MONTANA 4TH JUDICIAL DISTRICT COURT, MISSOULA COUNTY

Transcription

1 MONTANA TH JUDICIAL DISTRICT COURT, MISSOULA COUNTY MELLEM and MELLEM, ) Plaintiffs, ) -vs- Cause No. DV-- Dept No. HOME Hon. John W. Larson INSPECTIONS, INC.; ; and, n/k/a, ) Defendants. ) Taken at Adams Street Missoula, Montana Wednesday, October, 0 - :0 a.m. VIDEOTAPE DEPOSITION OF Reported by Melody Jeffries Peters, RDR, CRR, Jeffries Court Reporting, Inc., 0 Mount Avenue, Suite C, Missoula, Montana 0,, Freelance Court Reporter for the State of Montana, residing in Missoula, Montana, jcrcourt@montana.com

2 Page (Pages -) Page Page 0 0 A P P E A R A N C E S C.J. Johnson, Esq., and Helia Jazayeri, Esq., Kalkstein, Johnson & Dye, P.C., Adams Street, Missoula, Montana 0, appearing on behalf of the Plaintiffs. Kimberly S. More, Esq., Crowley Fleck PLLP, Whitefish Stage Road, Suite 0, P.O. Box, Kalispell, Montana 0-0, appearing on behalf of the Defendants. ALSO APPEARING: Mellem 0 0 S T I P U L A T I O N S It was stipulated by and between counsel for the parties that the deposition be taken by Melody Jeffries Peters, RDR, CRR, Freelance Court Reporter and Notary Public for the State of Montana, residing in Missoula, Montana. It was further stipulated and agreed by and between counsel for the parties that the deposition be taken in accordance with the Montana Rules of Civil Procedure. It was further stipulated and agreed by and between counsel for the parties that all objections except as to form would be reserved until time of trial, and that said objections would have the same force and effect as if interposed at the time of taking the deposition. It was further stipulated and agreed by and between counsel for the parties and the witness that the reading and signing of the deposition would be expressly reserved. I N D E X WITNESS: PAGE: Examination by Mr. Johnson... Stipulations... EXHIBITS: Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification... 0 Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification...0 Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification... Deposition Exhibit Number 0 Marked for identification... Deposition Exhibit Number Marked for identification... Deposition Exhibit Number Marked for identification Certificate of Witness... Certificate of Court Reporter... Reading and signing letter... 0 Release letter... Page 0 0 Page WEDNESDAY, OCTOBER, 0 MS. JAZAYERI: Okay. We are recording. MR. JOHNSON: All right. This is the time and place set for the deposition of in the matter styled Mellem versus and Home Inspections. If you could swear the witness, please. Thereupon,, a witness of lawful age, having been first duly sworn to tell the truth, the whole truth and nothing but the truth, testified upon his oath as follows: EXAMINATION BY MR. JOHNSON: Q. Good morning. A. Morning. Q. Would you state your full name for the record, please. A.. Q. All right, Mr.. Have you ever had your deposition taken before? A. Not in this particular case. I did as a witness for an insurance claim. Q. Okay. Have you been deposed just one

3 Page (Pages -) Page Page 0 0 time? Q. About when was that? I think I saw on your discovery that maybe it was five or six years ago? A. About five or six years ago, yes. Q. What was the subject matter of your testimony in that case? A. In that particular case it was just a follow-up to an inspection that had been d by an inspector. The property -- not through the inspection, but through the findings beyond that -- displayed that the house was uninsurable and was on some national insurance do-not-insure list because the basement had flooded. The inspector noted that. It had had several claims filed against it as well. And the purpose of my inspection was to determine whether or not I felt the inspector had duly reported what he had reported in his inspection. And so basically I followed up by noting that there had been pooling water alongside the foundation, there was pooling water along the foundation when I did -- at the time they did the 0 0 A. Not previously. I know some of the attorneys in that building. Q. Have you worked with any of those attorneys on any litigated cases or claims? A. No, no. Q. All right. So as we're sitting here -- A. To back up, that was where the deposition was held was at Milodragovich. Q. All right. So as we're sitting here today, you're calling it a deposition. I want to make sure I understand. Have you ever before been questioned under oath the way I'm questioning you now? A. No, no. Q. So this is -- to the best of your memory, this is your first deposition. They called it a deposition. Whether -- There was not a court recorder present at the time. It was just the secretary from the firm was there. Q. All right. So I'll give you a couple of suggestions that I think will make the process move along a little more efficiently and smoothly today. A. Okay. Page Page 0 0 deposition [sic], and also that they had a sump pump in the basement that had water in it at the time that I did the inspection. Q. Okay. So I want to break that down just a little bit. Were there attorneys involved in that case? A. I don't believe so. I believe it was just the insurance adjusters. They're through State Farm, and I believe it was only just insurance people. That's all I ever talked to was the insurance representatives. Q. So did you actually give a deposition in that case similar to what you're giving today or did you -- A. Similar, similar, but there weren't any attorneys there. It was just a mediator and insurer was at that particular -- Q. Okay. Was there a claim against a home inspector in that case? A. No, no. Q. Okay. A. The claim was against the buyer. Q. Have you worked with the Milodragovich firm previously? 0 0 Q. The first thing, Mr., that I'd ask for you to do is to speak clearly. Q. And articulate your answers. A. Okay. Q. And by that I mean saying "yes" and "no" as opposed to "huh-uh" or "uh-huh" or shaking or nodding your head because our wonderful court reporter is taking down our conversation word for word. And it's very important that we understand exactly what you said and what you meant to say on this record rather than getting back a paper record where we have a hard time understanding what it is that you meant. A. Okay. Q. Is that fair? Q. All right. And I warn you now, it happens to everybody, everybody shakes and nods their heads. Everybody says uh-huh and huh-uh. I'll remind you. It happens to everybody. Please don't be offended, okay? A. Okay. Q. All right. For the same reasons, if you would please wait for me to finish my question

