07/15 11:00
00:00:06 Okay, folks, we're back on record in the Kroenke and Treasure chest matter 3AN20-0862Civil Parties and Council.
00:00:13 Our present jury is out.
00:00:17 Thank you, Mr. Bedinger, for forwarding the depot designations.
00:00:20 Those did come in.
00:00:21 They came in over 4th of July, so that's why I overlooked them.
00:00:24 So I've got those now.
00:00:27 I also understand from Madam Clerk that you've added the audio from July 7 as Exhibit 27.
00:00:36 Yes, your honor.
00:00:37 And Mr. Campion, do you want to be heard on that?
00:00:39 I guess I'll make the same objection Mr. Bettinger did to me last week, and I'll object.
00:00:43 It wasn't on the exhibit list.
00:00:44 I think it's, I don't know what they're going to play from it.
00:00:47 I don't know if they're intending to play all of it.
00:00:49 I believe there are two recordings from July 7th.
00:00:52 I don't know what portion of them they intend to play.
00:00:54 So I guess I'd reserve my objection unless until they introduce it, and maybe I'll have a better sense of what they're trying to get in front of the jury.
00:00:59 Okay.
00:01:01 Mr. Bettinger, do you want to be heard?
00:01:04 Well, Mr. Campion is going to make my objection, and he won the argument last time.
00:01:09 I will make his original profit.
00:01:11 I'll cut that all short.
00:01:13 I mean, you all are aware of the audio, so surprise doesn't enter into it.
00:01:18 If there are substantive objections to the audio, I'll consider those, but I think given everything we've heard, I'm going to allow the audio, assuming it's obviously relevant.
00:01:30 But tell me from a practicality, what do you plan to do with it, Mr. Bettinger?
00:01:36 Because the message I had from Madam Clerk was you'll bring it in tomorrow.
00:01:40 Are you intending to play it with a witness?
00:01:41 Oh, I'm sorry.
00:01:43 I'm hooked up to the TV.
00:01:44 I intend to play it with Mr. Kroenke's rebuttal.
00:01:47 What I'll be bringing in tomorrow is a copy of the audio on a flash drive for the court to meet the court's prior request for a copy of all exhibits, digital
00:01:57 in digital format.
00:01:58 Got you.
00:01:58 Okay.
00:01:59 All right.
00:01:59 So, Mr. Campion, any further?
00:02:01 No, Your Honor.
00:02:02 Thank you.
00:02:04 Okay.
00:02:04 So you're going to play it through Mr. Kroenke here in court today?
00:02:07 Yes, Your Honor.
00:02:08 And just from a practical standpoint, how long are we talking about?
00:02:12 Are you going to play the entire piece?
00:02:15 No.
00:02:15 I think we have maybe four to five minutes total.
00:02:20 That you intend to play?
00:02:22 Yes, Your Honor.
00:02:22 And how long is the audio in total?
00:02:26 As Mr. Campion stated, so there's a number of meetings between the parties.
00:02:32 Each of those meetings has a few different audio files that are made more manageable, smaller sizes.
00:02:38 That's how we presented them to Mr. Campion and Discovery.
00:02:42 And I think this audio file is maybe half an hour.
00:02:45 I think the entire file may be half an hour long.
00:02:49 But we don't intend to play a full half an hour of
00:03:01 I want to make sure that we're clear for the record what the jury is going to have access to because if you've got a 30 minute audio that's introduced and you only play four or five minutes that's one thing but they can they can listen to the entire audio
00:03:15 My, unless the court has a different preference, my intention was to only introduce the audio that we're playing as evidence in court.
00:03:23 Mr. Campion on cross has the ability to put it into further context if he wishes.
00:03:28 Mr. Campion?
00:03:31 My expectation with our exhibit that we introduce, I think it was exhibit I, I understood that the jury
00:03:36 has the right to listen to the whole exhibit.
00:03:38 I've introduced it.
00:03:39 I don't object to that.
00:03:40 I would expect the same would be applicable to Exhibit 27 for the plaintiff.
00:03:44 If the jury wanted to ask for a computer and listen to that, they should have that opportunity if they want to.
00:03:48 Mr. Battinger?
00:03:49 I have no problem.
00:03:50 If Mr. Campion, like I said, wants to put contacts around the snippets we're putting in, we can do that.
00:03:55 Alternatively, if we want to just use snippets in court and make the entire audio available to the jury in deliberations, that's fine as well.
00:04:01 Okay.
00:04:02 Here's my ruling.
00:04:03 I think
00:04:05 given the way the evidence has been presented in this case there is much that has been touched on that they have not actually I mean for example the text messages you've got 60 or 70 or 80 pages of text messages you haven't been through all of those but they have access to those because they're admitted exhibits I think the same ruling applies to the audio they get the entire audio even though they may have only heard a snippet of it they can choose to listen to it or not as they're going through the evidence so
00:04:34 if on your flash drive you bring the entire audio but let's make sure we're clear from what I see on here this is the July 7 2020 meeting and is there more than one or just that one audio I believe there's multiple audio files I have that are dated July 7th but but only one that you intend to introduce as an exhibit
00:05:06 Do you know which one it is?
00:05:07 I think I have snippets from two recordings from that meeting.
00:05:21 Snippets that you intend to play?
00:05:23 So you're going to have two different recordings?
00:05:27 That's correct, I believe.
00:05:37 Okay, as long as we know what they are.
00:05:42 Campion, you're shaking your head.
00:05:43 It sounds like Mr. Benninger doesn't know he's playing.
00:05:45 When I represented, I was playing Gazzetta and I, I told the court and opposing counsel where I was going to start and where I was going to end.
00:05:52 I know exactly what we're playing.
00:05:53 I know what date they're from.
00:05:54 Mr. Kroenke is going to lay the foundation for it.
00:05:57 We're doing the same thing Mr. Campy did.
00:05:58 What we're trying to do here is to give the jury context and access to more if they want more.
00:06:04 I'm willing to include as much audio as the court wants for the jury, but we're going to play only the pieces we want during our rebuttal.
00:06:10 All right.
00:06:13 As long as it's identified by exhibit number, exhibit 27 is your audio, give me the start and stop times of the audio.
