20 not that roadway.

21 Q Wereboats stored there on thatlocationpriorto

22 2008?

23 A Not in the manner they are presently.

24 Q And specifically, goingfromthatboundarymark,

-229 -

1 approximately how much room is there from that

2 boundary mark to that concrete block wall in that

3 location?

4 A Maximum ten feet.

5 Q Photo V, sir, *tatdoes thatphotograph depict?

6 A Broken drain behind building 5.

7 Q Doyouknowwherethafslocatedprecisely?

8 A Behind building 5.

9 Q I know, but relative to where the concrete wall is or

l0 the easement area.

I I A It's in the easement area.

12 Q How are you able to determine that?

13 A Itookthepicture.

14 Q Okay. Fairenough.

15 And going to W, sir, is that also another

16 stake in the middle left side ofthe photograph?

17 A Yes.

18 Q Whatelseis depicted on this photograph, sir?

19 A Building3,boatstorage -

20 Q And I know it's difficult with -

21 A -someofthe erosionthat's occurringbased on the

22 excavationbehind - actuallybehind the fence.

23 Q Was that thereprior to the excavation that was done

24 in 2008 and 2009?

-230 -

I A No, that erosion wasn't there.

2 Q Prior to that excavation in 2008 and 2009, what was

3 to the right oftheboundary stake?

4 A Slope, going to the water.

5 Q Which The I-anding maintained?

6 A Yes.

7 Q AndphotographX?

8 A Again, behind building 3, shrink wrapped boats, I'm

9standing there, again, having a visual view ofthe

l0 bay, except a very small corner.

I 1 Q And these boats, they're still in the easement area,

12 sir?

13 A Yes,theyare.

14 Q Once again, knowing the elevation of that wall, what

l5 is the elevation ofthese boats relative to nineteen

16 mean sea level?

17 A They'reaboveit.

18 Q And photograph Y? Is thatan example of one ofthe

19 shrink wrapped boats?

20 A That's an example of one of the shrink wrapped boats,

2l yes.

22 Q And going to Z, sir, what does that depict?

23 A More boat storage.

24 Q And going to double A, another boundary stake?

- Ltt -

I A Yes. there is.

2 Q How much room is there - once again, next to that

3 boundary stake, what is that, sir?

4 A To the left or the right?

5 Q To the left. I'm sorry.

6 A There's a dmin and a Pad.

7 Q Howcloseis thatbuilding to thatboundary stake,

8 sir, approximately?

9 A Approximately five feet.

l0 Q And from the stake, down to the concrete wall that'sI I there?

12 A Maybe six or seven.

13 Q And double B, sir?

14 THE COURT: Counsel, are you planning to go

15 through every one ofthese

16 MR. SEIGENBERG: Im trying to get through

17 before the break.

18 THECOURT: WereallY -l'mafraidwe

19 really have to wrap up now and continue this

20 tomorrow. Okay.

2l MR. SEIGENBERG: That sounds great. Thank

22 you, Your Honor.

23 THE COURT: So, tomorrowmoming we will

24 continue with this direct examination of this

-232 -

']

NOTES:



Phone: (978)777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT.#254067 Vol. I rugflOI witness, and we will move to comolete this witness.

2 Tomorrow moming you will be closing or -

3 MR. SEIGENBERG: The only other issue I

4 have, and I'm hopeful will resolve with counsel, is

5 the building inspector. But Im sure we'll resolve

6 that issue.

7 THECOURT: Okay.

8 MR. BRENNAN: I'm sorry to say this, but

9 for myplanning purposes, is this your last witness?

10 MR. SEIGENBERG: It is. other than the

I I building inspector issue. But I'm sure, I would

12 think that you and I could resolve that.

l3ti

l)

l6

l7

l8

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20

21

22

LJ1n

THE COURT: All right. Thank you.

MR. SEIGENBERG: Thank you, Your Honor.

(Hearing suspended at 4:12 p.m.

Trial to be resumed for Day 3 on

Wednesday, Novernber 10th, 201 0

-233 -

COMMONWEALTH OF MASSACHUSETTS

I, Karen V. Smith, Professional Court Reporter and

Notary Public in and for the Commonwealth of Massachuseus,

do hereby certifu that the foregoing record, Pages I to 233,

inclusive, is a true and accurate hanscript of my system

tapes to the best of my knowledge, skill and ability.

I am not connected by blood or marriage with any ofthe

said parties,nor

interesteddirectly or indirectly in the

matter ln controversy.

IN WITNESS WHEREOF, I have hereunto set my hand and

Notary Seal this 28th day of

V. SMITH, Notary Public

Mv ission expires: l0/18/2013

-234 -

Trial Transcript Day 2

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Transcript of Trial Transcript Day 2