07/11 08:45
00:00:00 Good morning, everybody.
00:00:03 Please be seated.
00:00:04 Welcome back.
00:00:06 Alright, folks, we are back on record in the matter of Seth Kroenke v Treasure Chest and Randy Elliott case number 3AN20-08622Civil.
00:00:15 Parties in council are present.
00:00:17 All of our jurors are assembled.
00:00:20 So, I struggled a little bit this morning, but we didn't have to call anybody, so they're all here.
00:00:27 Ready to proceed?
00:00:28 I just want to address a couple scheduling matters to just make sure it's on the record sure so we had discussed yesterday the possibility of the zoom link and having witnesses testified by zoom I received the zoom link I believe opposing counsel did as well and I informed imposing counsel last night that I anticipate calling two witnesses by zoom which would I think suggest that they'll be using the depositions of the other witnesses that are on our list
00:00:55 So I just want to let the court know that.
00:00:56 Okay.
00:00:57 And there will only be two of the witnesses that we anticipated calling out of the four or five.
00:01:02 Okay.
00:01:03 Okay.
00:01:03 And it sounds like, Mr. Brzezinski, from yesterday at least that you would likely be using most of the time today for your witnesses.
00:01:12 Judge, I have great hopes of being able to rest today.
00:01:16 Okay.
00:01:16 So we might actually need those this afternoon then, or at some point later today, Mr. Kroenke.
00:01:21 I'm about 80 percent certain if things go well, we should be done today.
00:01:25 Just for court scheduling and for Mr. Campion's knowledge, I'm going to recall Mr. Kroenke for a redirect, three questions, and then we're going to move on to Mr. Clark, and then after Mr. Clark, we have Mr. Frank Martin, Travis Turnbull, and then Mr. Rutherford, our expert witness, and that's us.
00:01:44 And then my preference would be, if we get through all that today and there's a little time left, my preference would be for us to start with our witnesses first thing tomorrow morning.
00:01:55 The reason for that is I wasn't sure, and those witnesses are at Dan Creek, and I haven't coordinated a time with them, and they're not immediately accessible to me.
00:02:01 I completely agree.
00:02:04 Given the pace at which we're progressing, I have no issue with that.
00:02:07 I would not want to bifurcate counsel's witness.
00:02:12 So why don't we just plan for this?
00:02:14 We'll just plan to not start with your witnesses until tomorrow regardless, and that way you can let them know, and we can get specific times.
00:02:21 If we wind up being done a little bit early today, I don't think the jurors will mind.
00:02:27 The other thing I was going to mention, I do mention it each time.
00:02:31 I have worked my way through, I think, the motion in limine that still relates to basically the abuse of process damages.
00:02:37 I do want to...
00:02:38 I want to hear from each of you a little bit about that, whether we do that the end of the day today or first thing tomorrow morning.
00:02:45 I just want to get that on your radar so you can be thinking about it.
00:02:48 The main question in my mind is, okay, if this is really a discovery issue, what disclosure may have been made along the way or not made along the way?
00:02:56 I have what's in the writing, but obviously you've taken depositions and I haven't gone through that.
00:03:01 So be thinking about those points and we'll talk further about it either late today or tomorrow morning.
00:03:07 And I'll also want some clarity from you, Mr. Campion, over precisely what damages you are seeking for purposes of that abuse of process.
00:03:16 Just so I understand, you're saying the categories of damages as well as the specific dollar?
00:03:25 Yes.
00:03:26 Okay.
00:03:27 Understood.
00:03:28 Okay.
00:03:31 Anything else before we get the jury?
00:03:32 No, Your Honor.
00:03:33 Okay.
00:03:33 No, sir.
00:03:56 Thanks, sir.
00:04:30 Yeah, just keep
00:05:05 Please rise for the jury
00:05:57 Good morning, everybody.
00:05:57 Welcome back.
00:05:58 Please have a seat.
00:06:08 All right, ladies and gentlemen, we are ready to continue with our jury trial this morning.
00:06:12 We're continuing on with Mr. Kroenke's testimony for a brief moment just to give you a preview, and then we're going to have a series of additional witnesses today.
00:06:22 And so we'll take breaks as we can, and we'll keep things moving.
00:06:26 We're moving pretty quickly at this point, so I expect we're going to have, I think, maybe three or four witnesses in total today, and then we'll pick up again tomorrow.
00:06:35 So with that, Mr. Brzezinski, you ready to proceed?
00:06:39 Yes, I am.
00:06:40 We would like to recall Mr. Kroenke for just a few questions and redirect, please.
00:06:43 Mr. Kroenke, if you'd come forward.
00:06:44 And, sir, you were sworn in yesterday, so I'll just remind you you're still under oath.
00:06:50 You can have a seat.
00:06:57 Thank you.
00:06:58 Mr. Brzezinski, you can begin.
00:07:00 Thank you, Your Honor.
00:07:03 Mr. Kroenke, you spent almost all day in that hot seat, so I'm just going to ask you a few very quick questions.
00:07:11 Mr. Kroenke asked you some questions about text messages and getting your equipment out from the mine.
00:07:22 And then I believe you testified about trying to have a meeting with Mr. Elliott at the very end.
00:07:27 Do you recall that?
00:07:28 I do.
00:07:29 Okay.
00:07:30 Let me turn your attention to exhibit 16.
00:07:37 And can you identify for us what we're looking at here?
00:07:43 It's text messages between Randy Elliott and myself.
00:07:47 And obviously, can you just tell us the date?
00:07:49 We can all see it, but for the record, why don't we have that?
00:07:52 It starts at Tuesday, October 20th.
00:07:55 Alright, so can you tell me what the first text message is about and why did you write it?
00:08:02 This is the last piece of equipment that we still had at the mine that didn't get de-moved when we de-moved our other equipment.
00:08:10 So I'm asking Randy, is there any particular reason why you are denying Keith Rowland permission to retrieve my screening plan?
00:08:15 Okay, and what was his response?
00:08:19 His response is a lien on a leased property at Idaho gulch needs to be removed.
00:08:23 So what did you understand that to mean?
00:08:25 That he will not give my equipment until the lien is taken off.
00:08:29 And in fact is that what you say in your next text message?
00:08:33 So what you're saying is that you won't release my equipment until we remove the liens against your property?
00:08:39 Okay, let's go keep moving.
00:08:45 What was his response?
00:08:48 Excuse me.
00:08:50 We finished mining on October 14th.
00:08:52 I would like an itemized list of your expenses so that I can settle this agreement we made May 2020.
00:08:58 Some of the items on the initial listing have been removed, some have been sold.
00:09:03 I just don't know what is what.
00:09:05 I don't understand why there are any liens before our agreement is even finished.
00:09:09 Send it to me at 5100 West Dunbar Suite 8, Wasilla 99654.
00:09:15 Okay, and did you in fact send
00:09:19 Your itemized list to him?
00:09:21 I did.
00:09:21 I hand-delivered it personally to that address.
00:09:24 Okay.
00:09:25 And before we move on, Mr. Can you go back there?
00:09:32 Before we move on from that one, let's What did you understand Mr. Elliott's statement to me?
00:09:43 Which statement?
00:09:44 Let's look at the second sentence on the text from 1018 of October 21
00:09:51 So where it starts with some of the items?
00:09:53 I would like.
00:09:55 Second sentence.
00:09:55 I would like an itemized list of your expenses so that we can settle the agreement made.
00:10:00 I mean, I took that to mean that he would like to resolve this.
00:10:05 Okay.
00:10:06 So he's asking for the information that we had been sharing with him the entire time.
00:10:12 Okay, and is that consistent with Mr. Elliott's position during this process?
00:10:20 Is what consistent?
00:10:22 Is him discussing settlement of expenses consistent with his position?
00:10:27 Yeah, we were promised our entire stay to not worry about our expenses, that our expenses would be covered.
00:10:35 Okay.
00:10:36 Let's go to the next message.
00:10:38 What did you say there?
00:10:39 And there's just a few left.
00:10:43 Where I agreed to send the list?
00:10:45 Yeah, I will gladly read that for us.
00:10:47 I will gladly send you the list again Randy please answer my question from this morning regarding you releasing our equipment okay then there's a response send a list so that we can finish this agreement if that screen is not on a list I will give Keith permission to get it okay let's keep going
00:11:08 Randy has requested the list of expenses have been dropped off at the address that you specified the list of expenses is in line with the complaint that has been filed and the liens that are currently being updated you have your list the RAS screen plant is not on it therefore we would like to immediate we would like immediate permission to enter your property to retrieve the screen plant that is the property of Remote Alaska Solutions alright let's keep going could I please get a response and I don't know how much time went by
00:11:35 Well, we can certainly do that, so let's look at when you sent that message.
00:11:40 I sent that on Friday, October 30th.
00:11:42 Okay, and the next message is what date?
00:11:45 Friday morning.
00:11:47 It's Monday morning.
00:11:48 Okay, and what do you say in that message?
00:11:49 I'm assuming that's you on that side of the screen.
00:11:51 It is.
