2010 06 11 Smith Answers to Yelm Interrogatories_Page_011
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Hon. Thomas McPhee
ANDREW J. SMITH and CYNTHIA M.
SMITH, husband and wife,
Plaintiffs,
►0
Defendants.
No, 09-2-02879-3
TO: Andrew J. Smith and Cynthia M. Smith, Plaintiffs.
Pursuant to CR 26, 33 and 34, you have been served with the original interrogatories
and requests for production.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - I
MORRIS & TARADAY, P.C.
P.O. Box 948, n23 Seawitch Lane NW,
Seabeck, WA 98380-0948
Tel. 360-830-0328 - Fax 360-850-1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
INSTRUCTIONS
A. Due Date. Pursuant to CR 26, 33 and 345 you are directed to provide a written
response to these Discovery Requests and to produce and make available for inspection and
copying all of the original documents requested herein at the offices of Morris & Taraday, P.C.,
1319 Dexter Avenue N., #030, Seattle, WA 98109, within thirty (30) days after service upon
you, or at such other time and place as made mutually agreed upon by the parties. The requests
for documents cover all documents in your possession, custody or control, including, without
limitation, documents in storage and documents held by agents, attorneys, or other persons on
your behalf and subject to your control. In case of any ambiguity as to whether a document is
called for by these requests, any such document is to be produced.
B. Objections. If any document is withheld under a claim of privilege, please:
1. Identify any such document with sufficient particularity as to author(s),
addressee(s), recipient(s) and subject matter and contents to allow the matter to be brought
before the Court;
2. State the nature of the privilege(s) asserted; and
3. State in detail the factual basis for the claim of privilege.
C. Requirement to supplement. These requests for production of documents are
continuing in nature within the meaning of CR 26(e).
D. Document delivery. Deliver each document produced in a manner which
preserves its sequential relationship with other documents being produced, including the file
folder and folder tab associated with its file location, and if not apparent on the folder tab,
accompanied by identification or the person or department from whose files it was taken and
DEFENDANTS YELM AND BECK'S MORRIS & TARADAY, P. C.
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 2 P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck WA 98380-0948
TeL. -360--830--0328 • Fax-3-60--850-1-099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
such additional source information as is necessary to enable the parties to determine the
document's original pre-production location. When documents are produced pursuant to these
I Discovery Requests, the documents are to be produced in a manner so that the discovery
I request to which they are responsive can be readily identified.
E. Missing documents. If a document called for by a request is known to have
existed, but cannot be located now, identify the document and state the following:
1. Whether the missing document has been in your possession, custody or control;
2. Where the missing document was last known to be and the date when the
document was last known to be in such location;
3. In whose possession, custody or control, a copy of such document may be
4. Where applicable, whether the document has been destroyed.
F. Deleted documents. Emails and other documents may appear to have been
"deleted" from a desktop; however, they are not necessarily irretrievable. Therefore, please
confirm that you have searched for evidence on hard drives, networks, back up tapes, or from
whatever other data storage method may apply.
G. Sources of documents. These Discovery Requests cover documents that may be
stored on any cleetronic/computer media, including, but not limited to, stand alone computers,
laptops, networks, personal digital assistants, cellular telephones, voiceinail systems,
"Blackberry" devices, and such other electronic storage media as may be within your control,
that of your attorneys, or that of your agents.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 3
MORRIS & TARADAY, P.C.
P.O. Box 948,7223 Seawitch Lane N.W,
Seabeck, WA 98380-0948
Tel. 360-830-0328 Fax 360-850-1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
163owle
Unless conclusively negated by the context of the question, the following is to be
considered applicable to all questions contained in this set of written interrogatories and
I requests for production:
1. The singular number and the masculine gender as used herein shall embrace,
I and be read as applied as, the plural or the feminine or the neuter, as the circumstances may
make appropriate.
2. The word "person" includes the plural as well as the singular and includes any
natural person, proprictorships, sole proprietorships, corporations, non-profit corporations,
municipal corporations, professional service corporations, limited liability companies, local,
state, federal or foreign governments, or governmental agencies, political subdivisions, general
or limited partnerships, business trusts, trusts, estates, clubs, groups, unincorporated
associations or other business or public organizations.
3. Each interrogatory is intended to, and does, request that each and every
particular and part thereof be answered with the same force and effect as if each part and
particular were the subject of and were asked by a separate interrogatory.
4. The terms "document" and/or "writing" mean and include, but are not limited to,
all written and graphic matter, however produced, or reproduced of every kind and description
in your actual or constructive possession, custody care or control. This includes the complete
original (or complete copy if the original is not available) and each non-identical copy
regardless of origin or location. "Document" is intended to have the same meaning as in CR
34, including, but not limited to: writings, correspondence, electronic mail (e-mail) messages,
DEFENDANTS YELM AND BECK'S MORRIS & TARADAY, P. C.
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 4 P.O. Box 948. 7223 Seawitch Lane N.W,
Seabeck, WA 98384-4948
Tel. 360-830-0328 - Fax 360-850-1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
W11
"s
I
19
20
21
22
23
N1
W
I internet messages, web pages, voiceniails, information on handheld digital assistants,
I facsimiles, books, pamphlets, periodicals, reports, blueprints, sketches, laser disks, magnetic
I disks, magnetic strips, microfiche, invoices, statements, minutes, purchase orders, contracts,
I vouchers, checks, charge slips, expense account reports, hotel charges, receipts, working
Ipapers, memoranda, messages, notes, envelopes, business records, financial statements,
I agreements, leases, drawings, graphs, charts, drafts, maps, surveys, plats, statistical records,
I cost sheets, calendars, appointment books, diaries, timeshcets or logs, telephone records or
I logs, facsimile logs, photographs, sound tapes or sound recordings, films, tapes, computer
I printouts and any other data, including, without limitation, data stored electronically or by other
I technical means for use with computers or otherwise from which information can be obtained
I or translated through detection devices into reasonably usable form, or any other tangible thing
I that constitutes or contains matters contained within the scope of CR 26(b). "Document" also
I refers to all computer data (as defined below).