4 Page (Pages 0-) Page 0 Page 0 0 before you give me your answer, and I will do my very best to wait for you to finish your answer before I give you my next question for the same reason: If we're talking over one another, we're not going to get a clean record, and it's very important that we do that today. A. Okay. Q. Again, we will talk over one another, and if we're doing it and we're not yelled at first by our wonderful reporter, I'll remind us again. It happens to everybody, okay? A. Okay. Q. All right. If I ask you a question that you don't understand or that you believe requires clarification, would you please let me know that? Q. And if you do, I'll certainly do my best to reph it. If you answer my question, is it fair for all of us to assume that you understood it and that you're answering it truthfully and to the best of your ability? Q. All right. This is a question I ask everybody; I'm not singling you out. Have you taken any medication today that would impair your 0 0 Q. All right. And when you say the documents provided to you, I'm not interested in knowing any of the communications that you had between you and Kim, but what documents, other than those two inspection reports, have you been provided by counsel that you reviewed in preparation for your deposition? A. Well, I reviewed court documents that were filed: the complaints and findings and -- Q. The answer? A. And the answers and all the reports that were filed through the -- through the court system and reviewed the -- well, all the papers that were in the two CDs, the 00 pages of documents that were in there, the other -- after the first discovery and the second set of documents that were also reported to me. Q. Okay. So it sounds like you've reviewed your original inspection report, the reinspection report, the complaint, the answer, the pleadings in this case and then also your own discovery responses? Q. And then all of the attachments that Page Page 0 0 ability to understand my questions or answer them truthfully? Q. Now the flip side of that question. Is there any medication that you need in order to understand my questions and answer them truthfully but that you have failed to take today? Q. All right. Now, Mr., it's not going to be an endurance test. If at any time you'd like to take a break, just say, C.J., I'd like to take a break, and so long as a question isn't pending, the answer will always be yes. All right? A. Okay. Q. Okay. Mr., what did you do in preparation for your deposition today? A. In preparation for the deposition today I reviewed the inspection, the documents that were provided to me, the -- Kim's records and the information that was received from your office. Q. Okay. So I want to break that down. You reviewed your own home inspection. Q. Did you review your reinspection report? 0 0 have been produced -- Q. -- to your discovery responses. Q. All right. And so when we're talking about your discovery responses, I'm assuming that means you've read not only your original responses but all of your supplemental responses as well. Q. Okay. And have you reviewed, in addition to those materials, anything else provided to you by counsel in preparation for your deposition today? A. I think the only other document I received was an information sheet on what happens at depositions. Q. All right. Don't ramble. Q. Okay. That kind of good stuff. A. Et cetera, et cetera. Q. Yeah, exactly. Did you review Mr. Bernhardt's report in preparation for your deposition today? His initial report. I never saw the final-final report, but I did review the

5 Page (Pages -) Page Page 0 0 initial report that he's had. Q. And you reviewed that for preparation -- in preparation for your deposition today? Q. What about the materials that the Mellems have produced in this case? Have you reviewed those materials as well? Q. For example, have you reviewed all of their discovery responses? Q. And so not only their first discovery responses, but also their first supplemental responses and second supplemental responses? Q. And have you reviewed all of their attachments as well? Q. All right. And have you reviewed all the photographs in the case that have been viewed by the Mellems? MS. MORE: I will say except for the most two recent that you sent. MR. JOHNSON: Fair enough. 0 0 reviewed my home inspection report and the ASHI standards, and pretty much that's the main items that I was focused on. Q. Okay. So when we just covered all the stuff you have reviewed over the life of this case, the course of this case, it sounds like, for example, you have reviewed the Mellems' discovery responses once they've been received by your attorney and she would forward them to you. Q. Okay. A. And I did read through the discoveries again. I will have to amend that. Q. Okay. In preparation for your deposition. A. Yes, yes. Q. And when you're saying review the discovery, you mean the responses themselves or also with all the attachments? A. Not all the attachments, just the responses and the discoveries. Q. Okay. So all of your answers and supplemental answers to discovery and all of the Mellems' answers and supplemental answers to discovery? Page Page 0 0 Q. (BY MR. JOHNSON) I forwarded a couple days ago a pair of photographs regarding a recent water intrusion that they had last week. It doesn't sound like you've seen those. Q. All right. And when you say "no," you're agreeing with me; is that right? A. I agree. I did not receive that. Q. All right. So basically, with the exception of those two photographs, everything that has either been filed with the Court or exchanged between the parties in this case, you have reviewed. A. Everything that has been provided to me, yes. Q. And did you review it all in preparation for your deposition today or have you reviewed it as a process along the way? A. Process along the way. Q. Okay. So when you sat down to prepare for your deposition today, other than Mr. Bernhardt's report which we just discussed, what specific documents did you review in preparation for this deposition today? A. Specifically for the deposition I've 0 0 Q. Okay. So -- And this is the way depositions go. In preparation for your deposition, you reviewed Mr. Bernhardt's report, your own home inspection report, the ASHI standards, and the parties' discovery and supplemental discovery responses. Q. Okay. Does that exhaust what you've reviewed in preparation for your deposition today? Q. All right. Thank you. I'm assuming -- Did you review the 0 ASHI standards? Q. Which standards did you review? A. The 00. Q. Why'd you review the 00 standards? A. The 00 standards were the ones that were in place when I did the home inspection. Q. Okay. And so the 00 ASHI standards would be the ones that apply to your inspection? A. Correct, correct. Q. And the 0, they're irrelevant, they don't matter -- A. They're irrelevant, yes.