00:11:52 Could I please get a response from you regarding permission to retrieve the RAS gravel screen that remains on your property?
00:11:58 Randy's response.
00:12:03 You need Eriksman's
00:12:05 permission since the MSHA visit.
00:12:09 We are under a spotlight.
00:12:10 I have no objection.
00:12:12 Everything is winterized at Dan Creek.
00:12:14 My equipment was damaged this spring.
00:12:15 You will need a forklift.
00:12:17 I have itemized expenses.
00:12:18 Where shall I send them?
00:12:20 Okay.
00:12:22 And your response?
00:12:24 I understand RAS has permission to enter your property via any easements that have been established.
00:12:31 We had nothing to do with MSHA.
00:12:33 please send all documentation to our corporate counsel and then you also said yesterday testified that you're trying to set up a meeting is that correct yeah we consistently communicated in a way where we expressed our desire to settle this and to resolve this all right and let's look at the next couple of messages that one is from Randy I believe yep Randy what's the date on that
00:13:02 It must be Tuesday.
00:13:06 And for the record, would you just mind stating what day this is being recorded?
00:13:11 November 3rd, I believe.
00:13:12 Please.
00:13:14 Under our agreement, we're supposed to meet and settle our expenses.
00:13:16 Do you want to do that?
00:13:17 Okay.
00:13:22 And what are you saying?
00:13:23 I'm willing to meet this week.
00:13:24 Let's meet on Thursday at 10 a.m.
00:13:26 at the RAS office.
00:13:28 Please confirm meeting time is acceptable.
00:13:30 All right.
00:13:30 And what was Randy's response?
00:13:33 That same day he said, weather is a problem.
00:13:35 It is far below zero here.
00:13:37 Depending on the engine, I'll make it.
00:13:40 And then?
00:13:44 So two and a half hours after we were supposed to meet, which we were all assembled in our office to meet him, he texted us that he can't make it.
00:13:55 And he will send the papers to our office.
00:13:58 Did you receive any paper?
00:13:59 No.
00:14:04 Let's talk about expenses.
00:14:08 Mr. Campion asked you several times if you believe that Randy Elliott had a fuel expense because your equipment used fuel.
00:14:18 Is that correct?
00:14:19 It is.
00:14:20 Okay.
00:14:21 And you're not disputing that
00:14:24 Your equipment used some of the fuel that Mr. Elliott provided?
00:14:27 No.
00:14:28 Okay.
00:14:29 Do you have an idea of the cost of the fuel that your equipment used?
00:14:33 I really don't.
00:14:34 I didn't keep track of how many gallons we used.
00:14:37 Okay.
00:14:39 And I believe you testified there was a problem with that fuel?
00:14:49 Yeah, we were... For our...
00:14:52 Brand new Sany 135 we were provided with and delivered to the wrong fuel.
00:14:58 What did that cost you?
00:15:00 A lot of money.
00:15:00 I mean over $50,000.
00:15:04 So that's a fair cost to the fuel?
00:15:08 Probably more than the fuel.
00:15:10 Okay.
00:15:11 Then the last thing I want to ask you about, Mr. Campion said that when you flew out to the mine, you had an opportunity to look at these 400 class excavators.
00:15:20 That's true?
00:15:22 From a distance, yes.
00:15:23 And obviously somebody in your level of experience, you have mechanical, you have enough mechanical knowledge to be able to inspect a piece of machinery, right?
00:15:36 If I was there to inspect, I could probably conduct an initial inspection.
00:15:42 You can turn a wrench if you need to.
00:15:43 Yeah.
00:15:46 Why didn't you do that?
00:15:53 I think that the 100-year-old adage really rings true in a situation like this.
00:16:00 I mean, going back 100 or 200 years in how business is conducted or even fair dealings are conducted.
00:16:07 Take a horse, for example.
00:16:10 If I'm asking to buy or rent a horse, the expectation is that that horse has four legs, two ears, two eyes, and is healthy.
00:16:20 It's able to
00:16:22 Do the job that's represented.
00:16:24 And I think, you know, that applies to when the farm I grew up on, and I think it applies to fair dealings today with used equipment.
00:16:34 If you're entering into an agreement to purchase or to rent equipment, the expectation is that that equipment is in working order.
00:16:44 So that was my expectation.
00:16:46 Did you ever rent equipment that didn't work?
00:16:50 If that ever happens, they replace it immediately with equipment that does work.
00:16:53 No further questions.
00:16:55 Thank you, Mr. Brzezinski.
00:16:57 Thank you, sir.
00:16:58 Mr. Campion, you're stepping up.
00:17:00 I am.
00:17:00 Am I permitted a brief recross on just the areas Mr. Brzezinski covered?
00:17:06 Any objections?
00:17:07 No, not at all, sir.
00:17:08 Go ahead, Mr. Campion.
00:17:09 Thank you.
00:17:11 Mr. Kroenke, you've been shown what your attorneys have marked as Exhibit 16, and I have a copy of that.
00:17:20 It appears to be 67 pages of text messages.
00:17:24 The jury's going to receive that evidence, okay?
00:17:28 Would you agree that Exhibit 16 reflects the text messages between you and Mr. Elliott during the 2020 mining season?
00:17:36 I would agree.
00:17:37 Is there anything in there?
00:17:38 Let me ask, have you reviewed it?
00:17:40 Not recently.
00:17:42 At some point had you reviewed that?
00:17:43 Yeah.
00:17:44 Do you think that it's full and complete?
00:17:48 In other words, do you think there's a side conversation and text message that is not part of this?
00:17:53 Between Randy and I?
00:17:54 Yes.
00:17:55 No.
00:17:56 Do you think it accurately reflects the text messages between you and Mr. Elliott?
00:18:00 I believe it does.
00:18:01 Okay.
00:18:17 Thank you.
00:18:18 Those are my questions.
00:18:50 Thank you.
00:19:21 Good morning, sir.
00:19:26 If you'd come on up front, please remain standing.
00:19:28 When you get there, we'll give you notes.
00:19:36 And do you solemnly swear and affirm that the testimony you are about to give in the matter now before this court will be the truth, the whole truth, and nothing but the truth?
00:19:43 I do.
00:19:43 Okay, go ahead and take a seat and please state and spell your first and last name.
00:19:49 Good morning, Court.
00:19:50 My name is Kevin Clark.
00:19:51 Did you ask me to spell it?
00:19:53 Yes.
00:19:54 K-E-V-I-N C-L-A-R-K.
00:19:59 Thank you, Mr. Clark.
00:20:00 Mr. Brzezinski, you may proceed.
00:20:01 Thank you, Judge.
00:20:02 I'm jealous with the spelling of the last name.
00:20:04 I spelled Brzezinski.
00:20:06 Mr. Clark, what do you do?
00:20:10 I am the Vice President of Remote Alaska Solutions.
00:20:13 How long have you been employed with Remote Alaska Solutions?
00:20:18 Just under a decade.
00:20:21 And when you started with Remote Alaska solutions, what was your position?
00:20:25 I started with remote Alaska solutions as a project manager Okay, and do you have any education that you I do I have I hold a bachelor's degree in construction management A dual bachelor's actually construction management and civil engineering So it's part of Being a vice president remote Alaska solutions.
00:20:48 What do you do?
00:20:48 What does that entail?
00:20:51 A lot of things, actually.
00:20:53 At the time of Dan Kroenke, I was actually the general manager of Remote Alaska Solutions, essentially the manager of the managers.
00:21:01 So I oversaw or oversee the day-to-day operations of Remote Alaska Solutions and our team of project managers over the course of multiple construction projects, both civil construction, being dirt work, and our vertical construction, being buildings such as this.
00:21:20 How many projects have you supervised in your career with Remote Alaska Solutions, roughly?
00:21:28 40 to 60.
00:21:30 And are all of those projects on the roadway system?
00:21:36 I'd say 75%.
00:21:39 Okay.
00:21:41 So you do some work, for lack of a better term, in Alaska, the bush.
00:21:46 We do.
00:21:46 Okay.
00:21:50 Are you pretty comfortable doing that?
00:21:51 Absolutely.
00:21:55 Who's in charge of getting equipment out to the bush?
00:21:59 Normally that's a joint effort between Seth and myself, mostly myself.
00:22:09 So how familiar are you with the logistics of getting equipment to remote places?
00:22:13 Very.
00:22:19 When did you become involved in the project known as the Dan Creek mine?
00:22:26 I think I got a phone call from Seth on a weekend in early April of 2020.
00:22:33 Very excited.
00:22:33 I was at my in-laws house on a Saturday or maybe Sunday morning for breakfast.
00:22:38 Just telling me about crazy idea, but what do you think about going gold mining?
00:22:43 Kind of caught me off guard.
00:22:44 It was kind of a total curve ball from what our
00:22:48 What we do.
00:22:49 But it did sound like a really interesting opportunity.
00:22:52 So again, it would have been in early April.
00:22:55 And what happens after that, after that phone call?
00:22:58 After that phone call, we started our work week.
