Day 1 Court Transcript

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DISTRICT COURT

MESA COUNTY, COLORADO

125 North Spruce

Grand Junction, CO 81501

Plaintiff:

DOW RIPPY, et al

V.

Defendant:

SG INTERESTS I LTD

▲ COURT USE ONLY ▲

Case Number:

2010-CV-004164

Courtroom 9

Volume I of VIII

For Plaintiff:

Nathan A. Keever, Esq., R/N 24630

Matthew Montgomery, Esq., R/N 44039

Dufford Waldeck Milburn & Krohn, LLP

744 Horizon Court, Suite 300

Grand Junction, CO 81506

Phone: 970.241.5500

Fax: 970.243.7738

[email protected]

For Defendant:

Brian S. Tooley, Esq., R/N 18021

Nora R. Pincus, Esq., R/N 40188

Welborn Sullivan Meck & Tooley, PC

821 17th Street, Suite 500

Denver, CO 80202

Phone: 303.830.2500

Fax: 303.832.2366

[email protected]

The matter came on for hearing on Monday, December 5,

2011, before the HONORABLE DAVID A. BOTTGER, Judge of the

District Court, and the following proceedings were had.

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I N D E X 1

PAGE

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TABLE OF EXHIBITS 3

3

VOIR DIRE

By The Court 24 4

By Mr. Keever 94

By Mr. Tooley 102 5

PRELIMINARY JURY INSTRUCTIONS 124 6

OPENING STATEMENTS 7

By Mr. Keever 138

By Mr. Tooley 147 8

TESTIMONY OF BRETT HURLBUT 9

Direct Examination By Mr. Keever 170

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CERTIFICATE OF COURT TRANSCRIBER 198

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25

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TABLE OF EXHIBITS 1

2

Offered for Admitted

Identification Into Evidence 3

PLAINTIFF'S EXHIBIT 2 176 176 4





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GRAND JUNCTION, COLORADO; MONDAY, DECEMBER 5, 2011 1