6 Page (Pages -) Page Page Q. You're doing fine, but I'll give you your first reminder -- A. Okay. Q. -- we can't talk over one another. So regarding the 0 ASHI standards, they are irrelevant to this case. They have no bearing on your inspection because they didn't exist at the time of your inspection. A. Correct. Q. All right. Steve Jacoby, he's your expert in this case; is that right? Q. Were you involved at all in framing his report? Q. Did you review any drafts of the report? Q. All right. I'm assuming you did review the final report. Q. Do you agree with the report? Q. Do you recall, as you read through it -- Did you review it carefully? A. Fairly carefully, yes. 0 0 Q. -- diary? Q. Journal entries, anything like that? Q. All right. How do you calendar typically and how do you schedule your inspections? A. Well, the inspections are scheduled when I receive a request to do a home inspection. I just schedule them when I can get into my calendar and then just follow the calendar. Q. All right. Is it an electronic calendar or a personal calendar? A. It's just a personal calendar. It's a daily calendar that I have. Q. All right. And have you maintained your daily calendar from August of 0? Q. And that's a business record, I'm assuming, that you keep. A. Yes, yes. Q. Have you looked at your calendar and your appointments around the time of the inspection you did for the property? A. Not specifically, no. Page Page 0 0 Q. You were thoughtful and thorough in how you read through it? Q. Was there anything in that report that you can recall having disagreed with? A. Not specifically, no. Q. Okay. When was the last time you reviewed that report? A. About a week ago. Q. About a week ago? Okay. Was that part of your preparation for the deposition? A. I didn't reread it for the part of the deposition. That was background. Q. Understood. So your reports are -- obviously they're generated and they're a snapshot of your inspection, and that's something that you're relying upon to refresh your memory. Beyond your reports in this case, is there anything else you've put together that you maintain that would refresh your memory regarding the events surrounding this inspection? And by that I mean a personal calendar with notes, business calendar Q. Do you recall how many appointments for home inspections you had on the day of your inspection? I had two inspections that day. Q. Okay. That includes -- That's two including? Yes, including. I had one in the afternoon. Q. Okay. How many inspections do you typically schedule in a day? A. Most of the time two. One to two. Q. What's the most you feel comfortable scheduling? A. I have done three if they were small properties, if they were condos or apartments. Q. All right. If you would, I think the calendar probably falls within the scope of our discovery requests. You can't get the calendar to me directly, but would you please get your calendar from August of 0 and provide it to counsel and then she can review it and then provide it to me? Q. All right. Thank you. Mr., just some background questions

7 Page (Pages -) Page Page for you. What's your age? A. 0 0, that's -- that's not it. Q. Okay. Have you discussed the Mellems' claim against you or the fact of the Mellems' claim against you with any individuals other than the folks we discussed previously? Q. Okay. So other than your attorneys, Mr. Bernhardt and your insurance adjuster, you've not communicated with anyone regarding the Mellems' claim. A. Correct. Q. All right. How about not just oral communications, what about written communications? A. No, no. Q. You've not -- you've not written anybody -- Have you written anybody complaining about the Mellems' claim or the claim that was brought against you in this particular case? Q. All right. So again, placing aside attorneys, your insurance adjuster, Mr. Bernhardt, what you're telling me is that you have discussed some issues generally related to this case at your ASHI meetings, just generally. A. Generally. Page Page 0 0 Q. So other than your attorneys -- and I'm not interested in understanding your communications with your attorneys, Mr. Bernhardt at this point, or your insurance adjuster at this point. Other than those three groups of people, with whom have you communicated regarding this case? A. With regards to specifically on the case, nobody. In some of the -- I guess it was in regards to the reporting and stuff like that, we'd talk about reporting at our ASHI chapter meetings and so -- but I did not communicate with any individuals or anything like that. We talk in generalities of what is our report doing, what is our -- what have we experienced with inspections. Basically it's a small group. We know each other's business fairly well, and we do discuss issues that we have with home inspection. It's kind of a -- kind of a brotherhood-type community we share. But specifically I did not discuss this property. I mean, as far as the specifics of, whatever the address was, Q. But you've had no specific communications with anyone else either orally or in writing regarding the Mellems' claim, anything to do with the Mellems' claim at all; is that correct? A. Correct. Q. Give me a thumbnail sketch of your background, if you would, please.

