Semler Aff W Exs in Anti-SLAPP Motion Gerald Waldman Vs Capitol Intelligence Group Libel and Slander Civil Action Case No. 2018-CA-005052

IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
GERALD WALDMAN
Plaintiff,
v. Case No. 2018-CA-005052 B

Judge: Hon. Neal E. Kravitz
PETER SEMLER; and CAPITOL Next Event: Scheduling Conference on
INTELLIGENCE GROUP, INC., January 18, 2019
Defendants.
EXHIBIT INDEX IN SUPPORT OF DEFENDANT’S SPECIAL MOTION TO DISMISS

PURSUANT TO THE D.C. ANTI-SLAPP ACT, D.C. CODE SECTIONS 16-5501 ET SEQ.
Exhibit 1 Contract of Sale between Peter Semler and Rob Ramson
Exhibit 2 List of DC Court Cases Naming Gerald Waldman as a Party to the Case
Exhibit 3 List of Maryland Court Cases Naming Gerald Waldman as a Party to the Case
Exhibit 4 Letter Penned by Peter’s attorney Benny Kass to the US Trustee
Exhibit 5 Police Report Filed by Peter Semler Regarding the Damage Done to the Mural
Exhibit 6 Affidavit of Monica “Niki” Davis
Exhibit 7 Transcript of In-court Testimony Given by Donald Temple
Exhibit 8 A Copy of Donald Temple’s Opening Brief as the Appellant in is Case Against
Gerald Waldman
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
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Exhibit Page 1 of 19
Exhibit 5
Exhibit 6
Exhibit 7
1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
2 CIVIL DIVISION
3 ------------------------------x
:
4 GERALD WALDMAN, ET AL., :
:
5 Plaintiffs, : Civil Action No.
:
6 versus : 2013 CAB 5658
:
7 DONALD TEMPLE, : Volume II of II
:
8 Defendant. :
------------------------------x
9
Washington, D.C.
10 Tuesday, September 29, 2015
11 The above-entitled action came on for a non-jury

trial, before the Honorable HERBERT B. DIXON, JR.,
12 Associate Judge, in Courtroom No. 415.
13 THIS TRANSCRIPT EXCERPT REPRESENTS THE

PRODUCT OF AN OFFICIAL REPORTER, ENGAGED
14 BY THE COURT, WHO HAS PERSONALLY CERTIFIED
THAT IT REPRESENTS TESTIMONY AND PROCEEDINGS
15 OF THE CASE AS RECORDED.
16
17 APPEARANCES:
18 On behalf of the Plaintiff:
19 ANTON WEISS, Esquire

RISA HIRAO, Esquire
20 Washington, D.C.
21 On behalf of the Defendant:
22 REGINALD RICHTER, Esquire

Washington, D.C.
23
24
25 Deborah Maren (202) 879-9952

Official Court Reporter
1
1 TABLE OF CONTENTS
2 WITNESSES
3 On behalf of the Defendant: Page
4 DONALD TEMPLE
5 Direct examination by Mr. Richter................3