(Call to Order at 9:31 a.m.) 2

THE COURT: I walked in here without my laptop, which 3

is where this file is, because of course it's a paperless file. 4

So excuse me, I'll be right back. 5

UNIDENTIFIED SPEAKER: Sure. 6

THE COURT: You don't have to stand the next time. 7

(Recess at 9:31 a.m., recommencing at 9:32 a.m.) 8

THE COURT: For somebody who doesn't carry a cell 9

phone, it's a hard habit to get into, to carry this thing 10

around. 11

All right. This is case 10-CV-4164, which is Rippy 12

versus SG Interests I, set for a jury trial. 13

Mr. Keever is present, representing the Plaintiffs 14

who are -- are those the folks sitting with you? 15

MR. KEEVER: They are Dow and Kathy Rippy. 16

THE COURT: Nice to meet you folks. 17

And for Defendant? 18

MR. TOOLEY: Good morning, Your Honor. Brian Tooley 19

on behalf of SG Interests I Ltd. With me is Nora Pincus with 20

our firm and Eric Sanford, who is SG's operations land manager. 21

MR. SANFORD: Good morning. 22

THE COURT: Okay. Good morning. 23

Okay. I know we have some preliminary matters to 24

discuss, but I'll give you a chance to raise those yourself, 25

5


before I raise the ones which I need to raise. 1

Mr. Keever, anything? 2

MR. KEEVER: Nothing from me, Your Honor. 3

THE COURT: Okay. Mr. Tooley, how about you? 4

MR. TOOLEY: Yes, Your Honor. Thank you. 5

As the Court knows we filed a trial brief on the 6

economic loss factor. 7

THE COURT: Uh-huh. 8

MR. TOOLEY: And that's been briefed. There has been 9

a response filed by the Plaintiffs. They made a number of 10

arguments, one of which is the economic loss doctrine doesn't 11

apply to intentional torts. 12

And I think the Colorado courts have rejected that 13

idea. And I'd cite to the Court, the Harmon -- the Haman 14

Contractors case. It's Haman Contractors Inc. versus Carter 15

Carter & Burgess at 229 P.3d 282. It's a Colorado Court of 16

Appeals decision, 2009. 17

The other point that Plaintiffs have argued in their 18

briefs was the Garrity case, which involved severed mineral 19

interest. It didn't involve a contract, it involved implied 20

easements. And what -- the way we view this case, Your Honor, 21

is this really a breach of contract case. 22

It's about the expectations of the parties, whether 23

the pipeline is where the parties reasonably expected on an 24

ambiguous agreement. 25

6


THE COURT: All right. I understand all that. What 1

is it -- are you leading up to asking me -- 2

MR. TOOLEY: Yes. 3

THE COURT: -- do something? 4

MR. TOOLEY: I'm asking -- we're asking for the 5

dismissal of the tort claims because we -- 6

THE COURT: No. 7

MR. TOOLEY: -- think this is just a contract claim. 8

THE COURT: I'm not going to do it now. This would 9

be in effect, the summary judgment motion made orally on the 10

morning of trial. 11

MR. TOOLEY: Okay. 12

THE COURT: It's not timely. I don't know whether I 13

agree or disagree with you legally, but I'm not entertaining 14

motions for judgment on the pleadings -- 15


THE COURT: -- or motions for summary judgment this 17

morning. This is the kind of motion that's -- might be 18

appropriate at the close of the Plaintiffs' case, or might be 19

appropriate at the close of all of the evidence, but not now. 20


THE COURT: So I read the briefs, I understand the 22

issue. But the -- procedurally, no, I'm not addressing that 23

issue this morning. 24

MR. TOOLEY: Okay. Our just concern was whether it 25

7


would be unduly prejudicial in opening for them to start 1

talking about trespass if at half-time the Court determines 2

they don't have a tort claim. 3

THE COURT: Well, I -- a request to exclude evidence 4

under Rule 403 is always inappropriate based on undue prejudice 5

because I can't possibly make that kind of balancing now. 6

In any event, if the evidence is relevant then I 7

can't very well foreclose them from presenting it. And I'll, I 8

guess I'll repeat myself. I'm granting summary -- I'm not 9

ruling on a summary judgment -- 10


THE COURT: -- motion or a motion for a judgment on 12

the pleadings now. This is a motion which should have been 13

filed 85 days ago. So -- 14


THE COURT: -- if there is prejudice to your client 16

-- well, I'm not ruling on the motion. 17


THE COURT: I don't want to ascribe blame. 19


THE COURT: I understand your position and at the end 21

of the Plaintiffs' evidence, or all of the evidence, I'll 22

obviously have to make a decision on it, and I will, but this 23

is not the way or the time. 24

MR. TOOLEY: Okay. And Your Honor, in the 25

8


alternative then, it seems to me under the economic loss 1

doctrine that either they have a claim for breach of contract 2

or tort. It's one or the other; it can't be both. 3

And we just want to know what claim we're defending 4

before trial. Is it a breach of contract claim, is it a tort 5

claim? But if it's independent, if it's really an independent 6

duty, outside of the contract, then it's not a breach of 7

contract claim. 8

THE COURT: Well, they could have a claim for both. 9

And in any event now is -- 10


THE COURT: I don't have the right to require a 12

plaintiff to make that election at this point, if that's what 13

you're requesting. So I'm not going to -- 14

MR. TOOLEY: A couple of other housekeeping matters, 15

Judge. 16


MR. TOOLEY: They also had indicated in their 18

briefing that they intend to introduce evidence as to 19

attorneys' fees to support an exemplary damage claim. 20

In this case the attorneys' fees issue is a fee-21

shifting provision under the pipeline easement agreement and 22

it's treated as costs. 23

And my concern is if they start getting into attorney 24

fee issues during their examination, I am concerned about 25

9


making an objection in front of the jury, and I don't think 1

that's relevant. And I'd like a motion in limine that they not 2

be allowed to get into evidence on attorneys' fees. If they 3

get into what's reasonable attorneys' fees, does that mean -- 4

you know, how do we rebut that? 5

They brought that issue at the last minute in their 6

pretrial hearing. It was never part of their claim, but they 7

want to introduce evidence of their attorneys' fees in support 8

of exemplary damages. 9

Now these aren't consequential damages, attorneys' 10

fees, these are fees under the contract that are available to 11

the prevailing party. And we think it would be unduly 12

prejudicial to have any mention of attorneys' fees before the 13

jury in this case. 14

THE COURT: When did you first have notice that 15

Plaintiffs intended to do this? 16

MR. TOOLEY: When they filed their prehearing -- 17

MS. PINCUS: Trial management. 18

MR. TOOLEY: Their trial management order, the second 19

go-around, they added it at the last minute. 20

THE COURT: Okay. So that would have been November 21

-- November 8th is when the proposed -- they filed their 22

proposed TMO; is that what you're talking about? 23

(Counsel confer) 24

THE COURT: Ms. Pincus may -- 25

10


MR. TOOLEY: And we also briefed it in our trial 1

brief. Our trial brief addresses that issue and the supporting 2

case law. 3

THE COURT: Right, right. I'm aware of that. I just 4

wanted to get the timing, because ordinarily, as you know, 5

motions in limine are supposed to be filed at least 30 to -- 6

five days before trial, but obviously you can't file a motion 7

on something you don't know about so. 8

So let me get Mr. Keever's thoughts on this, please? 9

MR. KEEVER: Your Honor, the exemplary damages was 10

added in as a motion after the first trial management order. 11

That's why it wasn't in the first trial management order -- 12

THE COURT: Sure. 13

MR. KEEVER: -- it was in the second trial management 14

order. 15

THE COURT: Understood. 16

MR. KEEVER: And the case law says that we can 17

discuss the amount a party has spent on attorneys' fees, with -18

- and the jury can consider that evidence in determining 19

whether or not it's appropriate to award exemplary damages at 20

all. 21

And I don't anticipate substantial evidence of 22

attorneys' fees, but I do anticipate asking Mr. Rippy how much 23

have you spent on attorneys' fees to date. 24

THE COURT: And the case law, is that case law you 25

11


cited in your response, I'll call it your trial brief; you call 1

it a response to theirs, but it doesn't matter? 2

MR. KEEVER: Yes, Your Honor. 3

THE COURT: Okay. I mean -- take a look at that. 4

Okay. I'll have to look at that case. I haven't -- 5

I'm not sure I've read it. I know I haven't read it lately. 6

Okay. I'll need to do that before I rule on this request, so 7

I'll do that when we take a break. 8

MR. TOOLEY: Thank, Your Honor. 9

And just one other point in response to Mr. Keever's 10

statement: The exemplary damage statute takes about actual 11

damages. 12


MR. TOOLEY: And I think the Colorado case law is 14

clear that attorneys' fees in the very case that you're 15

litigating are costs and not actual damages. It's different if 16

somebody had spent fees to clear up another problem and then 17

come to court and say these are part of my consequential 18

damages that they made me go through. 19

But this in the very case, they're wanting attorneys' 20

fees for this very case and I think they're costs. And I think 21

it would be inappropriate, because how are we going to respond? 22

Are we going to get Mr. Keever on the stand to talk about the 23

reasonableness of his fees? 24

THE COURT: I don't know. But if the case law says 25

12


that it's a relevant consideration in setting exemplary 1

damages, then it may be admissible. But I haven't read the 2

case, so I can't respond to that. 3

Anything else, Mr. Tooley? 4

MR. TOOLEY: Yeah. There are a couple of other 5

issues. As the Court knows, or may not remember, the parties 6

were required to designate deposition testimony 25 days in 7

advance of the trial. And Mr. Keever designated the entire 8

deposition transcript of Rueben Romero, and we finally got the 9

specific designations Friday. 10

We haven't had the time or the opportunity to review 11

all of those designations and they're untimely under Rule 12

16(f)(3)(D), and we would move that those be stricken and not 13

be allowed to be played because they were not timely 14

designated. 15

THE COURT: Okay. What about that, Mr. Keever? 16

MR. KEEVER: Ms. Keller designated the entire 17

deposition of Rueben Romero. They filed their objections to 18

portions of that deposition testimony. That video would be 19

about seven hours long, if we watched the entire deposition. 20

The rule says that three days before the trial, you 21

will submit the specific portions and actually the content of 22

the deposition, which is what I did on Friday. And I also 23

reduced it down to an hour instead of seven hours and 24

eliminated all but four of their objections. 25

13


They then filed at, I believe 8:00 at night, their 1

same type of designations to deposition testimony. 2

THE COURT: Okay. Well, let me find the rule about 3

designating deposition testimony. 4

MR. TOOLEY: Yeah. I think it's 16(f)(3)(D), Judge. 5

And -- 6

THE COURT: Okay. Well, give me a chance to look at 7

it -- 8

MR. TOOLEY: Sure. 9

THE COURT: -- if you don't mind? 10

MR. TOOLEY: Sure. 11

THE COURT: You know what this rule says is that the 12

proponent is to designate deposition testimony 25 days before 13

trial, they're -- in effect responsive designations ten days 14

before trial, reply designations five days before trial. 15

What's required three days before trial is that a copy of the 16

preserved testimony be submitted to the Court, including the 17

proponent's and opponent's anticipated designations, or a 18

statement why that's not feasible. 19

So it's not the designation that has to be done three 20

days before trial, it's filing something with the Court. 21

Mr. Keever -- 22

MR. KEEVER: And that's what was done, Your Honor. 23

It was done in that order. The designation was made, 25 days 24

they did their objection -- 25

14


THE COURT: I'm sorry. If you don't mind? 1

MR. KEEVER: I'm sorry, Your Honor. 2

MR. TOOLEY: And the -- what was done three days 3

before was the actual copy of the testimony. 4

THE COURT: Well I think Mr. Tooley's point -- I 5

don't think, I know, because he made it in writing, is that 6

designating a whole deposition is not designating anything. 7

That's just -- that's not a designation. And if that's the 8

case, then that isn't what was done. 9

So why -- is there some reason why you didn't say 10

specifically? I mean did you truly want to play seven hours 11

of -- 12

MR. TOOLEY: I think at the time, that was what was 13

being contemplated, was they were going to play the entire 14

deposition. And that's why the entire deposition of Rueben 15

Romero was designated. 16

THE COURT: Huh, okay. 17

MR. KEEVER: They did objections to that, to -- it 18

seemed excessive, and I've tried to whittle it down and take 19

into consideration their objections as well. 20

THE COURT: Okay. All right. Anything else on the 21

top, Mr. Tooley? 22

MR. TOOLEY: Well, Your Honor, the suggestion that 23

they genuinely intended to designate the entire deposition 24

testimony before a jury trial, it didn't give us an opportunity 25

15


to really sit down and go through the process. That is, okay, 1

let's make sure that the jury hear the deposition testimony in 2

context together, and it's not cherry-picked at the last 3

minute. 4

And we simply did not have an adequate opportunity, 5

because they didn't comply with the rules and the timing that 6

they were to designate. We had -- usually you go through the 7

process. I give them page and line numbers, here's what we 8

want read, to make sure you read it in context. The negative, 9

file a response, and we submitted to the Court for decision. 10

Now we're on the eve of trial, Friday, and even the 11

three days wasn't met because three days is business days, not 12

-- you don't count the weekends when it's three days; so they 13

weren't even timely in that regard. 14

So we think it's just an unfair distraction and we 15

haven't had the time to go through to make sure that it's 16

really read in context. And it wasn't timely, and we think it 17

should be stricken for that reason, Judge. 18

THE COURT: Okay. Mr. Keever, when -- if you're 19

allowed to present this to the jury, when do you plan to do it? 20

MR. KEEVER: Well, it would -- I would anticipate 21

some time tomorrow. 22

THE COURT: Okay. All right. 23

MR. KEEVER: You know, we should be done with our 24

case on Wednesday. 25

16


THE COURT: Okay. I think the rule's been 1

substantially complied with, at least enough that I'm not going 2

to be excluding testimony on this basis. So -- 3

MR. TOOLEY: Thank, Your Honor. 4

One more point if I might? 5


MR. TOOLEY: I understand the Court's ruling. 7

Can we get the designations to them so we -- you 8

know, we'll have cross-designations. Because we couldn't 9

anticipate a whole deposition transcript -- 10

THE COURT: Okay. 11

MR. TOOLEY: -- what may need to be read. And we 12

think it's only fair that we give the designations to the Court 13

tomorrow and then the Court can require them to also read ours 14

in context, so we don't have to repeat what they said and try 15

to put it back in context. 16

So it won't be that long -- 17

THE COURT: Yeah. 18

MR. TOOLEY: -- but we want -- if they play it, that 19

they also play our cross-designations after the Court's had a 20

chance to look at it. 21

THE COURT: Yeah. I'm certainly fine with your 22

designations being filed tomorrow, if that's the question, then 23

we'll deal with procedure beyond that. 24

Okay. As counsel know -- well, let me, first things 25

17


first. We're set for eight days and Mr. Keever you just told 1

me you think you'll be resting on Wednesday. 2

So Mr. Tooley, how long do you think -- when do you 3

think you'll be resting if Mr. Keever's done at the close of 4

business on Wednesday? 5

MR. TOOLEY: We'll probably go into Monday, for 6

certain, maybe part of Tuesday. We'll certainly get done 7

within the time allotted. We do have an out of town, a 8

witness, who's planning to leave the country on Saturday. So 9

I'm hopeful by Friday, we'll have control to put him on. 10

But I just want to let the Court know that if for 11

something -- for some reason this thing drags on, that we'd ask 12

permission to call him out of order, because he's going to be 13

leaving the country. It's Dave Nicewicz, who's the land 14

surveyor, who will testify. 15

THE COURT: Okay. I'm just -- the only reason I'm 16

asking at this point is to -- so I can tell the jury panel how 17

much time we're asking for them. So I think I'll probably be 18

-- err on the long side and say we're set for eight days, and 19

we might need it. And that way if we finish early they can be 20

happy instead of being unhappy that we're taking more time than 21

I said. 22

As counsel know, one of the things I need to do as 23

part of jury selection is to give the jury panel some idea of 24

what this case is about. I took a look at the competing 25

18


versions or -- yeah, competing versions of Jury Instruction 2.1 1

-- 2:1, rather. And I have to say it's not apparent to me, you 2

know that, from that or anything else that counsel actually 3

conferred about jury instructions. Did you? 4

MR. TOOLEY: Your Honor, when we had our pretrial 5

conference we raised the issue about jury instructions and at 6

that time, I believe the Court said in lieu of the 2.1 7

insurance, that they would give it -- 8

THE COURT: We'll do mini openings? 9

MR. TOOLEY: Mini -- like a two minute statement at 10

the beginning and -- 11

THE COURT: Okay. 12

MR. TOOLEY: -- so that's on that particular issue, I 13

think is the reason why we didn't confer, because we were -- 14

you said literally two to three minutes. 15

THE COURT: Yeah, I wasn't kidding. 16

MR. TOOLEY: Yeah. 17

THE COURT: Thank you. I didn't remember. 18


THE COURT: But thank you for reminding me. 20

So you're prepared to do that, Mr. Keever? 21

MR. KEEVER: I am, Your Honor. 22

THE COURT: Great. Having looked at your 2:1s, it's 23

simply reinforced what I thought earlier, and that is counsel 24

are going to be in a much better position than I to tell the 25

19


jury what the case is about. So I'm -- I didn't remember that, 1

but I'm happy that that's what we did. 2

Given the length of the trial, my plan would be to 3

seat at least one alternate, which means we'll need to get -- I 4

always have to stop and think -- I think 17 passed for cause. 5

And then you each would be able to excuse five peremptorily. 6

Is my math okay? I think you get -- you each get four 7

peremptories and then one -- plus one for each alternate, so 8

you each get five. Five plus five plus seven, 17, right? 9

Some people are nodding anyway. 10

MR. TOOLEY: Well, I was just thinking that it was 11

three -- was it three peremptories and then an alternate, you 12

get another one for each alternate or -- 13

THE COURT: I thought it was four, but -- 14

MR. TOOLEY: Maybe it was four, yeah. I'll have to 15

go back and look, I'm sorry, Judge. 16

THE COURT: All right. I've got the rules right 17

here. Let me look. 18

MR. TOOLEY: I think you're right. 19

THE COURT: Yeah. It's four. 20

MR. TOOLEY: And then one for each alternate, if the 21

alternate is seated. And Your Honor's thinking of one 22

alternate jury (sic)? 23

THE COURT: I'm thinking at least one. I wouldn't 24

take a lot of convincing to convince me to seat two, but at 25

20


least one. I -- at least one. So if anybody feels strongly 1

that we ought to have two, I'm open to that suggestion. 2

I mean we're going to -- you know, we'll cover all 3

that hardship stuff and get rid of the people who claim they 4

can't afford to be on a jury for eight days. So, okay. 5

I don't remember how much else we talked about jury 6

selection. I'll tell counsel I'll cover the basics. I'll 7

introduce everybody at counsel table. I'll let you do your 8

mini openings. I'll cover hardship, prior jury service, you 9

know, willingness to follow the law, willingness to follow the 10

instructions, whether they've been -- any of them have been 11

involved in lawsuits themselves, in what capacity. 12

I generally ask them something about whether they're 13

-- if the proof is present, if they're willing to award money 14

damages, and if it isn't, they're willing to say no. 15

So I think I cover the basics. I'll probably -- I 16

usually get their commitment to at least endeavor to decide 17

credibility, if there are credibility issues because I've had 18

some jurors who've said no, and if the evidence conflicts, I 19

give up. So I want to cover that. 20

So given that, that I cover what I call the basics, 21

how long do counsel think that you would like to speak to 17 22

people in the box? What do you think, Mr. Keever? 23

MR. KEEVER: Twenty minutes. 24

THE COURT: Okay. Mr. Tooley, that's more than 25

21


reasonable, or less than reasonable depending on how you look 1

at it. 2

MR. TOOLEY: Well I believe at the pretrial 3

conference we were talking about 45 minutes, but I think half 4

an hour at least. 5

THE COURT: Yeah. And anywhere within there's fine 6

with me. Twenty to 45 minutes, none of that is unreasonable. 7

So if I feel like you're making good progress I'll let you go 8

and if I don't I may call you to the bench and discretely 9

suggest that you're putting the jury panel to sleep. I 10

probably won't use those words, but -- 11

Do counsel have -- are you -- I'm going to be asking 12

you to tell the jury panel who your witnesses may be. I just 13

want to tell you ahead of time so you'll be prepared for that 14

question and not be fumbling around. Or if you have a list you 15

want to give me, I'll be happy to take that. And I'd like the 16

list to be as expansive -- as comprehensive as possible; 17

include everything who you might call as a witness, just to 18

find out of the jury panel knows any of these folks. 19

Mr. Keever, did you care? Do you want me to do that, 20

or are you okay with me calling on you to tell the jury who 21

your witnesses are? 22

MR. KEEVER: Well, I'd just as soon you do it, rather 23

than me, but I can do it, Your Honor. 24

THE COURT: Okay. 25

22


MR. KEEVER: So it's up to your preference. 1

THE COURT: I don't care. If you have a list, give 2

it to me and I'll read it. 3

MR. KEEVER: Okay. We'll get you a list. 4

THE COURT: Okay. Okay. Mr. Tooley, if you and Ms. 5

Pincus will do the same. 6

MR. KEEVER: I have two questions so far, Your Honor. 7

THE COURT: Okay. 8

MR. KEEVER: On the jury selection, the first, are 9

you going to ask them also if they can read and speak English? 10

THE COURT: Sure. I -- 11

MR. KEEVER: You could do that? 12

THE COURT: I'll cover all the statutory stuff as 13

well. 14

MR. KEEVER: Okay. And the last, on our alternate 15

preemptory, do you want us just to eliminate these, and one 16

each of the last three, and that person left is the alternate? 17

Or can we pick anyone, essentially having six? 18

THE COURT: Oh, that's a good question. That's what 19

we need to talk about, how we're going to designate the 20

alternate and what -- Mr. Keever, what you just said are a 21

couple of ways. 22

One is to pick three chairs and require each side to 23

excuse one of those three, and the person who's left is the 24

alternate. We can do it that way. Another way is to -- after 25

23


we -- after we're down to seven, we can just pick one of those 1

seven at random and make that the alternate. There are 2

probably other ways and I don't have strong feelings about it. 3

Any preference? 4

MR. TOOLEY: I think the idea of having -- picking 5

three chairs for the alternate makes sense. Then we know that 6

that would be the alternate position now. 7

THE COURT: Okay. Just be -- just to fool the jury 8

panel. Sometimes they think they can figure it out. So just 9

to fool the, why don't we say the first three chairs. It's 10

almost always the last three, so let's say the first three. 11

And by that I mean back row, starting at the left, one, two, 12

three as the alternate panel. And you'll each have to -- as 13

your last peremptory challenge will be to excuse one of those 14

three. Is that all right? 15

MR. TOOLEY: Yes, Your Honor. 16

MR. KEEVER: Yes, Your Honor. 17

THE COURT: Okay, great. All right, anything else 18

before we get the jury panel in? I don't think we have the 19

paperwork yet, so we'll have a list. 20

So not yet? 21

THE CLERK: No. 22

THE COURT: Okay. That'll be a few minutes, but I'll 23

be able to give you a list of jurors and a chart. And I think 24

we have photocopies of the jury questionnaires that they filled 25

24


out. So we'll get that to you as well. 1

You have the witness list? Great, thank you. Okay. 2

Good. 3

Okay. If there's nothing else to talk about at this 4

point we can take a short break until we get the jury 5

information from the jury commissioner. 6

Anything else? 7

MR. KEEVER: Nothing, Your Honor. 8

THE COURT: No, okay. 9

MR. TOOLEY: Nothing from me. 10

THE COURT: We'll take five or how long it takes. 11

(Recess at 9:58 a.m., recommencing at 10:36 a.m.) 12

THE COURT: The jury panel's waiting outside the 13

door, so I guess it's time to invite them in. 14

(Prospective Jury Panel in at 10:37 a.m.) 15

THE CLERK: The District Court, Division 9 is now in 16

-- in and for the 21st Judicial District of Mesa County, 17

Colorado is now in session. The Honorable David A. Bottger 18

presiding. 19

All persons present will attend the transactions of 20

the Court calendar and come forward if their names are called. 21

THE COURT: Thank you. 22

Please be seated, ladies and gentlemen. 23

And good morning, welcome to Division 9 of Mesa 24

County District Court. My name is David Bottger. 25

25


And I have to say you're the quietest 65 people I've 1

ever seen in my life. You were so quiet when you came in here, 2

if I had my eyes closed, I would not have known you were here. 3

So to the extent that's respect for the Court, thank you. I 4

appreciated that. And I'm not encouraging you to be noisy, 5

just making the observation. 6

Once again, welcome. What I would like to do first 7

of all is give you a brief introduction to the people who will 8

be involved in the case that we are beginning to try today. 9

Let me tell you first of all that it is a civil case as opposed 10

to a criminal or any other kind of a case. 11

And let me introduce you to some of the people from 12

which you will hear during the course of the trial. 13

In a civil case like this, the case is brought by 14

people are called the plaintiffs and the party on the other 15

side is called the defendant. 16

So the Plaintiffs in the case, Mr. Dow Rippy. Mr. 17

Rippy would you stand so these folks can see who you are? 18

Thank you. That's Mr. Rippy, and Ms. Katharine 19

Rippy. They're the Plaintiffs and they are represented by Mr. 20

Nathan Keever. 21

Mr. Keever. 22

The Defendant in this case is not a natural person, a 23

human being. It is a legal entity, and so I can't have it -- I 24

can't have a business or a corporation stand up. The Defendant 25

26


in this case is an entity called SG Interests Seven Limited. 1

And their representative here with us today is Mr. Eric 2

Sanford. 3

Mr. Sanford. Thank you. 4

And this entity is represented by Mr. Brian Tooley. 5

Mr. Tooley. 6

MR. TOOLEY: Good morning. 7

THE COURT: And Ms. Nora Pincus. 8

Ms. Pincus. Thank you. 9

Ordinarily at this point, ladies and gentlemen I 10

would tell you a little something about the case, but I 11

realized early on that the attorneys are far better equipped to 12

do that, and so rather than do that, I suggested and they 13

agreed that they would give what we're calling mini opening 14

statements. 15

In other words, they're going to each take about two 16

or three minutes, and I mean that literally, because that's 17

what I told them and they promised to abide by that time limit. 18

They're going take about two or three minutes, just to tell you 19

from the point of view what the case is about because I know 20

they can do it better than I can, because they've been living 21

with this case for a while and have a much idea of what the 22

evidence is going to be than I possibly could. 23

So please pay attention to their mini opening 24

statements. Let me caution you before they start that what the 25

27


attorneys say is not evidence, ever. The evidence comes from 1

the witness stand. So what the attorneys are going to say to 2

you now is not evidence, but I'm sure it represents their good 3

faith belief in summary fashion about what this is going about 4

-- going to be about. 5

So please listen to them beginning with Mr. Keever. 6

MR. KEEVER: Thank you, Your Honor. 7

The Defendant is a Texas company that wanted to place 8

a natural gas pipeline to pipeline to move its natural gas from 9

Gunnison County up to Garfield County. 10

They selected a route that goes through Mesa County 11

and goes through the Rippy's property. Now the Rippys are 12

ranchers in Eastern Mesa County and run that operation there. 13

To facilitate the pipeline, the parties entered into 14

an agreement, and that agreement called for the pipeline to be 15

put in a specific location across the Rippy's property and that 16

the Rippys would be compensated for allowing that pipeline to 17

be there. 18

That compensation would take the form of cash, and it 19

would take -- they would get a new fence line built along where 20

the pipeline would go, and they would get work or improvements 21

to their property, terracing, as the pipeline was built through 22

their property. 23

A dispute arose, essentially when the Rippys 24

discovered that the Defendant was not putting the pipeline 25

28


where it had been agreed to in the agreement. 1

They also discovered that in the middle of July, the 2

Defendant was filling large semi trucks full of their 3

irrigation water from their irrigation reservoir. 4

They did not get the fencing or the terracing, and 5

they're seeking compensation for the other problems caused. 6

Thank you. 7

THE COURT: Thank you, Mr. Keever. 8

And Ms. Pincus. 9

MS. PINCUS: Now as Mr. Keever stated, this is a case 10

about contracts, this is about a breach about a contract. As 11

Mr. Keever also stated the Rippys were paid $110,000 to put a 12

buried natural gas pipeline across the Rippy's property. 13

Additionally, in addition to the items that Mr. 14

Keever mentioned, the Rippy got other new fences on their 15

property, which SG did install. SG also installed an 16

agricultural water line, Mr. Dow Rippy's design. 17

Now this easement was not explicit, meaning that SG 18

had a right to use the prop- -- as did the Rippys. Now 19

throughout the course of this pipeline construction, the Rippys 20

demanded additional items of work that they weren't entitled to 21

under the easement. 22

And SG complied for the most part, tried to be good 23

neighbors, trying to get this pipeline constructed on time. 24

But the Rippys demanded more and more items, of work that they 25

29


weren't entitled to under this contract. And at some point SG 1

said no, we can't give you any more work. 2

The Rippys didn't take this very well, and when SG 3

declined to purchase water from the Rippys at an exorbitant 4

price, far above market value, the Rippys reacted by evicting 5

SG off of the easement that they'd paid $110,000 for, shutting 6

down construction on this pipeline for almost ten days. 7

And this eviction had very serious consequences to 8

SG. It idled its work crews, it impounded equipment. And it 9

forced SG to do reclamation work, again that they had already 10

completed. The eviction cost SG hundreds of thousands of 11

dollars. 12

So in addition to the claims that Mr. Keever outlined 13

that the Plaintiffs have against SG, SG also has a complaint 14

and a claim against the Rippys. 15

Thank you. 16

THE COURT: Thank you, Ms. Pincus. 17

All right. Ladies and gentlemen, what I want to do 18

next is to explain some rules that you all need to follow until 19

you are excused as jurors and then we'll talk about the jury 20

selection process itself and get right into it. 21

If you are chosen as jurors, your job will be to 22

decide this case based solely on the evidence presented during 23

the trial and the instructions that I give you at the end. You 24

will not be investigators or researchers, so you must not read 25

30


or use any other material of any kind to obtain information 1

about this case. 2

This prohibition applies, for example, to 3

dictionaries, medical, scientific or technical publications, 4

religious books or materials, law books and the internet. I 5

want to emphasize that you must not seek or receive any 6

information about this case from the internet. That includes 7

Google, Wikipedia, blogs, other websites. It includes 8

everything. 9

If you were to violate this rule by receiving outside 10

information about this case, it might force me to declare a 11

mistrial, meaning that the trial would have to start over and 12

all the parties' work, my work, and your work on this case 13

would have been wasted. Therefore, it's very important that 14

you not receive outside information about this case, whether it 15

comes from other people, from the media, from books or 16

publications or from the internet. 17

You are free to use the internet, but only for 18

purposes unrelated to this case. Do not search for or receive 19

any information about the parties, the lawyers, the witnesses, 20

me, the evidence, or another place or location mentioned. 21

Do not research the law. Do not look up the meaning 22

of any words or scientific or technical terms used. If 23

necessary I will give you a definition of words or terms. 24

Also, you're not allowed to visit any places involved 25

31


in this case. If you normally travel through such a place, you 1

should try to take a different route until I tell you that your 2

jury service is completed. If you cannot take a different 3

route, you must not stop or attempt to gather any information 4

from that location. 5

In addition, you should keep in mind that the events 6

that we're going to be talking about in this trial happened 7

some time ago, so the location may not look the same as it did 8

then, and it would be inappropriate for you, or could be 9

inappropriate for you to base your decision on how things look 10

now rather than how they looked at some time in the past. 11

Until I tell you that your jury service is done, do 12

not communicate with anyone, including family and friends about 13

the evidence or the issues in this case. This prohibition 14

applies to all forms of communication, including in person, 15

written communication, telephone, cell phone calls and 16

electronic communications through any device. 17

For example, you must not communicate about this case 18

by email, text messages, Twitter, blogging or social media like 19

Facebook. 20

When the Court is not in session you may communicate 21

about anything other than this case. You may tell others that 22

you are on jury duty and that you cannot talk about this duty 23

until your service is completed. And you may tell them the 24

estimated schedule of your jury duty but do not tell them 25

32


anything else about the case. 1

If anyone tries to communicate with you about 2

anything concerning this case, you must stop the communication 3

immediately and report it to the Bailiff, who will notify me. 4

We anticipate that this trial -- or the trial's 5

scheduled for eight days. That includes all of this week and 6

three days next week, and we anticipate that may take that long 7

or nearly that long -- we're pretty confident it won't take any 8

more than that. 9

We'll be selecting six -- excuse me, seven jurors 10

today. Their job will be to consider all of the evidence and 11

reach a verdict with the help of instructions from the Court. 12

The jury's duty is to decide what the facts are from the 13

evidence that it hears and sees during the trial, and doing 14

this duty, the jury also has a duty to be fair and impartial to 15

both sides. 16

In this case the parties are entitled to a jury 17

trial. Trial by jury is an important part of our American 18

system of justice. Each juror plays an equal and an important 19

part in this system. This requires from each of you not only 20

your time, but your close attention, absolute fairness, and 21

good judgment. 22

This -- the jury that we select in this case will not 23

be sequestered. That means you're not going to be locked up in 24

a hotel room tonight or any other night, as far as I know. And 25

33


you'll be able to go home at the end of the day, and you'll be 1

able to, and in fact have to separate and have lunch on your 2

own every day until the case is over. 3

And this makes it critically important again, that 4

you follow the rules I just outlined. Don't discuss this case 5

among yourselves or with anyone else, or read, view or listen 6

to any reports about this case in the media or form or express 7

any opinions about this case until I ask you to begin your 8

deliberations and begin to form opinions. 9

Okay. The next order of business is to administer an 10

oath to all of you who are here on jury duty and then I'll talk 11

about the reasons why we may need to excuse some of you. 12

So if you're here on -- let me try again -- if you're 13

here on jury duty, please stand with me and raise your right 14

hand. Do you and each of you swear or affirm? 15

(The Prospective Jury was sworn) 16

THE COURT: Thank you. Please be seated. 17

My first question after the oath is always an easy 18

one. Is there anybody here on jury duty who did not take the 19

oath that I just administered? If you did not, raise your 20

hand? And I see my hand is the only one up, so we're off to a 21

good start. 22

I heard some laughs, and I usually do when I ask that 23

question. You may think it's an odd question. I have gotten, 24

if memory serves, two or three yeses to that over the years. I 25

34


got a yes response from, I believe it was a lady, who didn't 1

feel that she could take the oath because -- for religious 2

reasons, and I certainly respected that, and we managed to 3

accommodate that. 4

I also got a yes from, I think it was a gentleman, 5

who didn't take the oath because he didn't want to be on the 6

jury. I was not quite so accommodating. But we solved that 7

problem as well. 8

In order to serve on a jury in Colorado, you have to 9

meet certain minimum requirements. And I want to go through 10

those and make sure that you all do. If you think you don't or 11

if you're not sure, please raise your hand and get my 12

attention. 13

For example, to be on a jury in Colorado you have to 14

be a United States citizen at least as of the date your jury 15

service is to be performed, in other words, today. You cannot 16

serve on this jury if you do not reside in Mesa County or at 17

least live here more than half of the time, again as of today. 18

You have to be at least 18 years old. You must be 19

able to read, speak and understand English. 20

You may be excused if you are unable to render 21

satisfactory jury service because of a mental or physical 22

disability. 23

You also may be excused if your serving on this jury 24

would cause you undue or extreme hardship. And in this context 25

35


that means that you would suffer physical hardship, possibly 1

resulting in illness or disease of you serve on the jury. 2

Every time I read that, I wonder what they mean, because I 3

don't -- I suppose it's possible somebody could be sick of 4

being on the jury, but I'm -- anyway, it means what it says. 5

You also may be excused if you have the sole 6

