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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

OELRICH CONSTRUCTION, INC., )

)

 Plaintiff, ) Case No: 1:20cv169 

)

 v. ) Gainesville, Florida 

 ) October 26, 2021 

PRC PRECAST, LLC, )

) 9:00 AM 

 )

 Defendant/Counter-Plaintiff,) 

 ) VOLUME II 

 v. ) 

OELRICH CONSTRUCTION, INC., ) 

 Counter-Defendant. ) 

_____________________________ )

TRANSCRIPT OF BENCH TRIAL 

BEFORE THE HONORABLE ROBERT L. HINKLE 

UNITED STATES DISTRICT JUDGE 

(Pages 219 through 415)

LISA C. SNYDER, RPR, CRR

Official United States Court Reporter

111 North Adams Street, Tallahassee, FL 32301

(850)567-1374 * lisasnydercr@gmail.com

Proceedings reported by stenotype reporter. 

Transcript produced by Computer-Aided Transcription.

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Case 1:20-cv-00169-RH-GRJ Document 117 Filed 03/13/22 Page 1 of 198
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APPEARANCES: 

For the Plaintiff: Warner, Sechrest & Butts, PA 

Counter-Defendant By: ROBERT PAUL BUTTS, JR. 

 MICHAEL DUSTIN SECHREST 

SEAN GERALD HIPWORTH 

Attorneys at Law 

 RButts@fbswlaw.com 

sechrest@fbswlaw.com 

shipworth@fbswlaw.com 

 5200 SW 91st Terrace Suite 101 

Gainesville, Florida 326008 

For the Defendant: Kirwin Norris, PA 

Counter-Plaintiff By: DAVID JOSEPH DARR 

 Attorney at Law 

djd@kirwinnorris.com 

 15 W. Church Street, Suite 301 

 Orlando, Florida 32801 

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P R O C E E D I N G S

(Call to Order of the Court at 9:00 AM on Tuesday, October

26, 2021.)

THE COURT: Good morning. Have a seat, please.

Mr. Oelrich, you are still under oath. Mr. Darr, you

may proceed.

CROSS-EXAMINATION

BY MR. DARR: 

Q. Could you pull up Plaintiff's Exhibit 2, please? 

Good morning, Mr. Oelrich.

A. Good morning.

Q. I'm going to pull up Plaintiff's Exhibit 2. Could you zoom

in a little bit on that, please? And, this is the contract that

existed between Oelrich and PRC for the project; is that right?

A. Yes, sir.

Q. And, if we could turn to page 16? 

Could you scroll down, please? And, could you zoom in on

15 there, please?

I'm sure you heard me talking during opening statements in

this case about the additional payment terms that were

applicable to this contract?

A. Yes, sir.

Q. And, these are the terms that I was talking about. Now,

before we get started looking at them, would you agree that

these terms were included within the contract that you signed

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Cross-Examination - Ivan Oelrich

with PRC?

A. Yes, sir.

Q. And, if you would take a second, you can either read it to

yourself right now real quick, but I would like to focus in on a

couple of the terms that were applicable to this contract to see

if you're on the same page with my views on it or not. 

If you look at it starting right here it says, PRC will

invoice monthly based on the attached schedule of values for

materials and labor purchased or performed at our facility.

Buyer has 10 calendar days to dispute submitted invoices.

Invoices offered at a 2 percent discount for net 30 or regular

terms for net 30, 30 days. When I say, net 30 days, what does

that mean to you, Mr. Oelrich?

A. The invoice is due within 30 days.

Q. Of the date of the invoice?

A. Well, they are billed through the end of the month. I

mean, we could, but --

Q. No later than the end of the month for what the billing is,

right?

A. So, they are going through the end of the month. So, yes,

from the end of the month.

Q. Okay. And then, going off of that net 30 days, looking

right here at the word work. It says, work will not be

performed on accounts that are more than 5 days past due based

on the net 30 day terms. Did I read that correctly?

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Cross-Examination - Ivan Oelrich

A. You did.

Q. So, if they have an account that's more than 5 days past

due the net 30 day terms, PRC had the express right to not

perform work any more on that account; is that right?

A. As long as they met all of the requirements of our

sub-contract. Yes, sir, that's correct.

Q. And, the next language or the next clause in this

additional payment term section provides, all accounts more than

5 days past due will be put on hold and all work stopped until

accounting issues are corrected to the satisfaction of PRC. Did

I read that correctly?

A. You did read that correctly.

Q. And, would you agree that Oelrich was put on notice that if

your account became past due, work would be put on hold and

stopped until PRC felt the accounting issues were corrected to

their satisfaction?

A. I would agree that this gives us notice of what you said.

Yes, sir.

Q. And going right through this to the next part here where it

says "delivery": Delivery schedule will be modified to account

for delays due to lack of payment from buyer. Did I read that

correctly?

A. You did.

Q. So, is it fair to say that it was contemplated again that

if an account got behind and not being paid on time that they

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Cross-Examination - Ivan Oelrich

would have to adjust the delivery schedule to bring the precast

to the project, right?

A. Presuming they had done all of the parts and pieces they

need to in the sub-contract, yes, sir.

Q. And, moving on to -- starting here with the word

additionally. It says, additionally precast concrete members do

not ship from PRC's facility prior to payment for said members

or on accounts that are past due. Did I read that correctly?

A. You did read it correctly.

Q. So, is it fair to say that it was contemplated that PRC

would be paid for the precast materials that it was making as

they were making them?

A. That is correct, it was contemplated.

Q. And then the last -- well, actually not the last, the

second to last term here. It says, the terms and conditions in

note A supercede all other payment terms in this agreement. Did

I read that correctly, Mr. Oelrich?

A. You did.

Q. From there it says, retainage is not allowed on material

unless indicated on the attached schedule of values. Did I read

that correctly?

A. You did.

Q. Now, if we could take a look at the schedule of values

attached to the contract, please? I believe it's on the last or

close to the last two pages.

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Cross-Examination - Ivan Oelrich

Was this the schedule of values that was attached to your

contract with PRC, Mr. Oelrich?

A. It appears to be, yes, sir.

Q. And, if you were to look up here where it says, retainage

allowed? It says, 5 percent on erecting, zero on material; is

that right? 

A. That's correct.

Q. So, under this contract Oelrich agreed that there would be

zero percent retainage on the materials that PRC was making,

right?

A. Yes, sir.

Q. And did Oelrich withhold retainage on PRC for this project?

A. We did. By mistake, I might add. But, yes, we did.

Q. Could we take a look at Plaintiff's Exhibit 7, please?

Could you tell me what is this document we are looking at,

Mr. Oelrich?

A. This is out of our accounting software. It's our

sub-contractor status report. It's basically a record of the

contract, any change orders to the contract, and then payments

made throughout the contract down there below.

Q. And, since Oelrich maintains these status reports

internally, these reports are accurate, right?

A. Yes, sir.

Q. Could you scroll down a little bit, please? 

Now, we're looking at the columns here. And this provides

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Cross-Examination - Ivan Oelrich

an overview of the amounts billed, amounts paid to PRC, is that

fair to say, Mr. Oelrich?

A. Yes.

Q. And, right here you've got the amount invoiced. And that's

just the amount that PRC billed Oelrich, right?

A. Correct. Well, I mean, that's the -- yes.

Q. And then, right here we've got the invoice date. And these

are the dates of the invoices that PRC sent Oelrich, right?

A. Correct.

Q. And then, here we've got this thing that says AP reference

number. Can you tell me what does AP reference number mean?

A. Those are the accounts payable, that's our job numbers that

go on there. So the 18066 is this job number. And then you can

see it's pay app 1, 2, 3.

Q. Right. So these are the -- each pay app goes up one by

one, the first one is 1, the second one is 2 and so on and so

forth; is that right?

A. Yes, sir.

Q. And then over here for the amount invoiced this shows how

much each pay app was billed to Oelrich; is that correct?

A. It does. And, retainage is broken out separate on those.

Q. We're going to get there. Then the amount paid, this is

how much Oelrich has in their records as to what they paid PRC;

is that correct?

A. That's correct.

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Cross-Examination - Ivan Oelrich

Q. And then, as you were mentioning, this unpaid retainage

column, this indicates how much retainage was withheld from each

payment application, right?

A. That's correct.

Q. So, on this project Oelrich withheld at least $5,850.88 in

retainage for PRC's work, correct?

A. Not at least. Exactly.

Q. And, this is something I probably should have asked during

your deposition. Can you scroll up just a little bit on this? 

This right here it says, through month 021. Does that mean

this report was ran in January of '21?

A. No, that, I think the, it's at the bottom right of the date

the report was run.

Q. Can you scroll back down to the bottom right, please?

A. I think that means that it was --

Q. Right here. So, this report was ran on January 20 of '21,

9:56 a.m.?

A. So, yeah. Then that -- I think that is consistent with the

top there.

Q. Okay. As you recall, when was Oelrich ready to set PRC's

precast panels?

A. On January 6, 2020.

Q. Right. That's what I heard Mr. Crehore testify while you

were in here yesterday. Could you pull up Exhibit 307? 

Do you remember giving a deposition in this case earlier

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Cross-Examination - Ivan Oelrich

this year?

A. Absolutely.

Q. Do you remember that you were under oath?

A. Absolutely.

Q. And, all of the answers you gave were truthful, correct?

A. That's correct.

Q. Could we take a look at page 50, please?

And, I'm looking in particular at page 50 line 10 through

line 12. It reads, question, and when was Oelrich ready to set

the panels? Answer, according to my records in, on 3/10,

March 10th of 2020.

Does reading that answer change your answer that you are

providing today that you were ready for the precast panels in

January of 2020?

A. No, sir, it does not. Am I allowed to explain myself?

THE COURT: Just answer his questions. We'll get

there.

THE WITNESS: Yes, sir.

BY MR. DARR: 

Q. And so, I think I heard earlier during, I can't remember if

it was testimony from you or Mr. Crehore, that Oelrich doesn't

actually perform any of the work that it did on this project, it

was all subcontracted out to subcontractors, right?

A. We are a management firm, yes, sir.

Q. And that means that necessarily Oelrich could not have

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Cross-Examination - Ivan Oelrich

self-performed the architectural precast work for that project;

is that right?

A. That's not what we do, no, sir.

Q. With that in mind, you wouldn't consider yourself an

architectural precast expert, right?

A. No, sir.

Q. And given that, do you know what sort of special

requirements are for the storage of architectural precast?

A. Well, I've certainly seen, you know, put it on A frames. I

mean, I've seen how they were stored at PRC's site. And that's

not rocket science.

Q. Well, sir, in your opinion, architectural precast could be

stored at PRC's site the same way at the project site, is that

your opinion?

A. Sure. I mean, we would rely -- to answer your question to

offer more, we would rely on the expertise of the professional

to tell us how to store it. If the professional says it's okay

to stack it with dunnage under it at their place then I presume

it's okay to stack it at our place as well.

Q. But, you don't know one way or the other whether that's

true though or not, right?

A. That's why we hire professionals to work with.

Q. After PRC was terminated it was Spring Precast that

completed PRC's scope of work; is that right?

A. Yes, sir.

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Cross-Examination - Ivan Oelrich

Q. And, you personally, did you get involved with re-procuring

PRC's contract?

A. Besides managing the fact that it was getting done, no,

sir.

Q. And, that brings up a good point. In terms of interactions

with PRC, how many times did you directly interact with PRC?

A. None. I made an attempt and I couldn't get any response.

Q. Just an email or 2 then; is that right?

A. No. I called several times, on several occasions and got

the runaround.

Q. Did you speak with anyone from PRC on the phone?

A. I finally hit the sales button and the salesman picked up.

Q. Other than that, did you talk to anyone at PRC?

A. I made several attempts, no.

Q. How active -- let me be more specific. How many times were

you out at the project site on average per month?

A. Once a month, twice a month.

Q. And how many projects was Oelrich contractually engaged in

in the year 2020, approximately?

A. We'll go with 40, 50, something like that.

Q. Do you have a similar sort of project load, so-to-speak

usually year to year, 40 or 50?

A. We discussed that in the deposition. I mean, we've got

lots of small jobs. We do a lot of work for UF. Those can be

50, $60,000 jobs.

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Cross-Examination - Ivan Oelrich

Q. And, in 2019, similar caseload, 40 or 50?

A. Yes, sir.

Q. In terms of in the organization you're at the very tippy

top and you're responsible for, at the end of the day, all of

them; is that right? 

A. Correct.

Q. So, is it fair to say that when it came to this particular

job you were relying on the information of your employees when

making decisions as to whether or not to terminate PRC?

A. That's correct. Well, plus my own experience. I verified

that their fears and complaints, you know, by calling, trying to

connect with them. We also got a bill for one hundred percent

of the materials. I mean, that, that was the, that's the huge

red flag.

Q. And who told you about that bill for one hundred percent of

materials?

A. I don't recall, but it was, that was a big deal.

Q. Did anyone ever tell you that someone from PRC had

explained to an Oelrich employee why they billed at one hundred

percent?

A. No, sir.

Q. Okay. Let's go on to Defendant Exhibit 288, please?

Let's do the Excel version instead. Sorry.

Plaintiff's Exhibit Number 6. Can you make it a little

smaller so we can see the whole thing?

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Cross-Examination - Ivan Oelrich

So, I believe, do you recall looking at this table

yesterday during your testimony while Mr. Butts was asking you

questions?

A. Yes, sir.

Q. And, is it fair to describe this document as a calculation

of Oelrich's damages in this case?

A. Yes, sir.

Q. And, as a component of those damages you've included

$105,000, give or take, for delay damages; is that right?

A. I can't see it. But, yes, sir. Oh, I can. Yes. There it

is. Yes.

Q. To come to the conclusion that -- first of all, I think the

Judge clarified this yesterday, but where it's in yellow there,

where it says 12 week delay 105,000, that's a typo that's

supposed to say 14 week delay; is that right?

A. That is correct.

Q. Now, can you tell us how did you come to the conclusion

that PRC had caused a 14 week delay of the project?

A. As we discussed yesterday, the 3/10 mark showed or was

generally where PRC switched from not being on the critical path

to being on the critical path.

Q. When you say 3/10 you're talking about up here?

A. Yes.

Q. Did you perform -- well, let's back up. When you say,

critical path, what do you mean by that?

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Cross-Examination - Ivan Oelrich

A. The critical path are the activities in a project that must

go on in order to get to the end. As opposed to a noncritical

path where you can kind of -- it has float, it can happen at

different intervals and not change the end date. In this case,

the critical path was flipped because of PRC.

Q. When you say flipped, what do you mean by that? 

A. Well, originally our critical path went through the inside

of the building. We got the building dried in. And then while

the outside was being finished the critical path was the

interior finishes of the building.

Q. Okay. And, can you describe the analysis that you

performed to determine that PRC's work was on the critical path?

A. You look at what all of the activities are that need to be

finished to complete the project. In this case it was about 90

days. We had committed to a May, I think 17th, completion date.

So you work backwards from there and that gets us to about early

March.

Q. When you say you had committed to a May 17th completion

date, that was to SAW?

A. Yes.

Q. Ultimately, the project wasn't completed until well after

that, right?

A. That's correct.

Q. When was the project completed?

A. April of 2021.

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Cross-Examination - Ivan Oelrich

Q. When did Oelrich complete its work at the project?

A. Gosh, it was probably in July.

Q. Well, I could have swore I heard you testify yesterday that

Spring Precast didn't finish up until October of 2020?

A. I wasn't done answering your question.

Q. Oh, I apologize.

A. It had to be towards the end of 2020.

Q. But you don't know one way or the other when Oelrich

finished its work in the project as you sit there today?

A. It's somewhere in that range. At the end of the year,

maybe January'ish, something like that.

Q. January of 2021?

A. Yes, sir.

Q. But you're not sure one way or the other what the exact

month and year was that Oelrich finished its work at the

project, right?

A. No, I'm not sure because we couldn't go back -- we had

punch list stuff to do and different things like that. I'm

talking about finish the major activities. So, we had to wait

for -- luckily, we had to wait for them to finish so that we

could go back and do some of the last minute activities.

Q. When you say you had to wait for them to finish, to whom

are you referring?

A. SAW.

Q. So, SAW was behind therefore it wasn't a big deal for

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Cross-Examination - Ivan Oelrich

Oelrich that they may have perceived you as behind; is that

right?

A. Thankfully, yes.

Q. And, did SAW ever assess any sort of liquidated damages or

other delay damages against Oelrich for late completion of your

work?

A. No, because we beat them to the finish line. Had we not,

we certainly would have faced them.

Q. And, as a part of this critical path analysis that you

performed that came to the conclusion that PRC was responsible

for delaying your work on the project 14 days, can you tell us

who did that analysis?

A. It was -- I mean, Chris was leading the charge. Then he

left and Andy was taking charge of it. So, we were talking

about it in the office and working through those things.

Q. Did you personally take a look at the schedules and confirm

any sort of analysis that Mr. Crehore and Mr. Wilson provided

you?

A. I did not look at the schedules, but we certainly discussed

it.

Q. So, if I were to show you --

A. Excuse me, sir. I mean, they did show me the schedules.

Did I sit down and check their work? No, sir, I did not.

Q. Let's look at some of these general condition costs, if we

could, please.

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Cross-Examination - Ivan Oelrich

First, could you tell me, what do you understand general

conditions to mean?

A. Those are the soft costs of the project as opposed to the

hard costs which are brick and --

Q. Is it your position that these costs couldn't have been

absorbed by any other projects that Oelrich had at the time?

A. No.

Q. So, --

A. Why, never mind. No, sir. They could not be absorbed by

another project.

Q. And, these costs right here, let's focus in on rows, let's

say, 15 through 18. I think it's fair to say that these items,

these rows make up the lion share of your daily general

condition cost; is that fair?

A. Yes, sir. Very typical. Yes, sir.

Q. And it looks like you have indicated that, for instance,

for the superintendent you're allocating one, which means that

all of his salary and labor burden was dedicated 100 percent to

the project at issue in this lawsuit?

A. Yes, sir.

Q. And this $1,900, that's his weekly pay?

A. Correct.

Q. And that's an actual cost; is that right?

A. That's his actual weekly pay, yes.

Q. You were actually paying the superintendent for the job

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Cross-Examination - Ivan Oelrich

$1,900 per week?

A. That's his salary. I mean, what he actually gets paid is

--

Q. Sir, before taxes his gross pay was $1,900 per week; is

that right?

A. Yes, sir.

Q. And, somewhere in Oelrich's accounting system, or otherwise

in your records, there would have been some sort of either pay

stubs or checks to prove that you had paid that amount to the

superintendent; is that right?

A. Absolutely. Yes, sir.

Q. And, that's true for the executive management on 15, the

superintendent on 17, and the project engineer on 18; is that

right?

A. No, sir. The executive manager makes a lot more than zero

dollars.

Q. Fair enough. You got me. Good one. But, as to the

project manager --

A. Yes. I'm sorry.

Q. No, that's fine. 

A. I couldn't pass that up. I'm sorry.

Q. Listen, I would have made fun of me too.

So 16, 17 and 18, those though, there would all be checks

and other proof that you actually paid those people those

amounts?

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A. Yes, sir.

Q. Do you know one way or the other whether those were

produced in this case?

A. No, sir, I don't. I don't think that they were.

Q. And I'm looking at this project engineer here. I believe

you testified yesterday that's not actually one engineer, it's

multiple engineers, right?

A. Yes. I mean, it could be a combination. We had multiple

project engineer types on that project.

Q. How many project engineer types did you have assigned to

the project?

A. We had Yosamani, we had Jerry, we had another one that's

forgetting me. At least 3.

Q. You're not sure one way or the other how many project

engineers are included in that 1,050 rate there; is that right?

A. No. Like I talked about yesterday, this spreadsheet or

this portion of the spreadsheet is a breakdown from our original

estimate for the project. And so, these are rates that were,

that are, we charged on the original end. So, we're trying to

assess what our weekly cost was.

Q. I apologize. Go ahead. Are you finished?

A. Yes, sir.

Q. Is it fair to say that you believe calculating your damages

based on the estimate you had for the project is a fair way of

presenting your damages in this case?

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A. Yes, sir.

Q. So, that 1,050 there, just so I understand, it's comprised

of multiple project engineers, but we're not sure how many and

we're not sure who they are, as you sit there today, right?

A. No, sir. It does not. It's someone's actual salary. And

the labor burden that goes with it is attached to someone.

Q. I would like to go back to this critical path analysis.

So, would you agree to perform a critical path analysis you need

to be looking at a schedule of some sort for the project?

A. Yes, sir. Well, I mean, so we could do one on a

chalkboard. We could have a conversation about it. So maybe my

answer is no.

Q. How would you do it on a chalkboard?

A. You'd write out the activities that have to come after, you

know, let's say precast in this instance. And after that we

need to do the louvers, we need to do the brick. Each one of

those is going to take a certain number of days. And we just

write it out. And, you could come up to -- you add up the

number of days of the activities that are left. I mean, at this

point we are down to, you know, it's a very easy thing to look

at as far as the activities that are going to be, you know, left

to do.

Q. So, I mean, I want to make sure I understand what you're

saying. But, if you write it out on a chalkboard the way you

describe with remaining activities, the duration of each, so on

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and so forth, that sounds a lot like a schedule to me. I mean,

it's just handwriting on a board basically, right?

A. Yeah. It's handwriting, but, yeah. I mean, that's the way

a schedule is calculated.

Q. Would you say it's typical in the construction industry

that construction schedules and, frankly, critical path analyses

are performed on computers usually?

A. Yes, sir.

Q. And, was that done in this case by you guys?

A. Yeah, we had a schedule.

Q. What sort of scheduling software did you guys use to

perform the critical path analysis?

A. Typically we use Microsoft Project Schedule, I guess.

Q. And, you said typically. I just want to make sure I

understand. Do you know one way or the other what software you

used to perform the analysis that came to the conclusion that

PRC was responsible for a 14 week delay?

A. No, sir. I don't definitively.

Q. And, do you guys own a copy of Primavera?

A. We do.

Q. Do you know why it wouldn't have been used on this

particular project?

A. No.

Q. This is Defendant's Exhibit 128. It looks like it's an

email from Jordan Robinson. He was the superintendent for

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Oelrich; is that right?

A. Yes, sir.

Q. And Mr. Robinson was the one who was personally responsible

for maintaining the schedule internally at Oelrich that was

supposed to reflect what was actually happening at the project,

right?

A. Yes, sir.

Q. Was there anybody else at Oelrich responsible for

maintaining the schedule to make sure it's accurate and reflects

what was happening at the project?

A. He probably got help from, like, Andy Wilson would help him

with that. And the assistant project manager might help him.

Q. I think I seem to recall during your deposition you

testified that Mr. Robinson is a competent superintendent, at a

minimum; is that fair?

A. That is.

Q. So, whatever he included in this schedule do you think it's

likely that people relied on it and assumed it was correct?

A. I do.

Q. So, once again, this is from Mr. Robinson. And there's a

whole bunch of names here. If you could take a look at the two

columns -- actually, could you scroll up this a little bit?

This was sent on January 23rd, 2020. Does that appear to

be correct?

A. Yes, sir.

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Q. And then, in this to column here there's a whole bunch of

names. Am I right to assume that those are what would appear to

be all the subcontractors that were on the project?

A. I would agree with that. Yes, sir.

Q. And, of course, one of them was Mr. Davis, so that's the

PRC representative; is that right?

A. Yes.

Q. And, attached to it is the overall schedule, it's a PDF.

It looks like it has a date of 1/15/20; is that right?

A. That is.

Q. Do you know, how often did Oelrich update its project

schedules for this project?

A. They should be updated monthly.

Q. Can you scroll to the actual schedule? 

So, this looks like your full schedule that you had at the

project as of January 2020; is that right?

A. Yes, sir.

Q. And, just to sort of educate the non-construction folks in

the room, can you tell us generally what the ID, task and

duration, all those columns mean?

A. ID is just simply a number that breaks down all of the task

names that are attached there. So, number or, let's see, 2 is

an overview of preconstruction. It's going to take a total of

84 days. And then under that there's executing the contract,

permitting all of the things that go into the preconstruction

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process.

Q. Okay. And, the start and finish dates are when the work

was -- actually did start and when it actually finished for

things that are already done; is that right?

A. That's the concept, yes, sir.

Q. And, if we could scroll slowly through these pages, please?

So, generally, the schedule reflects everything that had to

be done for the project in the order that you guys felt it had

to be done. Things that are gray, I assume that means that

that's work that's already been completed; is that right? Or am

I incorrect?

A. I don't know the answer to that. But it appears that --

well, no, it doesn't because there is a 43 percent that's not.

Q. So you don't know one way or the other what the gray means

versus the yellow and so forth and so on?

A. I sincerely don't, no, sir.

Q. Can you go down to like page 15? That keeps going on and

on. Eventually you get to a bar chart. That's what I'm trying

to get to. Okay.