Cross-examination by Mr. Weiss..................33
6 Redirect examination by Mr. Richter.............55
10
11
12
EXHIBITS
13
14 - NONE -
15
16
17
18
19 MISCELLANY
20 Certificate of Court Reporter........................64
21
22
23
24
25
2
1 P R O C E E D I N G S
2 Thereupon,
3 DONALD TEMPLE,
4 Having been called as a witness on behalf of the defendant
5 and having been first duly sworn/affirmed by the courtroom
6 clerk, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. RICHTER:
10 Q. Good afternoon, Mr. Temple.
11 A. Good afternoon.
12 Q. Will you please state your full name for the
13 record and spell it, please.
14 A. Donald Melvin Temple. Donald, D-O-N -- common
15 spelling; Melvin, M-E-L-V-I-N; and Temple, T-M-P-L-E
16 [sic].
17 Q. And your current address?
18 A. Is 228 M Street, SW, Washington, D.C.
19 Q. What is your profession, Mr. Temple?
20 A. I am an attorney.
21 Q. And what is your educational background?
22 A. I attended -- attended high schools in
23 Philadelphia. I attended Howard, where I graduated with a
24 bachelor's. I attended Santa Clara School of Law, where I
25 graduated with a J.D.; and Georgetown Law School, where I
3
1 graduated with an LL.M. in international and
2 constitutional law.
3 Q. And how long have you --
4 THE COURT REPORTER: Can you keep your voice up,
5 please.
6 MR. RICHTER: I'm sorry. Thanks.
7 BY MR. RICHTER:
8 Q. How long have you been practicing law?
9 A. I've been admitted to practice law since 1978 so
10 approximately 37 years.
11 Q. And what is the nature of your practice?
12 A. It varies. Predominantly civil rights
13 litigation, Section 1981, Section 1983, Title VII,
14 representing workers in the District of Columbia
15 government and occasionally private businesses.
16 Q. Did there come a time when you purchased a
17 building at 1229 15th Street?
18 A. Yes.
19 Q. And do you recall the terms -- the basic terms
20 of the purchase?
21 A. Yes. Generally I purchased it from David Ball
22 for about -- I don't recall the exact amount.
23 Q. And was that purchase through an LLC?
24 A. It was through 1229, LLC. 1229 15th Street,
25 LLC.
4
1 Q. And you were personally a guarantee -- you
2 personally guaranteed the loan?
3 A. That's correct.
4 Q. Did you -- you borrowed money for the purchase?
5 A. The LLC borrowed money. And I guaranteed it,
6 yes.
7 Q. And you borrowed that money from Mr. Waldman?
9 Q. And do you recall how much you borrowed from
10 Mr. Waldman?
11 A. Approximately $915,000.
12 Q. Now, direct -- well, while we're at that, are
13 you aware of how much in cash payments you made during the
14 course of the loan before the foreclosure?
15 A. I think it was somewhere around 700. I'm
16 uncertain of that. But I think it was somewhere around
17 700,000 or something like that.
18 Q. And, now, directing your attention to the 2010,
19 2011 time period, did you have the 1229 15th Street, LLC,
20 file bankruptcy during that time period?
21 A. I think it may have been earlier. I'm not
22 exactly sure when. But I did --
23 Q. I'm sorry?
24 A. I did.
25 Q. Let me rephrase that. It was 2009 --
5
2 Q. -- that that occurred; right?
3 A. I did.
4 Q. And why did you do that?
5 A. At the time the market was peculiar. The
6 property was a little under water. A lot of work had to
7 be done on the property -- an enormous amount of work.
8 When I purchased it, I actually purchased it as
9 is. Subsequent to the purchase, I learned there was
10 structural problems that I had to address, among other
11 things.
12 So I had to put a lot of money into the
13 property. In addition to that, my practice was just a
14 regular practice. But I had experienced some health
15 problems starting in 2006 when I was diagnosed with
16 cancer.
17 Subsequent to that --
18 THE COURT REPORTER: I'm sorry. Can you slow
19 down, please.
20 THE WITNESS: I'm sorry. Yeah.
21 In 2009, I suffered a pulmonary embolism. So I
22 was debilitated for a part of that period, which created
23 certain pressures.
24 In addition to that, because of the note and the
25 dynamics -- it was an expensive note. I had hoped that I
6
1 would be able to get in, get out. It was just -- that
2 didn't happen because of various circumstances.
3 So I continued, nevertheless, with Mr. Waldman
4 to do deals and to make adjustments, which ultimately
5 resulted in me consistently paying more and more
6 monthly -- more than the monthly note.
7 Q. And so that's -- that's why you filed
8 bankruptcy. But was the result of the bankruptcy why the
9 LLC -- the LLC filed bankruptcy. But was the result --
10 what was the result of the bankruptcy?
11 A. I'm sorry. The court asked for and considered a
12 plan, a reorganization plan. That was a Chapter 11.
13 My objective was to try to restructure the debt
14 along with my personal professional financial situation so
15 as to ultimately get out of that deal and get into
16 something else or to pay off or to get -- or to sell it.
17 In order to do that, there had to be different
18 improvements made on that building. And that's why --
19 David Ball, by the way, used be to the manager of Union
20 Station.
21 And David Ball had a certain expertise in terms
22 of property, et cetera, that was reported to the court in
23 the negotiated confirmation plan. And that's why the
24 court -- by way of the confirmation plan, the court order
25 appointed David Ball because he was going to come in and
7
1 make logistical types of changes, hoping to bring the
2 value --
3 THE COURT REPORTER: Sorry, sir. You've got to
4 slow down. I just can't --
5 THE WITNESS: I'm very sorry.
6 BY MR. RICHTER:
7 Q. Try to slow down just a little bit.
8 A. I'm sorry.
9 Q. We're almost at the end here.
10 A. Okay. Not a problem.
11 Q. We're close, I know. But let's take a little
12 time here.
13 A. Your Honor, I apologize.
14 To improve the property, bring the value up so
15 that we could tenantize it and maybe help with the
16 overhead.
17 Q. And was the plan that you came up with to
18 reorganize the LLC and the bankruptcy approved?
19 A. It was approved by way of court order, subject
20 to any changes only by way of court order.
21 Q. And what was your understanding, based on that
22 plan, on the role of Mr. Ball after the plan was approved?
23 A. It was -- it was -- my understanding was --
24 based on the language of the agreement was that Mr. Ball
25 was appointed and placed into the managing member
8
1 position.
2 I didn't see it being conditional at all. It
3 was there. In addition to that, it was a court order.
4 So, consequently, if there were any changes otherwise, the
5 court would have to approve that. And that didn't happen
6 so I operated on that particular premise.
7 Q. As of -- moving forward now to February 2012,
8 what was your payment status relative to the 1229 property
9 at that time?
10 A. Well, I was -- I recall paying approximately
11 $10,500 a month. And I was struggling at that time. But
12 I had made substantial payments.
13 And I remember seeing a note where I had made 12
14 consecutive payments. And some of them may have been a
15 few days late or so.
16 I made 12 consecutive payments. And I was
17 struggling but still trying to work it out. But in
18 addition to that, I had put the property on the market.
19 And I was trying to get somebody to buy the property to
20 alleviate the payment status.
21 And, finally, at one point I had -- in March I
22 talked to Mr. Waldman and asked him -- because in shopping
23 the deal and trying to get the deal, someone had expressed
24 an interest to me in buying the property for a million
25 dollars.
9
1 And so I asked Mr. Waldman whether he would
2 accept that. And he said no. And so there was -- other
3 than that, there was no discussion at all.
4 I was willing -- and I think at one point at a
5 meeting with my lawyer -- and I'm not sure if that's the
6 case -- where I was willing to actually turn the property
7 over to Mr. Waldman.
8 Q. And when you say "turn the property over to
9 Mr. Waldman," are you talking about a deed in lieu of
10 foreclosure?
11 A. I am.
12 Q. And what was -- what was Mr. Waldman's response
13 to that?
14 A. He -- he -- no response.
15 And at one point I asked him in an e-mail was he
16 flexible. And that was, again, during the time I was
17 trying to sell the property regarding the million-dollar
18 deal.
20 down and speak up.
21 THE WITNESS: I really apologize. I'm not used
22 to being in this part of the court. I apologize.
23 And there was no flexibility at all.
24 And I'll try to slow down.
25
10
1 BY MR. RICHTER:
2 Q. Just to be clear, you mentioned the sale of the
3 property. And I'm -- can you just be as clear as you can
4 about the time frame of when you put it up for sale and --
5 as much as you can.
6 A. I don't know exactly when I put it up for sale.
7 But we posted this huge sign -- it must have been 12 feet
8 by 5 feet -- in the front of the building. And we had a
9 broker and everything to try to do that.
10 Q. In fact, Mr. Waldman -- was it your recollection
11 that Mr. Waldman actually wound up working with that
12 broker at some point?
13 A. He used -- I think he used the same broker. I
14 don't know for a fact in this case.
15 Q. Now, after the meeting or your discussion of the
16 deed in lieu and between that time and --
17 MR. RICHTER: I'm sorry. Could you keep it down
18 a little bit. It's distracting a little bit. Sorry.
19 BY MR. RICHTER:
20 Q. The time period between when you had that
21 conversation with Mr. Waldman and when you began
22 negotiations, okay, what was going on during that time?
23 Because if -- you know, I ask because if you had
24 done a deed in lieu, that really didn't require a lot of
25 work, did it?
11
1 A. I'm sorry.
2 Q. Let me rephrase the question. What's happening
3 between the time period when you agreed to do the deed in
4 lieu and when you filed suit?
5 A. Well, sometime in March, as I'm trying -- as I'm
6 actually really struggling and I'm actually talking to
7 Mr. Waldman -- and we talked a lot.
8 Q. This is you and Waldman directly?
9 A. Yes. And I get hit with the notice of
10 foreclosure. And the notice of foreclosure came in March.
11 And I'm struggling financially. I'm also trying
12 to maintain the building, maintain my practice and that
13 kind of thing. And this pressure is mounting.
14 And so I get this notice of foreclosure. I'm a
15 bit concerned about that, obviously. My funding is
16 very -- very, very tight. And I'm not able to pay a lot
17 of other bills.
18 I then look at that. And it doesn't serve David
19 Ball, who, according to the confirmation plan, in my view,
20 was the managing member. And I consult with a number of
21 people at that time.
22 I had a number of -- I had bankruptcy lawyers,
23 Mr. Sherman, Jeff Sherman, and John Cicaderos (phonetic)
24 or something to that effect. And they had navigated the
25 bankruptcy through an entire process. And they made a
12
1 great effort to help me try to restructure.
2 And I talked to them as well. I consulted with
3 Will Johnson. And it was my view, subject to my various
4 consultations, that that notice should have gone to David
5 Ball -- at least David Ball and myself. It did not.
6 And, for me, that was a formidable problem. In
7 my practice, I have stopped at least a half a dozen
8 foreclosures here in this very court on TRO grounds. And
9 I knew what my particular rights might have been.
10 So with that in mind and based on my litigation
11 experience, I think I had it -- developed a cause of
12 action to do so.