responsibility for the daily care of a permanently disabled 7

person who lives in the same household that you do, such that 8

your being on the jury would cause a substantial risk of injury 9

to the health of that disabled person. 10

You also may be excused if your serving would cause 11

undue or extreme hardship to someone else under your direct 12

care or supervision. Meaning that you would be required to 13

abandon that person under your care or supervision because you 14

are unable to find appropriate substitute care during the term 15

of your jury service. 16

You also may be excused if you reside outside of Mesa 17

County with no intention of returning during the next 12 18

months; if you have already served on some jury, really any 19

jury, within the last 12 months, or if you are scheduled for 20

other jury service within the next 12 months. 21

And yeah, that's the list for now. 22

Anybody thinks that you may fall under one of those 23

categories, anybody? If not, don't despair because I have 24

another list. 25

36


This one is specific to civil cases like this one, 1

because you'll understand that the rules for civil and other 2

kinds of cases are often different. In order to be a juror on 3

a civil case such as this one, you have to meet all the 4

qualifications I just outlined. 5

In addition, you can be excused if you are related 6

within the third degree to any party. And since the Defendant 7

is an entity, this would only apply to the Rippys, if you're 8

related to either of them within the third degree -- and I'm 9

not sure I've ever actually figured out what it means to be 10

related to the third -- I think it means cousins, but I'm not 11

sure. 12

In any event, if you're related to Mister or Ms. 13

Rippy at all, we need to know about that, and we'll work out 14

the -- how close the relationship is. 15

If you have a certain relationship with either party, 16

and this could apply to any of the parties, you can't be on the 17

jury. These relationships include guardian and ward, master 18

and servant, employer and clerk, and principal and agent. Or 19

if you are a member of the family of any party or a partner in 20

business with any party or hold security on any bond or 21

obligation, you can't be on this -- for any party, you can't be 22

on the jury. 23

If you have served as a juror or been a witness in a 24

previous trial between the same parties for the cause of 25

37


action, you can't be on the jury. And I know that's not true, 1

that won't apply to anyone because there hasn't been one, 2

otherwise I would know about it. 3

If you have an interest in the action or the main 4

question involved, except the interest of a juror, as a member 5

or citizen of a municipal corporation. 6

And the example I usually give is this: If before 7

you came into the courtroom today, you placed a bet with your 8

bailiff about who would win this trial, that has two 9

consequences. One is that your bailiff will be fired, because 10

she knows better. And the other is then you would have a 11

financial interest in the outcome of the case, and so you could 12

not serve on this jury; that's just an example. 13

If you have formed or expressed an unqualified 14

opinion or belief as to the merits of this case, you can't be 15

on the jury. Or if you have a state of mind of enmity or bias 16

for against either side, you can't be on this jury. 17

Does any of that describe any of you? 18

Yes, sir. You are? 19

PROSPECTIVE JUROR BOIANI: My name's Ben Boiani. I 20

work in natural gas and that pipeline going through is directly 21

going to affect my job. 22

THE COURT: Really, okay. In other -- are you saying 23

in other words if the pipeline were to be removed that would 24

have a direct affect on you? 25

38


PROSPECTIVE JUROR BOIANI: Well, I certainly have a 1

bias towards the pipeline going through. And my company pushes 2

directly into the pipeline, so -- 3

THE COURT: Okay. Okay. Is that -- 4

PROSPECTIVE JUROR BOIANI: -- maybe, maybe no? 5

THE COURT: Sorry? 6

PROSPECTIVE JUROR BOIANI: Maybe, maybe not. I just 7

thought I'd put it out there before I -- 8

THE COURT: Okay. Yeah, I appreciate that. Let me 9

-- your name again, please, sir? 10

PROSPECTIVE JUROR BOIANI: Ben Boiani. 11

THE COURT: Mr. Boiani. 12

PROSPECTIVE JUROR BOIANI: B-O-I-A-N-I. 13

THE COURT: Let me make a note next to your name, and 14

if you get in the jury box I am confident the attorneys will 15

want to explore that with you in a little more detail. 16

Sounds like everybody else equally competent -- 17

confident -- incompetent. 18

Okay. Anyone else? Oh, well congratulations. 19

You've all passed the first couple of hurdles to jury service 20

and now we can get down to a little more specific business. 21

What I'm going to do in just a moment here is call 17 22

names, and I'm going to ask those folks to sit over in the jury 23

box. Because there are only 16 chairs in the jury box one of 24

you will have to sit on the chair outside, but that person is 25

39


on the same status as everybody else. You're not a second 1

class juror, it's just that there are only 16 seats in the box. 2

From that point on, my attention and questions and 3

the attorneys' questions will be directed to those 17 people. 4

This does not mean however that the rest of you should get out 5

a book, because it's pretty likely that we'll have to excuse at 6

least some of those 17. Anybody who's excused has to be 7

replaced. If you're called as a replacement, and if you've 8

been paying attention up to that point, our conversation with 9

you will be a lot shorter than if you haven't. 10

So it will be in your interest as well as ours to pay 11

attention, even if you're not part of the first 17. 12

As I've already said, our purpose is to find a fair 13

and impartial jury and that by I mean a jury that will decide 14

this case based on the evidence it hears here and the law that 15

I give it, and not based on anything else. 16

To find those seven people that constitute that fair 17

and impartial jury, we're going to be asking these 17 people a 18

lot of questions. The purpose of some of that may be obvious. 19

The purpose of other, maybe not so obvious. But they all have 20

the same purpose and that is to pick a fair and impartial jury. 21

It is not my purpose and I feel confident in saying 22

it's not the attorneys' purpose to embarrass anybody or to 23

unduly pry into your personal life, lives, or ask you any 24

embarrassing questions. The truth is, we might do all of those 25

40


things, because we need to get to know you in what is, in 1

life's terms, not very long, to find out if you're a good 2

person to do an important job for these parties and that is to 3

decide this case. 4

If anybody, myself included, asks you a question that 5

you just are not comfortable answering here in front of the 6

world, all you have to do is say so, and we'll take it up in a 7

more private setting. 8

My second request is this: If you're up in the jury 9

box and there's something on your mind that you think we should 10

know to decide if you'd be a good juror, or it's causing you to 11

question whether you would be a good juror, but I'm just not 12

smart enough to ask you the right question, please volunteer. 13

Don't wait for me to ask. If it's on your mind, it's important 14

enough to talk about. 15

My third request is a lot easier. If, when I call 16

your name, if I mispronounce it, especially your last name, 17

please correct me, because you deserve to have your name 18

pronounced correctly, or at least as correctly as I can say it. 19

So don't hesitate on that. 20

With that, I'll start calling names. We will fill 21

the jury box -- and let me tell you these seats are a lot 22

better than the benches you're sitting on. So you have that 23

benefit anyway. But we'll fill the jury box beginning with the 24

back row, the far left seat, and we'll fill the back row left 25

41


to right, and front row the same way, and then the one chair in 1

front. 2

I need to get my chart out so I can write down who's 3

where. Okay. Beginning with Jury Number 850, Neva Hudorf. 4

Thank you. How did I do on your last name? 5

PROSPECTIVE JUROR HUHNDORF: It's Huhndorf. 6

THE COURT: Huhndorf, oh. 7

PROSPECTIVE JUROR HUHNDORF: Pretty close. 8

THE COURT: H-U-N? 9

PROSPECTIVE JUROR HUHNDORF: H-U-H-N -- 10

THE COURT: H-U-H-N. Oh, I have an excuse because 11

it's misspelled on the jury list, so thank you. Anyway I'll 12

fix it and we'll get it right from now. On my list it's just 13

H-U-H-D-O-R-F, so we'll get that fixed. Thank you. 14

PROSPECTIVE JUROR HUHNDORF: You're welcome. 15

THE COURT: Juror Number 844, Don Reasoner 16

(phonetic). 17

Number 835, Catherine Mayer (phonetic). 18

Number 854, Michelle Burke (phonetic). 19

Number 885, Bret Albright (phonetic). 20

Number 914, Robert Windscheffel (phonetic). 21

Number 922, Irene Jessen (phonetic). 22

Number 827, Deborah McLean (phonetic). 23

First seat in the front row, Number 848, Gail Power. 24

Number 824, Terry Hamlin (phonetic). 25

42


THE COURT: Number 869, Gerald Condit. 1

Number 913, Robert Breazeale (phonetic), I hope 2

that’s close. 3

PROSPECTIVE JUROR BREAZEALE: That’s pretty good. 4


Number 1058, Leah Rice (phonetic). 6

Number 839, James Korber (phonetic). 7

Number 900, Katherine Cline (phonetic). 8

Number 876, Mary Golemon (phonetic), I’m not sure if 9

I said your name right. 10

PROSPECTIVE JUROR GOLEMON: I wasn’t listening. 11

THE COURT: How did you know to come up? 12

PROSPECTIVE JUROR GOLEMON: My number. 13

THE COURT: Okay. How do you say your last name? 14

PROSPECTIVE JUROR GOLEMON: Golemon. 15

THE COURT: Golemon, I added a syllable, thank you. 16

Thank you, Ms. Golemon. 17

Okay. Number 826, Summer Jones. Front –- up -- you 18

get the special seat, Ms. Jones, sorry. That’s the one. 19

All right. Well, thank you all. 20

Let me start out with this. As I told you, this case 21

is schedule to last for eight days and it might and I know 22

that’s a long time. And I know that it is inconvenient for 23

each one of you, for all of you, to be here today. I’m 24

confident that if I ask every one of you, you could readily 25

43


come up with someplace else that you’d rather be and something 1

else you’d rather be doing and that may be true of the parties 2

to this case, as well. But here we are. 3

We know that jury service is an interruption. It 4

interrupts your daily life, job, home, work, personal life, 5

whatever it is. I would ask you to at least consider the 6

possibility, I think it’s a fact, that it’s partly because we 7

have the right to have disputes decided by a jury, and the way 8

that protects us, as citizens, that we have the freedom to have 9

jobs and homes and personal lives to occasionally be called 10

away from, to perform a civic duty. 11

We also understand, however, that sometimes jury 12

service is more than an inconvenience. Sometimes it’s a 13

hardship that we should not ask people to suffer. And that’s 14

what I want to ask each of you on whom I just called. Whether 15

for any of you serving on this jury for eight days, all week, 16

and then three days maybe next week, will be a hardship to you? 17

And by hardship I included, but I’m not limiting it to 18

financial hardship. 19

So for any of you, would this be a hardship, if you 20

have to be here for the next eight days? 21

Yes, Ms. Cline? 22

PROSPECTIVE JUROR CLINE: I’m self-employed. 23


PROSPECTIVE JUROR CLINE: And I do have a very 25

44


important doctor appointment tomorrow. 1

THE COURT: Okay. Are those separate questions? I 2

mean your employment –- 3

PROSPECTIVE JUROR CLINE: Both. No -– yes, its two 4

different things. 5

THE COURT: Okay. Let me talk about your employment 6

because I don’t want to nose into your doctor appointment -- 7

PROSPECTIVE JUROR CLINE: Okay. 8

THE COURT: -- if I don’t have to. That’s really not 9

my business. 10

What do you do? 11

PROSPECTIVE JUROR CLINE: I’m a hairstylist. 12

THE COURT: Okay. And is it fair to say if you don’t 13

work, you don’t get paid? 14

PROSPECTIVE JUROR CLINE: Correct. 15

THE COURT: Okay. Ms. Cline, I have adopted the same 16

practice in dealing –- in talking to folks who have said what 17

you said, that I’m self-employed and so forth and so on. I ask 18

them and I take their word for it, whatever it is. You tell 19

me, if you’re here for eight days and that means you’re not 20

working for eight days and not making money for eight days, is 21

that going to cause you a financial hardship? 22

PROSPECTIVE JUROR CLINE: Yes, sir. 23

THE COURT: Any objection to excusing Ms. Cline, Mr. 24

Keever? 25

45


MR. KEEVER: No objection, Your Honor. 1

MR. TOOLEY: No objection, Your Honor. 2

THE COURT: Thank you, Ms. Cline, you’re excused. 3

And I should say to you and everybody who might be 4

excused, if you need paperwork to prove that you were here 5

today, you can stop by and get that from the bailiff when 6

you’re excused. If you don’t and if you’re excused, you can 7

simply be on your way. 8

Okay. And that also means, as I predicted, and it 9

didn’t take much to predict it, we have a chair to fill. So 10

before we go any further, I will do that by asking Juror Number 11

901, Mark Britvec to come forward, please. 12

PROSPECTIVE JUROR BRITVEC: Britvec (phonetic) is 13

very correct, sir. 14

THE COURT: Oh, good. Thank you. I hesitated for a 15

second. I just thought I’d go with the way it’s spelled and 16

hope for the best. 17

PROSPECTIVE JUROR BRITVEC: Very good. 18


Okay. Anyone else, including Mr. Britvec who –- yes, 20

Mr. Windscheffel? 21

PROSPECTIVE JUROR WINDSCHEFFEL: I’m also self-22

employed. 23

THE COURT: Okay. What do you do, sir? 24

PROSPECTIVE JUROR WINDSCHEFFEL: I run a retail 25

46


business. 1

THE COURT: You might as well advertise it. What is 2

it? 3

PROSPECTIVE JUROR WINDSCHEFFEL: It’s called R&S Toys 4

and Novelties. 5

THE COURT: Okay. 6

PROSPECTIVE JUROR WINDSCHEFFEL: We sell kitchenware, 7

toys, novelties and -- 8

THE COURT: Oh. 9

PROSPECTIVE JUROR WINDSCHEFFEL: -- stuff like that. 10

THE COURT: Okay. Does anybody else work there other 11

than you? 12

PROSPECTIVE JUROR WINDSCHEFFEL: No, just me. 13

THE COURT: Just you. So if you’re not there, you’re 14

not doing –- 15

PROSPECTIVE JUROR WINDSCHEFFEL: It’s closed. 16

THE COURT: I’m guessing that this might be a busy 17

time of year for you. Is that a good guess? 18

PROSPECTIVE JUROR WINDSCHEFFEL: Yes, it is. 19

THE COURT: What’s it going to do to you if your 20

business can’t operate for eight days because you’re here? Is 21

that going to be a financial hardship to you? 22

PROSPECTIVE JUROR WINDSCHEFFEL: Yes, it is. 23

THE COURT: How long has your business been in 24

business? 25

47


PROSPECTIVE JUROR WINDSCHEFFEL: About 14, 15 months, 1

I think. 2

THE COURT: Okay. So you’ve already been through a 3

Christmas season? 4

PROSPECTIVE JUROR WINDSCHEFFEL: Uh-huh. 5

THE COURT: Did you find last year that this is -– 6

PROSPECTIVE JUROR WINDSCHEFFEL: Busiest time of 7

year. 8

THE COURT: That’s what I figured. That’s what I 9

figured. 10

Okay. Mr. Keever, any objection to excusing Mr. 11

Windscheffel? 12


THE COURT: Mr. Tooley? 14


THE COURT: All right. Thank you, sir. Good luck 16

with your business. 17

PROSPECTIVE JUROR WINDSHEFFEL: Thank you. 18

THE COURT: I hope you do a great business this year. 19

PROSPECTIVE JUROR WINDSCHEFFEL: Thank you. 20

THE COURT: You’re excused. 21

And to occupy that chair, I’ll ask Juror Number 924, 22

Deborah Bielman (phonetic) to come forward please. Thank you, 23

Ms. Bielman. 24

Anyone else, hardship? 25

48


Yes, Ms. Mclean –- 1

PROSPECTIVE JUROR MCLEAN: Well, I don’t know if you 2

consider this -- 3

THE COURT: Mclean or Mclean? 4

PROSPECTIVE JUROR MCLEAN: What’s that? 5

THE COURT: Do you say Mclean or Mclean? 6

PROSPECTIVE JUROR MCLEAN: Mclean. 7

THE COURT: Mclean, thank you. Go ahead. 8

PROSPECTIVE JUROR MCLEAN: I might be needing to go 9

in for a job interview before the eight days. So -– I’m not 10

sure though because –- 11

THE COURT: When will you know? 12

PROSPECTIVE JUROR MCLEAN: I don’t know until they 13

call me. 14

THE COURT: Ah. 15

PROSPECTIVE JUROR MCLEAN: But it’s probable that it 16

will be during that time. 17

THE COURT: Okay. 18

PROSPECTIVE JUROR MCLEAN: It’s with the school 19

district so -– 20

THE COURT: Oh, I see. Okay. If you are called in 21

for a job interview. Do you know whether you’d be able to do 22

it at some time, which would not interfere with you being on 23

the jury? 24

PROSPECTIVE JUROR MCLEAN: I don’t know because they 25

49


-– it’s up to the school principal and hiring teacher. 1

THE COURT: I see. 2

PROSPECTIVE JUROR MCLEAN: As to when they’re going 3

to do those. 4

THE COURT: Okay. 5

PROSPECTIVE JUROR MCLEAN: I don’t know if I have it. 6

THE COURT: All right. In these economic times, here 7

is probably the stupidest question anybody could ask you, but 8

I’ll ask it anyway because that never stopped me before. Is 9

this job interview important to you? 10

PROSPECTIVE JUROR MCLEAN: It is. I mean, I was laid 11

off. 12

THE COURT: Uh-huh. How long have you not been 13

working? 14

PROSPECTIVE JUROR MCLEAN: Just since the beginning 15

of the school year. 16

THE COURT: Okay. Well, that’s –- 17

PROSPECTIVE JUROR MCLEAN: I mean it’s awhile. 18

THE COURT: That’s awhile. 19

PROSPECTIVE JUROR MCLEAN: Yeah. 20

THE COURT: Not as bad as some, but awhile. 21

PROSPECTIVE JUROR MCLEAN: Right. 22

THE COURT: Okay. What are you applying to do? 23

PROSPECTIVE JUROR MCLEAN: It’s a special aide and 24

Special Ed instructional, at this point. They’re putting 25

50


together new classes at the school that I was laid off from. 1

THE COURT: Okay. Well, this is sort of a contingent 2

hardship, I guess. 3


THE COURT: I think what I’m going to do Ms. Mclean, 5

I understand exactly what you’re saying first of all and 6

respect it, but I’m going to give the attorneys a chance to 7

chat with you, as well, and then ultimately they can make a 8

decision, if they want to take the chance. 9

PROSPECTIVE JUROR MCLEAN: Okay. And one other 10

thing? 11


PROSPECTIVE JUROR MCLEAN: We have a farm business, 13

just to put that out there, also. 14

THE COURT: Okay. Why are you telling me that? 15

PROSPECTIVE JUROR MCLEAN: Well, just because they’re 16

ranchers and -- 17

THE COURT: Oh, I see. 18

PROSPECTIVE JUROR MCLEAN: You know. 19

THE COURT: Do you think that would cause you to side 20

with them? 21

PROSPECTIVE JUROR MCLEAN: I don’t know. I just 22

thought of that when -- 23

THE COURT: Okay. 24

PROSPECTIVE JUROR MCLEAN: When you talked -– when 25

51


they explained the case -- 1

THE COURT: Yeah. 2

PROSPECTIVE JUROR MCLEAN: -- and property and so 3

forth. 4

THE COURT: Well, that’s actually -– I appreciate you 5

saying that. That’s a good example of the sort of thing that I 6

might not think to ask, but I’m grateful that you volunteered 7

because it could make a difference. 8

PROSPECTIVE JUROR MCLEAN: It just popped in my 9

mind -- 10

THE COURT: Great. 11

PROSPECTIVE JUROR MCLEAN: -- when they talked about 12

what the case was about. 13

THE COURT: Okay. Great. Have you ever -– in your 14

farm business, have you ever agreed that somebody else could 15

put a pipeline under your farm or have an easement across it or 16

anything like that? 17

PROSPECTIVE JUROR MCLEAN: No, it’s been attempted to 18

put sewer through there. That they were going to request to do 19

that or that they were just going to do that. That’s been a 20

few years ago, but -- 21

THE COURT: Okay. 22

PROSPECTIVE JUROR MCLEAN: -- it hasn’t happened. 23

THE COURT: Do you know why not? 24

PROSPECTIVE JUROR MCLEAN: I don’t know, just 25

52


probably lack of money in the town. 1

THE COURT: Okay. It wasn’t because you said no or 2

was it? 3

PROSPECTIVE JUROR MCLEAN: Not necessarily, no. 4

THE COURT: Did you ever get to the point of really 5

working out the details? 6

PROSPECTIVE JUROR MCLEAN: No. 7

THE COURT: All right. Thank you for that 8

information. 9

Anyone else for whom being on this jury -– yes, sir. 10

Mr. Britvec? 11

PROSPECTIVE JUROR BRITVEC: Yes, I work for a small 12

surveying company. 13

THE COURT: Okay. 14

PROSPECTIVE JUROR BRITVEC: And we have two in the 15

office and two in the field. One of the members that was in 16

the field was just ran over by a car last week. 17

THE COURT: Oh, I’m sorry. 18

PROSPECTIVE JUROR BRITVEC: And I’m the only member 19

left to work in the dirt. 20

THE COURT: Okay. Are you an employee or an owner? 21

PROSPECTIVE JUROR BRITVEC: I’m an employee. 22

THE COURT: If you’re on the jury, will that be a 23

hardship to you or to your employer? 24

PROSPECTIVE JUROR BRITVEC: Both. I’ve been 25

53


unemployed for two years. 1

THE COURT: Okay. 2

PROSPECTIVE JUROR BRITVEC: The economy with a little 3

bit of a change going on in the economy right now. 4

THE COURT: Sure. 5

PROSPECTIVE JUROR BRITVEC: I was just called back to 6

work a month ago. 7

THE COURT: Okay. Good. 8

PROSPECTIVE JUROR BRITVEC: And the employer is 9

benefiting a great deal by having my available time. 10

THE COURT: Okay. 11

PROSPECTIVE JUROR BRITVEC: I’m a professional land 12

surveyor. 13


PROSPECTIVE JUROR BRITVEC: And I’ve also worked in 15

the extraction industry for over 20 years. 16

THE COURT: Okay. 17

PROSPECTIVE JUROR BRITVEC: And so I don’t know 18

whether I would have bias. I tried to say no because I’m a 19

professional surveyor, but at the same time, I’ve been involved 20

in both project management and project engineering on cases 21

like this, and I often feel that it was in the contract. 22

THE COURT: Well, you don’t know that, right? 23

PROSPECTIVE JUROR BRITVEC: No, I don’t and that’s 24

what I mean. So then it comes down to that. 25

54


THE COURT: Okay. I’m going to get back to the 1

hardship issue. Mr. Britvec, if you’re here on jury duty, do 2

you get paid? 3

PROSPECTIVE JUROR BRITVEC: No, I don’t. 4

THE COURT: Ah, okay. And because -– the reason I 5

ask is because -– I respect what you said about your employer, 6

but I’m actually not allowed to consider hardship to an 7

employer. That’s your employer’s problem. I respect the fact 8

that you’re concerned about it. I’m not allowed to be. But I 9

am required to be concerned about your financial situation. 10

So, let me do the same thing as I did for the other 11

folks. If you miss eight days pay -– and I should point out 12

that after three days, you all get $50 a day for being on the 13

jury, which is –- well, its $50 a day. What can I say? 14

Knowing that Mr. Britvec, you tell me, if you’re on the 15

jury for eight days is that going to be a financial hardship to 16

you? 17

PROSPECTIVE JUROR BRITVEC: I’d consider it a 18

financial hardship, sir. 19

THE COURT: If you do, that’s as far as I inquirer. 20

Any objection to excusing Mr. Britvec, Mr. Keever? 21




THE COURT: Thank you, sir. You’re excused and I 25

55


hope your co-employee gets better soon. 1

PROSPECTIVE JUROR BRITVEC: Thank you very much. 2

THE COURT: Yes, sir. Thank you for coming in. 3

Okay. Next we need to meet Juror Number 879, Donald 4

Gregory (phonetic), please. 5

Good morning, Mr. Gregory, how are you? 6

PROSPECTIVE JUROR GREGORY: Fine. And how about you? 7

THE COURT: Just fine, sir. Thank you. 8

Okay. Anyone else for whom serving on this jury for 9

all eight days, because it’s possible, would be a hardship of 10

any kind to you not including, but not limited to financial? 11

Ms. Mayer, I saw your hand kind of tentatively go 12

up. 13

PROSPECTIVE JUROR MAYER: I don’t know if it would be 14

a financial hardship, but I am self-employed, as well. I’m a 15

photographer and this is probably my second busiest season of 16

the year. 17

THE COURT: Okay. What kind of photography do you 18

do? Whatever –- 19

PROSPECTIVE JUROR MAYER: I do mainly more -– I mean, 20

we do wedding portraits and commercial work. 21

THE COURT: All right. 22

PROSPECTIVE JUROR MAYER: If I were on the jury, I 23

would be here all day and then I would need to go home and 24

work. So -- 25

56


THE COURT: Ah. 1

PROSPECTIVE JUROR MAYER: -- it’s just me. I have 2

one employee, but she’s very part time. 3

THE COURT: Okay. Do you have jobs to do over the 4

next eight business days, do you know? 5

PROSPECTIVE JUROR MAYER: I don’t have any 6

photography work to do, but I do –- I mean photographing, but I 7

do have post-production work that’s needed to be done. 8

THE COURT: Okay. Tell me what that means, post-9

production work? 10

PROSPECTIVE JUROR MAYER: Editing photos, getting 11

them –- getting the material for the client. 12

THE COURT: Okay. So your plan would be if you’re 13

here from -– basically, it’s going to be 9 to 5 with a lunch 14

break, then you’d go home and –- 15

PROSPECTIVE JUROR MAYER: I would just get up early 16

and work and then work at night. 17

THE COURT: Oh, okay. 18

PROSPECTIVE JUROR MAYER: Normally, that wouldn’t be 19

a big deal, but I have three small children, as well. 20

THE COURT: With three small children, how could that 21

normally not ever be an issue? I mean when would you sleep? 22

PROSPECTIVE JUROR MAYER: Well, I have a very good 23

husband, but he -- 24

THE COURT: You want to keep him? Yeah, that would 25

57


be -– I take it what you’re saying. That would be a strain on 1

you and him. Does he work outside the home? 2

JUDGE MAYER: He works for himself, as well. So he 3

works partly outside the home and currently at home. 4

THE COURT: Oh, I see. Okay. Well, one thing I’m 5

concerned about, Ms. Mayer, is that with a schedule like that 6

we might not have your -– we might not have you at your best. 7

We might not have your full attention. 8

I keep an eye on jurors and if they start to doze 9

off, I try to wake them up. But, obviously, we need people 10

here and I know the parties want jurors here who are going to 11

be mentally alert and be able to pay full attention to what’s 12

going on because this is important to them. And I don’t know 13

what your experience is and whether you’ve ever had to do this. 14

Basically, work all day and kind of work all night and get up 15

early and so forth, anything like that? 16

PROSPECTIVE JUROR MAYER: No. I mean when I say all 17

night, I didn’t mean all night. 18

THE COURT: I know. 19

JUDGE MAYER: I just mean in the evening. 20

THE COURT: I know. I didn’t mean all night either. 21

JUDGE MAYER: Right. 22

THE COURT: I didn’t mean –- 23

JUDGE MAYER: It would be a lot of full days for me. 24

THE COURT: Sure. Okay. Well, I think because this 25

58


is a little bit more in the gray area, I’m going to give the 1

attorneys the chance to chat with you a little bit more about 2

this before making a decision about it. But I appreciate your 3

telling me what’s going on. Thank you. 4

Anyone else? Yes, Ms. Bielman? 5

PROSPECTIVE JUROR BIELMAN: Here again, this might 6

sound like a whine case and I’m not meaning for it to. 7

THE COURT: Okay. 8

JUDGE BIELMAN: But I am a teacher and this is the 9

end of the semester and we are administering NWEA tests. My 10

fifth graders were very -– they understood because it’s a great 11

civics lesson. 12


PROSPECTIVE JUROR BIELMAN: But on the other hand, 14

they were not too thrilled with having a substitute teacher and 15

for eight days that would be very difficult for my students and 16

especially, with the end of the semester. Our last day is the 17

15th, so I would be missing everything. I’d be missing -- 18

THE COURT: Yeah, that’s right. 19

PROSPECTIVE JUROR BIELMAN: -- the end of their first 20

semester at school and I’m putting it out there because you 21

asked. 22

THE COURT: Yes. No, I appreciate –- 23

PROSPECTIVE JUROR BIELMAN: I mean right now, the way 24

the school situation is the parents don’t take kindly if their 25

59


teachers are not there. 1

THE COURT: Well, I suppose you and I could talk 2

about the irony of that, given that -– 3

PROSPECTIVE JUROR BIELMAN: Isn’t that the truth. 4

THE COURT: Given the recent election results, but we 5

won’t. Instead, we’ll talk about this trial. And it sounds 6

like it would be more of a hardship on your students for you to 7

be here. 8

PROSPECTIVE JUROR BIELMAN: Although, like I said, it 9

would be a very good civics lesson for them. 10

THE COURT: Indeed it would. 11

PROSPECTIVE JUROR BIELMAN: I could do a great deal 12

with it. 13

THE COURT: I’m sure you would. And Ms. Bielman, let 14

me make you an offer and I’m not kidding. 15

PROSPECTIVE JUROR BIELMAN: Yes, sir. 16

THE COURT: If you end up on this jury or even if you 17

don’t, and if you decide that as part of the civics lesson you 18

might like to have a judge address your class -- it’s something 19

I have never said no to, when I can do it because it’s a great 20

-- it’s the most fun I have. So whether you end up on the jury 21

or not, I can tell you that all of the judges are happy to come 22

out and talk to classes. So keep that in mind. 23

PROSPECTIVE JUROR BIELMAN: Even in De Beque? 24

THE COURT: Yes. Oh, I used to -– sure, it’s not 25

60


that far. I like De Beque. I grew up in a small town, so it 1

feels like home. So absolutely, keep that in mind. But we 2

digressed. 3

I respect what you’re saying, but here again, if it’s 4

a hardship to your students I’m really not allowed to consider 5

that –- 6

JUDGE BIELMAN: Right. 7

THE COURT: But the attorneys can. Let me make a 8

mental note. I’ll give them a chance to chat with you about 9

it. 10

PROSPECTIVE JUROR BIELMAN: Right, thank you. 11

THE COURT: And we’ll see where we go from there. 12

Thank you for mentioning that. 13

Anyone else? Okay. Well, thank you all. I 14

appreciate everybody’s willingness to serve and in that, I 15

include those who have been excused and those who I just spoke 16

to because I know that what you’ve told me is real. 17

I’ve been doing this long enough that I think I have 18

a pretty good sense of when people are just saying things to 19

just try and get out of jury service and I don’t have that 20

feeling at all today. So thank you, everybody, for your 21

willingness to serve. 22

Have any of you served on a jury before? Okay. One, 23

two, three, four of you, was it –- for how many of you was it 24

not a criminal case? Most people end up serving on a jury on a 25

61


criminal case. 1

So Mr. Condit, it was not a criminal case? What kind 2

of case was it, sir? 3

PROSPECTIVE JUROR CONDIT: I was on the 1st Grand 4

Jury on the ballot for 18 months. 5

THE COURT: Oh, okay. So the Grand Jury, that’s 6

quite a bit different than what we’re doing here. You -– 7

PROSPECTIVE JUROR CONDIT: You have to do it for 18 8

months, too. 9

THE COURT: 18 months, yeah, that’s quite a bit 10

longer. 11

PROSPECTIVE JUROR CONDIT: Yeah. 12

THE COURT: So this seems like a short time, I guess, 13

relatively. 14

Okay. The other folks who raised their hands, you 15

all served on criminal trials? Okay. 16

And everybody -- those of you who served, and Mr. 17

Condit as well, those of you who served on criminal, that we 18

call Petit Jury’s as opposed to Grand Jury’s, you won’t be 19

surprised will you, to hear that the rules in civil cases are 20

significantly different from the rules in criminal cases? 21

PROSPECTIVE JUROR CONDIT: I was on a criminal case, 22

too. 23

THE COURT: Oh, were you? Okay. So you know that, 24

as well. 25

62


PROSPECTIVE JUROR CONDIT: I knew you -- you were 1

there. 2

THE COURT: Yes, sir. Thank you. 3

So everybody knows –- you won’t be surprised if the 4

rules are different here than in your trial? And anybody who 5

had served on a criminal trial or a Grand Jury, do you 6

anticipate any problems in following the rules that I give you 7

and basically, forgetting about the rules that you were told in 8

the criminal trial because they’re just not the same. Any 9

issues with that for any of the four of you? No? Okay. 10

How many of you have been involved in a trial -– 11

let’s say jury trial, in some way other than as a juror; party, 12

witness, interested observer, moral support for a friend, 13

anybody? 14

Yes, Ms. Power, tell me please. 15

PROSPECTIVE JUROR POWER: A child custody case. 16

THE COURT: Okay. And what was your involvement? 17

PROSPECTIVE JUROR POWER: I had custody of the child, 18

as well. 19

THE COURT: Ah, so you were interested in the 20

outcome. Was it a –- it wasn’t a jury trial, was it or wasn’t 21

it? 22

PROSPECTIVE JUROR POWER: Part of it was when they 23

went to take the child away from her mother. It was a sick 24

person. 25

63


THE COURT: Oh, I see. Okay. Sounds like it was 1

probably –- was that in Colorado? 2

PROSPECTIVE JUROR POWER: Yes. 3

THE COURT: It sounds like it was probably what we 4

call a dependency and neglect case. Does that sound familiar? 5

PROSPECTIVE JUROR POWER: A little. 6

THE COURT: Okay. At the jury trial part of it, were 7

you a witness? 8

PROSPECTIVE JUROR POWER: I was. 9

THE COURT: Did you have any other involvement at 10

that part of it? 11

PROSPECTIVE JUROR POWER: I had custody of –- 12

THE COURT: Right, but you were not a party? 13

PROSPECTIVE JUROR POWER: No. 14

THE COURT: Nobody was criticizing you or trying to 15

take away your right? 16

PROSPECTIVE JUROR POWER: No, absolutely not. 17

THE COURT: Okay. Is there anything about that 18

experience, Ms. Power, which you think might affect the way you 19

look at this case, if you’re on the jury? 20

PROSPECTIVE JUROR POWER: Do you want me to be 21

really, really painfully honest? 22

THE COURT: Yes. 23

PROSPECTIVE JUROR POWER: Who was the best liar 24

there. 25

64


THE COURT: Okay. That’s the way that trial seemed 1

to you? 2


THE COURT: Okay. I’m sorry it seemed that way, but 4

I can’t sit here and tell you that everybody who takes the oath 5

tells the truth because we both know that’s not true. 6

How do you think that would affect your approach to 7

this trial, if you were on the jury? Might you be maybe more 8

skeptical than other folks? 9

PROSPECTIVE JUROR POWER: Probably more. 10

THE COURT: Okay. 11

PROSPECTIVE JUROR POWER: And I too, was raised on a 12

ranch. 13

THE COURT: Okay. So does that mean that you’re 14

going to sympathize with the -– 15

PROSPECTIVE JUROR POWER: No, no. Because my brother 16

is in the gas industry. 17

THE COURT: Okay. So you’ve got somebody on both 18

sides. 19

PROSPECTIVE JUROR POWER: I do. 20

THE COURT: All right. I’ll speak for myself, Ms. 21

Power. I think I intend to approach people by believing them 22

until they give me a reason not to. And I’m wondering if based 23

on your experience, if you were on this jury, you might come to 24

it from the other direction? You might disbelieve people until 25

65


they -– witnesses, until they gave you a reason to believe 1

them. Do you think that might be your approach, if you were on 2

this jury? 3

PROSPECTIVE JUROR POWER: I don’t know that way. It 4

was a very bad one. And -- 5

THE COURT: Sure. It sounds like –- that’s a case 6

where you had –- I mean you had personal knowledge. 7

PROSPECTIVE JUROR POWER: Right. 8

THE COURT: You knew when people were telling the 9

truth and when they weren’t. 10

PROSPECTIVE JUROR POWER: I did. 11

THE COURT: If you’re on the jury, this jury, you’re 12

not going to have that kind of knowledge. 13

PROSPECTIVE JUROR POWER: No. 14

THE COURT: But you will and this applies to all of 15

you, one of the things we ask jurors to do, if the evidence -– 16

if testimony conflicts, is to decide who you believe. We call 17

it credibility. And I’m not just talking about somebody lying, 18

although that’s always possible, unfortunately. I’m talking 19

about people who remember things differently. I’m talking 20

about people who see things differently. You and I might see 21

the same event and see –- and have completely different 22

perceptions of it. So it could be an honest disagreement, as 23

well as not so honest. 24

And if you are on the jury, I’ll give you an 25

66


instruction that says you are the sole judges of credibility. 1

I’ll give you a list of things to think about in deciding whom 2

to believe and whom not to. But ultimately, it’s up to you 3

folks. 4

Ms. Power, is that something you think you’d be able 5

to do and willing to do, if you were on the jury? Decide who 6

you thought was right and who was wrong? 7

PROSPECTIVE JUROR POWER: That’s probably, yes. 8

THE COURT: Okay. 9

Is there anybody who wouldn’t be willing to take on 10

that task, if you were on the jury? Deciding on conflicting 11

testimony, whom you believe and whom you didn’t? Anybody? And 12

I don’t mean to suggest that it will be easy. I don’t mean to 13

suggest that you will necessarily be able to tell. But what I 14

want is -– what I need is a commitment from all of you that if 15

you’re faced with that situation, you’ll give it your best. I 16

mean that’s really all we can ask. Anybody who won’t? Okay. 17

Thank you. 18

Let’s see. I was in the process of asking if anybody 19

else had ever been involved in a trial. Anyone else? Anyone 20

else? 21

Do any of you know the Rippy’s? How about their 22

attorney, Mr. Keever? Do any of you know him? No? All right. 23

Anybody –- I can’t ask if you know -– have any of you ever 24

heard before today of SG Interest VII, LTD, anybody? No? 25

67


Anybody know Mr. Sanford or either of the Defendant’s 1

attorneys, Mr. Tooley or Ms. Pincus? Anybody? No? 2

Do any of you know any of the other of you? Look 3

around, it’s not an elevator, so you don’t have to stare 4

straight ahead. See if you know –- oh, we’ve got some familiar 5

faces. Okay. 6

Ms. Mclean, who do you know? 7

PROSPECTIVE JUROR MCLEAN: This is my accountant. 8

THE COURT: Mr. Gregory? 9

PROSPECTIVE JUROR MCLEAN: Yes. 10

THE COURT: Okay. Is that why you raised your hand, 11

Mr. Gregory? 12

PROSPECTIVE JUROR GREGORY: Yes, sir. 13

THE COURT: Okay. 14

MS. MCLEAN: She used to be with -– worked at the 15

post office that I go to all the time. 16

THE COURT: Okay. You’re pointing to Ms. Jessen? 17


THE COURT: All right. Great. 19

Anyone else? 20

Let me tell you why I asked that question. It’s not 21

just idle curiosity. I’m concerned if you end up on the jury 22

with somebody you know, that that could affect your decision. 23

Let me give you some examples, which may be farfetched, but I 24

think they make the point. 25

68


Let’s say you’re on the jury with somebody you know 1

and you think that person is a great judge of character and 2

very insightful, and so whatever they think, you’ll just agree 3

with them. Or maybe your on the jury with somebody you know 4

who you think is completely naïve and not a good judge of 5

character, and they fall for everything and everybody, and so 6

whatever they think you’ll just disagree with them, and you 7

can’t go too far wrong doing that. Or maybe your on the jury 8

with someone you know and your concerned –- you’re reluctant to 9

disagree with that person because you’re afraid that he or she 10

might be mad at you for not agreeing with him or her. 11

Obviously, none of those are a good way to decide this case. 12

We’re going to have seven jurors and we want you each 13

to make up your own mind. We want you to listen to each other, 14

but we want you to each make up your own mind, based on the 15

evidence and the law, and not worry about how your decision 16

might affect you after the trials over. So those are the sorts 17

of things that we worry about. 18

Ms. Mclean, if you’re on the jury with either Ms. 19

Jessen or Mr. Gregory, is there any chance that your decision 20

will be affected by anything along those lines? 21

PROSPECTIVE JUROR MCLEAN: I don’t think so. I don’t 22

see why. 23

THE COURT: Okay. Well, if you don’t see why, then 24

it’s not a problem. 25

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Mr. Gregory, how about you? If you’re on the jury 1