This is a bar chart depiction of the schedule for the

project. Basically, is it fair to say, it shows the same thing

as a bar that we looked at with the start finish dates, but it's

in a graphic format showing when things were supposed to be

done; is that fair?

A. Yes, sir.

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Q. Is it fair to say that from construction bar charts one

could get a rough idea of what the critical path is for the

project?

A. Yes, sir.

Q. Could you tell me, based on reviewing this, and we're happy

to show you whatever pages you want, see what was the critical

path of the project as of January 2020?

A. Well, they usually show up in red down there. I think

where you're heading is this schedule was not maintained very

well at all.

Q. Right. So, I heard Mr. Crehore testify or at least suggest

that he wasn't sure one way or the other whether the schedule

actually reflected what was happening on the project site; is

that fair?

A. That is absolutely fair.

Q. So, if we go down to the bottom, even if this isn't

accurate, I'm just curious to see what your opinion is of where

the precast is in terms of falling on the critical path as of

January 2020. Can you determine that from this particular

document?

A. Well, I'll tell you one thing that I noticed in here. 

So, --

Q. Stop for a second, sir.

A. I'm sorry. Can you go back? 

Q. Which page? It's at the bottom there.

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A. It's the next one up I think. On this, this bar chart that

he has it's showing 2/17. Yeah, the date of February 17

starting the precast. Right there. And, then it goes

through -- it follows that down. If you'll go to the next page,

you know, it's going around the building there as we build it on

the schedule.

Continue on down, please. And then it's showing the metal

panels. And then, on the other side there, or excuse me, in the

middle it shows metal stud framing starting in December. And,

then as you go down you can see the interior -- or continue to

go down, please. Those are the -- if you'll stop right there.

Those are the interior activities. And you'll see the

Acoustical does the vinyl base, which is the last activity for

the interior of the project in March 5th. But, substantial

doesn't happen for almost 2 months after that; a month, month

and a half.

Q. Looking at what you see here on this document, can you tell

me whether or not PRC's work was on the critical path of your

work on the project as of the date of this schedule?

A. Looking at the activities on the schedule you can see that

the outside finishes after the inside, like I just discussed.

Q. Can we go back to the Excel spreadsheet? I believe during

your deposition you testified that you were the one that created

this spreadsheet, right?

A. I sat with Andy and we sat down and we built this together.

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Yes.

Q. When you say Andy, Andy Wilson?

A. Mr. Wilson, yes. Sorry.

Q. And, what was Andy Wilson's role at the project again?

A. He was assistant project manager.

Q. And, if you could go to the upper right-hand corner,

please? We've got -- back up. That's good. Just leave it.

Ready for precast, 3/10/2020. That's what it says, right?

A. Yes, sir.

Q. And, that was the date by which, at least when this

document was drafted, Oelrich believed that the project was

ready for PRC's precast, right?

A. No, sir. That was the date that it changed from

non-critical path to critical path. We were ready for precast

on January 6, 2020.

Q. And, how did you make the determination that you were on

the critical path as of March 10, 2020? Was that based on 

Mr. Crehore's calculation that he testified about yesterday?

A. Yes, sir. I would have relied on his -- and, as I said

earlier, it was a discussion that we were having.

Q. As far as you know, that calculation determining that the

precast critical date, sort of drop dead date of March 10, 2020,

that was never provided to PRC, right?

A. To my knowledge, no.

Q. And, this document was drafted and the damages calculated

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before Spring Precast actually started its work, right?

A. That's correct.

Q. Do you recall when this document was drafted?

A. It says right there, June 16th of 2020.

Q. And, is it Oelrich's position that no other work on the

project could have been completed between March 10, 2020 and

July 28, 2020?

A. No, that is not our contention. We finished up the inside,

inside work.

Q. So, I seem to recall you testifying yesterday, and correct

me if I'm wrong, that part of Oelrich's scope for this project

was site work and fencing?

A. That's correct.

Q. Could you describe to us what you mean when you say site

work?

A. So, the -- all the underground storm piping, water piping,

that type of stuff, plus grading out the site. Getting the

building pad ready. There was some paving to do around to tie

it all in.

Q. And, is any of that site work outside the blueprint or the

blueprint of the structure? Let me put it this way. 

MR. DARR: If I may, Your Honor, can I point to it

real quick?

THE COURT: Yeah.

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BY MR. DARR: 

Q. Is any of the site work outside here, outside the actual

building?

A. Yes, sir. Some of the tie-ins I believe were outside of

that. Certainly, the asphalt patching was outside of that

realm. They tied in a waterline that went down the parking lot.

So, yes, sir.

Q. And then, when you say fence work, I mean, I just want to

make sure I'm on the same page. You're referring to this fence

that's around in the final picture, right?

A. Yes, sir.

Q. Okay. And, is it Oelrich's position that absolutely none

of this site work and fence work could have preceded before the

precast was installed at the project?

A. That's correct.

Q. Can you explain to me why none of this work could have been

done outside of the building where the panels are before the

panels were erected?

A. That's a relatively small footprint. And getting cranes

and bringing trucks full of precast and all that, and you had to

get around the building. And after the precast is done the

masons got to get there. They got to run the lull, stock all of

the block, excuse me, brick around the building. We've got to

access the outside of that building. And you wouldn't want to

drive on their brand new concrete or running over their brand

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new fence while you were doing those things.

Q. But, was it possible that that work could have been done

prior to the precast installation?

A. I mean, with money anything is possible. Yeah. If someone

wanted to pay us to put sponge tires on stuff, yeah, we can do

anything. But that wasn't what the job was set up for.

Q. And, earlier today I heard you testify that the general

contractor did not assess any damages against Oelrich for being

late in the completion because they were already late; is that

right?

A. Yes, sir. Essentially. There's more to it than that, but,

yeah.

Q. Okay. So, had they come to the determination that there

was a concurrent delay, they were causing delay as well as you

guys at the same time, so that's why they didn't assess

liquidated damages or any other delay damages?

A. I'll phrase it in my own words. If they would have

finished the boilers and all of the start up and all that before

we finished the building they would have assessed us liquidated

damages.

Q. And, is it fair to say that generally in the construction

industry whenever there is a concurrent delay that's a

non-compensable event?

MR. BUTTS: Object, Your Honor.

THE WITNESS: I don't know the answer to that.

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THE COURT: Overruled.

MR. DARR: I'm sorry, I didn't hear the answer,

Your Honor.

THE WITNESS: I don't know the answer to that. I

don't know what you are asking me.

BY MR. DARR: 

Q. So, the general contractor didn't assess any delay damages

against Oelrich, but Oelrich's position is that it's entitled to

damages for delay because but for PRC they would have finished

early, is that generally your position?

A. No, sir. It's not. I have -- we had a scope of work to do

and we could not do that scope of work because PRC did not

perform. And, as soon as we finished our work then we could get

off the job. We're a subcontractor on-the-job. We're not the

general contractor.

Q. So, if PRC, according to this table, had been there on

March 10, 2020 to start its work, then the project would not

have had this 14 week delay; is that right?

A. It's really -- PRC should have been done about that time.

But, okay, I mean, we don't need to split hairs. But, yes, sir.

I will agree with you for the sake of argument. Yes, sir.

Q. So, I don't understand. How is that not Oelrich taking the

position that had PRC been there on March 10, 2020 Oelrich would

have finished ultimately its work earlier by 14 weeks?

A. Yeah. I mean, if you guys -- that's what I'm getting at.

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If PRC would have -- I would say we would like you to have been

done by March 10. But, okay, so, let's say you started on

March 10th, that's fine. Same, I mean, we're talking about a

month, they said it was a month of time to do it.

Q. Do you know what float is on a construction schedule?

A. I absolutely do.

Q. What is float?

A. Float is an activity that doesn't drive or it's a time

within an activity that it's, they can move back and forth.

It's not on the critical path.

Q. And, is it fair to say that during this relative time

period there were things left in Oelrich's scope of work that

weren't on the critical path unlike the precast, right?

A. Yes.

Q. So, can you tell me, do you know any basis under the

contract by which Oelrich would be entitled to at that float

time? Let me rephrase that. 

Is there anything under the subcontract that says Oelrich

owns the float on the project?

A. Yeah, it says we're in charge of the schedule.

Q. Other than that, is there anything that you're aware of

under the subcontract that says Oelrich is entitled to

compensation for float it would have otherwise have had?

A. Yeah, it says it in there that if we're delayed by the

subcontractor then the subcontractor is responsible for paying

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exactly what we have on here. I do believe that's in the

subcontract.

Q. If we could look back at this spreadsheet here, please?

And if we can go down a little bit, please? A little bit more.

Still going. It's to the left. That's why I can't see it yet.

And, yesterday we were talking about the CM fee --

A. Yes, sir.

Q. -- that was included, 15 percent. It looks like it was

right around a thousand dollars a day, $986 a day; is that

right?

A. About a thousand dollars a week.

Q. A week. I'm sorry. On a weekly basis?

A. Yes, sir.

Q. And, can you tell me again what does that line item

represent?

A. It represents our overhead for the office, the general

office overhead. And it represents our fee or how we make a

living.

Q. And, part of it is Oelrich's profit for being on-the-job,

right?

A. Yes, sir.

Q. And, you included that 15 percent CM fee because you

believed it was equitable; is that right?

A. I do.

Q. And, your estimated profit margin for this job was

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6 percent though, right?

A. On $7 million, yes, sir.

Q. So, despite the fact that the estimated profit margin was

6 percent of the job, PRC is still on the hook for a 15 percent

profit margin, right?

A. I think that's pretty generous, yes, sir.

Q. How did you come to the idea that 15 percent was an

equitable fee to charge?

A. I've been running a business for 17 years. And, that's a

dollar value of this much that's very reasonable.

Q. Can we pull up Defendant Exhibit 307, please? Wait. No.

Actually. One second, Your Honor. I apologize. I think it's

137. Defendant 137, please?

And, this is the semi-infamous now termination notice dated

March 17, 2020. Do you see that?

A. Yes, sir.

Q. And, as of the date of this email March 17, 2020, Oelrich

had terminated PRC's contract, right?

A. That's correct.

Q. Before March 17, 2020, are you aware of Oelrich ever

declaring PRC to have been in breach of contract?

A. Declaring them in breach, no, sir.

Q. And, you personally had zero communications with PRC where

there was a response, right?

A. Unfortunately that's true, yes, sir.

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Q. And, you are not aware of Oelrich, the company, not you,

ever stating to PRC that if PRC did not deliver and install the

materials by a specific date their contract might be terminated,

right?

A. Well, there's the original contract itself that contracted

them to meet the original schedule, which that was -- they

committed to that original schedule. They could have

manufactured. You know, you talked about it yesterday, they are

a manufacturing company. You said that. And they could have

manufactured the panels on the original schedule. There's

nothing that stopped them from doing that.

Q. Respectfully, I don't think that was my question. Again,

it's pretty simple.

Are you aware of Oelrich the company or anyone at Oelrich

stating to anyone at PRC that if they didn't deliver and install

their materials by a specific date they might be terminated?

A. We went through lots of that correspondence yesterday.

There's a letter from Mr. Wilson that he said this needs to all

be completed and I need to get responses by these dates.

I mean, we had our attorney write them a letter in

mid-January or, yeah, I guess it was mid to late January. That

said pretty much the same thing. Chris testified yesterday that

he told him that on, I think he said, 3 occasions. So, yes, I'm

aware of that.

Q. Were you there for any of those conversation that

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Mr. Crehore allegedly had with Mr. Davis regarding potential

termination of their contract?

A. No, sir, I was not.

Q. And, if there is a writing where Oelrich had informed PRC

if they didn't deliver by a specific date they might be

terminated we're going to see that during this trial you'd

expect, right?

A. Yes, sir. I contend that -- I think we've already seen it.

Q. Did you make the decision ultimately to terminate

Mr. Crehore?

A. I believe I did, yes, sir. To terminate Mr. Crehore? Oh,

yes, definitely.

Q. And, why did you terminate Mr. Crehore?

A. We were changing our management structure. I was looking

for a long-term, a guy that could lead lots of different folks

at the same time. A higher manager. And he just didn't seem to

fit that role.

Q. And, do you disagree with his testimony yesterday that he

was terminated because of the precast scope of work on the

project?

A. Well, I'm not going to disagree with his -- no, I mean,

that's what he thinks that it was about, and, you know,

certainly the precast, there was a lot of pressure on all of us

to get this done and get it done correctly.

Q. Do you think he -- I apologize.

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A. But, I mean, that's his perception. I'm not here to argue

his perception.

Q. And, he was the project manager for the project, right?

A. He was.

Q. And, do you think that he properly managed this project?

A. I do.

Q. But he still got terminated?

A. Not because of, I mean, no. Yes. Yes, he still got

terminated.

Q. I'm all done. Thank you for your time.

A. Thank you.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. BUTTS: 

Q. Can we look at Defendant's Exhibit 307, please?

Mr. Oelrich, there were several questions that Mr. Darr

asked you about the March 10th date and whether or not that was

the day that Oelrich Construction was ready for PRC to do the

precast, for the first time?

A. Yes, sir.

Q. Do you recall that? 

If we can turn to page 120? I'll give you a moment to read

that page. Specifically starting down around line 16.

A. Yes, sir.

Q. Do you remember giving that testimony?

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A. I do.

Q. Do you remember why it was that you changed the date from

March the 10th to January the 6th?

A. I do.

Q. Why was that?

A. Based on the -- we continued, as we did this deposition we

started to look at different emails and different, you know,

different exhibits, if you will, that showed that we were ready

for them to come on the 6th and we were setting all up for that.

Q. Why was -- changing away from that, is there anything else

you wanted to add to that part?

A. Well, I mean, I would say in the beginning of my deposition

one of the first questions they asked was, you know, what did

you do to prepare for this. And what I said and what I talked

about was I was trying to get dates for when things happened

on-the-job. And I was talking to Mr. Hunnicut there and asking

him and asking around the office. But as we all know,

Mr. Crehore and Mr. Robinson and Mr. Wilson are no longer

employed with us. So it was tough to find the information that

I was looking for.

And then the part of the deposition that Mr. Darr pulled

up, we were looking at that spreadsheet that has damages on it

where it says the 3/10. So, he was asking me about that. And

that was the information that I had at the time of that

deposition. I went on and three- this one and two more -- to

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retract that part of that testimony because that was incorrect.

Q. There were some questions that were asked to you about the

Primavera software program for scheduling. You are familiar

with that, I think you said you had that?

A. Yes, sir.

Q. Why was a complex delay analysis not necessary in this

case?

A. Because we were down to a handful of activities at this

point.

Q. So, when would be an example of when something like

Primavera software would be necessary to do a complex delay

analysis?

A. At the beginning of the job site or at the beginning of the

job. I mean, Jordan, he should have kept up a better schedule.

I will concede that.

Q. Nevertheless, did that hinder your ability to determine the

extent to which PRC delayed the job?

A. Absolutely not. And to add to what I just said, Jordan did

keep -- he kept a very good 6 week look ahead. And, we've

looked at some of those I think in this trial.

Q. Can you explain to the Court what you mean by 2 week look

ahead as opposed to the schedule that Mr. Darr was referring to?

A. It's a very simple -- it goes on an Excel spreadsheet.

It's a bar graph. And it goes week by week and activity by

activity exactly what's going to happen during those weeks. And

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so, it's very laid out by trade and activity. And says, you

know, if you're going to lay block you are laying block here and

you're going to finish there and then we're going to start --

it's very defined. And, Jordan, he kept up that very well. And

apparently, did not keep up the master schedule as well as we

would expect.

Q. On regard to the profit on this job for Exhibit Number 6,

15 percent, you mentioned something about the profit margin on

the larger job versus the profit margin on a smaller job. Can

you explain that a little bit more, please?

A. It's a scale. Obviously, you know, a $7 million job, it

just doesn't command as high a percentage as a -- well, we were

working on 7,000, but a hundred thousand dollar type project.

There is more profit percentage in a smaller project.

And, a lot of that has to do with, I mean, just the nature

of the business. And then risk. If something goes wrong, you

know, if you have extra cost on a smaller job you need a higher

profit to cover those things.

Q. Do you do small jobs? What would you consider to be a

smaller job?

A. We do jobs of all different. I mean, as I've said a couple

of times, working at UF we'll do whatever UF asked us to do from

a $5,000 job to a $10 million job.

MR. BUTTS: Thank you.

THE COURT: Mr. Oelrich, I wanted to ask you a couple

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of questions. I don't have the chart back in front of you.

And, I probably don't need it. But, on your damages chart, for

example, one thing you put in was the supervisor's salary. This

is the person who is out there working on this job full-time.

Another thing you put on is the, I guess Mr. Crehore's or the

person in his position after he left, you put that one at half

time and that's because you've got this person working for you

and he's spending half his time on this project?

THE WITNESS: Yes, sir.

THE COURT: Now, I understand that if you're a cost

accountant, and the man is spending half his time on this job,

to do a good cost accounting analysis for this project you

attribute half of his time to this job. That's how a cost

accountant would do it. I want to push a little bit on what the

actual marginal cost to Oelrich is, Oelrich the company.

THE WITNESS: Yes, sir.

THE COURT: You were going to have that person on the

payroll anyway, true?

THE WITNESS: Correct.

THE COURT: And, if PRC had done their job and had

everything done by January 6th, and it went in just like you

would have liked it to go in, that person would still be on your

payroll in June, July, August, 2020, true?

THE WITNESS: Yes, sir.

THE COURT: Now if it had all gone the way you wanted

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it to, that person wouldn't be working on the VA project in

June, July, August?

THE WITNESS: That's correct.

THE COURT: That person would be doing something else?

THE WITNESS: Yes, sir.

THE COURT: But it seems to me that the net profit

that Oelrich reported on its tax return at the end of 2020 might

be no different with respect to that person's salary, whether

that person was working on the VA project during June, July,

August, or he was doing something else like he should have been

if PRC had done its work on time.

So, that's what I want to ask you about. Just

focusing on that person's salary, what would have been different

in your net income, in what got reported on your tax return for

2020, based on whether PRC did or did not perform on time?

THE WITNESS: So, the project, the VA project had a

set fee that we were going to make. We work for a fee. And so,

when we can get off a job, the sooner we can get off a job and

be done with it we've earned that fee. 

THE COURT: Right.

THE WITNESS: And so, that if we can go in 2020, to

use your example, to go to another job, that represents another

fee, another fixed fee. They are based on percentages. But,

once we start the job, that's a number. It's a hundred bucks.

And so, if we could have earned a hundred bucks on the VA and

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been out of there in May then we could have gone to the next job

and earned the next hundred bucks.

THE COURT: Did you turn work down because you were

busy on the VA project?

THE WITNESS: We're always moving -- I'm not going to

say we turned work down. That would not be true.

THE COURT: If you get a good job, you get a good job.

THE WITNESS: We're always looking for more to do. I

mean, that's the nature of our -- unfortunately, we work

ourselves out of a job. The faster and better we do, the more

happier everybody is. But, that's another discussion for

another day.

THE COURT: Law firms work the same way. I get it.

But, that's sort of my question. I mean, it seems to me that

your project manager, I may be using the wrong term, 

Mr. Crehore, the person in his position, if you still got the VA

project and you didn't get it finished when you were supposed

to, you are still working on it, then either that person works a

little harder, doesn't go home as soon, works more than

otherwise he would, or maybe another project doesn't get as much

of his attention as it would have.

THE WITNESS: That's certainly the case.

THE COURT: But that's what happens, not a change in

the bottom line?

THE WITNESS: Well, I mean, if we had got to finish

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when we wanted to that project manager would have been done.

The job may have still been going on, but his touch points are

minimal at that point. And then, he can move on to the next job

and be totally involved in that and we can --

THE COURT: And maybe do a little better job, maybe

train people a little better, maybe he gets to go home and eat

with his family a little more often. That's what I'm trying to

find out is, I know it's a problem, but is it a financial

problem? And, that's what we're talking about. We can talk

with the lawyers a little bit later about whether the actual

marginal cost or the way a cost accountant would do it is the

right way to analyze damages. That's a different question.

But, just to get the facts straight, what I'm trying to find

out, just focusing on that person's salary, did it really make a

difference in your bottom line? Would the company have more

money in its pocket today based on just that person's salary if

PRC had done its work when it was supposed to?

THE WITNESS: Yes, sir. A lot of the work that we do

is construction management, like the University of Florida. And

so, we have to submit to them all of the hours that are worked

on their jobs. And it's a very onerous program. So, 

Mr. Crehore could have been doing other UF stuff and charging

his time to that. And, therefore, instead of his time being

charged to this project which had a fixed, everything was fixed,

we could have been doing our normal construction management work

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for UF and been charging his time on there.

THE COURT: So some of your UF jobs you may have

gotten more revenue?

THE WITNESS: Yes, sir.

THE COURT: All right. You've answered my questions.

Questions just to followup on my questions?

MR. BUTTS: If I may just for a minute?

THE COURT: Sure.

REDIRECT EXAMINATION

BY MR. BUTTS: 

Q. Following up on Judge Hinkle's questions, we're looking at

revenue, expense and bottom line?

A. Yes, sir.

Q. Using Mr. Crehore as an example, if whether or not he was

on this job or a different job the expense component for Oelrich

Construction at the end of the year, taking all jobs in

consideration, would have been unchanged, correct?

A. Correct.

Q. However, had he been able to perform other work and get off

of this job sooner, how would that have affected the revenue

portion of Oelrich Construction's revenue for the year?

A. So, similar to what I was just discussing with His Honor

there. I mean, you know, UF -- we do different work that way.

And so, he could have worked on those jobs and been able to have

billable hours and stuff on those type projects.

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Q. So, would that have improved your bottom line?

A. Yes, sir.

MR. BUTTS: I don't have any other questions.

THE COURT: Yes, sir. Mr. Darr?

MR. DARR: Thank you, Your Honor.

RECROSS-EXAMINATION

BY MR. DARR: 

Q. I just want to make sure I heard your testimony correctly a

second ago, Mr. Oelrich, with the Judge.

As you sit there today, you don't recall having turned down

any other projects due to the fact that you guys were still tied

up with the VA project; is that right?

A. I don't recall that, no, sir.

MR. DARR: Thank you.

THE COURT: Thank you, Mr. Oelrich. You may step down

and return to counsel table. Please call your next witness.

MR. BUTTS: Your Honor, the next witness would be

Christina Sapp.

MR. DARR: Your Honor, may we have 5 minutes for a

bathroom break?

THE COURT: Surely. Let's take until 10:20. That's

11 minutes.

MR. DARR: Thank you, Your Honor.

(Recess taken 10:09.)

(Resumed at 10:20.)

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THE COURT: Please be seated.

CHRISTINA SAPP, PLAINTIFF WITNESS, DULY SWORN

THE COURTROOM DEPUTY: For the record, state your name

and spell your last name?

THE WITNESS: Christina Sapp. S-A-P-P.

DIRECT EXAMINATION

BY MR. BUTTS: 

Q. Good morning, Ms. Sapp.

A. Good morning.

Q. What is your role in your employment?

A. I am a senior account manager.

Q. And, just for the record, you work for?

A. Ivan Oelrich.

Q. When you say Ivan Oelrich, do you mean his construction

company?

A. Yes, sir. Oelrich Construction.

Q. And, as the senior account manager, what are some of the

tasks that you perform in that capacity?

A. I receive all payment applications for subcontractors. I

review them. Upload them. I do accounts payable. Accounts

receivable.

Q. So you do payables and receivables, did you say?

A. Both.

Q. And, in the context of pay applications, when you say that

you review them, what do you review them for?

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A. I make sure that they are, one, their contract is approved,

it's in the system. When we get the payment application I

review, make sure that their contract matches what they show on

the payment application, what they previously billed. I review

the schedule of values and make sure the money lines up and it's

corrected or it's valued out correctly.

Q. Then when you -- what else do you do in terms of accounts

payable? Do you pay the bills?

A. I don't physically cut the checks. Once we get payment I

notify Mr. Oelrich what month we received the money from the

owner from. And then he in turn releases the checks.

Q. Are you familiar with the VA job?

A. Yes, sir.

Q. And, are you familiar with PRC Precast --

A. Yes.

Q. -- as a subcontractor to Oelrich Construction on that job?

A. Yes, sir.

Q. Are you familiar with the pay applications and the payables

process as it pertains to them in particular?

A. Yes, sir.

Q. Are you familiar with the, what has been marked as Exhibit

Number 6, in this case, which we'll show you in just a moment?

A. Yes.

Q. Have you seen this document before?

A. Yes.

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Q. If I could please just direct your attention to the part

that's under, that's in column F. And, it's under labor burden.

Do you see that?

A. Yes, sir.

Q. And then, for the project manager on line 16, I see that

there's a percentage and there's also a percentage for the

superintendent and project manager, the project engineer, excuse

me.

What is the process that was used to determine those three

different percentages and why are they different?

A. Those are owner paid portions or owner paid. They could be

FICA, their workers' comp fees, their insurance that 

Oelrich Construction pays directly for.

