07/16 11:41
00:00:01 Please be comfortable.
00:00:05 And we're back on record.
00:00:06 3 a.m.
00:00:07 20-0862 Civil Parties and Counselors present.
00:00:11 Jury's out.
00:00:12 Ready to continue on.
00:00:13 Yes, sir.
00:00:13 Okay.
00:00:14 About 20 more minutes, max.
00:00:17 Yeah, I have you clocked at about 20 minutes left in your hour, so.
00:00:21 I promise you wouldn't give me the hook.
00:00:22 I told you I would not.
00:00:25 Or a buzzer, or a gaunt.
00:00:27 You might love it.
00:00:29 Yeah, well, when I see a juror squirming, that's my... I didn't see it, and I should have seen it.
00:00:38 My job is to take care of the jury, among other things.
00:00:41 And us.
00:00:47 There's a big difference between courtrooms here.
00:00:52 There is.
00:00:58 It is shocking how different one trial can be from another given different jurisdiction or different judge.
00:01:08 Without question.
00:01:27 Welcome back everybody.
00:01:45 Please have a seat.
00:01:53 All right, Mr. Brzezinski, you may continue.
00:01:56 Okay.
00:01:59 Thank you.
00:01:59 I used the break myself.
00:02:03 So, during the first few weeks at the mine, Travis is building Big Blue.
00:02:11 Frank is running his little trommel, doing some testing.
00:02:16 Frank clears a piece of land.
00:02:18 They drag Big Blue over and they start mining.
00:02:25 They mined gold, and that's what they were there for.
00:02:28 That's what Big Blue does.
00:02:30 They mined gold, and they both testified that their machine was working, gold was coming in.
00:02:38 The deeper they dug, the bigger the nuggets got, the better the recovery was every day, and they both testified that they were moved to another location by Mr. Elliott.
00:02:50 Mr. Elliott, of course, denies this.
00:02:54 You're not experts in gold mining, neither am I, but by now you're getting to be pretty good at this.
00:02:58 It's a lot of testing.
00:03:00 What you are experts in is common sense.
00:03:04 There's no doubt about it that we can figure out what happened if we just apply basic common sense.
00:03:12 Why would two people who are getting a percentage of the gold recovered stop mining gold?
00:03:25 Every ounce, 2 or 3%, and that's in the contract, 2% goes to Travis, 3% goes to Frank, not 10% what Mr. Elliott testified to.
00:03:35 It's an anecdote.
00:03:37 The truth is kind of flexible.
00:03:40 Why would they stop pulling their money out of the dirt?
00:03:46 That makes zero sense.
00:03:49 Why would they stop?
00:03:50 Because somebody tells them to stop.
00:03:52 It's the only reason.
00:03:54 They were happy to spend the rest of the season there, loading Big Blue, raking in the debris, collecting their gold, thinking about what they're going to spend that money on when they get home, new truck, vacation, whatever.
00:04:09 No one stops making money easily unless they have to.
00:04:16 And it's not like they went on vacation.
00:04:17 They were directed to go someplace else.
00:04:19 They're still working.
00:04:20 They're just not making more money.
00:04:24 It just doesn't make sense.
00:04:28 But it does make sense why they're removed.
00:04:31 And that's pretty easy too.
00:04:33 For every ounce he recovers, his contract obligates him to give Randy half.
00:04:41 But if Mr. Elliott brings his subcontractors, the FUBAR crew, I think it's 80%.
00:04:51 I'm not good at math, so I went to law school.
00:04:53 80% is a lot better than 50%.
00:04:54 It's a lot more money.
00:04:57 For every ounce, for every piece of gold recovered, Mr. Elliott makes more money.
00:05:09 Then they testified that they would go off and do whatever Mr. Elliott wanted of them.
00:05:14 And they were testing.
00:05:16 And every time they found a place to test and they wanted to start extracting,
00:05:19 And you can imagine that that's frustrating to Seth, right?
00:05:22 Because he's got all these expenses.
00:05:49 He's talking to Mr. Elliott.
00:05:51 Hey, my expenses are popping up.
00:05:53 I've got to recover some of these.
