Preview
Filing # 190081845 E-Filed 01/19/2024 09:14:36 AM
Exhibit “A”
In The Matter Of:
Villas at Emerald Lake Homeowners Association, Inc. v.
Royal Oaks Homes, LLC., et al
Felix Martin
Vol. I
June 15, 2021
Legal Realtime Reporting
622 E. Washington Street
Suite 200
Orlando, Florida 32801
Original File 6-15-21.txt
Min-U-Script® with Word Index
Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
Royal Oaks Homes, LLC., et al June 15, 2021
Page 1 Page 3
1 IN THE CIRCUIT COURT, NINTH 1 APPEARANCES CONTINUED:
JUDICIAL CIRCUIT, IN AND FOR
2 OSCEOLA COUNTY, FLORIDA 2 PETER J. KAPSALES, ESQUIRE
OF: MILNE LAW GROUP, P.A.
3 CASE NO.: 2020-CA-002942-ON 3 301 East Pine Street
Suite 525
4 VILLAS AT EMERALD LAKE 4 Orlando, Florida 32801
HOMEOWNERS ASSOCIATION, APPEARING ON BEHALF OF WEATHERMASTER BUILDING
5 INC., a Florida not for 5 PRODUCTS, INC.
profit corporation,
6 6 ANDREW E. HOLWAY, ESQUIRE
Plaintiff, OF: HILL, WARD, HENDERSON
7 v. 7 101 East Kennedy Boulevard
Suite 3700
8 ROYAL OAK HOMES, LLC, a 8 Tampa, Florida 33602
Florida limited liability APPEARING ON BEHALF OF WEINTRAUB INSPECTIONS &
9 company, et al., 9 FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND
INSPECTIONS, INC.
10 Defendants. 10
______________________________/ D. BRYAN HILL, ESQUIRE
11 11 OF: MILBER, MAKRIS, PLOUSADIS & SEIDEN, LLP
AND RELATED CROSS-ACTIONS. 1900 Northwest Corporate Boulevard
12 _______________________________/ 12 East Tower
Suite 440
13 13 Boca Raton, Florida 33431
APPEARING ON BEHALF OF BROWN + BROWN COMPANY
14 VOLUME I 14 ARCHITECTURE, INC.
(PAGES 1 THROUGH 206)
15 15 ERIC J. NETCHER, ESQUIRE
OF: WALKER, REVELS, GRENINGER & NETCHER, PLLC
16 ZOOM DEPOSITION OF: FELIX MARTIN 16 189 South Orange Avenue
Suite 1830
17 DATE TAKEN: June 15, 2021 17 Orlando, Florida 32801
APPEARING ON BEHALF OF ALL GLASS INSTALLATION
18 TIME: 9:00 a.m. to 5:00 p.m. 18 CORP.
19 PLACE: ALL PARTIES ATTENDED VIA ZOOM 19 R. SCOTT ROSS, ESQUIRE
OF: GROELLE & SALMON, P.A.
20 REPORTED BY: TARA K. SLOCUM, RPR, CRR, CSR 20 1715 North Westshore Boulevard
State of California and Notary Suite 230
21 Public State of Florida 21 Tampa, Florida 33607
APPEARING ON BEHALF OF HELBERG ENTERPRISES, LLC
22 22
ANDREW MARSHALL, ESQUIRE
23 23 OF: HAMILTON, PRICE & MARSHALL, P.A.
2400 Manatee Avenue West
24 24 Bradenton, Florida 34205-4934
APPEARING ON BEHALF OF T&M CONSTRUCTION
25 25
Page 2 Page 4
1 A P P E A R A N C E S: 1 APPEARANCES CONTINUED:
2 NICHOLAS B. VARGO, ESQUIRE 2 NATALIE FISCHER, ESQUIRE
ALLANA SMITH, ESQUIRE OF: CONROY SIMBERG
3 OF: BALL JANIK, LLP 3 Two South Orange Avenue
201 East Pine Street Suite 300
4 Suite 600 4 Orlando, Florida 32801
Orlando, Florida 32801 APPEARING ON BEHALF OF ADVANCED WRAPPING AND
5 APPEARING ON BEHALF OF THE PLAINTIFF 5 CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC.
6 MAI M. LE, ESQUIRE 6 RICHARD LEE RUSSO, ESQUIRE
OF: MOODY & GRAF, P.A. OF: WRIGHT, FULFORD, MOOREHEAD & BROWN
7 1101 North Lake Destiny Road 7 505 Maitland Avenue
Suite 200 Suite 1000
8 Maitland, Florida 32751 8 Altamonte Springs, Florida 32701-6306
APPEARING ON BEHALF OF PREMIER PLASTERING OF APPEARING ON BEHALF OF WELL HUNG WINDOWS AND
9 CENTRAL FLORIDA, INC. 9 DOORS, LLC
10 BETH ANN TOBEY, ESQUIRE 10
OF: LAW OFFICES OF THAMIR A.R. KADDOURI, JR., P.A.
11 3220 West Cypress Street 11
Tampa, Florida 33607
12 APPEARING ON BEHALF OF IMPERIAL BUILDING 12
CORPORATION
13 13
MICHAEL RUEL, ESQUIRE
14 OF: LUKS, SANTANIELLO, PETRILLO & COHEN 14
201 South Orange Avenue
15 Suite 400 15
Orlando, Florida 32801
16 APPEARING ON BEHALF OF CASEY HAWKINS GLASS, INC. 16
17 KATE F. GASET, ESQUIRE 17
OF: BUTLER, WEIHMULLER, KATZ, CRAIG, LLP
18 400 North Ashley Drive 18
Suite 2300
19 Tampa, Florida 33602 19
APPEARING ON BEHALF OF DON KING'S CONCRETE, INC.
20 APPEARING ON BEHALF OF LSH ENTERPRISES, INC. 20
21 JAMES MICHAEL WALLS, ESQUIRE 21
OF: CARLTON FIELDS, P.A.
22 4221 West Boy Scout Boulevard 22
Tampa, Florida 33607-5780
23 APPEARING ON BEHALF OF ROYAL OAK HOMES, LLC 23
24 24
25 25
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Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
Royal Oaks Homes, LLC., et al June 15, 2021
Page 5 Page 7
1 C O N T E N T S
1 you. Have you seen this document before?
2 TESTIMONY OF FELIX MARTIN
Direct Examination By Mr. Walls.......................6 2 A Yes.
3 CERTIFICATE OF OATH......................................203
CERTIFICATE..............................................204 3 Q And if we turn to Exhibit A to this
4 ERRATA PAGE..............................................205
NOTIFICATION LETTER......................................206 4 document, it requested a number of documents to be
5 - - - - -
5 provided for your deposition. Did you review this
6 EXHIBITS
6 list of documents?
7 No. 1 - Notice of Deposition...............................6 7 A Yes.
No. 2 - Curriculum Vitae..................................28
8 No. 3 - 4/28/2020 Marcon Engineering Assessment Report....27 8 Q And it's my understanding you have
No. 4 - Marcon Invoice No. 4246...........................29
9 No. 5 - Marcon Invoice No. 4511...........................32 9 provided your job file, which I have. Did you go
No. 6 - 4/2/21 Marcon Engineering Assessment Report.......35
10 No. 7 - Photograph........................................45 10 through this list and make sure that you produced
No. 8 - Marcon Invoice No. 4196...........................60
11 No. 9 - Marcon Invoice No. 4239...........................66 11 everything that you have in connection with this
No. 10- Marcon Construction Defects Investigation
12 Proposal..........................................70 12 list as part of your job file?
No. 11- Marcon Scope of Work by DT Contractor.............77
13 No. 12- Marcon Power Point................................96 13 A Yes.
No. 13- Rain Wand AAMA 501.2-09 Apparatus Calibration
14 Certificate......................................139
No. 14- Photograph.......................................158
14 Q And I am going to go to the next document.
15 15 Do you recognize this document, Mr. Martin?
16 - - - - - 16 A Yes.