00:23:03 Got some more information from Seth.
00:23:05 Fast forward a week or maybe then we arranged a discovery flight in Seth's airplane to fly out to Dan Creek to get boots on the ground.
00:23:16 What's a discovery flight?
00:23:19 a discovery flight for lack of better terms is essentially going out going either driving or flying to the proposed site and just kind of taking taking it all in right getting out there seeing where it is what it's all about what's out there and just kind of get a general feel for for the the area is that something you normally do yes who went there with you that discovery flight was myself
00:23:47 Seth and Frank Martin, our civil superintendent.
00:23:53 What happened when you arrived at the mine?
00:23:56 Just tell us about your experience.
00:23:59 Okay.
00:24:01 We arrived at Dan Creek.
00:24:03 It had a rudimentary airstrip, which is not uncommon for a remote location.
00:24:09 We safely landed, followed directions with where to back taxi and park the airplanes.
00:24:15 It was still early spring, so it was still semi-winter out there, so we assembled the troops and we got a customized tour by Mr. Elliott showing us what Dan Creek was and all the things that he had accomplished out there.
00:24:32 So, obviously at some point you go home.
00:24:34 What happens next?
00:24:36 What happens next... And please help yourself.
00:24:38 Okay, thank you.
00:24:39 Just take a second.
00:24:40 I don't want to rush you and have an accident.
00:24:54 Okay, what happens next?
00:24:55 So what happens next is from a conversation about what Dan Creek is to us taking our discovery flight, seeing it firsthand, what it is, what it's going to entail, how to get there.
00:25:05 We get back to town and have a meeting of the minds to essentially lay out the opportunity, what it's going to entail from remote Alaska solutions and essentially enter into our first agreement.
00:25:18 Okay.
00:25:20 Who's this meeting with?
00:25:22 Who's present?
00:25:23 That meeting is between Mr. Elliott, Seth, and myself.
00:25:26 Okay.
00:25:27 What is discussed at that meeting?
00:25:29 That meeting is discussed the big picture opportunity, Dan Creek, getting to know Randy a little bit more.
00:25:35 By this time, I think I had met Randy three times.
00:25:41 Just discussing what Dan Creek is, his experience, you know, him really wanting to get out of it.
00:25:46 He's in his mid to late 60s, needing an exit strategy.
00:25:51 You know, seeing youthfulness and opportunity within Seth and Remote Alaska Solutions and myself to kind of get in there to potentially provide that exit strategy by purchasing the mine or some sort of an agreement.
00:26:06 Okay.
00:26:07 How did that meeting conclude?
00:26:09 The meeting concluded great.
00:26:10 I mean, everybody is on the up and up.
00:26:12 We're all excited about the opportunity.
00:26:14 I'm a little bit exasperated because all of the aftermath of those kinds of meetings fall on myself.
00:26:21 So it's all easy to say, blah, blah, blah, great, let's go.
00:26:25 And then they walk away, and then putting all the pieces together is my job and responsibility.
00:26:31 How do you manage that?
00:26:32 What do you do?
00:26:33 What do I do?
00:26:33 I make a sequence of lists, you know, personnel, what assets, either personnel or brass-owned assets that Seth committed to the project, and then figuring out where it is, where to get it to where it needs to be, and just making a strategic plan.
00:26:49 Okay.
00:26:52 Was getting equipment out to the mine and staffing that project something that you were concerned with?
00:26:58 No, not at all.
00:26:59 Why is that?
00:27:01 Well, once I knew that this was a decision that Seth had made for this portion of the company, then it was just a matter of getting the assets and getting our ducks in a row and moving forward with the plan.
00:27:15 Did you feel like you were rushing into this project, or was this normal for you?
00:27:20 No, this is normal.
00:27:24 I mean, things come together in our world very quickly.
00:27:26 I mean, one conversation on a Friday could completely change direction for a crew of Remote Alaska Solutions for an opportunity.
00:27:36 What happens next?
00:27:38 What happens next is getting all of our assets together at our RAS lay-down yard in Palmer.
00:27:46 getting the equipment.
00:27:47 We needed to purchase a brand new Sandy 135 excavator.
00:27:51 It's a 200 class excavator.
00:27:54 The importance of that was we knew what was existing out at Dan Creek, a series of used equipment as is in Goldmine.
00:28:03 He buys things used from the Ritchie Brother auction and everything's just good enough to do what it needs to do.
00:28:09 You need a whole bunch of them because they are always breaking down and you just haven't stayed where they need to be.
00:28:16 Get the equipment, get the assets, get the material fabric, you know, the fabrication supplies, the metal, the consumables, get the people, get what they need, make sure everyone's going to be comfortable out there before we send them away from their homes.
00:28:31 Arrange the third party semi and low boy trailers and just get ready for a big mobilization out from our yard.
00:28:40 Let me circle back a little bit to the first meeting.
00:28:44 Was there a contract signed at that meeting?
00:28:46 Do you recall that?
00:28:49 Yes, there was a contract signed at our first meeting.
00:28:51 Were you part of the discussion?
00:28:53 I certainly was.
00:28:55 How long did the discussion take place regarding the contract?
00:28:59 Hour and a half, two hours maybe.
00:29:02 And who typed that contract?
00:29:04 It's very short.
00:29:09 Seth had his computer present at that meeting, so that would have been typed by Seth right then and there at the meeting.
00:29:22 What did you understand the purpose and the goal of this project to be?
00:29:28 Well, the purpose and the goal of the project, first and foremost, was to provide Mr. Elliott with an exit strategy of this, of Dancrete Gold Mine.
00:29:38 How we were going to do that was we needed to establish a value of this piece of property, this gold mine.
00:29:45 So the purpose of the season was for us to go out there.
00:29:49 We're sending him and allocating him two of our most heavy-hitting field superintendents that we have.
00:29:58 We've got Mr. Travis Turnbull, who's a
00:30:01 who's an excellent fabricator and we had Frank Martin who's my lead civil superintendent who runs all of our dirt work.
00:30:08 So we're sending, you know, what's more precious than gold to a gold mine is a very experienced operator and a fabricator who can build something out of nothing.
00:30:18 So we're sending our two heaviest hitting manpower assets out there to do what needed to be done to essentially
00:30:31 Get a processing plant up and running for us to be able to sample various locations, to be able to see per yard of dirt, how much gold does it yield, kind of bounce over the property to essentially get a feel for what's where, what's rich, what's not.
00:30:47 and then be able to extrapolate information to determine how much gold's in the property and then come up with a value.
00:30:55 And then by way of sampling, we were going to be able to actually produce gold, and that was going to be the median that was going to cover our half of the expenses, which was part of the agreement.
00:31:04 Outside of organizing the logistics, were you involved in the mobilization process?
00:31:10 I was.
00:31:10 Okay.
00:31:11 Did you actually drive any equipment, go out there?
00:31:13 I did.
00:31:14 Okay.
00:31:15 Just briefly tell the jury, what does it take to assemble all this?
00:31:18 Because it seems like you're the one stuck doing it.
00:31:21 Well, sure.
00:31:22 I mean, it takes a team, right?
00:31:24 So in this effort, to this degree, I mean, Seth personally and myself personally were involved.
00:31:30 So outside of some of our equipment, like we had a couple of custom built heavy spec military Stewart and Stevenson dump trucks that we custom converted to on-road, off-road dump trucks.
00:31:41 So those could be able to be transported themselves by just putting drivers in the seats.
00:31:46 The rest of all the ancillary equipment, all the required one-ton pickup trucks and trailers.
00:31:52 We built a custom 20-foot bunkhouse out of a connex so that our guys would be super comfortable.
00:31:58 We brought out sampling gold trommel, trailers full of all the material and consumables that was on the wish list to be out there.
00:32:08 I drove out there once over Memorial Day weekend of that 2020 season.
00:32:15 McCarthy's not for the faint of heart.
00:32:16 I mean, it's like 205 miles from Palmer, you know, six hours by road.
00:32:22 The asphalt or the DOT maintained section ends at like Copper Center.
00:32:25 So then there's a 60 mile stretch of this treacherous gravel road.
00:32:29 You never know how bad it's going to be.
00:32:30 I mean, it was quite the song and dance.
00:32:34 You know, we were
00:32:35 Seth Kroenke v Treasure Chest LLC
00:32:57 The adventure starts so Travis himself was out there solo to just get get things set up and established for RAS's presence on site.
00:33:09 You know, he's kind of the jack of all trades and most of all fabrication, right?
00:33:15 I mean, Randy had
00:33:17 This big idea that we needed to get built and Travis was the man for the job again He's someone that can make something out of nothing So Travis is out there by himself for three four weeks and just making stuff happen working ninety hundred hours a week seven days a week Just getting getting things set up for us to be able to send more manpower out there to actually get plugged in and be productive Okay, and your role in all of this is what my role so I at this point in time I kind of
00:33:46 Take the responsibility as a project manager for our special projects, things that are a little bit outside of our norm.
00:33:52 Keep our other project managers focused on the more cut and dry vertical construction projects.