5. "Computer data," as used herein, means any and all data or information
� contained or stored in a computerized format and/or maintained on computer equipment of any
kind or nature, including but not limited to, (a) disks, computer tapes, and information stored
on a hard drive, (b) a detailed description of data stored on computer hard drive(s), disks, or
media of any type including any type of storage media and size of data file, (c) a detailed
description of how such data is maintained, (d) the software program and version utilized for
the creation, data collection, and/or maintenance of such data, and (c) hard copy printouts of the
data.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 5
MORRIS & TARADAY, P.C.
P.O. Box 948,7223 Seawitch Lane N.W.,
Seabeck WA 98380-0948
Tel. 360-830-0328 - Fax 360-850-1099
1
2
3
4
5
6
7
8
9
10
it
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6. ' Whenever you are asked to identify any document or writing, state with respect
to each such document in writing:
(a) The date it bears and the date it was prepared;
(b) The identity of the author and/or originator;
(c) The identity of each addressee;
(d) The nature and substance thereof,
(e) The identity of the present custodian thereof;
(f) The present location of the document; and
(g) Whether you will provide a copy thereof without further request.
7. Whenever you are asked to identify or describe an oral communication or
conversation, state with respect thereto;
(a) The date and place thereof and whether it was by person or by telephone;
(b) The identity of each person who participated in or heard any part of the
communication;
(c) The substance of what was said by each person who participated therein;
(d) The identity of any document that recorded, summarized or confirmed
the oral communication.
8. Whenever you are asked to identify any person, state with respect to such
wim
(a) The person's name;
(b) Such person's last known business address and telephone -number;
(c) Such person's last known residence address and telephone number;
DEFENDANTS YELM AND BECK'S MORRIS & TARADAY, P. c.
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 6 P.O. Box 948, n23 Seawitch Lane NW,
Seabeck WA 98380-0948
Tel. 3043-0.0318 • Fax 360- 850 1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
In
(d) Such persons present occupation and business affiliation at the time to
I which your answer relates.
9. "The Premises" means the "lot" referenced by plaintiffs at line 22, p. 3 of the
First Amended Complaint and 10756 Palisades Street, Yelm, Washington, or "lot 15," as
11 referenced by the plaintiffs at line 12, p. 4 of the First Amended Complaint.
Defendants will object to the introduction of testimony on any issue covered by these
11 interrogatories and requests for production unless the information requested herein is furnished
I by answer at least sixty (60) days prior to trial.
I leg I N 11.11 1 1 0 4
Please read the foregoing definitions before answering these interrogatories.
Interrogatory No. 1: Identify each person(s) who participated in drafting answers to
these interrogatories, and for each person listed, indicate the specific interrogatory or
interrogatories for which the person(s) furnished the information.
16 11 ANSWER:
17
18
19
20
21
22
W,
24
W
Andrew J. & Cynthia M. Smith participated in drafting responses to these
interrogatories, and Cushman Law Offices.
Request for Production No. 1. Produce all documents, writings, communications and
computer data relating to the plaintiffs' purchase of the Premises. This includes the purchase
and sale agreement for the lot, the purchase and sale agreement for construction of the home on
the Premises, all amendments and addenda thereto, seller disclosures, title report, appraisal,
inspection report, and all documents obtained by the plaintiffs as part of their due diligence.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 7
MORRIS & TARADAY, P.C.
P.O Box 948,7223 Seawitch Lane N.W.,
Seabeck WA 98380-0948
Tei.-H-6--no-om - Fax 360-850-1099
I
8
9
10
11
12
13
14
1161
16
17
18
19
20
21
22
23
24
25
11CIAM163,1204
Defendants Triance, Lee, and State Farm made a previous records request of
documents from First American Title Company, which includes all of the
documents requested above. Attached is a complete copy of the documents
produced, as Response to RFP No. 1 A. Attached also are the construction
contract documents between the Smiths and Triance, as RFP No. 1 B.
Interrogatory No. 2. In the First Amended Complaint, line 22-26 of page 3, plaintiffs
make the statements that the plaintiffs purchased the Premises "based on the representation that
the lot was developable, that their general home design could be built on the lot and that the
home could be legally occupied when built. These representations were made by Steve
Chamberlain through Maureen Nieland. Maureen Nieland specifically assured the Smiths that
the property was as represented." With respect to these statements, please state the following:
(a) Each and every relevant fact on which you rely in making the above-described
allegations;
For several months preceding March 2008, a significantly sized "Lots For Sale"
sign (billboard) stood in front of the entrance to the Palisades West subdivision.