17 S T I P U L A T I O N S 17 Q Is this your curriculum vitae?
18 It is hereby agreed and so stipulated by 18 A It is.
and between the parties hereto, through their
19 respective counsel, that the reading and signing of 19 Q And is this an up-to-date version of your
the transcript are expressly RESERVED by the
20 Deponent. 20 curriculum vitae?
21 21 A I think that's the most recent, yes.
22 22 Q I notice there is not a date on it. Do
23 23 you -- how often do you update your CV?
24 24 A Typically about every couple of months.
25 25 Q I want to ask you a few questions about
Page 6 Page 8
1 PROCEEDINGS 1 your CV. I will start with the first page, your
2 * * * * 2 last paragraph on the first page you identify a
3 THE REPORTER: Do you solemnly swear the 3 number of organizations that you are involved with;
4 testimony you are about to give in this 4 do you see that?
5 deposition will be the truth, the whole truth, 5 A Yes.
6 and nothing but the truth? 6 Q And you are a member of the Florida Lath &
7 THE WITNESS: I do. 7 Plaster Bureau?
8 FELIX MARTIN 8 A Yes.
9 having been first duly sworn, testified under oath as 9 Q And when did you become a member of the
10 follows: 10 Florida Lath & Plaster Bureau?
11 DIRECT EXAMINATION 11 A I think that must have been last year
12 BY MR. WALLS: 12 because I just got an invoice from them, like a year
13 Q Good morning, Mr. Martin. 13 ago.
14 Could you please provide your full name 14 Q And what do you have to do to become a
15 and address for the record? 15 member of the Florida Lath & Plaster Bureau?
16 A My name is Felix Martin. My business 16 A I don't know what other qualifications may
17 address is 1278 Glenneyre Street, G-l-e-n-n-e-y-r-e, 17 be, but I think as long as you are a member of the
18 Laguna Beach, California, 92651. 18 industry, if you are a designer or a general
19 MR. WALLS: Mr. Martin, I am going to show you 19 contractor, then you pay the fees, and you are a
20 what we are going to mark as Exhibit No. 1 in this 20 member.
21 deposition. 21 Q And why did you join the Florida Lath &
22 (Exhibit No. 1 was marked for 22 Plaster Bureau?
23 identification.) 23 A Because people kept quoting articles -- or
24 Q And this is the Defendant Royal Oak Homes 24 technical bulletins that were published by the
25 Amended Notice of Taking Deposition Duces Tecum of 25 Florida Plaster Bureau. As you know, the Florida
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1 Plaster Bureau is an industry organization, and so 1 A Yes.
2 it's intended to provide support to the plastering 2 Q And I counted the number of cases here,
3 industry. And so there have been a number of 3 and I counted 39 cases; does that sound right?
4 occasions where people have brought up technical 4 A That could be. I haven't counted it.
5 bulletins that have been published by them, and I 5 Q Do you know how many cases you have
6 really was not aware. I had not had the opportunity 6 provided deposition testimony in the last four
7 to go through their technical bulletins. So I 7 years?
8 joined so I could have access to those technical 8 A No, I don't, but that could be right.
9 bulletins and have the opportunity to review them. 9 Q And in all of these cases in the last four
10 Q And did you obtain bulletins from the 10 years, have you testified for the plaintiff?
11 Florida Lath & Plaster Bureau to review? 11 A In the last four years, I believe that's
12 A I have obtained some, yes. 12 correct, yes.
13 Q And I notice that there weren't any in 13 Q How many of these cases in the last four
14 your job file for this case; is there a reason for 14 years was BallJanik, the plaintiff's law firm?
15 that? 15 A I don't know the specific number, but most
16 A No, not really. Most of the bulletins I 16 of them.
17 have looked at have been published recently this 17 Q The next category you have in your CV is
18 year, for example. So if they are recent, then they 18 most recent court testimony, and I see that that
19 may not have a lot of bearing on a case like this 19 last date of testimony is 2016. Have you had any
20 one that was built a number of years ago. 20 testimony in court since 2016?
21 Q Have you ever written a bulletin for the 21 A No, I have not.
22 Florida Lath & Plaster Bureau? 22 If I could just go back for a second to
23 A No. 23 the prior list, I see just right above it, you can
24 Q Have you ever written to them to disagree 24 see a case named the Osceola Brownstones; that
25 with a bulletin that they provided? 25 was -- I gave testimony in that for the defense, but
Page 10 Page 12
1 A No. 1 that was actually over four years ago.
2 Q Do you hold any position with the Florida 2 Q Is that the only one you testified for the
3 Lath & Plaster bureau? 3 defense in that list?
4 A Other than a membership, that's all. 4 A Yes.
5 Q Do they hold any meetings? 5 Q What was the nature of that case?
6 A Not that I have been invited to or am 6 A The nature of that case involved, I was
7 aware of. 7 deposed on -- for opinions I had offered on behalf
8 Q Do you consider the bulletins that you 8 of the framer.
9 have reviewed to be an authoritative source in the 9 Q The next category you have in your CV is
10 stucco industry? 10 current cases (active), and I counted the number of
11 A I think the authoritative sources that for 11 cases here, and I counted 78; does that sound about
12 me would be the requirements of the Florida Building 12 right?
13 Codes. The bulletins issued by this organization 13 A That does.
14 are intended to address, essentially, the standard 14 Q And if you could tell me, what distinction
15 or practice. So there may be information that I 15 are you drawing between current cases active and the
16 could agree with or disagree with, depending on how 16 prior category of deposition; is it these cases, the
17 it fares against the requirements of the Florida 17 active ones you are saying you haven't been deposed
18 Building Codes. 18 in?
19 Q Have you noticed in the bulletins you read 19 A The active cases I may have been deposed.
20 any inconsistencies between the bulletins and the 20 They may be duplicated under the deposition listing,
21 Florida Building Code? 21 but the active cases also include cases where I have
22 A I can't say that I have. 22 not yet been deposed.
23 Q I want to move on to the next category is 23 Q Is there an overlap between the current
24 recent deposition testimony the last four years; do 24 cases active and the prior category of deposition
25 you see that? 25 testimony?
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Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
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1 A Yes, there may be. There may be active 1 engineer in the past four to eight years has
2 cases that have not settled or reached any sort of 2 primarily been connected with litigation work?
3 conclusion yet where I have been deposed. 3 A Most of the work would be, yes, in support
4 Q When you use the term "active," what do 4 of litigation. There is a -- there is a percentage
5 you mean by active? How long have these cases been 5 of our work that has to do with repairs of damaged
6 pending? 6 buildings; that's probably about 20 percent of our
7 A I don't understand the first part of the 7 gross billings.
8 question. But the second part of the question, what 8 Q And the other 80 percent would be
9 I call active are cases we are working on as of 9 litigation connected?
10 right now; that's what it means to be active. Once 10 A Yes, that's pretty much the breakdown.
11 they reach a conclusion through settlement or 11 That's an estimate, but, yes.
12 through whatever else may happen to them, then they 12 Q For the repair work that you have been
13 become inactive because we don't work on them 13 involved in, has that repair work flowed from
14 anymore. 14 litigation where you served as an expert?
15 Q So all the 78 cases in the active, are 15 A Some of it. Not all of it. Sometimes we
16 those all for the plaintiff? 16 get involved in the repair work for communities that
17 A Yes, I believe that's correct. 17 have not, for some reason or another, been involved
18 Q And how many of these 78 cases, active 18 in litigation.
19 cases are with BallJanik? 19 Q And how often is that the case?
20 A I don't have an exact number, but most of 20 A For the repair work, I would say it's
21 them. 21 probably about half the time. The other half is for
22 Q And then you have another category in your 22 cases that we were involved in litigation.
23 CV -- actually I will skip conversion and 23 Q In the litigation cases that we went
24 first-party insurance claims. You have a list of 24 through in your CV, have you performed destructive
25 past cases (last eight years.) And by past cases, 25 testing in those cases, or directed to perform
Page 14 Page 16
1 do you mean that these cases have been resolved? 1 destructive testing?