00:33:57 So this one is something that I was responsible for.
00:34:00 So as such, I'm very meticulous in making sure that we have things dialed in on a daily basis.
00:34:08 Time cards.
00:34:09 I constantly hound our guys.
00:34:11 I don't want time cards at the end of the week.
00:34:12 I want time cards at the end of the day.
00:34:14 And I understand that sometimes your days are long, so I at least need them by the next morning.
00:34:19 And same thing goes for daily reports.
00:34:22 So I'm keeping track, making sure that we have an accurate account of time cards, what are these guys actually working, and also daily reports.
00:34:31 and then you know material requisition so they would say oh my gosh I need this or we're out of groceries more eggs you know I need Brock stars whatever all those things would come to me I facilitate acquiring them in the valley and then if it was small enough we basically assemble it at our office and then you know once a month or I guess once every couple of weeks we were basically doing support flights to just bring out the the wish list stuff that could be flown on an airplane
00:34:58 So you are in communication with Mr. Turnbull at the mine?
00:35:02 Yep, I am.
00:35:03 Via phone or just daily logs?
00:35:06 Couple different ways.
00:35:07 So I can't remember.
00:35:09 There's a particular cell service provider, you know, as Alaska is, I think it was either GCI or maybe AT&T was the ticket.
00:35:16 So we had to get a special phone from that service provider to send out to the mine.
00:35:22 And then that was essentially their way of communicating back to me.
00:35:26 But as it would be obviously we've established Dan Creek is fairly remote So you get too much cloud cover then all of a sudden cell service gets pretty spotty But I had good communication with our crew boots on the ground with getting the information that I needed to keep accurate records Now you said he's there for three four four weeks building this plant.
00:35:46 Why is it taking so long?
00:35:48 Oh because we keep
00:35:50 The things that we need to use or were promised to us to be out there to use to just do what he needed to do You know, it was everything everything was broken.
00:35:58 So the tool that you needed To do your job was broken So then you detract what you're supposed to be doing to fix what you're supposed to be using and then it was just Constant, you know, hey use my service truck.
00:36:09 It's got a boom on you You can set it up and sling all this material up and set it up make it real easy well
00:36:14 It was broken, and that took two or three days, and then things would be needed for that piece of equipment to get it running so that we could do what we were supposed to be doing, and, you know, over the course, you know, that stuff kind of adds up.
00:36:24 So, I mean, it just, everything took way, way too long because everything was broken down.
00:36:27 Okay.
00:36:29 And the next crew member from your team that arrives is who?
00:36:33 Mr. Frank Martin.
00:36:35 What happens when Frank gets there?
00:36:38 When Frank gets there, Travis isn't quite ready because of his chaos and
00:36:44 getting this plant ready.
00:36:46 So Frank was immediately plugged in because Frank again is my lead civil superintendent.
00:36:51 He's a world-renowned excavator.
00:36:52 He's traveled all over the world doing what he does.
00:36:57 So he's plugged into an excavator and tasked with building roads and doing ditches, building dikes, just doing general capital improvement projects across the mine.
00:37:08 Why are you directing him to build roads?
00:37:10 Pardon?
00:37:11 Why are you directing him to build roads, sir?
00:37:14 I didn't say that I directed him to build roads who's directing him to build roads Randy was directing him to build roads what was he supposed to be doing he's supposed to be out there to plug in with Travis and start sampling so we can see just so we can see what's going on I mean that was the intended purpose is he doing any of that no what's he doing you're in charge what what's he doing
00:37:37 Well, I wouldn't say that I'm in charge.
00:37:39 I mean, I was in charge of keeping record, right?
00:37:42 So it was established that, you know, this is Randy's world out there, right?
00:37:47 So Randy doesn't want Seth or myself micromanaging
00:37:54 The work out there, we need to just trust him.
00:37:55 I mean, things are different out there, right?
00:37:57 So he's done it for 40 years.
00:37:59 You know, it might seem chaotic, but there's a method to his madness, right?
00:38:03 So no problem.
00:38:05 We just need to have the stuff that we promised out there, and the rest would just kind of fall in line.
00:38:09 So again, we just get our bodies and our equipment in place, and what Randy wanted to see as the grand orchestrator just happened, and we just stayed out of the middle of that.
00:38:20 So how long is this going on for?
00:38:25 Weeks, I mean, shoot, by this point we're mid to end of May, beginning of June maybe.
00:38:34 And during this period, is Frank doing anything that he's supposed to be doing?
00:38:43 What was Frank, let me rephrase that.
00:38:44 What was Frank supposed to be doing?
00:38:47 So again, we sent out a fabricator and we sent out a very highly talented civil super excavation operator who has gold mining experience of his own accord.
00:38:59 So when Frank got out there, Frank was supposed to be running the equipment, stripping a site that we were supposed to be sampling and mining, and putting the dirt in the processing plant to see what was what.
00:39:10 Is that happening?
00:39:11 No.
00:39:12 What is happening?
00:39:13 What's happening is that we're
00:39:15 putting in a mile of water pipe.
00:39:18 We're building boulder walls.
00:39:20 We're just doing everything about what we're supposed to be doing.
00:39:22 But again, you know, this is all part of the process.
00:39:25 This is what needs to be happening for the sake of the good.
00:39:28 Who's paying for this?
00:39:30 Well, we're paying for it.
00:39:31 I mean, we have Travis and Frank are salaried employees.
00:39:36 So even though they're out at Dan Creek, I mean, they're getting their biweekly paychecks.
00:39:40 You know, RAS is paying for them.
00:39:43 How are these expenses looking at this point?
00:39:46 I mean, our expenses are skyrocketing.
00:39:50 I mean, so, I mean, I'm keeping track of this stuff on a daily basis, you know, time cards for a manpower allocation in Excel spreadsheet.
00:39:58 You know, just, we treat it like a commercial construction project, right?
00:40:00 It's a little bit smaller in scale, but, you know, as pieces and parts, as
00:40:06 As things are needed, they're ordered by myself.
00:40:08 They're cost-coded appropriately.
00:40:09 When the invoice is made to our accounting department, the accounting department processes it, put it in a special folder.
00:40:15 I open the folder up on a daily basis, and then update each individual entry on a daily basis.
00:40:20 So in a part, for us to keep account was to be able to know exactly where we are at at all times with our expenses.
00:40:28 So at this point in time, I mean, we're out there just doing all this work, and we're in the almost $200,000 spent
00:40:36 And how much gold revenue is coming in?
00:40:38 Zero.
00:40:38 I mean, it was a major concern.
00:40:41 You have no gold revenue coming in?
00:40:43 Zero.
00:40:46 So, there came a time that Frank stripped a piece of land.
00:40:51 Is that right?
00:40:52 That's correct.
00:40:53 And there came a time when you became aware that Frank and Travis were actually mining.
00:40:59 Correct.
00:41:00 What happened?
00:41:00 Tell me about that.
00:41:02 Again, I have to live vicariously through the daily reports because that's our communication method.
00:41:09 I'm reading the daily reports every morning when I get in the office at 6 a.m.
00:41:13 It sounds like the chaos had finally made its way to where they needed to be.
00:41:18 The plant's running.
00:41:19 The excavators are on site.
00:41:21 They're running.
00:41:22 They get a piece of property that we were supposed to be sampling first.
00:41:26 They get it stripped.
00:41:28 which is stripping the trees, getting the overburden gone, getting down to the gravel, and then essentially doing what we're supposed to be doing, putting the gravel in the processing plant to see what's there.
00:41:40 What was there?
00:41:41 We found gold.
00:41:46 How much?
00:41:49 I think if my memory serves me correctly, I think it was like end of May, maybe early June.
00:41:57 They got going on this particular piece of property that we were sampling, and I think they were fined in three to four ounces.
00:42:04 What was the general mood at that point?
00:42:07 Could you repeat the question?
00:42:08 I'm sorry.
00:42:08 What was the general mood of the crew at that point?
00:42:11 Oh, elated.
00:42:12 I mean, finally, right?
00:42:14 I mean, we had a rough start, and things didn't quite go as planned, but, I mean, that's just the way it goes, right?
00:42:20 But we finally got honed in.
00:42:22 We're ready to go, and we're fining gold.
00:42:24 Great.
00:42:26 What happens next?
00:42:27 Seth Kroenke v Treasure chest LLC
00:42:48 Travis got asked to go oh a track fell off an excavator or a bucket broke or what just whatever you could imagine happened so Travis got pulled off to go fix whatever needed to be fixed that's what we do we're team players and then Frank was tasked with more excavator where oh an emergency over here you know we got a flood go fix this diker oh my gosh a water line burst go fix that and then that just that just
00:43:13 happened, and we totally got pulled off of what we were doing for that sample.
00:43:17 We got pulled off.
00:43:18 Who's directing this?
00:43:20 Again, I mean, this is Randy's gold mine.
00:43:22 Randy makes the shots.
00:43:24 Let me see if I understand this correctly.
00:43:27 Your guys found a spot.
00:43:29 They're mining, right?