13 And so I discussed that with Mr. Johnson,
14 retained him, and filed an appropriate action regarding
15 the termination -- the foreclosure.
16 Q. Okay. You said you had retained Mr. Johnson,
17 Mr. William Johnson, who testified earlier, for that
18 purpose?
20 Q. Now, after you filed -- how soon after you filed
21 the bankruptcy -- or at least -- I'm sorry -- after you
22 filed the TRO and lawsuit did you hear from the plaintiff
23 about negotiations -- picking back up negotiations?
24 A. Well, between the time that the foreclosure
25 notice was filed, I attempted to try to resolve that thing
13
1 amicably with no movement on the other side.
2 MR. WEISS: I'm sorry. You said with someone on
3 the other side?
4 THE WITNESS: No movement. And my last resort
5 was to file a TRO.
6 So that happened in April -- I think around the
7 22nd. And almost immediately after that, there was some
8 communication from Ms. Becker, I believe, who was also --
9 I think her -- a partner in her law firm was actually the
10 trustee in the bankruptcy case.
11 So I was bit surprised that the law firm would
12 be also involved in a case which I was involved
13 personally.
14 Q. Why were you surprised by that?
15 A. Well, I was surprised because there was this
16 deed of trust. And the lawyer was also trustee in the
17 bankruptcy court. And under D.C., law, when there was a
18 dispute of that nature, the trustees represent both the
19 debtor and the creditor.
20 In this particular case, the creditors' lawyers
21 were against me. And that's a violation of the law.
22 Q. And how did -- how do you -- that particular
23 point -- how did you come to arrive -- or how do you know
24 that that was a violation of the law?
25 A. Because I litigated that case in Federal Court
14
1 successfully and in this court successfully. I know what
2 the law is. And so I just put that in my knapsack
3 relative to the litigation. And I was very mindful of
4 that.
5 Q. So after the 22nd, approximately, between the
6 23rd and the 25th, there were negotiations around that
7 time period?
8 A. There were. And Mr. Johnson -- I think his
9 testimony pretty much reflects the negotiations except
10 that during that particular process -- obviously, I was
11 interested, as I was directly affected, and also was
12 keenly interested regarding the legal developments.
13 Q. And so you were in constant communication with
14 your lawyer on these issues?
15 A. Yes. He pretty much kept me posted by way of
16 e-mails and phone calls.
17 Q. And you saw the e-mails that we covered here.
18 You saw those e-mails as they were being sent and as they
19 were sort of going back and forth?
20 A. Pretty much contemporaneously.
21 Q. So -- and you were otherwise privy to the other
22 discussions and the settlement discussions between
23 Mr. Johnson and plaintiffs' counsel?
24 A. Sure. As I mentioned, there was a lot of
25 pressure on me. The personal deficiency was primary for
15
1 me because of my own exposure. And I was very anxious to
2 have that issue resolved.
3 And that was the only issue that I was concerned
4 about at that particular point in time. I pretty much
5 acknowledged the dynamics that Mr. Waldman wanted to sell
6 the building.
7 It was -- he knew -- and in addition to the
8 lawyers talking, at a certain point he and I had
9 discussions about access and vacating the property. So it
10 was a very intense period of time.
11 Q. And in the course of those discussions, you
12 became aware that Mr. Waldman had every intention on
13 purchasing the property in bankruptcy? I mean, in
14 foreclosure?
15 A. I can't say that I knew what Mr. Waldman's
16 intentions were. I knew that there was some rush to do
17 things.
18 I know that -- my thinking was because there
19 were other people looking at the building that he probably
20 had some type of sale opportunity and wanted to do some
21 things to try to flip the building.
22 Q. Just to be clear, during this time period, there
23 were people looking at the building from -- that he had
24 people looking at the building?
25 A. He had people immediately after. But I'm not so
16
1 certain before the foreclosure.
2 Q. Okay, okay. And so you were -- you understood
3 all of the issues and the terms that were proposed and
4 agreed upon as part of this settlement?
5 A. Well, when you say -- on the 23rd I did. Those
6 discussions were shared with me. I was pleased that we
7 had agreed. I was -- that Mr. Waldman was going to waive
8 any claim to a deficiency.
9 And I was willing to do everything that was
10 necessary to achieve that objective. And that's how that
11 agreement came about.
12 Q. So you knew when you looked at the agreement
13 that you were pretty much -- by agreeing to the terms of
14 that, you were effectively rendering the lawsuit that you
15 rendered based on the terms of the agreement moot?
16 A. Yes. That's correct. I had deferred, of
17 course, to Mr. Johnson. But in the exchange of the
18 documents, it was a very strong agreement against any
19 claim that I would possibly raise.
20 We conceded everything. We waived every
21 possible claim of coming back. And that was significant
22 because there was a foreclosure on April the 24th. The
23 closing on the property occurred, actually, at some point
24 later in May -- I think around May 24.
25 And I could have very easily -- absent any
17
1 understanding that there was any kind of agreement or
2 representation from those guys as to what my rights was, I
3 could have very easily filed an action or stopped that
4 foreclosure from going in May based on the claim that I
5 had originally filed. But I did not.
6 Q. If you knew that Mr. Waldman, despite everything
7 that had been agreed upon as of the 25th, was going to
8 nevertheless pursue a deficiency against you, would you
9 have pursued such a lawsuit?
10 A. I would have reserved -- quite frankly, I would
11 have -- naturally, I would have reserved every right that
12 I had to protect my position. That included the vacancy,
13 the access, and stopping the foreclosure.
14 I thought there was a significant basis upon
15 which to stop the foreclosure. I gave up all those rights
16 and acted consistent with the representations that were
17 told to me, both in terms of the settlement agreement that
18 had been developed on the 23rd and 24th -- and then when
19 there was an impasse to that, based upon the oral
20 discussions and the written discussions between Mr. White
21 and Mr. Johnson and particularly Mr. White's
22 representations to us that, Hey, guys, this issue is -- to
23 resolve it, all we have to do at this point is you give us
24 the access, you give us the -- you vacate the building,
25 and you dismiss this thing without [sic] prejudice. We'll
18
1 do that.
2 And I was consulted by Mr. Johnson. And at that
3 point, noting that there was an interest in resolving this
4 thing, I instructed Mr. Johnson, Absolutely we will
5 dismiss this case with prejudice. And we did. We relied
6 on what was being told to us at that time.
7 Q. Now, directing your attention to the 24th, the
8 date of the TRO hearing and the scheduled foreclosure,
9 what was your understanding of the state of the settlement
10 discussions as of that morning?
11 A. You know, the settlement discussions were a
12 moving target, Mr. Richter. It seems that every time we
13 moved someplace, the ball would move from where we were.
14 So I thought this was a deal on the 23rd. And
15 going into the morning, I recall signing something. I
16 don't know if it was sent to these guys. I was doing
17 everything that I could to meet what I had agreed to.
18 That included -- I knew there was a foreclosure.
19 I wanted to cooperate. I wanted them to do what they
20 needed to do. So I instructed, pursuant to my discussions
21 with Mr. Johnson, We're going to dismiss this thing
22 without prejudice.
23 I had to protect my position. We canceled the
24 hearing. And there was reference on that. We referenced
25 at that point there was a settlement, at least in
19
1 principle.
2 In addition to that, I knew that just,
3 sequentially -- we went there that morning -- that that
4 foreclosure was coming. And to try to protect my
5 interest, I knew that under 41A and B what a stipulation
6 would entail.
7 But because we didn't have an agreement, rather
8 than doing a stipulation with prejudice, I -- I -- I -- I
9 wanted to have some agreement, just something from the
10 parties to memorialize that there was a settlement that
11 would protect me and that that would happen.
12 When Mr. Johnson communicated to them at 10
13 o'clock, it was a stipulation of settlement. It wasn't
14 for a stipulation of release. But I wanted something
15 because with that I could have dismissed with prejudice,
16 as they wanted.
17 But I thought there was some gamesmanship going
18 on there because at no time would they sign anything. And
19 so I was put always in a defensive position, in a
20 precarious position in terms of trying to protect my
21 interest and to protect my position.
22 And if I would have dismissed with prejudice, on
23 the other hand, at that point in time, then my claims and
24 my rights would have been affected.
25 And if they didn't honor these agreements, then
20
1 I wouldn't be able to do anything to protect myself.
2 Q. Now, directing your attention to the 25th of
3 April, the day after the foreclosure, did you understand
4 that settlement discussions regarding the deficiency
5 continued on that date?
6 A. I did.
7 Q. And did you ever receive e-mails that were
8 communicated back and forth on that date?
9 A. Actually, Mr. Richter, I was in a heightened
10 state of vigilance because the anxiety at that point in
11 time -- the foreclosure having taken place the day before,
12 and my concern about my situation.
13 And so that's why. On the other hand, I was
14 still pushing Mr. Johnson to try to get some documentation
15 to get this thing resolved in writing.
16 That led to whatever he was doing, which he's
17 testified to in terms of conversations. That also led to
18 a very specific submission. And that was that he sent to
19 those guys --
20 MR. WEISS: Objection, Your Honor. Now the
21 witness is testifying to what somebody else said.
22 THE WITNESS: He's my lawyer.
23 MR. RICHTER:
24 Q. Is he --
25 THE COURT: Okay. Just hold on.
21
1 THE WITNESS: I'm sorry, Your Honor.
2 THE COURT: Mr. Temple, I'm supposed to rule on
3 this.
4 THE WITNESS: I'm sorry, Your Honor.
5 THE COURT: Okay. Now, he said he sent to the
6 lawyer. It doesn't sound like -- your objection is to
7 what somebody said; was that it?
8 MR. WEISS: If he's going to -- my objection is
9 to him testifying to what his lawyer said to anybody else.
10 THE COURT: You're talking about oral
11 conversations?
12 MR. WEISS: Oral conversations. I think
13 Mr. Johnson testified about that. But I don't think this
14 witness can testify to what a third party --
15 THE COURT: I understand your objection.
16 I don't know if you said "send" or "said."
17 THE WITNESS: I said "sent."
18 THE COURT: "Sent."
19 THE WITNESS: I didn't say "said."
20 THE COURT: Okay. Are you referring to an
21 e-mail or something like that?
22 THE WITNESS: I am. I'm actually referring to
23 the attachment to the e-mail --
24 THE COURT: Okay. All right.
25 THE WITNESS: -- and not to anything that he
22
1 said.
2 THE COURT: All right. On that understanding
3 then, you may proceed with your answer. The objection is
4 overruled.