Q. And, how did you determine the percentage for project

manager?

A. You total up all of those portions. And, those are called

the total benefits. And then you divide that by the employee's

compensation. And that's how you get the percentage of the

burden.

Q. For the project manager on this job, what was the correct

percentage?

A. It was listed 23.59 percent.

Q. And for the superintendent general, what's the correct

percentage?

A. 24.96 percent.

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Q. For the project engineer, what is the correct percentage?

A. 22.05 percent.

Q. And, when you are referencing a percentage, are you

referring to a percentage of the numbers that are in column E

under unit price?

A. Can you repeat that?

Q. When you, when we say, for example, that the labor burden

for the project manager is 23.59 percent, are we talking about

23.59 percent of the 2115 in column E?

A. Yes.

Q. If we could move please over to the right side where the

yellow highlighting is? 

Do you see a number that says $316,533?

A. Yes.

Q. Do you recognize what that was for?

A. Yes.

Q. As the, in your capacity working with Oelrich Construction

did Oelrich Construction -- do you know if Oelrich Construction

did, in fact, pay Spring Precast $316,533?

A. Yes.

Q. And the PRC contract value that's stated there, is that the

correct amount?

A. Yes.

Q. And, do you know in your capacity with 

Oelrich Construction, did Oelrich Construction pay Spring an

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additional amount of $6,996 for aggregate?

A. Yes.

Q. Did Oelrich Construction pay PRC a total of $109,832?

A. Yes.

MR. BUTTS: I don't have any other questions.

THE COURT: Cross examination?

CROSS-EXAMINATION

BY MR. DARR: 

Q. Can you pull up Defendant Exhibit 550, please? 

Good morning, Ms. Sapp. How's it going?

A. Good. How are you?

Q. Good thanks. Just give me a second to pull up some

documents for us here to look at.

A. Okay.

Q. So, is it fair to say that you were the one who was

primarily responsible for reviewing PRC's payment applications

for this project?

A. Not final review. I look at them. I upload them. It's

the project manager and the project engineer's responsibility to

approve them.

Q. On this project the person who made the final decision as

to whether or not to approve the payment applications would have

been Mr. Crehore, the project manager at the time?

A. Or Andy Wilson.

Q. Or Andy Wilson who was the assistant project manager?

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A. Project engineer.

Q. Engineer.

And, if you look here, this is an email from Allison Taylor

of PRC to various PRC individuals. It's a pay app. The pay app

number 1. If you scroll down to the attachment, please, the

actual payment application and the invoice. Actually, can you

go slower to let her look?

Is this typically how you recall seeing the payment

applications from PRC come in in terms of format, an invoice

that describes what they are billing for and then the next page

the actual payment application, and then on the next page a

schedule of values? Is that generally how you recall the

payment applications from PRC looking, Ms. Sapp?

A. Yes.

Q. And, eventually you became aware -- well, I got to back up

one step.

Initially, you thought this was a typical contract where

retainage was allowed on subcontractor work; is that right?

A. Yeah.

Q. Eventually you found out that under the subcontract that

Oelrich had with PRC you guys weren't allowed to withhold

retainage on their production work, right?

A. I'm not quite sure if it was just production, but I knew

that there was circumstances not holding retainage. I don't

remember if it was just the production part.

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Q. Sure. But at least for part of the work that they were

billing eventually you discovered, oh, we can't withhold

retainage on those amounts, right?

A. Yes.

Q. On this payment application, if you look up here in the

upper right-hand corner on this schedule of values, the

retainage indicated at least on this payment application 1 is

zero?

A. I just saw that, yes.

Q. As far as you recall, did all of the payment applications

that PRC submitted indicate zero percent on the amounts billed?

A. I have never looked at that part. I'm sorry. I just now

noticed that from you pointing it out.

Q. Oh. So, when you were reviewing the payment applications

back in 2019 and 2020, you didn't look one way or the other as

to whether or not the schedule of values included a zero percent

retainage as indicated here?

A. No. Because typically I look at column D and column E and

F.

Q. As you sit there today, do you recall whether or not

Oelrich withheld retainage on PRC's work?

A. We did hold retainage.

Q. And, if you can please pull up Exhibit 93, Defendant 93.

Let's start at the bottom and work our way up, but not the

attachment, please.

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Cross-Examination - Christina Sapp

So this is an email chain. Do you remember 

Miss Allison Taylor at PRC?

A. Yes.

Q. Is it fair to say she was PRC's accounting person, for lack

of a better description?

A. Yes.

Q. Seem to have a similar role as you for PRC in terms of the

job?

A. Yes.

Q. And, if we look at this bottom email here it's dated

October 25, 2019. It's from you to Ms. Allison, said you

requested the payment for PA 6, that means payment application

6; is that right?

A. Yes, sir.

Q. To be released. Can you send a clearer schedule of values,

couldn't read it very well?

A. Right.

Q. And then, if you go up a little bit further, please?

Miss Taylor writes back and says, please she attached. So,

she sent you back a clearer version of the schedule of the

values; is that fair to say?

A. Yes.

Q. Everyone is happy in this email chain, surprisingly. You

say, thank you, lots of exclamation points on October 15th. So,

at that point she had submitted the clearer schedule of values

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to you; is that fair to say?

A. Yes.

Q. And then, email above that up here, it's Miss Taylor on

October 21, 2019 asking for an update on payment. If we go up

one more. And you wrote back on October 21st, the same day

promptly, Allison, you are on my radar. I submitted the request

to release the check with Mr. Oelrich. Should have a better

update tomorrow for you. 

So, is it fair to say that ultimately no checks would be

cut to any subcontractors on this job without Mr. Oelrich's

personal approval?

A. Mr. Oelrich cuts the checks, yes.

Q. And, he has to approve the payment before? You don't have

the authority to approve payment without his approval; is that

right?

A. It's already been approved for payment. It's in the

system. He just needs to, he cuts the checks personally.

Q. And if you go up a little bit more? One more.

In this email October 22, 2019 Miss Taylor wrote back the

next day and she said, our pay app is 3 weeks past due now, can

you look into that one as well? The August pay app. Do you see

that?

A. Yes.

Q. And, if we go up one more, please? 

Now we are into December 10th, 2019. And, it appears we

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still got some past due payment applications. One of them is 7,

it's now over 2 months old. 8, it's a month old. Payment app 9

is over a week past due. Do you see where Ms. Taylor wrote that

to you?

A. Yes.

Q. If you can go up one more, please?

And then, here is your response. You wrote back to her

again the same day to Miss Taylor. And you said, please refer

back to the attached email where I requested a pay app for the

retainage that needs to be released. So, is it fair to say at

this point no later than December Oelrich realized it needed to

give this retainage to PRC that it had been withholding?

A. Yes.

Q. And, if we look all the way at the bottom, this is the

attached email you gave her. Let's scroll down a little bit

more, please?

Miss Taylor wrote to you right here on November 14th,

Christina, Oelrich continues to hold 10 percent retainage on

materials and production despite it only being allowed on the

erection portion. Did I read that correctly?

A. Yes.

Q. So no later than at least November 14th, 2019, PRC had

informed Oelrich that it was improperly withholding retainage;

is that right?

A. Yes.

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Q. And, if you scroll up one more, please, Caitlin? 

And you wrote back. And, again, this is your explanation

for why the retainage had not been released yet as of December

2019, I believe. You wrote back, our accounting system is set

with a standard 10 percent retainage compliance code held on all

progress payment requests. I will request the change on the

next monthly draw.

Did that request ever happen? Did you request the release

of retainage for PRC's next monthly draw on December of 2019?

A. I don't recall.

Q. And, you do say, we are not intentionally holding your

retainage. So, it's your position that it was just accidental;

is that right?

A. It's in the system. I don't change the compliance codes.

Q. Who would be responsible for that?

A. The project manager.

Q. Which was Mr. Crehore? 

It looks like Mr. Crehore was copied on this particular

email; is that correct?

A. Yes.

Q. And then this is where we had a little bit of a

disagreement. How do we correct this error, how do we get PRC

paid their retainage where you wrote, I suggest the following to

correct this error. Send me a pay app for the retainage that is

owed for the previous months. Ivan will be back on Monday. I

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will request the release of retainage.

So, in essence you're saying, hey, PRC we want to pay you

the 10 percent retainage that we withheld, but in order to do so

I need you to submit us a revised payment application; is that

right?

A. Not a revised payment application, but a payment

application for that retainage that I'm going to release.

Q. And, we didn't go through all of the payment applications

they submitted, but the payment applications that were

submitted, do you recall any that indicated that retainage

should have been withheld on them in the schedule of values?

A. Not that I recall.

Q. Are you aware of anything under the contract that would

have required PRC to submit another payment application for

retainage it was already owed? 

A. We do require a retainage payment application.

Q. And, do you know -- are you aware of anything in the

contract between Oelrich and PRC that required PRC to submit

pictures or certificates of insurance related to their product?

A. It's in the payment section.

Q. So, that would be in the payment section of the

subcontract?

A. Right.

Q. And, in terms of the approval process, again, for payment

applications, I just want to make sure I understand. The PM

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makes the decision whether to approve the payment applications?

A. Right.

Q. And, he has authority without consulting with Mr. Oelrich?

A. Yes.

Q. Okay. Thank you for your time. I appreciate it.

A. No problem.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. BUTTS: 

Q. Can we refer please to Exhibit 2? If we could turn to

paragraph 5B, please? 

Do you -- first of all, do you recognize what this document

is or should we go back to the beginning of it?

A. It's our subcontract terms and conditions.

Q. Okay. Do you recognize this to be the contract with PRC?

A. Yes, yes, sir.

Q. Mr. Darr asked you a moment ago where in the subcontract it

says that Oelrich Construction can request documents such as

photographs and certificates of insurance. Do you remember that

question?

A. Yes, sir.

Q. I'm going to direct you to a part of that paragraph and ask

you to read it. It is the fourth line from the bottom. The

sentence starts about two rows above that on the right-hand side

where it says, subcontractor agrees to provide contractor. Do

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you see that part?

A. Yes.

Q. I'll read it for you into the record. Subcontractor agrees

to provide contractor with a list of suppliers, laborers,

mechanics and material men and shall complete the application

for payment and any other documents reasonably required by

contractor prior to requesting any such payment.

On projects where, such as this one where there are stored

materials, projects are being fabricated in another place, how

do you go about knowing whether the projects are actually

fabricated when the pay request comes in?

A. It's noted on the material. It could be labeled with a

sharpy or whatever, the project name on the actual material

that's being stored at the subcontractor's facility.

Q. Are photographs requested?

A. Yes.

Q. And why is the insurance important?

A. On the insurance certificate they actually list the value

of the stored material in the event there is theft, fire, water

damage, whatever. The subcontractor's insurance would cover and

reimburse us for the money already spent for that material.

Q. And is it reasonable for Oelrich Construction to require

the certificates of insurance and the photographs in this type

of case?

A. No, it's standard procedure.

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Q. I beg your pardon?

A. It's a standard procedure with us.

Q. Mr. Darr was asking you about some of the pay applications

and when they were paid. Specifically, pay app 7 and 8. Do you

remember that?

A. Yes.

Q. When was that -- when were those pay applications paid?

A. They were both paid on November 8th, 2019.

Q. 7 and 8 were paid on that date?

A. Yes.

Q. And, do you recall why they were paid on that date?

A. We received money from the owner, so they were both

released at the same time.

Q. I'm sorry, I didn't hear your answer.

A. They were -- we just paid them both out at the same time.

We received money from the owner.

Q. Do you recall the circumstances that led you to pay them

both out at the same time, at that time?

A. Well, we were waiting on some waivers. They were both cut

on the same check.

Q. Did you pay them within 30 days of the day that you

received the waivers?

A. Payment application number 8, yes. We originally requested

the release of liens on November 12th.

Q. And was payment application 7, what was the reason that it

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wasn't paid at the same time as number 8?

A. I don't know that reason.

Q. They were both fully paid except for the retainage; is that

right?

A. Yes.

Q. And, were all the pay applications through pay application

8 fully paid except for the retainage?

A. Yes, sir.

Q. Was there any -- can you explain for the Court what it is

that you were requesting in order for you to simply pay the

retainage?

A. Again, in our subcontractor agreement we do state that a

payment application G702, G703 you do submit a request for the

retainage on there. This is a formality that we use. Two, I

have to make sure the retainage payment application matches

everything on a regular submission for their payment. It's, in

the event maybe we have an audit, I have proof that we paid them

that retainage so I have the payment application in hand.

Q. So, is the typical way that you close out a job, as far as

the payment, is there a final pay application that the

subcontractor gives asking only for the retainage?

A. Yes, sir. Retainage is also submitted on the --

Q. Is that why you asked to handle it that way in this case?

A. Correct.

Q. And, how was your accounting software set up in terms of

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things like retainage and payment and things of that nature?

Does it have a default set up?

A. Yeah. Yes, sir. So, when you upload the payment

application you enter in the schedule of values amount. And

then, within the system it defaults to a 10 percent retainage

held unless you change it.

Q. In this case, the total payments were a little over, around

$110,000, weren't they?

A. Yes.

Q. And the pay request was probably a little more than that,

correct?

A. Yes.

Q. And, the retainage at issue here is I believe around

$5,800; is that right?

A. Yes.

Q. So, in terms of a percentage, we're talking about

something -- would you agree that we're talking about something

less than 10 percent?

A. Yes.

Q. Closer to 5 percent?

A. I believe one of the payment applications did pay off the

retainage. So, that's why the money is off a little bit.

Q. Thank you.

A. You're welcome.

THE COURT: Thank you, Ms. Sapp. You may step down.

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Recross-Examination - Christina Sapp

MR. DARR: Your Honor, may I ask a couple more

questions?

THE COURT: Okay. But, I'm not sure Ms. Sapp has

brought any new value to the trial. It's very little. But you

are right, that the redirect was much longer than the direct.

You can cross again, but this is the point in the trial where I

will tell both of you, I'm looking for new value. So, if it's

something we already know and it's proved nine ways to Tuesday

you don't need to prove it again.

MR. DARR: I know we talk too much, but I have one

question I would like to address.

THE COURT: Surely. Go ahead.

RECROSS-EXAMINATION

BY MR. DARR: 

Q. Ms. Sapp, I saw it looked like you were looking down when

you were answering questions to Mr. Butts; is that right?

A. Yeah.

Q. I guess that's two questions. What is the document that

you're looking at?

A. I just have internal notes for myself, just on dates and

payment applications.

Q. Is it a subcontractor report?

A. No. It's just a general description of the payment

application. It's just my own notes.

Q. Okay.

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MR. DARR: That's all.

THE COURT: Thank you, Ms. Sapp. Now you may step

down.

THE WITNESS: Thank you. Have a good day.

THE COURT: Please call your next witness.

MR. BUTTS: May I have just a moment to confer?

THE COURT: Sure.

MR. BUTTS: I think we are almost finished, so just

give me a moment.

(Pause in proceedings.)

MR. BUTTS: The plaintiff rests, Your Honor.

THE COURT: All right. Mr. Darr, please call your

first witness.

MR. DARR: Candidly, Your Honor, we didn't expect them

to finish this early. My next witness is a 5 minute walk from

here. Can I go ahead and give him a call and he'll walk over

from the hotel?

THE COURT: Sure. We probably just need to take a

break.

MR. DARR: Maybe 10 minutes to be realistic then so he

doesn't have a heart attack running over.

THE COURT: We don't want him out of breath when he

gets here. He needs to be able to talk. Yeah. Let's start

back at 5 after 11. That's 15 minutes.

MR. DARR: Okay.

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Direct Examination - Randall Forde Davis

(Recess taken 10:50.)

(Resumed at 11:08.)

THE COURT: Please be seated.

RANDALL FORDE DAVIS, DEFENSE WITNESS, DULY SWORN

THE COURTROOM DEPUTY: For the record, state your name

and spell your last name?

THE WITNESS: Randall Forde Davis. R-A-N-D-A-L-L,

F-O-R-D-E, D-A-V-I-S.

DIRECT EXAMINATION

BY MR. DARR: 

Q. Good morning, Mr. Davis.

A. Morning.

Q. How are you?

A. Good.

Q. Deep breath, it's going to be fine.

Can you please tell us what your role was on the project

that is at issue in this lawsuit?

A. I was the project manager for PRC Precast.

Q. As the project manager for this project, what were your

duties and responsibilities for PRC?

A. At the very beginning it was contract negotiation. Then it

was submittals, procurement of materials, scheduling, and

dealing with any subcontractors we may have had.

Q. Did you negotiate the subcontract between PRC and Oelrich

in this case?

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A. Yes, I did.

Q. Can we pull up Plaintiff's Exhibit 2, please? Generally,

if you could scroll down slowly through? 

If you take a look at your screen, does this appear to be

the contract that PRC had with Oelrich?

A. Yes.

Q. And, if we could back up a little bit? 

Do you recall how much was this contract for?

A. Around $275,000.

Q. And, what is it that PRC was supposed to provide to Oelrich

for this $275,000?

A. A complete precast concrete package, which would have

included shop drawings, samples, engineering, and embeds that

would go into the concrete structure of the building for our

pieces to attach to. And then, at the end that all leads to

fabricated pieces.

Q. After this project was executed, who did you understand to

be the primary contact that you were to deal with at Oelrich?

A. My understanding was Chris Crehore is who I worked out the

contract with and he was their project manager.

Q. And, were your communications regarding this project

limited to just Mr. Crehore?

A. No.

Q. Ultimately, would you say that you ended up having to

correspond with more than just Mr. Crehore at Oelrich regarding

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this project?

A. Yes, for sure. Normally, I'll save the number of the

project manager or the superintendent, whoever they tell me

that, you know, I may need to be in contact with more. This

job, they had many interns and project engineers. I think by

the end of it there was like 8 or 9 different people that were

contacting us for the same things.

Q. Can I ask a question real quick? How many people from

Oelrich do you think you were dealing with, with regards to

email communications on this project?

A. Multiples. I mean, 5, 6 or 7.

Q. Do you remember any of their names?

A. Yeah. There was obviously Chris Crehore, Andy Wilson,

Jordan Robinson there towards the end. Then there was a lot of

interns that I don't remember their full names. It was Yosamani

Alords (phonetic). There was a Jerry. And I think there was

one or two others. A lot to keep track of.

Q. And, what did you understand Mr. Andy Wilson's role to be

at the project?

A. I think he was the project engineer.

Q. How about Mr. Robinson, Jordan Robinson?

A. He was the superintendent.

Q. And, do you recall what the role of the interns were on the

project?

A. I do not.

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Q. Could you please pull up Defendant's Exhibit 5, please? 

You mentioned a little bit ago that you were responsible

for negotiating the contract between PRC and Oelrich; is that

right?

A. That's correct.

Q. Could you scroll all the way to the bottom, Caitlin? Back

up a little bit to the next page. Stop right there.

Okay. So, I'm looking at a document here. This appears to

be the date that Oelrich sent the initial draft of the contract

to PRC. What date do you see there?

A. November 28th, 2018.

Q. And if you could scroll up, please, Caitlin? All the way

to the top of this email, please.

And, here is an email from Brooklyn Powell of Oelrich. Do

you remember what Brooklyn's involvement was with the project?

A. I don't.

Q. It looks like it's dated November 28, 2018; is that

correct?

A. Yes.

Q. And, I'll let you read through it real quick. What do you

understand that she is sending to you there in that email?

A. The subcontract agreement.

Q. Was this the, one of the first drafts of the subcontract

agreement?

A. Yeah, it would have had to have been.

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Q. Okay. Let's go up one more email, please?

On December 4, 2018, looks like it's an email from 

Mr. Crehore to yourself about whether you sent the contract

back; is that right?

A. Yes.

Q. Go up one more, please? 

You wrote back to him on December 4. What is it you're

telling Mr. Crehore here on December 4, 2018 before the contract

was signed?

A. We were still reviewing the terms of the contract

internally. And we're going to put our markups and suggestions

on there before we sent it back to them.

Q. You said, it's still under review by our team. Do you

recall who you had on your team at that point that was taking a

look at it?

A. Just some of the higher up people at our company. And then

we also have an attorney in South Carolina that will bounce some

ideas off of too.

Q. Can you go one more email up, please?

And, looks like you got a response from Mr. Crehore

December 6, 2018. Could you read what he wrote to you there?

A. Yeah. Do you want me to read it out loud?

Q. To yourself. I'm sorry. Is he asking for the contract

back?

A. Yes.

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Q. And if we do up one more email, please?

You wrote back to him on December 7th. What is it that you

sent him on that date?

A. I sent him the subcontract with our comments on it.

Q. And your comments, would those have included proposed

markups to the subcontract?

A. Yes.

Q. One more, please?

He wrote you back on December 11th. What is it you

understand he wanted to talk about there after reading that

email?

A. It looks like he wanted to talk about the comments we

included.

Q. Can we go to Defendant's Exhibit 6, please?

Take a look at this document, if you could. It looks like

this is an email from Mr. Crehore to yourself; am I correct?

A. Yes.

Q. And, he sent you a revised scope sheet. Where do you

understand the revised scope sheet to have been in the

subcontract?

A. I believe it was towards the back. It was kind of like an

addendum to the main subcontract.

Q. And, this sentence right here, starting with once. It

says, once you review it and confirm we are good we'll revise

the contract and send it again so we can execute without any

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additional markups.

What did you understand that to mean when Chris Crehore

wrote that to you?

A. That he was accepting what we had proposed, our comments in

there.

Q. If we look to Defendant Exhibit 7, please? Can we go down

to the email at the bottom there, please? 

You wrote back to him. And do me a favor and please

quickly read through that. And then if you could summarize what

you were communicating to Mr. Crehore in this email dated

December 14, 2018.

A. Yeah. So, it looks like he had sent the subcontract back

and incorporated our comments. But, I do remember he still

hadn't incorporated our full payment terms, what we were asking

for. So, this was just another followup to that saying, you

know, this is something we, we -- it's common language in all of

our contracts. We don't do a project without this. And if we

can't have it, if it can't be incorporated then odds are we

probably can't move forward with the project.

Q. And, if you could scroll down just a little bit more on the

same page?

This red language you see here, do you understand or do you

know whether or not this language made it into the PRC-Oelrich

contract?

A. Yes, it did.

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Q. And, as far as you know, that language verbatim that you

described as imperative made it into the contract, right?

A. That's correct.

Q. Now, if we can go back to Plaintiff's Exhibit 2, please?

Which is the subcontract between PRC and Oelrich. And if you

can go down to, I think it's page 14. Scroll down, please?

Another page. One more. It's page 16.

Do you understand this to be the additional payment terms

that PRC described as being imperative that be added to the

contract?

A. Yes.

Q. And would PRC have entered into this contract without the

additional payment terms being included in the contract?

A. No. As I said in the email previously, that's pretty

imperative to everything we do.

Q. Can you tell us why was this language so important to PRC

that they wouldn't enter into the contract without it?

A. I think I described it some in the previous email that we

have looked at. But, just to reiterate, number one, is a lot of

people in the construction realm, they don't want to pay for a

product until it arrives on site, whether it be brick, or dry

wall, or steel. You know, basically commodities that you can

get anywhere.

Whereas, our process is, it's a custom product. And we

have a lot of leg work just to get the right materials and

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design and all that. And we want assurances that, you know,

we're going to produce this stuff, sometimes 12 months plus in

advance, we don't want to just sink that kind of money into the

project and then not be paid for it for 12 months until it shows

up on-site. So that's, some of the wording in here is that, you

know, we're going to invoice for stored materials at our

facility. And once we do that, if you don't dispute the

invoice, we ask to be paid within 30 days.

Q. Can I ask you this? Generally, the goods that PRC

manufactures, are they custom?

A. Yes. Everything we do is custom to that project.

Q. And generally, after you've made materials for a client,

can you readily sell those materials to someone else if the

client doesn't pay for them?

A. No.

Q. And, was that true of the product that PRC was making for

Oelrich in this case as well?

A. Yes. Very much so. I mean, it had -- everything we've

talked about, it had special steel embeds in there. It had

special rock to match the local architecture down here in

Gainesville. We couldn't sell that to someone in North

Carolina, for instance.

Q. I'm not going to pull up a bunch of documents to show it,

but do you recall whether or not Oelrich improperly withheld

retainage in this case?

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A. Yes, I do recall that. On, I believe, every invoice.

Q. Do you recall whether or not Oelrich had past due invoices

on this project?

A. Yes, they did multiple times.

Q. Do you recall whether or not Oelrich timely paid any of the

invoices net 30 days as required under the contract?

A. I don't recall. I just remember there were a lot of

internal discussions at our company of anytime we had a meeting

of where, what was the status of Oelrich's payment. They were

behind.

Q. Could we take a look at Defendant Exhibit 50, please?

This is an email dated September 12, 2019. If you scroll

down one more, please? And another one.

This is an email right here from September 12, 2019.