2 A Yes, these are cases that are no longer 2 A Typically the ones that are listed under
3 active. 3 the active list would be cases that we have done
4 Q I counted the cases here, and there is 41 4 destructive testing on.
5 cases; does that sound about right? 5 Q Are you excluding the past cases from that
6 A Again, I haven't really counted them, but 6 list?
7 that could be right. 7 A No, no, the past cases would be cases that
8 Q And were all these 41 past cases for the 8 we did destructive testing on, most of them.
9 plaintiff? 9 Q Why do you perform destructive testing in
10 A I think all except for the third one 10 those cases?
11 there, Barker v. CalAmerican Water, and I think I 11 A For investigation of an existing building,
12 have listed the Osceola Brownstones in that list, as 12 and to be able to identify what the problems are
13 well. 13 with a specific building, we have to sometimes cut
14 Q Do you see any others that would be for 14 into the building, much as a doctor would have to
15 the defendant in this list? 15 cut into a patient to be able to determine what
16 A I don't. 16 is -- what is really going on in their bodies.
17 Q And what was the nature of the Barker 17 Q Well, given your analogy, do you consider
18 case? 18 destructive testing a last resort, or something that
19 A That was a case involving a foundation 19 is a tool that you use all the time in your forensic
20 settlement in a single-family home. 20 investigation?
21 Q And of these 41 past cases, how many were 21 A It's a tool that we use most of the time.
22 for BallJanik? 22 You can get a certain amount of information from a
23 A I don't have the exact number, but most of 23 visual inspection, but you can't get all of it. We
24 them. 24 wouldn't be able to get a full idea to the extent of
25 Q Is it fair to say that your work as an 25 damage. You can only see the top layer of the
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Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
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1 building envelope. You can't assist -- you can't 1 ASCE Congress on Forensic Engineering, and it
2 assess the structural construction of a project 2 discussed the methodology that was used to
3 because they are usually -- the structural 3 investigate the Hamptons at Metrowest forensically.
4 components are typically hidden by the architectural 4 And the second article was an article that
5 finishes. So most of the time to get a view at 5 was presented at the ASCE/SCI Structures Congress in
6 them, we have to, essentially, cut open the building 6 presenting how we had developed the repairs for the
7 to expose what is underneath. 7 Hamptons at Metrowest once the case had concluded,
8 Q In the past when you conducted destructive 8 so that's an instance of a case -- it was a fairly
9 testing, how many times were other experts from the 9 large case, and it was pretty involved -- that was
10 general contractor or subcontractors present for the 10 an instance where that case generated two separate
11 destructive testing? 11 articles for two separate organizations, one dealing
12 A Sometimes, not always. 12 with the methodology that we followed with regards
13 Q Do you have any objection to other experts 13 to the testing, and the other one addressing how we
14 being present when you conducted destructive 14 came up with the repairs.
15 testing? 15 Q Can we get copies of those articles,
16 A No, I like having other experts present. 16 please?
17 I think they see the same things that we see. But 17 A Sure. You want copies of all the articles
18 typically most of the cases we are involved with, 18 on the list?
19 there is an initial round of destructive testing by 19 Q No, just those two.
20 the plaintiff, and then opportunities are given to 20 When you submitted those, were they peer
21 the defense to come back and do their own 21 reviewed by ASCE?
22 destructive testing in order to be able to confirm 22 A No, these are not held to a strict peer
23 the findings from the plaintiff's destructive 23 review. They were approved by ASCE once they are
24 testing. 24 submitted, but I would not call that a peer review.
25 Q If that occurred, and some other expert 25 Q What kind of review was it?
Page 18 Page 20
1 wanted to perform destructive testing, would you 1 A They would review to see if the subject
2 want to be present for that destructive testing? 2 matter fits in with what the organization is all
3 A In a general sense, yes, I would. I don't 3 about, so you don't want to submit something that
4 have to be because my opinions are based on what I 4 the organization is not focused on.
5 have seen already. But the instances where the 5 So, for example, the article on the
6 defense actually performs their own destructive 6 methodology followed for the investigation of the
7 testing are very rare because typically experts 7 Hamptons at Metrowest was specifically introduced to
8 don't want to do discovery for the plaintiff. So 8 the ASCE forensics group, so they reviewed it to see
9 typically what we see and what we have recorded 9 it met with what they thought their membership would
10 would be the same type of thing that they would see 10 be interested in. And from that basis, the article
11 and they would record. So because of that, if we 11 was either accepted or rejected. In this case, it
12 have allegations in our report of defective 12 was accepted.
13 construction, they don't want to expand that 13 Same thing with the case study for the
14 database for the plaintiff. 14 repairs; that was submitted to the ASCE, SCI for
15 Q And while we are on your CV, I see that 15 review, and, once again, it is reviewed to see if it
16 you have identified a number of articles published; 16 meets with something that the membership would be
17 do you see that? 17 interested in seeing. And based on their review, it
18 A I do. 18 was accepted. So it's not an automatic acceptance.
19 Q Have you ever published an article based 19 It has to go through a review process, but I
20 on your analysis that you performed in one of these 20 wouldn't say it is as involved as a peer review
21 cases for peer review? 21 process.
22 A You see from the list there are -- there 22 It's a big deal to have an article
23 were two publications that went back to a case that 23 accepted to the ASCE/SCI Structures Congress because
24 was my first case in Florida, the Hamptons at 24 they have a lot of articles that are submitted every
25 Metrowest. The first article was published for the 25 year, and there is only a small number that are
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1 actually accepted for publication in the proceedings 1 contractor, right?
2 and for presentation at the Congress. 2 A That's correct. I have never held a
3 Q I want to go back and finish up your CV 3 general contractor license anywhere.
4 with a couple questions about your background. 4 Q And certainly that would be true in
5 You are an engineer, correct? 5 Florida?
6 A Yes. 6 A Correct.
7 Q And you hold a Florida license, I see that 7 Q And you never worked as a general
8 somewhere in here? 8 contractor in the State of Florida, correct?
9 A It's at the bottom. 9 A That's correct.
10 Q How long have you held your Florida 10 Q It's fair to say you have never managed or
11 license? 11 supervised construction work on any Florida
12 A I am going to say about 12 years. 12 construction project?
13 Q And based on your CV, it's fair to say 13 A Not as a general contractor. We obviously
14 that you are not a general contractor, right? 14 have managed some of the repair projects in terms of
15 A That's correct, I am not a general 15 coming out and doing inspections with compliance
16 contractor. 16 with the plans and specifications that we produced.
17 Q And you have had no training or education 17 Q On those repair projects, was there a
18 as a general contractor? 18 project manager or supervisor there to observe and
19 A I have had no training as a general 19 supervise the construction?
20 contractor, other than I have built a number of 20 A Yes.
21 homes for myself, and I acted as the owner/builder 21 Q Was that person licensed?
22 on those, but that would be what I would call the 22 A As a general contractor?
23 extent of my experience as a general contractor. 23 Q Yes.
24 Q When you built your own home, did you go 24 A I don't know that. Obviously they were
25 take courses on general contracting, or just relied 25 working for a general contractor firm that had
Page 22 Page 24
1 on your engineering experience? 1 somebody licensed as a general contractor, but
2 A I relied on the experience that I gained 2 whether the supervisor that was running the project
3 over the years. I mean, obviously I have been in 3 was also licensed as a general contractor, I did not
4 practice since 1977. And through that practice, I 4 ask.
5 have become aware of the process of what general 5 Q That's a pretty common practice in the
6 contractors go through. I have also acquired some 6 State of Florida?
7 general architectural knowledge, again, through my 7 A What is that?
8 working relationship with architects. And so using 8 Q For the licensed general contractor to
9 both of those, I designed my first home, and then I 9 have supervisors who may not hold licenses as a
10 acted as an owner/builder on it. 10 general contractor.