The advertisement listed Triance Homes as the agency to contact and there
were flyers containing a map showing each numbered lot (1 — 24). In driving
through the subdivision, the lots were graded, had numbered signs posted in
the front corner of each lot and utilities had been run to each lot. Concurrently,
we had driven through the Vintage Greens subdivision several times and really
liked the homes in that neighborhood although the location was not as ideal (it
would have required our daughter to change middle schools). We stopped in
one day in March 2008 at the model home in Vintage Greens and spoke to the
realtor (Maureen Nieland). We mentioned how much we liked the homes in
Vintage Greens but that we had seen a planned neighborhood, Palisades West
in a different part of town and liked that location better. Ms. Nieland
immediately responded that they (Van Dorm Realty) represent that property as
well and that we could build any spec home available in the Vintage Greens
subdivision or any home on the Mascord.corn website in the Palisades West
subdivision by the Vintage Greens builder. Over the course of the next several
weeks, we selected a proposed homesite (Lot #13 in Palisades West) and
selected a home design from the Mascord.corn website.
DEFENDANTS YELM AND BECK'S MORRIS & TARADAY, P.C.
FIRST INTERROGATORIES AND REQUESTS P.O. Box 948, 7223 Seawitch Une N.W.,
FOR PRODUCTION TO PLAINTIFFS - 8 Seabeck WA 983BO-0948
--- Tel. 360--830-0328 - Fax 360--850-1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
(b) Identify with sufficient particularity each and every record, drawing,
photograph, videotape, document or other record of any kind which contains
information or evidence concerning your answer to this interrogatory.
ANSWER:
A 0 M
Request for Production No. 2. Produce all documents containing information to which
the preceding interrogatory refers.
I f :� s Q.
See Answer above.
Request for Production No. 3. Produce, all reports, assessments and information
requested, commissioned or obtained by the plaintiffs prior to purchase or prior to closing on
the Premises, which relate to the value of the Premises, the condition of the Premises, including
but not limited to, the lack of any water to the Premises.
1611 RESPONSE:
17
18
19
20
21
22
23
24
25
See Response to RFP No. 1. Further, there is no actual lack of water to the
Smiths' lot. Rather, the City is refusing to allow them to use the city's water by
denying the Smiths' occupancy.
Request for Production No. 4. Produce all records relating to the plaintiffs' application
for and acquisition of loans or other debt for purposes of purchasing the Premises and
construction of the home on the Premises.
See Response to RFP No. 1.
DEFENDANTS YELM AND BECK'S MORRIS & TARADAY, P. C.
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 9 P.0, Box 948,7223 Seawitch Lane N.W,
SeabecK WA 98380-0948
TeF. 360-830- ix- 36D--850-1099
2
3
4
5
6
7
8
9
10
11
IN
13
14
15
16
17
18
19
20
21
22
23
24
25
Request for Production No. 5. Produce all photographs and videos in their native
format showing the Premises, and conditions thereon.
Attached are two photos • the lot prior • construction, and in various stages of
construction.
Request for Production No. 6. Produce all documents, writings, computer data, reports,
letters, e-mails or other communications from any of the defendants to the plaintiffs regarding
the Premises, including but not limited to conditions thereon, its acquisition, development,
submission of permit applications to the City of Yelm, performance of plat conditions and its
economic value.
139MIXON&S-9
The City already has copies of all pre-lawsuit documents between Dan Lee and
Grant Beck, as well all communications between Cushman Law Offices and
City of Yelm attorneys. Plaintiffs are unaware if other Defendants had
communications with the City, but if so, the City would be in possession of
those communications.
Interrogatory No. 3. When did the plaintiffs identify themselves to anyone at the City
(including any City officer, official, employee or agent) as the owner of the house identified in
the building permit for the Premises?
F.11 0 KAIN
On 9/5108, Mr. Dan Lee of Triance Homes (the Builder) completed and
submitted the building permit which clearly identified Andrew and Cynthia Smith
as the owners. The City issued the building permit on 9117108. We did not
interact with anyone from the City of Yelm throughout the building application
and/or construction processes. While our ownership was identified on the .
application approved by the City, we did not meet anyone from the City of Yelm
until 5 June, 2009 (two months after the completion of our home).
1111,163111110=06
11;19j 'ka V 1410) �1111" V 1�81M NJ V �Wliq 101 IN �10
MORRIS & TARADAY, P.C.
RO, Box 948, n23 Seawitch Lane N.W.,
Seabeck WA 98390-0948
TeL 360;830-0328_ Tax 360450-w1099-
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
W-
21
22
23
24
25
Request for Production No. 7. Produce all documents, writings, computer data or
communications between the plaintiffs and the City (including any City officer, official,
employee or agent), in which the Smiths identified themselves as the owner of the house
identified in the building permit for the Premises.
1161*30IM143
1111�pllijlli 11; :l11111 I 14�6 I* �10 -
VIA
Interrogatory No. 4. When did the Smiths, or any person known to the Smiths, inform
the City (including any City officer, official, employee or agent) of the date that the plaintiffs
intended or contracted to occupy the house constructed on the Premises?
From conversations with Mr. Dan Lee during the February — April 2009
timeframe, we gathered that he had begun notifying the City of Yelm in the
December 2008 timeframe of our anticipated occupancy.
Request for Production No. 8. Produce all documents, writings, computer data or
communications between the plaintiffs and the City (including any City officer, official,
employee or agent), in which the plaintiffs, or any other person known to the plaintiffs,
informed the City of the date that the plaintiffs contracted or intended to occupy the residence
on the Premises.
A
RESPONSE:
See attached.
DEFENDANTS YELM AND BECKS
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 11
MORRIS & TARADAY, P.C.