00:06:22 so that we're clear on the record what that's going to be.
00:06:25 Mr. Campion, if you, for completeness, want further audio, you can make that application.
00:06:30 Thank you.
00:06:32 All right.
00:06:38 Anything else we need to do before we bring the jury back?
00:06:42 Dr. Ross, thank you, Your Honor.
00:06:43 Mr. Bedinger?
00:06:44 No, Your Honor.
00:06:44 Okay.
00:06:47 So you're going to start with Mr. Kroenke?
00:06:51 Let me look at it real quick.
00:06:55 So it's Armstrong page 40
00:07:22 It's just page 40, lines 3 through 6.
00:07:25 That's it.
00:07:26 We've slightly expanded lines 1 through 6.
00:07:29 I did inform Mr. Campion of that during our break.
00:07:31 All right.
00:07:35 Hold that back.
00:07:36 Let me just... Judge, if you don't have a copy with you, I can give you one of mine.
00:07:43 You got it right there?
00:07:43 Yes, sir.
00:07:43 Let me just take a look at it.
00:07:44 I was going to pull it up electronically.
00:08:06 So just one through six on page 40.
00:08:08 That's it.
00:08:11 Mr. Campion, are you going to want further testimony?
00:08:18 I'm sorry, from whom, Your Honor?
00:08:19 On Armstrong?
00:08:20 No, Your Honor.
00:08:21 Just lines one through six of page 40.
00:08:23 I'm looking at page 40, one through six.
00:08:25 No, I don't intend to go farther than that, thank you.
00:08:27 I don't see a need to have you go through the back and forth then for purposes of that, if that's all we're going to do.
00:08:33 I think if you would just explain that Mr.
00:08:37 Armstrong's deposition was taken the date and time that it was taken and you're going to read a very limited portion would you like me to make that statement with the court like to make that statement by the deposition you can do it because it's your deposition
00:08:51 And just to make sure we don't have any communication, it's page 40 of the deposition.
00:08:55 It's exhibit 22, page 41, because we gave the cover sheet a page number, so it's inconvenient.
00:09:01 The numbers don't match up exactly.
00:09:03 But the page report is right.
00:09:04 Page 40 of the deposition.
00:09:06 That's fine.
00:09:06 Page issues.
00:09:08 We're clear?
00:09:09 Yes, sir.
00:09:09 Okay.
00:09:10 Thank you.
00:09:10 All right.
00:09:16 So I will simply tell the jury that you have a portion of a deposition you're going to read and then we'll take up live testimony.
00:09:21 Mr. Brzezinski, are you going to announce the date of the deposition?
00:09:25 Yes.
00:09:38 I know Madam Clark is out, but what that means is I will add a procedural instruction for the jury on use of deposition testimony in addition to an instruction on video testimony that we've just heard, because I don't think either of you had one of those in there.
00:09:54 And, Your Honor, is it okay if I say this is a deposition of Mr. Armstrong, who is, as you've heard, a member of FUBAR?
00:10:00 Is that pushing it?
00:10:01 I just wanted to have it so it's clear and we don't get more notes.
00:10:04 That's fine.
00:10:04 Thank you, sir.
00:10:10 Please rise for the jury.
00:10:43 Welcome back, everybody.
00:10:44 Please be seated.
00:10:45 All right, folks, so one of the things that I will be instructing you about when I give you the court's closing instructions is deposition testimony.
00:11:02 Deposition is a statement taken by a witness outside of court that may be used for court proceedings.
00:11:08 Mr. Brzezinski is going to present some deposition testimony in lieu of actually bringing the witness in.
00:11:14 It's a limited piece.
00:11:15 He's just going to read to you a portion of the testimony.
00:11:19 And then I'll give you instructions when we close the case tomorrow on how to evaluate that testimony.
00:11:24 Mr. Brzezinski.
00:11:25 Thank you, sir.
00:11:31 This is the deposition transcript of Charles Armstrong, which was taken on January 9th
00:11:38 And as we've heard, Mr. Armstrong is part of the FUBAR operation.
00:11:47 And please excuse my reading.
00:11:51 How do you know they mined gold?
00:11:56 Because I've seen it.
00:11:59 And where did you see them mining gold?
00:12:06 Where did I see them mining?
00:12:10 Question.
00:12:11 Yeah.
00:12:11 What part of the mine?
00:12:14 Answer.
00:12:15 Exactly where I am mining right now.
00:12:19 That's it.
00:12:23 That concludes the testimony from Mr. Armstrong that you're going to be presenting.
00:12:27 Correct?
00:12:28 Yes, it is.
00:12:31 And did you have additional witness testimony?
00:12:33 I do, Your Honor.
00:12:33 Very briefly, I would like to recall Mr. Kroenke for rebuttal.
00:12:37 Kroenke, if you'd come forward.
00:12:48 And, sir, you were previously sworn in, so I'm not going to re-swear you.
00:12:51 And, again, I'll just remind you you're under oath.
00:12:52 Okay.
00:12:53 You can have a seat.
00:12:53 Thank you.
00:12:54 Thank you.
00:12:54 Mr. Brzezinski, you may proceed.
00:13:00 Thank you, sir.
00:13:04 What was your goal for this project?
00:13:18 It was multiple fold.
00:13:22 My goal was to evaluate, test and evaluate the mine, to spend the season mining,
00:13:32 and then ultimately to give Mr. Elliott the exit plan and purchase the mine.
00:13:39 Was it clear to everyone that you intended to mine as well as test and evaluate?
00:13:46 Absolutely.
00:13:47 There's no other reason that I would send my lead fabricator and all of those supplies to Dan Creek to build a processing plant.
00:13:59 A processing plant.
00:14:00 It was the biggest plant that Dan Creek had seen and There's no other reason to to put forth that kind of effort if the intention wasn't to mine If you were just going to test Was there other equipment that you could have used just to do that?
00:14:18 Sure, we could have used a small excavator the Sani and the Frank's testing plant that I think there's been a lot of testimony about that and
00:14:28 That was absolutely adequate to do the testing.
00:14:32 And Frank's testing of the piece of equipment that Frank had is called a?