5 THE WITNESS: And it was pursuant to a
6 consultation with me that -- and he's my lawyer. He sent
7 these guys, because of my concerns, again a proposed
8 document that would dismiss the case with prejudice.
9 MR. WEISS: Again, Your Honor, now he's
10 testifying to what, I think, Mr. Johnson testified to,
11 what Mr. Johnson said.
12 THE COURT: I think he said "sent." I
13 appreciate it may have sounded like "said" but -- did you
14 say "sent" or "said"?
15 THE WITNESS: "Sent."
16 THE COURT: S-E-N-T?
17 THE WITNESS: Correct.
18 MR. WEISS: This was the e-mail that was
19 excluded.
20 THE COURT: Right.
21 MR. RICHTER: It was never --
22 MR. WEISS: It was never admitted into evidence.
23 THE COURT: Okay. Oh, so that's what we're
24 getting to now at this point.
25 MR. WEISS: Yes.
23
1 THE COURT: All right. Then that puts a
2 different light on it.
3 Now, let me speak to counsel for just a second.
4 Would you step down, Mr. Temple. I need
5 clarification.
6 (The witness steps down from the stand.)
7 (Bench conference.)
8 THE COURT: I have not gotten into the content
9 of whatever it was that was excluded. But I do know that
10 there seemed to have been separate testimony from
11 Mr. Johnson about a dismissal with prejudice. And it
12 sounds like this is what's coming up, that he sent to --
13 he believes he sent to the other side --
14 MR. RICHTER: That's correct. And it was signed
15 and --
16 THE COURT: Well, hold on.
17 MR. RICHTER: I'm sorry.
18 THE COURT: I do recall that testimony. Is this
19 referring to whatever it was that was excluded?
20 MR. WEISS: Yes, I believe so.
21 MR. RICHTER: That's correct. And the document
22 itself was excluded --
23 THE COURT: Right.
24 MR. RICHTER: -- but his testimony was in the
25 record and wasn't objected to. So why would it be
24
1 appropriate to object to it now?
2 MR. WEISS: I object.
3 MR. RICHTER: And he's merely stating that,
4 similar to Mr. Johnson's testimony, that he actually sent
5 that signed agreement.
6 THE COURT: Okay. He's objecting now. And I'll
7 preclude it now. But whatever's been testified to, it's
8 in the record.
9 MR. RICHTER: Okay.
10 THE COURT: So your objection is being sustained
11 at this time because it's testimony from Mr. Temple.
12 MR. WEISS: Thank you, Your Honor.
13 MR. RICHTER: Thank you, Your Honor.
14 (Bench conference concludes.)
15 (The witness resumes the stand.)
16 THE COURT: All right. Pursuant to the ruling
17 at the bench, the objection to this inquiry by Mr. Richter
18 of Mr. Temple is sustained in accordance with the rulings
19 that I stated at the bench.
20 Next question, Mr. Richter.
21 BY MR. RICHTER:
22 Q. After -- okay. On the 25th, ultimately, you
23 understood that there had -- well, could you describe to
24 me or to the Court what your understanding was at the end
25 of the back and forth on the 25th, these communications
25
1 and e-mails and -- before the dismissal without prejudice
2 was actually filed, what was your understanding of the
3 state of affairs at that time?
4 A. Well, the issue was -- for me was the personal
5 deficiency being resolved. And that was my issue every
6 hour of the day on the 23rd, 24th, and the 25th.
7 The issue for the other side, I thought, had
8 been the dismissal with prejudice. And I had been trying
9 to address that.
10 In midday sometime, I was advised that the issue
11 was now something else. And so the -- the resolution of
12 the issue had changed.
13 The way to resolve the issue had changed. And
14 there was a representation made to us and to me that if we
15 dismissed without prejudice -- if I dismissed without
16 prejudice, that -- and do what I already agreed to do
17 relative to access and relative to vacating the building,
18 that issue would be resolved; and my personal deficiency
19 issue would be resolved. And that was what was on the
20 table.
21 Q. And it was on that basis that you instructed
22 Mr. Johnson to proceed with the dismissal --
23 A. Yes.
24 Q. -- of the case without prejudice?
25 A. Yes. Yes. On that basis. And that thereafter
26
1 I would do exactly what Mr. Waldman wanted relative to
2 access and relative to getting out of that building.
3 Q. And were there further communications after the
4 25th that you personally engaged in with regard to the
5 property with anyone?
6 A. There were, indeed. The lawyers' part was one
7 part of that representation and dealing with that. But
8 the second part of that was the implementation of what was
9 agreed to on the 25th.
10 Mr. Waldman wanted to do inspections, bring
11 people by to see the building, et cetera, et cetera. And
12 despite the adversarial nature of this litigation, he and
13 I communicated many times between the time that -- the
14 25th and the 30th.
15 And that regarded me giving him access. In
16 fact, I don't know if it was a motivating factor. But
17 that very next day, I believe, or close to it, he wanted
18 to have someone inspect the building.
19 There were some real structural issues. I don't
20 know what the nature of the inspection was -- and other
21 things. So people were coming through.
22 I complied with the access request
23 unconditionally. Additionally, I had to move. And that
24 was a notion -- I had a lot of stuff in that building.
25 The building was a fourth floor building on the corner.
27
1 It was a big building.
2 And I had to move stuff. And so vacating the
3 building was something -- I had found another location.
4 And so Mr. Waldman and I had consistent discussions about
5 my relocation. And we met. And we discussed and even
6 agreed that I would be out by a certain time.
7 And where there was an issue, we had further
8 discussions. And so, ultimately, we were able to finally
9 resolve my vacation date. And that was around June 30th.
10 Q. When you say "unconditionally," you mean aside
11 from the condition that the deficiency was going to be
12 lifted that you had agreed to previously?
13 A. Yes. When I say "unconditionally," whenever he
14 wanted access, whatever he needed --
16 down, please.
17 THE WITNESS: Whatever he needed relative to
18 access was granted. And whatever we needed to do to
19 ensure that I vacated that building in a timely fashion
20 was done.
21 BY MR. RICHTER:
22 Q. So it sounds like there were a lot of
23 communications between you and Mr. Waldman after the 25th
24 regarding visits and access; is that correct?
25 A. Yes. There were communications by phone. There
28
1 were communications by e-mail. And there were even
2 personal meetings, I think -- at least one or two times.
3 Q. And at any of those discussions were there any
4 issues raised about any additional performance related to
5 the agreements that had been reached or that -- anything
6 else had -- let me strike that.
7 Was there any discussion about you needing to do
8 anything further for the deficiency to be honored -- the
9 agreement regarding the deficiency to be honored?
10 A. No. There was -- I never heard a mumbling word
11 from anybody. And I was meeting with Mr. Waldman -- never
12 saying, Hey, Donald, you still owe me anything.
13 All he said -- and I was led to believe,
14 actually, that there was a resolution. After that he was
15 courteous. We -- I was working with him to get those
16 things done. Nothing whatsoever about the fact that I
17 owed him anything.
18 Q. Is it -- is it possible in any way that you
19 would have had such a cordial departure from the building
20 after the 25th if you understood that the deficiency issue
21 had not been resolved?
22 A. Prior to that, if I had 50 conversations or a
23 hundred conversations with Mr. Waldman -- or meetings --
24 99.9 percent of them was about how much money I owed him
25 or what money was due.
29
1 So the fact that there was a change in that was
2 not insignificant to me because all the prior -- most of
3 the prior discussions were always about money or the
4 building in terms of the financial implications of my
5 status.
6 Q. And you never brought any other action against
7 Mr. Waldman after that time?
8 A. I had no intention whatsoever of doing that. My
9 idea and view at that time was I get what I ask for; he
10 gets what he asked for. And that was the deal.
11 Q. Mr. Temple, how has this lawsuit affected you?
12 THE COURT: Before we get into that, what issue
13 does that relate to?
14 MR. RICHTER: Well, Your Honor, there is an
15 abuse of process claim here that is a tort claim that has
16 an emotional damages component to it in this regard.
17 There's also -- I think there's also the
18 elements of promissory estoppel, which goes to the
19 unjustness of the result and the consequences of this
20 action.
21 And on those bases, I think it's relevant to
22 hear this testimony.
23 MR. WEISS: Your Honor, I would object.
24 Obviously, everybody who gets sued or sues is upset. I'm
25 going to accept that fact that that would happen with
30
1 anybody. That doesn't go to the merits of the case.
2 MR. RICHTER: If I may, there is a tort claim
3 where emotional distress is a damages issue, that he has a
4 right to -- he's got that claim, and he shouldn't be
5 precluded from putting evidence on the record that might
6 support it.
7 THE COURT: Mr. Richter, I think you're right.
8 So the objection is overruled.
9 THE WITNESS: Well, it affected me in a number
10 of ways. First and foremost, I have a business. I have a
11 profession. And I was managing that and managing all my
12 financial expectations.
13 For him to come back 16 months after the 25th,
14 after I was led to believe from his lawyer -- I was led to
15 believe that if I dismissed with prejudice -- without
16 prejudice -- whether or not there was an agreement or not,
17 there was a document that told me if I dismissed with
18 prejudice and I act on that, that's one thing.
19 But, more importantly, if I give this man
20 access, which I did, if I vacate the building, which I
21 did, and I'm not going to bring a lawsuit, which I did
22 not, then for this man to file this lawsuit with me just
23 zapped the life out of me.
24 I had to retain counsel. I had to deal with yet
25 this whole notion of being exposed to something that I
31
1 thought was unjust.
2 More importantly, at the end of the day, on that
3 note, I was then forced to look at this issue and say,
4 Mr. Waldman asked for a dismissal without prejudice to do
5 the foreclosure. He got it. Mr. Waldman asked for a
6 dismissal with prejudice. We tried to do that twice.
7 Mr. Waldman asked for -- then, finally, on the
8 25th, Mr. Waldman asked for a dismissal without precedent
9 [sic], access to the building, for us to vacate the
10 building. I did it.
11 And at the end of the day, I got zero. I end up
12 with a lawsuit. And so that was a problem for me because
13 I complied with whatever the representations were and
14 whatever agreements -- whether they were written or oral
15 that we were trying to do. So I was devastated.
16 MR. RICHTER: Thank you. I have nothing
17 further.
18 THE COURT: Are you ready to proceed, Mr. Weiss?
19 MR. WEISS: Could I have just five minutes to
20 take a restroom break? Thank you.
21 THE COURT: Yes, sir. We'll take about ten
22 minutes.
23 (Recess.)
24 THE COURT: Okay. We're back on the record.
25 Everyone is present. We're resuming with the testimony of
32
1 Mr. Donald Temple.
2 Mr. Temple, in accordance with the instructions
3 I've given to other witnesses when I've taken a break
4 during their testimony, please be reminded you're still
5 under oath.
6 THE WITNESS: Thank you, Your Honor.