00:05:57 This is serious.
00:05:58 Now, if gold was coming in, if you allowed me to mine, if you allowed me to run Big Blue with massive excavators, gold would be coming out, and I could use that to offset my expenses.
00:06:09 We could happily continue this until the end of the season, and then I'll buy the mine from you.
00:06:16 But that's not the case.
00:06:19 Now,
00:06:20 I'm not going to make you read text messages because nobody wants to.
00:06:24 But those text messages are pretty clear if you just apply basic common sense.
00:06:32 Mr. Kroenke would like you to believe that Seth had this diabolical scheme that he was going to somehow take over the world and steal this mine or do whatever.
00:06:45 It doesn't make any sense.
00:06:47 Seth wanted to use Big Blue
00:06:49 mine gold, get gold, pay his expenses, make a profit, split with Randy, decide whether you're going to buy the mine or not.
00:06:56 How do we know that?
00:06:57 Well, we look at those text messages.
00:07:00 You'll see Seth saying, hey, just let me, just give me back Big Blue.
00:07:07 Let my guys go at it.
00:07:11 Give me Big Blue, let me mine.
00:07:15 Well, if that wasn't, if Seth was actually buying it,
00:07:19 and he had Big Blue, wouldn't an actual response be, hey Seth, I have no idea what you're talking about.
00:07:25 Your guys are using Big Blue at the mine and they recovered exons yesterday.
00:07:30 Please go see a doctor.
00:07:32 If somebody says the exact opposite of what's happening, you're not gonna ignore that statement.
00:07:37 You're gonna say, we're in a different world.
00:07:45 And Seth is getting concerned.
00:07:48 Mr. Elliott's making promises.
00:07:50 You heard Mr. Elliott's promises.
00:07:53 But none of the promises are coming true.
00:07:55 So he even says, look, just let me go back for 30 days.
00:08:00 Just give me Big Blue and 30 days.
00:08:03 It was in 30 days I know how rich that soil is.
00:08:06 I can make back my expenses and make both of us some money.
00:08:12 Just 30 days.
00:08:13 I don't even have to be there until October.
00:08:15 Just 30 more days.
00:08:18 And how did he know that?
00:08:21 Well, Mr. Elliott, self-professed expert in mining and at the end Greek, and I don't doubt he's got lots of knowledge, he said, and you heard him say it on that audio tape, that if FUBAR was allowed to use Big Blue, what would happen?
00:08:42 So he said that FUBAR was using a smaller plant, half the size of Big Blue,
00:08:46 And they were projected, they got 150 ounces one month, and he was projecting 250 ounces from the smaller machine for three months.
00:08:54 So, ease of math.
00:08:56 Three months at 250, 750 plus 150 they already recovered, we're at 900.
00:09:01 They said if you give them Big Blue, wow, Big Blue's twice as big, processes twice as much dirt, this isn't rocket science.
00:09:13 It's going to produce 500 ounces every month.
00:09:16 So in three months, it's going to produce 1,500 ounces.
00:09:21 80% going to Mr. Seth was sure that he just gave him 30 days.
00:09:31 He could get 500 ounces, 500 ounces to pay his expenses, and make a nice profit that he would give half to Randy.
00:09:39 He believed Randy, because Randy's the expert in mining, and if that's indeed the case,
00:09:45 And a smaller machine got 250, a machine twice that size would get 500.
00:09:48 Seth took him in the face and said, just give me 30 days.
00:09:52 I'm not even going to fight with you over four months or three months, just 30 days.
00:09:56 He said, if you don't give me 30 days, and you don't honor our agreement, and you keep making promises that are false, that are empty and untrue, yes, we're going to wind up in court.
00:10:12 And trust me, nobody wants to be
00:10:15 Oh, except the lawyers.
00:10:19 But nobody wants to file a lawsuit.
00:10:21 Nobody wants to be dragged into this.
00:10:22 This isn't fun for anybody.
00:10:24 It's expensive.
00:10:25 It's painful.
00:10:26 It's not fun.
00:10:28 But did Seth say, I don't care what you do.
00:10:31 I'm going to sue you.
00:10:33 He didn't say that.