11 I built a second home where I hired an 11 A I don't know that. It is actually one way
12 architect to do the architectural portion. I did 12 or the other. It is just something that I don't
13 the structural portion, and I acted as the 13 have a practice of doing, going on to a job site,
14 owner/builder. 14 meeting the superintendent, and then asking him to
15 I built another home in Las Vegas, Nevada, 15 produce his general contractor's license.
16 and I also built an office building in Las Vegas, 16 Q It is fair to say when you expressed in
17 Nevada. 17 your report that building contractors knew or should
18 And then I am currently in the process of 18 have known of the defective construction
19 remodeling my current home, and I am acting as 19 installation work, that's not based on any
20 owner/builder on that. 20 experience, training or actual work as a general
21 Q Your current home in California? 21 contractor, correct?
22 A Yes, the one that I am in. 22 A No, but that's based on my knowledge of
23 You may hear some hammering as soon as 23 the Building Code and the fact that the general
24 they start working. 24 contractor is the one that pulls the permit, and is
25 Q You don't hold a license as a general 25 licensed. And under that license, they are expected
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1 to know the requirements of the Building Code. 1 well?
2 Q I think you answered my question when I 2 A I don't think the report itself is the
3 asked correct, and you said no, and you said your 3 only source of my opinions. Obviously I am a
4 basis is the Building Code. I just want to make 4 designated expert, and I am going to be offering
5 clear when you express those opinions, that's what 5 opinions today and tomorrow, as well as at trial.
6 you are expressing them on is your knowledge of the 6 The report forms the basis for summarizing what my
7 Code, not your knowledge how a general contractor in 7 opinions are, and the report contains everything
8 the State of Florida trains or supervises work in 8 that I think should be covered as of today, but
9 the State of Florida? 9 obviously there are opportunities to expand on the
10 A I think my answer went a little bit beyond 10 opinions that are offered in the report. Otherwise,
11 that in terms of the expectation that a licensed 11 you wouldn't be asking me questions today. You
12 general contractor who holds a building permit would 12 would just read the report, and that would be that.
13 be expected to know the requirements of the Code. 13 So my understanding of my reason for being
14 Q And you are basing that on your knowledge 14 here today is that you are going to ask me questions
15 of the requirements of the Code and licensing 15 about the opinions that I have offered in that
16 statutes in the State of Florida, not experience or 16 report, the report dated April 2nd, 2021, and then
17 training as a contractor in Florida, correct? 17 I am going to be offering explanations and
18 A That's correct. I am not a general 18 expansions of the opinions that are offered in that
19 contractor. I am not licensed as a general 19 report.
20 contractor, but my expectation would be as I have 20 MR. WALLS: You gave me the date of your report
21 stated. 21 as April 2nd, 2021. My first question, Mr. Martin,
22 Q It is my understanding you plan to provide 22 is: I will show you what we marked as Exhibit No. 3.
23 opinions in this case; is that correct? 23 (Exhibit No. 3 was marked for
24 A Yes. 24 identification.)
25 Q And what are your opinions? 25 Q This is a report dated April 28th, 2020;
Page 26 Page 28
1 A Well, in a summarized basis, my opinions 1 do you see that?
2 are that the construction at this project was 2 A I do.
3 deficient in that it had a number of systemic 3 Q And did you prepare this report?
4 violations of the minimum requirements of the Code, 4 A Yes.
5 and/or the specifications from the individual 5 (Discussion off the record.)
6 manufacturer's installation instructions or 6 MR. WALLS: I would like to mark as Exhibit
7 instructions from the project plans, approved 7 No. 2, Mr. Martin's CV, I apologize.
8 project plans. 8 (Exhibit No. 2 was marked for
9 Q Is that it; is that the only opinion you 9 identification.)
10 are giving? 10 Q I have an appendices that is 999 pages
11 A Its a summary of the opinions. I am sure 11 long?
12 you will be asking questions today and tomorrow, and 12 A Yes, that's correct.
13 I can expand more on those opinions. 13 Q This is not a true and accurate copy of
14 Q Can you list them for me, or are you going 14 your final expert report; is that right?
15 to turn to a report? 15 A That report was superceded by the
16 A We can turn to the report; that's a good 16 April 2nd report.
17 place to start. 17 Q And by April 2nd, you mean April 2nd,
18 Q And would the same be true for the reasons 18 2021?
19 for your opinions; would we turn to your report to 19 A Correct.
20 obtain that? 20 Q When you prepared this report on April 28,
21 A I'm sorry, could you clarify that? 21 2020, did you believe it was the final expert
22 Q Yes. You gave me opinions, a summary of 22 report?
23 your opinions, and you talked about turning to your 23 A No, just in the same way I don't know if
24 report to get the opinions. Would we turn to the 24 the April 2nd, 2021, report will be the final
25 report to get the reasons for your opinions, as 25 report.
Min-U-Script® Legal Realtime Reporting (7) Pages 25 - 28
Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
Royal Oaks Homes, LLC., et al June 15, 2021
Page 29 Page 31
1 Q Do you understand you are here today to 1 additional testing, both by the plaintiff or the
2 provide your final opinions and reasons for your 2 defense. I knew that there was a possibility of,
3 opinions pursuant to the Case Management Order in 3 like I said, rebuttal reports. I knew that I would
4 this case? 4 probably be deposed in the case. And during that
5 A I understand that I am going to be 5 deposition, there were opportunities for me to
6 offering my opinions as of today. That opinion is 6 review or revise some of my opinions, so there is
7 subject to revisions pending testimony from other 7 no -- there is no real understanding on my part that
8 experts, rebuttal reports and any other information 8 the report that I published on 4/28/2020, would be
9 that may come up between now and the time of trial. 9 the final opinion that I would be offering.
10 Q Fair enough. As you sit here today, you 10 Q What changed between April 28, 2020, and
11 believe your opinions and reasons for them are 11 April 2, 2021?
12 final? 12 A I don't have a specific listing of what
13 A I do. But again, we are going to have 13 changed between those two dates, other than the
14 conversations today and tomorrow, and you are going 14 reports were updated.
15 to be asking me questions, and during the course of 15 Q Did you visit the site of the townhomes
16 the questioning, I may see something, or change my 16 between April 28, 2020 and April 2, 2021?
17 opinions with regards to something, depending on 17 A No, I did not visit the site. The
18 what you are going to bring my attention to. 18 updating of the report was just more by,
19 MR. WALLS: I am going to go to another document 19 essentially, bringing up-to-date, you know, the
20 here for a second that I going to mark. It is invoice 20 findings of the report. There was no additional
21 No. 4246 from Marcon Forensics to BallJanik. 21 testing that was done.
22 (Exhibit No. 4 was marked for 22 Q Just to be complete, I think I asked you
23 identification.) 23 if you visited the site between April 28, 2020, and
24 Q Do you recognize this document, 24 April 2, 2021; was anyone with Marcon Forensics
25 Mr. Martin? 25 called out and sent to the site between those two
Page 30 Page 32
1 A I do. 1 dates?
2 Q And is this a true and correct copy of 2 A I don't believe so.
3 your invoice No. 4246 dated 4/30/2020, to BallJanik 3 Q Did you receive any additional information
4 for this case? 4 from anyone regarding the Emerald Lake Townhomes
5 A Yes. 5 between April 28, 2020, and April 2, 2021?
6 Q I note on this the quantity is one, and 6 A No, I don't think we received additional
7 the date is 4/28/2020, correct? 7 information. I know we had a conference call with
8 A Yes. 8 Sean Heaney to discuss the repair recommendations
9 Q That's the same day as the report we 9 that were made in my report. I think, like I said,
10 marked as Exhibit No. 3? 10 the report was just updated based on, you know,
11 A Yes. 11 essentially, what we had learned between one year
12 Q And this says it was a flat fee for 12 and the other.
13 preparing the report, balance of flat fee $58,000, 13 MR. WALLS: Since you mentioned this, I want to
14 and then it has a breakdown of how you arrived at 14 mark Exhibit No. 5, an invoice No. 4511 from Marcon
15 the balance of that flat fee; is that correct? 15 Forensics to BallJanik regarding the Villas at Emerald
16 A That's correct. 16 Lake.
17 Q And when you billed this at flat fee on 17 (Exhibit No. 5 was marked for
18 4/28/2020, did you believe this report was final? 18 identification.)