with Ms. Jessen and –- might that affect your decision? 2

PROSPECTIVE JUROR GREGORY: No, sir, it wouldn’t. 3

THE COURT: Or with Ms. Mclean, I’m sorry. 4

PROSPECTIVE JUROR GREGORY: No, it wouldn’t. 5

THE COURT: Ms. Jessen, how about if you’re on the 6

jury with Ms. Mclean? 7

PROSPECTIVE JUROR JESSEN: No. 8

THE COURT: All right. Thank you. 9

Anyone else? I didn’t miss anybody, did I? 10

Okay. What I want to do now is read you a list of 11

people who may be witnesses in this trial. I can’t tell you 12

that all of these people will be, but they might be. And so we 13

need to know if you know any of these folks. And I might read 14

the same name twice, if I do, forgive me. 15

Potential witnesses include: Rueben 16

Romero, Brett Herlbert, Mr. and Mrs. Rippy, whom you’ve met. 17

Mid Coolbaugh, his whole first name is Midford, isn’t it? 18

Yeah. Midford Coolbaugh, goes by Mid, I guess. Steve Clark, 19

Bruce Smith, Martha Morris, Lynn Garner, Gary Hill, Mr. Sanford 20

whom you've met, Jeff Jackman, Robert Guinn, II, Jeff, I'm not 21

sure how to say it, Langlois, L-A-N-G-L-O-I-S, Ron Griffith; 22

Kevin Brunk (phonetic), Katharine Dickert (phonetic), Philip 23

Martin, Esquire, Kelly Couey, C-O-U-E-Y; Steve Trexel 24

(phonetic), Eric Peterson; Barbara Brewer, and David, last name 25

70


spelled N-I-C-E-W-I-C-Z. 1

Any of you know any of those folks? No? Yes, maybe. 2

Ms. Mclean. You know everybody. 3

PROSPECTIVE JUROR MCLEAN: Maybe Steve Clark. 4

THE COURT: Okay. Tell me about the Steve Clark you 5

know. 6

PROSPECTIVE JUROR MCLEAN: Well, I know Clark 7

Orchard. 8

THE COURT: Okay. According to my list, this is 9

somebody who works for a business called Elite Field Services. 10

PROSPECTIVE JUROR MCLEAN: Okay. 11

THE COURT: Is that -- might that be the same person? 12

PROSPECTIVE JUROR MCLEAN: I don't think so. 13

THE COURT: Don't know? Okay. 14

PROSPECTIVE JUROR MCLEAN: Don't know. And Barbara 15

Brewer. 16

THE COURT: Okay. She's the county assessor, I 17

think. 18

PROSPECTIVE JUROR MCLEAN: Okay. 19

THE COURT: That's the Barbara Brewer we're talking 20

about. Is that -- 21

PROSPECTIVE JUROR MCLEAN: Okay. Yes, then. 22

THE COURT: Okay. Well, if the Steve Clark we're 23

talking about is the person you know, and if he testifies, 24

could you judge his testimony fairly or not? 25

71


PROSPECTIVE JUROR MCLEAN: I think so. 1

THE COURT: What's your relationship with him? 2

PROSPECTIVE JUROR MCLEAN: Just know him -- 3

THE COURT: Oh. 4

PROSPECTIVE JUROR MCLEAN: -- because we're in the 5

same industry. 6

THE COURT: Okay. Okay. Very good. 7

As I mentioned a few minutes ago, at the end of the 8

trial after the jury has heard all of the evidence, I'll give 9

jury instructions. Basically, I'll tell the jury this is the 10

law which you must follow, and if you're on the jury, it is 11

your sworn duty to follow that law, and that's true whether you 12

agree with it or not, whether you could come up with something 13

better or not, whether you understand the reasons for it or 14

not. 15

As jurors, your duty is to follow the law that I give 16

you, and I need a commitment from each of you that you will do 17

that. And I realize that that's asking for a lot because I 18

can't tell you right now what those instructions will say. 19

They depend, to some extent, on what the evidence is, and I 20

don't know what the evidence is going to be. So what I'm 21

asking you for is something that we generally don't give 22

people, certainly not strangers like me, and that is a blank 23

check. I'm asking you for a blank check that whatever I tell 24

you the law is, you will follow it to the best of your ability. 25

72


And like I said, I know that's asking a lot, but I 1

really don't have a choice because we can't wait until the end 2

of the trial for me to give you the instructions and then 3

decide if you'll follow them. So I'm forced to ask and will 4

ask you now, is there anybody who's not willing to commit to me 5

that you'll follow the instructions I give you to the best of 6

your ability regardless of what you think of them? Anybody who 7

can't do that? 8

Okay. Well, thank you. I appreciate the confidence 9

that's implicit in that. And I really don't think you're going 10

to find instructions that you'll consider bizarre or -- but 11

maybe. I don't know. 12

As I mentioned, one of the instructions you'll 13

receive is an instruction about credibility, and we'll ask you 14

to judge that if you need to, and we've already talked about 15

that. 16

Fundamentally, what I will tell you in the jury 17

instructions is that the Plaintiffs have the burden of proving 18

their claims by what is called a preponderance of the evidence. 19

That means more probable than not or more likely true than not. 20

And the Defendant has the burden of proving its claims by a 21

preponderance of the evidence. And I will tell you that if the 22

Plaintiffs prove their claims by a preponderance of the 23

evidence, then you find in their favor, and you award them 24

whatever damages you think are appropriate. If the Plaintiffs 25

73


don't prove their claim by a preponderance of the evidence, 1

even if it's a tie, then your duty would be to find against 2

them, to rule against them on that claim and say you didn't 3

prove it. 4

Same thing for the Defendant. If the Defendant 5

proves its claims by a preponderance of the evidence, then you 6

are obliged under the law to award the Defendant whatever 7

damages you think are appropriate also based on the evidence. 8

And if the Defendant doesn't prove its claims by a 9

preponderance, and again, that means even if there's a tie, 10

then your duty is to find against the Defendant and say no, you 11

didn't prove your claim. 12

Anybody anticipate any difficulty in following those 13

rules? They're really fundamental to this. 14

And I should mention to you, I want to be accurate 15

about this, Plaintiffs have also asserted a claim, it's called 16

claim for exemplary or punitive damages. They have to prove 17

that one by proof beyond a reasonable doubt, much as a criminal 18

case for those of you who have served on criminal trials, so I 19

want to mention that there's one claim that requires more 20

proof, but for the most part, we're talking about proof by a 21

preponderance of the evidence. 22

Both sides have asserted claims for money damages 23

against the other. Does that offend any of you, that they're 24

coming here asking you to award them money damages against the 25

74


other party? Does that bother anybody? And I ask because some 1

people have told me it bothers them. Anybody feel that way, 2

that they shouldn't be taking your time coming here asking for 3

money? No? Everybody's okay with that? Okay. 4

If the Plaintiffs prove their claims by a 5

preponderance of the evidence or for exemplary damages beyond a 6

reasonable doubt, is there anybody who's not willing to find in 7

their favor and award them whatever damages the evidence tells 8

you to award? Anybody who won't do that? No? 9

And if the Defendant proves its claims by a 10

preponderance, anybody who won't award whatever money damages 11

the evidence indicates? Okay. All right. 12

The fact that the Defendant is an entity, a 13

corporation, or a legal entity and not a human being, is that 14

going to cause any of you to favor one side or the other? Does 15

that bother anybody? No? 16

How about the fact that the Plaintiffs are people, 17

you can see them sitting there, is that going to cause you to 18

favor anybody who just dislikes people so much that you're 19

going to rule against them because they're people? No. 20

In the eyes of the law, natural persons, and the 21

Rippys are that, and artificial persons, and the Defendant is 22

that, are -- they're on the same footing. You can't favor or 23

disfavor one or the other just because of what they are. You 24

have to make your decision based on the evidence and law. 25

75


Anybody have a problem with that? Okay. 1

I'm thinking if there's any other topics I needed to 2

talk about. Oh, I had one thing I wanted to talk about. 3

I anticipate there will be some evidence regarding 4

real property and property descriptions and deeds and surveys 5

and that sort of thing. I mean, I can tell you from my 6

knowledge of the case that one of the things the attorneys and 7

witnesses are going to be talking about is figuring out the 8

boundaries of the Plaintiffs' property. That, I anticipate, 9

will be an issue. And so you're going to hear, I anticipate, 10

about things like that, about deeds and surveys and surveyors 11

maybe and property lines. Do any of you have any experience in 12

those fields? A couple of you. 13

Mr. Korber, tell me about that, please. 14

PROSPECTIVE JUROR KORBER: In my job with the State, 15

I sometimes do AutoCAD work and I keep a site plan of our 16

facility. I'm aware of some of the descriptions used in 17

establishing boundaries. 18

THE COURT: Okay. What specifically is your job with 19

the State, sir? 20

PROSPECTIVE JUROR KORBER: I'm a project planner out 21

of the Grand Junction Regional Center. 22

THE COURT: Okay. And, Ms. Mclean. 23

PROSPECTIVE JUROR MCLEAN: I used to work for a title 24

company. 25

76


THE COURT: What did you do? 1

PROSPECTIVE JUROR MCLEAN: I prepared legal 2

documents. 3

THE COURT: In preparing legal documents, did you 4

take information that other people gave you or did you go out 5

and gather the information like property descriptions on your 6

own? 7

PROSPECTIVE JUROR MCLEAN: Mostly property 8

descriptions and assisted with closings and that kind of thing. 9

THE COURT: Okay. And when you had to prepare a 10

document that had a legal description of property, where did 11

you get it, the description, I mean? 12

PROSPECTIVE JUROR MCLEAN: From usually the 13

courthouse. 14

THE COURT: Ah, okay. So you got it from some other 15

document? 16


THE COURT: You didn't go out and do any surveying 18

yourself, did you? 19

PROSPECTIVE JUROR MCLEAN: No. No. 20

THE COURT: All right. 21

PROSPECTIVE JUROR MCLEAN: I didn't do the surveys. 22

THE COURT: Okay. Anyone else who has any experience 23

in those areas? No. 24

Any of you have any experience or any training in the 25

77


law? Ah, yes, Ms. Burke. 1

PROSPECTIVE JUROR BURKE: I'm a peace officer. I 2

work with the Port of Entry out here in Loma. 3

THE COURT: Okay. So your experience is with the 4

criminal law? 5

PROSPECTIVE JUROR BURKE: Yes. 6

THE COURT: All right. Good. Thank you. Anyone 7

else? Okay. Yes, sir, Mr. Gregory. As an accountant? 8

PROSPECTIVE JUROR GREGORY: I was a law firm 9

administrator for a law firm in Grand Junction for three years. 10

THE COURT: Ah. Okay. 11

PROSPECTIVE JUROR GREGORY: And worked doing some 12

paralegal work with that firm. 13

THE COURT: Okay. 14

PROSPECTIVE JUROR GREGORY: I've also served as an 15

expert witness in over a dozen cases, mostly domestic cases 16

with local attorneys. 17

THE COURT: Okay. 18

PROSPECTIVE JUROR GREGORY: But nothing related to 19

property. 20

THE COURT: Okay. And you're an accountant, right, 21

sir? 22


THE COURT: And you have to be familiar with the law 24

at least as it pertains to accountancy, don't you? 25

78


PROSPECTIVE JUROR GREGORY: There is a portion of the 1

CPA exam that includes business law that you must pass -- 2

THE COURT: Ah. Yes, sir. 3

PROSPECTIVE JUROR GREGORY: -- for your CPA, yes. 4

THE COURT: Okay. And are you a CPA? 5

PROSPECTIVE JUROR GREGORY: I as a CPA. 6

THE COURT: So you passed that part? 7


THE COURT: And you have to keep up on the law 9

because it changes, doesn't it? 10


THE COURT: Okay. But not -- 12

PROSPECTIVE JUROR GREGORY: I also have several law 13

firms and lawyers as clients. 14

THE COURT: Okay. 15

PROSPECTIVE JUROR GREGORY: None of those who are 16

present. 17

THE COURT: Okay. All right. And I think you told 18

me, your legal experience doesn't have anything to do with 19

property disputes, does it, or -- 20

PROSPECTIVE JUROR GREGORY: It does not. 21

THE COURT: All right. Okay. 22

Have any of you ever been involved in a dispute over 23

property or property lines or easements or trespass, anything 24

like that? Nobody? Okay. Yes, Mr. Condit. 25

79


PROSPECTIVE JUROR CONDIT: I've had an argument with 1

property coming up on me when they wanted to build a 2

subdivision on me and getting all the easements and all that. 3

THE COURT: Okay. Was that resolved? 4

PROSPECTIVE JUROR CONDIT: Not completely because the 5

property is up for sale now because they lost their financial 6

that they was going with when the downturn turned, and it may 7

come out again. 8

THE COURT: Okay. Was the Court involved in that 9

dispute at all? 10

PROSPECTIVE JUROR CONDIT: No, but the County was. 11

THE COURT: County, okay. 12

PROSPECTIVE JUROR CONDIT: It's going to the county 13

down there. 14

THE COURT: All right. Okay. Thank you. All right. 15

It's getting close to noon, and I want to wrap up my 16

part of it, and I think what I'll probably do is give the rest 17

of you a little head start on the lunch break because the 18

attorneys have the right to speak to you and they haven't had 19

the chance to do that yet. 20

And I know this jury selection process is taking a 21

while, and I don't apologize for that because this is 22

important. It's important to these parties who decides their 23

case, and so we'll take the time we need to pick the jury. I'm 24

very confident we'll have a jury picked by the end of the day, 25

80


but I can't promise any of you that it will be much before 1

that, so I appreciate your patience. 2

I want to follow up -- finish up by asking you all -- 3

you folks here two questions. First of all, is there anything 4

any of you want to tell me, anything you think I or the lawyers 5

should know about you to decide whether you'd be a good juror 6

that we haven't already talked about? Now is your time to 7

volunteer information. Yes, Ms. Beilman. 8

PROSPECTIVE JUROR BEILMAN: It's an issue that I 9

would like to speak with you privately. 10

THE COURT: Absolutely. When I excuse everybody 11

else, if you'll stay behind -- 12

PROSPECTIVE JUROR BEILMAN: Thank you. 13

THE COURT: -- we'll take it up a little more 14

privately. 15


THE COURT: Thank you. And I appreciate that you 17

remembered that invitation. I hope everybody else does. If 18

it's something private, just say so and we'll try to respect 19

your privacy as well as we can. 20

So anyone else? Anything else that you -- that's 21

causing you to question where you can be fair in this case or 22

that you think we should know in deciding if you'd be a good 23

juror? Anything else? Okay. 24

Now, I'll ask my favorite question, which I know 25

81


people think is a trick question, but it's really not. Do any 1

of you want to be on this jury? And it's okay if you say no or 2

if you don't raise your hand. I mean, we -- it's called jury 3

duty, isn't it? It's not jury vacation. It's not called jury 4

fun. 5

This is a duty. It's important. And I think those 6

of you who have served on a jury before, I think you'll ratify 7

what I'm about to say, and that is it's harder than you think 8

before you do it. It's hard to sit there and just pay 9

attention all day. 10

I see Mr. Condon shaking his head yes. It's not 11

easy, and it's not supposed to be fun, but it is important and 12

I would suggest it a civic responsibility. 13

Anyway, thank you. Thank you for your answers to all 14

my questions. And like I said, rather than letting Mr. Keever 15

go for about five minutes and then interrupting him, because 16

that's what I would do, we're going to give you all a head 17

start on the lunch crowd. 18

Remember to follow all the rules that I explained to 19

you at the beginning today, and that applies to everybody 20

because none of you have been excused yet. 21

Ms. Witskin, when would you like these folks down in 22

jury assembly? If we're going to start at 1:30, when do you 23

need them? 24

THE CLERK: At 1:15, Your Honor. 25

82


THE COURT: Okay. If you'll be down in the jury 1

assembly room on the third floor at 1:15, we'll try to start 2

promptly at 1:30, and you'll get to hear from the attorneys, 3

which I know will be much more interesting than hearing from 4

me. 5

Thank you. See you at 1:30. Ms. Beilman, stick 6

around, please. 7

(Prospective jury out at 11:52: a.m.) 8

UNIDENTIFIED PROSPECTIVE JUROR: I have a question. 9

THE COURT: Okay. Everyone else can be seated. 10

Yes, sir, you are? 11

UNIDENTIFIED PROSPECTIVE JUROR: I have a condition 12

that I'm going to undergo surgery. Do I need to come up there 13

and talk to you about it or -- 14

THE COURT: You do, sir, just like everybody else. 15

I'm sorry, but we can't -- 16

UNIDENTIFIED PROSPECTIVE JUROR: Okay. I just wanted 17

to know if I need to tell you now or wait until -- 18

THE COURT: You need to wait until we call you up 19

there, sir. Thank you. 20

Okay. We're out of the presence of the jury panel 21

except for Ms. Beilman who's remained behind. And I'll start 22

as I always do with an apology to you that this is as private 23

as it gets in trial. 24

PROSPECTIVE JUROR BEILMAN: Oh, that's fine. 25

83


THE COURT: Is it okay? Thank you. 1

PROSPECTIVE JUROR BEILMAN: Yes, it is. 2

THE COURT: Everybody who's here is entitled to hear 3

what you have to say. I can't have truly private conversations 4

with anybody. 5

PROSPECTIVE JUROR BEILMAN: Oh, that's perfectly 6

fine. 7

THE COURT: Okay. Thank you, Ms. Beilman. What did 8

you want to talk about? 9

PROSPECTIVE JUROR BEILMAN: Well, other than the fact 10

that -- and I had brought up the fact that I'm a teacher, my 11

husband has pancreatic cancer. 12

THE COURT: Oh, I'm sorry. 13

PROSPECTIVE JUROR BEILMAN: And so after I'm done 14

with the school day, you know, he's doing okay. He just 15

finished chemotherapy and radiation, and he would be really 16

upset with me if I were broadcasting his situation. He was -- 17

THE COURT: None of us here will tell a soul. 18

PROSPECTIVE JUROR BEILMAN: He was a civil engineer 19

with Mesa County and then two years -- for 18 years, and then 20

two years ago before Christmas he lost his job. And so we've 21

been going through a really hard time. And so for me to have 22

to constantly drive up to De Beque to take care of papers and 23

put grades in and the gas involved after being here all day, 24

driving down here -- I live in Palisade. 25

84


THE COURT: Ooh. 1

PROSPECTIVE JUROR BEILMAN: It would be a financial 2

burden as well. And, you know, I don't want it to stand in for 3

my civic duty, but at this point in time it's just not a good 4

thing. 5

THE COURT: Okay. Mr. Keever, do you have any 6

questions you want to ask Ms. Beilman about that? 7

MR. KEEVER: No questions, Your Honor. 8

THE COURT: All right. Mr. Tooley, how about you? 9

MR. TOOLEY: No, sir, Your Honor. 10

THE COURT: Any position you want to express on 11

whether we should excuse Ms. Beilman? 12

MR. KEEVER: I have no objection to her being 13

excused. 14

MR. TOOLEY: We have no objection either, Your Honor. 15

THE COURT: Okay. 16

PROSPECTIVE JUROR BEILMAN: Thank you very much. 17

THE COURT: Thank you, Ms. Beilman. You're welcome. 18

And keep my offer in mind, would you? 19

PROSPECTIVE JUROR BEILMAN: Well, I will. 20

THE COURT: I'm not kidding. 21

PROSPECTIVE JUROR BEILMAN: I think it's good for 22

kids to know the system and -- 23

THE COURT: I agree. 24

PROSPECTIVE JUROR BEILMAN: -- to know that they 25

85


shouldn't get in trouble either. 1

MS. TOOLEY: Thank you for your time. 2

THE COURT: That's why I like to come talk to them, 3

so thank you. 4

Again, if you need paperwork to prove that you were 5

here, you'll need to go back down to jury assembly. 6

PROSPECTIVE JUROR BEILMAN: No, I'm fine. 7

THE COURT: You don't need -- 8

PROSPECTIVE JUROR BEILMAN: Well, unless they call me 9

again because I didn't complete this time around? 10

THE COURT: No, no. Since you came down, you're good 11

for the rest of the year, which is only 26 days, so big deal, 12

right? But it's something. Thanks, Ms. Beilman. 13


THE COURT: Okay. Okay. That means we're out of the 15

presence of the entire panel so I can take the few minutes we 16

have, take advantage of them to address this whole issue of 17

attorney fees and exemplary damages. 18

I did have a chance during the break to look at the 19

case Mr. Keever had cited, which is Beebe versus Pierce, 521 20

Pacific .2d 1263. It actually provides what I would call scant 21

support for the notion for which Mr. Keever has cited it 22

because the court there didn't say that attorney fees may be 23

considered in assessing exemplary damages. What it said, "We 24

do not intend to imply here that court costs or attorney fees 25

86


may never be considered in assessing exemplary damages." And 1

they pointed out there is authority for the view that they 2

made. 3

But there's another case which I think speaks to it 4

more directly, and that is Davies versus Bradley, 676 P .2d 5

1242. It's a 1983 Court of Appeals case in which the Court 6

held that -- well, I'll just read the sentence, "In determining 7

an appropriate award of exemplary damages, the Trial Court is 8

permitted to consider the plaintiff's expenses in prosecuting 9

the action." And they're specifically talking about attorney 10

fees and costs. 11

I hasten to point out that this case was overruled by 12

the Colorado Supreme Court for a different holding. It held 13

that exemplary damages could be recovered in the contract case. 14

The Supreme Court has disapproved that part of the holding, but 15

as nearly as I can tell, no one has disapproved the part of the 16

holding that says that if exemplary damages are recoverable, 17

attorney fees are a factor that the trier of fact can consider 18

in assessing attorney fees. They're not directly recoverable, 19

but they're a factor. So that appears to be the state of the 20

law as I read it. 21

So the extent there's a request, in limine request to 22

exclude evidence of attorney fees, that request is denied. 23

And with that, 1:30, Counsel. The courtroom will be 24

locked over the lunch hour if you want to leave things here. 25

87


However, as I always tell people, the management assumes no 1

responsibility for lost or stolen articles, but we'll lock the 2

room. See you at 1:30. 3

(Recess at 11:58 a.m., recommencing at 1:31 p.m.) 4

THE COURT: Ready to resume? 5

MR. KEEVER: We are, Your Honor. 6

THE COURT: Okay. All right. I should tell you that 7

we -- well, let me find the name and make my little note first, 8

then I'll tell you. 9

My division clerk received an email from the jury 10

commissioner, which she just read to me, and the pertinent part 11

of it is that Juror Number 896, Ms. Beightel, B-E-I-G-H-T-E-L, 12

reports that she had lunch at the Napoli's Restaurant and, 13

apparently, there were some attorneys there, and she overheard 14

attorneys talking about the case, and so she wanted us to know 15

that. And if she gets in the box, we'll have to chat with her 16

about it. 17

Candidly, looking at the random list, I don't think 18

we're going to get to her. 19

MR. KEEVER: Okay. 20

THE COURT: So it's probably a non-issue, and anyway, 21

I'm just reporting. 22

MR. KEEVER: We apologize. We should have paid a 23

little closer attention to -- 24

THE COURT: Well, with this many people, it would be 25

88


hard to expect anybody to recognize all potential jurors, but, 1

I mean, I assume that there was no intentional misconduct on 2

anybody's part. It's just one of those things, so -- but as I 3

said, I don't think we're going to reach her anyway. 4

Okay. So let me call the jury commissioner and tell 5

her we're ready to resume. 6

Hi, we're ready. Thank you. 7

And I can tell you the next -- the person I'll be 8

calling in the box here to replace Ms. Beilman is Jury Number 9

842, Erica Greenhill. 10

(Pause in proceedings) 11

(Recess at 1:34 p.m., recommencing at 1:40 p.m.) 12

THE COURT: Please be seated, ladies and gentlemen. 13

Welcome back. 14

I hope you all had a pleasant lunch and are ready to 15

go back to work. My first task is to refill the empty seat in 16

the jury box, and for that I will ask Juror Number 842, Erica 17

Greenhill, to come forward, please. 18

Ms. Greenhill, good afternoon. How are you? 19

PROSPECTIVE JUROR GREENHILL: I'm fine, thank you. 20

THE COURT: Good. Good. Sometimes in this job I'm 21

required to ask questions that I know the answer to and you 22

know I know the answer to, but the tape recorder doesn't know 23

the answer, and I have to ask it for purposes of the record. 24

And this is one of those times when I need to ask you whether 25

89


you were here this morning for jury selection. 1

PROSPECTIVE JUROR GREENHILL: Yes, I was. 2

THE COURT: Okay. Did you hear all the 3

conversations, questions, and answers? 4

PROSPECTIVE JUROR GREENHILL: Yes, I did. 5

THE COURT: And based on that, is there any reason 6

why you cannot or should not be on this jury? 7

PROSPECTIVE JUROR GREENHILL: I have two concerns. 8

THE COURT: Please. 9

PROSPECTIVE JUROR GREENHILL: The first being I am -- 10

I will be the provider for someone who's having a surgery on 11

Wednesday, the last day of the trial if it went eight days. 12

THE COURT: Okay. 13

PROSPECTIVE JUROR GREENHILL: The second concern is I 14

teach adapted PE for the school district, and we currently 15

don't have substitutes for our position, so -- and I'm required 16

to provide minutes for those students for the State of 17

Colorado. 18

THE COURT: Minutes? 19

PROSPECTIVE JUROR GREENHILL: Minutes, service 20

minutes, adapted PE minutes -- 21

THE COURT: Oh, okay. 22

PROSPECTIVE JUROR GREENHILL: -- for students with 23

special needs. 24

THE COURT: Okay. Okay. I thought you meant like 25

90


minutes of a meeting. 1

PROSPECTIVE JUROR GREENHILL: No. Sorry. 2

THE COURT: I was a little puzzled. No, I -- no, 3

that's my fault. 4

Let's talk about the first issue, first of all. This 5

is -- and I don't want names, and I don't want details, but 6

this is someone who's having surgery next Wednesday, and you're 7

going to look after that person who -- is this person going to 8

be planning on going home after the surgery? 9

PROSPECTIVE JUROR GREENHILL: No, huh-uh. They're 10

coming from outside the community to get the surgery done here. 11

THE COURT: Okay. So what's your role again? 12

PROSPECTIVE JUROR GREENHILL: I am a significant 13

other for that person. 14

THE COURT: Okay. Okay. Fine. That explains it 15

well enough. And I can't promise that will be done on 16

Wednesday. Most surgeries are scheduled pretty early in the 17

morning. Is this one? 18

PROSPECTIVE JUROR GREENHILL: Yes, it is, for 7:30. 19

THE COURT: All right. Okay. Mr. Keever, any 20

objection to excusing Ms. Greenhill? 21




THE COURT: Okay. It sounds like that person 25

91


probably needs you more than we do, so you should be there for 1

that person. Thank you, Ms. Greenhill. You're excused. 2

Okay. Next on the list is Juror Number 832, Thomas 3

Tuveson (phonetic), please. Mr. Tuveson, good afternoon. How 4

are you? 5

PROSPECTIVE JUROR TUVESON: I'm good. How are you 6

doing? 7

THE COURT: Just fine. Thank you. Were you here all 8

morning as well? 9

PROSPECTIVE JUROR TUVESON: Yes, I was. 10

THE COURT: Did you hear the proceedings? 11

PROSPECTIVE JUROR TUVESON: Yes. 12

THE COURT: Is this a task you are able to do? 13

PROSPECTIVE JUROR TUVESON: I believe so. 14

THE COURT: All right. What would you be doing if 15

you weren't with us, sir? 16

PROSPECTIVE JUROR TUVESON: I work for a car 17

dealership. I'm an accountant. 18

THE COURT: Do you know whether you'll be paid even 19

if you're here? 20

PROSPECTIVE JUROR TUVESON: I'll be paid. 21

THE COURT: Okay. Great. Good. You're salaried 22

then? 23


THE COURT: Okay. Excellent. That's good. Do you 25

92


know anything about this case other than what you've heard here 1

in the courtroom so far? 2

PROSPECTIVE JUROR TUVESON: No. I haven't heard 3

anything about it. 4

THE COURT: Do you know anybody involved? 5

PROSPECTIVE JUROR TUVESON: I know Barbara Brewer. 6

THE COURT: How? 7

PROSPECTIVE JUROR TUVESON: Well, I do her taxes. 8

THE COURT: If she testifies -- you know, I don't 9

know whether what she says is going to be disputed. I don't 10

know what she might even say, but if she testifies, do you 11

think you could evaluate her testimony and her credibility the 12

same as you would if you did not know her? 13

PROSPECTIVE JUROR TUVESON: I believe so. 14

THE COURT: Your relationship with her is purely 15

professional, I take it? 16

PROSPECTIVE JUROR TUVESON: She goes to our -- the 17

same church, but she goes to a different building. 18

THE COURT: Okay. All right. Have you ever been on 19

a jury before? 20


THE COURT: What kind of case, if you remember? 22

PROSPECTIVE JUROR TUVESON: It was a criminal case. 23

It was grand theft auto. 24

THE COURT: Here in Mesa County? 25

93



THE COURT: Did you serve on the jury and help reach 2

a decision? 3


THE COURT: Anything about that experience that you 5

think would affect your decision in this case? 6

PROSPECTIVE JUROR TUVESON: It's been a long time 7

ago, so I don't think so. I can only remember parts of it, 8

so -- 9

THE COURT: Well, you know enough this case doesn't 10

involve an auto theft? 11

PROSPECTIVE JUROR TUVESON: Right. 12

THE COURT: Right. And as I explained earlier, the 13

rules for civil cases are significantly different from the 14

rules for criminal cases, so do you expect any difficulty in 15

following the rules for this case? And to the extent you 16

remember it, forgetting about the other case? 17

PROSPECTIVE JUROR TUVESON: I don't anticipate any 18

problem. 19

THE COURT: All right. Is there anything about you 20

that I should know or the lawyers or parties should know in 21

deciding if you'd be a good juror for this case? 22

PROSPECTIVE JUROR TUVESON: I don't know. There's 23

nothing that I -- you know, I don't have any bad background or 24

anything like that. 25

94


THE COURT: No. I wasn't implying that you -- let me 1

ask it this way. Let's say if I was speaking to a close friend 2

of yours and I said, you know, we're thinking about Mister -- 3

having Mr. Tuveson on this jury. What qualities do you think 4

he would bring that would help this jury make a good decision? 5

What do you think your friend would say? And don't be modest. 6

PROSPECTIVE JUROR TUVESON: Well, I think they would 7

think that I was honest and would, you know, be straightforward 8