00:43:31 Correct.
00:43:33 It was producing.
00:43:34 Correct.
00:43:36 And then Mr. Elliott, for whatever emergency you stated, they're removed.
00:43:41 Correct.
00:43:42 Did they get to go back there?
00:43:47 No, I don't think we did.
00:43:49 So what happens after this?
00:43:53 I think at this point, you know, I bring to Seth's attention, you know, I'm reading these daily reports every morning, you know, I bring him the good news and I bring him the bad news, right?
00:44:00 So we're a couple month and a half into this, you know, so Seth's like, hey, where are we at?
00:44:05 How much we got spent on this thing, right?
00:44:07 My job to answer the questions and I got to have it like that.
00:44:10 So I say, here's our
00:44:12 Here's where we're at cost-wise.
00:44:14 Were they finding any gold?
00:44:16 Show them the reports and essentially it was time for, why aren't they still there?
00:44:20 Why aren't we still doing what we found?
00:44:23 We found gold, why are we not staying focused?
00:44:26 So essentially we needed to call a second meeting with Randy.
00:44:30 Did you do that?
00:44:31 Yep, we did.
00:44:33 Where was that meeting held?
00:44:38 That meeting was held at the remote Alaska solutions office in Palmer.
00:44:41 Were you present?
00:44:41 I was.
00:44:42 Okay.
00:44:42 Tell me what happened at that meeting.
00:44:45 Well, I guess the fundamental aspect of that meeting was for us to bring Durrani's attention.
00:44:51 I had a summary sheet of where our expenses were and slid across the table.
00:44:56 Hey, we're a month and a half into this.
00:44:58 We told you how we were going to be keeping track of our expenses.
00:45:01 Just wanted to let you know where we are at to date.
00:45:03 It's pretty important to know where things are at, keep a pulse on things.
00:45:08 and that we wanted to express our concern that you know here's how much we spent so far and we're only you know not even quite halfway into this yet and we haven't even seen or found or have any any goal to put in the kitty to help cover our half of our our agreement here so you know we're a little bit concerned about how this is going about how we're going to be able to how you're going to be able or how this venture is going to be able to pay for its bill um you know I understand that we've been you know
00:45:33 rapid-firing you know you've been having Travis and frank do whatever needs to be done but I think we need to get you know let's get focused here so that we can get some get some gold in the kitty so that we can pay for this bill that's only going to go up from here did you who brought the expenses to that meeting I did and did you share those expensive Australia I did and how were they presented where they scribbled on a piece of paper
00:45:58 No.
00:45:58 Again, I'm keeping an accurate record of this stuff in an Excel spreadsheet.
00:46:03 Each category has its own tab that correlates to a summary sheet.
00:46:07 And again, this whole agreement, we wanted this to be as simple as possible.
00:46:13 So our agreements are simple, just one step up from a handshake.
00:46:18 And the way that we present information is very simple so that it's not super convoluted or difficult to understand.
00:46:23 So one page summary with the categories,
00:46:27 What was Mr. Elliott's position at this meeting?
00:46:44 Okay, that's my bill.
00:46:46 No problem.
00:46:47 Trust me, we'll pay the bill.
00:46:49 I know things haven't been quite going as planned, but it's okay.
00:46:53 We're getting things honed in and ready to go.
00:46:55 We still have a lot of season left.
00:46:58 It's far from game over here, so just let me do what I do.
00:47:02 Please don't micromanage things out at the site.
00:47:05 Just trust me.
00:47:06 Just let me do what I need to do.
00:47:07 I've been doing this for 40 years.
00:47:09 I always pay my bills.
00:47:13 Even now, I'm here.
00:47:14 I'm wasting time.
00:47:15 I should be out on the mind.
00:47:16 Things are probably going to chaos.
00:47:19 I need to be out there, so just trust me.
00:47:21 Okay.
00:47:24 What happens after the meeting?
00:47:27 Well, Seth had his computer again, so the point of the meeting was to express our concern, show him what our expenses were at that point in time, and then make a slight amendment to the agreements, just kind of clarifying that.
00:47:42 So, did anything change at the mine after that?
00:47:44 No.
00:48:13 What happens after this meeting?
00:48:14 What's going on at the mine with you guys?
00:48:17 Well, the meeting breaks, you know, things go back to normal.
00:48:21 Randy made his way back to the mine.
00:48:23 We went about our day to day and I'm just keeping, you know, monitoring the daily reports.
00:48:27 What's happening?
00:48:28 And what are you seeing?
00:48:30 More of the same.
00:48:31 More of the same being that Travis is fabricating and making everything that's broken and dilapidated better.
00:48:39 And Frank is continuing to
00:48:41 You know, do what Frank does and just beautify everything, you know, turning these super rough roads into nice roads and, you know, just doing general unbelievable excavation projects that, you know, only in my opinion, only Frank is capable of because of his skill set.
00:48:56 We're certainly not mining or sampling or getting any gold.
00:49:01 Is there any benefit to Seth and the company from all this infrastructure improvement?
00:49:08 Absolutely not.
00:49:10 And who's paying for all this?
00:49:11 remote Alaska solutions paying for that and that's really sad correct do you did you keep track of your hours spent on this project I did okay let me turn your attention to exhibit 10 give us a second and appear right over your left shoulder and if you'd like a hard copy I can certainly get you one if you don't want you're young you can twist your neck
00:49:47 Okay.
00:49:48 What is that, sir?
00:49:50 Well, that is a PDF printout of an Excel spreadsheet page that I use to keep track of my hours and Seth's hours.
00:49:59 All right.
00:50:00 Let's scroll down.
00:50:01 I got down and upright this time.
00:50:08 And this is a document that you kept track of?
00:50:11 Yes, sir.
00:50:12 Okay.
00:50:14 And did you get a chance to review this document?
00:50:17 I have, multiple times.
00:50:18 Okay.
00:50:20 So when we get to the totals, there we are.
00:50:25 So can you explain what those totals are and how did you derive them, or how are they derived, sir?
00:50:32 Sure.
00:50:33 The totals that we see there are a summation, right?
00:50:37 So the first column, 217, is the summation of my hours over the course of the Dan Creek project, 217 hours.
00:50:45 and then to the right the 249 and a half is Seth's summation of his total time expended on the project and then below that the dollar amounts are simply my and Seth's hours multiplied by our discounted project manager's rate of $150 an hour.
00:51:05 That's what that is.
00:51:09 Those two added together equal the RAS total for Seth and myself, and then a standard 20% overhead in profit on top of it is our grand total.
00:51:17 Okay.
00:51:18 And let me turn your attention to Exhibit 5.
00:51:24 And let's scroll down the screen just a little bit to Kevin and Seth time.
00:51:30 Now, those two numbers seem to add up to less than what we just saw.
00:51:36 Can you explain that?
00:51:38 Yeah, I think at the time that this was presented or needed, you know, these are things that Seth would just call me and say, hey, I need to know what our expense summary is.
00:51:50 Right now I'm going off to have a meeting with Randy.
00:51:52 So this would have been, you know, obviously done before or before I had everything totaled in the detailed Kevin and Seth's time.
00:52:02 So the actual time you put in is
00:52:07 larger or smaller than the number there?
00:52:11 Could you go back to the 14?
00:52:12 I mean it's significantly less.
00:52:18 Sorry, let's just be clear.
00:52:19 The number that Seth is requesting for Randy is less than the actual number or the actual number is, which number is higher?
00:52:28 The number on this?
00:52:30 Let me rephrase that.
00:52:34 Your total spreadsheet
00:52:36 that you created shows how many hours for you and Seth?
00:52:41 217 plus 249 and a half.
00:52:42 Okay, and normally the cost of those hours would be what?
00:52:47 $235 an hour for executive management.
00:52:49 Okay, so the grant total would be... What's the bottom number?
00:52:57 Well, $98,940, but that's, again, that's at our discount rate of $150 an hour.
00:52:59 Okay, and the number that...
00:53:06 Seth is requesting for randy adds up to how much?
00:53:09 $55,000 okay thank you and let's talk about daily logs let's pull one up that's going to be exhibit 11 can you look at that and tell me what we're looking at here?
00:53:35 Yes, this is a PDF summation of our daily logs.
00:53:40 This one's zoomed in on Monday, June 29th of 2020.
00:53:44 This is by way of a construction management, project management app that we use.
00:53:53 records what the weather is per your geographic location that your phone pings, and then it essentially gives the field, on-site field superintendent the ability to just document what happened on-site that day.
00:54:05 It's kind of a job daily diary of what happened, who was there, what conversations were had, the good stuff, the bad stuff, right then and there when it's fresh.
00:54:15 Okay.
00:54:16 Can you just read that one to us, please?
00:54:18 Would you like me to read the entire entry?
00:54:20 Okay.
00:54:21 Team member work.