P.O. Box 948,7223 Seavy1tch Lane NNY,
Seabec% WA 98380.0948
Tel.- 360--830-0328-. Fax 3-60-8SO-1099--
6
GI
1361
7
8
9
10
11
12
13
IV,
15
In
I
9
01
M
Interrogatory No. 5. In plaintiffs' First Amended Complaint, In. 17-18, p. 7, the
plaintiffs allege that "Grant Beek used the services of the City's attorney to further a personal
vendetta against Steve Chamberlain by fabricating obstacles in order to prevent the Smiths
from occupying their home in the hope that this would expose Steve Chamberlain to liability."
With respect to this allegation, please state the following:
(a) Each and every relevant fact on which you rely in making the above-described
allegation(s).
(b) Name, address and phone number of each person having knowledge of the facts
of your answer to subpart (a) above.
(c) Identify with sufficient particularity each and every record, drawing,
photograph, videotape, document or other record of any kind which contains information or
evidence concerning your answer to this interrogatory.
ANSWER:
The fact that the City, through the guidance of Grant Beck, had not only
approved Palisades West as a final plat without having all of the preliminary plat
conditions fulfilled, but also failed to require a performance bond from
Chamberlain to complete the remaining two preliminary plat conditions that had
been ill-advisedly transferred into final plat conditions, demonstrates what had
been a too-cozy relationship between Grant Beck and the developer Steve
Chamberlain, who has many developments through out the City of Yelm. When
the housing market plunged, such backroom deals became exposed, and the
relationship between Beck/Yelm and Chamberlain crashed with it. Since no
form of security from Chamberlain had been required to ensure completion of
the plat conditions, we believe that Grant Beck was withholding the Smiths'
occupancy permit in an attempt to use that as leverage against Chamberlain.
Although the Smiths proposed several viable solutions, including a final plat
amendment application, that would have allowed occupancy of their house, and
only their house, until the full-plat conditions could be completed, their efforts
were purposely stonewalled and delayed by Mr. Beck. When their final plat
amendment finally came before the City Council, the Council was initially
receptive, but that soon changed after Mr. Beck used the City's attorney to
completely distort the Smiths' proposal. Then once they got the Council were
they wanted them, it was quickly steered toward a path to deny the application.
Rather than allow a one-residence occupancy exception to the final plat
conditions to remedy a situation caused by the City's errors, we believe the
City/Beck instead choose to prevent any reasonable solution for the Smiths so
they could be used as leverage to get Chamberlain to fulfill the plat obligations.
If there is some other reason, we are at a loss to know it, since the Smiths'
occupancy permit issue could have been quickly and amicably resolved.
DEFENDANTS YELM AND BECKS MORRIS & TARADAY, P. C.
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 12 P.0, Box 948, 7223 Seawitch Lane N,W,
Seabed(, WA 98380-0948
Tel. 360-830-0328; -Fax 360-850-1099- ----
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
41
22
23
24
25
Request for Production No. 10. Produce all documents, writings, or other
communications which support the plaintiffs' answer to Interrogatory No. 5 above.
Attached is the Smiths' initial final plat amendment submittal in August 2009,
plus some of the follow-up correspondence showing a chronology of events.
The City is in possession of these and additional related documents as well.
Request for Production No. 11. In plaintiffs' First Amended Complaint, In. 20, p. 8, the
plaintiffs claim that because the residence they were renting was sold, "they had to commit to
another one-year rental on a different house." Produce all documents, writings or other
communications which relate to the plaintiffs' lease of both residences, including the lease
agreement,
RESPONSE:
This is currently still being compiled, and will forward as soon as it is available.
Interrogatory No. 6. In plaintiffs' First Amended Complaint, paragraph 4.4, the
plaintiffs assert that the City is required to install the water booster pump and sewer pressure
relief valve. According to the plaintiff, the City's failure to do so is a "breach of contract."
With respect to this allegation, please state the following:
(a) Identify this "contract" and produce all documents, writings or other
communications which relate to this allegation, showing that the City was required to take such
action.
(b) Identify each and every relevant fact on which you rely in making the above-
described allegations.
(c) Name, address and phone number of each person having knowledge of the facts
of your answer to subpart (a) and (b) above.
FROMM"I'M
Because the City requires its newly-constructed residences to be connected to
City sewer and water and because the City of Yelm is the sole purveyor of
these water and sewer utilities in the City, it therefore has a general obligation
to provide these utilities to its residents. Because the City issued a building
permit specifically for the Smiths' home, that constituted a "contract" that the
house would be connected to City utilities and that the City would provide and
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 13
MORRIS & TARADAY, P.C.
RO. Box 948,7223 Seawitch Lane N.W.,
Seabeck WA 98380-0948
Tel.-360-830--0328 • Fax 360-850-1099
9
10
11
12
13
14
allow these public utilities to be used by the occupants. The City has breached
its duty, obligation, and contract to provide these utilities to the Smiths for whom
it issued the building permit by its failure to issue their occupancy permit. Note
also that the building permit fees pay for ERU connections to the City's sewer
and water (see building permit at response to RFP No. 7).
This breach of contract originated with what we know realize was the City's
premature final plat approval of Palisades West recorded in January 2008. The
City had a duty to assure that all preliminary plat conditions were completely
finished before approving the final plat of Palisades West. The City Council
erroneously approved the final plat by transferring the last two remaining
preliminary plat items into final plat items. A final plat is supposed to mean that
the developer has completed all obligations for the plat as a whole, and that
individual lots are ready for sale and occupancy. At a minimum, the City should
have required a cash performance bond from the developer to ensure that
these obligations were met. Failing that, the City bears the burden of
completing the improvements it requires — whether or not it chooses to
complete the final plat conditions sized for the entire plat, or endorses an
interim solution specific to the Smiths' home, that is the City's choice, but failing
to provide neither constitutes a breach of contract.