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10 Page 0 (Pages -) Page Page 0 0 about, and I wanted to make sure I was doing things right so I enrolled in those classes to get the expertise that I needed to do the remodels correctly. Q. You didn't want your home to become your biggest problem, right? A. That's right. It already was at that -- At that point it was, that particular house. Q. Why? A. Well, we built [sic] a house that was built by one of the builders who had many, many cases brought against them for poor construction. And so when I did the remodel, I had many things that I needed to fix to make them right -- Q. All right. A. -- to make the house salable and make it so that I felt confident that when somebody else purchased the house that they weren't inheriting the same problems that I inherited with the builder. Q. So before we get too far ahead of ourselves, why don't we do this: Approximately how many homes have you owned in your lifetime? A. Four. Q. Four. And the one we're discussing now, 0 0 start discovering problems with the house. Q. So give me an idea of the problems you were experiencing in that house in '. Page 0 0 where was that on the space-time continuum?. Q. And did you get a home inspection? There were no home inspectors in town at that time. Q. Okay. And so you bought the house in '. Was it new when you bought it? Q. All right. And who built it? Was it Quality Construction? Q. Which one? Q. So late '0s. That's the time when people were putting in rebar for the inspection only and pulling it out of the concrete and all that sort of stuff? A. And covering walls with no insulation and no insulation in the attic. Many issues. Q. So you get into the house and then you 0 0 Q. All right. So it sounds like you were actually dealing with a lot of issues that you wish you had a home inspector for before you bought the house, but there weren't any home inspectors. A. Knowing what I do now, yes. Q. Yes. Q. But what you're saying is there were no home inspectors around at the time. A. There was no home inspectors at that time. Q. And at the time you didn't have any home inspection training. I was a first-time home buyer just out of college. Q. Knowing what you know now, if a professional -- if an expert home inspector had walked through that property applying, for

11 Page (Pages -) Page Page example, the 00 ASHI standards, they would be calling out a whole bunch of problems, I'm assuming. Q. And you didn't have any home inspection experience at the time. Q. And you were a first-time home buyer, right? Q. Without extensive construction experience. Q. And so when you walked through the house -- I'm assuming you walked through it before you bought it, right? Q. Yeah. When you're looking at it and you're visualizing it, I'm guessing none of the things that you just mentioned to me would have caused concern in you because you didn't know what you should be looking for -- A. Yeah. It was a new house. Q. Yeah. A. It was a new house. 0 0 excited to have a house. Q. Right. A. And so, you know, it's new. It was a good price, and we saw some potential for expansion with the basement. Q. Was it an unfinished basement? Q. How unfinished was it? I mean, were there studs in or was it just cement, just concrete? A. There were studs. There was -- there was a -- Just a center beam was there was all. Q. All right. So over the course -- It sounds like you had some really significant water issues with that house. Q. And you had water in your basement. Q. Did you have water in your basement ten times, twenty times, thirty times, too many times to remember? A. We were there ten years, and we probably had water in there at least times. Q. At least times? Did you ever finish your basement? Page Page 0 0 Q. Well, even if it weren't a new house, though, you know, if you're looking at a problem -- It sounds like there were a number of problems with this new home, right? Q. And so whether the home is old or new, a problem is a problem, right? Q. So when you're walking through this house and getting ready to make your offer, getting ready to buy it, you're probably walking past and underneath and over all kinds of problems. You had no idea that they were there because you weren't a home inspector at the time, right? Q. Do you think that was your fault or responsibility for having not identified those problems back when you bought your first home? A. Well, in this case, with it being a new house, I think we made the assumptions -- and, you know, there was no finished -- the yard was not finished. Nothing was finished on it. In fact, the street wasn't even in when we purchased it. We would have, you know -- You know, we were 0 0 Q. Did you have water come into your basement after you finished it? Q. And you indicated that you had done -- you had dug a trench and tried to redirect the water? A. I put in a tile system. Q. A tile system. A. Perforated tile system under the ground. Q. All right. And did that keep the water out? A. Not totally. To finish -- to totally finish what we needed to do, we had to cut the concrete in the basement floor and put a sump in. Q. It sounds like you actually had to do a lot of work to fix that problem. A. We put probably $0,000 into it. Q. Back in the late '0s or -- A. Back in the late '0s, yes. Q. So I imagine that was a very stressful experience for you. A. It was, yes. Q. Largest purchase of your life up to that point, I'm guessing.

12 Page (Pages -) Page Page 0 0 Q. As water went into your basement this first house you bought, you kept on having these water events, did you notice that it started to stain the wood down in the basement or started to leave marks or -- A. Not really. We were on top of it all the time, so it never really had a chance to settle. You know, it just -- If it came in, we got rid of it as soon as it came in, and then we knew when it was going to come in and so we would take care of it after that. Q. All right. A. Basically had a vacuum-type system that we could initiate immediately. Q. So you really do know what it's like to buy a house with a basement thinking there are no problems with the basement and then finding out after the fact that there are a lot of problems with the basement. A. Every house we've had has had some water issue in it. Q. Well, how long did you own the house that you had on A. Ten years. 0 0 Q. So you sold it in ' I had a contractor build it. Q. And good contractor? A. You know, we didn't really know him from Adam, but he was the listing Realtor for the property and also was a builder. And so he -- we looked at some of the houses that he built and decided that he did a pretty good job with it, so -- so we entrusted him to build it for us. Q. All right. How did he do? A. He did a good job. Q. Yeah? A. Except for some plumbing issues, which caused the water problem that we had, so -- Q. All right. So -- All right. So what was the name of that fellow? A. - Q. It was a builder named. A. Yeah. Q. All right. Is he still around, or do you know, or -- Page Page 0 0 Q. When did you sell that? Q. And assuming -- When you sold it in did you sell it on your own or through a Realtor? A. We sold that one through a Realtor, I believe. Q. I imagine you disclosed the water history. Q. Why did you do that? A. It was part of the disclosures. Q. It's something you want to do -- Q. Yeah. And even though -- Let me ask you this: You said that you never had a problem with the water after you finished the basement, with water coming in. Q. But even though you were selling the house with a finished basement and you had not had water problems in the basement after you finished it, you still disclosed the water history. Q. And you would expect that somebody would do that, right? 0 0 A. He is retired. I saw him a couple years ago. Q. All right. Incidentally, I'm sure you know this, he would not be allowed to do that today, to be the listing agent on the property -- A. I understand that, yes. Q. Yeah. I'm guessing, did he represent you as well? Was he a dual agent on the property? A. No, no. Q. All right. Good. So built this house for you, and you didn't have -- So it sounds like on what you had is you had an outside-in water problem. Q. You had water from the outside coming -- A. Coming inside. Q. -- inside the house. Q. And at the new place in, you had water -- A. Inside. Q. -- from the inside flowing inside. Q. What was the plumbing problem? A. The plumbing contractor forgot to glue