00:54:23 Plant ran a little today Travis and blake drove to mccarthy with a truck load of supplies we chartered wrangle mountain air for jump flights to dan creek brandon flew out and drove travis's truck travis attempted to use the new diagnostic tool on the sani but needs a specific code from isuzu and could not obtain code after several phone calls
00:54:48 Mike with Totem will be at Dan Creek tomorrow to install the new after treatment system on the Sani from town and will handle clearing the codes and getting the Sani running again.
00:54:59 Waiting to hear back on fuel sample that was sent out for testing to see if it meets the criteria for the ultra super duper low sulfur diesel fuel for this tier 4 engine.
00:55:12 will run more tomorrow and clean out signed Kevin Clark 6 30 2020 at 7 59 AM now I'm a little confused see if you can explain this to me you said that you get these reports from the field typically yes but that one looks like it's written by you yeah it certainly is so the each report will be
00:55:35 will be stamped by whomever did the entry so in this this instance this was this was actually inserted by myself but we are you know Dan Creek is a remote camp so this our product management app needed to have cell phone signal to be able to run the app so sometimes there would be too much cloud coverage and Travis wasn't able to you know get into the app as you can imagine which would be frustrating so
00:56:02 our second measure for that would be Travis would use the 18th year GCI cell phone type his daily report out via text message text it to me I'm at my home office with no internet issues and then I will type it up on my computer and just put the entry in because again it's of the utmost importance that I'm not letting multiple days go by with no entries right so if it needs to get sent to me however it needs to get sent to me on the mail plan written on a piece of paper I'm getting that report
00:56:27 So this one was sent to me via text message, and then I just typed it in.
00:56:31 Okay.
00:56:31 So the information is coming from Travis.
00:56:33 You're just acting as the secretary.
00:56:35 That's correct.
00:56:36 Okay.
00:56:38 Tell us about this low sulfur SANI issue that you just read us about.
00:56:42 What's going on there?
00:56:44 Okay.
00:56:45 So, again, we agreed RAS wanted to be able to, you know, Randy had equipment on site, but it's all old, wore out, broke down stuff.
00:56:53 But it's good enough for gold mining, right?
00:56:56 We wanted to send out a new excavator that would be very reliable because it's brand new.
00:57:03 But the requirement of a 1980s or 90s excavator and the diesel fuel that it runs off of is different from our new environmentally friendly diesel engines.
00:57:14 So this thing, 2020 Sandy 135 needed what's called ultra low sulfur diesel fuel, which is what you basically get at the fuel pumps these days for running all of our diesel pickup trucks.
00:57:25 Who is supposed to provide fuel for that Sandy out of the mine?
00:57:39 Mr. Elliott had a relationship with the fuel guy in McCarthy so as Mr. Elliott needs to get fuel to his location you know every season Mr. Elliott was responsible for bringing a certain amount of ultra low sulfur diesel fuel which was available from the McCarthy fuel rep
00:57:58 Did you get ultra-low sulfur diesel for the sanding?
00:58:00 It turns out that we didn't.
00:58:02 That's why we had nothing but issues with this piece of equipment and we're all pulling our hair out.
00:58:07 We brought this thing out there to have no problems and we had nothing but problems because the wrong fuel was provided and put in the machine.
00:58:13 Okay.
00:58:15 One last question.
00:58:16 An issue came up earlier before you took the stand.
00:58:25 Are you in the habit of recording meetings?
00:58:28 I absolutely am.
00:58:29 Why do you do that?
00:58:30 Well, I mean, it's a habit that I got during my college years.
00:58:33 I wanted to be present during all my college lectures, so I would just record the lectures so that I could be engaged in the lecture, and then after the course I'd go back to my dorm and I would listen to it, pause it, fast it up, rewind it, and then be able to take accurate notes.
00:58:48 So that habit carried on with me to my professional life, and I use it now when we have
00:58:55 Thank you, Mr. Brzezinski.
00:58:56 Thank you, sir.
00:59:36 You mentioned that when Mr. Kroenke called you and said you were at home and he said that he had an idea to go gold mining.
00:59:44 Do you recall that testimony?
00:59:46 I do.
00:59:46 Do you recall approximately what date that was?
00:59:49 I don't recall.
00:59:49 The first part of April.
00:59:52 Okay.
00:59:57 You mentioned that that was a crazy idea?
00:59:59 I don't believe those words came out of my mouth.
01:00:03 You don't think you said it was a crazy idea when you called?
01:00:06 I don't think so.
01:00:06 I said it was outside of the ordinary for what we normally do.
01:00:09 Okay.
01:00:10 Do you recall telling the jury that it was a curveball?
01:00:15 Just an hour ago.
01:00:16 In the context of our normal day-to-day operations, going out to McCarthy with people and equipment would be something that would be a little bit of a curveball for a Sunday morning phone call, yeah?
01:00:26 You described, I think, a couple different times, you mentioned that it was an opportunity.
01:00:29 Do you recall that?
01:00:31 Of course.
01:00:32 Could you describe to the jury why you viewed that as an opportunity?
01:00:36 Why I viewed it as an opportunity because...
01:00:39 Seth Kroenke v Treasure chest LLC
01:01:02 discussing with Mr. Kroenke what it was going to take to pull this off.
01:01:06 Did you guys have a discussion about how much money you would need to spend to meet your end of the bargain?
01:01:11 No.
01:01:13 Did you have an idea about how much it might cost to mobilize and provide the things that you were required to provide pursuant to the agreement?
01:01:21 No, not really.
01:01:23 Not at all?
01:01:25 Could you rephrase your question in context?
01:01:27 Sure.
01:01:28 How much did you think it was going to cost?
01:01:30 As you told the jury, you're doing all this work.
01:01:32 You're assembling equipment, materials, perishables, consumables, personnel.
01:01:38 You're laying it all down.
01:01:38 You're getting it all ready.
01:01:39 How much was it going to cost your company?
01:01:41 Oh, I have no idea.
01:01:42 I mean, at that point in time, I mean, I don't bring stuff to McCarthy or Dan Creek.
01:01:46 I didn't know what Randy was going to need or ask for for us to be able to get out there so you know at some point in time I mean there's big picture ideas of like okay I mean how many how many tractor trailer does we need to bring out there how many miles is it you know I mean there's some an idea of big picture cost sure we just said there's you had no idea so what what was the cost in your mind of what particular facet how much was it going to cost your company to do what you needed to do pursuant to the agreement
01:02:16 Well, I don't know, sir.
01:02:17 You don't know.
01:02:18 You're asking me small numbers and you're asking me big picture.
01:02:21 I mean, what exactly are you asking here?
01:02:24 I'm asking you if you had an idea how much it was going to cost RAS to do what it was required to do pursuant to the agreement.
01:02:30 I did not because the spirit of our agreement was to basically enter into this on a time and material agreement, right?
01:02:38 We're going to keep track of what's asked for and then how much that stuff costs, our people's time.
01:02:44 and the time and the equipment that was going to need to be sent out there.
01:02:46 So we're going to keep daily record of it and it costs what it costs, which is why at multiple points, once we had an idea of where we were at per cost, we provided that information to Mr. Elliott so that he'd have a pulse on, here's where we're at so far.
01:03:00 Did you just testify that you believe the spirit of the agreement was that it was a time and material contract?
01:03:06 I did just say that, time and materials, yes.
01:03:08 Did you or Mr. Kroenke convey that to Mr. Elliott in any way?
01:03:17 Time and materials means that labor and materials is tracked and those totals equal an expense.
01:03:24 So our agreement was that the expenses being tracked via the time and the materials would be presented to Mr. Elliott which would be split by the joint venture 50-50.
01:03:34 My question was whether or not you or Mr. Kroenke conveyed to Mr. Elliott that it was going to be a time and materials contract.
01:03:40 I didn't say that it was going to be a time and materials contract.
01:03:42 That's just big picture jargon for how the time and the materials are captured.
01:03:47 Okay.
01:03:48 And is it your testimony that pursuant to the agreement, you had the opportunity or right to present your expenses to Mr. Elliott before the end of the mining season?
01:03:59 Could you repeat the question, please?
01:04:01 Was it your understanding that you and Mr. Kroenke could present your expenses to Mr. Elliott before the end of the mining season in 2020?
01:04:08 Of course.
01:04:09 I mean, it was a courtesy check-in with letting him know where our expenses were at the given point in time.
01:04:17 You don't want to just drop a number at the end of the season and be like, well, that's way more than I thought it was going to be.
01:04:22 It should have been nice to know where we're at along the way.
01:04:26 You mentioned that Mr. Kroenke typed up the first agreement between Mr. Elliott and Mr. Kroenke.
01:04:32 Is that right?
01:04:32 I did.
01:04:32 Okay.
01:04:33 And was that meeting, the meeting from May 5th, 2020?
01:04:37 Let me make sure I get this right.
01:04:40 Do you believe that the meeting that occurred on May 5th, 2020 was
01:04:45 was the same meeting in which that contract was prepared and signed?
01:04:48 Do you recall?
01:04:49 I do recall.
01:04:50 Do you believe it was May 5th?
01:04:52 Could I see the exhibit?
01:04:54 I'm just asking if you recall.
01:04:56 I recall.