19 A N
Preview
Filing # 190081845 E-Filed 01/19/2024 09:14:36 AM Exhibit “A” In The Matter Of: Villas at Emerald Lake Homeowners Association, Inc. v. Royal Oaks Homes, LLC., et al Felix Martin Vol. I June 15, 2021 Legal Realtime Reporting 622 E. Washington Street Suite 200 Orlando, Florida 32801 Original File 6-15-21.txt Min-U-Script® with Word Index Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 1 Page 3 1 IN THE CIRCUIT COURT, NINTH 1 APPEARANCES CONTINUED: JUDICIAL CIRCUIT, IN AND FOR 2 OSCEOLA COUNTY, FLORIDA 2 PETER J. KAPSALES, ESQUIRE OF: MILNE LAW GROUP, P.A. 3 CASE NO.: 2020-CA-002942-ON 3 301 East Pine Street Suite 525 4 VILLAS AT EMERALD LAKE 4 Orlando, Florida 32801 HOMEOWNERS ASSOCIATION, APPEARING ON BEHALF OF WEATHERMASTER BUILDING 5 INC., a Florida not for 5 PRODUCTS, INC. profit corporation, 6 6 ANDREW E. HOLWAY, ESQUIRE Plaintiff, OF: HILL, WARD, HENDERSON 7 v. 7 101 East Kennedy Boulevard Suite 3700 8 ROYAL OAK HOMES, LLC, a 8 Tampa, Florida 33602 Florida limited liability APPEARING ON BEHALF OF WEINTRAUB INSPECTIONS & 9 company, et al., 9 FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. 10 Defendants. 10 ______________________________/ D. BRYAN HILL, ESQUIRE 11 11 OF: MILBER, MAKRIS, PLOUSADIS & SEIDEN, LLP AND RELATED CROSS-ACTIONS. 1900 Northwest Corporate Boulevard 12 _______________________________/ 12 East Tower Suite 440 13 13 Boca Raton, Florida 33431 APPEARING ON BEHALF OF BROWN + BROWN COMPANY 14 VOLUME I 14 ARCHITECTURE, INC. (PAGES 1 THROUGH 206) 15 15 ERIC J. NETCHER, ESQUIRE OF: WALKER, REVELS, GRENINGER & NETCHER, PLLC 16 ZOOM DEPOSITION OF: FELIX MARTIN 16 189 South Orange Avenue Suite 1830 17 DATE TAKEN: June 15, 2021 17 Orlando, Florida 32801 APPEARING ON BEHALF OF ALL GLASS INSTALLATION 18 TIME: 9:00 a.m. to 5:00 p.m. 18 CORP. 19 PLACE: ALL PARTIES ATTENDED VIA ZOOM 19 R. SCOTT ROSS, ESQUIRE OF: GROELLE & SALMON, P.A. 20 REPORTED BY: TARA K. SLOCUM, RPR, CRR, CSR 20 1715 North Westshore Boulevard State of California and Notary Suite 230 21 Public State of Florida 21 Tampa, Florida 33607 APPEARING ON BEHALF OF HELBERG ENTERPRISES, LLC 22 22 ANDREW MARSHALL, ESQUIRE 23 23 OF: HAMILTON, PRICE & MARSHALL, P.A. 2400 Manatee Avenue West 24 24 Bradenton, Florida 34205-4934 APPEARING ON BEHALF OF T&M CONSTRUCTION 25 25 Page 2 Page 4 1 A P P E A R A N C E S: 1 APPEARANCES CONTINUED: 2 NICHOLAS B. VARGO, ESQUIRE 2 NATALIE FISCHER, ESQUIRE ALLANA SMITH, ESQUIRE OF: CONROY SIMBERG 3 OF: BALL JANIK, LLP 3 Two South Orange Avenue 201 East Pine Street Suite 300 4 Suite 600 4 Orlando, Florida 32801 Orlando, Florida 32801 APPEARING ON BEHALF OF ADVANCED WRAPPING AND 5 APPEARING ON BEHALF OF THE PLAINTIFF 5 CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC. 6 MAI M. LE, ESQUIRE 6 RICHARD LEE RUSSO, ESQUIRE OF: MOODY & GRAF, P.A. OF: WRIGHT, FULFORD, MOOREHEAD & BROWN 7 1101 North Lake Destiny Road 7 505 Maitland Avenue Suite 200 Suite 1000 8 Maitland, Florida 32751 8 Altamonte Springs, Florida 32701-6306 APPEARING ON BEHALF OF PREMIER PLASTERING OF APPEARING ON BEHALF OF WELL HUNG WINDOWS AND 9 CENTRAL FLORIDA, INC. 9 DOORS, LLC 10 BETH ANN TOBEY, ESQUIRE 10 OF: LAW OFFICES OF THAMIR A.R. KADDOURI, JR., P.A. 11 3220 West Cypress Street 11 Tampa, Florida 33607 12 APPEARING ON BEHALF OF IMPERIAL BUILDING 12 CORPORATION 13 13 MICHAEL RUEL, ESQUIRE 14 OF: LUKS, SANTANIELLO, PETRILLO & COHEN 14 201 South Orange Avenue 15 Suite 400 15 Orlando, Florida 32801 16 APPEARING ON BEHALF OF CASEY HAWKINS GLASS, INC. 16 17 KATE F. GASET, ESQUIRE 17 OF: BUTLER, WEIHMULLER, KATZ, CRAIG, LLP 18 400 North Ashley Drive 18 Suite 2300 19 Tampa, Florida 33602 19 APPEARING ON BEHALF OF DON KING'S CONCRETE, INC. 20 APPEARING ON BEHALF OF LSH ENTERPRISES, INC. 20 21 JAMES MICHAEL WALLS, ESQUIRE 21 OF: CARLTON FIELDS, P.A. 22 4221 West Boy Scout Boulevard 22 Tampa, Florida 33607-5780 23 APPEARING ON BEHALF OF ROYAL OAK HOMES, LLC 23 24 24 25 25 Min-U-Script® Legal Realtime Reporting (1) Pages 1 - 4 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 5 Page 7 1 C O N T E N T S 1 you. Have you seen this document before? 2 TESTIMONY OF FELIX MARTIN Direct Examination By Mr. Walls.......................6 2 A Yes. 3 CERTIFICATE OF OATH......................................203 CERTIFICATE..............................................204 3 Q And if we turn to Exhibit A to this 4 ERRATA PAGE..............................................205 NOTIFICATION LETTER......................................206 4 document, it requested a number of documents to be 5 - - - - - 5 provided for your deposition. Did you review this 6 EXHIBITS 6 list of documents? 7 No. 1 - Notice of Deposition...............................6 7 A Yes. No. 2 - Curriculum Vitae..................................28 8 No. 3 - 4/28/2020 Marcon Engineering Assessment Report....27 8 Q And it's my understanding you have No. 4 - Marcon Invoice No. 4246...........................29 9 No. 5 - Marcon Invoice No. 4511...........................32 9 provided your job file, which I have. Did you go No. 6 - 4/2/21 Marcon Engineering Assessment Report.......35 10 No. 7 - Photograph........................................45 10 through this list and make sure that you produced No. 8 - Marcon Invoice No. 4196...........................60 11 No. 9 - Marcon Invoice No. 4239...........................66 11 everything that you have in connection with this No. 10- Marcon Construction Defects Investigation 12 Proposal..........................................70 12 list as part of your job file? No. 11- Marcon Scope of Work by DT Contractor.............77 13 No. 12- Marcon Power Point................................96 13 A Yes. No. 13- Rain Wand AAMA 501.2-09 Apparatus Calibration 14 Certificate......................................139 No. 14- Photograph.......................................158 14 Q And I am going to go to the next document. 15 15 Do you recognize this document, Mr. Martin? 16 - - - - - 16 A Yes. 17 S T I P U L A T I O N S 17 Q Is this your curriculum vitae? 18 It is hereby agreed and so stipulated by 18 A It is. and between the parties hereto, through their 19 respective counsel, that the reading and signing of 19 Q And is this an up-to-date version of your the transcript are expressly RESERVED by the 20 Deponent. 20 curriculum vitae? 21 21 A I think that's the most recent, yes. 22 22 Q I notice there is not a date on it. Do 23 23 you -- how often do you update your CV? 24 24 A Typically about every couple of months. 25 25 Q I want to ask you a few questions about Page 6 Page 8 1 PROCEEDINGS 1 your CV. I will start with the first page, your 2 * * * * 2 last paragraph on the first page you identify a 3 THE REPORTER: Do you solemnly swear the 3 number of organizations that you are involved with; 4 testimony you are about to give in this 4 do you see that? 5 deposition will be the truth, the whole truth, 5 A Yes. 6 and nothing but the truth? 6 Q And you are a member of the Florida Lath & 7 THE WITNESS: I do. 7 Plaster Bureau? 8 FELIX MARTIN 8 A Yes. 9 having been first duly sworn, testified under oath as 9 Q And when did you become a member of the 10 follows: 10 Florida Lath & Plaster Bureau? 11 DIRECT EXAMINATION 11 A I think that must have been last year 12 BY MR. WALLS: 12 because I just got an invoice from them, like a year 13 Q Good morning, Mr. Martin. 13 ago. 14 Could you please provide your full name 14 Q And what do you have to do to become a 15 and address for the record? 15 member of the Florida Lath & Plaster Bureau? 16 A My name is Felix Martin. My business 16 A I don't know what other qualifications may 17 address is 1278 Glenneyre Street, G-l-e-n-n-e-y-r-e, 17 be, but I think as long as you are a member of the 18 Laguna Beach, California, 92651. 18 industry, if you are a designer or a general 19 MR. WALLS: Mr. Martin, I am going to show you 19 contractor, then you pay the fees, and you are a 20 what we are going to mark as Exhibit No. 1 in this 20 member. 21 deposition. 21 Q And why did you join the Florida Lath & 22 (Exhibit No. 1 was marked for 22 Plaster Bureau? 23 identification.) 