00:14:38 Trommel.
00:14:40 We've just heard that term, so I want to be consistent.
00:14:50 The big blue processing plant, how much larger is it than the trommel?
00:14:57 significantly I mean if the trommel can maybe do 5 to 20 yards a day by yards you mean yards of material process that many yards material you know our hope was that the the blue processing plant could be could do 200 okay and is that why the 400 plus excavators are necessary correct
00:15:27 For those of us who aren't in the construction industry, describe the difference between the bucket size of a 400-class excavator and the Sani.
00:15:35 I mean, a 400-class excavator is, I think Randy testified, I mean, it's the size of this box, three yards probably.
00:15:45 The size of the Sani is, you know, maybe a quarter yard.
00:15:49 So it's pretty small.
00:15:53 I don't see anything that I could, it's pretty little.
00:15:59 It's a mid-size.
00:16:00 They certainly get a lot smaller than that, but it's the appropriate size to feed a plant or to test.
00:16:08 Did you discuss your desire to mine with Mr. Elliott?
00:16:15 From the beginning, yeah.
00:16:17 How often did you do that?
00:16:19 Every meeting.
00:16:20 Every meeting we had in person, every phone conversation we had, or at least for the most part.
00:16:25 I'm sure there's times that we didn't discuss that topic, but
00:16:29 It was a focal point of the relationship.
00:16:31 It was a focal point of the contract and of our intentions.
00:16:37 Why is it the focal point or why was it the focal point?
00:16:40 Because it was the method that we were going to use to make sure that the expenses were paid.
00:16:50 Could there be any other reason to build Big Blue that you can think of?
00:16:57 No other reason for us.
00:16:59 I mean could you use it for anything else no I mean the the big plant was built to process and mine the dirt at Dan Creek because we all know that construction equipment has multiple uses does Big Blue have multiple uses I mean it's a processing plant I suppose you could
00:17:23 considering the massive demode efforts that we've all spoke about I mean you could move it to a different mine but no that the the intent the only intent of that piece of equipment is to is to process material and to extract gold you said you had conversations with mr. Elliott about using big blue and mining and you also sent some texts regarding that didn't you many
00:17:52 And the jury will have that exhibit and we don't need to go through it.
00:17:56 It's all laid on in the text multiple times that I asked to go back to the area that Frank stripped and allow us to mine.
00:18:05 Why are you asking to go back?
00:18:08 Because he had already asked us to leave.
00:18:10 So he would, there was a lot of conversations and he would tell us not to worry about the expenses
00:18:20 and during one of those conversations he suggested that we give the blue plant to his other crew FUBAR and that they would move on to the area or that they would use Big Blue and they would satisfy the expenses so we were trying to get along and move the relationship forward so we agreed we agreed to relinquish the blue plant
00:18:49 This is the middle of August or a middle of July sometime and so after that point multiple times I asked if we could go back and get the blue plant and mine the area that we had stripped.
00:19:01 Mr. Elliott testified that you kept threatening him with lawyers and lawsuits.
00:19:06 They weren't threats.
00:19:07 They were always the second or third or fourth option in a list of options.
00:19:12 The first option was always
00:19:14 Please follow the spirit of the agreement.
00:19:16 Please allow us to recover our expenses and mine the area that we had stripped or even the areas that we had tested upriver.
00:19:23 It was always an option.
00:19:24 It was never a threat.
00:19:26 And did you want to go back for the entire season?
00:19:30 What did you want to do if you were allowed to go back?
00:19:33 At one point, I even suggested, just give us 30 days.
00:19:35 Just give us 30 days in this area to try to recover our expenses.
00:19:39 That was option number one.
00:19:41 And it was always, the offers were always in the spirit of trying to reconcile this.
00:19:45 This is the last place that I want to be and I'm sorry that it's come to this.
00:19:53 Now, you heard Ms.
00:19:54 Luna testify that her company, FUBAR, didn't use the Big Blue plant until you left.
00:20:03 Is that correct?
00:20:04 It's not correct.
00:20:05 Why isn't it correct?
00:20:07 I have an email or a text picture from Randy from August 20th
00:20:13 We have to switch from Zoom to HDMI.
00:20:45 All right, so this is exhibit 16.
00:20:53 Can you tell us what- Which page are you on?
00:20:55 I'm on page 60 of 67, exhibit 16.
00:20:58 That's right, you have that right in front of you.
00:21:03 Could you tell us what we're looking at and what we're seeing?
00:21:05 And we can move it up and down and enlarge it as you need to.
00:21:08 Can I stand?
00:21:08 Of course.
00:21:11 So this is a text from Randy and a picture from Randy.
00:21:15 Randy says that this is the first day of use for this plan he's referring to the blue plant if you could scroll off please so this is the blue plant the plant that we built that the FUBAR crew is now operating you can see it's August 20th and there's been a lot of testimony that they've worked on this plant for numerous days or weeks to get it ready and to get it set up so I mean my testimony is that we relinquish the blue plant on or around
00:21:44 July 21st, which I think is consistent with the text messages.
00:21:50 And that's well before we left and we were still trying to reconcile this for multiple weeks.
00:22:00 So your expenses were a big issue, right?
00:22:04 A huge issue.
00:22:04 $540,000?
00:22:06 Yes.
00:22:06 Okay.
00:22:06 And you told us that you discussed
00:22:15 Those expenses with Mr. Elliott often?
00:22:18 Nearly Every meeting.
00:22:21 And we brought proof of them to nearly every meeting.
00:22:24 We didn't just talk about them.
00:22:25 We showed them.
00:22:27 Did you have a meeting with Mr. Elliott on July 7th?
00:22:33 We did.
00:22:34 Okay.
00:22:34 And where was that meeting held, sir?
00:22:38 I don't recall exactly that meeting place.
00:22:40 I believe it was our office.
00:22:43 Your office would be the?
00:22:44 Office in Pullman.
00:22:47 And who was present for that meeting?
00:22:50 It was Kevin and myself and Randy for sure, possibly Frank was there, but likely just the three of us.
00:22:56 Okay.
00:22:56 And what was discussed at that meeting?
00:23:01 July 7th there was some strain already in the relationship.