with whatever decision I come up with. 9

THE COURT: Those are excellent qualities. Okay. 10

Thank you, Mr. Tuveson. 11

At this point, as promised, I'll give you relief from 12

me and turn you over to the attorneys who I know have been 13

looking forward to speaking with you, beginning with Mr. 14

Keever. 15


Hi. Have any of you been -- resided in Mesa County 17

less than five years? Ms. Mayer -- 18

PROSPECTIVE JUROR MAYER: Uh-huh. 19

MR. KEEVER: -- how long have you been here, Mrs. 20

Mayer? 21

PROSPECTIVE JUROR MAYER: I want to say about three 22

years. 23

MR. KEEVER: Three years? Where did you come from? 24

PROSPECTIVE JUROR MAYER: Austin, Texas. 25

95


MR. KEEVER: And did you do photography in Austin as 1

well? 2

PROSPECTIVE JUROR MAYER: Not professionally. 3

MR. KEEVER: What did you do down in Austin? 4

PROSPECTIVE JUROR MAYER: I worked for Investment 5

Bank. 6

MR. KEEVER: Both sides in this case are likely to 7

use visual presentation up on the screen. Does anybody have 8

any concerns about being able to see the screen? And not 9

necessarily from where you're sitting, but from a physical 10

standpoint? Mrs. Power. 11

PROSPECTIVE JUROR POWER: Uh-huh. 12

MR. KEEVER: What is your concern? 13

PROSPECTIVE JUROR POWER: I have an appointment, an 14

eye appointment tomorrow to see about my blurred vision. 15

MR. KEEVER: Thank you. Anybody else? 16

You know, sometimes in life things happen at 17

unfortunate times, and they may not reach the level of a legal 18

hardship, as the Judge has outlined them, but they make it very 19

distracting to concentrate on anything that you're doing. And 20

I'm not going to ask you what you might be going through, but 21

is anybody caught in a situation where they've already had 22

trouble today just concentrating on what's going on? 23

All right. Has anyone had to take anybody else to 24

court, sue them? 25

96


PROSPECTIVE JUROR KORBER: Excuse me. Small claims. 1

MR. KEEVER: Small claims? What was that? What type 2

of action? 3

PROSPECTIVE JUROR KORBER: We purchased a house over 4

in Denver, and certain things were agreed upon, and when we 5

moved in they weren't there, so we took them to small claims 6

court and won. 7

MR. KEEVER: You were happy with the process? 8

PROSPECTIVE JUROR KORBER: Uh-huh. 9

THE COURT: For record purposes, that was Mr. Korber. 10

Occasionally, I'll do that, identify speakers, just so if we 11

need to know later on who it was, that's who it was. I hope 12

it's not too distracting. 13

MR. KEEVER: And, Mr. Korber, you indicated I think 14

when the Judge asked does anyone really want to be on the jury, 15

I don't know if you noticed it or not, but you seemed to nod 16

yes, you did really want to be on the jury. Why is that? 17

PROSPECTIVE JUROR KORBER: It's definitely not on my 18

bucket list, but, you know, the civic duty, it's just something 19

interesting to take part in in life. 20

MR. KEEVER: Does anyone else feel that way? I mean, 21

they're kind of interested in being here? Raise your hand 22

high. 23

Anybody have a farming background? Mr. Reasoner? 24

PROSPECTIVE JUROR REASONER: Yes. 25

97


MR. KEEVER: And what is your farming background? 1

PROSPECTIVE JUROR REASONER: Well, I grew up on a 2

farm for about 25 years. Had allergies, so I couldn't pursue 3

the occupation. 4

MR. KEEVER: So what occupation did you choose? 5

PROSPECTIVE JUROR REASONER: Maintenance. 6

THE COURT: What type of maintenance? 7

PROSPECTIVE JUROR REASONER: I've been with IIT or 8

Fiberboard, Rapco. They're the same company, just in the same 9

location through the insulation, insulate heating pipe, you 10

know, for refineries or stuff like that. 11

MR. KEEVER: Mr. Tuveson -- 12


MR. KEEVER: -- you have a farming background as 14

well? 15

PROSPECTIVE JUROR TUVESON: Well, I was raised on a 16

small dairy farm. 17

MR. KEEVER: Where at? 18

PROSPECTIVE JUROR TUVESON: In Utah. 19

MR. KEEVER: And you decided to leave that to get 20

into accounting? 21

PROSPECTIVE JUROR TUVESON: Well, like I say, it was 22

a small dairy farm, you know. My one brother took it over, 23

so -- 24

MR. KEEVER: Was it Mrs. Mclean? 25

98


PROSPECTIVE JUROR MCLEAN: Uh-huh. 1

MR. KEEVER: What's your farming background? 2

PROSPECTIVE JUROR MCLEAN: Well, my dad farmed. He 3

farmed in the summer, was a teacher during the school year. 4

And my husband, we have a fruit business in Palisade. 5

MR. KEEVER: Peaches? 6


MR. KEEVER: Does anybody have any family connections 8

in the oil and gas business? Mrs. Huhndorf? 9

PROSPECTIVE JUROR HUHNDORF: Yeah. 10

MR. KEEVER: What's your connection? 11

PROSPECTIVE JUROR HUHNDORF: My husband works in the 12

oil field. 13

MR. KEEVER: Who else then? Mr. Condit? 14

PROSPECTIVE JUROR CONDIT: Yes, just the way it's 15

spelled. I got a nephew that works in the oil field. 16

MR. KEEVER: Mrs. Huhndorf, is there anything about 17

what you've heard about this case so far that because of your 18

spouse's occupation that you feel you couldn't be fair to the 19

Rippys and to SG Interests in deciding this case? 20

PROSPECTIVE JUROR HUHNDORF: No. He's a drill bit 21

salesman, so no, I don't think of this would pertain to us 22

anyway on a personal level. 23

MR. KEEVER: How about you, Mr. Condit, anything 24

about your nephew being in the business? 25

99


PROSPECTIVE JUROR CONDIT: No. He's stictly dial -- 1

all the rigs and stuff. 2

MR. KEEVER: And who else? Mrs. Golemon. 3

PROSPECTIVE JUROR GOLEMON: My dad was in the oil 4

field all his life, and I've got two brothers in the business. 5

MR. KEEVER: And is there anything about those 6

relationships that you think would make it difficult for you to 7

be fair on the jury? 8

PROSPECTIVE JUROR GOLEMON: No, sir. 9

MR. KEEVER: You think you could set that aside if 10

you needed to and to listen to the evidence and make a 11

decision? 12

PROSPECTIVE JUROR GOLEMON: Yes, sir. 13

THE COURT: I noticed Ms. Power raised her hand as 14

well. 15

MR. KEEVER: Mrs. Power, you had your hand up? 16

PROSPECTIVE JUROR POWER: I have a brother in 17

consulting -- 18

MR. KEEVER: You indicated that before. 19


MR. KEEVER: Thank you. Anybody else? I thought so. 21

Mrs. Mclean? 22

PROSPECTIVE JUROR MCLEAN: Yeah. I have a nephew 23

that's in the oil -- 24

MR. KEEVER: Anything about that concerns you based 25

100


on what you've heard so far? 1

PROSPECTIVE JUROR MCLEAN: Not particularly, no. 2

MR. KEEVER: Mr. Albright, you indicated on your 3

juror form that you were in the construction field. What do 4

you do? 5

PROSPECTIVE JUROR ALBRIGHT: We do low voltage 6

cabling, security cameras, card access, CCTV. We've actually 7

done a lot of work in this building. 8

MR. KEEVER: And you work in the oil and gas 9

industry? 10

PROSPECTIVE JUROR ALBRIGHT: No. 11

MR. KEEVER: And, Mr. Hamlin, you indicated on your 12

form you're in landscape design. Can you describe what type of 13

work you do? 14

PROSPECTIVE JUROR HAMLIN: I do design work for some 15

landscape architects. Mostly they're working drawings or CAD 16

drawings in southern California. 17

MR. KEEVER: So you do it all remotely; is that -- 18

PROSPECTIVE JUROR HAMLIN: Yes. 19

MR. KEEVER: And what are they designs for? 20

PROSPECTIVE JUROR HAMLIN: Mostly -- 90 percent of it 21

is custom homes. 22

MR. KEEVER: So residential landscaping? 23

PROSPECTIVE JUROR HAMLIN: Yes. 24

MR. KEEVER: Large scales, sounds like? 25

101


PROSPECTIVE JUROR HAMLIN: Not always. 1

MR. KEEVER: Okay. 2

PROSPECTIVE JUROR HAMLIN: The lots are small. 3

MR. KEEVER: And, Mr. Condit, you indicated on your 4

form that you're in hydro operations. 5

PROSPECTIVE JUROR CONDIT: Right, I work at hydro 6

power plant now. I'm now retired from Xcel Energy our in the 7

(indiscernible) plant out here. 8

MR. KEEVER: Okay. 9

PROSPECTIVE JUROR CONDIT: I just moved down to the 10

other plant. 11

MR. KEEVER: Where's that plant? 12

PROSPECTIVE JUROR CONDIT: Down in Palisade. 13

MR. KEEVER: Oh, okay. The PID plant? 14

PROSPECTIVE JUROR CONDIT: Yes, the Orchard Mesa 15

irrigation district now -- 16

MR. KEEVER: Yeah. Okay. 17

PROSPECTIVE JUROR CONDIT: Xcel used to run it 18

(indiscernible) down. 19

MR. KEEVER: And, Mr. Breazeale -- 20

PROSPECTIVE JUROR BREAZEALE: Breazeale, yeah. 21

MR. KEEVER: -- what's your occupation? 22

PROSPECTIVE JUROR BREAZEALE: I'm retired. 23

MR. KEEVER: And what did you do before you retired? 24

PROSPECTIVE JUROR BREAZEALE: Well, I worked for the 25

102


post office until 1984, and then I quit because my parents were 1

becoming frail and sickly. My mom was confined to a 2

wheelchair, so I spent the next 25 years being a full-time 3

caregiver to them. 4

MR. KEEVER: Was that here in Mesa County? 5

PROSPECTIVE JUROR BREAZEALE: Yes. I'm a lifetime 6

resident. 7

MR. KEEVER: Mrs. Jessen, you indicated you're 8

retired on your jury form. What did you do before you retired? 9

PROSPECTIVE JUROR JESSEN: Post office. 10

MR. KEEVER: Career post office? 11

PROSPECTIVE JUROR JESSEN: Thirty-four years. 12

MR. KEEVER: Here in Mesa County? 13

PROSPECTIVE JUROR JESSEN: Palisade. 14

MR. KEEVER: Palisade. Thank you, Your Honor. I 15

have no further questions, and I'd pass this juror for cause. 16


Mr. Tooley. 18

MR. TOOLEY: Thank you. 19

First of all, thank you all for being here. We get 20

to ask you a lot of questions about what you do, and I just 21

briefly introduce myself. My name is Brian Tooley. I was 22

raised in Colorado. I graduated law school in 1988, and I've 23

been practicing law ever since. 24

Nora Pincus is also with our firm, and so, obviously, 25

103


the points of the voir dire is to talk about people's 1

preconceived ideas. Everybody has them. I have them. You all 2

have them. There's nothing wrong with preconceptions. But 3

it's kind of almost like a conflict of interest. Is there 4

something nagging, some experience in your life that makes you 5

believe maybe you're not the best person to sit in this juror 6

-- as a jury member. And that's really what a lot of these 7

questions are about. 8

So I would like to ask, first of all, does anybody 9

have any views about oil and gas development in the Western 10

Slope? Nobody has a view? People think there's too much? Not 11

enough? 12

THE COURT: Miss -- yeah. 13

UNIDENTIFIED PROSPECTIVE JUROR: Good and bad. 14

MR. TOOLEY: Okay. What's bad about it? 15

UNIDENTIFIED PROSPECTIVE JUROR: Where people don't 16

want it. Sometimes they don't always do what they say they're 17

going to do. It brings jobs to the community. We, obviously, 18

need the energy sources here, obviously. So it's good enough. 19

MR. TOOLEY: Okay. When you say some people don't do 20

what they said they were going to do, what types of things are 21

you thinking about in terms of -- that lead you to say that 22

there are people that don't do things that they said they were 23

going to do? Is there any specific instance you can -- 24

UNIDENTIFIED PROSPECTIVE JUROR: They don't finish 25

104


the locations off like they say they're going to or fence it 1

properly. 2

MR. TOOLEY: Do you have anyone in mind in 3

particular? 4

UNIDENTIFIED PROSPECTIVE JUROR: Company-wise? 5

MR. TOOLEY: Yes. 6

UNIDENTIFIED PROSPECTIVE JUROR: No. 7

MR. TOOLEY: Okay. Did you hear -- is this just from 8

newspapers you read or articles you read? 9

UNIDENTIFIED PROSPECTIVE JUROR: No. Personal 10

experience, but I was a teenager at the time. 11

MR. TOOLEY: What was your personal experience? 12

PROSPECTIVE JUROR: They drilled a gas well on my 13

dad's property and we lost some cows in the pond when they 14

broke through -- because it wasn't fenced right. 15

MR. TOOLEY: And does that experience, do you think 16

it makes it difficult for you to sit on a case like this? 17

UNIDENTIFIED PROSPECTIVE JUROR: Yes and no because 18

they did right by us. 19

UNIDENTIFIED PROSPECTIVE JUROR: Uh-huh. And is 20

there any other experiences that you've had that lead you to 21

believe some oil or gas companies aren't very good other than 22

that personal experience? 23

UNIDENTIFIED PROSPECTIVE JUROR: No. And I wouldn't 24

even remember who that was. I was a teenager at the time. 25

105


MR. TOOLEY: Okay. Anyone else have views on oil or 1

gas generally, whether or not we should have more development 2

in Mesa County? Less? Mister -- 3

PROSPECTIVE JUROR GREGORY: Gregory. 4

MR. TOOLEY: -- Gregory. 5

PROSPECTIVE JUROR GREGORY: I think responsible 6

development is everyone's goal. And the responsible part is 7

the one that people wrestle with. 8

MR. TOOLEY: And have you had experience dealing with 9

companies that you found to be responsible or instances where 10

they're not responsible? 11

PROSPECTIVE JUROR GREGORY: The firm I'm with has two 12

pipeline clients, W.C. Striegel and Willow Creek. One is a 13

pipeline maintenance company. The other one is a pipeline 14

installation company. And they both have been very 15

responsible, environmentally, contractually, financially. So 16

I'm very pleased with our relationship. 17

MR. TOOLEY: Has anybody been actively involved in 18

environmental organizations in opposing oil and gas operations? 19

Does anybody have a view on fracking? That's been a 20

big topic in the newspaper. Yes, Mr. Korber. 21

PROSPECTIVE JUROR KORBER: I work for -- I'm a 22

petroleum engineer by education, and I was in the oil business 23

from '84 to '89, and I worked for a fracking company. 24

MR. TOOLEY: What fracking company? 25

106


PROSPECTIVE JUROR KORBER: They were called the 1

Western Company back then. I believe they've, through mergers 2

and acquisitions, are called B.J. Hughes now. They have that 3

yard down by Mesa -- by the Mesa Mall. 4

MR. TOOLEY: Tell me a little bit more about your -- 5

you said petroleum engineering? 6

PROSPECTIVE JUROR KORBER: Yeah. 7

MR. TOOLEY: What -- tell me a little bit about that. 8

PROSPECTIVE JUROR KORBER: Oh, well, graduated in '84 9

and got a job in the industry, which wasn't that easy to do 10

back then. And we conducted fracking operations, cementing, 11

oil well acidizing, all down in -- my first assignment was in 12

Liberty, Texas, and transferred to Mineral Well, Texas. And 13

finished up in Hobbs, New Mexico. 14

MR. TOOLEY: Ms. Jones, you teach chemistry? 15

PROSPECTIVE JUROR JONES: Yes. 16

MR. TOOLEY: What age group do you teach? 17

PROSPECTIVE JUROR JONES: High school students, 18

juniors and seniors. 19

MR. TOOLEY: And with your chemistry experience, do 20

you happen to have a viewpoint or opinion oil/gas development? 21

PROSPECTIVE JUROR JONES: Not really. 22


PROSPECTIVE JUROR JONES: I'm semi-new to the area. 24

I've been here for nine years. 25

107


MR. TOOLEY: Where are you from originally? 1

PROSPECTIVE JUROR JONES: Virginia. 2

MR. TOOLEY: How many people have been -- can I have 3

a show of hands -- have been in Mesa County for over ten years? 4

20 years? So most of you. Does anybody here think that an oil 5

and gas company can wear the white hat? Does anybody have -- 6

yes, Mr. Korber? 7

PROSPECTIVE JUROR KORBER: Well, done properly. And 8

we've heard some of the horror stories here, but if done 9

properly and everything goes right, they drill the well, they 10

produce it and when they're done producing the well then they 11

should restore the land back to the way the owner wants it and 12

everybody's happy. If it works that way. 13

MR. TOOLEY: Is everybody comfortable putting 14

whatever preconceived notions that you've read about 15

development and decide this case on the facts that you hear 16

about this particular operation, without letting any of those 17

other stories influence your decision? Is everybody 18

comfortable with that? 19

Ms. Power, you mentioned you had some blurry -- some 20

problems with your vision, eye vision. Will you tell me a 21

little bit more about that? Are you able to read, for example, 22

writing on a board? 23

PROSPECTIVE JUROR POWER: I can read State of 24

Colorado over there. 25

108


MR. TOOLEY: So this is just a checkup examination 1

that you have scheduled? 2

PROSPECTIVE JUROR POWER: Pretty much. 3

MR. TOOLEY: Okay. Ms. Mayer, you had mentioned that 4

you have three children. How old are your children? 5

PROSPECTIVE JUROR MAYER: They are five, four and 6

two. 7

THE COURT: Sorry. Just a second. It's nothing 8

you're doing. I don't think -- is it somebody's phone, you 9

think? I don't carry a cell phone, so I have no idea. 10

Somebody using the hearing device? This lady here. Okay. I 11

don't know what it is. That's fine. That's fine. Sometimes 12

it just makes a noise. 13

UNIDENTIFIED PROSPECTIVE JUROR: I didn't do 14

anything. 15

THE COURT: No, I believe you. It stopped. Okay. 16

Good ahead, counsel, pardon the interruption. 17

MR. TOOLEY: I'm sorry. Ms. Mayer, you were saying 18

you have three children that you have to take care of. 19

PROSPECTIVE JUROR MAYER: I do, my husband and I. 20

They're five, four and two. 21

MR. TOOLEY: And you mentioned that if you were 22

selected as a juror that you would be required to work extra 23

time at the evenings. Could you tell me a little bit about how 24

long that would be and whether that would be -- wear you down? 25

109


PROSPECTIVE JUROR MAYER: Well, I work pretty much a 1

full day and I say that -- working and taking care of my kids. 2

We do have a nanny part of the time, but I do take my kids to 3

school. My husband and I both do that. My five-year-old child 4

has some special needs, so he requires a little bit more 5

intervention than my other two. But since it's my own business 6

and I only have a part-time employee, the work has to get done, 7

so I would need to do it when I'm not here. 8

MR. TOOLEY: Now, the Plaintiffs in this case get to 9

tell their side of the story first. You understand we have to 10

wait before we can tell our side of the story. And it could 11

be, you know, a fairly long trial. And do you think that you 12

can pay attention by the time that we get to tell our side of 13

the story with the same or equal attention that you pay to the 14

plaintiffs? 15

PROSPECTIVE JUROR MAYER: Sure. I would be -- I 16

completely agree with the civil service and the sacrifice of 17

being an a jury. I just want to make sure that the right 18

people are here. And I wouldn't want to be tired. So I just 19

put it out there that there may be days where I am, because I 20

have a lot of other responsibilities outside of jury duty 21

service. 22

MR. TOOLEY: Thank you. Is there anybody that would 23

have a problem; they can't commit to keeping their minds open 24

until they hear both sides of the story, even if it gets 25

110


dragged on and you're bored? I have to tell you it's unlike TV 1

shows. The drama. You will not see that in this courtroom. I 2

guarantee it. So I just want to make sure that people are 3

committed to saying, you knew, we've got to hear both sides of 4

the story before we make up our mind. Is there anybody that 5

has a problem with that? 6

Mr. Tuveson, you were present when the judge was 7

asking some questions. Do you think that a corporation should 8

be entitled to the same rights as a person in the court of law? 9

PROSPECTIVE JUROR TUVESON: Yeah, I think so. 10

MR. TOOLEY Does anybody think that there should be 11

any differences between the rights of a corporation or an 12

entity and the rights of a person? Nobody. Okay. And you 13

will agree to give the defendant, an entity, even though it's 14

not an individual, the same consideration, the same weight as 15

you would the testimony of the plaintiffs? All right. 16

Ms. Mclean, you had indicated you had done some title 17

work. Can you tell me a little bit about the nature of the 18

work you did? 19

PROSPECTIVE JUROR MCLEAN: I worked for a title 20

company and I prepared the legal documents for closings and 21

such, and assisted with closings. 22

MR. TOOLEY: Did you have -- how long did you do 23

that? 24

PROSPECTIVE JUROR MCLEAN: Probably about five years. 25

111


MR. TOOLEY: In the course of that work, did you have 1

to review warranty deeds and conveyance documents? 2


MR. TOOLEY: If there was a question about what 4

somebody owned, where would you look? What document would you 5

look at? 6

PROSPECTIVE JUROR MCLEAN: Probably a legal 7

description. 8

MR. TOOLEY: The warranty deed or whatever the 9

conveyance was? 10


MR. TOOLEY: Do you own real property? 12


MR. TOOLEY: This is on your farm? 14


MR. TOOLEY: How big is your farm? 16

PROSPECTIVE JUROR MCLEAN: The actual property is 17

probably about 30 acres. 18

MR. TOOLEY: How long -- is that in your family or in 19

your name or? 20

PROSPECTIVE JUROR MCLEAN: It's -- part of it is in 21

my husband's and my name. Part of it is in his parents' name. 22

MR. TOOLEY: Have you ever granted any easements 23

across your farm? 24

PROSPECTIVE JUROR MCLEAN: No. 25

112


MR. TOOLEY: Has anybody ever granted an easement 1

across land they own? 2

Okay. Ms. Power, what type of easement have you 3

granted across property? 4

PROSPECTIVE JUROR POWER: Telephone company. 5

MR. TOOLEY: And you own property? 6

PROSPECTIVE JUROR POWER: Uh-huh. 7

MR. TOOLEY: What size property do you own? 8

PROSPECTIVE JUROR POWER: It was 4.7 acres. 9

MR. TOOLEY: Does anybody own land larger than, say, 10

ten acres? Okay. 11

Ms. Jessen, what type of land do you own? 12

PROSPECTIVE JUROR JESSEN: It's 40 acres up on Glade 13

Park. 14

MR. TOOLEY: Okay. And what is it zoned, 15

agricultural or? 16

PROSPECTIVE JUROR JESSEN: It was. 17

MR. TOOLEY: What's happened to it? 18

PROSPECTIVE JUROR JESSEN: The houses are moving in, 19

so they changed it to residential. 20

MR. TOOLEY: How long have you owned that property? 21

PROSPECTIVE JUROR JESSEN: Twenty-eight years. 22

MR. TOOLEY: And you still own it today? 23

PROSPECTIVE JUROR JESSEN: Uh-huh. 24

MR. TOOLEY: What are your views about the 25

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residential development occurring around your property? 1

PROSPECTIVE JUROR JESSEN: The taxes went from $10 to 2

$1,700. I'm a little bitter. 3

MR. TOOLEY: I don't blame you. Have you 4

participated in any hearings before boards of county 5

commissioners on permit issues? 6

PROSPECTIVE JUROR JESSEN: No. 7

MR. TOOLEY: Has anybody been involved in being 8

before the Mesa County board of county commissioners to express 9

a view about land development? 10

Yes. It's Mr. Handle? 11

PROSPECTIVE JUROR CONDIT: Condit. 12

MR. TOOLEY: Condit, I'm sorry. Tell me about your 13

experience. 14

PROSPECTIVE JUROR CONDIT: It's not real good. They 15

were wanting to move in and land lock me from the sewer line 16

and everything, and I had to go to court and fight over it. 17

And they lost out on their financial deal and they’re gone now. 18

I don't know if I have to fight it again or not down the road. 19

MR. TOOLEY: So you were -- they said they landlocked 20

you. Who is they? 21

PROSPECTIVE JUROR CONDIT: The people that are doing 22

the subdivision. 23

MR. TOOLEY: So you own land and the subdivisions 24

were moving in? 25

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PROSPECTIVE JUROR CONDIT: And they are building -- 1

come in and bought the land to build around me, and I'm the 2

high point on the sewer line there, and they wasn't going to 3

give me no easements or nothing to the sewer line, but if my 4

sewer died, I was going to have a parking lot, is what my 5

property was going to be. And I had to go down and fight that. 6

MR. TOOLEY: And that was because of the importance 7

of ensuring that you had the easement that you needed to your 8

property? 9

PROSPECTIVE JUROR CONDIT: That I had access to what 10

I needed, yeah. 11

MR. TOOLEY: Anyone else? Did I miss anybody's hands 12

that owns -- anybody else involved in zoning issues or anything 13

like that? Land use issues? 14

Yes, Ms. Mclean? 15

PROSPECTIVE JUROR MCLEAN: Well, I don't know if this 16

is really a land use issue, but when we built the house we had 17

a property -- house that had some property and there was a 18

subdivision that was put in right alongside, everything was put 19

in and everything, so we decided to divide that property into 20

lots and it went through the Town of Palisade and it took a lot 21

of years, and it was a pain to get it done. Eventually it was 22

done. 23

MR. TOOLEY: Does anybody on the panel, are they paid 24

royalties from any oil or gas production on own any mineral 25

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rights? 1

THE COURT: Ms. Power, just keep your hand up. 2

MR. TOOLEY: Ms. Power, what -- do you own royalties? 3

PROSPECTIVE JUROR POWER: I own mineral rights. 4

MR. TOOLEY: Have you leased those mineral rights? 5

PROSPECTIVE JUROR POWER: I have. 6

MR. TOOLEY: Who have you leased those mineral rights 7

to? 8

PROSPECTIVE JUROR POWER: I can't -- it's con-9

something. 10

MR. TOOLEY: Are you satisfied with the party that is 11

responsible for developing your mineral rights? 12

PROSPECTIVE JUROR POWER: They're in the middle of 13

Vega Lake; they haven't done anything. 14

MR. TOOLEY: So they're just sitting there? 15


MR. TOOLEY: Who else? Mr. Korber? 17

PROSPECTIVE JUROR KORBER: My wife gets a hoping $10 18

check from a coal place somewhere in Virginia. 19

MR. TOOLEY: And Ms. Jessen? 20

PROSPECTIVE JUROR JESSEN: My husband has minerals 21

rights under Crawford Reservoir. 22

MR. TOOLEY: Under Crawford Reservoir? Are they 23

going to horizontally drill that or? 24

PROSPECTIVE JUROR JESSEN: I don't know what they are 25

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going to do. Used to be a landman, so -- 1

MR. TOOLEY: How long was your husband a landman? 2

PROSPECTIVE JUROR JESSEN: About five years. 3

MR. TOOLEY: Who was he a landman for? 4

PROSPECTIVE JUROR JESSEN: I don't remember. It was 5

a long time ago. 6

MR. TOOLEY: This was in -- just the Western Slope 7

area that he worked? 8

PROSPECTIVE JUROR JESSEN: He worked around Durango a 9

lot and just around here pretty much. 10

MR. TOOLEY: Ms. Golemon, I haven't heard much from 11

you, so I wanted to ask you some questions. You said you had 12

family in the oilfield business and could you tell me a little 13

bit about what you do? What you do -- education background 14

and -- 15

PROSPECTIVE JUROR GOLEMON: What I do? 16

MR. TOOLEY: Yes. 17

PROSPECTIVE JUROR GOLEMON: I just work in a 18

warehouse right now in the receiving area. I've done that for 19

a lot of years. I worked for K-Mart for 22 years doing that, 20

and then I installed computer for them in their new stores and 21

remodeled their new stores. I have a high school education. 22

MR. TOOLEY: You had to supervise other people? 23

PROSPECTIVE JUROR GOLEMON: Yes, sir. 24

MR. TOOLEY: So you've been in Mesa County for how 25

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long? 1

PROSPECTIVE JUROR GOLEMON: Since '77. 2

MR. TOOLEY: The warehouse, specifically what it is 3

again, what type of -- 4

PROSPECTIVE JUROR GOLEMON: Well, when I worked for 5

K-Mart I was their warehouse manager. It involved unloading 6

trucks, checking the freight coming in, making sure the 7

warehouse stayed organized so when you inventory you've got an 8

accurate count, and pretty much now, though, I'm not in the 9

supervisor position. I don't want that anymore. It's kind of 10

a glorified babysitting job, and I don't need that. 11

MR. TOOLEY: What do you like to do in your spare 12

time? 13

PROSPECTIVE JUROR GOLEMON: I hike. 14

MR. TOOLEY: Any particular areas, locally? 15

PROSPECTIVE JUROR GOLEMON: I go around Cimarron, up 16

around Cimarron a lot. I've been up on the Mesa. I just go 17

anywhere. I'm an outdoors person. 18

MR. TOOLEY: Let's see. We haven't talked to Mr. 19

Albright. In your construction work, sounds like you're in the 20

technology construction side of things. 21

PROSPECTIVE JUROR ALBRIGHT: Yes, sir. 22

MR. TOOLEY: Have you ever been involved in doing a 23

project and gotten interrupted during that project? 24

PROSPECTIVE JUROR ALBRIGHT: How do you mean? 25

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MR. TOOLEY: Well, you had a schedule that you were 1

planning to follow and something happened and you couldn't 2

follow that schedule? 3

PROSPECTIVE JUROR ALBRIGHT: It's usually always that 4

way to a certain extent in construction. 5

MR. TOOLEY: Is there any experiences that you've had 6

that have been particularly noteworthy that you had to deal 7

with? 8

PROSPECTIVE JUROR ALBRIGHT: Yeah. Last year we did 9

a job in Craig at a college and it was mainly the general 10

contractor that was just a nightmare to work for. Waited 11

months and months to get paid. I mean, that kind of stuff is 12

something that shouldn't happen, I don't believe. But for the 13

most part in construction it seems like everybody is kind of 14

messing around until it's time to get it done. Then it's work 15

60 hours a week. 16

MR. TOOLEY: Ms. Burke, you said you were at the 17

board of entry and peace officer position. Could you explain 18

that to somebody who's ignorant, like I am, the details of that 19

job and what you do? 20

PROSPECTIVE JUROR BURKE: Sure. What my job is, is 21

that I deal with just commercial motor vehicles only. I check 22

for weights, permitting, driver's license. And my job duty is 23

actually the mobile unit supervisor, so I set up mobile 24

locations around the Western Slope where the commercial traffic 25

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has to come in to me and I just check them from all their 1

permits. Like I said, weigh them. I do issue citations to 2

some drivers. 3


time? 5

PROSPECTIVE JUROR BURKE: Bowl. A lot. 6

MR. TOOLEY: Good. 7

PROSPECTIVE JUROR BURKE: Try to keep my teenage 8

daughter in line. 9

MR. TOOLEY: How old is your teenage daughter? 10

PROSPECTIVE JUROR BURKE: She's 17. 11

MR. TOOLEY: I've been there. Let's see. Who am I 12

missing here? Ms. Breazeale. Mr. Breazeale, excuse me. Could 13

you tell me a little bit about what -- sounds like you have had 14

your hands full over the last few years. What have you been 15

able to develop hobbies or what do you like to do, if you have 16

any leisure time? 17

PROSPECTIVE JUROR BREAZEALE: The two Bs, I guess, 18

drink beer and watch ballgames. 19

MR. TOOLEY: Well, I really appreciate it. Could you 20

just give me one minute. Ms. Rice? 21

PROSPECTIVE JUROR RICE: Yes. 22

MR. TOOLEY: You said you were in sales? 23

PROSPECTIVE JUROR RICE: Kind of. I'm a barista. I 24

sell caffeine. I'm coffee girl. 25

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MR. TOOLEY: How long have you been doing that? 1