7 THE COURT: Just a moment, Counsel.
8 (Pause.)
9 THE COURT: You may proceed, Mr. Weiss.
10 MR. WEISS: Thank you, Your Honor.
11
12 CROSS-EXAMINATION
13 BY MR. WEISS:
14 Q. Mr. Temple, I want to touch on something that
15 you testified to. I think you testified to it. And
16 perhaps I misunderstood you.
17 Did you say that the lawyers in the Stinson
18 case -- the lawyers from the Stinson firm were the
19 trustees in your bankruptcy case?
20 A. I didn't say the lawyers. I said one of the
21 lawyers was a trustee in one aspect of that bankruptcy
22 case. And I believe that was Mark Albert.
23 Q. He was a trustee in your bankruptcy?
24 A. I said I think and I recall. I said I was
25 surprised.
33
1 In addition to that, I said that the lawyers
2 were the trustee -- the lawyers for the firm are the
3 substitute trustees on the deed of trust.
4 Q. That's true. There's no dispute about that.
5 A. So that's -- so I -- the best of my
6 recollection. But I don't -- I can't say that I recall
7 with certainty, but that's what I thought.
8 MR. WEISS: Your Honor --
9 (Pause.)
10 BY MR. WEISS:
11 Q. Well, if that were the case, did you ever
12 mention that to anybody at Stinson?
13 A. I put it in my knapsack, as I said, as something
14 that I took a note of. I could have sued them, but I
15 didn't.
16 Q. You are familiar, I'm sure, with the settlement
17 agreement that was drafted by Kathy Becker, amended by
18 Mr. Johnson. And I think we agree that the parties were
19 prepared to execute, except apparently the Balls. You're
20 familiar with that agreement?
21 A. I am.
22 Q. And you're aware of the fact that that agreement
23 required that your lawsuit be dismissed with prejudice
24 before the foreclosure auction? You're aware of that, are
25 you not?
34
1 A. Subject to an execution of the agreement.
2 Q. If the agreement was not executed, there's no
3 agreement?
4 A. Well, it depends. As a matter of law, I can't
5 say definitely that that agreement is not. But there
6 is -- in my view, there were things that Mr. Waldman's
7 lawyers and my lawyers agreed on that were peculiar to
8 Mr. Waldman and myself.
9 Q. That were what?
10 A. Peculiar to Mr. Waldman and myself.
11 Q. Well --
12 A. And there was an agreement to agree.
13 Q. Are you telling the Court that there was an
14 agreement to agree or an agreement at any time that you
15 would dismiss -- that didn't require you to dismiss your
16 lawsuit with prejudice before the foreclosure?
17 A. Clearly a dismissal without prejudice impacts my
18 rights. And I wasn't going to abandon my rights without
19 some assurance that there was not -- that there was an
20 equal signature on the part of my counterparts in that
21 situation.
22 So I understood that very well. And that's why
23 in lieu of an agreement Mr. Johnson sent a notice of
24 settlement.
25 I would have been satisfied, sir, with a notice
35
1 of settlement. We indicated to the court at 9:30 that
2 there was a settlement. And at 10 o'clock we sent a
3 document -- there was notice of a settlement.
4 And we stated in that notice that if Ms. Becker
5 signed that notice, short even of the settlement agreement
6 being signed -- we had some assurances -- we would then
7 dismiss the case with prejudice before 11 o'clock.
8 Q. You're familiar with the e-mail trail?
9 A. You're referring to what's been discussed?
10 Q. Exhibit 11.
11 A. I am.
12 Q. Okay. You're familiar with the fact that on
13 April 24, 2012, at 8:29 in the morning -- this was the
14 morning of the foreclosure -- the foreclosure was
15 scheduled for 11:30 -- I think we agree -- that Ms. Becker
16 e-mailed your attorney, Please confirm that the 9:30 a.m.,
17 hearing has been removed and that the lawsuit has been
18 dismissed with prejudice.
19 You're aware of that --
20 A. I'm aware.
21 Q. -- that she was insisting upon that?
22 A. She could have been insisting on it. But it
23 could have been -- she was protecting her client. But she
24 was insisting on it without cooperating because her client
25 hadn't signed the agreement.
36
1 We had indicated -- both parties indicated that
2 we had signed an agreement. And if I recall, I actually
3 reported to Mr. Johnson, I think, that we had signed the
4 agreement without him having a copy of it.
5 THE COURT REPORTER: Without what?
6 THE WITNESS: Without him having a copy of it.
7 BY MR. WEISS:
8 Q. Do you recall my taking your deposition --
9 A. I do.
10 Q. -- on April 1, 2014?
11 A. I do.
12 Q. At page --
13 MR. RICHTER: Is this one of the exhibits?
14 MR. WEISS: No. This is just for impeachment
15 purposes.
16 MR. RICHTER: Can I see that? I don't have that
17 in front of me. What page are we on?
18 MR. WEISS: We're at page 15, line 19.
19 BY MR. WEISS:
20 Q. Did you ever have a -- did you ever have a
21 discussion with Mr. and/or Mrs. Ball regarding signing the
22 agreement or an agreement such as Exhibit 10 or any
23 iteration of it?
24 And your answer: I don't know that I have ever
25 seen this agreement to -- I just don't have any
37
1 recollection of it. And I don't think I signed this
2 agreement. So I don't know, unless I might have reviewed
3 it. Let me just see something.
4 Witness reading the document.
5 I have seen this agreement. I have seen it. I
6 have seen this agreement. I have seen it.
7 Have I had a discussion? I have never talked to
8 Mrs. Ball. I may or may not have had a discussion with
9 David in that regard. But I refer -- I defer to the
10 lawyers, which meant that I deferred to Will
11 substantially.
12 You're sure you signed that agreement?
13 MR. RICHTER: Objection, Your Honor. There was
14 no impeachment. He went back and forth and never really
15 concluded anything. So there was no --
16 THE COURT: The objection is sustained to the
17 form of that question. I -- the objection is sustained to
18 the form of that question.
19 BY MR. WEISS:
20 Q. Have you ever seen any e-mail from anyone
21 representing Waldman prior to the foreclosure that they
22 would allow you to dismiss the case after the foreclosure
23 and still get the benefit of your bargain?
24 A. No. After the fore -- excuse me. Yes, I did.
25 Q. You saw an e-mail sent before the foreclosure --
38
1 A. No. No, I did not.
2 Q. And you are aware of the fact that Katie Becker
3 was explaining that they wanted to be able to announce at
4 the foreclosure that your suit had been dismissed with
5 prejudice so it wouldn't chill bidding at the foreclosure?
6 A. I've heard that stated.
7 Q. And you heard it testified --
8 A. Correct.
9 Q. -- in court about that?
10 So you understood that that was important to
11 Waldman?
12 A. I don't know.
13 Q. You can understand why it would be important to
14 him?
15 A. I understood what was stated. But I also
16 understood that there was a question of my rights and his
17 rights that had to be properly addressed.
18 And if Ms. Becker had that impression, she could
19 have signed the notice that Mr. Johnson sent at 10 o'clock
20 so that we would know that we had -- we were on the same
21 page.
22 Q. But she didn't. In fact, she said to him -- she
23 sent him a notice of dismissal with prejudice for him to
24 sign and file. And he didn't. Do you recall that?
25 You're aware of that?
39
1 A. I am aware of that. Why would anyone sign a
2 notice of stipulation with prejudice if she's not going to
3 sign a document confirming that there is no prejudice to
4 her or to either side?
5 Strike that. I'm sorry, Your Honor.
6 THE COURT: Thank you. I was beginning to
7 wonder --
8 THE WITNESS: I'm sorry.
9 THE COURT: -- if you're on the witness stand --
10 THE WITNESS: Yes.
11 THE COURT: -- and not at counsel table.
12 MR. WEISS: May I answer your hypothetical
13 question?
14 THE COURT: No. Please. Go to the next
15 question, Mr. Weiss.
16 BY MR. WEISS:
17 Q. You took out the loan from Mr. Waldman in 2007;
18 is that correct?
19 A. I think so.
20 Q. Okay. And would you take a look at Exhibit 1,
21 which is the promissory note.
22 A. Yes, sir.
23 Q. You testified that you were a guarantor. In
24 fact -- I don't mean to quibble with you on this. You're
25 a co-maker of the note, are you not?
40
1 A. I thought that -- I took the note -- well, I see
2 that I signed for the note. Okay.
3 Q. Now, the original term of the note was to be one
4 year. And I think you explained that you had some
5 problems, and you had to refinance it?
6 A. Yes.
7 Q. And you also testified that you had many
8 conversations with Mr. Waldman over the years and that the
9 subject of the money you owed always came up?
11 Q. Yes. And why did that subject come up all the
12 time?
13 A. Obviously, we had a creditor-debtor situation.
14 And, obviously, based on the record, we had -- I said that
15 I had financial issues. And the note kept getting higher
16 and higher and higher.
17 And Mr. Waldman always talked to me about money,
18 whether it was paying an extra $700 for this or making
19 sure things are happening.
20 So there was a consistent discussion about
21 money. My point was that we didn't talk about
22 pleasantries. We talked about business, and we talked
23 about money.
24 Q. But you were having constant problems over this
25 extended period of time --
41
2 Q. -- in repaying the note?
4 Q. When did you move to your new location?
5 A. Some point in June.
6 Q. When did you sign the lease for that, if you
7 remember? Approximately. I'm not asking you for an exact
8 date.
9 A. I don't remember that offhand.
10 And, actually, if I recall, I didn't move to the
11 office. I moved to my home. I moved out of Mr. Waldman's
12 building, put everything into my basement into storage. I
13 didn't move to my office until a later period of time.
14 MR. WEISS: May I have the Court's indulgence
15 for one moment?
16 THE COURT: Yes, sir.
17 (Pause.)
18 BY MR. WEISS:
19 Q. Would you please look at Exhibit 11, the e-mail
20 chain.
21 A. Yes, sir.
22 Q. Do you see in the second paragraph, Steve White
23 says to your attorney -- this is on April 25 at 4:43
24 p.m. -- Nevertheless, my clients are still interested in
25 including an agreement to obtain access and possession of
42
1 the property and resolving the deficiency issue.
2 You had seen that before?
3 A. I believe so. I know I've got a copy of that
4 e-mail in my e-mails.
5 Q. And is it your position that you already had a
6 deal that resolved that, even though you had not dismissed
7 the case with prejudice --
8 A. No.
9 Q. -- before the foreclosure?
10 A. I wasn't, at that time, going through the legal
11 machinations in that same way. I thought that we had an
12 agreement. I wasn't doing a law review article on the
13 exchanges.
14 But I do know this, is that whatever the status
15 was in terms of resolving it, that what had happened on
16 Tuesday -- or the 23rd and 24th was one thing. And now
17 what was happening here -- we were moving into a new
18 chapter, so to speak, and a continued negotiation.
19 And when this gentleman wrote that sentence to
20 me, he definitely stated to me, through my counsel, that,
21 Hey, we want to conclude. We want a resolution. And
22 that's what we're representing to you.
23 We want you to do -- there's three things that
24 are at issue now: Access, possession, and resolving the
25 deficiency issue.
43
1 So it was clear to me, based on that sentence,
2 right along with the last sentence in that paragraph, At
3 this stage -- at that particular stage, right now, today,
4 a dismissal without prejudice serves the purpose of the
5 prior sentence, which was resolving any issue with the