00:10:34 He said, first option, please let me go back to what we agreed to do.
00:10:38 And then if you don't do this, there's going to be consequences.
00:10:44 One precedes the other.
00:10:45 We have to look at the first option.
00:10:47 And please, go through Exhibit 16, those text messages, should you wish to.
00:10:51 You'll see on a number of occasions Seth saying, just let me mine.
00:10:56 Let my guys go at it.
00:10:58 Put my guys to work.
00:10:59 Give me back Big Blue.
00:11:01 Nowhere does it say, nowhere in there does Mr. Elliott say, you've got Big Blue.
00:11:05 What are you talking about?
00:11:11 What's the best evidence in any case?
00:11:16 documents are good testimonies nice because you hear what people say but courtroom testimony people have vested interest best evidence is what people say when they're not in a courtroom when you can hear them outside before this happened and we heard Mr. Elliott Mr. Elliott telling Seth don't worry
00:11:44 I'll cover your expenses.
00:11:48 Let me quote.
00:11:50 If you itemize what you spent, I will pay you immediately.
00:11:54 Seth itemized what he spent.
00:11:57 Well beyond what the contract calls for.
00:12:02 It's a pretty darn good account.
00:12:05 Did Mr. Elliott pay him?
00:12:06 No.
00:12:08 Mr. Elliott said, I'm not worried.
00:12:11 Have faith.
00:12:12 I'll pay you.
00:12:13 Seth had faith.
00:12:14 What do they get him?
00:12:16 Nothing.
00:12:18 Let me take care of it.
00:12:19 I will pay you.
00:12:20 It's a direct quote.
00:12:21 And you'll have the audio.
00:12:22 You're welcome to listen to it.
00:12:26 And after all, Mr. Elliott said, I have all the money in a coffee can.
00:12:32 Probably does.
00:12:32 Gold miners probably put gold in a coffee can.
00:12:38 Mr. Elliott made promises.
00:12:42 They were very different from the story he told you here last week.
00:12:48 We have those recordings.
00:12:50 The judge will read you instructions perfectly legal, perfectly normal, perfectly legitimate.
00:12:57 Are they consistent with what Mr. Elliott said here before you under oath?
00:13:02 No, they're not.
00:13:04 They're directly the opposite of what he said and what he agreed to do.
00:13:16 Mr. Elliott said, there's no possibility that you won't get your money back.
00:13:21 I'll give it to you.
00:13:23 Well, there is a possibility.
00:13:25 That's why we're here.
00:13:28 Mr. Elliott was right.
00:13:29 If Seth would have gotten paid, we wouldn't be here.
00:13:33 You would be enjoying your normal lives.
00:13:45 Common sense.
00:13:48 It all just comes down to common sense.
00:13:51 Seth Kroenke built Big Blue.
00:13:53 Big Blue is a processing plant.
00:13:55 It's not for testing.
00:13:56 It's for mining.
00:13:58 They were not allowed to use it.
00:13:59 They were moved off the site.
00:14:02 Why would they do that voluntarily?
00:14:04 It makes no sense.
00:14:07 If you have a golden goose putting out golden eggs, why would you leave it?
00:14:11 Why would you go away?
00:14:14 Just stay there.
00:14:14 Collect them.
00:14:16 So your arms were full, then you'd find a bucket.
00:14:18 Then you'd find, yell to your friends, get bigger buckets.
00:14:21 This is great.
00:14:22 That's really what a processing plant is.
00:14:24 It's just a golden goose.
00:14:29 But Mr. Elliott wanted 80%.
00:14:31 80% is better than 50%.
00:14:34 It's a lot more.
00:14:37 That's why he moved Seth off.
00:14:42 Mr. Elliott prevented Seth Kroenke from mining the original spot
00:14:46 and all the other little spots they found along the way.
00:14:51 This is both a violation of both agreements and a breach of their contract.
00:14:58 By not giving Seth unrestricted access, which he contracted for, Mr. Elliott caused Seth to miss out on mining gold.
00:15:08 We know that FUBAR recovered right about 2,900 ounces of gold.
00:15:16 Ms.