13 Page (Pages -) Page Page 0 0 the joints when he put -- assembled the drain lines. And so the very first time we did our laundry, we heard a -- this big whoosh and it kept going. And went down and found out that the pipes were just all disconnected down in the basement. Q. And they were all -- They had just blown apart? A. Yeah, they had just blown apart, so -- So that was a fairly small issue at that time, although we were also -- Even though the listing didn't show it and it wasn't too evident to us, that the house was actually on the Mile floodplain, and about two years after we lived there, we -- I was out -- I had a little plow and I was out plowing across the back side of our property to divert water that was coming from Mile. We didn't get any water at that time, but it definitely came flooding across our property and was within, you know, maybe a hundred feet of the house, so -- Q. All right. And I imagine also you probably -- since you got to control the construction on some level, you probably had a drain tile system Q. Uh-huh. A. And so you would know -- you could see that on a lot of lines, but not all of them do. Some just use a clear and you can't tell. In new construction, you know, I look for the color. If I was doing the home inspection on a newer home, I would look for color to make sure that the lines were glued. Haven't had that problem. Q. Do you always see the color on new construction? A. Not always. Um. I'm sorry, I said um. Q. Oh, you're fine. A. Because you don't know because some of them don't use the purple-colored one; they use just a clear one. Q. It's not an issue in this case. Q. But do you -- When you're looking at construction -- or when you're looking at new construction and you don't see the purple primer, do you note that in your report and say you want to verify it's been glued? A. I will look closer if I would do that just to make sure that the lines were glued -- Page Page 0 0 Q. -- installed? It was a crawl space. Q. A crawl space, gotcha. All right. And did your crawl space ever flood while you owned that property in? Q. All right. A. Not with the exception of the laundry flooding. Q. Okay. So did the laundry flood the crawl space? A. Yeah. Q. All right. And so he didn't -- The plumber didn't glue the drain lines. Q. All right. Were they using PVC pipe at that time? Q. All right. Can you tell when you're inspecting a property whether the lines have been glued or not? A. Not always. Some of the plumbers use a purple coating. Q. Like primer first? A. Like purple primer. 0 0 Q. Okay. A. -- if they're visible, where they're visible. Usually it's crawl space, you know, because that's where they're typically having to be supported by something other than the truss -- the -- the joists. Q. Okay. All right. So did you have your home inspected in -- I imagine -- Did you finish it, what, in ' or '? A. It was ', yes. Q. '? Did you have it inspected before you moved in? A. Not by a home inspector. It would have been inspected by. Q. Q. Yeah. So maybe another situation where, even though home inspectors really weren't around all much at the time, maybe a home inspector could have caught that problem for you, if a home inspector had been available to you? A. I would doubt that because the line didn't really rupture until there was actually

14 Page (Pages 0-) Page 0 Page 0 0 pressure put against it. Q. So it may be a latent issue. Q. Something you couldn't readily see. Q. Okay. So you've got -- These first two houses, you've got the house on that has a water problem with the water outside the house coming into the house. Q. And the second house you've got -- you had a plumbing problem where you got an internal plumbing problem where water that's already inside the house dumps into the house. Q. Okay. Is there any connection between those two problems one and the other? For example, if you have water -- if you have an outside-in water problem, for example, like you had at, does that tell you about the condition of the plumbing in the house? Q. They're two separate issues, right? Q. And when you had the plumbing issue with 0 0 Q. And did you build in, buy new construction? A. We bought a new -- a house that was being built by a contractor, plumbing contractor. Q. I'm sorry. By who? A. He was a plumbing contractor. Q. Bought a new home being built by a plumbing contractor. Q. Okay. And was that a well-built home? A. Compared to the other two houses, yes. All right. I forgot to ask, the home, when you say compared to the other two houses, did you have problems with the Florence home other than that plumbing issue? A. No, no. Q. Okay. So with the home, do you Page Page 0 0 the Florence home, did that tell you anything about whether or not you might also have an outside-in water problem? A. No, it never indicated that. Q. Okay. So when you have a pipe leak, for example, in a basement, what that tells you is you had a pipe leak, right? Q. But if you know that there's a pipe leak and don't know anything else about the basement, you're not going to know one way or the other whether there's an outside-in water problem unless you're actually looking closer and looking for signs of that. Is that fair? Q. So in, was that the only -- was that the only problem you had in? Q. And how long did you live in the house at? A. About five years. Q a A. 0 0 remember who that contractor was? A. I can't remember what his name is. No. Q. All right. How long did you live in that house? A. We lived there approximately five years. Q. So until '. Then till approximately '. A. '. Q. And then to approximately '. A. '. Q. Okay. And so any issues with water that you experienced at the property? A very interesting one. Our house there -- we had a lightning strike next to our house. It split our foundation, which caused a leak in the basement. Q. You had a lightning strike that split your foundation wall. Q. Did it cause an immediate leak? Q. What immediate leak -- Where was the water -- that immediate -- Strike that. A. From the downpour that ensued from the thunderstorm that was --