Request for Production No. 12. Produce any and all documents containing information
to which the preceding interrogatory refers,
RESPONSE:
16
IVA
I
IN
RE,
M
In addition to the response at RFP No. 10, the City is in possession of all
preliminary and final plat documents, and all communications between the
attorneys for the Smiths and City of Yelm, discussing this matter.
Interrogatory No. 7. In plaintiffs' First Amended Complaint, paragraph 4.5, the
plaintiffs assert that the City issued a building permit which had their name on it, and which
"violated the plat conditions." With respect to this allegation, please state the following:
(a) Identify each and every relevant fact on which you rely in making the assertion
that the building permit "violated the plat conditions."
(b) Name, address and phone number of each person having knowledge of the facts
of your answer to subpart (a).
s• �An �Tmlb
! =161
NONU N ION =-I "' P INUM M I ' 1 0
1101I to V af) KIRM V men KUM W.11 ILWHN I a MOM
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck. WA 98380-0948
Tel. 360430z4328-� Fax 360-850w9()99
2
3
4
5
6
7
M
a
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(c) Identify with sufficient particularity each and every record, drawing,
photograph, videotape, document or other record of any kind which contains information or
evidence concerning your answer to this interrogatory.
ANSWER:
Final plat condition No. I for Palisades West states that no building permit shall
be issued until a [water] booster pump is installed by the developer, and the
only exception was for a model home. The City's issued building permit
identifies the building owner as Andrew & Cynthia Smith. As such, it is clearly
not a model home. There were even school impact fees paid — additional proof
that this was not a model home. The City should not have issued any
residential building permit in Palisades West until the final plat conditions were
completed, and it was the City's error in doing so.
Request for Production No. 13. Produce any and all documents containing information
to which the preceding interrogatory refers.
RESPONSE:
See Response to RFP Nos. 7 and 10. The City also has all of the plat
documents.
Inteffrogatonf No. 8. In plaintiffs' First Amended Complaint, the plaintiffs allege that
the City issued a building permit which "violated the plat conditions." With respect to this
allegation, please state the following:
(a) Identify all documents, writings or other communications which demonstrate
that plaintiffs' timely appealed issuance of this building permit.
not.
(b) If the plaintiffs did not timely appeal issuance of the building permit, state why
See answer to Interrogatory No. 7 above. Additionally, the implication that the
Smiths should have appealed their own building permit is absurd! If they had
known something was wrong with their first-choice of a site, they would not
have paid over $17,000 in permit fees and impact fees to obtain the building
permit, but would have simply chosen a different plat in Yelm on which to build.
Once the City issued the building permit, that means, or is supposed to mean,
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 15
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck WA 98380-0948
Tel-.-360-830-0328-.- Fax-360E-85G--1099
8
9
10
11
12
13
14
15
Ire
17
18
19
20
21
22
23
24
25
the Smiths' house is legally able to be built and occupied at that site, so long as
it passes its construction inspections.
Unlike Beck/Yelm, the Smiths had no idea what was entailed for completion of
the water booster pump and sewer roll seat. Since the City approved the final
plat as well as the Smiths' building permit without these items, most people
would presume these were merely inconsequential details. Unfortunately as we
now know, completing these tasks to a fully-occupied plat scale (which is what
the City insists is needed, and has refused to consider an interim alternative
sized for just the Smiths' residence), we're told costs about $400,000. It was
the City's first error in December 2007, to approve the final plat without these
two preliminary plat requirements being fulfilled, especially without even
requiring a performance bond from the developer Steve Chamberlain. It was
then the City's second error, in September 2008, to issue a residential building
permit to the Smiths, when these two requirements still had not been
completed, in direct violation of the City's own final plat condition.
The 11128107 "Warranty Agreement" between FH1 -LLC and the City of Yelm
gives the City full power to complete the plat improvements, and to hold FH1-
LLC liable for reimbursement. We can only assume that because this Warranty
Agreement is not tied to a cash bond, or even to Steve Chamberlain personally,
the low likelihood of reimbursement is why the City has not acted upon it.
Nevertheless, it demonstrates, even more, the City's duty to perform the plat
obligations that the developer will not complete.
Rgqucst for Production No. 14. Produce any and all documents containing information
to which the preceding interrogatory refers.
RESPONSE:
See Response to RFP No. 7 and 10, The City also has all of the plat
documents, as well as all of the ensuing correspondence between counsel.
Additionally in response to RFP 14, attached is the Warranty Agreement that
was referenced in Yelm and Beck's answers to Plaintiffs' Interrogatories and
Requests for Production. (Note that these Defendants did not actually provide
ANY documents in response to Plaintiffs' Requests for Production, and that is
the reason for the specific email communication requesting this one in
particular.)
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 16
MORRIS & TARADAY, P.C.
P.O. Box 948,7223 Seawitch Lane NW,
Seabeck WA 983800948
Tel. 1-60-830-0328 • Nx 3-60--850-1099
2
3
4
5
10
11
12
13
14
15
16
17
IV,
1c,
20
21
22
23
24
R
InterrogatoLy No. 9. In plaintiffs' First Amended Complaint, paragraph 4.6, the
plaintiffs allege that Grant Beck "may have acted outside the scope of his authority in his
intentional handling of this matter with the personal goal of depriving the Smiths of their
property." With respect to this allegation, please state the following:
(a) Identify each and every relevant fact on which you rely in making the above-
described allegations.