PROSPECTIVE JUROR RICE: A year and a half. 2

MR. TOOLEY: What did you do before that? 3

PROSPECTIVE JUROR RICE: I was a children's pastor. 4

MR. TOOLEY: What kind of -- where did you serve? 5

PROSPECTIVE JUROR RICE: Canyon View Vineyard Church. 6

MR. TOOLEY: Was that a full-time position? 7

PROSPECTIVE JUROR RICE: Uh-huh. I'm only part-time 8

now. 9

MR. TOOLEY: How did you get in that line of work? 10

PROSPECTIVE JUROR RICE: Coffee? 11

MR. TOOLEY: No, when you were a children's pastor. 12

PROSPECTIVE JUROR RICE: Oh, the children's pastor? 13

MR. TOOLEY: Yeah. 14

PROSPECTIVE JUROR RICE: Well, my kiddos went to the 15

church for forever and I volunteered for free. So when they 16

offered a pay me, I thought that was good. I took it. 17


time? 19

PROSPECTIVE JUROR RICE: Mountain bike. I don't 20

know. That's why we moved out here. We're from California. 21

We've been here for six years. And my husband moved up to a 22

place where we could ride and that's what we do. 23

MR. TOOLEY: I thank you for all your time and I 24

appreciate your candor in particular. And I pass the panel for 25

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cause. 1

THE COURT: Thank you. All right, ladies and 2

gentlemen, that concludes this step of the jury selection 3

process. We have one more step to go, but it's a lot faster 4

because it doesn't involve anybody asking anybody anymore 5

questions. We're done with that. And we now know that our 6

jury of seven will come from this group of 17. We don't know 7

yet which seven it will be, and I'll explain to you in a minute 8

how we get to that point. But we do know it won't involve the 9

other, golly, 33 or so people out here with whom we haven't had 10

a chance to speak yet. Actually, 43. 11

In any event, I do want to say a word to all of you 12

with whom I have not had a chance to talk today and that word 13

is thanks. Thank you for coming in. I hope you understand 14

that we always have to call more people in than we know we'll 15

talk to, because we have to pick a jury randomly. And if we 16

just called in seven or even 17 people, that wouldn't be very 17

random. 18

It is ordinarily at this point in the jury selection 19

process that I tell that you that I can offer you kind of a 20

gift. It's not really a gift. You are entitled to it. It's 21

to tell you that because you came in today we can't call you 22

back for jury duty for the rest of the year. Well, it's 23

December, so the rest of the year is only 26 days. That's not 24

much of a gift, but it's all I've got. 25

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So thank you, happy holidays. If you need proof that 1

you were here today, the bailiff will provide that to you on 2

your way out. If you don't, you can simply be on your way. 3

Thanks again for your time. 4

(Prospective Jurors out at 2:23 p.m.) 5

THE COURT: Forty-eight, yeah, I'm not that quick. 6

Okay. 7

Well, how to go from 17 to seven. Subtract ten. 8

Easy. Right? Nothing in the courtroom is ever that simple. 9

Let me tell you how this works. 10

Each side in this trial has not only the right but 11

the duty, the responsibility to excuse five of you by 12

exercising what are called preemptory challenges. Unlike the 13

people who have been excused already, when someone is excused 14

on a preemptory challenge the attorney doesn't have to have or 15

give a reason. 16

All the attorney has to do is -- all that the 17

attorneys are going to do is write down your name on a piece of 18

paper, because I'll ask Mr. Keever to start that with a piece 19

of paper, two columns, one for Plaintiff, one for Defendant. 20

He'll write a name down. He'll pass it to Mr. Tooley and Ms. 21

Pincus. One of them will write a name down. And they'll pass 22

that paper back and forth until there are ten names on it. 23

Those ten people are excused, and whoever is not named, isn't 24

on it, will constitute the jury. 25

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Because of the way this is done, if you are one of 1

the ten excused, you certainly should not take it as an adverse 2

commentary on your -- on anything; your intelligence, 3

integrity, fairness, judgment. It's not none of those things. 4

Because if you had a real deficit in any of those areas, you 5

already would have been excused. It's simply that we have to 6

go from 17 to seven. Each side has to excuse five of you. 7

Even if they both wanted to keep all of you, even if they loved 8

you and wanted to keep you all to help decide the case, I 9

wouldn't let them do it anyway because I can't. So please 10

don't take it personally if you are excused. 11

This will take a few minutes. If you would like to, 12

you are welcome to stand where you are and stretch. Just don't 13

move around too much because they -- the lawyers need to be 14

able to look over to the jury box and associate a name with a 15

face and put their notes along with everything. So I ask you 16

to not mill around any and confuse them. But if you want to 17

stand where you are while this is going on, it will be a few 18

minutes and you are certainly welcome to do that. 19

I'll tell all of you, and the ten who are about to be 20

excused, thank you. Thank you not only for your time but for 21

your answers to our questions. And we can't have you come back 22

until next year either. So you get 26 days amnesty from jury 23

duty. Big deal, right? 24


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MR. TOOLEY: May I approach, Your Honor? 1