23 A Because people kept quoting articles -- or 24 Q And this is the Defendant Royal Oak Homes 24 technical bulletins that were published by the 25 Amended Notice of Taking Deposition Duces Tecum of 25 Florida Plaster Bureau. As you know, the Florida Min-U-Script® Legal Realtime Reporting (2) Pages 5 - 8 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 9 Page 11 1 Plaster Bureau is an industry organization, and so 1 A Yes. 2 it's intended to provide support to the plastering 2 Q And I counted the number of cases here, 3 industry. And so there have been a number of 3 and I counted 39 cases; does that sound right? 4 occasions where people have brought up technical 4 A That could be. I haven't counted it. 5 bulletins that have been published by them, and I 5 Q Do you know how many cases you have 6 really was not aware. I had not had the opportunity 6 provided deposition testimony in the last four 7 to go through their technical bulletins. So I 7 years? 8 joined so I could have access to those technical 8 A No, I don't, but that could be right. 9 bulletins and have the opportunity to review them. 9 Q And in all of these cases in the last four 10 Q And did you obtain bulletins from the 10 years, have you testified for the plaintiff? 11 Florida Lath & Plaster Bureau to review? 11 A In the last four years, I believe that's 12 A I have obtained some, yes. 12 correct, yes. 13 Q And I notice that there weren't any in 13 Q How many of these cases in the last four 14 your job file for this case; is there a reason for 14 years was BallJanik, the plaintiff's law firm? 15 that? 15 A I don't know the specific number, but most 16 A No, not really. Most of the bulletins I 16 of them. 17 have looked at have been published recently this 17 Q The next category you have in your CV is 18 year, for example. So if they are recent, then they 18 most recent court testimony, and I see that that 19 may not have a lot of bearing on a case like this 19 last date of testimony is 2016. Have you had any 20 one that was built a number of years ago. 20 testimony in court since 2016? 21 Q Have you ever written a bulletin for the 21 A No, I have not. 22 Florida Lath & Plaster Bureau? 22 If I could just go back for a second to 23 A No. 23 the prior list, I see just right above it, you can 24 Q Have you ever written to them to disagree 24 see a case named the Osceola Brownstones; that 25 with a bulletin that they provided? 25 was -- I gave testimony in that for the defense, but Page 10 Page 12 1 A No. 1 that was actually over four years ago. 2 Q Do you hold any position with the Florida 2 Q Is that the only one you testified for the 3 Lath & Plaster bureau? 3 defense in that list? 4 A Other than a membership, that's all. 4 A Yes. 5 Q Do they hold any meetings? 5 Q What was the nature of that case? 6 A Not that I have been invited to or am 6 A The nature of that case involved, I was 7 aware of. 7 deposed on -- for opinions I had offered on behalf 8 Q Do you consider the bulletins that you 8 of the framer. 9 have reviewed to be an authoritative source in the 9 Q The next category you have in your CV is 10 stucco industry? 10 current cases (active), and I counted the number of 11 A I think the authoritative sources that for 11 cases here, and I counted 78; does that sound about 12 me would be the requirements of the Florida Building 12 right? 13 Codes. The bulletins issued by this organization 13 A That does. 14 are intended to address, essentially, the standard 14 Q And if you could tell me, what distinction 15 or practice. So there may be information that I 15 are you drawing between current cases active and the 16 could agree with or disagree with, depending on how 16 prior category of deposition; is it these cases, the 17 it fares against the requirements of the Florida 17 active ones you are saying you haven't been deposed 18 Building Codes. 18 in? 19 Q Have you noticed in the bulletins you read 19 A The active cases I may have been deposed. 20 any inconsistencies between the bulletins and the 20 They may be duplicated under the deposition listing, 21 Florida Building Code? 21 but the active cases also include cases where I have 22 A I can't say that I have. 22 not yet been deposed. 23 Q I want to move on to the next category is 23 Q Is there an overlap between the current 24 recent deposition testimony the last four years; do 24 cases active and the prior category of deposition 25 you see that? 25 testimony? Min-U-Script® Legal Realtime Reporting (3) Pages 9 - 12 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 13 Page 15 1 A Yes, there may be. There may be active 1 engineer in the past four to eight years has 2 cases that have not settled or reached any sort of 2 primarily been connected with litigation work? 3 conclusion yet where I have been deposed. 3 A Most of the work would be, yes, in support 4 Q When you use the term "active," what do 4 of litigation. There is a -- there is a percentage 5 you mean by active? How long have these cases been 5 of our work that has to do with repairs of damaged 6 pending? 6 buildings; that's probably about 20 percent of our 7 A I don't understand the first part of the 7 gross billings. 8 question. But the second part of the question, what 8 Q And the other 80 percent would be 9 I call active are cases we are working on as of 9 litigation connected? 10 right now; that's what it means to be active. Once 10 A Yes, that's pretty much the breakdown. 11 they reach a conclusion through settlement or 11 That's an estimate, but, yes. 12 through whatever else may happen to them, then they 12 Q For the repair work that you have been 13 become inactive because we don't work on them 13 involved in, has that repair work flowed from 14 anymore. 14 litigation where you served as an expert? 15 Q So all the 78 cases in the active, are 15 A Some of it. Not all of it. Sometimes we 16 those all for the plaintiff? 16 get involved in the repair work for communities that 17 A Yes, I believe that's correct. 17 have not, for some reason or another, been involved 18 Q And how many of these 78 cases, active 18 in litigation. 19 cases are with BallJanik? 19 Q And how often is that the case? 20 A I don't have an exact number, but most of 20 A For the repair work, I would say it's 21 them. 21 probably about half the time. The other half is for 22 Q And then you have another category in your 22 cases that we were involved in litigation. 23 CV -- actually I will skip conversion and 23 Q In the litigation cases that we went 24 first-party insurance claims. You have a list of 24 through in your CV, have you performed destructive 25 past cases (last eight years.) And by past cases, 25 testing in those cases, or directed to perform Page 14 Page 16 1 do you mean that these cases have been resolved? 1 destructive testing? 2 A Yes, these are cases that are no longer 2 A Typically the ones that are listed under 3 active. 3 the active list would be cases that we have done 4 Q I counted the cases here, and there is 41 4 destructive testing on. 5 cases; does that sound about right? 5 Q Are you excluding the past cases from that 6 A Again, I haven't really counted them, but 6 list? 7 that could be right. 7 A No, no, the past cases would be cases that 8 Q And were all these 41 past cases for the 8 we did destructive testing on, most of them. 9 plaintiff? 9 Q Why do you perform destructive testing in 10 A I think all except for the third one 10 those cases? 11 there, Barker v. CalAmerican Water, and I think I 11 A For investigation of an existing building, 12 have listed the Osceola Brownstones in that list, as 12 and to be able to identify what the problems are 13 well. 13 with a specific building, we have to sometimes cut 14 Q Do you see any others that would be for 14 into the building, much as a doctor would have to 15 the defendant in this list? 15 cut into a patient to be able to determine what 16 A I don't. 16 is -- what is really going on in their bodies. 17 Q And what was the nature of the Barker 17 Q Well, given your analogy, do you consider 18 case? 18 destructive testing a last resort, or something that 19 A That was a case involving a foundation 19 is a tool that you use all the time in your forensic 20 settlement in a single-family home. 20 investigation? 21 Q And of these 41 past cases, how many were 21 A It's a tool that we use most of the time. 22 for BallJanik? 