00:15:16 Luna testified I was 750 that year and then went to 900 and change and I think it was 1250 after that.
00:15:23 But if I'm wrong in numbers, use your own memory.
00:15:28 Don't count on me.
00:15:31 Ms.
00:15:32 Luna's partner, Mr. Armstrong, well he wasn't here to testify because he's at the mine, but we read you his deposition.
00:15:38 In his deposition he said, I know where they're mining.
00:15:43 I'm mining there right now.
00:15:44 That's exactly where I am.
00:15:50 That was a good piece of land.
00:15:53 They had a good machine.
00:15:55 They had the quintessential golden goose until it was taken away.
00:16:06 Mr. Campion made an argument which, frankly, I don't understand.
00:16:10 If you do, somebody can explain it to me.
00:16:13 He said, and see if I can follow this, that Mr. Kroenke
00:16:19 was supposed to provide Frank's trammel under the contract, which he did.
00:16:24 But then Mr. Elliott bought the trammel and still let Frank use it, and that was a breach of the contract because Seth was no longer providing the trammel.
00:16:38 I can't even wrap my head around that one.
00:16:39 That one makes absolutely no sense to me.
00:16:47 Mr. Elliott claims abusive process.
00:16:53 It's ridiculous.
00:16:54 It doesn't apply here.
00:16:56 It's really not worth even discussing, but I have to.
00:16:59 The court will instruct you.
00:17:02 Judge Matthews will read your instruction that says if filing a lawsuit, regardless of the motive, whatever the motive is, regardless of that motive, is not abusive process.
00:17:19 Instead, in order to prevail on that claim, Mr. Elliott, through Mr. Campion, has to provide evidence that there was some other unrelated event which caused him to file this lawsuit.
00:17:35 And I don't know what that is.
00:17:36 They own a boat together, and the boat needs repairs.
00:17:45 And Mr. Kroenke says, look, if you don't repair the boat, I'm going to file a lawsuit against you at the mine.
00:17:52 That's an abusive process.
00:17:54 But filing a lien is perfectly legal.
00:17:56 This is what you do when somebody owes you money, and you preserve the right to file a lawsuit later.
00:18:04 If there's a lien filed on your property, there's a lot of things you can do.
00:18:06 You can bond around it.
00:18:08 It doesn't prevent you from doing anything.
00:18:10 It's just there to protect
00:18:13 Your right to eventually file a lawsuit.
00:18:16 And that's what Seth did.
00:18:18 And the court will tell you that exactly is legal and is not an abusive process.
00:18:31 And the idea of punitive damages is, well, we've gone from ridiculous to outrageous.
00:18:40 Mr. Campion wants you to punish Seth for filing a lien in a legitimate lawsuit.
00:18:49 Criminal courts tend to punish people, and that's why you go to criminal courts.
00:18:53 Your liberty becomes at stake if you're convicted of committing an offense, a crime.
00:18:59 Civil courts usually don't.
00:19:02 So in civil court, if there's going to be these punitive damages, a much higher standard is applied.
00:19:09 It's not that preponderance of the evidence 51 standard.
00:19:13 It's clear and convincing evidence, much higher standard.
00:19:17 So Mr. Elliott has to prove that through clear and convincing evidence that Seth had some bizarre ulterior motive to deprive Mr. Elliott of something other unrelated to this by filing a lawsuit.
00:19:31 Okay, I don't know.
00:19:33 I don't think it exists and I certainly haven't heard any testimony
00:19:36 from this witness seat about anything of that sort, just none, zero.
00:19:41 It's once again, it's unproven allegations, vague, unsupported statements designed to cloud a pretty simple issue.
00:19:59 Before we move on to the verdict form, Mr. Kampen kept saying, well, Seth didn't ask
00:20:05 Mr. Elliott about his expenses.
00:20:08 If you have expenses, show them.
00:20:12 It's not contrary to say you have to ask the other party every 30 days or 10 days.
00:20:18 It's adult work.
00:20:18 If you've got an expense, show it.
00:20:23 Mr. Campion says, well, he had to have expenses.
00:20:26 Okay, what are they?
00:20:29 We need proof.