6 Balls.
7 And, lastly, he confirmed that in his last
8 sentence; i.e., that the dismissal was not a material
9 issue at all. It was something that was now
10 parenthetical.
11 He says, We are negotiating for access and
12 possession. He definitively stated, Not the dismissal.
13 In my mind, to answer your question, this was a
14 representation that could have been an oral agreement, or
15 it could have been a representation for me. Either way, I
16 relied on this man's representations.
17 Q. You see in the middle of the second paragraph
18 where White said, Therefore, to do a deal, you need to
19 dismiss the claim that Mr. Ball is the managing member or
20 deliver the signatures of Mr. and Mrs. Ball?
21 A. I do.
22 Q. To do a deal, that's what you had to do. And
23 you didn't do either of those?
24 A. Actually, that's not correct. What he says is
25 that's in part -- he qualifies that in the next sentence,
44
1 sir.
2 He says, At this stage, a dismissal without
3 prejudice serves that purpose. And when he says "that
4 purpose" -- he's referring when he says "that purpose," to
5 the resolution of the issues in the prior sentence.
6 That's my read of that particular sentence in
7 its clear English language. In addition to that,
8 consistent with this, we -- and he says that, by the way,
9 the dismissal is not even the issue now.
10 He says, Even though we dismissed -- and he
11 talked about it. And he said that addressed the issue.
12 He said that, What is at issue is not the dismissal. What
13 is at issue is access and possession.
14 So when he did this, Mr. Weiss, that evening,
15 and when we did that dismissal the very next day,
16 consistent with his agreement, Mr. Waldman's at my
17 building, getting -- doing the inspection, getting access.
18 And in next several weeks, consistent with
19 this -- and what we did -- we're doing exactly what we
20 agreed to. We are vacating the property. We are talking
21 to Mr. Waldman, and we are taking care of all the
22 logistics to achieve the objectives that he said that he
23 wanted.
24 Q. But, you see, he goes on to say, At this stage a
25 dismissal without prejudice serves that purpose since a
45
1 later agreement can include a release to give it permanent
2 effect.
3 But you're aware of the fact that he had
4 rejected the premise of your lawsuit, which was that the
5 Balls were the managing member?
6 You're aware of the fact that whatever you
7 thought was the law, that's the position that he was
8 taking?
9 A. At that point I think it was irrelevant because
10 the issue wasn't so much the issue of the Balls at that
11 point in time.
12 He never said that's an issue that we have to
13 resolve. He said, That's an issue. I understand it. And
14 we have, essentially, a disagreement. But he didn't say,
15 You have to dismiss it, and you have to do something with
16 the Balls.
17 What he said, rather, is that to address that
18 issue at this stage, a dismissal without prejudice serves
19 a purpose.
20 In addition to that, he talked about a later
21 agreement. In my mind, cases settle all the time based
22 upon an agreement that is memorialized later on.
23 This, in my view, presented significantly a
24 representation, which, if I relied on it, the quid pro quo
25 was, as he said here in the first sentence, the deficiency
46
1 issue would -- in the second -- first sentence in the
2 second paragraph, the deficiency issue would be resolved.
3 So I did the -- I thought that it was elementary
4 here, based on what he said. And he never corrected it
5 once we filed that dismissal without prejudice.
6 Q. So he's saying, At this stage, a dismissal
7 without prejudice serves that purpose since a later
8 agreement can include the releases.
9 You never got those releases from the Balls.
10 And you never withdrew the allegation that the Balls were
11 the managing member?
12 A. Sir, in my view, it didn't matter what the later
13 agreement said for two reasons: One is: We had, at this
14 point, based on the communications between this gentleman
15 and my lawyer -- we had an agreement to agree.
16 We had an agreement with clear, specific terms
17 and conditions. There was consideration from both of us.
18 I give you the dismissal. I give you the access. I give
19 you the property. And you give me the release.
20 In addition to that, there was a representation
21 here -- this man is telling me, If you do A, B, and C, I
22 will do D.
23 Q. You were told that if you dismissed the case
24 with prejudice before the foreclosure -- and this is
25 brought up to you again and again in the e-mails. You've
47
1 got to dismiss the case with prejudice before the
2 foreclosure -- that you would be complying with the deal,
3 with the agreement.
4 You didn't do that. And that's, I think,
5 conceded. You didn't dismiss the case with prejudice
6 before the foreclosure. And now, after the foreclosure,
7 when it's too late to dismiss the case with prejudice
8 before the foreclosure, you are trying to negotiate a new
9 deal?
10 A. Actually, that's not true at all. Because this
11 letter has nothing to do with what happened before the
12 foreclosure.
13 This letter has to do with the status of things
14 after foreclosure. It is not me. It is this lawyer who's
15 engaging with my lawyer who talks about the parameters of
16 yet a second resolution or effort to resolve this matter.
17 And he lays out specifically what should happen.
18 And he doesn't talk about after foreclosure, before
19 foreclosure. He says, Today, at this stage, if you do A
20 plus B plus C, I will do D. And we did A, B, and C.
21 Q. Where does he say in this e-mail, If you do A,
22 B, and C, we will do D?
23 A. If I may --
24 Q. Yes, go ahead.
25 A. -- I'd like to direct your attention, please, to
48
1 the first sentence that you read. My clients are still
2 interested in concluding an agreement. In my mind, that
3 meant a resolution -- to obtain, number one --
4 Q. I'm sorry. Show me -- tell me where you're
5 reading from.
6 A. I'm sorry. The second paragraph in that first
7 sentence. He says, My clients are still interested in
8 concluding an agreement. "Concluding agreement" means
9 that on that day they want to resolve this thing.
10 And what do they want to do? A, access. B,
11 possession. And, for me, to resolve the deficiency.
12 That's D. I get D; they get A and B.
13 Then they go on in the next sentence, and they
14 talk about this little quagmire. And then they say,
15 Therefore, to do a deal having A and B referenced there,
16 you need dismiss the claim that Mr. Ball's the managing
17 member or deliver the signatures of Mr. and Mrs. Ball.
18 However, at this stage, a dismissal without
19 prejudice serves that purpose. And that, in my mind --
20 they wanted that dismissal without prejudice and these
21 things -- that we had an agreement.
22 What I would also be giving up by doing that is
23 that they wanted to close on that foreclosure, which
24 hadn't taken place. That would take place in May.
25 By now getting an agreement, they protected
49
1 themselves. So I was also giving up the stopping of the
2 actual settlement pursuant to the foreclosure.
3 Q. If you read the entire paragraph, At this stage,
4 a dismissal without prejudice serves that purpose, since a
5 later agreement can include the releases that give the
6 dismissal permanent effect.
7 You concede, do you not, that you have never
8 withdrawn the allegation that the Balls were the managing
9 member; and you never got them to sign on the agreement?
10 Aside from the fact that you didn't dismiss the
11 case with prejudice before the foreclosure, you never
12 withdrew that allegation?
13 A. It didn't say --
14 MR. RICHTER: Objection to form.
15 MR. WEISS:
16 Q. It does say. It says here --
17 THE COURT: Just a moment. Just a moment.
18 Let's make it one question at a time, Mr. Weiss.
19 And I'm trying to give you two as much free
20 reign as possible --
21 MR. WEISS: I appreciate that, Your Honor. And
22 perhaps what -- this is really closing argument about what
23 the agreement said. But I'm simply trying to establish
24 that the parties --
25 THE COURT: You don't -- you don't need to tell
50
1 me what you're trying to establish. Just one question at
2 a time.
3 MR. WEISS: Okay.
4 BY MR. WEISS:
5 Q. You can see that the tenor of this e-mail from
6 the first paragraph is that White believes, at least, that
7 Ball is not the managing member and that your lawsuit was
8 not valid.
9 The offer that was made to you prior to the
10 foreclosure was based upon getting your case dismissed
11 with prejudice before the foreclosure and getting the
12 Balls to sign off so there'd be no cloud over the
13 foreclosure.
14 Now, the foreclosure's taken place without them
15 getting the benefit -- without Waldman getting the benefit
16 of the bargain. The bargain that he was willing to make
17 is: You get rid of this case beforehand -- before I
18 foreclose so there's not a cloud over it, and I'm willing
19 to release you. Now the horse is out of the barn.
20 MR. RICHTER: Objection.
21 THE COURT: Sustained. You can try again. One
22 question at a time, Mr. Weiss.
23 MR. WEISS: Okay. I'm sorry, Your Honor.
24 BY MR. WEISS:
25 Q. The deal that was being offered, if I can state
51
1 it succinctly, is you dismiss the case with prejudice
2 before the foreclosure so that there is no cloud over the
3 proceedings, the foreclosure proceedings, and I'll release
4 you from the deficiency.
5 And I think we -- everyone sort of agrees that
6 everyone was prepared to agree to that.
7 A. I don't agree that that's the deal that was
8 being offered in this April 25th letter.
9 Q. I'm not talk -- I'm talking about before.
10 A. Okay.
11 Q. I'm talking about before. That deal never went
12 through, for whatever reason. Ball wouldn't sign. You
13 didn't dismiss the case with prejudice before the
14 foreclosure. That was what was being offered to you.
15 A. On April 23rd.
16 Q. On April 23rd, yes.
17 A. On April 24th but not April 25th.
18 Q. April 25th, the foreclosure has taken place.
19 That's precisely my point. It is too late to do the deal
20 that was being negotiated because the foreclosure had
21 taken place already, and you could no longer dismiss your
22 complaint with prejudice before the foreclosure.
23 MR. RICHTER: Objection.
24 THE COURT: Your objection is sustained.
25 MR. WEISS: I don't think I have any other
52
1 questions. But, Your Honor, may we approach the bench?
2 THE COURT: Yes, sir. Step down, please.
4 (Bench conference.)
5 MR. WEISS: Frankly, I was knocked for a loop
6 when Mr. Temple testified that Mark Albert was the
7 bankruptcy trustee in his bankruptcy.
8 I do not have the entire bankruptcy file here.
9 I know it can be gotten on line. And I'm certain that --
10 that Albert was not the trustee in that bankruptcy. And
11 it just -- seems to me it's inconceivable. And I don't
12 remember who the trustee was.
13 MR. RICHTER: I would -- I would -- my position
14 on that would be that I don't know the relevance of that
15 to the issues that we are dealing with here today. It was
16 just a statement that was made.
17 But, also, I don't believe what Mr. Temple
18 testified to was that he was the -- I think when you went
19 back, he kind of went back and forth. But what I think he
20 was really saying was that -- and you have these
21 documents -- is that Mr. Albert was a trustee on the deed
22 of trust.
23 MR. WEISS: Oh, absolutely.
24 MR. RICHTER: And that -- and here's the point.