00:23:08 We had, I could start to see what was happening.
00:23:13 and I made it very clear that these expenses need to be covered and I had multiple plans to get to do that and it was always suggesting ways to make sure the expenses were paid to allow us to operate under the agreement and Randy consistently told me not to worry about it don't worry about the expenses the expenses will be paid
00:23:47 And we've heard testimony that Mr. Clark records your meetings.
00:23:50 Is that correct?
00:23:51 Yeah.
00:23:54 And that meeting was recorded?
00:23:56 It was.
00:23:56 Okay.
00:23:57 And did you have a chance to listen to it?
00:23:58 I have.
00:23:59 Okay.
00:24:01 We'll now play the recording from July 7th meeting.
00:24:06 We'll start for the record at 17 minutes, 40 seconds.
00:24:10 And I believe the stop will occur at 18 minutes, 27 seconds.
00:24:15 Exhibit 27.
00:24:22 Yes.
00:24:55 can you tell us what we just heard Randy excuse me can I get a glass of water please
00:25:30 Good idea.
00:25:33 Thank you.
00:25:33 So please tell us what we just heard.
00:25:59 So that was Randy doing all the talking.
00:26:05 Randy's very good at talking.
00:26:06 He's a very good storyteller.
00:26:07 So that was Randy expressing one of many times, dozens of times to not worry about the expenses.
00:26:16 He'll cover the expenses.
00:26:18 The expenses will be covered.
00:26:20 And which expenses are we talking about?
00:26:23 My expenses.
00:26:25 I mean, in this case, he
00:26:28 I mean, we were talking about my expenses because we were concerned about how we'd get our expenses.
00:26:34 And where was the money for these expenses coming from?
00:26:37 From my pocket.
00:26:38 And what did Mr. Elliott suggest it come from?
00:26:42 From a coffee can sitting on his desk or the ground.
00:26:47 Okay.
00:26:51 Look at the recording, listen to the recording from the same meeting, same exhibit.
00:26:56 We'll start at 1824 and end at 1837.
00:26:59 I'm not, I'm not, I'm not after getting rich on this.
00:27:05 I'm after, I don't want to go naked on this, this year.
00:27:08 So, I told you that you wouldn't.
00:27:12 What I'm asking you to do now is let me take care of that.
00:27:15 You have to have the faith that I'm going to pay you and I have to pay you.
00:27:19 Okay.
00:27:20 Can you tell the jury what we're listening to?
00:27:24 It's me starting off saying very clearly I don't want to go in the negative on this.
00:27:30 And by that you mean?
00:27:32 Lose money.
00:27:36 That was, again, the intent was to test and evaluate for a purchase but to mine so that we didn't lose money.
00:27:45 And what was Mr. Elliott's response?
00:27:47 To have faith in him.
00:27:49 to trust that he will cover these expenses.
00:27:50 Okay.
00:27:53 Let's go ahead and turn to the same exhibit, the recording.
00:28:04 Let's go to recording number four, which starts at 2 minutes 29 seconds and 3 minutes 38 seconds.
00:28:29 Put that into context for us.
00:28:32 He's suggesting that we give the blue plant.
00:28:36 This might have been the first place where he suggested giving the blue plant to the contractors.
00:28:41 He's suggesting giving the blue plant to the contractors that they can run two plants
00:28:45 And I don't remember, I didn't hear the dollar figure.
00:28:48 I don't know if he said a million dollars.
00:28:51 Let's not guess.
00:28:51 Let's just play that again and listen for that statement.
00:28:58 Well, I'm setting this up.
00:29:00 If they can run two plants with one conveyor and a hole on each one, we're going to have a million dollars worth of gold.
00:29:06 I'll pay this off.
00:29:07 I'll give you a profit on it, and that could be it if that's what you want to do.
00:29:12 Okay, were you able to hear at that time?
00:29:13 I did.
00:29:14 It was a million dollars worth of gold, two excavators, two plants.
00:29:21 If that's something I wanted to do.
00:29:23 Is that something you wanted to do?
00:29:26 If he could have followed through with that, yes.
00:29:28 That's why we ultimately relinquished the blue plant to him is because of these kinds of promises.
00:29:44 Now, my hearing may have gone by the way of my hairline, so did I hear there was a term at the end, profit?
00:29:54 Did you hear that?
00:29:55 Or should we play that again?
00:29:57 Yeah, actually, if you could, that would be helpful.
00:30:01 That's not a great speaker.
00:30:02 Well, I'm setting this up.
00:30:04 If they can run two plants with one conveyor and a hoe on each one, we're going to have a million dollars worth of gold.
00:30:10 I'll pay this off.
00:30:11 I'll give you a profit on it.
00:30:12 And that could be it, if that's what you want to do.
00:30:16 What profit is he referring to?
00:30:19 Profit on my expenses.
00:30:19 OK.
00:30:24 And let's, there's one more clip.
00:30:28 Last year, we worked on a broken
00:30:31 For the record, that is going to be... Just one second, Judge.
00:30:45 The same exhibit, we're going to be at 229 and 338.
00:30:49 Last year we worked and it was broken down this spring.
00:30:57 They only mined the hydrogen.
00:30:59 Seth kroenke v Treasure
00:31:10 Sethkroenke.com
00:31:31 All the days you run, how much do you get each day per shift?
00:31:35 They start at 40 grams.
00:31:39 They're up to 4 ounces a day now, and they'll be at 6 this month, and maybe 8.
00:31:44 And they're doing double shifts now.
00:31:46 They're going to go to 2 12s instead of 2 6s.
00:31:49 We'll see how that goes, how long they can maintain that.
00:31:52 But I really expect to get 250 ounce a goal out of that plant this coming month.
00:32:05 So fill us in on what you understood that conversation to be I Mean it was Randy describing His contractors that they're finding more and more gold that they have three months left, which is the good months and
00:32:24 that he expects his contractors with the smaller plant that's half the size of the blue plant to recover 250 ounces a month and that it will more than pay our expenses.
00:32:38 So Mr. Elliott is expecting 250 ounces per month of recovery for the next three months?
00:32:46 Was that a yes?
00:32:47 Yes, I'm sorry.