(b) Name, address and telephone number of each person having knowledge of the
facts of your answer to subpart (a) above.
(c) Identify with sufficient particularity each and every record, drawing,
photograph, videotape, document, or other record of any kind which contains information or
evidence concerning your answer to this interrogatory.
ANSWER:
The details are contained within the correspondence provided in response to
RFP No. 10. In summary, it appears that Mr. Beck: (a) likely acted outside the
scope of his authority when he granted special privileges to Chamberlain by not
requiring a performance bond for completion of preliminary/final plat conditions;
(b) may have committed gross negligence by misinforming or misguiding the
City Council with its decision to issue final plat status to Palisades West and
transfer the two uncompleted preliminary plat conditions into final plat
conditions, and again without requiring Chamberlain to post a bond to insure
their completion; (c) may have committed gross negligence with approving or
supervising the issuance of the Smiths' residential building permit in violation of
the final plat conditions; and (d) may have acted outside the scope of his
employment and in gross negligence of his duties by obstructing and interfering
with the City Council's initial directive to find a solution so that the Smiths could
occupy their house, including his misuse of the City's general counsel as a
shield against his gross negligence and other improper acts. Whether any of
Mr. Beck's actions cross the threshold into acting outside of his scope of
employment or authority, and/or were acts of gross negligence are matters for
Mr. Beck and the City to sort out and ultimately decide. Plaintiffs' Complaint is
meant to encompass and defend against the possibility that the City could try to
separate its liability in this matter from that of its employee Grant Beck.
However, it does seem to the Smiths that some of Mr. Beck's actions/inactions
in delaying, distorting (even outright lies — see response to No. 12 below), and
thwarting their proposed solutions appear to be so egregious and have caused
them so much anguish and damage, that his motives may have even exceeded
gross negligence and have become intentionally hurtful or retaliatory and/or
DEFENDANTS YELM AND BECK'S
wnw -4-64-m "a
-to- &1V
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W,
Seabeck WA 983800948
Tel. 360--836-0328 Fix 360--850-1099
1
2
3
4
5
6
7
8
9
10
11
12
originate from an as-yet-unknown prejudice or discrimination against Plaintiffs.
We cannot understand why, when the City(Beck) had the opportunity to
painlessly resolve this matter as an interim, single-site, minor amendment to a
final plat, why it instead chose a broadside attack against every solution the
Smiths proposed. Discovery is still continuing and as more facts are
uncovered, the answer to this question may become more clear.
Request for Production No. 15. Produce any and all documents containing information
to which the preceding interrogatory refers.
RESPONSE:
See documents in response RFP No. 10.
Interrogatory No. 10. Furnish the name, current address, telephone number, occupation,
job designation and present location of any person known to you or your attorneys as having
knowledge of the relevant facts pertaining to the above-entitled case. This request is intended
to include all witnesses known to you or to your attorneys.
13 11 ANSWER:
W,
15
16
17
18
19
20
21
22
23
24
25
In addition to all of the named Defendants and their attorneys in this lawsuit:
• Rita Hutcheson, Chief, SE Thurston Fire & EMS
• Gregory Hinkle, Senior Loan Officer, Home Street Bank
• Vince McClure, Professional Engineer
• Tim Peterson, Yelm Public Works Director
City of Yelm's engineer(s) at Parametrix
• State Dept of Health personnel who reviewed/approved McClure proposal
• Yelm City Council Members, including the Mayor during 9/09 — 3/10
John Johnson, formerly with Triance Homes, who initially met with Plaintiffs,
and had put together the engineering plans off of the house plans.
This answer will be supplemented as information becomes known, and certainly
prior to the time that disclosures of fact witnesses are due.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS -18
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck WA 98380 -0948
-Tel. 360 - .830.0328 Fax 3-60-850.1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Interrogatory No. 11. If you or your attorneys expect to call any person as an expert
witness at trial, please indicate as to each such person:
(a) The name, occupation, title, business address and area of specialization, if any;
1(
,c) The substance of any opinion to which the plaintiffs expect any such person to
testify and the data on which his or her opinions are based.
ANSWER:
This answer will be supplemented as information becomes known, and certainly
prior to the time that disclosures of expert witnesses are due.
Request for Production No. 16. For each expert listed in response to the preceding
interrogatory, please produce:
(a) Copies of each and every report provided to you or your attorneys;
(b) Produce the expert's entire file(s), including all documents, or provide us with a
list of all documents, that you or your attorneys have provided to your experts; and
(c) A current Curriculum Vitae.
See above answer.
Interrogatory No. 12. For each discussion that you have had with any official, officer,
employee or agent of the City of Ychn, including Grant Beck, concerning the plat, plat
amendment, building permit or any other issue relating to the allegations in the First Amended
Complaint, set forth the following:
(a) Date of the discussion;
(b) Names of those participating in the discussion;
(c) Location of the discussion;
(d) Length of the discussion;
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 19
MORRIS & TARADAY, P.C.
P.0, Box 948,7223 Seawitch Lane NW,
Seabe&, WA 98380-0948
Tel. 360-830-0328 ; Fax 360-850-1099
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(e) A statement describing the specific contents of the discussion and information
conveyed by each party for each discussion identified; and
(t) A description of each document which supports your responses to it.
