The Doorposts of Your House and on Your Gates

by Jacob Bacharach

  Q: An interchange project?

  A: Pretty common for us. Through Phil—Mr. Harrow—we’d bid on interchange construction, and we’d also work to develop commercial property, usually shopping, strip malls, plazas, that sort of thing, beside. So we discovered, well into this project, I mean, with millions already invested, the site prepared, everything, that Abbie had started speaking to some of our local business and political contacts about changing the route of the highway that was supposed to connect up to the interchange.

  Q: Behind your back?

  A: Yes.

  Q: But why?

  MR. BEN DAVID: Mr. Arbitrator—

  MR. MAMRY: Yes, yes. You object. Overruled. Does that little bit of courthouse dialogue satiate your hunger to turn this into Oral Arguments? You’ll have every opportunity to play Clarence Darrow on cross. Go on, Mr. Jordan.

  MR. JORDAN: Why would he go behind your back?

  A: He told me that the highway route was not as he’d seen it.

  Q: As he’d seen it?

  A: Yes. In a . . . vision. A dream.

  Q: Mr. Mayer was making business decisions based on dreams?

  A: Attempting to.

  Q: He didn’t succeed?

  A: No. It was already a done deal. That project went forward, and he later apologized.

  Q: For what did he apologize?

  A: He said, in effect, that he’d been mistaken.

  Q: You took that to mean that he’d been mistaken in his specific behavior?

  A: Yes.

  Q: But he meant something else.

  A: I believe so, yes.

  Q: What do you believe he meant?

  A: I believe he meant that his . . . dream, or his vision, or whatever, was not actually about the road, but about a different piece of property.

  MR. BEN DAVID: Honestly, Mr. Arbitrator, how is this relevant? Is Ms. Mayer Joseph? Is she going to tell us when to store the wheat?

  MR. MAMRY: I haven’t the foggiest, although you, Ms. Mayer, look nothing like a Joseph to me. But I do feel zestfully rabbinic at the moment. I promise, Mr. Ben David, that I will take the unusual nature of this testimony into account.

  MR. JORDAN: But at the time, you accepted his apology and went on with business as usual.

  A: Yes. Correct.

  Q: Why was that necessary?

  A: As you said in your opening statement, we’d bid on a significant share of the highway construction. And there were some conflict of interest provisions that, although they didn’t explicitly forbid us from doing adjoining property development, convinced us that our best and cleanest bet for assembling the necessary parcels was to use a third-party buyer. Abbie was ideal. Siblings, it turns out, are treated at a much lower level of scrutiny than husbands and wives or parents and children. Perhaps the law assumes we all hate each other.

  MR. MAMRY: The law assumes little other than its own relevance, Ms. Mayer.

  MS. MAYER: I’m not sure I understand that comment.

  MR. MAMRY: Me either. Go on.

  Q: Despite your concerns? That is to say, you went through with this plan despite them?

  A: Yes. And, to be honest, Abbie had developed a rapport with a number of local—that is to say, Fayette County—persons of influence that proved beneficial in acquiring much of the property that we desired.

  Q: Now, I want you to be very clear about this. Did Abbie understand why you were buying this property?

  A: Yes, it was clear from the beginning. We discussed it on multiple occasions. We’d seen the growth in bedroom communities north of Pittsburgh with the construction of the Parkway North, and we envisioned a similar building boom around the Expressway. It was our intention to build on-spec housing subdivisions as well as to develop other areas for the sale of individual lots to individual buyers looking to build their own houses. To hire contractors, I mean, on their own.

  Q: Yet you never memorialized this understanding in writing. Why?

  A: I’m . . . a little uncomfortable in saying.

  MR. MAMRY: Oh, I think I can guess, and I can assure you, Ms. Mayer, that I am not here to judge whether or not you skirted the fine line of legality in setting up straw buyers and suchlike. I’m not a judge or officer of the court, and I’m not going to rat on you. I presume that, since you’re a lawyer, you complied with the strict letter, if not the broadest possible moral intent, of whatever laws we’re talking about here. I have a saying, you know: we are all guilty, just not necessarily of what we’re accused of. Please, speak freely.

  MS. MAYER: All right. We worried that a written agreement would become public and draw undue attention to our development plans. To use your phrase, sir, we were less concerned with strict letters than with broad moral intents. Or interpretations.

  MR. MAMRY: A perfectly reasonable concern.

  MR. JORDAN: How much property did you ultimately acquire?