Earlier we heard Miss Taylor was basically the accountant person

for PRC on this project; is that right?

A. Yes.

Q. And, can you just read this to me and tell me what it is

Allison is asking about in this email?

A. She is talking about pay apps and waivers for pay app 6.

But then I guess the discussion changed to go back to pay app 5.

Q. And, can you pull up Defendant Exhibit 53, please?

And, looking at this email, it's another one from 

Miss Taylor to Oelrich, Andy Wilson in particular; is that

right?

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A. Yes.

Q. This is October 1, 2019. What is it you understand she's

asking for here?

A. Status on our July pay app. It looks like it's a month

past due.

Q. Is this consistent with your memory that -- well, you

testified earlier that there were many invoices that were past

due under the terms that you agreed to, right?

A. That's correct.

Q. And, is this email consistent with that memory?

A. Yes.

Q. Can we take a look at Defendant Exhibit 90, please?

If you could read this email from Miss Taylor to Ms. Sapp,

the accounting person at Oelrich, to yourself real quick. Let

me know when you're done.

A. Okay.

Q. What is Miss Taylor inquiring about in this email?

A. It appears to be multiple pay apps that are overdue.

Q. And, how overdue are they at this point, according to this

email?

A. One is over 2 months. One is over a month. And one is

over a week.

Q. So, is it fair to say that as of December of 2019 Oelrich

was past due on at least several invoices, some as much as 2

months?

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A. Yes. I think that's a very fair statement.

Q. If we could take a look at exhibit, Defendant Exhibit 306,

please?

If you could review the front page of this exhibit,

Mr. Davis? What do you understand this to be?

A. So, this was our responses to Oelrich's interrogatories.

Q. Sure. And, if we can take a look at page 3, please? If

you make that a little bigger? 

This Oelrich payment history table, what do you understand

this to be?

A. So, this was produced by us to show Oelrich's payment

history. And not only that they didn't make full payments on

the invoices we sent, but also the days past due when each one

was paid.

Q. And, do you know where this information was pulled from in

PRC's system, so to speak?

A. Yeah. It came from our accounting software.

Q. And, what does this column indicate?

A. The days past due over 30 days. So that's not just -- the

first one is 18. That doesn't mean 18 days since the invoice

was sent. It would be 48 days. 

Q. And, according to your own accounting system here, can you

take a look at them and indicate to me whether any of these were

paid in full?

A. It looks like pay app 6 was paid in full. And that's the

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only one.

Q. So the other, what are we looking at 9 pay apps roughly,

none of those were paid in full?

A. That's correct.

Q. And, when was the very first payout issued on this project?

A. December 19, 2018.

Q. Some of these payout payment applications as far back as a

year before you were terminated were not paid in full; is that

correct?

A. That's correct.

Q. So, do you recall why Oelrich would not pay -- let me back

up one step.

Was there retainage that PRC requested which Oelrich would

not pay?

A. Yes.

Q. And do you recall why Oelrich would not pay the retainage

that was owed?

A. My recollection is that at first they tried to say that

wasn't part of our agreement, which it was. It was in our

subcontract, the percentages.

Then they said they weren't doing it because it was

something internal in their system that wouldn't let them bypass

it, which didn't sound like a great excuse to us.

And then they said, at the very end they said they would

fix it but we had to basically erase the previous pay apps and

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issue a new one with that current date.

Q. And, as far as you recall, none of the invoices that you

submitted in this table indicated that retainage should be

withheld at all, right?

A. Right.

Q. So, do you understand why Oelrich wanted you to submit new

payment applications for retainage that you had already billed

as far back as December 19, 2018?

A. We couldn't understand the exact reasoning behind it. But

just internally at our company, what it seemed like was almost

fraudulent, like you want us to submit new invoices and start

the date over again and you are already missing payment dates

left and right. It just, we never really understood the full

reasoning behind that, but it wasn't something that we were very

keen on.

Q. Did they ever point out a specific provision of the

contract that would have required you to resubmit the payment

applications for the retainage that they withheld?

A. No.

Q. And as far as you know, the retainage indicated on this

table that was withheld was never paid to PRC; is that correct?

A. Yes, that's correct.

Q. What did you understand Oelrich's scope of work to be at

the project?

A. I believe they were a subcontractor to the prime GC. And,

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their scope was the concrete, steel, masonry, maybe some site

work too I believe.

Q. And, out of Oelrich's scope of work that you just

mentioned, was any of that work required to be completed before

PRC could begin to install its materials at the project? 

A. Yes. I mean, the majority of it.

Q. Can you tell us what parts of that work had to be completed

before you guys could install your product at the project?

A. Well, our product is dependent on, hanging on other, on

basically the structure of the building. So, the concrete

framework of the building had to be complete. There had to be

access to the building with site work to get trucks and cranes

and all that in there. I think there was some steel that had to

go in before us. And then, also we were, in some instances we

were hanging on masonry blocks, CMU. So those had to be

installed as well.

Q. Could you pull up Plaintiff's Exhibit 2? Can you go to the

schedule please at the bottom at the end? Can you make this

page a lot bigger? Okay. And then scroll up.

And, do you recall the date by which you expected Oelrich

to start its concrete work at the project?

A. I do not. But, by the looks of this, it looks like March,

April of 2019.

Q. Supposed to start in March of 2019, is that what you said?

A. Yes.

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Q. And, could you show me where you are getting that date on

this schedule, what item number that is?

A. 72, foundations.

Q. This one right here? Okay.

And, when was the steel supposed to start?

A. June 2019. I think that's number 84.

Q. And, do you recall whether or not those scopes of work for

Oelrich started on those dates?

A. They did not.

Q. And, when you originally submitted -- let me back up one.

Did PRC submit a quote for this work or a proposal?

A. For the --

Q. For your scope of work for the project?

A. Yes.

Q. And did, was your proposal based on the assumption that

these dates would be met?

A. Yes. Well, let me back up. Our proposal says an agreed

upon schedule, but we were sent this prior to, you know, signing

the contract for the job and saying we could do it. So, this

schedule was our understanding, but then also, you know, there

may be some other things to work out that we need to agree on.

Q. So, if these dates weren't adhered to are you saying that

you would have tried to figure out a mutually agreeable new set

of dates, basically?

A. Yeah.

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Q. And, one more question on the dates that are in this

schedule that were in the party's contract, can you tell me what

was the date that you were scheduled to start PRC's work at the

project?

A. I don't see it on this page, but I think it was July 2019.

Yeah. Number 97, July 11, 2019.

Q. When was PRC scheduled to be done with its work, according

to the original schedule attached to the contract?

A. It looks like August the 7th, 2019.

Q. And, if the project had been complete on July 11, 2019

could you guys have delivered it and installed it at the project

at that time?

A. Yes.

Q. You could have installed it in July 11th of 2019?

A. Yeah. Those were our initial plans. I mean, that's when

we had an erector lined up.

Q. Even if the predecessor work wasn't complete before that,

the building wasn't up, could you have erected your precast at

the project?

A. Oh, no, no. I was giving that answer assuming every other

date had stayed on schedule.

Q. So, if it had stayed on schedule you guys could have met

that date, but since it didn't then the product wasn't ready to

be installed at the project as of July 11, 2019; is that

correct?

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A. Yes.

Q. Ultimately, when do you understand that project was ready

for precast to be installed?

A. I believe once they sorted all their stuff out the first

date I was given was January the 6th, I guess that would have

been 2020.

Q. Needless to say though, the predecessor work wasn't

complete by the July 11th date that you just mentioned; is that

correct?

A. Yes.

Q. In between the date that this July 2019 time period

elapsed, and the end of 2019, did Oelrich ever come back to you

and say, hey, we think we're going to be ready on this date or

this date?

A. Not to my knowledge, no.

Q. So, the first time you heard of a new date that they would

be ready was January?

A. 6th, 2020.

Q. Of 2020?

MR. DARR: One second, Your Honor.

(Pause in proceedings.)

BY MR. DARR: 

Q. If you could turn to page 14, please, of that exhibit?

So, as of October 2019, do you recall what percent of the

materials PRC had manufactured up to that point?

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A. I believe it was around 65 percent.

Q. If you could take a look at number 17 there, which are

PRC's interrogatory responses? Go ahead and review that to

yourself and let me know if that refreshes your memory as to

that question?

A. Yeah, I still don't remember the exact percentage. I know

it was in the 60's.

Q. Okay. Can we take a look at page 16 then? 

If you look at the response to number 19 there, does that

refresh your memory as to what percent was complete as of

October 2019?

A. Yes. So that looks like 61 percent.

Q. And, do you agree with that assertion and that answer that

it was 61 percent complete as of October 2019?

A. Yes.

Q. And, as of May 2020, what percent did PRC have complete of

the product?

A. 82 percent.

Q. So, in October of 2019, was there a decision made to

suspend production of the materials?

A. Yes.

Q. Can you explain why the material production was stopped

after that month or suspended?

A. It would have been multiple factors in-house. Number one

being, Oelrich's payment history. But then also just being a

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manufacturer and having multiple clients, if you have clients

that are -- their projects are on time and they are paying on

time, and then you have another client who isn't paying on time

and they are delayed, we tend to prioritize the people that are

on time and doing what they are supposed to do. So, I believe

at that time, you know, we gave priority to clients that were

doing the right things and needed materials pretty quickly.

Q. And, at the time that production was suspended, did you

have any clear idea as to when the project would be ready for

PRC's precast?

A. I didn't have a date from them at that time. I think

around that time we had lost our erector because the project had

been pushed back. And I was contacting other erectors to see if

they could do it. I think I was just throwing dates out to

them, November, December 2019, just to get something on the

books that I could hold them to, but I don't believe that I

received any hardcore dates from Oelrich at that time.

Q. And, did you ever at any time provide a deadline by which

you guys promised to bring the precast to the project and start

installation at all?

A. No.

Q. Does PRC generally maintain production slots for scheduling

the precast that they have to make?

A. Yes.

Q. So, you aren't just working on one project, you're working

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on precast for multiple projects throughout the southeast?

A. That's correct.

Q. And, how do production slots usually generally work for PRC

in terms of scheduling out the precast that needs to be made?

A. There's multiple factors. Normally, it may have to do with

when you sign the contract, you know, there would be a queue of

people getting in line to get production space. It also could

hinge on when the product is needed by the client. And then

also, as I said, and I believe this is pretty industry standard

just from talking to other precasters and precast erectors and

all that, is you prioritize the people that are on time and not

delayed to help them get their building envelope closed in.

Q. Once you and Mr. Crehore started trying to target some sort

of date in January of 2020, is that what you said?

A. Yeah.

Q. Were there other jobs that PRC was actively producing at

that time?

A. Yes. There were multiple.

Q. Do you recall what those other jobs were?

A. Yes.

Q. What were they?

A. EVMS, which is Eastern Virginia Medical School, they were

doing like a 12 story parking garage and classroom.

We were doing Richmond Community College in Rockingham,

North Carolina.

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Sycamore Hill in Greenville, North Carolina. And then also

I believe at that time we were doing an addition to University

of Alabama's football operations building.

Q. And, do you recall why those -- well, I'll back up one

step. Were those projects urgent at that point?

A. Yes, they were all urgent.

Q. Why was that?

A. Everyone wants precast yesterday.

Q. Were those jobs ready to accept installation of the precast

that they had ordered?

A. Yes. So at that time, January 2020, I believe we were

actively shipping and erecting on our two biggest projects,

which would have been EVMS in Virginia and Richmond Community

College in North Carolina. So, we were producing panels for

them and we were shipping and erecting them.

Q. And, do you recall whether or not the clients for those

projects were timely paying their invoices?

A. Yes. 

Q. Were they?

A. I know EVMS was spot on. We had some problems with

Richmond at the beginning of or the end of 2018, I think. But

we had settled those issues. And, you know, it was a year later

down the road and we were making -- they were doing a lot better

with payment.

Q. And were those additional payment terms that were

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applicable to your Oelrich subcontract applicable to those jobs

as well?

A. Yes.

Q. In December of 2019 did Oelrich suddenly come out and ask

you for delivery of the precast materials?

A. That is what I recall, yes.

Q. Do you recall what you told them during that time frame

regarding the ability to immediately deliver and install the

materials?

A. I believe I told them, you know, this was the first time I

was hearing of a set date that we had to be out there. And I

think I was very open with them in saying that, you know, since

this project had pushed back we had lost our installer because

they had to move on to other things. They couldn't just sit

around and wait on us. And I was actively trying to find

someone else to install the pieces. But then also that we

hadn't completed production of the pieces either. We would have

to basically restart that process.

Q. Do you recall whether you asked Oelrich in December of 2019

to pay in full for the pieces that had been manufactured?

A. I don't think that I explicitly asked him to pay in full

right then. But, per the terms of our contract, the materials

had to be paid for before they shipped. We went over that. I

mean, it's a custom product. That's what we ask for. And,

given that they had just given me a date of early January to be

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out there with product, we billed them for the remainder of the

precast up to a hundred percent just so they could get it

basically in their system and through the higher ups, whoever

they needed to get it to so that it wouldn't be an alarm. You

know, we wouldn't one week be going to ship panels and say, oh,

no, wait, you guys haven't paid for this. And then they would,

of course, say well, you haven't billed for it. And then there

could be a delay where we're having to hold a truck or something

just for clerical issues.

Q. And, did you ever tell anyone at Oelrich in December of

2019 that you guys had manufactured all of the precast

materials?

A. No.

THE COURT: Let me just me give you a heads up. I'm

the fact finder. I generally find far more persuasive answers

that a witness gives that are not responsive to leading

questions.

So, if you just lead him, you are not persuading me

very much. I know your position. I heard your opening

statement and I'll hear your closing argument. So, you can do

it. And if they don't object I'm not going to stop you. But

you can persuade me more if you ask what happened than if you

tell him what happened.

MR. DARR: Sure. Okay, Your Honor.

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BY MR. DARR: 

Q. In light of that comment, do you recall having submitted a

payment application to Oelrich in December of 2019 that

indicated one hundred percent of the product was being built?

A. Yes.

Q. And, I think you touched upon it just a second ago, but can

you explain why that was done?

A. Yes. So that was in anticipation of us completing the

manufacturing of the precast. And then them giving us this date

in early January that they wanted us out there. And given that

our contract terms said the material had to be paid for before

it shipped to the site, this was, as I said, to just get it in

their accounting system, get it submitted to the VA, or whoever

they needed to submit it to, to be processed, so that there

wouldn't be any potential delays on the back end when we were

going to ship the panels of there being a lack of payment for

them.

Q. And, did anyone --

A. And this was something that myself and Chris Crehore had

multiple conversations about in 2018 when we were signing the

contract. I believe we had a phone call where he said, you

know, if we just got it to him early enough he could handle it.

He didn't want to have to be waiting on the side of the road

with the check in his truck, you know, while our trucks are

going by and having to hand me a check and that kind of thing.

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So, it was something that I think he was very aware of.

Q. During this time frame of December of 2019, did you ever

have a conversation with Mr. Crehore about this 100 percent

billing issue?

A. I believe I would have, yes.

Q. Do you know whether or not in December of 2019, Oelrich

paid all of its open invoices for this project?

A. No, they didn't.

Q. Had they paid them in full at that point in December of

2019?

A. No.

Q. All right. Do you recall there being any OSHA and lift

plan document requirements on this project?

A. Yes.

Q. And, what do you recall those requirements as being?

A. I believe all personnel that were going to be on-site had

to have an OSHA 10 hour certificate. The foreman or responsible

person, the leader of the crew on-site had to have an OSHA 30

hour certificate. They wanted a lift plan from the crane

company before arriving. And then there was the -- I just call

it an AHA document, which is their overall safety plan.

Q. And, do you ever recall discussing these documents with the

project manager, Mr. Crehore?

A. Yes. I believe I discussed it with him and 

Jordan Robinson.

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Q. And did you ever have any discussions with him about the

timing of the submission of those documents from PRC?

A. I did. And, I believe we had discussions with some of

their interns too. I mean, at first they were asking for them

months in advance. But, as I think I previously said, we had --

basically our erector had moved on to a different project since

this project had lapsed on its date. So, at that time we didn't

even know who would be out there yet. So, I could submit you

documents for the personnel that I had lined up, but that

doesn't mean those are the people that are going to be on-site.

And I tried to convey that to them.

And then, I believe at the end we agreed on within 2 weeks

of us arriving on-site they would have all of those materials,

all of that paperwork.

Q. Did Mr. Crehore ever indicate that that timing was

acceptable?

A. Yes, he said it was acceptable.

Q. When was that?

A. It was the early part of 2020. May have been in that

January time frame.

Q. And, could you please pull up Plaintiff Exhibit 121?

Mr. Davis, can you take a look at this document and review it

and tell me what you're looking at?

A. This looks like a notice to cure from SAW Contracting to

Oelrich.

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Q. And prior to this lawsuit being initiated, had you ever

seen this letter?

A. No.

Q. As you read through it, what is it here that SAW is writing

to Oelrich about?

A. It looks like they are just kind of putting them on notice

of failing to meet certain progress dates with, it looks like

the masonry precast, steel platforms and roof system.

Q. And, in January of 2020, did you know whether the general

contractor, SAW, believed that your scope was in any way

impacting the project schedule?

A. I did not. Those weren't relayed to us.

Q. If you could pull up Plaintiff Exhibit 13, please? 

If you could do me a favor, Mr. Davis, and review the first

page at least and let me know what it is you're looking at.

A. This looks like Oelrich's response to that notice to cure

letter.

Q. And, did Oelrich address PRC's scope of work anywhere in

this letter?

A. Yes. It looks like right there in the third paragraph.

Q. This one right here?

A. Yes.

Q. If we take a look at this. I believe the paragraph reads,

precast installation has been delayed. It is worthy to note

that precast installation is not a critical path item and is not

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hindering forward progress of any of JV's trades. Did I read

that correctly?

A. Yes.

Q. And then, towards had bottom there, particularly this

section, could you read from where it says OCI, the next

sentence? There is a mention of a private inspector there. Do

you have any idea who they are referring to there?

A. No.

Q. And, there's a mention of falsely claimed that production

was at 100 percent. Are you aware of anyone at PRC

communicating to Oelrich that product was 100 percent complete?

A. No, not to my knowledge. I don't believe anyone would have

conveyed that to them.

Q. And, can you read that last sentence there out loud

starting from as?

A. As of the time of this inspection, the precast

subcontractor had 53 percent of the material produced and has

promised OCI in writing that material will be complete and

erection will start on 2/17/20.

Q. Did you ever promise Oelrich in writing that material will

be complete and erection will start on 2/17/20?

A. I did not.

Q. Are you aware of anyone at PRC that made that promise to

Oelrich?

A. I think, I think Randy sent them an email that said that

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was our best estimate that we were working towards. But in no

way was that a guarantee of when we would be out there. I mean,

that's, you know, it was a fluid situation trying to get this

project restarted. That was just, like I said, our best

estimate.

Q. And if we could pull up Defendant Exhibit 129, please? 

What document are you looking at here, Mr. Davis?

A. This looks like a letter that was sent to us.

Q. Who do you understand Warner, Sechrest and Butts to be?

A. Oelrich's counsel.

Q. And, do you recall whether or not you received this letter?

A. Yes, I did receive it.

Q. And, do you recall whether or not they asked you to reach

out to them or their client about the project?

A. They did, yeah. They put that in the letter.

Q. And, do you recall whether or not there was a deadline by

which you were supposed to respond or get in touch with Oelrich

regarding this letter?

A. I think it was January 31st.

Q. Can you scroll down to the second page, please?

Is that what you are basing it upon, this language right

here?

A. Yes.

Q. And, did you reach out to Oelrich about this letter prior

to that date?

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A. I would have reached out to Chris Crehore. I don't know if

by Oelrich you meant Mr. Oelrich or Oelrich Construction, but

yeah, I would have talked to Chris Crehore about this. We were

talking weekly, daily.

Q. And, can we pull up Defendant Exhibit 299, please? Can you

go to page 7?

And, if you could take a look at this document for me

Mr. Davis, let me know what you understand this to be?

A. This looks like a lawsuit by Oelrich Construction to us.

Q. And, at the top of this document, what is the date that it

says that this was e-filed?

A. January 27, 2020.

Q. And, did Oelrich ever inform you that this lawsuit had been

filed any time between January of 2020 to March 2020?

A. No, we had no idea until discovery in this case.

Q. Were you surprised to find out that this lawsuit had been

filed when you discovered it had been after the lawsuit had been

served on PRC?

A. Yeah, very surprised.

Q. Why is that?

A. Just the timing of it. I felt like we were still trying to

work things out with them. And then, the letter from their

attorney, if I recall, explicitly said they weren't threatening

legal action. But then just a couple days later they took legal

action without our knowledge.

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Q. And, did you continue to work with Oelrich in early 2020 to

get the precast materials installed at the project?

A. Yes.

Q. And, do you recall generally what efforts were made on your

part to make sure that happened?

A. First and foremost, we restarted production of the precast.

But then also, just more documents that they asked for I would

send over. And then, also trying to coordinate with them on

where they wanted to start the erection on the building. Stuff

like that.

I told them, you know, even if we're not a hundred percent

complete with production if we coordinate and schedule this

thing properly we could still go out there and put panels on the

building while we're producing at our plant. And then, just

kind of catch up to ourselves and complete the building. So

that way, we wouldn't have to be a hundred percent complete

before we went out there. And, we could maybe shave off a

little bit of time.

Q. And, could you please pull up Defendant 137?

Do you recognize this document?

A. Yes.

Q. And what do you understand this document to be?

A. This is an email from Chris Crehore to me. This was their

termination.

Q. And, prior to receipt of this termination email, did

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Oelrich ever tell you or anybody else at PRC that it might be

terminated?

A. No.

Q. And, in particular, did anybody from Oelrich ever tell you

or anybody else at PRC that you might be terminated if you

didn't start installing by some specific date?

A. No.

Q. When did you first see this termination notice,

approximately?

A. May of 2020.

Q. And, could you explain why it is you didn't see this

termination notice when it appears to have been sent on

March 17th, 2020?

A. Yeah. So, in regards specifically to the termination, I

believe I scanned it, the email. I saw some dates in there.

But, there was nothing alerting me to the importance of this

email. It was in a string of emails. Subject, Malcom Randall

VA precast, which was other topics that we were discussing. It

was kind of buried at the bottom. Consider this notice of

termination, there was no priorities put on it. There was no

letterhead or letter. And then also, just at that time

March 17th, I know that COVID had started. I mean, just going

back through for this case and looking at our emails, COVID

stuff had started days prior to that. This was kind of in the

throws of it. And, I was getting hundreds of emails a day from

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our clients, from suppliers, from everyone of stuff shutting

down. We had multiple crews out of state that we were

monitoring. I'm not a huge avid news watcher. I was glued to

the news trying to find out what was going on in the country

because I didn't want our guys to get stranded in Virginia or

Tennessee or wherever they were.

And, this just kind of, just the timing of it, it got lost

in all of this other stuff that we were trying to figure out.

All of these other emails and things we were deciphering.

Q. And, if you had seen this termination on March 17th, what,

how do you think you would have responded?

A. I don't know that I would have responded personally. We

may have sent it to an attorney. To me this just says like

you're done, you're terminated. It's kind of hard to come back

from that.

Q. And, you were just mentioning the impact of COVID-19. Can

you, beyond what you just described, describe to the everyone

here, any other impacts that may have occurred from COVID-19 on

PRC's manufacturing capabilities in March of 2017 or 2020?

A. Yeah. We were heavily impacted. We lost probably half of

our work force. Just them being single parents. And in South

Carolina where we were they sent everyone home from school.

They didn't have -- so these single parents didn't have any

daycare or anything like that. So, a lot of our work force just

left. I mean, they just went home to take care of their

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children. And it heavily impacted our manufacturing process.

And then also, our supply chain issues. You know, we have

multiple emails from suppliers. Us being a specialty product we

pulled supplies from all over the country. The north, midwest,

I think there is colors coming out of China, and we were getting

multiple notices of delay to those, delays to getting product

shipped to us because places were closing down.

And, then I think I already mentioned our, our installers

that we feel some responsibility for that are hours away and

we're trying to just coordinate with them and make sure they

don't like get stranded somewhere and have to quarantine 14 days

away from their family and stuff like that.

Q. Did PRC continue to manufacture the precast materials after

the date of the termination notice?

A. Yes.

Q. And, why did you continue to manufacture precast materials

after the date of the termination notice?

A. As I said, I didn't see this part of the email that we had

been terminated. To my knowledge, we were still working with

Oelrich and we were trying to get the product, get the project

done.

Q. If Oelrich had advised you or anyone at PRC that if the

installation of the precast panels did not begin by a certain

date your contract may be terminated how would you have

responded to that?

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A. Obviously, there would have been, I believe, followup

discussions to that, but we would have taken it very seriously.

Any time you have a hardcore set in stone date, I mean, and

termination is looming on the other side of that, it's something

that you want, you don't want to miss.