25 He had a claim because there's case law that -- and here
53
1 is an order --
2 THE COURT: Let me interrupt. So you don't
3 intend to rely on any kind of allegation that he was a
4 trustee in the bankruptcy?
5 MR. RICHTER: Only -- the point that I think
6 Mr. Temple was --
7 THE COURT: No. That's not what I asked you.
8 MR. RICHTER: Well, I only intend to rely on it
9 to the extent that it makes the point that Temple had a
10 further -- it makes the point of further reliance because
11 he had and recognized that there was a claim -- and I
12 think you have the documents to clarify this in your
13 possession now -- that he -- Mr. Albert was the trustee on
14 the deed of trust.
15 THE COURT: That wasn't my question.
16 MR. RICHTER: I'm sorry.
17 THE COURT: You do not intend to rely in any way
18 on any allegation that this attorney was a trustee in the
19 bankruptcy?
20 MR. RICHTER: No. No.
21 THE COURT: I think that's all Mr. Weiss was
22 concerned about.
23 MR. WEISS: That's all I'm concerned about.
24 MR. RICHTER: Okay. Sorry.
25 THE COURT: And so if there was any desire to
54
1 rely on it, I would have found a way, Mr. Weiss, to at
2 least let you address it.
3 But since there's no reliance on that issue --
4 and I think we all understand here that there is a
5 reliance by Mr. Temple and Mr. Richter on the fact that he
6 was a trustee on the deed of trust.
7 MR. WEISS: Absolutely.
8 THE COURT: And Mr. Weiss understands that.
9 MR. WEISS: Yeah. No dispute about that.
10 (Bench conference concludes.)
11 (The witness resumes the stand.)
12 THE COURT: Okay. I think that bench conference
13 resolved that issue to everyone's satisfaction.
14 MR. WEISS: Yes. Thank you. I think that's all
15 I have of this witness.
16 THE COURT: Mr. Richter.
17 MR. RICHTER: Just a few points.
18
19 REDIRECT EXAMINATION
20 BY MR. RICHTER:
21 Q. I just want to clarify one thing. You mentioned
22 that there was some discussion back and forth about
23 talking about money. And then you -- you, Mr. Temple, had
24 mentioned that at some point after the 25th, you noted
25 that there was no discussion of money; is that a correct
55
1 representation?
2 A. There's no discussion at all about any money.
3 Q. And was your point then that that change in the
4 tenor of discussion was another fact on which you
5 relied -- on which you -- based upon what you understood
6 further that this deficiency issue had been resolved on
7 the 25th?
8 MR. WEISS: Objection. Leading.
9 THE COURT: No. No, no. The objection is going
10 to be sustained for several reasons. One, it is leading.
11 But, number two, this was an issue that I thought was
12 brought out on your direct of the witness.
13 MR. RICHTER: Okay. That's fine. I'll move on
14 to the next question.
15 THE COURT: And I heard it the first time.
16 MR. RICHTER: Okay. Thank you, Your Honor.
17 BY MR. RICHTER:
18 Q. You guys went back and forth a lot about only
19 the e-mail on the 25th. But I want to be clear for the
20 Court. I want you to make it clear to the Court whether
21 you were relying solely on the e-mail alone that we're
22 talking about to conclude that there was a deal.
23 THE WITNESS: Your Honor, excuse me.
24 BY MR. RICHTER:
25 Q. Is that -- do you understand the question? Were
56
1 you relying solely on that e-mail alone to conclude
2 that --
3 A. No.
4 Q. Okay.
5 A. I mean, there was -- on the 25th, there were a
6 number of communications, keeping in mind there were phone
7 conversations, e-mails.
8 But in addition to that, the notion of a deal,
9 which is the word that Mr. White used -- and a
10 resolution -- we operated on that premise because we did
11 what was asked.
12 And it's almost like if you have a deal, it
13 triggers certain things. In this particular situation, a
14 resolution triggered access.
15 The very next day, it's now Mr. Waldman and I
16 talking. And he's getting access. Within the next few
17 weeks, we're just talking. And we're negotiating my
18 getting out of the building.
19 As I mentioned, that was a big thing because, as
20 I recall -- my office work from home. We were getting
21 out. We did not have -- the place where we were moving to
22 wasn't ready.
23 So it was a combination of reliance, and it was
24 operationally -- it was physical, et cetera. And we were
25 working -- Mr. Waldman was working with me to try to
57
1 achieve the objectives that we essentially agreed upon on
2 the 25th.
3 MR. RICHTER: I have nothing further.
4 THE WITNESS: Judge, if I may, I wanted to
5 clarify that I mentioned the bankruptcy issue. And I may
6 or may not be right.
7 I know that that gentleman was involved. But he
8 may have been representing Mr. Waldman and not have been
9 the trustee -- the other lawyer, Mark Albert. And so I
10 wanted to clarify. But my recollection is faint.
11 THE COURT: Your recollection is what?
12 THE WITNESS: Faint as to what his particular
13 role was. That was a long time ago.
14 THE COURT: Okay. Well, we have a
15 representation from Mr. Richter at the bench conference.
16 THE WITNESS: Very well.
17 THE COURT: So that will still apply.
19 THE COURT: Just a couple questions, Mr. Temple.
20 After the foreclosure proceeding had taken place and after
21 the notice of dismissal without prejudice had been filed,
22 what kinds of conversations did you have with Mr. Waldman?
23 THE WITNESS: Those conversations with
24 Mr. Waldman did not take place during the negotiations.
25 The lawyers talked. Mr. Waldman and I did not talk.
58
1 THE COURT: I'm talking about after.
2 THE WITNESS: After the 25th, immediately after,
3 we had numbers of conversations. The first conversation
4 was access. And that conversation existed because -- and
5 I don't have exact recollections -- because Mr. Waldman
6 wanted access for purposes of improvements to the
7 building, assessing the condition of the building,
8 bringing people there to show the building.
9 There were times when we would be working in the
10 office, and he would come through and show people the
11 office while we were working. So access, there were those
12 conversations.
13 Additionally, there was a question of when we
14 would be out of the building, what it would take. As I
15 mentioned, there were four floors. There may have been
16 some issues about the securitization of the building and
17 the like, structural issues.
18 So we had a number of conversations about us
19 vacating -- at least going into June because going into
20 June we had agreed -- and this is an agreement. We had
21 agreed, literally, that we would be out by June the 30th.
22 And there were communications from Mr. Waldman
23 to me, specifically, verifying that agreement, confirming
24 that agreement; and then one instance not only confirming
25 the agreement, telling us that if we were not out by the
59
1 2nd, we wouldn't have any operation there. So that was
2 the nature of the agreement -- nature of the discussions.
3 THE COURT: You wouldn't have any operations.
4 THE WITNESS: He was going to turn off the
5 electricity, yeah.
6 THE COURT: Did you choose, during that
7 interval, not to the raise any question with respect to
8 the deficiency?
9 THE WITNESS: Well, first of all, I had counsel,
10 number one.
11 And, number two, based on a representation and
12 our dismissal and then the subsequent conduct of
13 Mr. Waldman, it was not an issue once we filed with --
14 without prejudice.
15 And it was my view, based on what we did, that I
16 would defer to my counsel because that wasn't a legal
17 issue that -- I was not literately engaged in the, per
18 say, negotiations -- legal negotiations. I was engaged
19 with Mr. Waldman relative to what was asked on the 25th
20 and making sure that it happened.
21 THE COURT: Okay. But I'm talking about after
22 the 25th.
23 THE WITNESS: My understanding was that the
24 deficiency issue was resolved. I had no communication
25 with Mr. Waldman in that regard.
60
1 THE COURT: A similar question that I think I've
2 asked him and a couple other people: Did you make a
3 strategic decision not to ask about it?
4 THE WITNESS: Well, I had been through the mill,
5 quite frankly. And --
6 THE COURT: Pardon?
7 THE WITNESS: I had been through the mill. And
8 having had the resolution, having had the letter that this
9 gentleman had written and us moving, et cetera, and
10 doing -- I figured that it was best to get out of that
11 guy's way and to try to resolve the issues in a way that
12 were mutually beneficial.
13 And that's what we had achieved. And, in fact,
14 I had not had any communication from anybody from
15 Mr. Waldman in June, July, all the way going to next year,
16 January, February, March, April. So, in my view, the
17 issue was definitely resolved.
18 THE COURT: Give me just a moment, please.
19 (Pause.)
20 THE COURT: At any point, did Mr. -- we've
21 gotten one description that Mr. Ball was uncooperative.
22 At any point did he become engaged in these discussions
23 that you're aware of?
24 THE WITNESS: I'm not aware of that.
25 THE COURT: Did you ever do any follow-up with
61
1 anyone asking: Where is the signed agreement?
2 THE WITNESS: At what point?
3 THE COURT: Sorry. After the 25th.
4 THE WITNESS: I'm not certain, but I think I may
5 have had such a discussion.
6 THE COURT: Now, I'm not sure I want to go into
7 the details. But with whom?
8 THE WITNESS: With my counsel.
9 THE COURT: Okay. And I take it you did not
10 have any such discussion with Mr. Waldman?
11 THE WITNESS: I did not. I didn't have any
12 discussion regarding the parameters of the litigation. He
13 was very upset, and I was very upset about being put in
14 that situation as much as he was.
15 THE COURT: What was the relationship like after
16 the 25th? Were the two of you still upset with each
17 other, as far as you could tell?
18 THE WITNESS: Mr. Waldman is a very astute
19 businessman. And I don't want to make any personal
20 statements there. But I know that for him it was all
21 about what he wanted. He wanted the building --
22 MR. WALDMAN: I'm sorry. I can't hear.
23 THE COURT: Keep your voice up.
24 THE WITNESS: He wanted the building. He wanted
25 access. He wanted me out of there. He wanted to sell it.
62
1 Those were -- so all I know is that relative to those
2 issues and the business of the building, we met; we
3 communicated; and we established things that we were going
4 to do or that he was going to do. And I did them to
5 facilitate whatever he needed to do relative to getting
6 the building and moving forward.
7 THE COURT: Okay. I do not have any other
8 questions, Mr. Temple. Thank you.
10 THE COURT: You can step down.
12 (Conclusion of excerpt.)
13
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63
1
2 CERTIFICATE OF REPORTER
3 I, Deborah Maren, an Official Court
4 Reporter for the Superior Court of the District of
5 Columbia, do hereby certify that I reported, by machine
6 shorthand, in my official capacity, the proceedings had
7 upon the hearing in the case of GERALD WALDMAN, ET AL,
8 versus DONALD TEMPLE, Civil Action No. 2013 CAB 5658, in
9 said court on the 29th day of September, 2015.
10 I further certify that the foregoing 63
11 pages constitute the official transcript of said
12 proceedings, as taken from my machine shorthand notes,
13 together with the audiosync file of said proceedings to
14 the best of my ability. In witness whereof, I have hereto
15 subscribed my name, this 6th day of October, 2015.
16
17
18 __________________________
19 Deborah Maren, RPR