01:04:56 The date on the contract was, I believe, May 5th, and both signatures were wet inked in front of me that day.
01:05:03 So I do recall that it would have been on that day, yes.
01:05:05 Okay.
01:05:06 And you testified that you are in the habit of recording meetings?
01:05:10 I am.
01:05:11 And did you record the meeting on May 5th?
01:05:13 I did.
01:05:14 And it was your testimony just a few moments ago that you record the meetings so that you have an accurate record of what happened at the meeting, correct?
01:05:23 I do.
01:05:23 I believe that it's a really good opportunity to capture the essence or the spirit of any agreement, especially when you're talking about contracts.
01:05:32 I mean, in a conversation where you can essentially throw an atomic bouncy ball and the conversation goes all over the place, I mean, how is anyone going to remember accurately what's being talked about or
01:05:42 You know, the tone or the demeanor, and yeah, so I record those instances that have accurate record.
01:05:48 And on May 5th, you did record that meeting?
01:05:50 I did.
01:05:51 And you just testified a few moments ago that you would sometimes, or maybe you normally would take notes after you record the meeting and you re-listen to it.
01:06:00 Did you re-listen to the May 5th meeting after that, after you recorded it?
01:06:05 I did.
01:06:06 I have listened to it, correct?
01:06:08 Did you prepare any notes about it?
01:06:11 I don't recall if I prepared notes about it.
01:06:15 Did you tell Mr. Elliott that you were recording the meeting?
01:06:21 I don't remember.
01:06:21 I mean, my phone was out in the middle of the calendar, so I guess I can't recall or tell the court whether or not I said, I'm going to be recording this conversation.
01:06:29 But I mean, my phone was out.
01:06:30 I would have went like this, and the meeting would have carried on.
01:06:35 Is it your customary practice to not tell people you're recording them when you're meeting with them?
01:06:41 I wouldn't say that's my customary practice.
01:06:42 I mean, I certainly wasn't doing this in secrecy.
01:06:45 So if it didn't audibly come out that I was recording the meeting, then, I mean, that would have been not intentional.
01:06:54 How many meetings did you record with Mr. Elliott?
01:06:57 I think I recorded either two or three of our meetings.
01:06:59 How many times did you tell him you were recording the meeting?
01:07:02 Again, I don't recall whether or not I explicitly looked at everybody and I said, I'm going to be recording this conversation.
01:07:07 To my knowledge, it's not necessarily...
01:07:10 required in the state of Alaska.
01:07:12 That was my question.
01:07:13 Did you tell him you were recording him or not?
01:07:17 I can't tell you if I did or not.
01:07:21 The contract that Mr. Kroenke typed, that Mr. Elliott and he signed, is that a standard form contract that your company uses?
01:07:28 It is not.
01:07:29 How is it different?
01:07:31 Well, I mean, this is a simple agreement with a simple man, right?
01:07:34 So Mr. Elliott likes to do things on a handshake agreement.
01:07:38 which which is fine and dandy but we're talking real-world money and expense that we're gonna have so we wanted to just have one step up keeping a simple you know one step up from a handshake and just you know here's the bullet points of the big picture stuff we talked about here's our goals both parties signed let's let's rock and roll when you said mr. Elliott simple what do you mean by that well that he's a he's a gold miner Dan Creek with limited resources just like you said
01:08:10 Did you tell the jury that first and foremost, the purpose of the agreement was to develop an exit strategy for Randy Elliott?
01:08:18 That's one of the joint venture's goals.
01:08:20 That's correct.
01:08:28 You talked about the mobilization to McCarthy.
01:08:32 And I think your testimony sort of there's a gap because you said that you and your team got everything to Randy's staging area in McCarthy.
01:08:39 Do you recall that?
01:08:41 Yeah.
01:08:41 What happened from Randy's staging area in McCarthy to get the equipment and the personnel out to Dan Creek?
01:08:47 That's where the real fun starts.
01:08:49 So Dan Creek is 10 ish miles from McCarthy.
01:08:53 So the 60 mile dilapidated road to get to McCarthy and you thought that was bad.
01:08:58 It only gets worse.
01:09:00 So we needed to get stuff to Randy staging area and
01:09:04 essentially needed to track the equipment some stuff can drive right that which can go five to ten miles an hour but the other equipment which is a track equipment which is painfully slow needed to be driven and tracked and going like this on a riverbed on the Nizina River for however long it took and multiple river crossings to get it to Dan Creek proper so that's the second part of the mobilization from McCarthy to Dan Creek were you involved in that part of the mobilization no sir
01:09:35 Do you know who from your company was involved in that part?
01:09:40 Travis Turnbull was.
01:09:41 Okay.
01:09:42 And what role did you understand that Mr. Elliott played in moving all that equipment, all that personnel, all that stuff that you had assembled at your yard?
01:09:50 Who was responsible in directing to get that stuff to Dancrete?
01:09:53 Mr. Elliott.
01:09:55 How did it go?
01:09:57 Well, so I mean, there were multiple trips there and back.
01:10:00 So sometimes it went good.
01:10:02 Sometimes it didn't go so good.
01:10:04 Okay.
01:10:05 Had anyone in your company ever moved equipment across the Nizina River before that time?
01:10:13 No.
01:10:13 Okay.
01:10:14 Whose fuel was being used to move all that equipment across the Nizina River?
01:10:18 The Joint Ventures fuel.
01:10:20 Did your company provide fuel?
01:10:22 No.
01:10:22 Randy was to provide the fuel for the endeavor.
01:10:26 You use the term joint venture.
01:10:28 What do you mean by that?
01:10:28 I mean, we have a joint venture between Randy and Remote Alaska Solutions for our effort to go out here for the purpose of sampling and mining.
01:10:38 I don't want to argue semantics with you, but how is a joint venture different than a time and materials contract, if you know?
01:10:43 I don't know.
01:10:45 They're not different?
01:10:46 I said I don't know.
01:10:47 Okay.
01:10:51 The Daily reports, and you had a chance to look at some of those, those are exhibit 11.
01:10:56 Do you recall that testimony?
01:10:57 I do.
01:10:59 I want to make sure the jury understands what they're looking at when they receive that.
01:11:03 If I represent to you that there's 18 pages of daily reports from the 2020 mining season at Dan Creek, would that be right?
01:11:10 I don't remember how many pages there are, but around thereabouts.
01:11:14 May I approach the witness room?
01:11:15 No.
01:11:16 Okay.
01:11:17 I'm going to show you what's been marked as exhibit 11.
01:11:30 I did, yes, Your Honor.
01:11:31 Do you have a chance to look at that, Mr. Clark?
01:11:34 Yeah, is there a specific page?
01:11:36 I'm just asking, would you agree that there are 18 pages?
01:11:49 There are 18 pages, President?
01:11:50 Have you reviewed this before today, this exhibit?
01:11:56 It looks different from, I mean, a different footer on it, but yeah, I mean, the dates look correct, so I would say that I have reviewed this.
01:12:02 Do you believe that Exhibit 11 contains all of the daily reports that your company prepared in the 2020 Dan Creek mining season?
01:12:10 Yes.
01:12:11 Is there another place that daily reports might have been sent that are not encompassed in Exhibit 11?
01:12:18 No.
01:12:19 Okay.
01:12:20 You told the jury a few moments ago that it was of the utmost importance that these reports be submitted daily.
01:12:28 Would you agree?
01:12:30 Generally speaking, in best practice, daily.
01:12:33 So sometimes it might take the next morning until the previous day gets entered, but yes.
01:12:39 What kind of training do your employees get with regard to the daily reports?
01:12:43 It depends on the caliber of employee.
01:12:45 So our superintendent and field managers would get
01:12:52 Some of these guys are older and technologically have difficulties, so I make things custom catered to them to say, here's a bunch you need to push, here's what you need to get, and then just type out what happened for me and then hit submit.
01:13:06 So different people get different levels of instruction with how to do the daily reporting that I need.
01:13:13 Are your employees trained to omit information from their daily reports?
01:13:18 Absolutely not.
01:13:19 What are they told they're supposed to include in their daily reports?
01:13:23 Big picture stuff.
01:13:24 I mean, I need to know what, you know, paint the picture of what happened that day, right?
01:13:29 The good, the bad, you know, milestones hit, obstacles, you know, obstacles that were encountered, conversations had, if there was any issues, any injuries for, you know, that's really important.
01:13:44 So just essentially just
01:13:46 is, to the best of their ability, painting the picture of what happened that day.
01:13:51 From the perspective of your company, the company that you are currently vice president, you were general manager in 2020, do you believe Exhibit 11 is the best record of what happened at Dan Creek in 2020?
01:14:01 I do.
01:14:07 I'd like you to turn to Exhibit 10, if you could.
01:14:09 It's right in front of you.
01:14:12 It's the three-page document.
01:14:15 that encompasses your time?
01:14:17 Yes, sir.
01:14:17 I'm on page one.
01:14:18 Okay, page one.
01:14:20 What was the date of the first agreement between Mr. Elliott and Mr. Kroenke?