Q. Do you have any idea the date by which PRC would have been

done manufacturing materials had you continued on with producing

them?

A. I don't. I would just be guessing at this point. But, I

mean, we were at 82 percent in May. It wasn't but a few more

pieces that we had to make before we were completely done.

Q. Do you believe that you could have completed the pieces

prior to October of 2020?

A. Yes.

Q. How about September of 2020?

A. Yes.

Q. And, can I ask you, why is that?

A. Like I said, we were at 82 percent already in May. And

then since we were actively producing in May we would have had

those -- we would have already had that production space blocked

off in our plant and had the forms down. We would have had all

of the -- I guess, the leg work done on the front-end and then

at that time it's just churning out panels, for lack of a better

word.

Q. Okay.

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MR. DARR: That's all. Thank you for your time,

Mr. Davis.

THE WITNESS: Thank you.

THE COURT: We're going to be at lunch here at some

point. This is, I guess, Mr. Butts, I'll give you your choice.

You want to cross examine now or wait until after lunch?

MR. BUTTS: Your Honor, we'll wait until after lunch.

THE COURT: Let's take an hour. We'll start back at

1:20.

Thank you, Mr. Davis. You may step down.

If you will be back on that witness stand at 1:20.

Thank you.

THE WITNESS: Okay. Thank you.

(Recess taken 12:20.)

(Resumed at 1:21.)

THE COURT: Please be seated.

Mr. Davis, you are still under oath. Mr. Butts, you

may proceed.

CROSS-EXAMINATION

BY MR. BUTTS: 

Q. Mr. Davis, you told Chris Crehore the reason you couldn't

hang those panels on January the 6th was because you didn't have

an erector. And that's not true, is it?

A. I believe that to be true.

Q. You had an erector, didn't you? You had Mr. Marc Davis who

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you spoke with in September and October who said he would hang

those panels as early as November if you needed him to, right?

A. No. We never had -- we never came to terms with him.

Q. But he said he would hang those panels, didn't he in

November?

A. For double the price of the contract.

Q. So the only reason you didn't have an erector was because

you didn't want to pay him, right?

A. It's just not feasible to pay someone double the contract

amount, no one can do that.

Q. You had another erector back in July who you were

negotiating with but you couldn't get him to hang them either,

could you?

A. That's correct.

Q. But you had this Mr. Davis who would have hung those panels

and could have hung them on the 6th but there was another

problem, you hadn't produced the panels, had you?

A. We had not produced 100 percent at that time.

Q. In fact, you had only produced, by your own count,

63.4 percent in December, in October; right? 

A. Yes.

Q. And, you didn't produce any in November, right?

A. Right. Because we stopped production.

Q. You didn't produce any in December, did you?

A. That's correct.

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Q. So your company billed for a hundred percent production

panels on December the 16th in a sworn affidavit on a federally

funded job, right?

A. We billed on the standard AIA documents and invoices.

Q. Let's look at Exhibit 10 or pay app 10. Block 58. Let's

go back a page, please. And another page. And one more. That

page.

Whose signature is that on that affidavit?

A. Randall Davis'.

Q. And to the left of that, what's it say?

A. Sworn to and subscribed before me. It's --

Q. Do you have any reason to think that's not a sworn

affidavit?

A. I don't know the legal definition of it, but this is our

standard lien waiver that we send.

Q. So, then you told Chris Crehore you couldn't install it on

the 6th like he wanted you to, but you didn't tell him that you

hadn't produced the panels, right?

A. I believe I did -- I never insinuated we had produced all

of the panels.

Q. Except for the pay application, right?

A. Yes, it did say a hundred percent, but I've explained why

previously.

Q. Well, I heard your explanation, but my understanding of

your explanation that you gave Chris Crehore was that you

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couldn't hang the panels. You didn't tell him you had not

produced the panels, right?

A. I believe I told him both. We didn't have a hundred

percent produced. And, the big thing was we didn't have anyone

to hang them.

Q. So whatever you said to him caused him to be skeptical

enough to ask Dana Noyes to drive all the way from Gainesville,

Florida to Greenville, South Carolina to see if you had a

hundred percent of the panels built, right?

A. Yes, I guess that's how he interpreted it. He wanted

someone to see with their own eyes what we had produced. That's

not -- it is uncommon for people to show up unannounced like

Mr. Noyes did. It is not uncommon for contractors to visit our

facility and check on progress and --

Q. Mr. Davis, so what if he comes up there unannounced, you

asked for a hundred percent of the money, right?

A. We billed for a hundred percent, yes.

Q. And he just wanted to see what he was getting ready to pay

for because you wanted to be paid, right?

A. Technically, yes. But, they didn't have to pay that for

another 45 days. I mean, the way construction billing works,

we're billing this on the 15th of December, it's a projection

through the end of the month where we think we'll be. It's not

for materials that are physically made. And then as I explained

previously, our contract states materials have to be paid for

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before they leave.

Q. You didn't build any panels in January, did you?

A. I don't think we did.

Q. You didn't build any in February, did you?

A. I don't think we did.

Q. And you didn't have but 90 something panels, 80 percent, or

whatever it was, 82 percent had been built all the way out in

May, right?

A. Yes.

Q. But yet you billed for 100 percent in December and you

asked Oelrich Construction to pay that money and you were put

out when they went up there to see if you had actually done it.

And, you told Chris Crehore instead that the reason you couldn't

put them up was because you didn't have an erector that you

didn't want to pay for, right?

A. We never told Oelrich to pay it. I mean, as I said, this

was us submitting this bill at a hundred percent was just to

start the process, it being a government job, get it submitted

to the VA. We've had clients before that on the final pay app,

well, this wasn't a final pay app, but, you know, paying

progress payments for production they'll come look at the panels

and bring a check with them or see for themselves. We never

demanded on December 15th pay us a hundred percent or else.

MR. BUTTS: Your Honor, I don't have any other

questions.

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THE COURT: Redirect?

MR. DARR: Yes, Your Honor.

REDIRECT EXAMINATION

BY MR. DARR: 

Q. Can you pull up Exhibit 106, please?

Mr. Davis, do you see this email in front of you?

A. Yes.

Q. And, if you could take a look at point number one there

that you wrote and read through that real quick. Is there any

mention of the hundred percent billing issue that Mr. Butts was

just talking to you about?

A. No, there is not.

Q. Number 1 there, the number 1 paragraph?

A. There is mention that I'm not authorized to ship a hundred

percent until it's paid, but there is no mention of what has

been made to date.

Q. What did you intend to communicate when you wrote that in

that email?

A. That materials per our contract, per my previous

discussions with Mr. Crehore had to be paid for before they

could ship.

Q. And, up until, up through November 2019, the month before

this email, had all of PRC's invoices been paid in full?

A. No.

MR. DARR: Thank you.

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THE COURT: Mr. Davis, was there a time when you

stopped production because invoices had not been paid?

THE WITNESS: Yes.

THE COURT: When?

THE WITNESS: I believe that was around October or

November of 2019.

THE COURT: You sent a bill on December 16th for a

hundred percent of the production. You've told us that the

hundred percent was both what you had produced and what you

expected to produce by the end of the month?

THE WITNESS: Yes, sir.

THE COURT: If you had stopped production in October

or November, as you just told me, how were you going to increase

the amount that was produced by the end of December?

THE WITNESS: I don't believe that we sent them a bill

in November. Definitely not for a hundred percent. But the

bill in December was just based upon my discussions with 

Oelrich Construction and them basically turning the tap back on

and saying, hey, we need all this precast now, it was in

anticipation of that. Okay, we'll get you back in the schedule

and we'll get your panels start being made again, but in the

meantime I'm going to send you this bill so you have it, you can

see it, it can be processed so there are no delays on the back

end when we go to ship these pieces.

THE COURT: On December 16th had you resumed

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production?

THE WITNESS: No. Like I said, we were projecting and

trying to get it back into production.

THE COURT: Did you decide on December 16 that you

were going to resume production?

THE WITNESS: We did have internal discussions in

meetings like, hey, where can we fit these panels in, you know,

when can we get the forms built, when can we start production.

We were moving in that direction, trying to.

THE COURT: Did you decide on December 16 that you

would resume production during December?

THE WITNESS: I don't recall exactly. But, like I

said, I know that we were seriously moving in that direction.

THE COURT: When did you decide to resume production?

THE WITNESS: I mean, we decided pretty early on.

Like, we were going to resume production, we were going to

complete the job. It wasn't until I guess February or March

where we were actually able to, whether it be work force issues

like I mentioned earlier, or just other jobs that had been

completed or fallen off or finished. It wasn't until those

months that we were actually able to move Oelrich Construction

on to the production floor and start producing again.

THE COURT: My question wasn't when you were going to

resume production. My question was, when you decided that you

were going to resume production. When did you decide that you

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were going to resume production?

THE WITNESS: I believe it was in that December,

January time frame after, after we billed them a hundred

percent, after I conveyed to them why we were doing that, and

then just discussions with Mr. Crehore on schedule moving

forward and what they needed.

THE COURT: Had you made the decision when you issued

the invoice on December 16, that is, the decision that you were

going to resume production?

THE WITNESS: Yes. We were -- had all intentions of

resuming production.

THE COURT: When you submitted the invoice on

December 16, and you had decided that you were going to resume

production, did you believe that you would finish the production

during December?

THE WITNESS: I don't recall. I knew that it would

be, you know, close. I knew that we would have to work with

them to, as I told them I believe in later emails, to kind of

overlap production with shipping the panels and try to maximize

our efficiency as much as possible just because of other things,

other projects we were doing.

THE COURT: Did you believe, when you submitted the

invoice on December 16, that you would finish the production

during December?

THE WITNESS: At that time I don't remember. I mean,

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like I said, it would have been a projection for 15 days from

then to the end of December. But, mainly the invoice wasn't

just, we're going to be complete by the end of December. It

was, as I said, it was a get it through the bureaucracy part,

get it through the proper channels. You don't even have to pay

us. I mean, obviously, they hadn't been paying 30 days the

whole project. I didn't expect them to pay right when it was

due. It was a: Hey, get this ready, you can hold the check,

but per our contract -- like, we just -- that's our agreement.

THE COURT: If I understand what you said at the

beginning of that statement, you don't remember whether you

expected on December 16 when you submitted the invoice that you

would be able to do the production during December. Do I have

that right?

THE WITNESS: Yes. That's correct.

THE COURT: Did it occur to you that it might well be

a federal crime to submit this invoice for a hundred percent of

production if you did not intend at that time to finish the

production during December?

THE WITNESS: It did not.

THE COURT: Questions just to followup on mine? No,

all right. Thank you, Mr. Davis. You may step down. Please

call your next witness.

RANDALL E. DAVIS, DEFENSE WITNESS, DULY SWORN

THE COURTROOM DEPUTY: For the record, state your name

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and spell your last name.

THE WITNESS: Randall E. Davis, D-A-V-I-S.

DIRECT EXAMINATION

BY MR. DARR: 

Q. Good afternoon, Mr. Davis.

A. Hello.

Q. Can you do us a favor and tell us what your title is with

PRC Precast?

A. I am the president.

Q. And, how long have you been involved in the precast

industry?

A. Since 1979.

Q. How long have you been working for PRC Precast, LLC?

A. Since 2010.

Q. Can you pull up Exhibit 276, please? Defendant's Exhibit.

And, if you take a look at this document in front of you,

does this appear to be your CV, Mr. Davis?

A. Yes.

Q. If you could scroll through it just to make sure. Does

this appear to be up-to-date with your education and previous

experience with regards to the precast industry?

A. Yes. Some of the PE licenses are expired, but --

Q. Do you have a current PE license right now?

A. I do.

Q. And, where is that currently active where you have an

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active license?

A. Georgia, South Carolina and North Carolina.

MR. DARR: I know we're in a bench trial here and

Mr. Davis was disclosed as a hybrid fact expert witness, Your

Honor. I'm not sure if you want me to keep going about his

background, but the CV is right there and I would like to tender

him as an expert with regard to industry norms and customs for

the precast industry, the suitability of their materials for the

project, subject to our objection regarding whether it's an

issue in the case, of course. And last, as the reasonable value

of the services that were provided within the precast industry.

THE COURT: Mr. Butts, any questions at this time?

MR. BUTTS: Yes.

THE COURT: All right.

MR. BUTTS: Your Honor, it's all right.

THE COURT: All right. You may proceed. Mr. Darr,

you may proceed.

MR. DARR: Okay. Thank you, Your Honor.

BY MR. DARR: 

Q. What was your involvement with this project, Mr. Davis?

A. I am in charge of the plant day-to-day. I basically am

senior management.

Q. Do you oversee multiple projects that PRC has going on

overall?

A. Yes.

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Q. And who did -- what involvement in particular did you have

with the project that's at issue in this lawsuit?

A. I oversaw the initial sampling, creating of the samples,

getting engineering performed, making sure it got through the

system and it matched our system and so forth. I guess I could

back up earlier than that, that I worked with the salesman on

the estimate and coming up with a price and the quote, details

and what we offered.

Q. And, who was the salesman that was involved with the

estimate that was provided for this project?

A. I think it was Steve Realto on this job.

Q. And, do you know whether PRC provided a quote to Oelrich

for this job?

A. We did.

Q. Did that quote include inclusions and exclusions for what

you could and couldn't do for the job?

A. Yes. We are a manufacturer. So, we have a system. And

architects and engineers put out drawings and specs and it's

their best guess on what they can buy. So, what we have to do

is work with the contractor to adapt our system to what they are

trying to buy and that we can sell it to the owner and the

architect.

Q. Could you explain the distinction between APA plans and PCI

plans?

A. PCI is Precast Concrete Institute. It was started, excuse

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me, Prestress Concrete Institute. It was started many years ago

for the prestress concrete industry. And it tried very hard to

take a lot of the architectural precast manufacturers under its

wing. And the precast architectural folks kind of rebelled and

said we don't like your fee structure, it's pretty expensive and

we refer to do your own thing.

So, in the 60's, I believe it was, they started the APA,

which is the Architectural Precast Association. And for many,

many years the PCI has sought to keep the APA out of specs. 

But, about 15 years ago or so master spec, which is the main

spec that most commercial projects use, the government uniform

guide spec and all of the others changed the line in the wording

in their spec to say if it was an architectural job like this it

would say PCI and/or APA, either one. They realized they were

equivalent and they finally went down that path.

Q. What is your understanding of what occurred with regard to

the invoices that PRC submitted for this project in terms of the

timing of payment that PRC was receiving?

A. We submitted invoices. And per our agreement with them,

with the edits to the contract, we say in that edit that you

have 10 days to dispute the invoice. If you don't dispute it in

10 days we assume that you've accepted the invoice and it's in

your system. And you are supposed to pay us in 30 days.

And, that's typically as far as it goes for me. A clerk

brings me an invoice and says, here's the monthly invoice for

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these folks that we've worked out based on production and so

forth. And, I sign it and give it back.

Well, I don't typically get involved beyond that point

unless there's a problem. And, in this case, I was involved

because I am constantly being brought emails and so forth that,

hey, Oelrich is not paying or Oelrich is withholding retainage

and Oelrich is, you know, if you look at it they were

withholding 10 percent up and until I think December, up through

December.

So, I usually only get involved in that stuff if there's a

problem and I'm trying to figure out why aren't they paying and

what's the issue here. And Oelrich didn't seem to have an

excuse. It was just, we'll get you paid or, yeah, your app was

approved, but then we would go weeks without being paid. And

then we were always short paid.

Q. And, earlier today I think you were in the room to hear

testimony about the no day additional payment terms that were

included in this contract. Do you know what I'm referring to in

that regard?

A. Oh, yes.

Q. Typically, are you the one who ultimately makes a decision

on behalf of PRC whether or not to accept a contract for any

given project?

A. Yes.

Q. And, but for the -- would PRC have entered into this

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contract unless that note A additional payment term language had

been added to the contract?

A. No. We have not accepted a contract without note A since

January 2014.

Q. I'm sorry, I couldn't hear you.

A. January 2014 is when we started that and we've not accepted

one since then.

Q. And, do you recall what changed around January 2014 where

you made a decision that those additional payment terms needed

to be added?

A. Can you rephrase that?

Q. Yeah. Was there something that triggered you wanting to

add that contractual language to PRC's subcontracts?

A. Oh, yeah. We had a contractor, we shipped the last couple

of loads of precast on a project to him and he handed our truck

driver a check for almost $50,000 and we deposited it and the

bank called and said they put a stop payment on the check.

Q. Because the driver took it?

A. No, because, I don't know why. They just put a stop

payment on the check. So we met with our attorney and came up

with note A and said, you know, we're not -- fortunately they

need us more than we need them because there are not that many

people doing what we do. And, so we negotiate contracts, we've

negotiated contracts upwards of $2 million that had note A and

never any problems.

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Q. Mr. Forde Davis explained why those terms were important to

PRC. Can you explain in your own words why you felt those terms

were important to PRC?

A. It's really simple. We're not a commodity. We're

basically art in concrete and what we make is specifically for

that project. And we can't sell it to someone else. So, if I'm

selling you steel and you don't want it I could typically turn

around and would sell a modification and sell it to somebody.

But, in the architectural precast world it is designed and

fabricated to go on that building and it will not fit any other

building.

Q. If you make -- is all the precast that you make now for

projects specially manufactured?

A. Yes.

Q. So, would it be difficult to sell those products, that

product to another company if you didn't get paid for the

product you had made for someone?

A. It is impossible.

Q. Can we take a look at exhibit, Defendant Exhibit 306,

please?

Do you recognize this document, Mr. Davis?

A. Yes.

Q. Can we turn to page 3, please? And, could you make that

bigger to look at that table?

Can you describe in your own words what this table

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reflects?

A. That is an accounting of basically Oelrich payment history.

It shows when their invoice was sent to them, when it was due,

if they paid, if they short paid, there is a remainder due and

the past due date on it or the past due days on it.

Q. And, where was that information pulled from?

A. SAGE, our accounting system.

Q. And, the information that's included in this table is true

and accurate or do you believe there may be something incorrect

in there?

A. I have no reason to believe it's incorrect.

Q. And, according to this table, by the time PRC was

terminated in March of 2020, what was the longest period of time

that one of PRC's invoices were past due?

A. 107 days. And I think Forde said it earlier, you got to

add 30 days on top of that to how old the invoice was.

Q. Why is that?

A. Because this only counts past due days. So, there's 30

days of allowance in front of that.

Q. Can we pull up Plaintiff's Exhibit Number 2, please? Could

we scroll down to paragraph 5?

What do you understand this document to be, Mr. Davis?

A. This is the subcontract agreement between PRC and Oelrich,

I believe.

Q. And, what is paragraph 5 there labeled?

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A. Payment.

Q. And would you generally -- how would you generally describe

the terms that are under paragraph 5?

A. How would I describe them? I would describe them

incredibly favorable to the GC.

Q. What subject are they governing?

A. Payment.

Q. Was it your understanding that these payment terms were

applicable to this project or was it some other terms in the

contract that were applicable to the payment that was due to PRC

on this case?

A. No. The purpose of our note A is to change these payment

terms to something that's much more amenable to both parties.

Q. With regards to the predecessor work that we've been

talking about that Oelrich needed to complete, could you

describe for us in your opinion what work that Oelrich was

responsible for that they had to complete before the precast

product that you were manufacturing could be installed at the

project?

A. All, to my knowledge all of the cast-in-place work and all

of the masonry block work had to be installed and cured before

we could hang precast.

Q. And, what is your understanding of when that work was

complete?

A. I don't think they got ready for it until some time in

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February, is in my opinion. But it was a moving target.

Q. If you could turn to the schedule on the subcontract. I

think it's page 14, maybe 16. 16 on that.

What was your understanding on here that the schedule

attached to the contract would specify the time with which PRC

was supposed to perform its work?

A. Yes.

Q. Can you describe to me when that was supposed to have been?

A. July of 2019.

Q. And, how does the inclusion of these dates in the contract

typically effect how PRC bids a job, if at all?

A. I'm sorry, say that again?

Q. Do the dates that are included in contracts that PRC

executes effect the bid on the job?

A. Oh, yeah. No doubt. I bid one last week at BMW that we're

not erecting panels til December of next year. So, obviously,

inflation is included in that. So dates are very important to

us.

Q. Do you rely on dates as a precast contractor to schedule

out projects?

A. Yes, a hundred percent.

Q. How else do these dates effect your bids, if at all?

A. I'm sorry, say that again?

Q. Yeah. How else do dates that are included on schedules

that are provided to you to bid on effect whether or not you bid

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on it or any other aspects of your bid for going after that

work?

A. Yeah, I mean, if this date had been much later in the year

we would have probably passed on it due to other work.

Q. I'm sorry, you would have passed on it because of why?

A. Because of other work that we had that was scheduled out

later on in the year. So we look at our overall schedule when

we're bidding work. And, one of the first things we ask them

during the bid is what's the anticipated delivery time.

Q. As far as you understand, was the project ready for the

precast panels you manufactured as indicated in the schedule and

those dates?

A. No.

Q. There has been some discussion about whether or not the

panels and other product could have been delivered to the job

site before the building was ready for the panels. Can you

explain why or why not the panels could have been delivered to

the project and stored before the project was ready for them?

A. Yeah. That's an incredibly weak statement.

These are really thin panels for their size. And they got

to be handled pretty carefully. And, we have special spreader

beams we use to get them out of the forms after we pour them and

then we stack them, like we saw in the yard in the pictures.

So, they are stacked on flat ground. We make sure they're done

properly and everything is the way it's supposed to be. We do

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not ship them that way because trucks have camber built into the

trailers and that doesn't work for what we're trying to do. If

we had shipped these panels flat to the job they would have been

broken in a hundred pieces.

But instead, we roll them up with our spreader beam and put

them on A frames and ship them on edge vertically. And what

that does is we're now bouncing down the road on the strength of

the panel instead of flat and we don't break them. We have a

better success that way. 

So, for Oelrich personnel to claim that they could have

stored them as well as us, if you had been storing them right

out of the form possibly, but you're not. You got to take them

off of the truck and store them vertically and then how are you

going to store them vertically because you don't have A frames

and I'm not leaving my trucks and trailers for to you to store

them.

So, if you had taken them off the truck, laid them flat on

the ground they would have broken. And then, you would have

been calling me going, why did these break? That's because you

handled them improperly.

Q. So, it's your opinion that, and I'm sure you remember

seeing some pictures of when Mr. Noyes made a visit that he took

of where the panels were stored. Do you remember that?

A. Yeah.

Q. It's your opinion that based on your experience those

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materials could not have been stored in a similar manner once

they had been loaded onto the trucks the way you described and

delivered to the project?

A. No. The goal of precast is to handle it as few times as

possible. So, when we take it out of the form and lay it on the

ground, that's it. That's where we want it to be. When I say

ground I mean concrete or whatever. That's as far as we want to

go with it until it's cured for awhile. Then we roll it up on

edge in these shapes. And, this is all in the design from the

engineers. We roll it up on the edge and put it in the A frame.

It needs to stay in that position until it's put on the building

which is in that same position. So, unless Oelrich has specific

A frames, A frames that are specific to the precast industry

like we have in our yard somewhere in his facilities he would

not have stored them properly, he would have broke them.

THE COURT: Are we shifting gears?

MR. DARR: Yes, sir.

THE COURT: Mr. Davis, let me stop you for a minute.

There are 20 or 30 people in the room. I'm the worst engineer

among us.

THE WITNESS: I am too.

THE COURT: I think you are probably a pretty good

engineer and that's why I'm going to ask you some questions

about this.

I think I got the gist of what you just said, but I'm

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going to try to understand it a little bit better. We saw those

pictures. Those things are lying flat on the ground, or

whatever, but they seem to have something in between them so

there's some spacers or something that are keeping them

separate.

If I understand what you just told me, you take them

out of the mold, or where ever you fabricate these things, put

them straight there, they cure, I guess get stronger, these are

concrete, they've got rebar inside them, right?

THE WITNESS: That's correct. Sadly, the rebar

doesn't do anything in the architectural world unless the panel

cracks. So, our goal is to make sure it never cracks.

THE COURT: And so, what you would do, those things

would stay right where I saw them in the picture until you put

them on what, a flat bed truck, but they are going to be

standing tall?

THE WITNESS: Either -- yeah, correct. The goal, the

number one goal is to take them off of the position they were in

in the picture, roll them up on edge with our beams and then put

them on, we have these special A frames, these big steel frames.

You might have seen them on the highway before going down the

road, but they stand on that vertically.

THE COURT: And so, vertically, I mean, that, the

tall, the longest, the longest direction goes up?

THE WITNESS: No, the longest direction is horizontal

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and stronger. And then, the 4-foot direction is this way.

THE COURT: Is what's vertical?

THE WITNESS: The 4-inch thickness is horizontal. And

that's what your goal is.

THE COURT: And, what you call A frame, you've got

some kind of braces that hold this thing in that position?