00:32:48 And I had a hard time hearing, I apologize, but
00:32:52 At the end, does he mention he's going to give you the money back, or I couldn't quite hear the last sentence?
00:32:57 Yeah, there was a lot of ruffling.
00:33:00 I actually had a hard time hearing it, too.
00:33:02 Let's just play it again.
00:33:03 The whole thing?
00:33:04 No, let's just skip to the end.
00:33:06 Yeah, to the end.
00:33:07 I don't need to hear the beginning.
00:33:09 If you go double shifts, now you're going to go to two twelves instead of two sixes.
00:33:14 We'll see how that goes, how long we can maintain that.
00:33:16 But I really expect to get $250,000 out of that point this coming year.
00:33:28 So what does he say about your money?
00:33:30 That there's no possibility that I will get my money back.
00:33:34 I'm sorry?
00:33:35 That there's no possibility that I will not get my money back.
00:33:41 And the plant he's referring to is Big Blue?
00:33:43 No, he's referring to the smaller plant, the plant that his contractors are currently operating.
00:33:48 And how much smaller is that than Big Blue?
00:33:50 Half the size.
00:33:52 So, Big Blue processes twice the amount of soil that the plant he was referring to.
00:33:59 Big Blue was built to process twice the amount of soil.
00:34:03 And he was expecting 250 ounces per month from that smaller plant.
00:34:08 Correct.
00:34:11 I have no further questions.
00:34:12 Thank you, Mr. Brzezinski.
00:34:13 Mr. Campy, for us.
00:34:14 Do you have a question with us?
00:34:17 You may.
00:34:21 Mr. Kroenke, could you open the binder before you to Exhibit 2?
00:34:36 Where do you want me to open to?
00:34:37 Exhibit 2.
00:34:41 Okay.
00:34:42 Again, the jury's heard this, but this is the second agreement between you and Mr. Elliott.
00:34:47 Is that right?
00:34:50 Yes.
00:34:50 The June 7th, 2020 agreement?
00:34:54 Would you agree with me that this was the contract that was in play during your July 7th meeting with Mr. Elliott?
00:34:59 Yes.
00:35:00 Can you tell me where on your doc- the doc- you prepared this document, didn't you?
00:35:04 This contract?
00:35:05 Yeah.
00:35:05 Okay.
00:35:06 Tell me where on this contract Mr. Elliott's required to reimburse your expenses in July.
00:35:10 But just tell me which part of it where you're required- he's required to do that.
00:35:15 That's not in there.
00:35:16 It's not in the contract, is it?
00:35:18 No.
00:35:19 So you had a meeting with him on July 7th where you were demanding that he pay you for your expenses.
00:35:23 Is that right?
00:35:24 No.
00:35:24 What were you demanding?
00:35:26 I wasn't demanding anything.
00:35:28 You weren't demanding coverage of your expenses?
00:35:30 No, I was discussing my concern that we were being manipulated and I wasn't being allowed to operate under the agreement to capture my expenses.
00:35:40 Have you reviewed the entire recording from the July 7th meeting?
00:35:43 At one point I did, yeah.
00:35:47 Your attorneys only played snippets of that.
00:35:48 Is there anything in there that is missing that you think is relevant that wasn't played to the jury?
00:35:54 I don't know.
00:35:54 You only played a snippet the other day as well, so there may be other snippets that the jury may want to listen to.
00:35:59 Okay.
00:36:01 In that July 7th meeting, did you ask Mr. Elliott what his expenses were for the season up to that point?
00:36:07 Mr. Elliott, I'm sure, told me he did most of the speaking.
00:36:11 Were you concerned about his expenses?
00:36:13 Of course.
00:36:13 Okay.
00:36:15 In any of the text messages that you exchanged with Mr. Elliott in the 2020 mining season, which the jury will have as Exhibit 16, did you ever ask him once what his expenses were?
00:36:24 I don't know if I ever asked him.
00:36:28 Do you think he had expenses?
00:36:31 I'm sure he had expenses.
00:36:36 Can you turn that binder to Exhibit 11?
00:36:40 To which one?
00:36:41 Exhibit 11, page 6, please.
00:36:57 On July 7th, is there a daily report from your crew from Dan Creek?
00:37:02 There isn't.
00:37:03 All right.
00:37:03 And is it your testimony that after the meeting on July 7th, you had decided to relinquish the blue plant back to Mr. Elliott so he could let the FUBAR team use it?
00:37:11 Is that your testimony?
00:37:12 It is not.
00:37:13 What is your testimony with regard to when the blue plant was relinquished back to the FUBAR team?
00:37:18 I believe we relinquished it during a meeting July 21st.
00:37:23 Okay.
00:37:24 Was that meeting recorded?
00:37:25 I don't know.
00:37:26 Did you record the meeting on July 21st?
00:37:28 Not to my knowledge.
00:37:32 I believe that meeting was at Dan Creek in Randy's house so it's your testimony that on July 21st you had decided to relinquish the blue plant back to Randy so he could use it with the food bar team or for whatever reason he wanted my testimony is that we agreed do you know when it was relinquished I don't know specifically I believe it was on around July 21st at Randy's request that's when you agreed
00:38:00 I believe so.
00:38:00 Do you know when it was actually relinquished, however that was going to take place?
00:38:04 What can you define relinquish?
00:38:07 When did the FUBAR team take possession of it and start working on it?
00:38:10 I would say shortly after that time.
00:38:14 Like a day, a week, a month?
00:38:15 I don't know exactly.
00:38:17 Okay, but if there's any question, the jury can look at Exhibit 11, and that will reflect what was happening with the blue plant.
00:38:22 No, I think the texts do a good job of exhibiting what was happening with the blue plant.
00:38:26 The text between you and Mr. Elliott?
00:38:27 Sure, we talked about it.
00:38:32 When you testified earlier this trial, you said you didn't recall a job in Valdez, and then you subsequently said that you did have a job in Valdez.
00:38:40 Have you had a chance to think about the job in Valdez that you sent Mr. Martin down to run?
00:38:43 Sure.
00:38:44 Do you remember the dates of that job?
00:38:46 Not specifically.