01:14:25 May the 5th.
01:14:25 Okay.
01:14:26 Could you look at page one?
01:14:29 Can you count up the number of entries for time that you worked before May 5th?
01:14:51 There are 16-day daily entries of miscellaneous hours before May 5th.
01:14:58 Those are hours that you entered?
01:15:00 That's correct.
01:15:01 So, Exhibit 10, that reflects the time that you and Mr. Kroenke spent pursuant to the agreement, didn't it?
01:15:10 Or doesn't it?
01:15:11 That's correct.
01:15:12 Okay, and you presented this, either directly or indirectly, you presented this bill to Mr. Elliott as expenses that he has to pay for, right?
01:15:19 That's correct.
01:15:20 Why are you charging Mr. Elliott for work that you did before you had an agreement with him?
01:15:24 I mean, this, again, so this dates back to the, I said, early April.
01:15:29 So I went back to record the time and effort that I had into this while Seth was explaining to me what was going on.
01:15:37 So, I mean, there were multiple casual conversations with Mr. Elliott before we sat down and put pen to paper.
01:15:44 In this instance, that time is time spent away from me managing other projects, so of course it's going to be charged to this endeavor.
01:15:53 Did the agreement that Mr. Elliott signed say anything about paying for your time or Mr. Kroenke's time before May 5th?
01:16:00 Specifically not, no.
01:16:01 Okay.
01:16:02 At the end of Exhibit 10 on page 3, could you turn to that, please?
01:16:12 You said that there's a standard 20% profit and overhead that you added to the time that you and Mr. Kroenke worked, is that right?
01:16:17 That's correct.
01:16:18 Is that reflected on Exhibit 10?
01:16:21 It is.
01:16:21 How much money did you charge Mr. Elliott for profit and overhead?
01:16:23 $16,490.
01:16:23 Please turn to Exhibit 5, Mr. Clark.
01:16:26 I'm there.
01:16:26 Okay.
01:16:38 Did you charge Mr. Elliott again for profit and overhead for your time and Mr. Kroenke's time on Exhibit 5?
01:16:47 There is a profit and overhead line item there.
01:16:49 That's correct.
01:16:49 How much money did you charge Mr. Elliott for profit and overhead?
01:16:57 $102,728.89.
01:16:57 Okay.
01:17:00 You can set that aside if you would, Mr. Clerk.
01:17:02 The testimony that you gave through Mr. Brzezinski's questioning about what was happening out at Dan Creek,
01:17:08 That information that you just conveyed to the jury, that came from the daily reports in Exhibit 11, didn't it?
01:17:14 I would say 80% of it came from the daily reports.
01:17:18 The rest of it was information that I was either out on site or that I got back from Seth as a recap of his time on site.
01:17:26 He was out there more than I was.
01:17:27 How much do you think you were out at Dan Creek in the summer of 2020?
01:17:30 I think I took four trips maybe.
01:17:33 What did you do when you were out there?
01:17:35 again the first time I was out there was a discovery flight see what we're getting into see where it was see what was out there to see what we would need and then just to get a general feel of the property you know this is something that we're potentially gonna gonna own someday so let's see what the heck it looks like the next trip out there would have been you know probably on a grocery run you know flying out materials
01:17:58 Bottles of acetylene and oxygen that Travis was going through like candy and then again I went out there probably I think the last time I was out there was to have another meeting meeting of the vines with Seth Travis Frank myself and Randy okay with that meeting have been on or about July 7th I don't recall do you think it was in July
01:18:24 Well, I mean, we signed the first agreement in May.
01:18:26 We made it till the second agreement, which was in June.
01:18:30 And then things would have went on for about another month before expenses were going up and no gold's being recovered.
01:18:35 So a month later in July makes sense, yeah.
01:18:38 Okay.
01:18:39 The meeting that you had at Mr. Elliott's, was this in Mr. Elliott's home at Dan Creek?
01:18:45 It was in, yeah, in his bunkhouse.
01:18:47 Okay.
01:18:48 And did you record that meeting?
01:18:50 I don't, no, I did not.
01:18:51 You did not record it?
01:18:53 I don't, no.
01:18:57 I don't believe that I did, no.
01:18:58 Do you know if Mr. Kroenke recorded it?
01:19:02 No.
01:19:02 Okay.
01:19:07 Do you think details matter?
01:19:09 Oh, details are everything.
01:19:10 Why?
01:19:11 Do you believe that the records that were submitted to Mr. Elliott for him to pay and that are now being submitted to the jury for him
01:19:42 Do you believe that those details are accurate in those records?
01:19:47 100%.
01:19:47 100%.
01:19:48 100%.
01:19:48 Including the payroll records?
01:19:50 Including the payroll records.
01:19:53 My last area of questioning here is you were asked about the fuel that was put into the 200 class excavator.
01:20:00 Do you recall that testimony?
01:20:02 I do.
01:20:03 Do you know who put the fuel into the excavator that was owned by your company?
01:20:07 Multiple people.
01:20:08 Do you know who it was?
01:20:11 specifically no me could have been any in anybody out there are you saying mister Elliott put incorrect fuel into your excavator I didn't say that do you know if he did or didn't I couldn't tell you I'm sure he put fuel in it at some point in time one of the issues that the jury has to grapple with in this case is the condition of mister Elliott's equipment out at Dan Creek right now mister Brzezinski described it as junk would you agree with that it was junk
01:20:38 in trying to be favorable to Randy i mean he's a gold miner so the standard for the equipment that he would need would be much different from what we would need so he had multiple pieces of big impressive equipment that was glorious one day but essentially he bought it for just just higher than scrap value at the ritchie brother auction to go out there and serve a purpose i mean you know just barely running but good enough to go gold mining with right just needs to get dirt from here to here
01:21:04 You said that the equipment that Mr. Elliott had was good enough for gold mining, right?
01:21:09 In big picture, yes.
01:21:12 But it wasn't good enough for the commercial construction work that you typically do?
01:21:15 No.
01:21:17 Those are my questions.
01:21:17 Thank you, Mr. Clark.
01:21:19 Thank you, Mr. Captain.
01:21:20 Redirect, Mr. Brzezinski.
01:21:28 Let's just address things in reverse order.
01:21:31 That way we can remember better.
01:21:32 Help yourself to some water.
01:21:33 Thank you.
01:21:56 was the equipment that your crew found at Dan Creek provided by mr. Elliott good enough for the purpose that your guys were out there for it was not I mean so we all heard that you know the previous season right these guys are out there
01:22:16 Seth kroenke v Treasure chest LLC
01:22:37 Mr. Campion asked you about putting fuel into the sand.
01:22:39 How many fuel tanks were out at the mine?
01:23:07 Let me rephrase that.
01:23:08 The fuel that was going to be used for the equipment that Travis and Frank were going to be using came from where?
01:23:18 It came from a company in McCarthy called Rokon, who's the fuel source.
01:23:23 It came from Randy.
01:23:24 Randy provided the fuel to Dan Creek.
01:23:26 Let me stop you.
01:23:27 Was there one specific place where the fuel was stored at the mine?
01:23:35 I don't recall if there's one place or two places so that we'd limit the amount of time because again this equipment can't track very well to the fuel so there could have been a couple of different vessels.
01:23:45 Is it more important who put the fuel in or what the fuel was?
01:23:48 What the fuel is there.
01:23:49 I mean you've got gasoline for the gasoline stuff, you've got diesel for the stuff or heating oil, all this old non-emission control equipment can run off of a very
01:23:59 a cheaper heating oil, essentially, and then this new Tier 4 machine needed to have ultra-low sulfur diesel fuel.
01:24:07 Okay.
01:24:08 Then there's a lot of discussion about time and expenses.
01:24:13 You kept track of your time as it directly related to this project, is that right?
01:24:17 That's correct.
01:24:17 So all of your time on that spreadsheet was related
01:24:22 to the Dan Creek mind project correct every time I take a phone call every time I thought you know thought about needing to coordinate something I mean that time is all accurately recorded and let me turn your attention to that to our screen once again okay and the amount that is being that was billed to Randy is it the full amount of your time and Seth's time
01:24:51 It's not.
01:24:53 That summary sheet was created before I had time to even create this one to its totality in the aftermath, so it's significantly less.
01:25:03 I'm going to ask you to do a little rough math for me.
01:25:06 And you don't get a calculator.
01:25:08 You just have to do it off the top of your head.
01:25:10 What's the grand total there?
01:25:12 The grand total is $98,940.
01:25:13 All right.
01:25:13 Let's go to Exhibit 5.
01:25:14 What's the grand total here?
01:25:20 20 plus 35, so 55.
01:25:23 What percentage is 55 of 98?
01:25:26 Less than 50, roughly 40%.
01:25:27 No further questions.
01:25:31 Thank you, Mr. Brzezinski.
01:25:32 Thank you, Mr. Clark.
01:25:33 You can step down.
01:25:35 Folks, why don't we take a 10-minute break here, let everybody stretch, use the restroom, and we'll pick up with our next witness.