There was a June 5, 2009 meeting which occurred at the City offices, lasting for
approximately one hour. The Smith's arrived at City Hall expecting to meet with
Mr. Beck and discuss any and all options that would allow them to occupy their
home. Mr. Beck however, did not come to the meeting alone. Also in
attendance were Mayor Ron Harding, Mr. Gary Carlson (Yelm Fire Marshal)
and Mr. Tim Peterson (Director of Public Works).
Mayor Harding started the meeting by stating that the reason for denying an
occupancy permit was the City's fire liability should the home catch on fire. In
response to that I pointed to a copy of the 6 April 2009 letter from Chief
Hutcheson where she outlined the fire mitigation plan for our home, which is
less than three minutes from the fire station, and in which, she recommended
approval of an occupancy permit, Mayor Harding quickly pointed out that Chief
Hutcheson is not the Yelm Fire Marshal and her plan does not relieve the City
of its liability. He further stated that the Yelm Fire Marshal (Mr. Gary Carlson)
does not approve of Chief Hutcheson's plan and recommends against issuing
an occupancy permit (although Mr. Carlson never spoke himself). The Mayor
additionally stated that Chief Hutcheson's letter was merely a "hypothetical"
scenario of how she would fight a fire at our residence. I pointed out that all fire
plans are "hypothetical" until the structure actually catches fire which occurs
very infrequently and that this was the opinion of Yelm's operational fire chief.
Again, Mayor Harding pointed out that Yelm contracts with Thurston County
Fire/EMS for fire services and that Chief Hutcheson is not the Yelm Fire
Marshal. In response to that, I offered to sign any document prepared and
presented by Yelm City lawyers relieving the City of any liability should my
house bum to the ground. Mayor Harding quickly stated that he had already
looked into that and that I could not waive my rights.
Mr. Beck had also brought along a large-scale drawing of the Palisades West
plat which I had been reviewing during our conversation. It was at that point
that I noticed the plat amendment in question that states "No building permit
shall be issued .. by the City of Yelm.... ". I questioned Mr. Beck about why his
department issued a building permit in clear violation of this plat amendment.
Mr. Beck stated that he was led to believe by the builder, that the house was to
be a model home which is allowed for under the provisions of the plat
I
I Q IN 1i Dy" I I 11�6`11 a ®r K3,11 I
1 1171N.WSTAMR,
1"A N QU IRM ' 11906"6196 1
[11MIN UJUKIN4111111
MORRIS & TARADAY, P.C,
P.O. Bcx 948, n23 Seawitch Lane N.W.,
Seabeck WA 98380-0948
Tel. 360-91-0-0328 • Fax 360-850-1099
2
3
4
5
6
7
9
10
11
12
13
amendment. In response to that statement I asked to see a copy of the
debated building permit packet which was submitted by the builder on my
behalf back in September 2008. Mr. Beek stated that he could not provide me a
copy of the building permit packet. Also during the meeting, Mr. Beck produced
several documents dating back to 2005 demonstrating where the City of Yelm
had notified the Developer of the Palisades West subdivision (Mr. Steve
Chamberlain) of the requirement for a booster pump station and sewer roll seal.
In short, Yelm City Officials served only to place direct blame on the Developer
and Builder and produced no alternatives or solutions for resolving the situation.
In addition to that meeting, there was a public hearing and several related City
Council meetings at which the Smiths' application for a minor amendment to the
final plat of Palisades West was discussed. Those meetings occurred between
October 2009 and March 2010. Recordings and minutes are publicly available
for all of those meetings.
Request for Production No. 17. Produce each and every document identified in
response to the preceding interrogatory.
14
RESPONSE:
15
[us
17
18
19
20
21
22
23
24
25
The documents provided in response to RFP No. 10 provide the best written
recollection of events known to Plaintiffs.
Interrogatory No. 13. With respect to each visit that you made to the Premises and/or
each inspection that you made of the Premises prior to the closing of the purchase of the lot and
execution of the agreement for construction of a house on the Premises, set forth the following:
(a) Date of the visit and/or inspection;
(b) Names and addresses of each person present when you visited and/or inspected
the property;
(c) The amount of time you spent visiting and/or inspecting the property;
(d) A statement describing your visit to the property and/or your inspection of the
property including the specific portions of the property visited and/or inspected and the specific
observations made by you for each visit and/or inspection identified; and
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 21
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeds, WA 98380-0948
Tel. 360-830--0328—. Fix-3-60-850-1099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
W
16
17
18
19
20
Eli
Ot 2
0-3
24
W
above.
(e) A description of each document which supports your responses to subparts a-d
1. We don't recall the specific dates of our visits but we did visit the lot on at least
two occasions prior to closing on the purchase of the lot and construction of the
home.
a. Spring (March —April) '08.
b. Andrew & Cynthia Smith, Mr. Bill Nieland, one other gentleman that
came with Bill to help measure the lots, we do not recall his name.
c. Approximately one hour
d. The primary purpose for visiting the property was to determine if Lot 13
would be a suitable lot for building our home. The home we chose is
very wide and Lot 13 narrows as it approaches the street from back to
front. It was determined through those two visits that our home would
have to be positioned so far back on Lot 13 to allow for the appropriate
distance between the home and the left and right property boundaries,
that it would leave very little back yard. We then measured and agreed
upon Lot 15 as the lot where our home would be built.
e. We believe that our purchase agreement document was amended to
identify Lot 15 as the lot versus the original Lot 13.
Reg est for Production No. 18. Produce each and every document identified in
response to the preceding interrogatory.
U.-I&TOMIN
There are no documents stemming from that specific meeting, but see generally
the.Title Company documents in response to RFP No. 1.