00:38:47 Do you think it was after July 21st?
00:38:50 It was a two-day job.
00:38:51 It's inconsequential, so I don't remember the exact date.
00:38:54 How long was Mr. Martin gone as a result of that job?
00:38:56 Two days, maybe three max.
00:38:59 He was only gone from Dan Creek for two to three days?
00:39:01 I didn't say that.
00:39:02 You asked how long the Valdez job was.
00:39:04 Okay.
00:39:04 How long do you think he was away from Dan Creek?
00:39:07 Mr. Martin was away from Dan Creek at various times.
00:39:10 As he testified, he had a family, he had a wife that broke her arm at one point.
00:39:15 So yeah, he needed to tend to his family first and then his job second.
00:39:20 When Mr. Martin left Dan Creek for the Valdez job, who did you leave behind to operate
00:39:26 The Blue Plant or otherwise mine or test at Dan Creek.
00:39:29 We left many employees behind.
00:39:30 We had Brandon DeVore there.
00:39:32 We had Nate Patterson there.
00:39:33 We had Sean Kenerson there.
00:39:36 We had Blake there.
00:39:37 We had Travis there.
00:39:38 We had Jacob Decry there.
00:39:40 We had multiple employees.
00:39:41 I'm asking about after Mr. Martin left for the Valdez job, who did you leave behind at that moment?
00:39:46 I don't specifically remember that date.
00:39:48 Do you believe that Mr. DeVore, Mr. Kenerson or whoever else you were describing were there after July 21st?
00:39:54 I believe that the majority of the time that we were there, we had somebody there.
00:39:59 You had somebody, one person or multiple?
00:40:01 Multiple people.
00:40:02 Okay.
00:40:04 And would you rely upon Exhibit 11, the daily reports, to reflect the personnel that you had out on site?
00:40:11 Some of the time, yeah.
00:40:11 Okay.
00:40:12 Do you think the daily reports are inaccurate whenever it comes to the crew that was out there?
00:40:17 No, I don't think they're inaccurate.
00:40:18 I just don't think the daily report was made every day.
00:40:31 How would you respond to the allegation that you didn't have a sufficient crew to run the Blue Plant, whether it be in July or August or thereafter?
00:40:38 Completely disagree.
00:40:39 Why do you disagree?
00:40:41 There's been a lot of testimony that we had the most skilled operators that Dan Creek has seen with the exception of Randy out there.
00:40:46 Two of my top guys.
00:40:48 You don't need a full crew of that.
00:40:50 You need at least one or two of those guys on site and then you need other people who can simply run excavators or follow directions.
00:40:56 We provided an abundance of that.
00:40:59 An abundance of personnel?
00:41:01 WE PROVIDED ENOUGH PERSONNEL TO ACCOMPLISH THE GOALS THAT WE SET OUT TO ACCOMPLISH.
00:41:05 THOSE ARE MY QUESTIONS, SIR.
00:41:16 THANK YOU, MR. CAMPBELL.
00:41:17 MR. PRZYNSKI, REDIRECT.
00:41:19 NOTHING ELSE, SIR.
00:41:21 THANK YOU, MR. KROENKE.
00:41:22 YOU CAN STEP DOWN.
00:41:23 THANK YOU.
00:41:23 MR. PRZYNSKI, ANYTHING FURTHER?
00:41:26 NO, SIR.
00:41:27 THAT CONCLUDES YOUR REBUTTAL.
00:41:31 All right, ladies and gentlemen, that concludes the evidence in this case.
00:41:38 So with that, we're going to take a break for the day and come back tomorrow for closing arguments, and then we're going to give the case to you for decision.
00:41:51 Let you go early today.
00:41:52 I'm going to let you come in a little bit later tomorrow because you're probably going to have a full day and I've got a couple issues to take up with the lawyers before you get here.
00:42:00 So if you all could plan to be here at 9 tomorrow, we'll get started just as soon as we can after that.
00:42:08 Again, leave your
00:42:09 Notepads here, but plan on a full day tomorrow.
00:42:13 Just as a reminder, because you'll be in deliberations tomorrow, we do give you lunch.
00:42:17 So we'll get lunch menus for you tomorrow when you get here.
00:42:22 And with that, again, please no investigation on your own.
00:42:26 And once again, one of your members, assuming nobody gets sick overnight, will wind up getting thanked tomorrow for your service and not getting to deliberate.
00:42:36 But beyond that...
00:42:39 Thanks everybody, I'll let you go
00:43:16 And the jury is out.
00:43:17 So have a seat folks.
00:43:19 In terms of practicalities, let me make sure I'm clear on the exhibits that have been admitted.
00:43:47 And Madam Clerk, you can double check me if I'm wrong.
00:43:50 But I show admitted exhibits 1 through 13, 15, 16, 19, and 27 on the plaintiff's exhibit list.
00:44:04 I agree with that, Your Honor.
00:44:08 I agree as well.
00:44:15 And on the defense list
00:44:18 I show exhibits B, C, and I I agree as having been admitted I agree everybody agrees what we will be doing just so that everybody understands your binders have multiple things that are not admitted as exhibits so we're going to separate out the ones that have been admitted so that's what the jury gets Mr. Bedinger you're going to give me
00:44:47 a thumb drive with your exhibit 27 on it.
00:44:53 Your Honor, if I could correct your prior statement.
00:44:55 The clips you played were from three audio files.
00:45:01 The files are arbitrarily cut throughout the meeting.
00:45:04 I'm happy to produce all three of those on the zip chart.
00:45:07 I think if you played clips from all three, the intention was that all three would be part of your exhibit.
00:45:14 No problem.
00:45:17 And those will all be contained within Exhibit 27.
00:45:24 Okay.
00:45:28 Jury instructions I mentioned earlier.
00:45:30 I mean, I think everybody is clear on the set that you gave me in advance.
00:45:34 It looks to be mostly complete with the exception of a couple of procedural instructions.
00:45:38 Mr. Bedinger, I'm going to include your audio recording instruction.
00:45:42 I mentioned that earlier this morning that you proposed.
00:45:44 Both parties are in agreement with that.
00:45:49 I think we need at least a procedural instruction dealing with deposition testimony, which I will add from the pattern.