15 Page (Pages -) Page Page 0 0 Q. All right. So was it a direct strike on your foundation? It hit -- The lightning struck a pole right next to our house -- Q. Okay. A. -- within about 0 feet of the house. Q. All right. So how big was the crack that formed? A. It went from the top of the foundation all the way to the base. Approximately maybe an eighth of an inch. Q. All right. A. It was small, you know, comparative. Q. That's some bad luck. A. It was. Q. I've never heard of that. I've heard of all kinds of foundation problems being caused by the elements, but never by lightning. A. It was very interesting. We were laying in bed, and we heard this kawoomp, and it just shook the house. And then we heard this c-s-s-r-k. And I go what was that? I went downstairs and there's this little crack. Q. Did it crack along the rebar or what? A. No, it cracked -- It went right through. to get that name back to you. He was just a small builder from, and he was building houses up on area with his brother. Page Page 0 0 I mean, it just went split all the way down. Q. All right. A. And the next morning I went, there was water coming in. Q. All right. And I imagine you patched the crack. It wasn't a structural issue in the sense that it wasn't movement -- A. Right, right. I contacted a concrete contractor that I knew that I had done business with with the and he explained to me how to fix the crack. Q. And then any problems after that? Q. All right. And so any other water issues at that house -- Q. -- other than what we've discussed? A. No, no. Q. And in ', is that when you moved to the new one? In ' we bought another house that was brand-new. It was being built up on Q. And who was that builder? A. That was -- Let me think. I would have 0 0 Q. Is that the kind of thing that a home inspector would -- a competent home inspector would identify when you're talking -- I'm not talking about, you know, stairs that are a quarter inch off. You're talking about stairs that the rises and the runs are sometimes two inches difference. Just visualizing it, if you've got home inspection training, it sounds like a competent inspector is going to call that out. And I usually note that. Q. Did you have a home inspector for this house? Q. But I think what you said earlier is you didn't have a home inspection when -- training when you bought the house. Q. And for that reason, as you're walking

16 Page (Pages -) Page Page through it, that's not something that you would know or notice, really. A. That's right. That's right. Q. But -- Because you had no home inspection training, right? Q. Okay. But then when you got that advanced training, then you were able -- then you would have been able to call it out. Q. But I guess that's why people get home inspectors, right? A. That's right. Q. Because home inspectors are supposed to be the experts. Q. So other than the stairs, what other problems did you have with that property that you wish you had home inspection training for before you bought? A. Well, nothing specifically. We did have a water issue. We left the sprinkler on when we went on vacation and came back to a swimming pool in our crawl space. Q. Was it an automatic sprinkler that on that one. And they turned the water off after about two, two or three days; they couldn't remember. Q. I see. A. But there was still two or three inches in the crawl space, because there was a plastic covering. Q. You had a vapor barrier? A. I had a vapor barrier in it, so there was still water on top of the vapor barrier. Q. Understood. Other than that one event with the sprinkler, did you have any other water problems -- Q. -- during your ownership of? Q. Okay. And I don't -- Maybe I asked this and I got you away from it, but we talked about the stairs, that you wished you had home inspection training for the stair issue before you bought. Were there any other problems in that home where you discovered issues after the fact that you couldn't identify because you didn't have the home inspection training but that you would Page Page 0 0 No, we just left it on and left. Q. Understood. A. And the neighbor saw it and said they're not -- they're gone. We don't think they should have a sprinkler on, so they turned it off. But by that time it was flooded. Q. How long had it run for; do you think? A. Two days. Q. And then did they call you and you came back from vacation or -- Q. That's probably good. At least you got a decent vacation out of it. I mean, probably wasn't anything you really could do anyway. Q. And you had a crawl space up on Scott Allen? Q. And was there standing water in it when you came back? Q. Is that a real clay area, or why would the water still be standing in your crawl space? How long were you gone on vacation? A. We were gone about five days, I believe, 0 have been able to identify now? A. Not specifically, no. Q. So, you bought it in '. Q. And then how long do you own? A. We were there years as well. Q. All right. And where do you go in? I'm sorry -- A. No, I'm sorry. I'm sorry. We were there ten years because we moved in Q. A. ' Q.. A. Q. And was that new construction? Q. How old was the property you bought at A. It would have been about five years,