THE WITNESS: It bolts to the trailer and provides

stiffness.

THE COURT: And then, it goes down and then the goal

is then to deliver it to the VA hospital to the site of this

production and you take it off right there?

THE WITNESS: You take it off there and you put it on

the building. You don't put it on the ground. So the truck

driver will sit there and wait until he's unloaded, but it's

because they are putting them on the actual building.

THE COURT: So, it goes directly from the truck to the

building?

THE WITNESS: Yes, sir. That is the goal. Now,

there's a part two to that, which we haven't discussed, which is

we have concrete A frames in your yard that are big A frames.

And sometimes if we get a project that the schedule goes to, you

know, we're in a handbasket and we can't keep them stacked

inside the shop like that, we'll roll them up and put them on

those A frames in the yard, but we're storing them properly.

THE COURT: I may be getting ahead of Mr. Darr, but I

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understand that explanation for why it doesn't make any sense to

you, why you don't want to take your product and ship it to

Gainesville in July 2019 if it's not going to be installed until

sometime early 2020 or who knows when.

THE WITNESS: Correct.

THE COURT: Why couldn't you go ahead and manufacture

a hundred percent, just like you manufactured 50 or 60 percent,

and just hold at your yard in South Carolina?

THE WITNESS: My yard is only so big. I mean, I'm

like everybody else. Whether you have 10 acres or a hundred

acres you only have so much land. And, I only have so many A

frames to store these on. And I had about $3 million worth of

precast coming through starting in November. And it was -- I

can't store all of this job at a hundred percent and manufacture

all of this. Now I'm going to have, instead of one problem

client, I'm going to have three problem clients. So, I got to

figure out who can I get manufactured and be shipping out the

door so I'm not covering up my yard with all of these pieces

because you're talking a hundred, I don't remember how many

pieces, 115 pieces I think that I have to store at my facility.

Who is paying me for my storage and moving it around and all

that? That's a cost.

THE COURT: Nobody is going to pay you to store it I

guess, but they are going to pay you --

THE WITNESS: Well, that's not true. That's a real

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animal. That is a real animal.

THE COURT: Oh, I understand that there's a cost to

storing them. I mean, they are not going to pay you to store

it, but they pay you to manufacture it?

THE WITNESS: Uh-huh.

THE COURT: So, if you had manufactured it in June,

July 2019 they would have paid you at the time?

THE WITNESS: Well, we did manufacture in I think

July, August, September, October of 2019 and we didn't get paid

for it.

THE COURT: Well, I said it badly. They had an

agreement to pay you. I know there's a dispute about whether

they did or not.

THE WITNESS: Uh-huh.

THE COURT: Got it. You answered my questions. 

Mr. Darr, go ahead.

BY MR. DARR: 

Q. With regard to that lack of timely payment that you were

just describing up through October of 2019, did that have any

effect on PRC's decision to suspend production in October of

2019?

A. It does. Our note A says if you fall behind we have the

right to stop work and reschedule it. And, that's exactly what

we did.

Q. And, can you describe to me how or to all of us how

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production slots generally work with PRC scheduling out when

precast is going to be made among your various jobs?

A. Yeah. I mean, we have 4 beds. We have a certain number of

square feet of space to cast on in the facility. And, when you

build a form like, for example, when we spend the money to build

the forms to cast this project then you want those forms to stay

down until you're done with the project. You want to be able to

cast out entirely because the cost of building the forms is not

cheap.

So, when we say, or when I say, we stopped production in

October, that was not free. That cost us money because we had

to pull those forms up to put other forms down to go into work

that was, that was flowing.

Q. And, for us nonconstruction folks, can you explain how the

forms work in the process to make the product you make?

A. The forms we make look better than the wood in this place.

They are all made out of birch. I'm not insulting, I'm just

saying that they are beautiful, they are made out of birch, they

are fiberglassed and they are gorgeous.

THE COURT: This is not the courthouse that the

federal courts are the most proud of.

THE WITNESS: Well, I'm just saying that most people

don't realize, you think it's concrete form, it's rough, no, it

looks better than this. It's gorgeous. And the reason is

because we want the precast to come out with the same finish

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every day. And so, they are made out of birch plywood, they are

structurally pretty damn strong because of the way the concrete

and that kind of abuse they take. And then they get fiberglass

resin and all on them. So you can't even, like, it's hard to

run a screw through this thing because it's that hard.

The other part of, if I can come back to your previous

question, we don't like to ship to somebody to store for a year

or however long it's going to be because when you go to hang it

on the building it looks like crap. It's been sitting stored

without being in the sunshine and stuff. One of the last things

we do before we put it on a truck is clean it. Put it on, you

know, sandblast it clean and give to you and it looks good.

Q. Now, is it fair to say that as far as PRC's business plan

for manufacturing these pieces, storing them isn't part of the

equation and, if not, why?

A. Oh, it's very much a part of the equation. It's very much

a part of the cost in the estimate. If you tell me, if you tell

me I'm bidding a job for you and you want precast next December,

as I said earlier, that involves inflation and other things like

labor increase or whatever. But, if my production slot is in

March to make that job, then I have to include the cost of the

panels being in my yard and in the way and some movement and

things like that for 8 or 9 months before I can ship them to the

job site. If my production slot is closer to when they ship,

then that number is a lot more favorable.

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Q. Right. And we still got the subcontract up in front of you

and this is the schedule attached to it. Can you remind me,

what was the date again by which you guys were supposed to be

done installing the precast?

A. We were supposed to start installing precast I think late

July. And it was going to take 20 days, something like that, 22

days.

Q. Do you recall when this subcontract was originally signed?

A. I don't know. I think December of 2019, something like

that. 2018. I'm not really sure when the date was we signed

it.

Q. The very first page. And, if you go to the bottom there is

a signature. Do these dates refresh your memory as to when this

was signed?

A. December 2018, yeah.

Q. How long did PRC originally contemplate having to store the

precast they were making for Oelrich, if at all, based on the

schedule that was attached to this?

A. Well, based on this contract, we weren't going to store it

at all. Our production was overlapping with the actual

installation. I think our production was only like 24 days or

something if we ran it as a hundred percent of that job.

Q. And, when you bid on a job like this, would you ever expect

to see a 6 plus month delay from when you are supposed to start

your work to when you actually start it?

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A. Oh, no. I didn't anticipate getting delayed, well, shoot,

until February, you're talking 8 or 9 months, I guess.

Q. And, let's talk about that site visit that Mr. Dana Noyes

made. Do you recall anything about that day? Were you there

when Mr. Noyes made the visit?

A. Yeah, I was there. He showed up unannounced. And we

typically, no one gets past the front door if you don't have an

appointment just because we frequently have "dog and pony shows"

as we call them where we have architects and customers coming in

to look at sample panels and all that kind of stuff. And the

last thing I want is to have a dog and pony show going on with

this guy and this guy shows up demanding attention for no

reason, you know. Make an appointment, it's not that hard.

Q. And, were you the one who showed Mr. Noyes around PRC's

facilities?

A. I am the one.

Q. And, can you describe to us what it is Mr. Noyes asked to

see and what you showed him, in general?

A. Well, he came in. I met him in the conference room. We

talked for a few moments. He pulled his phone and threw it on

the table and started dialing a number on speaker phone. And I

said, no, I didn't agree to conference calls with anyone. You

and I can talk and solve whatever it is you want to know. But

I'm not going to get involved in conference calls, I got other

work going on.

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And, he put the phone away and we walked out. He said,

well, I really just want to see the precast. I said, sure. So,

we walked out into the shop area. There was a lot of precast on

the floor in there. That's the interior photos. I think he had

like three of those. And I said, that's your precast. And

showed him that. And then we walked into the lower yard and I

said there is more of your precast over there. And he took

photos. And he said, okay, thanks, I'm good. And I went, okay.

And he left. I mean, I didn't show him all the precast. He

didn't ask to see the precast. So, there's two other yards we

didn't visit.

Q. And, did you ever represent to Mr. Dana Noyes that a

hundred percent of the precast had been manufactured?

A. On December 30?

Q. In December of 2019? I apologize. 

A. No. We weren't there. I didn't say that.

Q. Generally, do precasters in the construction industry

typically rely on the schedule that's provided to bid on as

something that would be realistic and accomplishable, something

that could be done realistically on time? And, if so, how?

A. During this time frame there were quite a few projects that

were going quicker than the original.

Q. Can you explain generally how precasters rely on the

schedules that are provided for them from the general

contractors or subcontractor that wants them to perform precast

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for them?

A. I mean, we kind of work from both ends. We work from the

standpoint, if we're installing the project we work from the

standpoint of how many days does it take to install it versus

when do they want it installed. So, we take that calendar and

we work from the other end, which is how many days does it take

to produce it and how many days of overlap can we have so that

the erector doesn't catch us. So, if I make the last panel, you

know, 4 or 5 days before he finishes, what's the problem? And,

we do that a lot. So, we have a lot of overlap where we are

producing a job here and the erector is installing it out there.

I think Forde mentioned EVMS was like a 12 story building. We

were producing that job at the same time it was being installed.

And I think we were producing 8 to 10 pieces a day and they were

erecting 6 to 8 a day. So, we managed to stay well ahead.

Q. And, in your experience do precast contractors that have

agreed to perform a job, do they -- is it typical for them to

suspend production if the project that they are working on gets

delayed significantly?

A. If it gets delayed significantly, yes. You don't want to,

like I said, there's a cost involved in that because you got to

build the forms twice.

Q. And, what would you consider a significant delay?

A. It depends on the workload. But if you have a pretty good

backlog, as we did at that time, then any delay is significant.

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I mean, anything beyond 30 days is going to hurt you because

you're tripping over yourself in the yard now. You got 115

panels of this job sitting in the yard and I've got another job

over here that's got, I don't know, 4 or 500 panels. And, I'm

trying to juggle all of those. And I've got cranes rolling

through the yard, things like that. So, this is not something

that you take lightly. You got to have space to put this stuff.

Q. Are you aware that Oelrich hired a replacement contractor

named Spring Precast to complete PRC's scope of work after PRC

was terminated?

A. I am.

Q. Do you think that was necessary, in your opinion?

A. No, not at all. Especially now that we know the dates that

Spring performed its work. When we stopped working in 20, or

excuse me, May of 20 we were 10, 11 days, 12 days from being

done with a hundred percent production. We could have started

erecting in May with the overlap, but no one -- we didn't get

there.

Q. And, when do you understand that Spring Precast completed

their work on the project?

A. I think it was late October, something like that.

Q. And, had things continued on track and PRC hadn't been

terminated, when do you expect that your product would have been

installed at the project?

A. We were shooting to have it all complete in July. That's

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our goal.

Q. And, with regard to these safety document issues that you

probably heard talked about the last couple of days, and in

particular I'm talking about the OSHA 10 and the OSHA 30 and the

lift plans, can you describe to me why -- well, first, do you

believe that PRC was compliant with the contract as to the

timing of the submission of those documents?

A. What was the last part? I'm sorry.

Q. Do you believe PRC was complying with the contract as to

the timing of the submission of those safety documents, the OSHA

10, 30 documents?

A. Yes. In fact, I got a -- we had a call being, what we call

ROBO dialing through the company. And, someone answered and

said, hey, boss, I happened to be walking by and said, hey, this

is a guy from Oelrich. And I grabbed the phone and said, yeah,

what do you need. And, it was the superintendent. I can't

remember his name -- Jarred or Jason or something like that --

anyway, he went at me about OSHA 10, OSHA 30 documents. And I

said, look, first off, the problem here is you guys have like 10

people there and you all want the same document and you

apparently don't talk to each other because we are getting beat

up with this. You know, get us one person to deal with. This

is ridiculous. And I think, you know, this is arrogance, but I

was in a position in the company that I could make those kind of

statements to that company. Y'all need to get it under control.

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I said, secondly, this OSHA stuff is from the person who is

going to be on-site. We're not on-site. Our sub is going to be

on-site. And right now we don't have a sub because you missed

your date. So, we're in between subs. So, I can give you those

documents right now and they would be a lie. Why would I do

that?

Q. Why would they be a lie? Could you clarify a little bit on

that?

A. Because it's documents pertaining to the training of the

individual who is going to be on-site. I don't know who was

going to be on-site. I didn't have an erector. We lost our

erector because they missed their dates.

Q. And, I suspect you're probably going to get some questions

from Oelrich's counsel about these technical specifications that

were purportedly in the VA-SAW contract. And, when I say

technical specification, what do you understand that to mean?

A. The specification of the project?

Q. Yes, sir.

A. Yeah.

Q. And do you know, in those specifications that they

introduced as an exhibit in that VA-SAW contract, were any of

those specifications regarding precast?

A. Yes, 34500.

Q. And, with regard to those specs, what is your opinion as to

whether or not the materials that PRC was manufacturing complied

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with any requirements in that regard?

A. We complied with all of the requirements in the spec or we

specifically noted it to Oelrich and said this is a very old

spec, it's outdated, this doesn't exist anymore, this is what it

should say.

In all of our -- early on in the job, we submitted all of

the, there is a list of submittals in there which is where we

have to give them material specs on the reinforcing, material

specs on cement, sand, rock, all of that kind of stuff. We

submitted all of that and it was all approved. So, if we missed

it that's where you get told, that ain't right, you missed it.

Q. And, could you elaborate on those submittal docs that were

approved? What on there would have indicated what PRC was or

wasn't providing?

A. I mean, on the drawings I'm pretty sure it said we were

providing these items and here is the way we are doing it. But,

we get mill certs for the material we buy. So we would have had

a mill cert for reinforcing, for example, and a mill cert for

cement and we submit that and then they approve it. And the

mill cert comes from the actual manufacturer of the product that

we buy from.

Q. And, who does the approval? Is that Oelrich or is that

someone all the way to the top at the owner level?

A. My understanding it would be up to the owner's rep,

architect, whoever is handling construction administration for

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them.

Q. And, could you pull up Plaintiff's Exhibit 11, please? 

You have seen this document a couple times now during the

trial, but do you recognize this document?

A. I do.

Q. And, what do you understand this to be?

A. This is a notice to cure from the, I guess the general

contractor to Oelrich.

Q. And at any time had you seen this letter before the lawsuit

was served on PRC?

A. I have not.

Q. If you had received this letter when it was issued back in

January of 2020, would that have changed potentially how PRC

would have performed on this project?

A. Yeah. I would have sat down, I would have made an effort

to get ahold of Oelrich and say, you know, why is precast in

here and what do we need to talk about.

Q. When you say, why is precast in here, what do you mean by

that?

A. Isn't it mentioned in here specifically? Masonry,

precast -- the other is masonry, precast, steel platforms. I

would have said why are we listed in this in January when my --

well, two things were going on still in January. The last email

I saw between accounting and Oelrich was January 13th. And they

still had short paid every single invoice and hadn't paid

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retainage and all this kind of stuff. So, whether we wanted to

go erect on January 6th or not, accounting would have said,

don't load the trucks boys, those are the rules.

So, the other thing that went on with this was according to

the schedule that I saw, and I don't remember which one it was,

we saw a schedule that they still had masonry to work on or

erect. And, this is wintertime. If you put masonry up today I

can't hang it today. It's got to cure for 7 to 14 days. So,

it's great they have these schedules that act like we're going

to put masonry up and you're going to put precast on it

tomorrow, but it doesn't work that way. Structurally incapable

of doing it.

Q. So, to summarize that last part of what you said, are you

saying essentially that the schedules during that December 2019

time period weren't reflecting reality of what needed to be done

at the project?

A. No. The one they gave me in December that said you need to

be here in December erecting also had erecting of masonry at the

same time. If I'm going to take 20 days to erect and you're

putting up masonry that's going to take 14 days to cure, I'm

guessing I'm going to cover you up and then I'm going to have to

pull off the job and come back. Who is paying me for that?

Q. And, if you could pull up Plaintiff's Exhibit 13, please?

Do you recognize this document?

A. I do.

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Q. And, if you could scroll down a little bit so we can read

it?

Generally, what do you believe this is?

A. This was Oelrich's answer to the notice to cure.

Q. And, was this another document that you never saw prior to

the lawsuit being served?

A. That's correct. I don't think they wanted me to read

things like they had a private investigator and that kind of

stuff. Where did that come from?

Q. And, can we take a look at Defendant Exhibit 299? Go to

page 3 or 4. Actually, 7. 

Do you recognize this document, Mr. Davis?

A. Yes.

Q. And, what is it?

A. That's the complaint from Oelrich.

Q. And, had you ever seen this document during the time frame

it was filed?

A. When was this filed? I'm sorry.

Q. Scroll up, Caitlin, to the top.

A. Oh, 1/27. No, I had not seen that until -- I think we saw

this when we got served a revision of this in July or something

like that.

Q. So, you are -- you didn't know about this until after the

March 17, 2020 deadline?

A. Correct.

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Q. And, had you known that PRC had been sued in state court

over this very issue we're here today on, prior to the

termination, what would PRC have done?

A. I wouldn't have been happy about it, but I think I would

have probably said: Hey, you want somebody else to finish the

precast, we'll give you mix, you know, we can settle on the term

for the balance of this job and y'all go finish the job. That's

fine. That's possible. No one ever called us and said, you've

made 60 or 70 or however much percentage of the project, what

would it take to get that delivered and exchange, and the mix

design and your drawings, we'll use all those so we don't have

to do this again and we can get this thing finished quicker.

We've had that happen before. 

In fact, we've been the other precaster in several

instances where large precasters have called us and said, hey,

we can't get all this knocked out, can we get you to pick up and

run with this part of the job for us so that we can make our

customer happy. And, I would have done it here. If somebody

would have called me and said, look, obviously, you're really

busy with these other projects. We understand that. We

understand we missed the date. What can we do to get another

precaster to run with this thing. Because it's very simple. I

mean, if we give them the mix design there's no reason they

can't make the precast and match ours.

Q. Just so we're clear, is it your opinion that the product

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that your company had already made for this project could have

been used and matched up with whatever contractor they had found

to complete the project, they could have completed the product,

this new guy, and made it match so that it could be used on the

project?

A. Yeah, no doubt. I mean, like I said, we've done it for

several other precasters over the years. Many -- I'm not saying

many times, but we've done it maybe once every other year or so

we get a call that says, hey, we need some help, can you do this

for us.

Savannah airport parking garage -- if you've ever been

there -- Metromont built the parking garage for $20 million and

we built all of the walkways that connect to it because they

said, we can't do it, we're too busy. Can you do this to make

our customer happy. That should have happened here. Instead,

we've now got all these panels sitting in the yard that aren't

being used. And they went through the whole effort of drawings

and design and all that stuff again. No wonder it cost them so

much money. They didn't make any effort to say what they had.

Q. So, if someone were to assert that they couldn't accept

your product because they couldn't make the aggregates match to

the replacement contractor's ability to complete the project you

would disagree with that contention or is there any merit to

that?

A. Oh, I can improve upon that contention. The rock was a

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specialty rock that we found and we got through the approval

process pretty quick and the approval process on the drawings.

In fact, we got an official attaboy back from the VA folks on

our drawings. We would have packaged up the rocks and shipped

it to the new guy to solve that problem. I don't need them.

Now I've got all of this rock sitting in my yard that I don't

need anymore.

Q. And, did anybody from Oelrich approach you or anybody else

at PRC with potential options for taking delivery of the

materials that had already been made?

A. No. In fact, I find it fascinating that, we've not talked

about this, but in the termination email I wasn't copied. Every

other time in history there was something very important I got

an email directly from Ivan or I got an email attachment from

their attorney. I was copied on that kind of stuff. I knew

what was going on. But, on the one email where we're being

terminated no one copied me. I found that fascinating.

Q. Can you pull up Defendant Exhibit 137, please?

Is this the email that you are talking about?

A. Yeah, my name is not on there.

Q. And, prior to receipt of this, had anybody from Oelrich

ever told you or anyone else at PRC that your contract might be

terminated if you didn't deliver and install the precast by a

specific date?

A. No. In fact, I was told the opposite of that.

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Q. And, what was that?

A. In a letter from their counsel that said, this is not about

a lawsuit or going to suit or anything like that. It said, on

January, I think it was 24th, here is the letter, this is what

we need, reply to us by January 31st. And now we find out they

filed lawsuit on January 27th. So, I'm really confused as to

the process or the thinking of Oelrich. It does not seem that

it was about getting the job finished. It was about preparing

for going to Court.

Q. Can you pull up Defendant 283, please?

I'd like to talk about COVID-19 and its impact, if any, on

PRC's work. Now, can you just describe generally what you

recall during the time frame that PRC was terminated about the

impact of COVID on PRC's ability in its day-to-day operations?

A. Yeah. We lost almost, approximately 50 percent of our

workforce overnight. I mean, when the schools shut down all of

the people who work for us had kids and several of them came in

and said, hey, man, I want to work, can I bring my kid. And I'm

like, God, I can't. You know, OSHA would eat me alive if they

came in here and found your kid in the plant somewhere. And, I

didn't have any other facilities for that. So, we just said,

you know, we're going to do the best we can, but we're operating

on a 50 percent capacity as far as our workforce is concerned.

And then we find out that -- we were guilty of the just in

time manufacturing also. So, we would call a cement guy and

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say, which is a major company called Lehigh and say, we need

cement and typically we'd get it within a day or a day and a

half. Now we're calling and asking for cement and we can't get

it for a week.

Q. And, we just pulled up a document. This is Defendant 283. 

Can you describe the document that's up on the screen right

now?

A. That's a payroll register for 20, that's all of 2019, yeah.

Q. And, is this information that was pulled from PRC's system?

A. Yes.

Q. And, can you describe what's reflected in this payroll

register?

A. Yeah. Those are my notes just basically just showing that

the payroll went down from 2019 to 2020 by 23 percent. And,

that was pretty harmful to us because we had a pretty big

backlog of work at the time.

Q. And, that backlog of work, do you attribute that work going

away to COVID and, if so, why?

A. No, the work didn't go away. The employees went away.

We're still trying to figure out how to do the work.

Q. The employees went away. And, you mentioned, I can't

remember, did you testify that the schools had been closed in

South Carolina during this March 2020 time period?

A. Uh-huh. Yes.

Q. And, do a lot of your employees have kids or was it only

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one employee?

A. It was a lot of, pretty, I think all of them had kids.

Q. How many employees does PRC have?

A. At that time I think we had about 28, something like that.

Q. And, had Oelrich advised PRC that it might terminate the

contract for failing to deliver by some specific date, are there

any options that PRC would have considered in light of that

advice from Oelrich that they need the product by a specific

date or they might terminate the contract?

A. Yeah. I think that's what I said earlier. It would have

been much smarter on their part to have contacted us and say,

what do we do to get the precast from you that we've already

paid for and/or any other product we can get from you. We've

got another precaster out here who is willing to finish the job.

And, it wouldn't have been -- it would have been the first time

for us, but it wouldn't be the first time that we've been party

to a similar situation.

Q. Now, with regard to PRC's damages -- can you pull up the

interrogatory responses? This is that payment history table we

talked about earlier.

If I'm not mistaken, we have the total balance due here.

And, can you also, in addition to that, can you pull up,

actually, can you switch to page --

THE COURT: While you're looking for that, back up to

the last exhibit, please, for just a minute. The one with the

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payroll information for 2019 and 2020. That one. Mr. Davis, I

can't make heads or tails out of this. The $37,396 number,

that's called regular. That's for 2019.

THE WITNESS: Yes, sir.

THE COURT: What is that number?

THE WITNESS: That was the dollar value of payroll for

2019 to the yard or to the production folks. So, in other

words, that's what we spent on payroll in 2019.

THE COURT: $37,398?

THE WITNESS: No, no.

THE COURT: That can't be right.

THE WITNESS: No, the 606 is right. 37,000 was for

the -- I don't know what that is. Wait a minute.

THE COURT: It's not a 12th.

THE WITNESS: Oh, that's hours. I'm sorry. I'm in

the wrong column. That's not dollars. That's hours. It's

payroll hours.

THE COURT: So, when you say your payroll was down

23 percent, your hours were down 23 percent?

THE WITNESS: Hours were down. So, we didn't have

people there to produce the hours. I apologize. I was thinking

dollars.

THE COURT: I knew the money didn't make sense.

THE WITNESS: That's a good catch.

THE COURT: Now I got it.

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THE WITNESS: Okay.

BY MR. DARR: 

Q. If you could go to page 18, please?

A. I apologize for fidgeting. 

THE COURT: That's all right. I'm glad I asked. Now

I understand.

BY MR. DARR: 

Q. And, Mr. Davis, if you could take a look at this? What do

you understand this table to reflect?

A. Those are damages to PRC for improper termination.

Q. As to that first item there, that's the amount unpaid under

the contract; is that right?

A. Yeah. That's on the previous page which was the chart you

were showing me.

Q. 3. And, for the unpaid balance, can you please describe

how you reached that number based on the accounting on this

table?