Interrogatory No. 14. Has a water booster pump and storage tank been installed on the
Premises in the garage of the house?
NUMVILTO
FOR PRODUCTION TO PLAINTIFFS - 22
MORRIS & TARADAY, P.C.
P.O. Box 948,72Z3 Seawitch Lane N.W.,
Seabeck, WA 98380-0948
Td._360_830-0320. Fax 360-850.1099
2
3
4
5
6
7
01
10
11
12
13
14
15
16
17
18
19
PLO,
21
22
23
24
25
Yes. Mr. Dan Lee had stated in a couple of conversations in the Spring of 2009
that he had installed a storage tank and water pressurizer to increase water
pressure in the house, we believe at the City's request. There is a large water
tank in the garage near the water heater but we do not know about components
for pressurization.
Interrogatory No. 15. Set for with particularity each and every element of damages
incurred by you as a result of the events alleged in your First Amended Complaint. Set forth
the amount of damage and the method used to compute the damages.
The Smiths' tort claim filed 12/9109 identifies their monetary damages through
that time. As indicated therein, many of their damages are continuing, such as
having to continue to pay for a house they cannot live in, and at higher
construction-loan interest rates. An updated spreadsheet will be provided.
Request for. Production No. 19. Produce legible copies of each and every document that
supports or relates to your alleged damages.
Attached is a copy of the Smiths' itemized Tort Claim received by the City on
1219109. The specific details of the Smiths' financial obligations on the loan are
contained within the documents produced in response to RFP No. 1.
Request for Production No. 20. Produce legible copies of all your files and documents
on or relating to the allegations in the First Amended Complaint, including, but not limited to,
the real estate transaction, building permit, alleged plat violation, allegations of "personal
vendettas," etc., breaches of duty, including, but not limited to, each and every document,
electronic document, or recording, all correspondence, e-mail, memoranda, diary, appraisals,
notes, photographs, diagrams, drawings, business records, bill, invoices, statements, purchase
money agreements, checks, loan applications, title reports, offers, counteroffers, evaluations,
findings and or recommendations by governmental agencies, or other documentation relating to
the negotiations to purchase the Premises or to rent the home(s) that the plaintiffs occupied
while the house on the Premises was being constructed, or to rent the home the plaintiffs
currently occupy, including all escrow documents, financial documents, brochures and flyers
relative to the purchase of the Premises, as it relates to all allegations in the First Amended
Complaint.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 23
P.O. Box 948, 7223 Seawitch Lane N.W�
Seabecle, WA 98380-0948
Tel; 360430-0328 a-Fax-360450-1099-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
[us
M
•
IN
PZI
IM
These documents are encompassed in the attached responses to RFP Nos. 1,
5, 7, 9, 10, 11, 14, and 19. The City has most of these documents already, plus
many more of its own records.
Interrogatoa No. 16. Do the plaintiffs claim any damages that have not been identified
in the foregoing answers to the Interrogatories and Requests for Production?
F.111WILIM
We are claiming substantial consequential damages. This situation has just
about broken us emotionally and financially. It has jeopardized our oldest son's
college education (he has chosen to attend a Community College until this is
over because of the expense); it has delayed my second son's timeline for
getting his driving permit (because adding him to our insurance will raise it
another $1,000 -$1,500 annually); it has limited our opportunities and abilities
financially (such as a Washington D.C. class trip for my middle school
daughter); it has threatenedAndrew's military career (as financial difficulty is
additional part-time jobs taking him away from the family even more.
Additionally, attorneys' fees incurred relating to our defense against claims by
our bank or contractor are recoverable as consequential damages.
Request for Production No. 21. Produce any and all documents relating to the above
Interrogatory, and any other documents containing inforination referenced in the foregoing
Interrogatories which have not been requested elsewhere.
RESPONSE: - n/a at this time.
Dated this — day of March, 2010.
01151� 19111211111411 11,11110���
By
Carol A. Morris, WSBA # 19241
Attorney for City of Yelm and Grant Beck
P.O. Box 948
7223 Seawitch Lane N.W.
(360) 830-0328
DEFENDANTS YELM AM BECKS MORRIS & TARADAY, P. C.
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 24 P.O, Box 948,7223 SeaWitch Lane NW,
Seabeck WA 98380-0948
Tel. 360-830-0328 , Fax 360= 850409%
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
The undersigned attorney for plaintiffs has read the foregoing
answers/responses/objections to the interrogatories and requests for production and they are in
compliance with-
r--l- Civ. Pro. 26X,
7AT
DATED: June 2010,
By
en Cushman, WSBA #26358
Attorneys for Plaintiff
CERTIFICATION
STATE OF WASHINGTON)
COUNTY OF
Andrew J. Smith, being first duly sworn on oath, deposes and states as follows:
That I am the plaintiff in the above action and I have read the foregoing Answers to
Interrogatories and Responses to the Requests for Production, that I know the contents thereof
and believe the same to be true and complete.
ANSWERS and OBJECTIONS dated this day of 2010, in
conformance with CR 26(g).
SUBSCRIBED AND SWORN TO before me this _ day of 92010.
DEFENDANTS YELM AND BECK'S
FIRST INTERROGATORIES AND REQUESTS
FOR PRODUCTION TO PLAINTIFFS - 25
NOTARY PUBLIC in and for the State of
Washington, residing at
My commission expires
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane NW,
Seabeck WA 98380-0948
—Tel. 360830.-0328 - Fak 360-850-1099