Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH Document 172-15 03, 2006 02/26/2007 Filed GEORGE MORVIS, MARCH
Page I IN THE UNITED STATES COURT OF FEDERAL CLAIMS 2 3 JOHN H. and MARY E. BANKS, ) 4 ERROL L. and SUSAN H. STONE, ) 5 asTrusteesoftheSUSANH. ) 6 STONE TRUST, et al., ) 7 Plaintiffs, ) No. 99-445 l 8 vs. ) Consolidated with 9 UNITED STATES OF AMERICA, ) No. 04-277L 10 Defendant. ) 11 12 The deposition of GEORGE MORVIS, called 13 for examination, taken porsuant to the Federal 14 Rules of Civil Procedure of the United States 15 District Courts pertaining to the taking of 16 depositions, taken before NICOLE SCOLA, CSR 17 No. 0844104524, a Notary Public within and for the 18 County of DuPage, State of Illinois, and a 19 Certified Shorthand Reporter of said state, 20 10th Floor, 155 North Wacker Drive, Chicago, 21 Illinois, on the 3rd day of March, A.D. 2006, at 22 9:02 a.m. 23 24

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Page 2 1 PRESENT: (Continued) 2 3 UNITED STATES DEPARTMENT OF JUSTICE, 4 ENVIRONMENT & NATURAL RESOURCES DMSION 5 GENERAL LITIGATION SECTION, 6 (999 18th Street, 7 Suite 945, North Tower, 8 Denver, Colorado 80202, 9 303-312-7327), by: 10 MR. TERRY M. PETRIE, 11 -and12 U.S. ARMY CORPS OF ENGINEERS, 13 (477 Michigan Avenue, Room 659, 14 Detroit, Michigan 48231-1027, 15 313-226-2215), by: 16 MR. GARY W. SEGREST, 17 Assistant District Counsel 18 Detroit District, 19 appeared on behalf of the Defendant. 20 21 22 23 REPORTED BY: NICOLE M. SCOLA, CSR, RPR, 24 C.S.R. Certificate No. 844524.

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1 PRESENT: 2 3 MR. JOHN B. EHRET, 4 (20860 Greenwood Drive, 5 Olympia Fields, Illinois 60461, 6 708-748-8975), 7 appeared on behalf of the Plaintiffs 8 John H. and Mary E. Banks and the 9 Deponent; 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

1 (WHEREUPON, the witness was duly 2 sworn.) 3 GEORGE MORVIS, 4 called as a witness herein, having been first duly 5 sworn, was examined and testified as follows: 6 EXAMINATION 7 BY MR. PETRIE: 8 Q. Good morning, Mr. Morvis. 9 A. Good morning. 10 Q. How are you? 1I A. Fine. Thank you. 12 Q. Have you ever been deposed before? 13 A. Yes, I have. 14 Q, When was the last time? 15 A. I belive four to five years ago, 16 Q. How many times all total would you 17 estimate? 18 A. Tiffs would be the second. 19 Q. The second time. 20 The deposition four or five years ago, 21 what was that generally about? 22 A. A financial services case. Q. Nothing to do with the matters in this 23 litigation? 24
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EXHIBIT 13

Case 1:99-cv-04451-ECH Document 172-15 03, 200602/26/2007 GEORGE MORVIS, MARCH Filed
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1 (WHEREUPON, discussion was had 2 off the record.) 3 MR. PETRIE: We're back on the record, and 4 I'd like the record to reflect that on our break, 5 Mr. EHRET voiced his consternation about the 6 definition that is located in the opinion that 7 I've just placed in front of Mr. Morvis, 8 expressing his thought that the term "terrestrial" 9 was not one in which somebody might be able to 10 easily understand. This was all in the presence 1 l and the hearing of Mr. Morvis, and we're ready now 12 to go back on and continue with the questioning. 13 BY MR. PETRIE: 14 Q. And, Mr. Morvis, as you can see, I've 15 given you the chance to take a look at that 16 definition, and in light ofthat definition, I'd 17 like you to consider the two points in time, one 18 being when you and your wife acquired the property 19 in December of 1982, and then second, the 20 occasion, the date September of 1996, when the 21 property was placed in the ownership of the trust. 22 And to the extent you can, can you tell me where 23 the ordinary high water mark was located at those 24 two points in time for the property?
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1 A. Certainly. On the first occasion, 2 boulders were put in to reinforce the sea wall. 3 On the second occasion, this would 4 be -- I believe it was '96 that we -- when the 5 permit was -- boulders were put in to reinforce 6 the bluff, and I frankly cannot recall if more 7 boulders were put in to protect the sea wall, 8 because on the second occasion, the sea wall had 9 actually snapped at the north end and fell down 10 into the water. 11 Q. Any other forms of sea -- shore 12 protection? I have sea protection on the brain 13 here. Shore protection. 14 A. No, sir, not to my knowledge. 15 Q. Sir, we mentioned earlier here some of 16 the thoughts about what was causing the erosion 17 there along the shoreline. Do you have -- or, let 18 me put it this way: Have you ever heard that 19 various forms of shore protection themselves cause 20 erosion to properties located down drift or south 21 in this instance? Have you ever heard of that 22 thought? 23 A. I never heard of that thought, but nay 24 assumption is, yes, they do, which is why we have
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1 A. I cannot. 2 Q. Okay. Thank you. Let's press ahead. 3 Sir, are you familiar with the term 4 "shore protection"? 5 A. That's fairly clear, shore, protection. 6 Q. Okay. Do you have any understanding 7 about whether the sea wall that was located on the 8 property at the time it was fn'st acquired by you 9 and your wife, that's an example what I mean by 10 the term sea protection (sic). 11 A. Okay. 12 Q. I'm curious to know if you had any 13 other sea protection -14 MR. SEGREST: I'm sorry -15 BY MR. PETRIE: 16 Q. Or, shore protection -17 MR. SEGREST: There you go. 18 BY MR. PETRIE: 19 Q. -- placed there for the protection of 20 the property besides the sea wall and the efforts 21 associated with the restoration of the property 22 after the dunes were lost? 23 A. Yes, sir. 24 Q. Can you describe those for me, please?