Official Court Reporter
20
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64
Exhibit 8

Semler Aff W Exs in Anti-SLAPP Motion Gerald Waldman Vs Capitol Intelligence Group Libel and Slander Civil Action Case No. 2018-CA-005052

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Semler Aff W Exs in Anti-SLAPP Motion Gerald Waldman Vs Capitol Intelligence Group Libel and Slander Civil Action Case No. 2018-CA-005052

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IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

v. Case No. 2018-CA-005052 B

EXHIBIT INDEX IN SUPPORT OF DEFENDANT’S SPECIAL MOTION TO DISMISS

Exhibit 1 Contract of Sale between Peter Semler and Rob Ramson

Exhibit 4 Letter Penned by Peter’s attorney Benny Kass to the US Trustee

Exhibit 6 Affidavit of Monica “Niki” Davis

Exhibit 7 Transcript of In-court Testimony Given by Donald Temple

11 The above-entitled action came on for a non-jury

13 THIS TRANSCRIPT EXCERPT REPRESENTS THE

18 On behalf of the Plaintiff:

19 ANTON WEISS, Esquire

21 On behalf of the Defendant:

22 REGINALD RICHTER, Esquire

25 Deborah Maren (202) 879-9952

3 On behalf of the Defendant: Page

5 Direct examination by Mr. Richter................3

20 Certificate of Court Reporter........................64

4 Having been called as a witness on behalf of the defendant

5 and having been first duly sworn/affirmed by the courtroom

6 clerk, was examined and testified as follows:

10 Q. Good afternoon, Mr. Temple.

12 Q. Will you please state your full name for the

13 record and spell it, please.

14 A. Donald Melvin Temple. Donald, D-O-N -- common

15 spelling; Melvin, M-E-L-V-I-N; and Temple, T-M-P-L-E

17 Q. And your current address?

18 A. Is 228 M Street, SW, Washington, D.C.

19 Q. What is your profession, Mr. Temple?

21 Q. And what is your educational background?

22 A. I attended -- attended high schools in

23 Philadelphia. I attended Howard, where I graduated with a

24 bachelor's. I attended Santa Clara School of Law, where I

25 graduated with a J.D.; and Georgetown Law School, where I

3 Q. And how long have you --

4 THE COURT REPORTER: Can you keep your voice up,

6 MR. RICHTER: I'm sorry. Thanks.

8 Q. How long have you been practicing law?

9 A. I've been admitted to practice law since 1978 so

11 Q. And what is the nature of your practice?

12 A. It varies. Predominantly civil rights

13 litigation, Section 1981, Section 1983, Title VII,

14 representing workers in the District of Columbia

15 government and occasionally private businesses.

16 Q. Did there come a time when you purchased a

17 building at 1229 15th Street?

19 Q. And do you recall the terms -- the basic terms

21 A. Yes. Generally I purchased it from David Ball

22 for about -- I don't recall the exact amount.

23 Q. And was that purchase through an LLC?

24 A. It was through 1229, LLC. 1229 15th Street,

2 personally guaranteed the loan?

4 Q. Did you -- you borrowed money for the purchase?

5 A. The LLC borrowed money. And I guaranteed it,

7 Q. And you borrowed that money from Mr. Waldman?

9 Q. And do you recall how much you borrowed from

12 Q. Now, direct -- well, while we're at that, are

14 course of the loan before the foreclosure?

15 A. I think it was somewhere around 700. I'm

16 uncertain of that. But I think it was somewhere around

17 700,000 or something like that.

18 Q. And, now, directing your attention to the 2010,

20 file bankruptcy during that time period?

21 A. I think it may have been earlier. I'm not