THE COURT: Please. All right. 2

Ladies and gentlemen, the lawyers have done their job 3

and so I need to tell you who will constitute this jury and, 4

once again, thanks to those of you who are about to be excused; 5

to you as well, if you need paperwork from the bailiff to prove 6

you were here, she'll provide that to you on your way out. 7

Our jury will consist of the following people: Ms. 8

Huhndorf, Ms. Burke, Mr. Albright, Ms. Jessen, Mr. Hamlin, Mr. 9

Korber, Ms. Golemon. I think that's seven. Let me double 10

check. The rest of you are excused. Thank you. 11

(Prospective Jurors out at 2:33 p.m.) 12

THE COURT: All right, ladies and gentlemen, the 13

attorneys and parties all can sit and I need you to stand, 14

because I need to administer an oath to you now that we know 15

you are the jury. So please raise your right hand. 16

(Empanelled Jury was sworn) 17

THE COURT: Thank you, please be seated, once again. 18

What I want to do now, folks, is give you kind of a roadmap. I 19

want to explain to you how this trial will proceed and also go 20

into a bit more detail about your conduct, what's permitted and 21

what's not. And some of this is repetitive of what I said 22

earlier, but some of it is not, so bear with me, please. 23

Members of the jury, now that you have been sworn to 24

try this case, I will instruct you as to your conduct during 25

125


the course of this trial. You may discuss the evidence during 1

the trial, but only among yourselves and only in the jury room 2

when all of you are present and no one else, including your 3

bailiff, is present. 4

You must not individually or as a group discuss or 5

form final opinions about any fact or about any potential 6

outcome of this case until after you have heard and considered 7

all of the evidence, the closing arguments of the lawyers and 8

the final instructions I will give you on the law. Keep an 9

open mind during the trial. Form your final opinions only 10

after you have discussed this case as a group in the jury room 11

at the of the trial. 12

Do not talk with anyone else about this case, 13

including your family and friends, the parties, their 14

attorneys, witnesses, media representatives or court staff 15

until this trial is over and you have been formally discharged 16

by the Court. At that time you will be free to discuss this 17

case with anyone, if you wish to do so. You simply must not 18

do so before the trial is over and you have been formally 19

discharged by the Court. 20

I want to mention here it's certainly possible during 21

recesses that you will see me or one of the parties or one of 22

the attorneys outside of the courtroom. Please don't be 23

offended that we don't stop and talk. In fact, please don't be 24

offended that we pretend like we don't even know who you are. 25

126


We know that we can't talk to you about the case outside the 1

courtroom. To avoid anyone even accusing us of that, we won't 2

speak to you at all outside the courtroom, so please understand 3

we're not being rude; we're being careful. 4

If anyone tries to talk with you or if you overhear 5

others talking about any party, witness, evidence or anything 6

else about this case, walk away and immediately notify the 7

bailiff, who will notify me. Also, do not read or listen to 8

any accounts or discussions of the case that may be reported by 9

newspapers or other publications or by television or by radio. 10

Now let me, as I promised, let me tell you how this 11

case will proceed and how the trial will proceed. After I'm 12

done talking, after we take a break for you to pick up -- for 13

you to get your jury notebooks, which I'll talk about in a 14

moment as well, the attorneys will then have the opportunity to 15

make what are called opening statements. The purpose of the 16

open statements is to give you an outline of each party's 17

claims and defenses. 18

You must remember, however, that what is said in 19

opening statement and all other statements made by the 20

attorneys are not evidence. Your verdict must be based upon 21

the evidence in this case and the instructions regarding the 22

law that governs the case. Generally the evidence consists of 23

the sworn testimony of the witnesses, the exhibits which are 24

received into evidence, and any facts which are admitted or 25

127


agreed to or judicially noticed. 1

After the opening statements, the Plaintiff's 2

attorney will present evidence. The Defendant's attorneys are 3

permitted to cross-examine the witnesses called by the 4

Plaintiff. Upon the conclusion of the Plaintiff's case, the 5

Defendant's attorneys may offer evidence on behalf of the 6

Defendant, but they are not required to do so. 7

If the Defendant presents witnesses in response to 8

the Plaintiff's evidence or to establish any defense or to 9

establish the Defendant's claims, the Plaintiff's attorney will 10

have the right to cross-examine those witnesses. The 11

Plaintiff's attorney may then chose to present further evidence 12

in response to any evidence presented by the defendant. 13

After all the evidence has been received, I will give 14

you the final instructions on the law applicable to this case. 15

These final instructions will replace any preliminary 16

instructions which you have been given before the trial 17

started. Based upon the evidence presented, the final 18

instructions may differ from the preliminary instructions, and 19

here I'm referring to what we talked about during jury 20

selection. If there is any difference between the legal 21

principles that we talked during jury selection and the final 22

instructions, you must follow the final instructions that you 23

will receive after the evidence is closed. 24

After you have received all the instructions on the 25

128


law governing this case, each side will have the right to 1

present closing arguments. Plaintiff's attorney will present 2

his closing argument first, and then the Defendant's attorneys 3

may make a closing argument. Plaintiff's attorney will have 4

the opportunity to respond to the defendant's closing 5

arguments. After those arguments are concluded, we will ask to 6

you retire and begin your deliberations. 7

During the course of the trial, attorneys may object 8

to questions asked by other attorneys and to answers given by 9

witnesses. It is an attorney's right and duty to object to 10

evidence or testimony or other evidence which the attorney 11

believes should not be admitted. If I sustain an objection to 12

a question or answer, that means that the witness is not 13

allowed to answer the question. You must not speculate what 14

the witness might have said, if permitted answer, and you must 15

not draw any conclusions from the question itself. If I 16

overrule an objection to a question, that means the witness 17

is allowed to answer it. You must give the answer no more 18

weight than if the objection had not been made in the first 19

place. Finally, if I instruct you to disregard something a 20

witness has already said, then you need to do that. You need 21

to treat that statement as though you had not heard it. It 22

must play no part in your decision. 23

As I mentioned, we'll be taking a break in a few 24

minutes, and during that break the bailiff will give you jury 25

129


notebooks and I want to talk a bit about those and why you 1

have them. They contain some -- what I'll generic material. 2

For example, there is a letter of thanks I believe from the 3

chief justice of the Supreme Court of Colorado. There is a 4

similar letter from me. You can read those, if you want to. 5

More importantly, the jury notebooks contain some writing 6

materials. 7

And there are two reasons for that, and I want to 8

talk about those. One is to take notes, which you are allowed 9

to do, but not required to do. If you take notes, we ask that 10

you not allow your note taking to detract from your close 11

attention to the testimony and demeanor of the witnesses or 12

from the other evidence presented in the trial. If you take 13

notes, we suggest that you take them sparingly. Do not try to 14

summarize or write down all of the testimony. Notes can be 15

particularly helpful when you are dealing with concepts such as 16

measurements, times, distance, identities and relationships. 17

Whether you takes notes or not, you should rely on your own 18

memory as much as possible and not on your notes or the notes 19

or memory of any other juror. The purpose of these notes is 20

really to refresh your recollection and not to replace it. 21

The second reason you will have writing materials in 22

your jury notebook is because you are allowed to the submit 23

questions to witnesses, and you will have forms that are 24

designed specifically for that purpose. It will be obvious 25

130


when you look at them that that is what they are. You are not 1

allowed to ask questions of witnesses directly. By that I mean 2

if a witness is testifying, you're not allowed to raise your 3

hand and say, hey, wait a minute, what about this? What you 4

are allowed to do and encouraged to do, if have you a question, 5

is write it down on the form in the notebook. Don't put your 6

name on it. We don't need to know and don't get to know whose 7

question it is. Before the witness is excused, I will ask if 8

there are any questions from the jury. I usually know ahead of 9

time because I can hear the paper rustling, but I'll ask 10

anyway. 11

If there are questions, I will ask the bailiff to 12

come up and collect them. She'll bring them up to me. I'll 13

invite the lawyers up here, so we can talk about them. There's 14

a reason we have to talk about them and I can't just read them. 15

It's because your questions are subject to the same legal and 16

evidentiary rules as the attorneys' questions. You might feel 17

that that that's unfair, since I know the attorneys are 18

familiar with the rules; I'm guessing you may not be. But I 19

have to follow the same rules anyway. So I'll apply those 20

rules to your questions. 21

If I decide that your question is a proper one, I'll 22

ask it. If I decide it's not, I won't. If I ask any of your 23

questions, I'll give the attorneys the opportunity to follow 24

up, if they wish. If I do not ask a question that you 25

131


submitted, first of all, don't take it personally because it's 1

not ask. 2

Secondly, don't speculate what the witness might have 3

said if I had asked the question, and don't draw any 4

conclusions from the question, and don't worry about why I 5

didn't ask it. Once the trial is over, if you're curious, I'll 6

be happy to tell you. But I really can't tell you while the 7

trial is going on. 8

On the flip side, if I ask a question that one of you 9

submitted, you should not give the answer more weight just 10

because it's your question than if it were somebody else's 11

question. Just because it's your question doesn't mean it's a 12

better one. It might be, but it might not be. So give the 13

answer however much weight you think it deserves, regardless of 14

who asked question. 15

I should tell you regarding your notes as well, as I 16

said, they're for your use. At the end of the trial, the 17

bailiff will collect your notebooks. If you've taken any 18

notes, she'll them take out and she'll throw them away without 19

reading them. in fact, nobody will read your notes but you. 20

And I tell you this so you don't worry about what somebody 21

might think about whether you took notes or not, what you wrote 22

down, what you didn't. No one is going know. Do whatever you 23

need to do regarding notes that's going to help you remember 24

the evidence and make a decision that's fair to both sides. 25

132


Okay. I think that's all I need to say. 1

Actually, I should have said one other thing. I 2

should say one other thing about scheduling, because you 3

deserve to know what the next eight days is going to be like. 4

On Mondays and Thursday we will start at 10:00,l because I have 5

other matters scheduled from 8:00 to 10:00 every Monday and 6

every Thursday. Every other day we'll start at 9:00. We'll 7

take a break in the middle of the morning. We'll break for 8

lunch at noon, as we did today, come back at 1:30, as we did 9

today. We'll take a recess about the middle of the afternoon, 10

and we're just about to do that. And we'll call it a day 11

pretty close to 5:00 p.m. If we finish up a witness a little 12

bit earlier, a little bit late, we may stop a little before or 13

after 5:00. But generally that's the schedule that you can 14

rely on. 15

And as I think I mentioned earlier today, if -- 16

you're quite restricted in what you can say about this case, 17

but if anybody asks you're allowed to say really two things: 18

I'm on a jury and the case is scheduled to last eight days. 19

That's really all you can tell them, other than that you can't 20

tell them anything else. 21

So with that, we'll take our mid-afternoon break. 22

Your bailiff will take you a different direction. She's 23

going to take you back that way to your new home away from 24

home, the jury room. She'll hand out the jury notebooks and in 25

133


about 15 minutes you will have the pleasure of coming back and 1

hearing these attorneys' opening statements, and then I think 2

we're going to get into some witnesses this afternoon. 3

Yes? 4

JUROR JESSEN: Is it okay to move down there because 5

this light just kind of went out and it's blinking. 6

THE COURT: You have a blinking light, Ms. Jessen? 7

JUROR JESSEN: It's straight up there. 8

THE COURT: Okay. You know, we'll -- 9

JUROR JESSEN: If I could just move down there. 10

THE COURT: Okay. Thank you for mentioning that, 11

because that's the one other thing I wanted to say. You have 12

16 seats and seven of you. Sit where you want in the jury box. 13

Absolutely. Sit where you need to sit to be able to see and 14

hear what's going on and we'll get a work order in about these 15

light bulbs, which sometimes they start to go out, which is not 16

so bad, but when they start to act like a disco light -- 17

JUROR JESSEN: That's what it's doing. 18

THE COURT: That's a little distracting, isn't it? 19

JUROR JESSEN: It's only been for 15 minutes or so. 20

THE COURT: Okay. Maybe it will just poop out. In 21

any event, sit where you'd like in the jury box. 22

JUROR JESSEN: Perfect. 23

THE COURT: And we'll take a break. 24

(Jury out at 2:47 p.m.) 25

134


THE COURT: You may be seated, if you'd like. 1

MR. TOOLEY: I just had one comment to make. 2

THE COURT: Let me -- I just want to say before I 3

forget that Ms. Hunhdorf is the alternate. Just wanted to 4

confirm that on the record. So we're good. 5

Yes, Mr. Tooley? 6

MR. TOOLEY: We had talked briefly about jury 7

notebooks. We didn't have a lot of time talking about it, but 8

want of the documents we agreed to put in the jury notebook is 9

the pipeline easement agreement. 10

THE COURT: Makes good sense. 11

MR. TOOLEY: I brought juror notebooks here. It 12

sounds like you already have yours, but these are just folders 13

with paper and the easement agreement. So you're free to do or 14

reject or whatever you want with them. 15

THE COURT: If you agreed on them, I'll be happy to 16

take them. Why don't you bring them up. When the jury comes 17

in I'll have the bailiff hand them out. As the trial goes on 18

-- I don't know how many exhibits there are going to be, but if 19

there are a lot, I trust you'll exercise discretion about what 20

to give the jury. But if there's something you think they need 21

to have, I'm fine with giving them copies to publish it that 22

way, and I think the contract makes good sense. 23

MR. KEEVER: I haven't seen the jury notebooks that 24

he's proposing yet. 25

135


THE COURT: Come on up on see one. Here you go. 1

I'll pick one at random so I assume it's typical. 2

MR. TOOLEY: The only thing I put in was the easement 3

agreement. I haven't put the letters in. 4

THE COURT: As exhibits come in we can add to it on 5

request. So anything else the record? I'll give you a chance 6

to look at that during the break. 7


THE COURT: Okay. Off the record. 9

(Recess at 2:49 p.m., recommencing at 3:07 p.m.) 10

MR. KEEVER: Your Honor, here's what we thought would 11

be the easiest, is to use your juror notebooks, but then we've 12

agreed on a Plaintiff's Exhibit Number 1 to be added to that. 13

THE COURT: Okay. 14

MR. KEEVER: And if you -- if we have the notebooks, 15

we could put them in for you, or if you want us to give you 16

copies for the bailiff to do that -- I don't know how you want 17

to work that. 18

THE COURT: The jurors will have the notebooks when 19

they come in, so let's just give those to the bailiff and 20

she'll -- she can distribute them. 21

MR. KEEVER: Okay. 22

THE COURT: Hand them out before openings, so -- 23

okay. We have a multimedia presentation ready? Yeah. That's 24

the right answer. 25

136


Anything before we -- 1

UNIDENTIFIED SPEAKER: Don't -- 2

THE COURT: I'm not -- no, I'm sure it will go great 3

this time, because I don't have anything to do with it. 4

Anything else before we get them in? 5

MR. TOOLEY: No, Your Honor. 6

THE COURT: No? Okay. 7

MS. PINCUS: Can we get a water? 8

THE BAILIFF: Yep. 9

MS. PINCUS: Thank you. 10

THE COURT: Lights, camera, action. 11

Hi. We're ready. Thank you. 12

Oh. And counsel, I'm supposed to collect your copies 13

of the jury questionnaires, if you have them, so that you don't 14

go home tonight, start calling all these -- you know. I'm just 15

supposed to collect them. If you don't mind. 16

MR. TOOLEY: We can't keep the ones with the jurors 17

selected? No? 18

THE COURT: Well, you can keep them till the end of 19

trial, if you want. I don't care. I mean, I'm just supposed 20

to collect them at some point. If you want to keep them till -- 21

MR. TOOLEY: I can -- I have a -- sometimes my 22

memory's not very good -- 23

THE COURT: Okay. 24

MR. TOOLEY: -- so if I -- we could turn them in at 25

137


the end of the trial? 1

THE COURT: That's fine. That's fine. That's fine. 2

I trust you. I don't -- I know you have better things to do 3

than -- 4

MR. TOOLEY: Calling jurors -- 5

THE COURT: Yeah, start calling -- especially people 6

who weren't picked. I don't know why you would even think 7

about doing that but -- 8

MS. PINCUS: Sell them Amway. 9

THE COURT: Yeah, that's right. I know you didn't 10

get on the jury but I have a real money-making opportunity for 11

you. 12

THE BAILIFF: All please rise. 13

THE COURT: Please stand for the jury. 14

(Jury in at 3:09 p.m.) 15

THE COURT: Please be seated, ladies and gentlemen. 16

Welcome back. 17

And Madam Bailiff, we have some additions to the jury 18

notebooks for you to pass out. Mr. Keever has those. 19

THE BAILIFF: All right. 20

THE COURT: The attorneys -- both sides have agreed 21

that you should each have a copy of the agreement between the 22

parties. Obviously that will be relevant to this dispute, so 23

they -- we have copies of that for each of you. 24


138


THE COURT: All right. I think we're ready for 1

opening statements, beginning with Mr. Keever. 2


May it please the Court, ladies and gentlemen of the 4

jury. Again, I'm Nate Keever, and I'm here representing Dow 5

and Kathy Rippy. I wanted to first introduce you to some of 6

the other people you see in the courtroom. 7

This is Amanda Howard, and she helps me with the 8

exhibits. She's my legal assistant. And helps organize the 9

witnesses. 10

And this is Kimberly Hodies (phonetic), and she helps 11

with the AV equipment on the presentation of things so that 12

hopefully things will go smooth. 13

You know, almost all companies want to maximize 14

profits and minimize costs. And generally there isn't anything 15

wrong with that. But if they do it in inappropriate ways, 16

that's a problem. And our position is that what happened in 17

this case was SG Interests was more interested in maximizing 18

their profits and minimizing their costs than living up to the 19

agreement they had with the Rippys. 20

The Rippys have worked on this ranch, owned this 21

range since 1997. In 2004 SG Interests wanted and decided to 22

-- they needed a pipeline, pipeline that would go from Gunnison 23

County to Garfield County, 25.5 miles long. And they picked a 24

route that would go through Mesa County and they picked a route 25

139


that would go through the Rippys' ranch. And -- 1

(Counsel confer) 2

MR. KEEVER: No, the -- just go through that. 3

So on one side of the agreement we have the Texas 4

company with oil and gas operations in Gunnison County, they 5

want to transport their gas via pipeline. And they've decided 6

they need a gas pipeline through the Rippys' property. And on 7

the other side of the agreement we have Dow and Kathy Rippy. 8

And they -- ranchers in eastern Mesa County. They use the 9

ranch to run cattle, grow pasture. And they do not want SG's 10

pipeline through the property. 11

Parties spend three years negotiating. Pipeline 12

company doesn't give up. They want to go through the Rippys' 13

property. The evidence will be that they used threats of 14

condemnation, which is to force a pipeline through your 15

property. And they'll put it through the middle of the ranch. 16

If they don't come to an agreement. 17

2007, an agreement's finally reached. And that's the 18

pipeline easement agreement that's -- the bailiff has handed 19

you. And it's between the Rippys and SG Interests. On one 20

side -- so -- SG Interests gets a specific area where it can 21

put the pipeline. And the evidence will be that that specific 22

area is well defined -- perfectly defined. Defined down to the 23

inches in the pipeline easement agreement. It's going to go 24

three point five miles long through the Rippys' property. It's 25

140


going to be exactly 30 feet wide. Fifteen feet on each side of 1

a center line that's described. 2

Can you pull up the easement agreement. 3

And that center line, it says in the easement 4

agreement, is specifically tied or marked from a brass cap, a 5

survey marker that's set out on the ground so that you know 6

exactly where the pipeline easement is, exactly where the 30-7

foot-wide swath that they can put the pipeline in is. And this 8

is the first page of what's called Exhibit A to the pipeline 9

easement agreement. 10

And you see here, it specifically identifies a brass 11

cap and it specifically ties 1,366.22 feet to the center line 12

of the 30-foot swath that they can put this pipeline. 13

Go ahead. 14

This is the picture of the brass cap. The same 15

picture, the brass cap's down here and this is just a marker so 16

the people that -- if they're looking, can see it, find it, 17

know where they're at, know where the easement's supposed to 18

be, know where the pipeline's supposed to go. 19

So that's what SG Interests gets. They get the 20

pipeline they wanted. They get a specific place to put it on 21

the Rippys' property. And the evidence will be in the 22

agreement that the Rippys get under the deal $110,000 cash, 23

they get, among other things, the fences replaced along the 24

easement -- and it's very specific in the easement agreement 25

141


how the fences are going to be replaced, down to what type of 1

barbed wire and where the posts are, everything. And they get 2

terracing. So that when the company comes and blades an area 3

for the pipeline, the slopes become terraced. 4

They're running a ranching operation. The more flat 5

ground the better. So this is the deal. Now, at closing or at 6

the time the document's signed, this is what the parties get. 7

SG Interests gets everything it wanted. And the 8

Rippys get the cash. But they have to wait on the other two 9

items, because you can't do everything -- the idea is they 10

would do it while they're doing the construction. Of course, 11

SG Interests controls when they do the construction. When the 12

fences would be replaced, when the terracing would be put in. 13

And the construction -- you're going to hear lots of 14

evidence on this -- is sort of an assembly line process. You 15

know, time is money. So they get in there, they grade, they 16

dig, they lay the pipeline down, get it in, they're go, go, go, 17

go, go. 18

Most of where they're putting the 25 miles of 19

pipeline is on federal property. There's only a few landowners 20

-- private landowners who have the pipe across their property, 21

the Rippys being one of them. And they run out of time. 2008 22

they -- their plan was to get this whole pipeline in, Gunnison 23

County to Garfield County, in 2008. But they run out of time. 24

the federal government says, no, get off the federal land. So 25

142


they skip a big area and they run up to the Rippys' property to 1

see if they can squeeze in a little more construction before 2

winter sets in. And they get some done but they don't finish. 3

And the Rippys' property is a huge series of hills. 4

And this is what we call the south boundary of the Rippys' 5

property, down here. And you'll see what's the Rippy reservoir 6

here. And this is looking north onto the Rippys' property. 7

And you can see it's not all flat and level, this is 8

mountainous ranch country. And this is BLM property over here 9

to the right. 10

So end of 2008 they can't use the BLM property. The 11

BLM said, no, you're out of time. So they come to the Rippys 12

and say, "Can we use a different route across your property, 13

just to get to the area we want to put the pipeline in," and 14

Dow says, "Yeah, go ahead, you can cut across on an access 15

road." No problem. Doesn't ask for anything, let's them do 16

it. It's just a courtesy access. And -- didn't have to, could 17

have said, no, not doing it, but let's them have it. 18

And winter's coming, and they get some of the pipe -- 19

Move -- go back one. 20

And they get some of the pipe laid in the southern 21

boundary. But the evidence will be they're not even sure where 22

this boundary is to federal property, and they know they don't 23

want to go on there, so they stop short of going all the way 24

onto there. And they've been working this project again from 25

143


Gunnison on the south up to Garfield County on the north. 1

They get this through and they build some of the 2

fencing. 3

Now you can go to that. 4

Some of the fencing on the Rippy property. And they 5

do some terracing on the Rippy property, in 2008, before winter 6

sets in. But they don't get it all done. So early summer 2009 7

they're back. Construction season again. The government's 8

letting them back on their property, they come back to the 9

Rippys'. This time though they've got a whole change of plan, 10

they want to go the other direction. They want to start going 11

south from the Rippys' property -- or, from the Rippy's 12

property and go south, to try to fill that gap that they left 13

in the 2008 construction season. 14

They come up. Again, Dow gives them free access on 15

the access road so they can get to this plot they want to stop 16

at. And -- or, start at. And they start on the Rippys' 17

property, they get their assembly line team and they head out. 18

July 16th 2009 Mr. Rippy's out on his four-wheeler, 19

he's going over to the BLM to check his cattle. He gets up to 20

the reservoir and he sees semi-trucks parked up near his 21

reservoir, filling up with water. And he's given them free 22

water in the past, from the pond down near the house. Not in 23

the middle of July and not from this reservoir. And small 24

water trucks to use for dust suppression, that sort of thing. 25

144


Not giant semis. 1

And he also sees, Mr. Rippy will testify, this gap. 2

They've come down here -- and this was the pipeline -- 3

Can you go back one? 4

This was the pipeline that they had laid in 2008, 5

along this boundary line. You can see this drops off here. 6

The severe drop down on the hill. And then there's kind of 7

another little drop, and it goes to a county road. And he sees 8

this pipeline here, and then about 30 feet over he sees this 9

pipeline here, coming this -- coming over here. And that's all 10

that you can see, that's all that's exposed are these two 11

pieces, but they're about 30 feet out. And he knows he only 12

gave them 30 feet. And he knows that this pipeline was 13

supposed to be right about where this fence is. So he knows 14

they're trespassing. 15

So he tells them, "Stop, you guys are trespassing. 16

You're on my property, you're taking water, you're not going 17

where you're supposed to be going, I don't want you filling in 18

this hole." This is the last thing they had to do, tying in 19

here. "I don't want you filling in this hole until we get this 20

figured out. You guys were supposed to be way over here. 21

You're not where you need to be." 22

They meet with him at his house. Evidence will be 23

that they say, "Okay, we're going to go back, we're going to 24

powwow, talk about what we need to do, and then we'll get back 25

145


to you, we'll let you know." He locks the access road gate. 1

They leave. He goes on with the ranching business. Ranching 2

work doesn't stop. He's doing his work. 3

Next day he's up driving his four-wheeler on the 4

other part of the ranch that he can just happen to see over to 5

this gap area here. And he sees they're back with men and 6

equipment, working again in this area, and they've come in not 7

through the access road up here but they've come in from the 8

BLM. Not getting back to him and saying, "Here's how we're 9

going to work this out, here's what we're going to" -- but 10

trying to finish up. Cover it up. 11

So Dow goes up there again, asks them to leave. This 12

time they're not leaving. They say no. So he goes down, gets 13

his bulldozer and starts creeping up the hill. And he parks 14

his bulldozer up here on his property, outside of the permanent 15

easement, outside of where they're supposed to be, and puts up 16

a no trespassing sign. Then they come back in and they all 17

meet. That's what this is a picture of, this big meeting. 18

Everyone's out there with tape measures. 19

Then they leave. Doesn't hear from them. Thinks 20

they're going to get back to him, figure out what this is. No 21

word from them. Days passed. He's doing his ranching work. 22

They sue him. They sue to get the bulldozer moved. So Dow 23

talks to them and says, "Hey, look, you guys are outside the 24

easement here, you guys got a problem here. Get your survey 25

146


out from Exhibit A, count your distance out, figure this out 1

and know that you're outside of the easement, and then let's 2

talk about fixing it." They want it over here. They want it 3

where it's supposed to be. 4

They say they'll do that. Going to survey the whole 5

ranch where the pipeline is in relation to the pipeline 6

easement agreement. He says, "All right, I'll move the 7

bulldozer, you guys can connect this up," because he knows he's 8

right. 9

They don't have any interest at this point -- now the 10

dispute's broken out, they don't have any interest in 11

fulfilling the other two parts of the deal for them. Instead, 12

they just continue to assert that they're in the easement. 13

"We're in the easement, we're in the easement." No apology, 14

just "we're in the easement." 15

And after you've heard the evidence, we will ask that 16

you confirm that the Rippys are correct, that SG installed its 17

pipeline outside of the easement. And where it was 18

specifically set forth in that pipeline easement agreement. 19

And they're trespassing. And they're asking to be compensated 20

on the water that was taken in the middle of July. And we're 21

going to be asking, after you hear the evidence, including the 22

evidence of how they tried to hide this from the Rippys, how 23

they tried to cover it up, how they tried to put pressure on 24

the Rippys to just let them do what they wanted to do, to 25

147


confirm that their use of the Rippys' property was not just a 1

mistake, it was purposefully committed. And then purposely 2

covered up. 3

And after this trespass issue came to light -- 4

remember the agreement, what each party was going to get? They 5

didn't want to -- they weren't replacing any more fences, they 6

weren't doing any more terracing. Unless the Rippys would 7

agree to put the pipeline somewhere else than they had agreed 8

to. And so the Rippys are asking that they be compensated for 9

the fences that weren't replaced as specifically set out for in 10

the agreement and the terracing that wasn't done. 11

They want the deal as it's written. They want to be 12

compensated for what they haven't been in the deal. Thank you. 13

THE COURT: Thank you, Mr. Keever. 14

Mr. Tooley? 15

MR. TOOLEY: Thank you, Your Honor. 16

There was no cover-up, there's no hiding. Now, what 17

I'd like to tell you about what the evidence will show -- I 18

want to break it down generally into three categories. First I 19

want to talk about the project and the players involved and 20

Rippy property. And then I want to talk a little bit about the 21

pipeline easement agreement and the circumstances that led up 22

to the dispute between the parties. And then I'd like to talk 23

about the specific claims and the material claims between the 24

parties. 25

148


The -- SG is a -- SG -- it's a Limited partnership, 1

it's -- the ultimate beneficial owners are family members of 2

Lester Smith and Russell Gordy. And they develop oil and gas 3

in Gunnison County. And in 2000 they realized that there was a 4

lack of transportation capacity and that they needed to get a 5

pipeline to transport the gas to market. And so they spent 6

four years in the permitting and design process. They had to 7

go through a full EIS. And this was a very difficult area to 8

put a pipeline in because it has roadless areas. And so in 9

order to avoid making new roads or expanding the roads, they 10

flew a lot of this pipe in by helicopter. 11

They hired Trigon EPC, an independent engineering 12

firm, to help permit the pipeline and locate the location of 13

the pipeline. They hired Jomax Construction Company as the 14

general contractor to install the pipeline. Jeff Langlois is 15

the superintendent. A gentleman by the name of Rueben Romero 16

was also an independent consultant that was hired on the land 17

to work with the pipeline operations. And Eric Sanford is SG's 18

operations manager who was also responsible for being on site 19

and working with landowner issues. 20

The total length of the pipeline is 25 and a half 21

miles. Of that, five and a half miles crosses private surface. 22

Of that five and a half miles that crosses public service -- 23

surface, a little over three miles crosses the Rippys' 24

property. And here is a aerial of the Rippys' property. 25

149


Sorry. 1

THE COURT: No, that's fine. It's more important 2

they can see it than I can. 3

MR. TOOLEY: It is over two and a half square miles 4

of agricultural land. It's ranch land. There is some hay that's 5

grown but basically it's a operating cattle ranch. And -- 6

THE COURT: Why don't you -- pardon me, counsel. Why 7

don't you go ahead and move that closer to the jury and in the 8

middle. Some of them are struggling to see it. And like I 9

said, I don't need to see it now but they do. 10

MR. TOOLEY: And in 2008 SG constructed the -- 11

cleared -- starting in August of 2008 they started down here in 12

the south, and this is what we call section 17 and section 18. 13

Actually, it's section -- southwest corner, section 17, which 14

is about 3,000 feet. And then they follow the country road all 15

the way up north. To that location. 16

By December of 2008 97 percent of the pipeline had 17

been completed. It had been backfilled, it had been reseeded 18

and reclaimed. And there was a small section that's about four 19

to 500 feet in the far southeast corner of the Rippys' ranch 20

that was not completed in 2008 but was completed in 2009. And 21

when that was done, when they were connecting the two pieces of 22

the pipe onto BLM land there was a deviation, a jog that 23

measured 27 feet three inches. 24

And so that's just the landscape of the Rippys' 25

150


property. Now I want to talk to you a little bit about the 1

agreement and what led up to the dispute. 2

The pipeline easement agreement provided that SG 3

would pay the Rippys $110,000. And it states that payment 4

shall constitute full payment for all reasonable property 5

damage associated with installing the pipeline in the easement 6

area, subject to the other terms of the agreement. And one of 7

the other terms of the agreement was that SG would agree to 8

replace and repair any fences that it damaged or temporarily 9

took down. It didn't agree to replace all fences in the 10

easement area. The contract says we -- SG shall repair and 11

replace all fences that it took down or damaged. Okay? 12

It also agreed, in addition to the fences, to install 13

a three-inch water line -- irrigation water line for the Rippys 14

that was about two and a half miles long, along the easement. 15

In addition it agreed to terrace the easement area and reseed 16

it for ground control and erosion. And SG complied with that 17

agreement. It paid the $110,000, up front. It built over two 18

miles of brand new fence with gates, starting where the county 19

road -- all the way up, all that was replaced. Brand new fence 20

and gate. There's been no complaint that as that -- as that is 21

today that that's a good fence. That's not one of the things 22

they're -- they're alleging. They're talking about a fence 23

down here, and we'll get to that. 24

SG installed the water line. The water line started 25

151


over here, kind of near the reservoir and went all the way up 1

to the end of the property. Three-inch water line. And the 2

contract said SG would install a three-inch water line with two 3

six-foot water troughs and frost-free valves. 4

And as I mentioned, it talked about terracing. 5

Rippys' counsel drafted the agreement. They didn't define 6

terracing. It said terracing for erosion control. That was 7

the purpose. And reseeding for ground cover. And they 8

installed terrace -- what they called terrace water bars where 9

they -- they terrace the surface so the water will rain off so 10

there's no erosion. 11

So in addition to -- to complying with the terms of 12

the contract, SG also provided other benefits to the Rippys 13

that were not required. When they were clearing the surface of 14

the easement, there were trees that were kind of by the Rippys' 15

ranch, rows of trees along here. And the easement agreement 16

basically said the easement -- 30-foot wide easement abuts the 17

county road. And -- and Mrs. Rippy wanted to save those trees 18

along the road. So we agreed -- SG agreed to tie ribbons 19

around a bunch of trees and to alter the pipeline so you'd have 20

that shield of trees. We weren't required to do that, but they 21

did it. It was not an insignificant expense but they wanted to 22

maintain good relations with the Rippys and they did that. 23

The Rippys agreed, because they were concerned about 24

dust from the traffic, that they -- that SG could use one to 25

152


two trucks of water on average per day to suppress the dust. 1

And that was something they agreed to allow SG to do. 2

SG also provided other extras to the water line that 3

were not required. The contract required two six-foot water 4

troughs and frost-free valves. SG provided an extra water 5

trough at no expense and the valve. It provided manholes for 6

the -- for the -- for the water troughs' connection points, and 7

Mr. Rippy inspected one of them and it was 36 inches and he 8

wanted them 48 so they -- they swapped them out, put 48-inch 9

manholes in there at their expense. 10

Then Mr. Rippy also wanted that the water line -- 11

because the agreement only required the water line to follow 12

the pipeline, be next to it along the route. He says, "Well, I 13

want you to cut across the road and put in a water line in my 14

shop." And he didn't have a permit to dig up the county road, 15

so SG actually bored the water line underneath the county road 16

and into his shop so Rippy could have that. Again, that was 17

not an item that was required by the contract but SG 18

nevertheless did that. 19

Now, the other thing -- in exchange for a more 20

convenient access to the southeast portion of the ranch, over 21

here, and for a small staging area, which is down here, SG, at 22

the Rippys' request, built them a brand new water reservoir on 23

their property. And let me show you this area as a blowup. 24

This is a -- kind of a blowup of that small section 25

153


down on the bottom. There's a fence that goes all the way 1

down, across there, in the BLM lands. And that fence had been 2

there for a long period of time. And -- this is the more 3

convenient access road that SG was allowed to use to bring in 4

its equipment to install the pipeline. And this was the 5

staging area where it stage, you know, equipment while it 6

installed the pipeline. And in return for that, SG built this 7

water reservoir for the Rippys. 8

And it was not inexpensive, it was about $20,000 9

worth of work, to do the dirt work. Dow Rippy staked it, Dow 10

Rippy told Jomax crews exactly how to build it, how to 11

configure it. And SG went ahead and built that water 12

reservoir. And the agreement was that the access could be used 13

to -- to -- for this part of the land and also BLM land, 14

because the pipeline in 2009 went south. 15

In 2008 -- okay? Remember, the easement area was 16

cleared in August of 2008. And then in the fall of 2008, 17

before the trenching work occurred, Rippy was out there on a 18

regular basis. He saw exactly where the easement area had been 19

cleared north of the fence. He never raised an objection to 20

the location of the easement. Mister -- when they were 21

actually doing the trench work the evidence will show that Mr. 22

Rippy actually saw the pipe in the ground, right about here, in 23

the staging area. He knew exactly how far it was from his 24

fence. He knew there hadn't been any area cleared south of the 25

154


fence. And he never objected to the location of the pipeline 1

easement. 2

And so -- so after, as I said, the 2008 construction 3

season, the only part of this entire three mile stretch of 4

pipeline that had been laid, the only part that remained to be 5

laid was that four to 500 feet. 6

Now, I'd like to talk about kind of how the dispute 7

developed between the parties. Mr. Rippy, in June of 2008 -- 8

or, excuse me -- 2009, when they came back, demanded that SG 9

build him a new fence. He wanted this 3,000 feet of fence all 10

done, a brand new fence. And SG, the evidence will show, did 11

not damage that fence, they did not temporarily take down that 12

fence. And we will have a surveyor, David Nicewicz, who 13

surveyed the location of the fence, according to Rippys' 14

property line, and he will testify that that fence that he 15

wants replaced is actually two to six feet south of Rippy's 16

property line. It's not even on his property. 17

There were other issues that weren't big but they led 18

to the dispute. Eric Sanford asked for a place to land a 19

helicopter that was bringing in the pipe and Dow Rippy said, 20

"Yes, as long as you gravel my corrals." And -- but SG found 21

somebody else -- a neighbor -- who said, "You can lead it here 22

for free," and they never needed to land the helicopter on 23

Rippy's property, but Rippy still demanded -- he wanted his 24

corrals graveled and is seeking $20,000, 29 loads of gravel 25

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that is nowhere mentioned in the contract as something that was 1

required that SG provide. 2

And then things really exploded when later in June or 3

July of 2009 SG had to hydro-test its pipeline. And what 4

hydro-testing the pipeline is is you just put a water in there 5

at pressure to check for leaks. And so they asked Mr. Rippy if 6

they could use water from the reservoir that they built that 7

was actually even flooding over their easement area and onto 8

the neighboring property -- whether they could use some of that 9

water for the hydro-testing, and Rippy led them to believe that 10

wouldn't be a problem. 11

And so, in reliance thereon, SG started putting in 12

pumping equipment here, along with some line. It was there for 13

a couple weeks. Rippy saw it, he knew it was there, Mr. Rippy 14

did. And so they were getting all ready to get set up. Now, 15

Eric Sanford was uncomfortable relying upon, you know, just an 16

oral promise like that. you know, this was a -- the operation, 17

we're going to hydro-test, we want a commitment. And he told 18

the Rippys he was willing to pay them money for that hydro-19

testing the water to get a commitment. And he first offered 20

5,000, and they said, "Well, we'll think about it." Then they 21

offered 10,000, they said, "We'll think about it." Then they 22

got to the point where they're getting ready to do the 23

operations, and on July 15th of 2009 Eric Sanford met with 24

Kathy Rippy in her home and told her that $20,000 was about as 25

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high as SG could pay. And Kathy Rippy said, "Well, we know how 1

much it would cost if you had to truck the water in from 2

another source." And she showed Eric Sanford an estimate so -- 3

prepared by Dow Rippy that indicated that it would cost 4

$100,000 to buy water from another source and truck it in. 5

Eric Sanford said, "We just aren't going to pay 6

$100,000 for that water." That same day Eric Sanford learned 7

that the Divide Creek Highland Ditch Company might have some 8

flow-through water that they may be willing to sell. And he 9

contacted Kelly Couey at the ditch company. Kelly Couey called 10

the board members. And unknown to Eric Sanford, one of the 11

board members was Dow Rippy. And Dow Rippy said, "I’m not 12

about to help SG until they come about helping me." And no 13

deal was done. 14

The day after Eric Sanford had the meeting with 15

Katharine Rippy on July 15th of 2009, the next morning Dow 16

Rippy locked the green gate to the access road. Up here. And 17

evicted the contractors off the property. Said, "Get off my -- 18

get off my land." The next morning, on July 17th, Eric 19

Sanford, along with other representatives met with Kathy Rippy, 20

and Kathy Rippy accused Eric Sanford of trying to steal water 21

from the ditch company and that's not going to happen. And 22

Eric Sanford said, "Well, because we don't have a written 23

agreement because Dow was -- didn't see the need to put this 24

access agreement and staging area for the reservoir deal in 25

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writing," he said, "we will not use that access road but we 1

plan to go back on our easement to continue our work." 2

That same day Katharine Rippy comes driving in her 3

car, blinking her lights and -- and -- and confronts Eric 4

Sanford and starts cussing at him and said, "Next time Dow 5

comes down here he's going to have a gun." Dow Rippy, in the 6

meantime, that same day, on July 17th, parks his bulldozer 7

right at the edge and then leaves Eric Sanford a voicemail 8

message saying, "You better get your pipeliners off my property 9

and I'm" -- and threatening to dig up the gas line. 10

So what happened. This was at a very critical stage 11

of the operations. You had equipment all set up, you had the 12

reservoir water that was blocking their access, they couldn't 13

go east -- or, excuse me -- west, and you had the bulldozer 14

that was blocking access so they couldn't go east. I got my 15

directions mixed up, sorry. But they're basically trapped in. 16

And -- and Dow Rippy wouldn't even let Jeff Langlois go in to 17

get testing equipment from his sheds that were there so they 18

could do it at another location. And this cost significant 19

harm in three major ways. 20

First, there was equipment that was idle, rental 21

equipment they couldn't get off, they couldn't transport either 22

way. The second thing is is they were getting ready to -- when 23

they realized they couldn't get the water, they wanted to weld 24

that just last section of pipe so they could do hydro-testing 25

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from another source. And in order to make sure you had the 1

integrity they had to x-ray the thing, they had to x-ray, and 2

they couldn't get that work done because they got evicted at 3

the very -- at -- right before then. 4

And evidence will show that Dow Rippy is very 5

sophisticated when it comes to construction. He's owned Dow 6

Rippy Construction Company that put in utilities, water lines 7

and electric lines for municipalities for over 30 years. He 8

knew what hydro-testing was. And he knew the stage of the work 9

that was in progress at that time. 10

The other major impact it had is because they were -- 11

SG's crews were doing reclamation work to the -- to the east 12

and south of the BLM land, and once they blocked that access 13

they could no longer get their equipment out to the county 14

road. The only other access was five miles south at Mosquito 15

Creek. And they -- in order to -- the disruption caused them 16

to have to put another kind of road to get all this equipment 17

out that disturbed all the reseeding they had done, disturbed 18

the terrace water bars that had been done, and caused 19

significant harm. 20

SG was spending in the neighborhood of $100,000 a day 21

at this stage of the project. It was critical time. It was in 22

the middle of the key part of the construction season. And so, 23

yes, they did file a motion for a temporary restraining order 24

with this court, asking for an order to resolve it, instead of 25

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just using physical force and pulling the bulldozer. They used 1

the legal process. And they came into court and they said, "We 2

want an order" -- and both sides can present their story about 3

whether -- what their gripes are, and -- and they filed that 4

lawsuit. 5

On July 29th of 2009, after the bulldozer had been 6

there over 10 days, Nate Keever and Dow Rippy had a telephone 7

conversation with Eric Sanford and Robbie Guinn, who's the vice 8

president of land for SG, along with their local counsel Earl 9

Rhodes and Phil Martin, and there was the agreement whereby the 10

Rippys agreed to move the bulldozer and allow them back on the 11

property, and they agreed to take some measurements, and so we 12

got back onto the property. 13

And at that time SG dropped its motion for a 14

temporary restraining order, so they didn't have to come into 15

court for a big hearing, and they got back on the property, 16

they backfilled -- finished their welding, backfilled the 17

little jog section, recontoured the surface, did some reseeding 18

work, and they were done. 19

And then, on August 20th 2010, the Rippys filed a 20

complaint, this action. They did not call to say, "We had a 21

survey done and we want to talk to you about it to determine 22

whether or not there's any discrepancies in what we think are 23

the facts," they filed a lawsuit. And in that lawsuit they 24

requested damages for this pipeline allegedly being outside of 25

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the easement and an order requiring SG to move it 20 to 30 feet 1

farther south. 2

They requested damages for terracing and reclamation 3

work. And -- let me talk about those claims now, the 4

specifics, what the facts will show with respect to those 5

claims. 6

The fence claim is not that SG damaged or temporarily 7

took down that 3,000 foot stretch of fence. The Rippys don't 8

claim -- or, don't have any evidence that SG damaged that fence 9

or took it down, but they want a new fence. Their theory is 10

had you put the pipeline where we think it should have gone, 11

you would have damaged it and therefore we get a free fence. 12

Now, as I said before, that claim that the pipeline 13

is outside the easement and their claim for the fence is based 14

upon an erroneous assertion that the Rippys claim to own -- 15

they claim their southern boundary line was 32 feet south of 16

that fence. You will hear testimony about land surveyors. 17

They talk about a section of land which is a square mile, so 18

it's 5,280 feet by 5,280 feet. And there will be caps, and 19

there's aluminum caps that will, you know, divide the section 20

into quarters. And the Rippys were claiming 32 feet south of 21

the fence there are these aluminum caps that mark kind of like 22

what we call an aliquot line. And they were saying, "Well, 23

that's really where our property line is." 24

Needless to say that in all of 2008 3,000 feet of 25

161


this pipeline had been installed without any objection or 1

problem, but now Dow Rippy's saying, "My real property line is 2

at these aluminum caps," 32 feet south of that fence. His 3

warranty deed describes his south boundary by reference to the 4

north section line and so many feet down and then due west at 5

the country road. Doesn't say anything about those aluminum 6

caps. And we will show through David Nicewicz, who's a land 7

surveyor, that what Rippys' warranty deed states is, when you 8

go to the mid-section of the section line -- on the north 9

section line of section 17, you go down the mid-point 3,923.70 10

feet, and then you go due west at the country road 3,118 feet. 11

That is where the property line is. 12

They will not be able to produce any evidence, any 13

recorded document that their property line is south of that 14

fence. What the evidence will show is they executed numerous 15

deeds and trusts when they took out loans from banks that have 16

the exact same metes and bounds description as their warranty 17

deed. That was the southern boundary of their property. They 18

took out a $2 million loan and secured it with a deed of trust 19

in 2003. They used the exact same metes and bounds description 20

in the warranty deed as the deed of trust. 21

The evidence will show they never paid taxes on any 22

land south of that fence. The Mesa County tax assessor's 23

office assesses taxes based on the metes and bounds description 24

contained in their warranty deed. And the warranty deed we're 25

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talking about is the warranty deed they got when they bought 1

the property in 1997. It -- the Rippys bought the property in 2

October 31st 1997, and at the time they bought that property 3

the fence was already there. They had owned it for 10 years 4

and never used any land south of the fence except when their 5

cattle were grazing, and they did that with the permission of 6

the owner. 7

There is no basis they will be able to show any 8

document, and we will show you the chain of title. Okay. The 9

chain of title is simply tracing back the deeds and the 10

commands that go all the way back in time. And we've traced it 11

back to 1974. And Norel Hereford Inc. (phonetic) owned by the 12

North and the south land before it was divided. And at the 13

same, in January of 1974, he conveyed the north part, north of 14

the fence, to the Shawcrosses (phonetic). And then he conveyed 15

the south part to Glen and Morris -- or, Glen and Martha 16

Morris. 17

With respect to the northern parts, it got sold five 18

times before it got to the Rippys. Each one of those warranty 19

deeds contained the exact same metes and bounds description 20

that described the south boundary of the Rippys' property is -- 21

from the north section line down a certain number of feet and 22

then west to the county road. And we'll show you during the 23

trial exactly where that point is. 24

With respect to the south portions, when the Morrises 25

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conveyed it they conveyed first just this section, in the 1