17 Page (Pages -) Page Page 0 0 five to six years. Q. How many owners prior to you? A. Just one. Q. Just one? Q. Were there any disclosures on that property when you bought it? A. They had disclosed that they had some water issues and that they had installed a drain tile system around the south half of the property. Q. And in response to that disclosure, what did you do? Did you get a home inspection? Q. And do you remember who your home inspector was? A. Q. Now, why did you get a home inspection for this particular purchase? A. Well, it was a case where I just wanted another set of eyes. I had some concerns about area because I had inspected a couple houses out there that had water issues, and I just wanted another set of eyes to look to see if he saw anything that maybe I might have missed. Q. So had you actually inspected this house 0 0 evidence of a water issue that might be of concern, you've got a finished basement. What kind of things are you looking for? A. You would look for, in a finished basement, if there's any disfigured Sheetrock. Q. What do you mean by "disfigured"? A. Well, if the texture's kind of weird or doesn't match the rest of the wall or might be a bubbling in the paint. That would show that maybe the Sheetrock had expanded or had been wet at one point and expanded. Q. What about like, for example, you know, sometimes when there is a -- when there's a water event in a house and the drywall wicks up water maybe a foot and a half or two feet up, people will cut the drywall out and then let it dry and then put more drywall in and patch it. Do you know what I'm talking about? A. Uh-huh. Q. Is that something you also look for when you're inspecting? For example, if you see that, is that something that tells you, hey, maybe there's a reason why they did that? A. If I would see that, yes. Page Page 0 0 on your own before you had put in an offer? A. I did a fairly -- a good visual inspection of it. Q. Did it have a finished basement? Q. All right. When you did your visual of the basement, did it have evidence of water damage or staining? Q. And what was the disclosure that was made to you? Was it that -- Do these folks have a finished basement and then get water and have to rip it all out? What kind of -- A. I believe they had the water issue before they finished it. They did some work after it was -- the house was built. Q. All right. So when you're looking at, for example, a finished basement, you know, I'm guessing when you were there, for example, you're not seeing standing water in the basement when you're there. Q. All right. So if you want to check a basement that's finished, for example, for 0 0 Q. Because it could be evidence that they've needed to remove the Sheetrock before, and one of the reasons why you remove Sheetrock like that is a prior water event. Q. All right. So you talked about disfigured Sheetrock. What else? What other things would you be looking for in a finished basement? A. Well, that would be about all you could see. Q. What about -- For example, maybe this falls within your definition of disfigured Sheetrock, but just water staining? A. You might see that, but that probably would be accompanied by some sort of disfiguration in the Sheetrock. Q. Okay. And then when you're walking around, I'm guessing like when you're at you're walking through a finished basement, yo 're going to look at the ceiling. Like I'm looking at the ceiling now. And sometimes if there's, for example, water staining of the ceiling tiles, that would tell you that there's been a prior water event.

18 Page (Pages -) Page Page 0 0 Q. So maybe you're more likely to see water staining in ceiling tiles than you would on drywall, but in either event, what you're looking for is evidence that water has been here before. A. Correct. Q. And it doesn't require that water actually be there when you look at it, right? A. I'm not sure what you're asking here. Q. Well, when you're talking about disfigured Sheetrock, the Sheetrock doesn't need to be wet at the time you look at it to tell you that there may be a water problem, right? But if it's dry, it wouldn't necessarily report that -- a water issue either. Q. If you've got disfigured Sheetrock that's dry, what does that tell you, potentially? What are the possibilities? A. Well, it had been wet probably at some point. Q. And if it's been wet at some point, then you don't know at what particular point, correct? A. That's correct. Q. And if you don't know a particular point, then you don't know whether it's something 0 0 inspector? Q. If you see signs of water in the basement, even if you don't see the actual water itself, but you're seeing evidence of prior water intrusion or a prior water problem, then you're going to put it in your report. A. On some level, yes. Q. When you say "on some level," give me the broad range of -- When you say "some level," what does that mean? A. Well, understandably I don't know the history of the property, and so I can only report on what I see at the time. And so I don't know if there is something that would be a recurrent or if there was something that had been individual, even if my prior history with houses, I don't -- couldn't say if -- You know, I couldn't look at my house and say, well, this was a historical or this was -- this happened every year, like it did at Skyview, or if, in fact, it was just a plumbing leak like it was in Florence, or if it was a -- caused by the crack in the foundation like it was in Lolo. Page Page 0 0 that happened recently or in the distant past, true? Q. And you don't know if it's happened recently or the distant past, then you don't know whether it's happened both recently and in the distant past, correct? A. That's correct. Q. All you can do is look at that snapshot or that piece of disfigured Sheetrock and say, I don't know exactly what the problem is here, but it looks to me like there's been water. Right? Q. And so what you do as a home inspector is, it's not your job then to diagnose the problem and figure out cause and scope and frequency, right? A. That's right. Q. It's your job to say, hey, in the basement you've got disfigured Sheetrock. It's potentially evidence of a prior water intrusion, and I suggest you consider it, maybe follow up with a contractor. Q. That's what you do, right, as a home 0 0 So the -- I can't tell the history of it because I don't know if it was from a single event or multiple event. Q. Right. So it's not your job to determine whether it's a single event -- Q. -- or a multiple event, right? A. That's correct. Q. It's your job to look for the evidence of prior water intrusion or a prior water problem, and if you see any evidence, you report on it. A. To the best of my ability, yes. Q. Right. And then it falls to, you know, based on -- Strike that, please. For example, you see -- We talked about that disfigured Sheetrock. So your report might say here's a picture of disfigured Sheetrock. It's consistent with a prior water event, prior water intrusion or water problem. I suggest that you follow up with a licensed contractor, or something along those lines. A. A recommendation to follow up on it, yes. Q. Okay. So even though you don't know what the exact problem is, you're looking at that