  A: All in, in excess of thirty million dollars’ worth of land.

  MR. MAMRY: Yikes!

  MR. JORDAN: Indeed. So, Veronica, at what point did you discover that your brother had, unbeknownst to you, sold this land?

  A: It would have been almost exactly a year ago. Phil and I were going to set up a meeting for the three of us to go down to Fayette County and meet with two of the county commissioners to talk about some various zoning and land use issues. But when I personally put in a call to Don Cavignac, that’s one of the commissioners, he sounded confused. He said that he thought we’d unloaded that property to the gas guy. I asked what he meant, and he explained that he thought we’d sold the properties, or most of them anyway, to one Arthur Imlak.

  MR. MAMRY: That would be you, Mr. Imlak?

  MR. BEN DAVID: That’s correct, Mr. Arbitrator.

  MR. MAMRY: Mr. Ben David, I can assure you that Mr. Imlak can answer the question of whether he is or is not himself, well, himself.

  MR. BEN DAVID: Apologies, Mr. Arbitrator. Go ahead, Arthur.

  MR. IMLAK: C’est moi.

  MR. HARROW: Say what?

  MR. MAMRY: Yes, thank you. Let the record show that Mr. Imlak grinned pompously and answered in French, and that his French was in the affirmative. Mr. Imlak is the Mr. Imlak in question.

  MR. JORDAN: To reiterate, neither you nor Mr. Harrow had any prior knowledge that Abbie Mayer intended to sell these properties.

  A: None.

  Q: Let’s get to the crux of the matter.

  MR. MAMRY: Yes, let’s. I’d like to think that we’ll eventually get to the drain we’re circling.

  MR. JORDAN: Of course, Mr. Arbitrator. Veronica, how much did your brother sell these properties for?

  A: Roughly forty million dollars.

  Q: Well, that’s quite a nice profit, isn’t it? And Mr. Mayer was, after all, offering to split those profits with you, was he not?

  A: No, and that’s exactly the problem. He was offering to split the total proceeds. So we’re talking about a ten million dollar loss, in effect, borne entirely by Phil—Mr. Harrow—and myself.

  Q: That’s a big loss.

  A: I’d probably have no choice but to seek protection in bankruptcy. And Mr. Harrow might be able to absorb the loss, but it would be very difficult.

  Q: All right. Just one more item. And this goes to the real financial losses, the lost opportunity, here. What sort of opportunity losses are we talking about?

  MR. BEN DAVID: I’m going to object, again. Can Ms. Mayer really be permitted to testify to some exaggerated potential economic loss based on some rosy scenario of future potential profit? At very least, it inherently prejudices any judgment against my client by suggesting that he is responsible for some detrimental effect far out of proportion to any actual and current monetary loss, if such losses even exist, I’d add.

  MR. MAMRY: Your ardency is noted, your objection overruled. Please answer, Ms. Mayer.

  A: We would be talking about potentially thousands of quarter-acre residential plots, to be either sold to individual home builders or developed, per our orig
inal plan, on spec. Of course, there would be many millions of dollars of expense in connecting utilities, building street plans, etc., but all told, we were looking at potential profits well in excess of one hundred million dollars.

  MR. MAMRY: Double yikes.

  MR. JORDAN: Thank you, Veronica. That’s all I have, Mr. Arbitrator.

  MR. MAMRY: All right. I can see Mr. Ben David is champing at the bit to cross.

  CROSS-EXAMINATION OF VERONICA MAYER

  MR. BEN DAVID: Ms. Mayer, you testified that you utilized my client and his business as agents for these purchases in order to skirt legal restrictions on purchasing them yourself.

  MS. MAYER: No. Contractual restrictions.

  Q: I’m sorry, Ms. Mayer, I’m not sure I see the distinction.

  A: Well, that may be the fault of your legal education. It’s not a subtle distinction.

  Q: Uh-huh. Contractual. Okay. And is it also your testimony that my client provided no funds at all toward the purchase of these properties?

  A: No funds directly.

  Q: I see. But indirectly?

  A: Yes, Abbie paid some legal and real estate–related costs directly. But all told, we’re talking maybe thirty or forty thousand dollars.

  Q: And the rest of the money came from?

  A: From Phil and myself.

  Q: It was your money.

  A: We used a number of financial vehicles. Some of it was our money. Much of it was borrowed.

  MR. JORDAN: Mr. Arbitrator, all of that is contained within the exhibits already submitted.