southwest corner. And they kept this section. But they -- 2

when they conveyed this section they didn't convey all of it to 3

the fence. They left a 30, 32-foot gap that provided access to 4

the BLM land. That happened in 1992. And then, in 1995 they 5

conveyed this parcel. And again, only conveyed up to those 6

aluminum caps, not all the way up to the fence, so there was a 7

gap there, this 32-foot gap, where the southern owners, once 8

that Martha and Glen Morris conveyed it, only went up to the -- 9

to the aliquot line or where those aluminum caps are, whereas 10

the northern ended kind of just short of the fence. 11

So you had this gap, and it -- what happened in this 12

case is that in April of 2011 the Rippys go out and acquire a 13

quitclaim deed from Martha Morris, so they can claim now we own 14

this property. Now we own this property, this 32-foot gap. 15

But the easement agreement was entered into in September of 16

2007, the work was done in 2008 and 2009. And the fact that 17

they went out to try to get a warranty deed to claim rights to 18

that property down to those aluminum caps shows that they knew 19

they did not own it. but they were claiming to own it so they 20

could get a free fence. 21

Now, let me talk about the easement agreement itself. 22

This is a copy of Exhibit A, the first page of Exhibit A, to 23

the easement agreement that's contained in your notebooks. And 24

this is that area that we were just looking at just before 25

164


you -- this is the road -- can everybody see that? 1

Okay. And -- and you see the reservoir and then the 2

line? That is this stretch. We're going to hear testimony 3

about that. 4

Now, a couple things to know about this drawing. 5

These arrows kind of confused me when I first looked at it, but 6

there's two arrows here, one on the top and one at the bottom. 7

And then there's 15 feet. That is really -- it's saying this 8

dark black line is the proposed center line. And the southern 9

edge of the easement would be 15 feet below that. 10

There's also a 15 feet here that goes this arrow and 11

that arrow, to say the northern edge of the easement would be 12

15 feet above that black line. So that's your 30-foot wide 13

permanent easement. 14

There was also a 45-foot temporary use area that was 15

next to the easement area that SG was allowed to use when they 16

installed the pipeline. So that's the 45-foot running TUA 17

that's marked there. 18

And you will see right here, this symbol -- hard to 19

read but it's below the southern edge of the easement. It's 20

called property line. And there's a little legend here, and 21

it's kind of a PL, property line. And this Exhibit reflects 22

that the -- there is the property line and then there's a 23

setback, a distance here, a gap, and then there's the southern 24

edge of the easement and then there's the 30-foot wide 25

165


easement. 1

Now, when this -- the evidence will show when this 2

was negotiated Dow Rippy knew that, number one -- note number 3

one states that this diagram is not based on field survey data. 4

Both parties knew this was not a field survey diagram. Dow 5

Rippy will also testify that he understood the word proposed 6

centerline meant that because they had not done field surveying 7

they didn't know where it was going to go until they found the 8

location of his property line. 9

And you will hear a lot of testimony that, well, all 10

you need to look at is this cap that was shown on opening by 11

Mr. Keever. That brass cap that he showed a picture of. And 12

this very specific distance. And the Plaintiff presents 13

testimony that that's all that matter, that's all you need to 14

look at. And we know you don't need to do anything else to 15

know where to put a stake at that point. 16

But what the evidence will show is the actual 17

property line under their warranty deed actually falls into the 18

easement area. Okay? So these 20 -- if you only look at that 19

and you put where the easement is, and that's all you looked 20

at, over 25 percent of the easement area would be off Rippy's 21

property. 22

Now, Rippy never claimed -- they admitted, their 23

intent was not to convey an easement off their property. They 24

understood that this was not a field surveyed drawing, it was a 25

166


depiction. And looking at it there was a -- there is a setback 1

and a gap. You can look at page four of the pipeline easement 2

agreement that has a similar round circle blowup. And you will 3

see that on that circle blowup the easement area abutted the 4

county road, there was no setback. But there was a setback, 5

there was a gap. Now, it doesn't have a distance. And the 6

property line doesn't have a distance. So to suggest that this 7

is the precise document that reflects what the parties' intent 8

was with respect to the easement is not accurate. 9

Now, what the Rippys are claiming really is they're 10

complaining about the easement being some 20 to 30 feet out -- 11

the pipeline being some 20 to 30 feet north of the easement in 12

the far southeast corner of their property. The evidence will 13

show that's not why Mr. Rippy evicted SG from the property. 14

They have suffered no harm from the fact that a buried pipeline 15

is 20 feet, allegedly, outside the easement and 450 -- between 16

400 to 500 feet from the southeast corner of their property. 17

They evicted SG from the easement area because they 18

wanted to generate negotiation leverage. And it caused 19

significant harm. So at the end of the trial the evidence will 20

show that the Rippys have not suffered actual damage because of 21

the alleged violation. And in fact, it was SG who suffered 22

significant harm. 23

Now, I want to talk to you about the last claim which 24

is the terracing. The agreement does provide that the easement 25

167


area shall be terraced and reseeded for ground control and 1

erosion. And the purpose of the terracing was for erosion. No 2

other purpose was stated. It was for erosion. The agreement 3

was drafted by Rippy's counsel, Rippy was represented by 4

counsel. Terracing is no -- they nowhere defined in the 5

agreement what does terracing mean. How wide do the terraces 6

have to be, how tall -- none of the dimensions. 7

Now, when Mr. Rippy was out there on the property 8

when they were doing all this work -- 97 percent of the 9

pipeline was installed in 2008 -- there was an area by the 10

trees, up here, that SG saved when they were -- you know, that 11

row of trees I was talking about. And Dow Rippy said, "What I 12

want is just kind of a flat area there so I can drive my ATVs 13

and get into that field, and there were a couple of places like 14

that. And SG did that. He didn't call them terraces at the 15

time. That's not what he was calling them. Now they say, 16

well, we partially terraced that area. They were building a 17

little area for him to get on -- in his road through. 18

And you will see that there are terrace water bars, 19

and we're going to have Eric Petterson from Rocky Mountain 20

Ecological Services talk to you about what they did in the 21

reclamation effort in order to reseed it. And we're going to 22

show you -- we took an aerial helicopter video that we're going 23

to offer into evidence. It's about five, 10 minutes long, but 24

it's going to show you exactly the easement, it's going to show 25

168


you what's been done, so you can see for yourself what the 1

property looks like. 2

And we're going to show you a drive-through video 3

also, where various features are, so you can see for yourself 4

what this property really looks like. And at no time in 2008 5

or in 2009 did the Rippys ever say, "You're not doing adequate 6

terracing work." We were recontouring at this time. They -- 7

even after they filed this lawsuit they didn't say, "We want 8

you to come back and do more terracing work," they simply filed 9

a claim saying, "We want money, and we found somebody to give 10

an estimate about how much it would cost to do this work, and 11

we want you to pay us for it." 12

And the testimony will show that doing the type of 13

terracing work that they want would be counterproductive and 14

wasteful. So at the end of the jury -- at the end of the trial 15

I think the evidence will paint a remarkably different picture 16

than what Mr. Keever's tried to present on opening statement. 17

And I think the evidence will show that this was no cover-up, 18

this -- there was no deliberate intent to just disregard it. 19

There was inconsistency in the exhibit because of the actual 20

property line versus what -- how they depicted it. And there 21

will be other inconsistencies that we'll point out. And there 22

was no bad faith. SG tried to work hard with the Rippys, and 23

their actions in evicting SG were unreasonable. 24

Thank you for your time. 25

169


THE COURT: Thank you, counsel. 1

Thank you, Ms. Pincus. 2

Mr. Keever, your first witness, please. 3

MR. KEEVER: We would call Brett Hurlbut. And I 4

believe Amanda went to go get him. 5

THE COURT: Okay. Thank you. 6


MR. KEEVER: Did you hear that, Your Honor? 8

THE COURT: I did not. 9

MR. KEEVER: He's apparently at the parking lot. 10

He's working his way up. 11

THE COURT: Okay. Everybody can do what Mr. Korber 12

is doing now, if you like, which is to stand and stretch for a 13

second while Mr. Hurlbut makes his way from the parking lot. 14

He should be here in just a minute or two. 15

(Recess at 4:10, recommencing at 4:18 p.m.) 16

THE COURT: Come on up, sir. You can throw your coat 17

on the bench there, if you like. If you'll come on up here? 18

I'll swear you in, and then we'll have you sit down. Watch out 19

for the cords and all. Can I have you stop there, please? 20

Thank you. 21

BRETT HURLBUT, PLAINTIFF'S WITNESS, SWORN 22

THE COURT: Thank you. Please have a seat over there 23

behind the microphone. 24


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DIRECT EXAMINATION 1

BY MR. KEEVER: 2

Q Mr. Hurlbut, I'm Nate Keever. We met once before at 3

your deposition. I'm the attorney for the Rippys. Could you 4

say and spell your full name for us for the record? 5

A Brett, B-R-E-T-T, last name H-U-R-L-B-U-T. 6

Q And what's your current address? 7

A 4745 South Carefree Circle, Colorado Springs, 8

Colorado. 9

Q And you're here under what's called a subpoena, 10

correct? 11

A Yes. 12

Q Where I've compelled you to be here; you're not here 13

as a favor to the Rippys? 14

A Correct. 15

Q And did you drive over today? 16

A Yes, I did. 17

Q And did you just get here? 18

A A little while ago. 19

Q Okay. What's your current occupation? 20

A Facilities engineer. 21

Q What's a facilities engineer? 22

A I take care of compressor stations and pipelines for 23

Black Hills Exploration & Production. 24

Q And is that your employer then, Black Hills? 25

171


A Yes. Uh-huh. 1

Q Okay. And they're an oil and gas operation? 2

A Yes, they are. 3

Q And where do they operate? 4

A Our home office is in Denver. 5

Q And who did you work for prior to working for Black 6

Hills? 7

A It's a company called CH2M Hill Trigon. 8

THE COURT: I'm sorry. The name was Tri? 9

THE WITNESS: It was -- well, it was many names. 10

THE COURT: Okay. The last one, you said tri-11

something. 12

THE WITNESS: Trigon. 13

THE COURT: T-R-I-G-O-N? 14

THE WITNESS: T-R-I-G-O-N, yes. 15


THE WITNESS: Uh-huh. 17

BY MR. KEEVER: 18

Q And can you just spell that whole -- the CH2M, how 19

they write that out? 20

A Yeah. It's C as in Charlie, H as in Henry, the 21

number two, M as in Michael, Hill, and then Trigon, T-R-I-G-O-22

N. 23

Q And is there a slash between those, or it's just -- 24

A No. 25

172


Q And when did you work for CH2M Hill Trigon? 1

A Up until end of June this year. 2

Q And what was your position at Trigon? 3

A Project manager. 4

Q And was the company originally called Trigon? 5

A Yes. 6

Q And when did the entity Trigon exist? 7

A The entity Trigon had existed for approximately 25 8

years; then they were purchased by CH2M Hill in November of 9

2008, 2009. Yeah. Three years. 10

Q And what did Trigon do for clients? 11

A What we did, we're a consulting engineering company, 12

mainly in the oil and gas business. 13

Q And what type of consulting work would you do? 14

A We would help customers get their gas to market, so 15

we'd help them route pipelines, engineer pipelines and get 16

pipelines installed so we can get their gas or products to 17

transportation to interstate markets. 18

Q And what do you mean by routing a pipeline? 19

A Just selecting the -- where the pipeline is going to 20

be placed. 21

Q And how does that process take place? 22

A Well, you have to find point A and point B. Point A 23

is usually the source where the wells are. If it's just the 24

one individual well, then we try to tie the well into the 25

173


closest pipeline. If it's a group of wells, we build what's 1

called a gathering system, gather it to a central point; that 2

would then be the point A. The point B would be the point to 3

where it could go to market. Usually we want to take it to a 4

point of market where it can get into the interstate pipeline 5

system so that the gas can get marketed across the country. 6

Q And would Trigon work on land acquisition? 7

A Yes. 8

Q And would they work on permitting? 9

A Yes. 10

Q And work on pipeline design? 11

A Yes. 12

Q Surveying? 13

A Yes. 14

Q And construction? 15

A Construction management. We'd -- we're not a 16

construction company. 17

Q And what do you mean by construction management? 18

A Construction management would primarily consist of 19

quality control so that the pipeline was installed to the 20

specifications, make sure the welding procedures were followed, 21

things like that. 22

Q And are you familiar with the Bull Mountain Pipeline? 23

A Yes, I am. 24

Q And what is the Bull Mountain Pipeline? 25

174


A Bull Mountain Pipeline is -- takes gas from point A, 1

which would be SG Interest's Bull Mountain unit, which is where 2

their wells are, over to point B, which is the connection to 3

Questar, which was the north terminus of the pipeline. 4

Q And do you know what county the starting point is for 5

the Bull Mountain unit? 6

A It's in Gunnison County. 7

Q Okay. And then -- 8

A Uh-huh. 9

Q -- where was the terminus or the ending point? 10

A In Mesa County. Yeah. 11

Q In Mesa County, or was it up in Garfield County? 12

A Oh, it is Garfield County, yes. Uh-huh. 13

Q And along that route that was selected for the Bull 14

Mountain Pipeline is Mesa County -- 15

A Yes. 16

Q -- is that fair to say? 17

A Right. 18

Q And whose project was the Bull Mountain Pipeline? 19

A Meaning? 20

Q Who came to Trigon and said we want to build the Bull 21

Mountain Pipeline? 22

A SG Interests did. 23

Q And how long is the Bull Mountain Pipeline? 24

A Well, it's been a while now, so. It's a 20-inch 25

175


pipeline; I believe it was 26 miles. 1

Q And so what did SG ask Trigon to do with relation to 2

the Bull Mountain Pipeline? 3

A It originally started in 2003 and it was Bob Segal 4

(phonetic), who was a representative of SG Interests, an agent 5

for them, asked us to start looking at a route to -- look at a 6

route -- a means to get their gas from the Bull Mountain unit 7

to market. So that was the first request. We call it a 8

feasibility study. 9

Q And was the feasibility study completed by Trigon? 10

A Yes. Yes, it was. 11

Q And a pipeline route was selected? 12

A Yes. 13

Q And did you do drawings as part of the work to select 14

the route of the pipeline? 15

A Yes, we did. 16

Q You indicated that at times, Trigon would work as -- 17

and have responsibility over the construction work; did SG 18

Interests hire Trigon to oversee the construction work? 19

A Not for the Bull Mountain Pipeline, no. 20

Q So Trigon wasn't responsible for determining if the 21

pipeline was built in the route that was selected? 22

A That's correct. 23

Q Was quality assurance a part of the scope of work 24

that Trigon did for SG Interests? 25

176


A No, it wasn't. 1

Q Let me have you look at the book in front of you --2

it's an exhibit book, and they're numbered sequentially -- and 3

have you turn to Exhibit Number 2. And what does Exhibit 4

Number 2 depict? 5

A The black gas line depicts the route of the Bull 6

Mountain Pipeline project. 7

Q And does it show the general location in relation to 8

the counties that Bull Mountain Pipeline passes through? 9

A Yes, it does. 10

MR. KEEVER: Your Honor, I'd move for the admission 11

of Exhibit Number 2. 12


THE COURT: Admitted. 14

(Plaintiffs' Exhibit 2 admitted into evidence) 15

MR. KEEVER: Can you blow that up? 16

BY MR. KEEVER: 17

Q Can you walk us through where the beginning point is 18

and the terminus on there and where it goes into Mesa County 19

for the Bull Mountain Pipeline? Do you need a laser pointer; 20

would that be helpful? 21

A No. This would be the southern end. That's the 22

beginning point. And the end of the black line there is -- 23

that's the end of it where the yellow arrow like -- there it 24

is, right -- that's the end of it. Uh-huh. 25

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Q Okay. And do you know what the dark green depicts on 1

this map? 2

A I believe it's the White River National Forest 3

boundary. 4

Q Let me have you look at what's been -- 5

A It's on the legend, too, so yeah. 6

Q What was that? 7

A It's on the legend, too, in the bottom left. 8

Q Let me have you turn your attention to Exhibit Number 9

3 in the notebook. And do you recognize that document? 10

A I don't know if this one was generated by the BLM or 11

the forest service. It depicts the general route of the Bull 12

Mountain Pipeline. 13

Q Okay. And does it illustrate the federal property 14

versus the private property that the Bull Mountain Pipeline 15

runs through? 16

A Yes, it does. 17

MR. KEEVER: Your Honor, I'd move for admission of 18

Exhibit 3. 19




(Counsel confer) 23

BY MR. KEEVER: 24

Q So I pulled up the bottom portion of Exhibit Number 25

178


3; does that show the starting point for the Bull Mountain 1

Pipeline? 2

A Yes, it does. 3

Q And was the starting area for the Bull Mountain 4

Pipeline on private land? 5

A Yes. 6

Q And what is a staging area? 7

A That's where like we'd store pipe during 8

construction. 9

Q And how about a compressor site; what's a compressor 10

site? 11

A A compressor site is where the natural gas gets 12

compressed to increase the pressure to be able to transport it 13

down the pipeline. 14

Q And so compression is necessary to push the gas or 15

pull the gas from one location to another? 16

A Sometimes. 17

Q And in this case, was the pipeline designed with 18

compression? 19

A It was the -- many design revisions were on this. 20

Q Was there ever one that it was designed without 21

compression? 22

A Yes. 23

Q And how about the final design; did the final design 24

include compression? 25

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A Not at that location. 1

Q At the lower location you're referring to? 2

A Correct. 3

Q Was there compression designed for somewhere on the 4

Bull Mountain Pipeline? 5

A Yes. 6

MR. KEEVER: And let me have you back out, and then 7

pull up the top portion. That's good. 8

BY MR. KEEVER: 9

Q Now, do you see where it says "Divide Creek 10

compressor site"? 11

A Yes. 12

Q What is the Divide Creek compressor site? 13

A That was the site for the compression and the 14

treating of the gas. 15

Q And this map also indicates other staging areas; are 16

those the same type of staging areas that you just testified 17

regarding? 18

A Yes. 19

Q Do you know -- do you see that there's green, there's 20

sort of a dark yellowish color or gold in the white property; 21

do you know what the gold or dark yellow color represents? 22

A It's federal land administered by the BLM. 23

Q And is it fair to say that the bulk of the Bull 24

Mountain Pipeline was on federal property, either forest 25

180


service or BLM? 1

A Yes. 2

Q And do you know the split between the two in miles or 3

percentage? 4

A I don't remember that, no. The majority of it was on 5

federal land. 6

Q Let me have you take a look at what's marked in your 7

exhibit book as Exhibit Number 4. Do you recognize that 8

document? 9

A Yes, I do. 10

Q And what is that document? 11

A It's the northern portion of the route of the Bull 12

Mountain Pipeline. 13

Q And was that a map prepared by Trigon? 14

A It looks similar to it; it looks like it's cut out 15

from something else, but yeah. 16

Q Maybe a portion of a larger map? 17

A Right. 18

MR. KEEVER: Your Honor, I'd move for admission of 19

Exhibit Number 4. 20

MR. TOOLEY: Your Honor, I have no objection, except 21

that there's been no foundation about the time this was created 22

and what it represents, what -- the planning at what stage; I 23

think that needs to be laid. 24

THE COURT: Well, you can inquire if you like. I 25

181


don't think that's a necessary foundation, so Exhibit 4 is 1

admitted. 2


MR. KEEVER: Okay. 4

BY MR. KEEVER: 5

Q And do you see in the middle there it says "Option 6

J"? 7

A Yes. 8

Q What is Option J; what is that referring to? 9

A I'm not exactly sure because the title and all that 10

stuff, what this was prepared for, is not on here. So what I 11

do recall is that many options were examined before the final 12

route was determined. 13

Q All right. And who examined several options? 14

A CH2M Hill Trigon did; uh-huh. 15

Q And was Option J the option that was ultimately 16

decided upon as the route for the Bull Mountain Pipeline? 17

A Yes. 18

Q And SG Interests approved Option J? 19

A Yes. 20

Q All right. And Option J crosses the Rippy property? 21

A Yes, it does. 22

Q Were there other options that also crossed the 23

Rippys' property? 24

A Yes. 25

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Q And I'm going to have you walk through -- up at the 1

top it says, "Encana (phonetic) Divide Creek Compressor Site"; 2

do you see where I'm referring to? 3

A Yes. 4

Q And then underneath that it says, "Wheeler," and it 5

looks like "1,295"; do you see where I'm referring to? 6

A Yes. 7

Q Okay. What is that "Wheeler 1,295" designation? 8

A Wheeler would be the land owner, and I'm assuming 9

that the 1,295 would be the amount of footage that the pipeline 10

crosses Wheeler's property. 11

Q And so then the next landowner to the south would be 12

the McPherson (phonetic) property? 13

A Yes. 14

Q And the footage would be the amount indicated there, 15

3,138 feet? 16

A Yes. 17

Q Okay. And then from the McPherson property, is it 18

fair to say that it enters into the Rippy property? 19

A Yes. 20

Q And what is the foot designation for the Rippy 21

property? 22

A Sixteen thousand ninety-one. 23

Q Did the Rippys own the majority of the private 24

property that was going to be crossed by the Bull Mountain 25

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Pipeline? 1

A For this northern section, yes. 2

Q Let me have you turn to what's been marked for 3

identification as Exhibit Number 5. And do you recognize this 4

map? 5

A Yes. 6

Q And what does that map depict? 7

A Right now it's depicting different options, only two 8

of which are labeled. 9

Q And which two options are labeled? 10

A Option A and Option J. There are other options on 11

this map that are not labeled as such. 12



MR. TOOLEY: No objection. 15



MR. KEEVER: Can you pull that up? 18

BY MR. KEEVER: 19

Q And can you show us where Option A runs in relation 20

to the Rippys' property? 21

A Yes. Option A would be this dash line right here, 22

showing the pipeline would be coming up here; follow that dash 23

line out to the Encana Divide Creek site. 24

Q Okay. And can you identify by the numbers I set out 25

184


on the map, the parcel numbers set out on Exhibit Number 5, 1

where Option A would cross the Rippy property? 2

A The Rippy property was this parcel number 21 just 3

like across right there, and the one numbered 24 also. 4

Q And then can you show us where Option J runs on this 5

map in relation to the Rippy property? 6

A It's a very faint black dash line. 7

Q And can you identify by the parcel numbers on there 8

where it crosses the Rippy property? 9

A Once again, it'd be this one, number 21, this one and 10

then also this one, which is 24. 11

Q And if you look to the right of the parcel that's 12

labeled 21, whose property is to the right or to the east of 13

the Rippys' property that's identified as 18? 14

A Eighteen I believe would be the BLM. 15

Q In determining the options for the route, did Trigon 16

-- was Trigon engaged or did it survey the boundary lines 17

between the properties? 18

A No, it did not. 19

Q So how did it determine where the route would be by 20

survey? 21

A It was not surveyed, so -- 22

Q Well, not the property line, but the route eventually 23

was surveyed; is that correct? 24

A One of the routes was surveyed, which is this solid 25

185


orange line here. 1

Q Okay. And that's -- well, the Option J, the route 2

the pipeline ultimately took, did Trigon survey that route? 3

A We did not. 4

Q Did you provide a description for where that route 5

would go? 6

A Yes. 7

Q Okay. And how -- 8

A So -- 9

Q Go ahead. 10

A I think I should make a distinction of what you mean 11

by survey. So survey would be the surveyors are on the ground, 12

they use a GPS global positioning system and they take a shot 13

as to where the pipeline's going to be; and that's how they did 14

that. The only one that was surveyed on the ground was this 15

solid orange line here that has no label. 16

Q And that was a route that ultimately did not -- was 17

not installed; is that correct? 18

A That's correct. In addition to surveying that route, 19

we also surveyed the county road, which is running along here. 20

Q Is that County Road 79? 21

A It's County Road 344 in Garfield County as it's 22

labeled up there; and then I believe it is Mesa County Road 79. 23

I'm not -- 24

Q Where was Trigon's office during the construction of 25

186



A Durango, Colorado. 2

Q And specifically what was your role with regard to 3

Bull Mountain Pipeline? 4

A As project manager, my role was to try to take care 5

of my customer, who was SG Interests, and in that is to get a 6

defined scope of work and try to fulfill that scope of work, 7

which was to get the pipeline built up to that -- up to the 8

point there after the feasibility study was done to show that 9

that was the -- really the only place the gas could go to get 10

it to interstate market and try to get that done as 11

economically and efficiently as possible. 12

Q And why do you say it's the only place the gas could 13

go? 14

A The other interstate pipelines in the area are 15

located much further away and did not have capacity to move 16

gas; they were pretty much full. 17

Q So if they were -- if SG was going to move their gas 18

from Gunnison County to Garfield County, they needed to install 19


A That's correct. 21

Q What were your duties during the construction of the 22

pipeline itself? 23

A During the construction of the pipeline, my duties 24

was to be on call if there was technical questions to answer 25

187


those; in addition to that, we provided a weekly status report 1

which basically was if we're ten percent of the pipeline length 2

is built, are we ten percent into our schedule, and try to 3

track the progress versus the schedule to try to stay on 4

schedule. 5

Q Any other duties? 6

A During construction? Make sure the material was 7

ordered that was needed and was there available for the 8

contractor. Preconstruction, we bid out the project to the 9

construction contractors, so I'd answer any contract issues the 10

contractor may have. 11

Q Let me direct your attention to Exhibit Number 7. 12

Can you look at the next one? We're skipping Exhibit 13

Number 6. 14

A Oops. Okay. I'll give you a minute to look through 15

that. Okay. 16

Q And you recognize that document? 17

A Yes. 18

Q And what is that document? 19

A That is a road crossing permit from Mesa County to 20

cross County Road 79 with the pipeline. 21

Q And the last page of that document has a -- well, 22

what would you call the last page of that document? 23

A Exhibit A. 24

Q Okay. And how would you describe it? 25

188


A It shows the -- that the pipeline will cross the 1

county road somewhat in a perpendicular fashion and have four 2

foot of cover so that the top of the pipe will be buried four 3

feet below the road. 4

Q And was that a document that was prepared by Trigon? 5

A Yes. 6



THE COURT: No objection. 9



MR. TOOLEY: And can you pull up just the top portion 12

first? 13

BY MR. KEEVER: 14

Q Okay. And if you start over on the left-hand side of 15

that document, do you see where it says Dow and Katharine Rippy 16

on the far left? Or maybe the north symbol is a better spot; 17

do you see what I'm referring to? 18

A Sorry. 19

Q That's okay. 20

A Start at -- 21

Q Do you see what I'm -- 22

A Start at the north arrow? Yes. 23

Q Yeah. 24

A Yes. 25

189


Q And is there a technical name for the north arrow? 1

A No; huh-uh. 2

Q Okay. 3

A Yeah. 4

Q And so from the north arrow, what is depicted to the 5

right of the north arrow? 6

A It's generally depicting where the pipeline will be 7

crossing Mesa County Road 79. 8

Q Okay. And what are the descriptions there and what's 9

the purpose of those descriptions? 10

A Generally, the county asks that you cross the road in 11

a perpendicular fashion. So they don't want the pipeline 12

crossing running along with the road; they want it straight 13

across the road. So that's the general intent of the whole 14

permit application. The other thing is, is that they want four 15

foot of cover, so that's the intent of the Exhibit A. 16

Q And the four foot of cover you see on the bottom 17

portion of Exhibit A; is that correct? 18

A Correct. 19

Q Okay. And what we're looking at now is the top 20

portion of Exhibit A? 21

A Yes. 22

Q And you see where it's identified as edge of County 23

Road 79? 24

A Yes. 25

190


Q And was that a surveyed road? 1

A One edge of the road was surveyed. 2

Q Okay. And do you know which edge was surveyed? 3

A I don't. Both edges might; I don't recall that, so. 4

Q And you see a general description of where it says, 5

"Running TUA, 45-foot-wide running TUA," over on the left-hand 6

side? 7

A Yes. 8

Q What is a running TUA? 9

A TUA stands for temporary use area; it's a area to be 10

used during construction, not as a permanent easement. Running 11

means it just runs along the length of the pipeline. 12

Q And the 45 foot, that's the dash -- or line indicates 13

feet, correct? 14

A Yes; uh-huh. 15

Q And then to the right of that, it says 30-foot-wide 16

perm ROW; do you see where I'm referring to? 17

A Yes. 18

MR. KEEVER: And -- well, no; over on the left hand 19

side still, Kimberly. Yeah. Okay. 20

THE WITNESS: Right there? Uh-huh. 21

BY MR. KEEVER: 22

Q What is that depicting? 23

A Thirty-foot-wide permanent right of way or easement. 24

Q And that's on the Rippys' property, correct? 25

191


A Yes; uh-huh. 1

Q And then see below that as you work your way down; 2

what is that -- it looks like there's first some lettering. 3

A Yes. It says PI, which is point of intersection, or 4

basically a turn in the pipeline. 5

Q So when there's a turn in the pipeline, there's an -- 6

it's indicated by a PI? 7

A Yes; uh-huh. 8

Q And then there's a number underneath that; what is 9

that? 10

A That's just the data point number. 11

Q Okay. And is there a symbol or something on the 12

left-hand side before the six? 13

A It looks like a pound sign, like a number sign -- 14

Q Pound? Okay. 15

A -- so PI numbered -- the number of the PI, it looks 16

like 6,001. 17

Q Okay. And -- 18

A Yeah. 19

Q And what is that -- what's a data point? 20

A A data point is used to determine the footage in 21

there. So there's -- you have so many data point -- usually, 22

you have a data point where it turns, so you can -- as long as 23

it's going straight, you don't need a data point. So when it 24

stops and turns, you need a data point there. 25

192


Q And what is a data point? 1

A A data point is used to generate the centerline 2

depiction of the pipeline. 3

Q Okay. And is that data kept on a computer system or 4

something? 5

A Yes. 6

Q And then see directly to the right of that and a 7

little bit up, and it looks like it's a 60, starts with the 8

number 60; do you see what I'm referring to? 9

A Yes. 10

Q What is that designation? 11

A That would be the angle at which the pipeline crosses 12

the road. So generally, most counties like to see that at a 13

90-degree angle, so that's depicting that we're crossing it at 14

a 60-degree angle. 15

Q Okay. And what does that mean, like what's the -- 16

what's the 60 stand for? 17

A Sixty degrees -- 18

Q Okay. And so then what is the -- 19

A -- of an angle. 20

Q Sorry. 21

A Yeah. From here to here is 60 degrees. If it was 22

straight like that, it'd be 90 degrees. Yeah. 23

Q And then what's the 45 stand for next to the 60? 24

A That's just a breakdown; I believe it's degrees, 25

193


minutes, seconds. So it's be like a decimal place. 1

Q So it's 60 and a little bit more because of the 45; 2

is that what that's indicating? 3

A Yeah. Right. 4

Q And then what about the 25 that's written next to 5

that? 6

A That's an even smaller decimal place. 7

Q Okay. 8

A So if you want to think about that, it's 60.4525. 9

Q So it's a fairly precise angle; is that fair to say, 10

if you're taking it down to that level? 11

A That's just the convention that the draftsman uses, 12

put the degrees and seconds in there. 13

Q Is that fairly precise; is that fair to say? 14

A Based on what the computer shows, yeah. Uh-huh. 15

Q Okay. Uh-huh. And let me have you travel along the 16

darker line, centerline there. And see that next grouping of 17

numbers right there, it looks like it starts with a -- is that 18

a N40 -- or N88; do you see what I'm referring to? 19

A Yeah, I see what you're referring to; I can't read 20

what it is, though. 21

MR. KEEVER: Okay. Can you blow that up even bigger 22

or will it just get fuzzier? 23

BY MR. KEEVER: 24

Q If you have a number, and let's say it's N884611W, 25

194


okay, what would that depict? 1

A That'd be the bearing from the previous PI. 2

Q So you had a turn in the pipeline somewhere else and 3

then this is showing what the angle that it's going to the next 4

PI? 5

A That's correct, yeah. 6

Q So what is a north 884611W angle? 7

A It means that it's almost at a straight westerly 8

direction. So if it was 90 degrees, you'd be running straight 9

west. 10

MR. KEEVER: Can you pull back out? And yeah, just 11

blow up that top part again. 12

BY MR. KEEVER: 13

Q And then see below that it says, "tie"; I believe 14

that's what it says, T-I-E? 15

A Yes. 16

Q What is a tie? 17

A That's a distance in bearing from the section corner. 18

Q And so this tie would be to what section corner? 19

A South quarter corner section 17. 20

Q And what's the -- directly under where you were 21

pointing to where it says, "South quarter corner section 17," 22

do you see where it says, "R91"? 23

A Yes. 24

Q What's an R91? 25

195


A Range 91 west. 1

Q Okay. And what is -- 2

A That's just the -- 3

Q What is -- I'm sorry. 4

A It's a grid system. 5

Q And a grid system that does what? 6

A Splits the state into squares, basically. 7

Q And the next designation there is 6THPM; do you see 8

where I'm referring to? 9

A Yes. 10

Q And what is that? 11

A I believe that's the 6th prime meridian. 12

Q And is that part of that square or grid system? 13

A I don't know; I'm not a surveyor, so. 14

Q Okay. 15

A Yes. 16

Q And -- 17

A Project -- 18

Q And -- 19

A Project manager, not a surveyor. Yeah. 20

Q And do you see what's underneath that 91 -- R91W? 21

A Yes. 22

Q And what does that indicate? 23

A That means that the section corner, a brass cap was 24

found in the field. 25

196


Q And located by somebody in the field? 1

A Yes. Or a previous surveyor. Uh-huh. 2

MR. KEEVER: Your Honor, it's 5:00; this may be a 3

good stopping point. 4

THE COURT: Yeah. Thank you. I was about to ask, so 5

thank you. All right. 6

Sir, you can step down for now. 7

Ladies and gentlemen of the jury, we'll call it a day 8

for today. I want to remind you to follow all the rules that I 9

have mentioned to you. And if you'll be back in your jury 10

assembly room by 8:45 tomorrow morning, we should be able to 11

resume promptly at 9:00. So until then, think about other 12

things and have a pleasant, restful good evening. We'll see 13

you in the morning. 14

(Jury out at 5:03 p.m.) 15

THE COURT: You may be seated, if you like. We're 16

out of the jury's presence. Anything for the record, Mr. 17

Keever? 18

MR. KEEVER: Your Honor, how would you like us to do 19

the exhibits at this point that have been admitted; do you want 20

us just to hand them to the Bailiff so that she can distribute 21

them? 22

THE COURT: I want you to exercise some discretion on 23

that. 24

MR. KEEVER: I recognize that. 25

197


THE COURT: Yeah. Not -- but the ones -- yes, the 1

ones that you want the jury to have copies of, why don't you 2

just let me know in the morning which ones they are and I'll 3

remember to ask -- to have the Bailiff distribute them if 4

you'll have, yeah, seven sets for her. Okay? 5


THE COURT: You're welcome. 7

Mr. Tooley, anything? 8

MR. TOOLEY: Nothing further. I just wanted to get 9

some idea of tomorrow's schedule on witnesses, just so we know 10

what to expect. 11

THE COURT: Okay. Okay. Well, we can talk about 12

this -- 13


THE COURT: -- off the record. And I mean, counsel 15

can talk. I don't -- 16

(Proceedings adjourned at 5:04 p.m., recommencing in 17

Volume II) 18

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CERTIFICATE 1

I hereby certify that the foregoing is a true and correct 2

transcript from the electronic sound recording of the 3

proceedings in the above-entitled matter. 4

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GLORIA VEILLEUX

Digital Court Transcriber 9

DATED and SIGNED this 13th day of August, 2012. 10

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Day 1 Court Transcript

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