22 You can get a certain amount of information from a 23 A I don't have the exact number, but most of 23 visual inspection, but you can't get all of it. We 24 them. 24 wouldn't be able to get a full idea to the extent of 25 Q Is it fair to say that your work as an 25 damage. You can only see the top layer of the Min-U-Script® Legal Realtime Reporting (4) Pages 13 - 16 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 17 Page 19 1 building envelope. You can't assist -- you can't 1 ASCE Congress on Forensic Engineering, and it 2 assess the structural construction of a project 2 discussed the methodology that was used to 3 because they are usually -- the structural 3 investigate the Hamptons at Metrowest forensically. 4 components are typically hidden by the architectural 4 And the second article was an article that 5 finishes. So most of the time to get a view at 5 was presented at the ASCE/SCI Structures Congress in 6 them, we have to, essentially, cut open the building 6 presenting how we had developed the repairs for the 7 to expose what is underneath. 7 Hamptons at Metrowest once the case had concluded, 8 Q In the past when you conducted destructive 8 so that's an instance of a case -- it was a fairly 9 testing, how many times were other experts from the 9 large case, and it was pretty involved -- that was 10 general contractor or subcontractors present for the 10 an instance where that case generated two separate 11 destructive testing? 11 articles for two separate organizations, one dealing 12 A Sometimes, not always. 12 with the methodology that we followed with regards 13 Q Do you have any objection to other experts 13 to the testing, and the other one addressing how we 14 being present when you conducted destructive 14 came up with the repairs. 15 testing? 15 Q Can we get copies of those articles, 16 A No, I like having other experts present. 16 please? 17 I think they see the same things that we see. But 17 A Sure. You want copies of all the articles 18 typically most of the cases we are involved with, 18 on the list? 19 there is an initial round of destructive testing by 19 Q No, just those two. 20 the plaintiff, and then opportunities are given to 20 When you submitted those, were they peer 21 the defense to come back and do their own 21 reviewed by ASCE? 22 destructive testing in order to be able to confirm 22 A No, these are not held to a strict peer 23 the findings from the plaintiff's destructive 23 review. They were approved by ASCE once they are 24 testing. 24 submitted, but I would not call that a peer review. 25 Q If that occurred, and some other expert 25 Q What kind of review was it? Page 18 Page 20 1 wanted to perform destructive testing, would you 1 A They would review to see if the subject 2 want to be present for that destructive testing? 2 matter fits in with what the organization is all 3 A In a general sense, yes, I would. I don't 3 about, so you don't want to submit something that 4 have to be because my opinions are based on what I 4 the organization is not focused on. 5 have seen already. But the instances where the 5 So, for example, the article on the 6 defense actually performs their own destructive 6 methodology followed for the investigation of the 7 testing are very rare because typically experts 7 Hamptons at Metrowest was specifically introduced to 8 don't want to do discovery for the plaintiff. So 8 the ASCE forensics group, so they reviewed it to see 9 typically what we see and what we have recorded 9 it met with what they thought their membership would 10 would be the same type of thing that they would see 10 be interested in. And from that basis, the article 11 and they would record. So because of that, if we 11 was either accepted or rejected. In this case, it 12 have allegations in our report of defective 12 was accepted. 13 construction, they don't want to expand that 13 Same thing with the case study for the 14 database for the plaintiff. 14 repairs; that was submitted to the ASCE, SCI for 15 Q And while we are on your CV, I see that 15 review, and, once again, it is reviewed to see if it 16 you have identified a number of articles published; 16 meets with something that the membership would be 17 do you see that? 17 interested in seeing. And based on their review, it 18 A I do. 18 was accepted. So it's not an automatic acceptance. 19 Q Have you ever published an article based 19 It has to go through a review process, but I 20 on your analysis that you performed in one of these 20 wouldn't say it is as involved as a peer review 21 cases for peer review? 21 process. 22 A You see from the list there are -- there 22 It's a big deal to have an article 23 were two publications that went back to a case that 23 accepted to the ASCE/SCI Structures Congress because 24 was my first case in Florida, the Hamptons at 24 they have a lot of articles that are submitted every 25 Metrowest. The first article was published for the 25 year, and there is only a small number that are Min-U-Script® Legal Realtime Reporting (5) Pages 17 - 20 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 21 Page 23 1 actually accepted for publication in the proceedings 1 contractor, right? 2 and for presentation at the Congress. 2 A That's correct. I have never held a 3 Q I want to go back and finish up your CV 3 general contractor license anywhere. 4 with a couple questions about your background. 4 Q And certainly that would be true in 5 You are an engineer, correct? 5 Florida? 6 A Yes. 6 A Correct. 7 Q And you hold a Florida license, I see that 7 Q And you never worked as a general 8 somewhere in here? 8 contractor in the State of Florida, correct? 9 A It's at the bottom. 9 A That's correct. 10 Q How long have you held your Florida 10 Q It's fair to say you have never managed or 11 license? 11 supervised construction work on any Florida 12 A I am going to say about 12 years. 12 construction project? 13 Q And based on your CV, it's fair to say 13 A Not as a general contractor. We obviously 14 that you are not a general contractor, right? 14 have managed some of the repair projects in terms of 15 A That's correct, I am not a general 15 coming out and doing inspections with compliance 16 contractor. 16 with the plans and specifications that we produced. 17 Q And you have had no training or education 17 Q On those repair projects, was there a 18 as a general contractor? 18 project manager or supervisor there to observe and 19 A I have had no training as a general 19 supervise the construction? 20 contractor, other than I have built a number of 20 A Yes. 21 homes for myself, and I acted as the owner/builder 21 Q Was that person licensed? 22 on those, but that would be what I would call the 22 A As a general contractor? 23 extent of my experience as a general contractor. 23 Q Yes. 24 Q When you built your own home, did you go 24 A I don't know that. Obviously they were 25 take courses on general contracting, or just relied 25 working for a general contractor firm that had Page 22 Page 24 1 on your engineering experience? 1 somebody licensed as a general contractor, but 2 A I relied on the experience that I gained 2 whether the supervisor that was running the project 3 over the years. I mean, obviously I have been in 3 was also licensed as a general contractor, I did not 4 practice since 1977. And through that practice, I 4 ask. 5 have become aware of the process of what general 5 Q That's a pretty common practice in the 6 contractors go through. I have also acquired some 6 State of Florida? 7 general architectural knowledge, again, through my 7 A What is that? 8 working relationship with architects. And so using 8 Q For the licensed general contractor to 9 both of those, I designed my first home, and then I 9 have supervisors who may not hold licenses as a 10 acted as an owner/builder on it. 10 general contractor. 11 I built a second home where I hired an 11 A I don't know that. It is actually one way 12 architect to do the architectural portion. I did 12 or the other. It is just something that I don't 13 the structural portion, and I acted as the 13 have a practice of doing, going on to a job site, 14 owner/builder. 14 meeting the superintendent, and then asking him to 15 I built another home in Las Vegas, Nevada, 15 produce his general contractor's license. 16 and I also built an office building in Las Vegas, 16 Q It is fair to say when you expressed in 17 Nevada. 17 your report that building contractors knew or should 18 And then I am currently in the process of 18 have known of the defective construction 19 remodeling my current home, and I am acting as 19 installation work, that's not based on any 20 owner/builder on that. 20 experience, training or actual work as a general 21 Q Your current home in California? 