00:20:32 We're not saying that you have to have a top seven accounting firm produce wonderful spreadsheets and income statements and balance sheets.
00:20:40 But you need something.
00:20:40 You need a receipt.
00:20:41 You need an invoice.
00:20:42 You need something.
00:20:44 Mr. Campion tries to paint Mr. Elliott as this miner who lives out his dream in a Connex out in the wilderness, and he does things on a handshake.
00:20:54 What's the reality?
00:20:56 There are houses.
00:20:57 There are subdivisions up there.
00:20:59 There's computers.
00:21:00 There's internet.
00:21:01 There's electricity.
00:21:02 There's running water.
00:21:04 It's a real world.
00:21:05 If you want to keep expenses and you want to keep track of your bills, you can.
00:21:11 Ms.
00:21:11 Luna was testifying from a very nice, warm-looking room with some drywall.
00:21:15 She had internet.
00:21:16 She had a computer.
00:21:17 She could run Excel.
00:21:19 So could he.
00:21:20 He's got a smartphone.
00:21:21 You don't even need a computer these days.
00:21:23 You can run numbers on a smartphone.
00:21:26 You can take pictures of receipts.
00:21:28 Did he produce any evidence?
00:21:30 I'm not saying some.
00:21:32 I'm not here to dispute his evidence.
00:21:33 There just isn't any to dispute.
00:21:36 Zero evidence and asking for awards.
00:21:41 Give me money based on something that might have happened that I can't prove at all.
00:21:47 It doesn't meet the standard here.
00:21:49 We're in a world of concrete facts and real proof.
00:21:55 Okay.
00:21:56 Let's look at our verdict form and I'll wrap up.
00:22:03 Okay, so this is what you're going to get.
00:22:05 In a few minutes, the judge will read through a lot of instructions, and you're going to receive this special verdict form.
00:22:12 Breach of contract, plaintiff Seth Kroenke.
00:22:15 Okay, let's start with number one.
00:22:18 Did Treasure Chest LLC and Randy Elliott, same entity, person, breach a contract with Seth Kroenke?
00:22:24 Answer yes or no.
00:22:25 Well, every single time.
00:22:30 failed to reimburse Seth Kroenke under Exhibit 5 was a breach of the contract.
00:22:36 He breached the contract by not providing the right equipment.
00:22:40 He breached the contract by not giving Seth unrestricted access.
00:22:44 He breached the contract by not reimbursing him for every single expense.
00:22:48 So we're going to ask you to check yes.
00:22:51 Let's go to the next one.
00:22:53 Covenant, good faith, and fair dealing.
00:22:54 Now this is an alternative legal theory and
00:23:00 If you find that Mr. Elliott acted unfairly and intentionally deprived Seth of a benefit due him under the contract, he acted in a manner of an unreasonable person, a reasonable person would deem unfair, then you can answer yes to that as well.
00:23:24 Let's move up a little bit, section damage.
00:23:27 If you've answered question, if you answered yes to number one, breach of contract, what are the total damages of any caused by Treasure Chest LLC and Randy Elliott's breach of contract?
00:23:38 Okay, I will admit that I've taken the liberty of doing some math for you.
00:23:43 So I don't have to do it at the stand here.
00:23:47 Mr. Kroenke is asking for half of his damages.
00:23:50 Can we just shoot to exhibit five for just one second, please?
00:23:56 Now we'll come right back to this.
00:23:58 One half of $546,499.27.
00:23:59 And ladies and gentlemen, you can check my math, but I believe that number, and let's go back to the verdict form, is $273,149.63.
00:24:09 273,14963.
00:24:09 So what I'm going to ask you to do is fill that number in right there.
00:24:23 That is half of the damages that we have established, and I know half of you must have been bored to tears as we went through those numbers because you can't make accounting exciting.
00:24:33 At least I can't.
00:24:34 If there is a way, I would.
00:24:38 Then let's move down a little bit.
00:24:43 If you answered yes to question number two, you can determine what the value of the damages were by Mr. Elliott's actions that were deemed unfair.
00:24:53 And he intentionally deprived Seth of the fair value of his contract.