00:45:58 I will also add an instruction dealing with video testimony.
00:46:03 There's a pattern instruction that is designed to deal with video depositions, not Zoom testimony.
00:46:11 I'm simply going to
00:46:13 altered the telephonic testimony instruction to make a video testimony tailored off the pattern.
00:46:21 What I will plan to do this afternoon is to try to finalize the set of jury instructions, circulate that all to you by email so that you've got them.
00:46:30 We can do a double check in the morning before we print them off.
00:46:33 As I mentioned earlier, I give the jurors a full set each so that they can follow along once we get to the instruction phase of the case.
00:46:44 Any questions about that?
00:46:47 Yes, Your Honor.
00:46:47 In terms of removing our claim for implied contract from the instructions, I'm happy to draft a new proposed jury verdict form.
00:47:01 Okay.
00:47:02 I would guess Mr. Campion and I can probably come to agreement on that before filing it.
00:47:06 And then if the court likes, I'm happy to identify the instructions that we can take out related to that cause of action.
00:47:11 Otherwise, I imagine the court
00:47:14 I recall the implied the implied contract instruction that's the one you're going to take out so so just to be clear you're dropping your claim for implied contract withdrawing that claim yes okay so that claim will be withdrawn so the instructions relating to the implied contract will also be withdrawn new verdict form will need to be prepared I will certainly take you up on your
00:47:37 Offer to draft that Mr. Bedinger, circulate that to Mr. Campion so that we're clear and you all can get that submitted later this afternoon or first thing in the morning as well.
00:47:52 Any other housekeeping issues on your side, Mr. Bedinger?
00:47:58 No, your honor as the court mentioned we would request a ruling on the corrective verdict motion before closing I Understand the inconvenience.
00:48:06 I just served mr. Campion with it.
00:48:08 I'm not sure there's any other way to do it I have to wait until they finish before I file it So I'm happy to do oral argument on it in the morning, or I think it's pretty straightforward the court wants to rule mr. Campion you have a preference
00:48:21 I don't think it wouldn't be in anyone's interest to wait until the morning, I don't think, Your Honor.
00:48:25 You want to argue it now?
00:48:26 I can do it.
00:48:28 I guess I'll wait.
00:48:29 Is there anything else they want to add before I respond?
00:48:32 In terms of the motion?
00:48:36 Let me tell you this.
00:48:39 I'm happy to hear the argument.
00:48:40 I may not give you a
00:48:42 response immediately.
00:48:43 I want to get you a response as soon as possible, but I have not gone through all of the written exhibits, for example, that I have to consider all of the evidence, not just the testimony and making a ruling.
00:48:54 So I want to get you a decision certainly before you do closing.
00:48:59 I'm happy to hear the argument, so we don't have to take that up in the morning if you're ready to do that.
00:49:03 I can do that, Your Honor.
00:49:04 Okay.
00:49:05 Campion?
00:49:06 Let me stop you just to make sure.
00:49:10 Mr. Bedinger, was there anything you wanted to add to what you've said in your written motion for directed verdict?
00:49:18 No, of course I wrote it yesterday before Mr. Elliott finished his cross and redirect today, but what I heard doesn't change the substance.
00:49:27 I'm happy for Mr. Campion to oppose right now without me orally arguing the motion first.
00:49:32 I think the Court's read it.
00:49:33 It's a straightforward legal standard, and I don't think we need to waste that time unless the Court wants me to speak.
00:49:41 I will certainly give you a chance to respond to what Mr. Campion argues, but I've read your brief.
00:49:47 We're running over a break, so thank you.
00:49:49 Mr. Campion, go ahead.
00:49:50 Thank you.
00:49:52 I mean, understanding the timing of this, I think the court will find the text messages between Mr. Kroenke and Mr. Elliott informative and helpful.
00:50:02 I believe the court should deny the motion for directed verdict regarding the abuse of process claim and the related punitive damages award claim.
00:50:09 The text messages, which are Exhibit 16, in particular starting around July 20th, which is around page 47 or 48, and then thereafter, it is at that point on July 20th when Mr. Elliott writes to Mr. Kroenke and reveals that he now understands that this is a cost-plus contract, as you've heard testimony at Time and Materials or T&M contract.
00:50:32 Mr. Elliott becomes aware, based on the negotiations and discussions with Mr. Kroenke,
00:50:37 around July 20th that Mr. Kroenke is not treating this agreement in the spirit in which it was formed, which is what Mr. Elliott understood from the Exhibit I, which was that the spirit was to create an exit strategy for Mr. Elliott and that even Mr. Kroenke was going to donate or not charge Mr. Elliott for Mr. Turnbull's time related to fabricating the blue plant.
00:51:00 That was what induced Mr. Elliott
00:51:03 to sign the second agreement that allowed Mr. Kroenke and his team to actually mine and not just explore.
00:51:09 By July 20th, Mr. Elliott becomes aware that Mr. Kroenke is not treating this as anything other than a cost plus or time and materials contract.
00:51:16 And then from that point, you'll see the communications in writing where Mr. Kroenke acknowledges, he basically says to him, you know that it's a cost plus contract.
00:51:25 And then he explains all the things that Mr. Kroenke and his team had done for Mr. Elliott that support his claim.
00:51:30 That's a cost plus contract when that's not in either exhibit one or two.
00:51:36 Mr. Bettinger's motion is not factually accurate.
00:51:42 He says on page two, second to last bullet point, Mr. Bettinger writes that after the mining season ended on November 13, 2020,
00:51:51 Kroenke recorded a lien on Dan Creek for $513,000.
00:51:54 What Mr. Bedinger leaves out was that Mr. Elliott was aware that Mr. Kroenke filed an initial lien in September 2020 while the mining season was still going on, and I believe that evidence is before the jury.
00:52:07 The motion for directed verdict suggests that Mr. Elliott had some obligation pursuant to the second agreement to pay as he went.
00:52:15 In other words, to pay Mr. Kroenke as he went
00:52:17 There's enough evidence to support a finding that that's not the terms of the contract, both the writing of the contract as well as Mr. Elliott's testimony.