  MR. MAMRY: Yes, I’m sure those will be scintillating. Please, Mr. Ben David, continue.

  MR. BEN DAVID: Ms. Mayer, did you give this money to Abbie Mayer?

  A: I would say it was more like a loan.

  Q: To be paid back?

  A: Yes, in effect.

  Q: Let me ask you this. Assuming your plan had gone through, as proposed, and you made these great piles of money, how was my client to be paid?

  A: Paid?

  Q: Yes. You say that he was acting as an agent. So I presume you were going to pay him for his services.

  A: He was . . . yes. He was going to be paid.

  Q: You hesitated, Ms. Mayer.

  MR. JORDAN: Is that a question?

  MR. BEN DAVID: Here’s the question. How was that payment to be calculated?

  A: I’m not . . . we hadn’t fully worked that out.

  Q: For a hundred-million dollar project? I find that hard to believe.

  MR. MAMRY: Yes, Mr. Ben David. Your face betrays the towering heights of your incredulity. A veritable Babel of incredulity. I see where this is going. Ms. Mayer, I’m going to, as Mr. Ben David memorably put it, get right to the crux of it. Were you going to pay your brother over there a fee, or was he going to get a cut of profits?

  A: A cut. A percentage.

  MR. MAMRY: More than a few percent? More than ten?

  A: Yes.

  MR. MAMRY: I can tell by Mr. Jordan’s frown and Mr. Ben David’s triumphant grin that I have elicited the testimony that we were just about to spend many fruitless minutes nibbling at. Is there anything else, Mr. Ben David?

  MR. BEN DAVID: Yes, Mr. Arbitrator, if you’d permit me.

  MR. MAMRY: Oh, yes, indeed. Sally forth.

  MR. BEN DAVID: And don’t call me Sally.

  MR. MAMRY: I’m sorry, what?

  MR. BEN DAVID: Never mind, that was a—

  MR. MAMRY: Yes I—

  MR. BEN DAVID: A joke.

  MR. MAMRY: Yes. I’ve seen the movie. Okay. Why don’t you leave the obscurity to me?

  MR. BEN DAVID: Yes.

  MR. MAMRY: Go on.

  Q: Ms. Mayer, you made a statement earlier. Do you recall what it was?

  A: That’s a broad net.

  Q: To the effect of: it never hurts to have an architect on the payroll.

  A: Yes. Okay. I did say that.

  Q: Well?

  A: Well?

  Q: Was Mr. Mayer, my client, on the payroll?

  A: Which payroll?

  Q: Any payroll.

  A: Any payroll? I couldn’t say.

  Q: Any payroll of yours, Ms. Mayer.

  A: I don’t recall. No.

  Q: You don’t recall? Or no?

  A: No. I don’t believe that Abby was on a payroll.

  Q: Are you being lawyerly, here, Ms. Mayer?

  A: Lawyerly? Perish the thought.

  Q: Ms. Mayer, was Mr. Mayer receiving, from MH Partners, a regular payment or payments?

  A: Regular? I wouldn’t use that term.

  MR. BEN DAVID: Mr. Arbitrator, I’m going to have to ask you to compel this witness to answer directly.

  MR. MAMRY: Or what? Hold her in contempt? Throw her in the clink? You’ve chosen the wrong field, Mr. Ben David. I suggest you try criminal defense. Or get yourself elected DA. I think we can all, as my grandson would say, take a chill pill. Or wouldn’t say. I admit, the lingo escapes me anymore. Ms. Mayer, for my benefit, did Mr. Mayer receive, let us say, so as not to prejudice the reply, periodic payments from you, Mr. Harrow, or your joint business entity?

  MS. MAYER: I would say payments. I would not say periodic.

  MR. MAMRY: Okay, Ms. Mayer. You’re a slippery one. I think we’ve reached the limits of this line of questioning. Hak mir nisht ken tshaynik. Have you got anything else?

  MR. BEN DAVID: No, Mr. Arbitrator.

  MR. MAMRY: Thank you. Any redirect, Mr. Jordan?

  MR. JORDAN: No.

  MR. MAMRY: Thank you. Ms. Mayer, you are excused, although you’ll remain under oath should Mr. Jordan decide to recall you later on. Mr. Jordan, do you have any questions for Mr. Harrow?

  DIRECT EXAMINATION OF PHILLIP HARROW

  MR. JORDAN: Just a few, Mr. Arbitrator.

  MR. MAMRY: Do go on.