A. That's the bottom right column over there.

Q. This one right here?

A. Yeah.

Q. Plus?

A. Plus the 3,896 which is the amount due from some other

invoice. So those two are the unpaid balance.

Q. And, did you perform a calculation for the cost that PRC

incurred to store the precast?

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A. I did.

Q. And, that was disclosed through discovery. Pull up 279,

please? 

Could you do me a favor and please describe your

calculation for the storage fee PRC incurred for the pieces?

A. This is what we charge, basically we charge $55 per month

per piece for storage beyond what's reasonable on a project.

And in this case we had 3.37 months, we stored 70 pieces of

precast, and we put 15 percent on there for overhead and markup.

Q. And, how did you come up with 3.37 months?

A. I don't remember the exact date range I used on that. I

should have written that down. I did it on the calendar and

where we were on the project. I want to say it was from the end

of December until the improper termination but, or beginning of

December I think.

Q. And, what did you mean up here, store precast from date of

wrongful termination to receipt of suit?

A. Yeah. I'm sorry. There we go. So, it's from the date of

wrongful termination until we got served the revised suit, for

lack of a better phrase, in July. So, that's where the 3.37

came from. Like I said, there were 70 pieces of precast and

that's simple math.

Q. So, in your experience in the precast industry, what do

precast contractors usually charge to store precast panels and

pieces and the such for their clients?

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A. I have worked in, I believe, 6 precast operations in my

life. And we have charged anywhere from $35 per piece per month

to $85 per piece per month, depending on the square footage of

the pieces and so forth.

Based on the square footage of these size pieces and the

amount of yard space it took up, that's where I came up with 55.

It's somewhere in the range of 35 to 85.

Q. And, obviously, these precast pieces, you got to get rid of

them, right?

A. Yes.

Q. And, why is that?

A. They are occupying my yard and nobody is paying storage.

Q. Can you sell them to anybody else?

A. No. They have to be disposed of. It's not fun.

Q. And can you please pull up Defendant Exhibit 280?

THE COURT: Are you moving on from that one?

MR. DARR: Yes, sir.

THE COURT: I got a question about that too. First,

on the dates, on the dates for the storage, if they hadn't

terminated you, you still would have stored those things on your

lot from the March 17th, the date of the termination, up until

you installed them, right?

THE WITNESS: Yeah, that's true. But we, I mean --

THE COURT: And, you weren't going to be paid for

that?

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THE WITNESS: But I would have been paid the balance

of the contract.

THE COURT: Got it. I understand. That's a different

item of damages. But, storage from the date of the termination

til the date you would have installed it, that's not a damage

from the termination, right?

THE WITNESS: It is a damage, in my opinion. Because

we spent a lot of time rearranging the yard and getting them out

of the way and protecting them because we knew we need to have

them for the suit. And somebody's got to pay for the manpower

and crane and that stuff to move these things around and get

them out of the way.

THE COURT: Well, why did you move them differently

based on the termination than you would have moved them if you

were going to install them on the job?

THE WITNESS: Because if I was going to install them

on the job I would be taking them from their stored place, final

blasting, putting them on a truck and shipping them. But, now

the stored place is in the way of other product coming out. I

got to move them off to a corner of the yard, protect them.

THE COURT: Let's back up and make it easier. You

didn't know you had been terminated until May because nobody

read the email, right?

THE WITNESS: Uh-huh.

THE COURT: So from March 17th, until whenever you

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finally read the email in May, you sure didn't do anything

different than you would have done if the contract had still

been going forward, did you?

THE WITNESS: No. Okay. So you're taking a month and

a half or so out of that versus --

THE COURT: Well, I would take the rest of it off.

Look, here is the date that matters. The date that matters is

the storage from the time you would have installed it, if it had

gone forward, to the date when you get rid of it. So you've

used the completely wrong dates. When did you get rid of it?

THE WITNESS: I haven't yet. We kept it in case

somebody wanted to see it for this case. That's the problem.

THE COURT: So you're still storing it?

THE WITNESS: I'm still storing it. I got to get rid

of it.

THE COURT: You put the wrong dates on here, but you

put fewer dates than you could of?

THE WITNESS: Oh, I don't disagree with that comment.

THE COURT: 70 pieces, where did you come up with that

number?

THE WITNESS: That was what I think we produced at

that time. We produced 70 --

THE COURT: As of when?

THE WITNESS: As of, I think I counted that as of -- I

didn't count all of it because we produced before the

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termination date. So, I counted whatever was effective at that

date is what I remember.

THE COURT: Did somebody go out there and count them

or is it -- this is kind of the --

THE WITNESS: Yeah, we got a schedule and a QC record.

I mean, we know what's been produced.

THE COURT: This is what I might call the back of

napkin calculation. It's not actually a napkin, but it's just a

piece of paper. And that's what I guess, how many pieces

existed when is one of the things that's at issue in this case.

THE WITNESS: Right.

THE COURT: And so, what I'm trying to find out is 70

something that somebody thought was about right or did somebody

count them?

THE WITNESS: I think we had produced -- if I remember

right we had produced 70 pieces through, we have a document on

that, whatever it was.

MR. DARR: Interrogatory response I could put up.

It's an exhibit.

THE WITNESS: Through October or whatever it was. So,

I didn't count anything we produced after the termination. I

just said the pieces before that. I don't think I could be any

fairer than that.

THE COURT: But, you don't know who came up with that

number or how they did it?

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THE WITNESS: The 70 pieces?

THE COURT: Right. 

THE WITNESS: Well, I know how I came up with it.

THE COURT: How did you come up with it?

THE WITNESS: I sat down and went through the QC

records and the schedule. And this is what was produced.

THE COURT: So, that's an actual number based on

records?

THE WITNESS: That's correct.

THE COURT: All right. Mr. Darr, go ahead.

BY MR. DARR: 

Q. And, these pieces are -- they need to be disposed of I

believe is what we were talking about, right, Mr. Davis?

A. Uh-huh.

Q. And, obviously, it appears, based on -- this is a

calculation that you made; is that correct?

A. Yes.

Q. And, can you go ahead and do us a favor and describe your

calculation for the cost that PRC will incur to get rid of these

pieces that you testified nobody else will buy?

THE COURT: And, let me clarify. I understand the

question the way you just phrased it, will incur. If I

understand the last answer, it has not been incurred, this is

something you anticipate incurring going forward?

MR. DARR: That's correct, Your Honor.

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THE COURT: Got it. All right.

THE WITNESS: We erred on the side of safety in

keeping them on hand. And you call this a napkin, but, you

know, I'm an engineer, this is what we do as work product.

Anyway, at the current time we have 94 pieces to get rid of. A

standard yard handling fee every time you got to pick them up

and move them around that's a hundred and 50 bucks. That's

common across the industry. That's not even my number, but it's

common. 

Based on the size, the weights and so forth, and what

we can get on there, it's 7 truckloads of material. When I say

truckloads, I'm talking 18-wheeler trucks. So it's $650 a load

to haul from our place to the landfill. The dunnage is the wood

you got to do, the wood is pretty expensive back then, so that

might come down some now. But, the disposal rate was from the

landfill. I talked to them directly. And this piece of paper

that's down below was printed off of their website. I called

them up and said this is what I'm bringing to you, which one of

these rates is it. And they told me it was this rate. So,

that's all it is. It's basically trucking, handling and the

disposal fee.

BY MR. DARR: 

Q. And, with regard to -- if you could go back up please --

with regard to the dunnage, you said that that current rate was

little high, you're talking about the hundred and 50 dollars

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there?

A. Uh-huh.

Q. What would you say would be an appropriate rate now based

on market conditions?

A. On this many pieces, probably 50 bucks a load right now.

So that number has to come down some.

Q. So 50 bucks off a load times 7 would be what $350 less than

what you've got listed?

A. No. $50 per load total. I'm sorry. 

Q. Say that again?

A. $50 per load total would be a better number on that today.

Q. Okay. And, with regard to the lost production line item,

the damages we have, Would you pull up 281, please?

Could you do us a favor and describe how you calculated

this lost production number?

A. As I talked about before, the first time we pulled the

forms off the bed, you know, it costs us money because we got to

pull up forms that we want to use for the duration of the

project. So, in this case, we had put the forms down again and

gone back at this project trying to finish it. And, basically

when we found out, hey, they filed a suit against you, you've

been terminated we had to pull them off the form again. And

then, we have the time frame of getting the forms up, getting

all the beds cleaned up, building the new forms. So, basically

redirecting the work force to head towards another project. And

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we lost 5 days there. So, we lost a solid week of just getting

new forms down and going back and pouring on something else.

Q. And, can you stop there for a second? How did you

determine you lost 5 days?

A. The time between when we stopped pouring on this and we

started pouring something else.

Q. And, with regards to the daily rate there, the 3,240, how

did you come up with that rate?

A. That is our daily overhead rate. I did not charge labor on

that. I guess I could have charged labor on there. I just

said, you know what, I just want to be covered for my overhead

here. We got to go towards -- we would have had to tear these

up anyway to put down other forms at the end of the job. But

the difference is that in this case we couldn't plan for the

other job in time. So, our loss was building those -- waiting

on those forms to be built.

Q. And, when you say we couldn't plan for the other job on

time, do you know what job are you referencing there?

A. Oh, man. I think it's Snap Finger.

Q. Say again?

A. Snap Finger. It's like a $200 million water treatment

plant.

Q. Okay. And, if you could pull up Defendant 282, please?

And, the last line item on the damages in that table from

interrogatories was the lost profit on the remainder of work

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that was not allowed to be completed. Could you do us a favor

and explain how you calculated your lost profit calculation

here, Mr. Davis?

A. That is the summary sheet or the recap sheet for the

estimate of the project. So, it's just right off the estimate.

Q. And could you describe some of the numbers here? In

particular, the overhead rate section right here in yellow, what

each of those mean to give everyone an idea of what we're

looking at?

A. Basically, the first line is the overhead, which we talked

about that number earlier. How much -- if it take us -- we

calculated our overhead based on the number of days that the

product is on the bed being poured. So, I like to say that when

we pour precast we run concrete vibrators. I don't know if

y'all are familiar with those, but I tell everybody at work that

that's the sound of money. We base everything on the amount of

time we're running the product on the bed.

So, if we have overhead attributed to the amount of time it

takes to run that job. And, in this particular instance, so

that would have been the overhead rate. There is a cost number,

which is the materials and the overhead and all combined, which

is the 70, right above the red box 73,481.

And then, we have what we call the owner's markup which is

20 percent, which is basically if I can't get 20 percent

on-the-job I don't want to play.

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And then, we have the profit line, which I should probably

change that line to the word market, which is what will the

market bear. Can I get more than 20 percent?

Q. And so, is it fair to say that this is -- during your

estimate phase for trying to bid on this job, that's what you

intended to make lost profit wise for the work or am I

misstating that?

A. That was the profit on the precast itself. I did not

include, below that you'll see transportation. There's a

15 percent markup on the transportation sub. There's 15 percent

on engineering. And then there was a, basically a 30 percent

markup on the erecting. I didn't include those numbers, but --

MR. DARR: That's all I have for you, Mr. Davis.

THE COURT: Cross examine?

THE WITNESS: Can we take a bathroom break?

THE COURT: We can. We're going to take a 10 minute

break. Let's start back at 3:05.

We'll be in recess until then.

(Recess taken 2:51.)

(Resumed at 3:10.)

THE COURT: Please be seated. Mr. Davis, you are

still under oath. Mr. Butts, you may proceed.

MR. BUTTS: Your Honor, if it please the Court, I'm

going to take a little longer with Mr. Davis than I did before.

I've got to cover affirmative defenses in his testimony

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regarding damages. So, I apologize in advance. It may take me

a little longer.

THE COURT: The rule here is the same as always, take

however long it takes to do it well and hopefully not longer

than that.

MR. BUTTS: I will try. Thank you.

I'd like to look at Exhibit 25 first, please.

CROSS-EXAMINATION

BY MR. BUTTS: 

Q. Mr. Davis, do you recognize this?

A. I do.

Q. What is it?

A. It's from my personal notes.

Q. This is as a result of Mr. Noyes visiting your shop on the

30th of December 2019, isn't it?

A. That is correct.

Q. And, your opinion of the visit and your customer 

Oelrich Construction is that they were idiots, right?

A. I would correct the use of the word customer. Customers

pay their bills. But, yes, they do come across as idiots the

way they all -- they have 10 people calling us. They don't talk

to one another. It was pretty clear at the time that we were

frustrated with them. 

Q. You've got no evidence that they don't talk to each other?

A. Can I ask you to remove the mask because I'm having a hard

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time following you, hearing you or something.

Q. You don't have any evidence that they don't talk to each

other, do you?

A. What's that?

Q. You don't have any evidence that they don't talk to each

other, do you?

A. The evidence I have is that we will get multiple people

asking for the same thing. And when we give it to one of them

we still get the others calling asking for it. And we're like,

wait, we gave it to this person, do y'all not talk to one

another.

Q. So, you didn't like Mr. Noyes dropping in on you, did you?

A. I did not like him dropping in on me. He was a nice

fellow. I didn't have any issues with him. I just didn't like

the fact that he dropped in unannounced and demanded attention.

Q. Well, you had billed his company or Mr. Oelrich's company

for a hundred percent of the panels having been built at that

time, correct?

A. Yes. Glad you brought that up because the fact is, we've

done this for years. We've built the previous version of this

at the VA Hospital in Atlanta, a lot bigger than this. And we

did the same thing with that contractor. He said, hey, based on

the current schedule, what do you want to do here. And we said,

we're going to send you a bill for a hundred percent, get it in

your system ready to pay, hold the check, whatever you want to

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do. But we're not on a pay when paid clause. So, whether it

goes to the VA or not that's their problem. They are the ones

who decide that situation. We're on a, it's your money, you're

financing the project, we're not. So, we did the same thing

here. We gave them an invoice and said, we're going to go ahead

and give you an invoice for a hundred percent so you can have it

in your system. Because in the past when we haven't done that,

and we get ready to ship, and our accounting says, wait a

minute, they still owe us a bunch of money for panels. And then

we call the contractor and they are screaming and yelling going,

well, now, I got to go to accounting and try to get a check from

these people and they get really mad about that. So, we did

this, we thought it was a courtesy to them to do that because

we're not asking to be paid for it. We're saying, put it in

your system and get ready to go. And, I think we had emails

that even reflect that.

Q. We haven't seen it in the trial yet?

A. I thought Forde read, went over a little while ago and he

also said he talked to Chris Crehore at length about it and said

this is what we're doing.

Q. Well, can we look at Exhibit Number 2?

Are you familiar with this contract?

A. I am.

Q. And, in fact, you negotiated or your company negotiated

with Oelrich Construction pretty heavily on this contract

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especially in regard to the payment clause that you just

mentioned, right?

A. I don't know that I would say heavily, but we negotiated

with them.

Q. So, show me in this contract everywhere that it talks about

what you just said in response to my last question all that

about where you have to pay the money.

A. In note A it says -- sorry. I thought you asked me a

question. Are you done? I apologize. Note A says very clearly

that precast does not leave until it's paid for. And so, when

we get into a situation where we're possibly going to be

shipping precast ahead of the billing and payment terms that's a

problem. We have a conflict there. We have to resolve the fact

that you can't ship the precast without it being paid for.

So, the answer to that is we're going to give you a bill in

advance. You hold it. Do what you want with it, but you at

least know it exists, you've got to solve this bill before we

ship the product. And, since it's not a pay when paid clause

there is not an issue there. This is their money.

Q. But it doesn't say that in your contract, does it?

A. It says very clearly in note A.

Q. Well, let's read note A.

A. Go for it.

Q. Where does it say it in note A?

A. Where does it say what?

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Q. What you just said, that you're going to bill for the

material --

A. Precast contract members do not ship from PRC's facility

prior to payment for said members on accounts that are past due.

How do you resolve that issue if you don't give them an invoice

in advance of the shipping?

Q. What it doesn't say is that you can bill for material that

you have not fabricated yet?

A. It doesn't say I can't either. It says, you can't ship the

material until it's paid for. And, the only way for us to get

paid is to give them an invoice. What I could have done was

said, you know what, to hell with Oelrich. We are going to make

the precast and when they want us to ship it we're going to go,

hey, you need to pay us a hundred percent for material right

now. And then Oelrich would have went, wait, what the hell?

What do we do? That's not fair. But it's in the contract,

right there.

Q. But it does not say in this contract that you can fabricate

material and that you can bill for material that you have not

fabricated and expect to be paid, does it?

A. Well, that's two questions. Your first question, it

doesn't say I can't do that. And the second part of the

question is to be paid for it. We didn't ask to be paid for it.

We made it very clear we didn't want to be paid for it until we

were ready to ship.

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Q. You said there was no pay when paid clause in this

contract. Let's go back to paragraph, I think it's 5 in the

main contract.

THE COURT: Let me stop you before you ask the next

question just to try to clear up the record on the last thing

Mr. Davis said. You said we made it very clear that we didn't

want to be paid until you were ready to ship.

THE WITNESS: Uh-huh.

THE COURT: Who is we? When did you make that clear?

THE WITNESS: Forde discussed it with Chris Crehore.

THE COURT: Before you tell me what Forde said, did

you hear the conversation?

THE WITNESS: I had the conversation with Forde.

THE COURT: So, what you're telling me is what you

heard from Forde?

THE WITNESS: Yes.

THE COURT: Did you ever have any conversation like

that with anybody from Oelrich?

THE WITNESS: No, I don't usually go out of line to do

that. That's not necessary.

THE COURT: Did you ever talk with anybody from

Oelrich after this contract was being performed?

A. Yes. Dana Noyes. I think I talked to Chris Crehore a

couple of times.

THE COURT: Did you ever talk to Mr. Oelrich?

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THE WITNESS: I don't think so.

THE COURT: You talked with Chris Crehore a couple of

times?

THE WITNESS: I think so, yeah.

THE COURT: When was the last time?

THE WITNESS: It was some time around October when we

were still trying to figure out why are they not ready, what's

killing us here, what's killing the schedule.

THE COURT: All right. So, October 2019?

THE WITNESS: Yeah. I'm sorry.

THE COURT: Now, you say, we made it clear we didn't

expect to be paid until we were ready to ship. And then, when I

asked about that you said, well, you got to talk with Forde

about that. What did Forde tell you?

THE WITNESS: I'm sorry. What did he tell me?

THE COURT: What did he tell you on that subject?

THE WITNESS: I think I signed the invoice. And I

asked Forde why are we billing a hundred percent. And he said,

because the schedule says this. And I said, okay. And I knew

exactly what he was talking about. Like I said, we've done this

with lots of other customers. We say this helps them out we

thought. So, that's why we did it.

THE COURT: And he said the schedule says this?

THE WITNESS: Yeah.

THE COURT: The schedule says --

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THE WITNESS: Well, this is when they had said they

wanted us November or January 6th, or whatever. And we're like,

okay. We didn't think they were going to get there.

THE COURT: So, when you signed the December 6th

invoice your understanding of the schedule was installation

January 6? 

THE WITNESS: Installation in January, yeah. I didn't

think they were going to get to January 6th.

THE COURT: And, that was okay with you?

THE WITNESS: Which part?

THE COURT: Installing on January 6.

THE WITNESS: We could have started installing on

January 6 if they were ready and if we had an erector. We were

trying to find one. So, yeah. We would have had to scramble to

get all the rest of the precast made. But, like I said, it was

10 to 12 days worth of work.

THE COURT: You could have done it?

THE WITNESS: Yeah.

THE COURT: Mr. Butts, go ahead.

BY MR. BUTTS: 

Q. Do you see paragraph 5A?

A. I do.

Q. Is that, that's a pay if paid clause, isn't it?

A. If it was in effect it is, but it's not in effect. Note A

supercedes these conditions. Very clearly.

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Q. Note A only deals with receiving payment, right?

A. Note A are the payment terms for us on the contract.

Q. Note A, if you read note A, it doesn't say anything about

applying for payment. It only talks about receiving payment,

right?

A. That's absolutely incorrect. It talks about applying for

payment, giving you the invoices, you have 10 days to correct

them, if you don't they are accepted. All of that is applying

for payment.

Q. But it only supercedes what it applies to?

A. It supercedes all other payment terms in the contract.

MR. DARR: Your Honor, objection. I think we are

starting to ask legal conclusions. I always lose debates with

witnesses about interpreting contracts.

THE COURT: If you want to ask him his understanding

of the contract, that's fine. And if a contract is ambiguous

somebody's understanding may affect it. Let me just tell you

that what I'm watching is an argument back and forth. And

that's fine. Sometimes you want to argue with a witness and it

gives me a feel for the witness. And if you want to do it, it's

okay. But, I can tell you, I can read the contract. And, if it

helps you, Mr. Butts, you're going to lose this argument.

MR. BUTTS: Pardon me?

THE COURT: You are going to lose this argument. Note

A says what it says. So, you are going to deal with note A.

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And, you're not going to win the pay when paid argument. Note A

supercedes that. So, you can argue with Mr. Davis all you want,

but I'm just telling you, you're going to lose that argument.

BY MR. BUTTS: 

Q. You didn't send any photographs along with your request for

payment in December, did you?

A. I don't know. I didn't personally do it, but I don't do

that so.

Q. It's reasonable for, if you're asking for payment for

materials, is it reasonable for Mr. Oelrich to expect to see

photographs of what you want to be paid for?

A. On some projects we do that. Some projects we don't. Some

contractors ask, some don't. Usually if they ask we do it.

THE COURT: I should back up while you're paused and

say this about my last comment. I said sometimes a witness'

understanding when there is an ambiguous contract affects how

the contract winds up being construed.

A witness' understanding may be more important in

another respect. Here, what the people did and why they did it

is part of the lawsuit. And, a decision maker's understanding

of the lay of the land may impact what the decision maker did

and why he did it. And, that may affect the reasonableness of

what he did. So, I don't want to cut you off on asking

Mr. Davis' understanding of the contract, whether right or

wrong. And, I may, that will be an issue for me later. But I

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don't want to cut you off on asking his understanding of the

contract or why he did anything he did. So, if my earlier

comment seemed to say stay away from that, I didn't mean for it

to. You can ask anything you wish. I guess that's a too long

explanation that Mr. Darr's objection is overruled.

BY MR. BUTTS: 

Q. Paragraph 5B of the contract, do you have any -- scratch

that.

Did you ever submit a change order on this contract for

anything?

A. I do not know off the top of my head.

Q. You didn't, did you?

A. I don't know off the top of my head.

Q. Well, you're requesting payment, according to your, you're 

requesting for payment for storage and for lost profit and for

disposal and various things of that nature, right?

A. Correct.

Q. And, but the contract requires you to submit those change

orders in writing, doesn't it?

A. I don't think I submitted those to you during the terms of

the contract. I'm confused by that as being a change order.

Q. So, --

A. We were terminated before I did that, so I'm confused as to

how that's part of the contract.

Q. So, is it your position that the damages you're seeking are

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not subject to the need for a written change order?

A. Are we reopening the contract after your improper

termination now and submitting these as change orders? I'm very

confused by this path. I guess I'm confused by the question.

Q. Can we look at Exhibit 8, please? No, I'm sorry, Exhibit

12.

You never responded to Mr. Oelrich when he sent you this

email, did you?

A. That's correct. I was really busy on two other projects

that -- two big projects that were bidding that week, and --

Q. Did you ask anyone else in your office to respond to --

THE COURT: Wait, one at the time. Let him finish his

answer before you ask the next question.

THE WITNESS: Yeah, I was -- I saw it. I was really

busy on two other projects I was trying to bid that I was just

covered up that week and the time slipped away from me. And

then, quite frankly, 2 or 3 days later my accountant came in and

said, hey, I'm still battling Oelrich's accounting, they won't

pay us, this is what's going on. And then my attitude got the

better of me and said, to hell with him, I don't want to talk to

him right now. 

I was tired of -- we're being given dates now to do

things and perform and yet Oelrich doesn't perform. You know,

Oelrich had a simple job to do. It was put up the structure and

pay us and that was it. And, they couldn't seem to do it.

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BY MR. BUTTS: 

Q. You really thought Ivan Oelrich was all cattle and no hat,

right? Isn't that what you said in your deposition?

A. If that's what I said it's fitting. It doesn't sound like

something I would say, but --

Q. That's the real reason you didn't respond to him, right?

A. I just told you why I didn't respond to him.

THE COURT: It's all hat and no cattle is the

expression, not the other way around.

THE WITNESS: Either way, I don't remember saying it.

BY MR. BUTTS: 

Q. The original contract called for you to start on July the

11th, called for the precast to be installed on July 11th of

2019, correct?

A. We looked at that earlier. I think it was some time in

July. I don't remember the exact date.

Q. We can refer to Exhibit 2. And, if you need to look back

at that schedule.

A. Yeah, okay. July.

Q. Does that help you to refresh your memory on line 7?

A. July 11th, yes.

Q. On July 11th, you only had 24 pieces of precast fabricated,

didn't you?

A. That's correct.

Q. And, you didn't have anybody to put it up with a crane

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either, did you?