00:52:25 And then by July 23rd, for the very first time, Mr. Kroenke reveals that he has lawyers on staff.
00:52:30 And that's a very clear inference to Mr. Elliott.
00:52:33 Certainly, Mr. Elliott testified he understood what that meant.
00:52:35 The jury can decide that at that moment,
00:52:37 Mr. Kroenke had an ulterior purpose that his intent was not to develop an exit strategy for Mr. Elliott, but rather to get all of his costs covered, all of his expenses covered at that moment, at July, July 23rd.
00:52:53 If you look at the facts as presented in the light
00:52:55 Most favorable to our side, to Mr. Elliott's position, reasonable persons could disagree about whether or not Mr. Kroenke had an ulterior purpose in his operation under the second agreement throughout the 2020 mining season.
00:53:08 Importantly, you just have Mr. Kroenke's testimony where he believes that there was sufficient crew to support what his obligations were under the agreement.
00:53:15 I think we have enough testimony now, not just from Mr. Elliott, but from Mr. Widom, and in particular from Ms.
00:53:20 Luna, that Mr. Kroenke did not provide a sufficient amount of crew to fulfill his obligations.
00:53:25 There's also a question of fact for the jury as to what the circumstances were about Mr. Kroenke's departure from Dan Creek in 2020.
00:53:33 Mr. Kroenke, I guess, testified last week that he received an ultimatum.
00:53:37 There's no evidence to support that testimony.
00:53:39 There's ample evidence, particularly from Mr. Elliott, that that was not the case.
00:53:43 So for those reasons, I believe you should deny the motion for directed verdict and allow the abuse of process claim to go forward, as well as the related punitive damages request.
00:53:51 Thank you, Mr. Campion.
00:53:52 Mr. Bedinger?
00:53:56 Thank you, Your Honor.
00:53:59 I really don't disagree that most of those factual issues that Mr. Campion just discussed are before the jury.
00:54:09 What type of contract was this?
00:54:13 Did Mr. Kroenke bring a sufficient crew with him like he was required to in the contract?
00:54:18 Did he leave the mining season early?
00:54:21 The jury can decide all those things.
00:54:24 But those questions are relevant to the breach of contract counterclaim.
00:54:30 They are not relevant, as I see it, to the abuse of process claim.
00:54:34 I think it's most important for the court to focus first on the elements of the counterclaim, look to see if there's been evidence presented that would lead a reasonable juror to find in the defense's favor on those counterclaims.
00:54:47 The lien exhibit, Exhibit 3, is one lien filed in November, as Mr. Campion stated, after the mining season ended.
00:54:56 To win or to even have a chance of having one juror agree with the abusive process claim, the defense has to show that Mr. Kroenke somehow misused legal process here, either the lien or the lawsuit, I don't really know, in order to achieve something else improper.
00:55:14 The courts basically say,
00:55:16 You use process or the lawsuit as a club to achieve something else unrelated.
00:55:22 Here, there's a contract dispute.
00:55:24 Mr. Kroenke thinks he should get paid.
00:55:26 Mr. Elliott doesn't think he should get paid.
00:55:28 The timing of the payment really doesn't matter.
00:55:33 Because Mr. Kroenke didn't get paid, he recorded a lien because he approved the mine.
00:55:38 The jury's free to decide that Mr. Kroenke shouldn't get reimbursed.
00:55:41 That doesn't mean that he was wrong in filing his lien, or more importantly, more relevant to this cause of action, it doesn't mean that his lien was improperly motivated by some other
00:55:51 ulterior motive unrelated to the mine.
00:55:54 Mr. Kroenke performed work at the mine under a contract.
00:55:57 We all agree.
00:55:58 He wasn't paid for that work.
00:55:59 We all agree.
00:56:00 He then recorded a lien and filed suit on the lien to have the court rule on it.
00:56:04 This isn't some non-judicial foreclosure case.
00:56:06 This isn't a case where Mr. Kroenke has done anything other than what the legislature explicitly determined should be the route for someone who performs improvements or work on land and isn't paid.
00:56:20 And then we get to the punitive damages claim, which here I think it's important to stress the difference in the burden of proof.
00:56:28 And so the court's standard review doesn't change.
00:56:30 We're looking at whether a reasonable juror could fine for the defense.
00:56:34 But for the punitive damages claim, it's whether a reasonable juror could fine by clear and convincing evidence that Mr. Kroenke has done something that's so outrageous and
00:56:44 unheard of in society that this high, harsh, unfavored measure of damages could be applied to him.
00:56:52 Going back to how I started, this really is a breach of contract case.
00:56:56 That's what Mr. Kroenke's claims are based on.
00:56:58 That's the primary counterclaim that we have for Mr. Elliott.
00:57:01 Maybe the court finds one single juror could find abuse of process.
00:57:05 I don't think so, but maybe, but punitive damages are so out of the realm
00:57:11 for essentially a breach of contract case like this.
00:57:14 We don't have some sort of outrageous act that is so abhorrent to society that we should subject Mr. Kroenke to an opinion of damages that has no ceiling.
00:57:23 It could be anything.
00:57:24 This just isn't that case.
00:57:26 And so I do believe that certainly a directive verdict should be granted on opinion of damages and then a closer call, but in my opinion, it should still be granted on abuse of process.
00:57:36 All right.
00:57:36 Thank you.
00:57:38 So, gentlemen, I'm going to go ahead.
00:57:40 Again, as I mentioned at the outset, I need to study the evidence, at least the written evidence, to make a decision.
00:57:45 I will try to get you a decision this afternoon.
00:57:48 I do have an afternoon calendar I have to deal with as well.
00:57:51 I will at the very latest have something for you first thing in the morning so that you're aware.
00:57:58 It may be that what you get later this afternoon is an email from my judicial assistant with a thumbs up, thumbs down, and then an explanation to follow.
00:58:07 But at least you'll know.
00:58:08 So anything else that we should address before tomorrow?
00:58:13 Mr. Bedinger, Mr. Brzezinski.
00:58:18 Thank you.
00:58:19 Mr. Campion.
00:58:20 Oh, thank you.
00:58:21 In terms of closing,
00:58:25 Thank you.
00:58:25 Thank you.