  MR. JORDAN: Thank you. Mr. Harrow, would you state your full name for the record?

  MR. HARROW: Phillip A. Harrow, the Construction King of Morgantown, dubba-you vee.

  MR. MAMRY: Thank you, Mr. Harrow. We can do without the epithet.

  MR. HARROW: No, I wasn’t cussing. I just meant West Virginia.

  MR. MAMRY: No, that. Forget it. Go on, Mr. Jordan.

  MR. JORDAN: What is your primary business?

  MR. HARROW: Construction. I am the owner of Harcon, Inc., which is a general contractor.

  Q: Excellent. And your company is currently employed, among other places, in the construction of Pennsylvania Route 43, AKA the Mon-Fayette Expressway.

  A: We sure are.

  Q: And that’s a profitable enterprise, is it not? So why get involved in all this real estate speculation?

  A: Money. Look, you hear a lot of complaining about how much money goes into highways, and the public thinks that guys like me are soaking the public with cost overruns and what have you, but roads are complicated. Highways are very complicated. And very, very expensive. Unions, you know?

  Q: In other words, risky. Financially speaking.

  A: Yeah. For a private contractor like me. Whereas, look, houses are cheap and easy. And laying some surface roads for a subdivision is a lot easier than building an elevated, limited-access highway. And ever since I met Veronica, I’ve been doing real good for myself on these sorts of projects.

  Q: Ms. Mayer said that the loss you could take on this sale—these sales—would be harmful to your business. Is that correct?

  A: Yes. We could probably survive, but it would be close, and I’d have to take on even more debt to cover the immediate loss, plus paying back all the other creditors. No thanks.

  Q: And to be clear, you, like Ms. Mayer, had no prior knowledge of Mr. Mayer’s intended course of action.

  A: Nope.

  Q: Let me ask you further: if you had known, what would you have done?

  A: Killed the sonofabitch.

  Q: Phil.

  A: I’m kidding. Christ. Kidding! I’d have hired you earlier and gone after a conjunction.

  Q: An injunction.


  A: Right. Whatever. Thrown the book at him, so to speak.

  Q: In other words, Mr. Harrow, your failure to take prophylactic legal measures stands, in some way, as evidence of your lack of prior knowledge of Mr. Mayer’s course of action, which, as you have already testified, you would have sought to enjoin?

  A: I, uh, I’m not sure about prophylactics, but sure. I’d have tried to prevent it. If that’s what you’re getting at.

  Q: Thank you. Yes. That’s all.

  MR. MAMRY: How somewhat confusing, if delightfully brief. Mr. Ben David, cross?

  CROSS-EXAMINATION OF PHILLIP HARROW

  MR. BEN DAVID: Mr. Harrow, did you privately suggest to Mr. Mayer that the two of you cut his sister out of this deal?

  A: What? No!

  Q: You never suggested to Mr. Mayer that the two of you would be better off, I quote, “without your lezzy sister, no offense.”

  A: I don’t have a prejudiced bone in my body.

  Q: Did you leave Mr. Mayer a message on his answering machine that suggested he ought to meet you privately to talk about something just between the two of you?

  A: No!

  MR. BEN DAVID: Mr. Arbitrator, I submit, as our exhibit, I guess, 5, an answering machine tape to that effect.

  MR. JORDAN: Mr. Arbitrator, this tape was never produced in discovery!

  MR. MAMRY: This is, for the umpteenth time, not a court of law. We’re in a conference room, gentlemen.

  MR. JORDAN: I mean during the earlier hearings.

  MR. MAMRY: I doubt very much, given your description of those hearings, that you went through discovery. And perhaps they just discovered it. In any event, I’ll take it. Although I’m not sure exactly how germane it’s going to be, unless Mr. Ben David has some kind of double-double-cross theory. Perhaps that will be included in the briefs.

  MR. BEN DAVID: We are just demonstrating that contrary to Mr. Jordan’s argument from voluminousness, which you’ll note he appears to have abandoned in his examinations, that all of these players were acting independently, and that no enforceable oral contract can exist when you have these kinds of shenanigans going on behind backs.

  MR. MAMRY: I do hope that’s how you plan to phrase it in your brief, Mr. Ben David. I’m tempted to cut this off, as I think I get the point—

  MR. HARROW: Your hon—I mean, Mr. Arbitrator, look, I’m not trying to lie, here, it’s just, look, I did leave that message, but that was of a personal nature.