A. I think in July I did have an erector, yeah. Before we got

to July 11th it was very clear you guys weren't going to get

anywhere near there. So, we slowed down production. But I

could have banged this thing out in about, I don't know, another

2 weeks after this or 3 weeks and we would have overlapped with

the wrecking and we would have been pretty damn close to those

dates.

Q. Did you ever visit the job site?

A. No, I rarely visit job sites.

Q. So, you don't really know the extent to which the job was

ready on January 6th to install precast, do you?

A. I will say that I do not have firsthand knowledge of that,

but I had implied from the emails and the scheduling that it

appeared to me they were not ready.

Q. Do you remember me taking your deposition back in May?

A. I remember the deposition. I don't remember what month it

was. Yes, that's correct.

Q. I took your deposition on May the 26th. And, I asked you

questions about damages, the damages that you assert in this

lawsuit. At the time that we discussed those damages you didn't

have any calculation whatsoever for storage, did you?

A. That's not correct. I had calculations, chicken scratch

that I couldn't give to you to see at the time because it

wouldn't have made any sense. So, I kind of rewrote it into

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something that was clear.

Q. Do you remember giving your deposition on that day?

A. I remember the deposition. I don't remember what day it

was, yes.

Q. Do you remember that you were under oath that day?

A. Yes.

Q. And was your attorney present?

A. No, we were -- we were doing the video thing.

Q. He was present by video?

A. I guess he was present on the video somewhere, yeah.

Q. The question I asked you was in regard to your claim for

damages, including storage. I said, number 20 is asking about

the cost of storing the materials. I think we've already talked

about that, if I recall correctly. You have not done a

calculation that you can share with me on how you reach the

number $14,910, am I right? And your answer was, correct.

A. That is correct. I had not done a calculation I could

share with you. It was chicken scratch. And I said I need to

write this in a legible form you can follow. Engineering

chicken scratch is a pretty ugly thing.

Q. My question wasn't whether you had done a calculation you

could share with me with chicken scratch or anything else. I

just asked you if you had done a calculation and you said, you

had not?

A. No. You just read, you could share with me. And, I said,

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no, I don't have one that I can share with you.

Q. Oh, the distinction is one that you could share with me

when I was asking you for a calculation instead of just whether

you had just done one?

A. I'm sorry. I thought that was pretty clear. Yeah. I had

not done one that was legible that you could read. So, I had to

go back and rewrite it.

Q. So, the next day, when we finished up your deposition,

that's when you brought in all of the calculations that you've

discussed with the Court today, right? All of the handwritten?

A. That's correct. Yes. I rewrote them into neater -- I

write really fast and really illegible for most people. So, I

rewrote it into something neat.

Q. Can we look at Defendant's Exhibit 202, please?

MR. DARR: 282, Mr. Butts.

MR. BUTTS: Thank you.

BY MR. BUTTS: 

Q. Mr. Davis, this lost profit of 31,748 includes -- is that

the profit for the whole job?

A. That is the profit for the precast portion, the

manufacturing portion.

Q. That's if -- that's the profit that you would make on

the -- on your schedule of values for which line items?

A. Everything down through production.

Q. Can we look at pay app 10?

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Are you saying through line item number 4, production, that

that's how much money you expected to make, the 31,000?

A. Yes.

Q. And, that would be if you had been paid the last 15,899 on

this pay app, right?

A. Plus all the other unpaid invoices and retainage and all

that stuff.

Q. You had already been paid 110,000 of the 151,000?

A. I believe it was 109 something. But, yeah.

Q. So, on the last -- is it your position that along the last

40,000 or so dollars that your calculations indicate that you

had made 30,000 of that last 40,000?

A. It is my position that it cost me -- I always assume the

material and labor cost in the front and profit, I don't count

my eggs before they hatch. So, the profit is on the back end of

it. So, that is the unpaid profit.

Q. But profit would be spread out throughout the entire

$120,000, wouldn't it?

A. No. I have the cost of making the job. Profit is whatever

is left over after you get through it. What if you get to the

last piece and you really screw it up and you got to make it a

couple of times.

Q. I would like you to look at Exhibit 31, please?

Let's move through this slowly. Do you recognize what this

is?

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A. It's the specifications for the architectural precast on

the project.

Q. Under section 1.3A, what are these notes on here?

A. I have no idea.

Q. You don't know whose notes they are?

A. No.

Q. Are they Mr. Realto's notes?

A. I don't know. They might be. I don't know. I just said

that. I don't know who did it. I have not seen this, so I

don't know who did it.

Q. Are these specifications the specifications that your

company was required to follow as part of the contract?

A. That's a yes or no question. Yes, the specifications are

what they are. No, because as a fabricator, as a manufacturer

we try to comply as tight to this as we can, but many times the

specs are, in this case, VA specs are years old and they specify

things that don't make any sense. So, you give them the best

you can. You get as close as you can to it.

Q. Do you recognize these as the specs that were included with

your scope of work for the precast on this project?

A. I guess they were. I don't know if they attached to the

contract or not. I don't remember that part. But, okay. They

are the specs on-the-job, I'll give you that. I don't know --

the rest of that question I don't know.

Q. Well, we can refer to the specs in the contract if you'd

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prefer to do that. I just thought it might be simpler for you

to --

A. I'll take your word for it. If they are in the contract it

wouldn't be uncommon.

Q. Did you comply with MNL 117?

A. Yes.

Q. Can we look at exhibit -- I believe it would be 584.

Excuse me, Exhibit 33.

Did you enroll -- what do you recognize this document to

be?

A. I have no idea.

Q. Okay. It says MNL 117.

A. Okay. Is it out of MNL 117, is that what you're saying, as

part of the book or something?

Q. I'm saying -- it says MNL 117?

A. I will admit it says MNL 117. I don't know where it came

from.

Q. Well, let me just ask you this, did you enroll one or more

plant personnel in a quality control school?

A. I have, yes.

Q. Pardon?

A. Yes.

Q. And, did you schedule an in-plant precertification

evaluation with an audit agency, RBA Audit?

A. Not with RBA Audit, but we were inspected by a firm out of

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Florida twice a year which qualifies for Florida DOT.

Q. Did you meet the PCI requirements?

A. Yes.

Q. Are you a PCI certified shop?

A. No. We are an APA shop. We had this discussion earlier.

They are an equivalent.

Q. Do you remember giving your deposition on May 26, 2021?

A. You keep asking me that question. I remember the

deposition. I don't know the date.

Q. Were you under oath?

A. Yeah. I'm sure I was.

Q. And your lawyer was with you, right?

A. Yeah, we had this discussion.

Q. And I asked you, did you meet the PCI requirements?

A. Uh-huh.

Q. And your answer was no? Today your answer is yes?

A. I must have misunderstood your question. I thought maybe

you were asking me if I was a PCI certified plant. No. We're

an APA certified plant. However, the requirement of both are

equal, according to the federal government now. And we,

therefore, meet the PCI requirements.

Q. Is your erector, whoever you were going to use, PCI

certified?

A. No. There is a huge problem because, in fact, I would ask

you the same question of the so-called erector that you found to

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do the job. PCI certified erectors are far and few these days

and hard to find. And, they certainly don't want to do

architect precast projects. They want to erect big parking

garages. What we offer in our quote, and we offered it to

Oelrich and they accepted it, and I'm assuming they passed it on

to the VA, was that we would hire an auditor to come out and

audit the erection one time that it was going the way it was

supposed to go. And, we have now done that on almost every job

the past couple of years because all of these specs have all

gone to this PCI certified erector stuff. And the problem is

the erectors have not kept up with, it cost too much money to do

it.

Q. Can we look at Exhibit 274, please?

Is this the quote you referenced a minute ago?

A. That is a quote from Steve Realto of us, yes.

Q. Anybody sign that quote?

A. I have no idea. I guess Steve did. Steve didn't sign the

quote.

Q. That quote is not incorporated into this contract that you

signed, is it?

A. I don't think it's in this contract.

Q. So consequently, Mr. Oelrich didn't agree to this quote,

did he?

A. I would assume, I don't know. That's a legal opinion, but

--

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Q. But, this is the quote you submitted to him, didn't you?

A. I don't know if that's the actual final quote or not. We

go through multiple quotes when we are working on a job.

Q. Is there anything about this quote that you disagree with?

A. I have not read the quote. I'm seeing it for 30 seconds.

Q. I'm going to direct you to number 9. This is your quote,

isn't it?

A. I'm sorry, what?

Q. This is your quote, isn't it?

A. Yeah, we just said that like 19 times.

Q. Number 9 is requiring you to design -- that you're saying

that you are going to design and produce this material in

accordance with PCI MNL 117, right?

A. Yep. And we did.

117 is a quality control manual. I don't know what you

think it is. But it's just a quality control manual is all it

is. There is two of them. There's 116 and 117. 116 is for

structural precast. 117 is more stringent for architectural, 

which is what this is, the exterior of the building. So, all we

were required to do is follow the requirements in 117 for design

and production tolerances. And we did that.

Q. Let's go back to Exhibit Number 121, please. No. Sorry.

Exhibit Number 33.

The highlighted part down near the bottom says that if you

are not PCI certified you are not eligible to bid on projects

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Cross-Examination - Randall E. Davis

since there is no guarantee that a plant will become certified.

But you bid on this project and you are not PCI certified,

right?

A. That's not what that says. Sorry. That's funny. This

says if you are in the program, you're trying to get PCI

certified, you are not eligible to bid on a project because you

may not get certified. I'm not trying to get PCI certified.

I'm not selling that to anybody.

What I said was, if you read this quote you just had up,

design and production tolerances. Our design requirements were

produced in accordance with this quality control manual which

means loads, connection types, all of that kind of stuff. We

did it all per this book. Our production tolerances came from

this book. There are pictures in this book of panels and it's

got dimensions and it says, if this panel is within this length

it better be plus or minus an eighth of an inch and that kind of

stuff. We met all those requirements out of this book. Nobody

here is trying to sell PCI to anybody.

In fact, the problem is not a single PCI plant bid on this

project. They don't want this crap. PCI plants are huge.

Sorry, I shouldn't have called that crap. That was bad. My

apologies.

Q. Did you build the panels with epoxy-coated rebar in them?

A. No, it's not a requirement. Neither did Spring Precast.

Q. Do you see under section 1.3 where it says the fabricator

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qualifications must be a firm that complies with PCI MNL 117?

A. Yup. And we complied with PCI MNL 117.

Q. But you are not a member of PCI, are you?

A. It does not say I have to be. It says we have to comply

with it.

Q. Well, did you participate in PCI's plant certification

program?

A. No, I just told you we are an APA certified plant. They

are equivalent, according to the federal government, master

spec, you name it today, everybody accepts them as equivalent.

This is an old spec.

Q. I'm sorry. I didn't mean to interrupt you. 

A. That's fine. Go ahead.

Q. Under A2, you were required to be a PCI plant certified

program, right?

A. And we notified you in the bid we are not. It's big and

bold on top of the quote. And, I believe there's a line item

that says, fabricated by a plant participating in the APA

certification program.

Q. That's not incorporated into the contract, is it?

A. What's that?

Q. The, that quote is not part of the contract, is it?

A. It's not. It does not alleviate the fact that we're an APA

plant. We were presented by Oelrich, we gave them all of our

submittals, and they presented it to the VA for approval for us

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Cross-Examination - Randall E. Davis

to make the product. And we were accepted and approved.

Q. If we go to the next one, B, number B1. It says that a

precast concrete erector qualified by the Precast Prestressed

Concrete Institute prior to beginning work at the site submit a

current certificate of compliance. Did you do that?

A. We've already answered this question like 3 times. There

are not PCI erectors out there because the program costs too

much money, they don't want to participate in it. So, there are

very few of them. And they are all building $50 million parking

garages. So what we do is we offer a 2A field certified auditor

to come in and audit the erector. That's the only option we

have. You have no erectors available. If you demand PCI from

the spec you will never put the building up.

Q. Go to, in this it would be 2.2B.

Do you see B1 requires epoxy-coated reinforcing bars. And

you didn't use them, did you?

A. You really don't know how to read specs, do you? B1 is

under B, which is ASTM 8, 7 out of 6 weldable reinforcing bars

are required to be epoxy-coated. We come under A, the one above

that, reinforcing steel, grade 60 deformed. It doesn't say

anything about epoxy-coated.

Q. In your deposition transcript, the one we referenced

before, I asked you, did the panels you produce have

epoxy-coated reinforcing bars? No, that was negotiated out in

the bid phase.

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Cross-Examination - Randall E. Davis

A. Okay. I don't -- what do you want me to say to that? Is

that a question?

Q. Well, there was nothing said about welding wire in your

deposition?

A. You didn't give me a spec to look at in the deposition, so

therefore, I didn't read the specific spec. All I know is our

policy as a corporation is we don't do epoxy-coated rebar. It's

extremely expensive. It takes an incredibly long amount of time

to get it fabricated and get it back to you. So, we always

negotiate that out in the bid phase. So, that statement is

correct. But now that you've shown me the spec I realize you

are reading it wrong.

Q. I don't want to argue with you.

A. I'm sorry.

Q. But I will represent to you that the spec was an exhibit in

your deposition.

A. Well then, you must have only showed me this page and not

the previous page, so I missed it.

Q. Did the product have an acid etched finish?

A. No. That was not the final choice by the architect.

Q. I'm going to reference you to paragraph 2.12. And, if we

go 2.12. 2.12.

Under A3, doesn't that say that you are to have an

acid-etched finish?

A. A2 says, I'm to have an expressed aggregate finish using

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Redirect Examination - Randall E. Davis

chemical retardant. And, that's what we did.

This is all a match existing. So, our choice is, as the

experts, to decide what is the finish out there we're matching.

In this case, it was not an acid-etched. It was an exposed

aggregate, much like on the outside of this building. So, we

produced a sample using chemical retarders and the architect

accepted it.

MR. BUTTS: That's all my questions.

THE COURT: Redirect?

MR. DARR: Just briefly, Your Honor.

REDIRECT EXAMINATION

BY MR. DARR: 

Q. Could you pull up Plaintiff's Exhibit 4? Back out so we

can see the whole page. Maybe in a little more, sorry.

Have you ever seen this document before, Mr. Davis?

A. This is the contract with Spring. I don't know that I have

seen this, but maybe. I don't remember.

Q. Well, could you do me a favor and quickly look at the cover

page there and see if you could confirm your suspicion that this

is the contract with Spring Precast?

A. Yes, that's what it looks like.

Q. Could you turn to page 19, please? Actually, could you go

up one page to the top?

What does this appear to be, Mr. Davis?

A. The quote from Spring Precast.

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Redirect Examination - Randall E. Davis

Q. And, if you scroll down to where we see the bottom of the

page, what's that section 1 titled?

A. Scope of work.

Q. And, do you see here this section? What would you

understand that subsection to be?

A. That's inclusions.

Q. And, when you say inclusions, what does that mean?

A. Those are the things that they are including in their

quote.

Q. And, if you scroll down a little bit more? Stop. 

There's, in this inclusion section as you described it, how

many items do you see there?

A. 12.

Q. And, what is number 6 here mean? Plain black reinforcing,

do you see that?

A. Plain black reinforcing, they chose not to provide

epoxy-coated rebar either.

Q. So, would it be fair then, based at least on this document,

it doesn't appear as though the replacement subcontractor used

epoxy-coated rebar on the project?

A. That's correct.

MR. DARR: That's all I have. Thank you.

THE COURT: Mr. Davis?

THE WITNESS: Yes.

THE COURT: I'm interested in trying to figure out how

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Redirect Examination - Randall E. Davis

many pieces were fabricated as of December 30th when Mr. Noyes

dropped in unannounced at your plant. You showed him some

inside and some outside?

THE WITNESS: Uh-huh.

THE COURT: And, I think you said, but that's not all

because I've got another, I don't remember if you said --

THE WITNESS: Yeah.

THE COURT: -- building or yard?

THE WITNESS: Two other areas, yeah. Two other yards

that we didn't show him or I didn't show him.

THE COURT: Well, why would VA product be at that

other area?

THE WITNESS: No. It's all part of the same facility.

I'm just saying there's a backyard and upper yard. And he

didn't ask -- he didn't ask to go see any more than that. He

was very much just like, okay, I'm good. And that was it.

THE COURT: How many acres do you have there?

THE WITNESS: Like 6.

THE COURT: You knew why he was there?

THE WITNESS: Uh-huh.

THE COURT: He wanted to see the product you had

billed for, right?

THE WITNESS: That's, no, that's not what he said. He

just said, I just came here to see the product and you guys have

made some precast. And I said, sure. So, I showed it to him.

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Redirect Examination - Randall E. Davis

I personally didn't know where all of it was. And that was why

I was frustrated with him not making an appointment because if

he had made an appointment I could have had a little idea of

where all the different panels were and then I could have showed

them all to him. But to walk around and go, those are yours, it

doesn't work very well.

THE COURT: When did you find out where they were?

THE WITNESS: When did I find out where they were?

THE COURT: Yeah.

THE WITNESS: They were -- these were made up through

October. So, they had been out in the yard for months.

THE COURT: Well, if you didn't know where they were

how do you know how many there were?

THE WITNESS: We knew through October how many there

were. That's why I said there was like 70. I think this was

like 63 percent. We did the math earlier.

THE COURT: Well, I guess you told me, you didn't show

it all to him because you didn't know where it was?

THE WITNESS: A, I didn't know where every single

piece as to count. I could have known that if he had planned

with me to come I could have taken him around and done that.

But he didn't do that.

And, then the second one was, he didn't present

himself that way. He didn't say, this is what I am here to do.

He just said, you know, can we walk around and look at it some?

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Redirect Examination - Randall E. Davis

And I said, sure. And we did. It was a very calm, friendly

walk around. Nothing to it. He never said, hey, I need to see

every single piece. That would have been a different animal,

but he didn't go there.

THE COURT: Thank you. Questions to followup on mine?

MR. DARR: No, sir.

THE COURT: Thank you, Mr. Davis. You may step down

and return to counsel table.

Mr. Darr, please call your next witness.

MR. DARR: That's our two witnesses, Your Honor. And,

our witnesses were put on in support of our counterclaim as well

as rebuttal.

THE COURT: Defense rests.

Is there a rebuttal case for the plaintiff?

MR. BUTTS: Can we have a moment, Your Honor?

THE COURT: Surely.

MR. BUTTS: May I ask the Court for a short recess, 5

minutes?

THE COURT: Sure. 4:07. Let's come back at 4:15.

MR. BUTTS: Thank you.

(Recess taken 4:07.)

(Resumed at 4:15.)

THE COURT: Please be seated.

Mr. Butts, what says the plaintiff?

MR. BUTTS: We have no rebuttal, Your Honor.

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THE COURT: All right. Let's talk about where we go

from here.

What is most useful for me is closing argument, oral,

not written submissions. I propose to have you argue. I would

hope to be able to announce a ruling. But that depends a little

bit on the arguments. And I'll have some questions as we go and

may depend on those.

It's a little late in the day to try to do that at

this point. Might all do better if we do it in the morning.

Tell me what your preferences are. We've certainly got some

people traveling at least, but probably nobody gets back to

South Carolina tonight. And beyond that, tell me what you,

what's best.

MR. DARR: Your Honor, I think we personally, we are

stuck here tonight no matter what anyway. So, probably tomorrow

morning at 9 if that works for you for closings.

THE COURT: Mr. Butts is nodding. That works. How

long do you want for closing?

MR. BUTTS: I think we could probably do it in an

hour, our side.

THE COURT: That strikes me as a long time. I won't

cut you off before that. I mean, one thing about oral arguments

in a nonjury case is I can kind of stop you when you are talking

about something that you're already ahead on and I don't need to

hear more about or sometimes even if you're behind and I don't

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need to hear more about it.

MR. DARR: If I'm going an hour you can shut me down,

Your Honor. I hope to be done in 30 minutes.

THE COURT: We have got very good lawyers on both

sides of the case. You're not going to waste your time. And,

as I said, I can stop you if I think I've already got command of

something.

Before we quit, there is one thing I wanted to do.

I'm going to call Mr. Oelrich back as a witness. And you can

stay right where you are. It's going to be brief. You are

still under oath.

Here is my question, you authorized the lawsuit when

it was filed, I don't know the date in front of me, I think it

was February, January, January before the termination. In any

event, you authorized the lawsuit? Yes?

THE WITNESS: Yes, sir.

THE COURT: It was a lawsuit for replevin. A lawsuit

to make PRC deliver to you, turn over to you the product they

had already made. Here's my question, if you knew that it was

impossible to match the product, why did you want the product

they had made? Or the flip side, if you wanted the product they

had made didn't you think you could match it?

THE WITNESS: No, sir. So, at the time it was --

what, we didn't know what we were going to do. We had no

communications. We were having a hard time every step of the

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way with this. So, I had engaged with Mr. Butts and his firm to

look at options and see how we are going to do this and what we

could do. And, I think we came to the conclusion after we got

into it or after we thought about it for awhile we were not

going to be able to match their panels. 

At one time we thought, well, we'll get their panels

and then we'll get some other panels. The more we went into

that that's what our conclusion ended up being, is we were never

going to be able to match their panels because we had a hard

time getting samples back as it was.

THE COURT: You heard Mr. Davis say they've done this

a number of times. They get called in on jobs where somebody's

got it and they can go in and match it. How did you know that

you couldn't match their product?

THE WITNESS: Just, just from the experience of having

a hard time matching what was there and getting the original

samples approved. That's -- and these panels, when they go on

the building they are going to be side by side. They are not --

we don't know what they had. I mean, we had an idea of what

panels they had and what panels they didn't have. But if there

was a slight difference there, we would be sunk.

THE COURT: I got it. I understand you buy carpet all

out of the same lot because if you get two different lots it

ain't going to match and if you --

THE WITNESS: That was the conclusion we came to, Your

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Honor.

THE COURT: If you mess up one panel of the tile in

the kitchen you got to retile the whole kitchen because it isn't

going to match. I understand the concept. This fabricated

material had to match the rest of the building?

THE WITNESS: Yes, sir.

THE COURT: And that's why Spring Precast had to go up

somewhere in Georgia and get what rocks to go in there?

THE WITNESS: Yes, sir. If I might add, sir, once we

took that step, dealing with Mr. Butts and then we decided, hey,

this is about the time that I guess Chris had a good positive

conversation with Forde, you know, we thought there was positive

movement there. And, you know, so we decided to let that ride.

They never served notice of that as far as I know. We decided

to work through it.

THE COURT: No, I got that. I just -- who was the

person with the most expertise that said it's impossible to

match what they've done?

THE WITNESS: That was a conversation we had with

myself and Chris and probably Matt, just from experience of

working around those kinds of things.

THE COURT: All right.

THE WITNESS: I just didn't -- we didn't think after

we talked about it and worked through, it we didn't think they

were going to be able to match.

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THE COURT: That was my question. Either side have

questions to followup?

MR. BUTTS: No, thank you, Your Honor.

MR. DARR: No, thank you, Your Honor.

THE COURT: All right. Thank you, Mr. Oelrich.

We'll start back at 9 o'clock in the morning. The

sequence will be plaintiff, defense, plaintiff. And then, as I

said, if I'm able I will give you a ruling, may take a break and

come back and give you a ruling. If I'm not, I won't. But I

try to be. It's better for everybody if we get it done. And, I

will know as much about the case by the end of oral argument as

I'm ever going to know about the case. And, when I take things

under advisement, if I don't get back to it for a month, and you

know how that goes. So, it's much better if I can rule on the

spot. And I'll try to do that. I'll see you at 9 o'clock in

the morning.

We are adjourned.

(Proceedings concluded at 4:23 on Tuesday, October 26,

2021.)

* * * * * * * * 

I certify that the foregoing is a correct transcript 

from the record of proceedings in the above-entitled matter. 

Any redaction of personal data identifiers pursuant to the 

Judicial Conference Policy on Privacy are noted within the 

transcript. 

/s/ Lisa C. Snyder 3/13/2022 

Lisa C. Snyder, RPR, CRR 

Official U.S Court Reporter 

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I N D E X

PLAINTIFF'S WITNESSES PAGE

Cross-Examination By Mr. Darr 220

Redirect Examination By Mr. Butts 255

Redirect Examination By Mr. Butts 263

Recross-Examination By Mr. Darr 264

CHRISTINA SAPP

Direct Examination By Mr. Butts 265

Cross-Examination By Mr. Darr 269

Redirect Examination By Mr. Butts 277

Recross-Examination By Mr. Darr 282

DEFENDANT'S WITNESSES PAGE

RANDALL FORDE DAVIS

Direct Examination By Mr. Darr 284

Cross-Examination By Mr. Butts 320

Redirect Examination By Mr. Darr 325

RANDALL E. DAVIS

Direct Examination By Mr. Darr 330

Cross-Examination By Mr. Butts 379

Redirect Examination By Mr. Darr 405

<<INDEX END>> 

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