21 contractor, correct? 22 A Yes, the one that I am in. 22 A No, but that's based on my knowledge of 23 You may hear some hammering as soon as 23 the Building Code and the fact that the general 24 they start working. 24 contractor is the one that pulls the permit, and is 25 Q You don't hold a license as a general 25 licensed. And under that license, they are expected Min-U-Script® Legal Realtime Reporting (6) Pages 21 - 24 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 25 Page 27 1 to know the requirements of the Building Code. 1 well? 2 Q I think you answered my question when I 2 A I don't think the report itself is the 3 asked correct, and you said no, and you said your 3 only source of my opinions. Obviously I am a 4 basis is the Building Code. I just want to make 4 designated expert, and I am going to be offering 5 clear when you express those opinions, that's what 5 opinions today and tomorrow, as well as at trial. 6 you are expressing them on is your knowledge of the 6 The report forms the basis for summarizing what my 7 Code, not your knowledge how a general contractor in 7 opinions are, and the report contains everything 8 the State of Florida trains or supervises work in 8 that I think should be covered as of today, but 9 the State of Florida? 9 obviously there are opportunities to expand on the 10 A I think my answer went a little bit beyond 10 opinions that are offered in the report. Otherwise, 11 that in terms of the expectation that a licensed 11 you wouldn't be asking me questions today. You 12 general contractor who holds a building permit would 12 would just read the report, and that would be that. 13 be expected to know the requirements of the Code. 13 So my understanding of my reason for being 14 Q And you are basing that on your knowledge 14 here today is that you are going to ask me questions 15 of the requirements of the Code and licensing 15 about the opinions that I have offered in that 16 statutes in the State of Florida, not experience or 16 report, the report dated April 2nd, 2021, and then 17 training as a contractor in Florida, correct? 17 I am going to be offering explanations and 18 A That's correct. I am not a general 18 expansions of the opinions that are offered in that 19 contractor. I am not licensed as a general 19 report. 20 contractor, but my expectation would be as I have 20 MR. WALLS: You gave me the date of your report 21 stated. 21 as April 2nd, 2021. My first question, Mr. Martin, 22 Q It is my understanding you plan to provide 22 is: I will show you what we marked as Exhibit No. 3. 23 opinions in this case; is that correct? 23 (Exhibit No. 3 was marked for 24 A Yes. 24 identification.) 25 Q And what are your opinions? 25 Q This is a report dated April 28th, 2020; Page 26 Page 28 1 A Well, in a summarized basis, my opinions 1 do you see that? 2 are that the construction at this project was 2 A I do. 3 deficient in that it had a number of systemic 3 Q And did you prepare this report? 4 violations of the minimum requirements of the Code, 4 A Yes. 5 and/or the specifications from the individual 5 (Discussion off the record.) 6 manufacturer's installation instructions or 6 MR. WALLS: I would like to mark as Exhibit 7 instructions from the project plans, approved 7 No. 2, Mr. Martin's CV, I apologize. 8 project plans. 8 (Exhibit No. 2 was marked for 9 Q Is that it; is that the only opinion you 9 identification.) 10 are giving? 10 Q I have an appendices that is 999 pages 11 A Its a summary of the opinions. I am sure 11 long? 12 you will be asking questions today and tomorrow, and 12 A Yes, that's correct. 13 I can expand more on those opinions. 13 Q This is not a true and accurate copy of 14 Q Can you list them for me, or are you going 14 your final expert report; is that right? 15 to turn to a report? 15 A That report was superceded by the 16 A We can turn to the report; that's a good 16 April 2nd report. 17 place to start. 17 Q And by April 2nd, you mean April 2nd, 18 Q And would the same be true for the reasons 18 2021? 19 for your opinions; would we turn to your report to 19 A Correct. 20 obtain that? 20 Q When you prepared this report on April 28, 21 A I'm sorry, could you clarify that? 21 2020, did you believe it was the final expert 22 Q Yes. You gave me opinions, a summary of 22 report? 23 your opinions, and you talked about turning to your 23 A No, just in the same way I don't know if 24 report to get the opinions. Would we turn to the 24 the April 2nd, 2021, report will be the final 25 report to get the reasons for your opinions, as 25 report. Min-U-Script® Legal Realtime Reporting (7) Pages 25 - 28 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 29 Page 31 1 Q Do you understand you are here today to 1 additional testing, both by the plaintiff or the 2 provide your final opinions and reasons for your 2 defense. I knew that there was a possibility of, 3 opinions pursuant to the Case Management Order in 3 like I said, rebuttal reports. I knew that I would 4 this case? 4 probably be deposed in the case. And during that 5 A I understand that I am going to be 5 deposition, there were opportunities for me to 6 offering my opinions as of today. That opinion is 6 review or revise some of my opinions, so there is 7 subject to revisions pending testimony from other 7 no -- there is no real understanding on my part that 8 experts, rebuttal reports and any other information 8 the report that I published on 4/28/2020, would be 9 that may come up between now and the time of trial. 9 the final opinion that I would be offering. 10 Q Fair enough. As you sit here today, you 10 Q What changed between April 28, 2020, and 11 believe your opinions and reasons for them are 11 April 2, 2021? 12 final? 12 A I don't have a specific listing of what 13 A I do. But again, we are going to have 13 changed between those two dates, other than the 14 conversations today and tomorrow, and you are going 14 reports were updated. 15 to be asking me questions, and during the course of 15 Q Did you visit the site of the townhomes 16 the questioning, I may see something, or change my 16 between April 28, 2020 and April 2, 2021? 17 opinions with regards to something, depending on 17 A No, I did not visit the site. The 18 what you are going to bring my attention to. 18 updating of the report was just more by, 19 MR. WALLS: I am going to go to another document 19 essentially, bringing up-to-date, you know, the 20 here for a second that I going to mark. It is invoice 20 findings of the report. There was no additional 21 No. 4246 from Marcon Forensics to BallJanik. 21 testing that was done. 22 (Exhibit No. 4 was marked for 22 Q Just to be complete, I think I asked you 23 identification.) 23 if you visited the site between April 28, 2020, and 24 Q Do you recognize this document, 24 April 2, 2021; was anyone with Marcon Forensics 25 Mr. Martin? 25 called out and sent to the site between those two Page 30 Page 32 1 A I do. 1 dates? 2 Q And is this a true and correct copy of 2 A I don't believe so. 3 your invoice No. 4246 dated 4/30/2020, to BallJanik 3 Q Did you receive any additional information 4 for this case? 4 from anyone regarding the Emerald Lake Townhomes 5 A Yes. 5 between April 28, 2020, and April 2, 2021? 6 Q I note on this the quantity is one, and 6 A No, I don't think we received additional 7 the date is 4/28/2020, correct? 7 information. I know we had a conference call with 8 A Yes. 8 Sean Heaney to discuss the repair recommendations 9 Q That's the same day as the report we 9 that were made in my report. I think, like I said, 10 marked as Exhibit No. 3? 10 the report was just updated based on, you know, 11 A Yes. 11 essentially, what we had learned between one year 12 Q And this says it was a flat fee for 12 and the other. 13 preparing the report, balance of flat fee $58,000, 13 MR. WALLS: Since you mentioned this, I want to 14 and then it has a breakdown of how you arrived at 14 mark Exhibit No. 5, an invoice No. 4511 from Marcon 15 the balance of that flat fee; is that correct? 15 Forensics to BallJanik regarding the Villas at Emerald 16 A That's correct. 16 Lake. 17 Q And when you billed this at flat fee on 17 (Exhibit No. 5 was marked for 18 4/28/2020, did you believe this report was final? 18 identification.) 19 A N