00:25:04 Now, next set.
00:25:06 Let's go down a little further.
00:25:07 Part two.
00:25:12 I'm sorry.
00:25:13 Let's go back up again.
00:25:14 I apologize.
00:25:16 Now, with damages, we have two numbers to speak of.
00:25:23 So half his expenses were $273,149.63 Then we have to determine how much gold would Seth's crew have recovered if they were allowed to do what they were supposed to.
00:25:43 I cannot give you an exact number.
00:25:45 I can't.
00:25:46 I can give you some ideas, which I will.
00:25:49 But I'm not going to tell you that the exact number is 1742.5 ounces.
00:25:53 So we have to look at what is the reality.
00:25:59 How do we get to this number that's reasonable and fair?
00:26:05 I think it's abundantly clear that Mr. Elliott prevented Seth from mining, using Big Blue and using his team to mine gold.
00:26:16 This is something that Seth kept asking for and was continuously denied, and therefore he lost that opportunity.
00:26:24 So the only way we can determine what he would have recovered is to look at what happened and look at Mr. Elliott's self-professed expert's own opinion.
00:26:33 He said a plant half that size would produce 250 ounces a month after producing 150.
00:26:38 So that's 900 for three months plus the back 150.
00:26:43 Big blue is twice as big.
00:26:45 So Big Blue would have produced 1,500 ounces and the 150 ounces before that.
00:26:53 We know that FUBAR produced right around 2,900 ounces using Big Blue.
00:27:02 So to be abundantly fair, we're going to ask you to award Seth 1,500 ounces of gold, which is Mr. Elliott's own opinion what would have happened
00:27:15 a big blue was planted at that site and it was worked.
00:27:20 Now, how do we translate that into dollars?
00:27:23 Because you want gold.
00:27:26 So from this witness stand, there's been one piece of testimony relating to the value of gold.
00:27:34 Seth Kroenke testified the value of gold when he was in the stand was $2,390.
00:27:37 Today, I believe it's gone up, but let's stick with what you heard at the stand.
00:27:47 If you take half of $1500, that's $750 because Seth is not entitled to all of it.
00:27:54 The contract says he only gets half.
00:27:57 So half is $750.
00:27:58 That math is easy.
00:28:00 We multiply that by $2390 per ounce and we get $1,792,500.
00:28:02 So if we combine the $1,792,500 with
00:28:17 Half the expenses, $273,149.63.
00:28:18 I'll do the math for you.
00:28:19 It comes out to $2,065,649.63.
00:28:20 Make sure I said this correctly.
00:28:21 $2,065,649.63.
00:28:21 And that's the number we would like you to enter the damages.
00:28:24 And I think that is a fair assessment of damages
00:28:46 that Seth has suffered.
00:28:52 In opening, we said we're here to seek justice.
00:28:57 Justice for Seth Kroenke.
00:29:01 Mr. Elliott continuously breached their contract, and by breaching that contract and not reimbursing Seth for his expenses, and not giving him unrestricted access to the mine,
00:29:16 Seth has been harmed and wronged by Mr. Elliott and Mr. Elliott's actions ladies and gentlemen you have the power you have the ability to right the wrongs and make Seth whole and I trust that you will do that thank you thank you Mr. Brzezinski so ladies and gentlemen
00:29:46 You've now heard the evidence.
00:29:47 You've heard the arguments of the lawyers.
00:29:49 I have to give you some instructions on the law.
00:29:53 I have a number of them that I have to read through and I have to do it carefully because that's an important part of this.
00:29:59 These are the instructions that I give.
00:30:01 I want to make sure everybody's comfortable because it does take a little bit of time.
00:30:09 We've been going for a while.
00:30:10 I know it hasn't been that long since we had our last break, but I think I'm going to give you a quick break now, and then we're going to do instructions and then send you back with the case, just to make sure we are all comfortable before we start.
00:30:21 Okay.
00:30:23 Let's take a quick break here.
00:30:55 jury is out so I've got a set of the jury instructions for each of the jurors I'm thank you for the offer mr. Campion
00:31:10 So you want to clear up that USB key?
00:31:12 Okay.