1 the problem to begin with. 2 Q. Can you elaborate why your assumption is? What do you base that on? And I don't ask 3 4 that to challenge, I just want to inquire. 5 A. It's what we spoke of earlier, any 6 unnatural sources put in to block the natural flow 7 of the lake might be constmed as to interfering 8 with that flow and the buildup of sand, et cetera. 9 Q. Do you have any knowledge about any 10 efforts by the Corps over the -- let me break it 11 up into two periods of time. Let's focus first on 12 the period of time before you and your wife 13 acquired the property in December of 1982, okay? 14 And I want to know if you are aware of 15 any efforts by the Corps to address erosion 16 problems there in the area in which you owned your 17 property? 18 A. No, sir. 19 Q. How about subsequent to that point in 20 time, after the two of you acquired the property? 21 A. I'm sorry, of the Corps -22 Q. Yes, sir. Any efforts by the Corps 23 after the two of you bought the property to 24 address erosion problems?
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Case 1:99-cv-04451-ECH

GEORGEMORVIS, MARCH 03, 2006
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Document 172-15

Filed 02/26/2007

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1 A. I'm not aware of any. 2 Q. At what point in time -- let me, I 3 guess, restate that a little bit more or better. 4 The two of you are in some manner -5 let me ask it this way: Who is the trustee of the 6 Carolyn Morvis Trust? A. Our attorney. 7 8 Q. Okay. Who, from your involvement, made 9 the decision to bring the lawsuit here in this 10 case against the United States? 11 A. My wife and I. 12 Q. So at some point in time, at least 13 before filing of the suit, the two of you had 14 concluded that, in some manner, the Corps was at 15 fault here? 16 A. Yes, sir. Q. Was there a point in time before 17 18 that -- well, let me break it out. 19 About when was this decision made to 20 bring the lawsuit? 21 A. I don't remember. 22 Q. Was it within a year or two of when 23 this suit was actually filed? 24 A. I don't remember.
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1 when that thought dawned upon you? 2 A. First of all, I don't know what mother 3 nature does, so that part of your question I can't 4 answer. 5 Q. The general dissipation of the sand. 6 A. Yeah. Well, I'm not sure that's mother 7 nature or otherwise. 8 Q. Okay. 9 A. I believe it was to -- to the point of 10 your question, I believe it was an, you know, 11 ongoing conversation. I mean, it's not a daily 12 conversation, but an ongoing conversation that the 13 Corps had a -- you know, was responsible for what 14 was happening. 15 Was there a moment that we -16 Q. A eureka moment? 17 A. Eureka moment? No. 18 MR. PETRIE: Let's go ahead and take a 19 break. 20 (WHEREUPON, a short recess was 21 had.) 22 BY MR. PETRIE: 23 Q. Just one item to follow up on to 24 clarify for my understanding, please.

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Q. Can you then -- understanding the 2 difficulties in remembering time, can you give me 3 some sense of what point in time the two of you, 4 or yourself in some manner, the thought occurred 5 to you that, you know, the Corps is behind our 6 problems here? 7 Does that make sense what I'm asking? 8 A. I'm not sure I understand the inference 9 of the question. 10 Q. Sure. Iunderstand. Let me see if I 11 could make myself more clear. 12 In some manner, the erosion problerr~s 13 seem to be greater than just what mother nature 14 does. Then, as evidenced by the fact that a 15 lawsuit was initiated against the Corps after you 16 bought the property years later, at some point in 17 between when you bought the property or when you 18 brought the lawsuit or the lawsuit was brought, in 19 some manner, the two of you or yourself formed 20 some kind of an understanding that the Corps is 21 the cause for the problems that we are 22 experiencing with our property over and beyond 23 what mother nature does. 24 I'm just trying to get a sense about

1 The sea wall was in place when the 2 property was ftrst acquired'? 3 A. Yes, sir. 4 Q. What was your understanding about the 5 Corps of Engineers' involvement with that sea 6 wall? 7 A. Our understanding was that the Corps 8 had put in the sea wall. 9 Q. And your understanding was gained from 10 whom? 11 A. Mr. Chapman. Q. The neighbor Mr. Chapman that you 12 13 referred to? 14 A. Correct. MR. PETRIE: Thank you. No other questions. 15 16 THE WITNESS: Thattk you. 17 EXAMINATION 18 BY MR. EHRET: 19 Q. I'd like to show you an aerial 20 photograph which is indicated in the upper 21 left-hand comer, in fact, in every white spot, 22 "AMI," which means Aims Multiimaging, and it's 23 dated April of'05, and it shows your name, Morvis 24 No. 24, and it points to a house.
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