19 Page (Pages 0-) Page 0 Page 0 0 piece of evidence, a dry piece of disfigured Sheetrock, and saying there's been water here before. I can't tell you a whole lot more about it, but you want to follow up and take a closer look. MR. JOHNSON: We've been going for about an hour. MS. MORE: About an hour. MR. JOHNSON: Yeah, that would be great. Why don't we -- All right. It's -- it's about 0:0. Why don't we take ten minutes? MS. MORE: Okay. MR. JOHNSON: Okay. Great. Thank you. (Whereupon, the proceedings were in recess at 0:0 a.m. and subsequently reconvened at 0: a.m., and the following proceedings were entered of record:) MR. JOHNSON: All right. Great. It's about 0:0. We're back on. Q. (BY MR. JOHNSON) Mr., so we've been talking about -- before we took the break, about the property that you purchased on The Ranch Club. 0 0 had a concrete deck in the back and that it was pretty much major cracks and settling. And then there was some concrete settling in the front with the driveway and sidewalks. Q. Did he identify anything for you during his inspection that you had not identified during your own? A. Not specifically, no. Q. All right. And the concrete cracking, I'm assuming that is from settlement or differential settlement of soils? Q. And that's because there is a clay problem out there in Q. And many of the builders that were building out there didn't get engineered foundations or engineered building plans and just sunk concrete piers or foundations right on top of clay, right? Q. Is that what happened with your property? A. Just on the exterior. The interior seems to be okay. There's a little bit of Page Page 0 0 Q. And you inspected it yourself, or gave it a good visual once-over. Q. And then you asked a colleague of yours, -- Q. -- to inspect it as well. Q. And is - What is his business name as an inspector? A. ons. Q.? And is he still in business? Q. All right. Is he an ASHI member as well? Q. A friend of yours? A. Sort of. Not real close. I mean, just business-wise. Q. He's a professional acquaintance? A. A professional acquaintance, yes. Q. And what did Mr. inspection report tell you? A. About what I knew. There was concrete settling. There was an issue in the back where it 0 0 settling in the basement slab, which has caused a little tiny crack in one of the walls, but not -- not significant. There's nothing major -- no major cracks that I can see in the walls or the foundations or things like that. Q. What about the exterior cracking and settlement that you were talking about? Tell me a little bit more about that. A. Well, in speaking to the homeowner after I had the inspection from Will, he hired -- The back deck was put on after the fact. It was not put on there by or -- I believe is the one who built my house. And they gave him a really good cheap bid to put the concrete deck in, but they didn't prep the soil at all, and it just went c-c-r-r-k-k-k. Q. All right. A. And so I had to put a new deck over top of it. Q. All right. So you bought the house knowing that it had that problem. Q. All right. And you said there was some significant settlement in the concrete driveway as well?

20 Page 0 (Pages -) Page Page 0 0 It continues to this day. It was approximately an inch or so, inch-and-a-half drop between where it met -- where the driveway met the slab and the -- and the garage. Q. All right. And what does that tell you about what's happening there? When you look at that as a home inspector, what does that tell you? A. Well, that the clay is causing settlement in most of the flat work. Q. So that is a symptom of settlement, right? Q. You don't actually watch it pop or crack right in front of you; that's something that happens over time. Q. So when you're inspecting a property that has, for example, clay issues or structural settlement, differential settlement, you aren't -- you can't identify an active settlement process; you can only identify the symptoms associated with settlement, right? Q. And so, for example, when you're inspecting a home that has cracks that you suspect 0 0 driveway. If you are inspecting someone's property and you identify cracking like that, your report isn't going to say here's what's causing it, and here's what the problem really is and here's how you fix it. Your report's going to say here's a crack; it's cause for concern; it's consistent with settlement; you need to follow up. Q. Your job as a home inspector is to identify evidence of problems, not to diagnose and prognosticate and provide specific details, right? A. That's correct. Q. You are sort of a -- If you were a doctor, you'd be like a generalist. You'd be like the family doc, the first line of defense, and then there are specialists behind you, right? Q. Have you ever had water problems at home that you bought? A. Internal. I had a water pipe freeze. It wasn't properly insulated between the wall and the water pipe and it froze. And it was in my hose bib, and when I turned the hose on, I got water in the basement. A little bit, not a lot. Page Page 0 0 or settlement cracks, you don't know how long it's been there, right? Q. Or for how long it's been happening. Q. You don't know whether it has just started, right? Q. Or if it's already run its life course and it's stopped settling. Q. So as far as scope, frequency, whether it's going to get better, whether it's going to get worse, it's not your job to figure that out, is it? A. That's right. Q. But it is your job to identify the crack or the evidence of settlement as a symptom of settlement, correct? A. As observed at the time of the inspection, yes. Q. Absolutely. And so, for example, we talked about the disfigured drywall. We're talking about, for example, evidence of structural compromise like the large cracking in your 0 0 I heard it and caught it quick. Q. Okay. So how much water did you have in your basement? A. Maybe a couple gallons. Q. Did it ruin the Sheetrock or anything like that? A. It did a little in the ceiling, but not much. I caught it before it got too wet. Q. Did you repair it yourself or did you call somebody else to handle it? A. I repaired it myself. I cut a hole in the little cavity there so that after the plumber fixed it, that we would have heat available to go into that particular joist bay and I put a grate on it. Q. I understand. Okay. So you sort of -- You weren't able to actually insulate it, but you opened it to the airflow from the inside. Q. All right. Any problems since? Q. And so that was -- That's the internal plumbing leak again? Q. Although I guess maybe it's a hybrid,