Trans-West, Inc. v. Southwest Luxury Coach Sales, Llc et alMOTION for Summary JudgmentD. Colo.July 28, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-02233-RM-MJW TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Plaintiff, v. SOUTHWEST LUXURY COACH SALES, LLC; and SCOTT BUCHANAN, Defendants. ______________________________________________________________________________ SOUTHWEST LUXURY COACH SALES, LLC, Counterclaim Plaintiff v. TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Counterclaim Defendant. ______________________________________________________________________________ DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 1 of 22 i TABLES OF CONTENTS AND AUTHORITIES CONTENTS INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARD ..................................................................................................................... 2 ARGUMENT .................................................................................................................................. 2 I. THE ECONOMIC LOSS RULE BARS TRANSWEST’S TORT CLAIMS ...................... 2 II. TRANSWEST CANNOT ESTABLISH DAMAGES OR PROPERTY LOSSES RECOVERABLE FROM DEFENDANTS ................................................................................ 4 III. DEFENDANTS UNDISPUTEDLY ENGAGED IN NO CONDUCT THAT COULD SUPPORT TRANSWEST’S CLAIMS ...................................................................................... 5 A. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT CIVIL THEFT ... 5 B. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT CONVERSION .. 7 C. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT FRAUD .............. 8 D. AS A MATTER OF LAW, DEFENDANTS DID NOT AID OR ABET ANY BREACH OF FIDUCIARY DUTY ....................................................................................... 9 E. AS A MATTER OF LAW, DEFENDANTS DID NOT ENGAGE IN AN UNLAWFUL CONSPIRACY .............................................................................................. 11 F. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT BREACH OF CONTRACT ......................................................................................................................... 12 G. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT CONDUCT WARRANTING A FINDING OF CONSTRUCTIVE TRUST OR UNJUST ENRICHMENT .................................................................................................................... 14 IV. SOUTHWEST IS ENTITLED TO SUMMARY JUDGMENT ON ITS MOTOR VEHICLE REPAIR ACT CLAIM ........................................................................................... 15 CONCLUSION ............................................................................................................................. 16 Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 2 of 22 ii AUTHORITIES Federal Cases Kingvision v. Gutierrez, 544 F. Supp.2d 1179 (D. Colo. 2008) ........................................................................................ 4 Newport Steel v. Thompson, 757 F. Supp. 1152 (Colo. App. 1990) ........................................................................................ 7 U.S. Fax law Center v. iHire, 374 F. Supp.2d 924 (D. Colo. 2005) .......................................................................................... 4 State Cases Adler v. Wal-Mart, 144 F.3d 664 (10th Cir. 1998) ................................................................................................... 2 Anderson v. Liberty Lobby, 477 U.S. 242 (1986) ................................................................................................................... 2 Bones v. Honeywell Int’l, 366 F.3d 869 (10th Cir. 2004) ................................................................................................... 2 Carney v. City & Cnty. of Denver, 534 F.3d 1269 (10th Cir. 2008) ................................................................................................. 2 Chaffin, Inc. v. Wallain, 689 P.2d 684 (Colo. App. 1984) ................................................................................................ 8 Club Matrix v. Nassi, 284 P.3d 93 (Colo. App. 2011) .............................................................................................. 4, 5 Double Oak Constr. v. Cornerstone Dev., 97 P.3d 140 (Colo. App. 2003) .................................................................................................. 4 Greenway Nutrients v. Blackburn, 33 F. Supp.3d 1224 (D. Colo. 2014) .......................................................................................... 8 Hamon Contractors v. Carter & Burgess, 229 P.3d 282 (Colo. App. 2009) ................................................................................................ 3 Harris Grp. v. Robinson, 209 P.3d 1188 (Colo. App. 2009) ........................................................................................ 4, 14 Holmes v. Young, 885 P.2d 305 (Colo. App. 2008) ............................................................................................ 4, 9 In re Dorland, 374 B.R. 765 (Bankr. Colo. 2007) ............................................................................................. 5 In re Duran, 483 F.3d 653 (10th Cir. 2007) ................................................................................................... 6 JW Constr. v. Elliott, 253 P.3d 1265 (Colo. App. 2011) .............................................................................................. 9 Lassley v. Aminokit Labs., 2015 WL 9437879 (D. Colo. 2015) ......................................................................................... 11 Lawry v. Palm, 192 P.3d 550 (Colo. 2008) ................................................................................................... 4, 14 Makoto USA v. Russell, 250 P.3d 625 (Colo. App. 2009) ................................................................................................ 3 Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 3 of 22 iii Marquardt v. Perry, 200 P.3d 1126 (Colo. App. 2008) ............................................................................................ 13 Martensen v. Koch, 2014 WL 3057172 (D. Colo. 2014) ......................................................................................... 11 Montoya v. Grease Monkey, 883 P.2d 486 (Colo. App. 1994) ................................................................................................ 5 Nelson v. Elway, 908 P.2d 102 (Colo. 1995) ................................................................................................. 11, 12 Patrick v. Bank of New York, 2012 WL 934288 (D. Colo. 2012) ........................................................................................... 11 People v. Rotello, 754 P.2d 765 (Colo. 1988) ......................................................................................................... 6 Qwest v. Blood, 252 P.3d 1071 (Colo. 2011) ....................................................................................................... 4 R.A.S. Builders v. Euclid & Commonwealth, 965 P.2d 1242 (Colo. 1998) ..................................................................................................... 14 Rees v. Unleaded Software, 2013 WL 6354532 (Colo. App. 2013) ....................................................................................... 3 Rosiana v. Group O, 2014 WL 679884 (D. Colo. 2014) ............................................................................................. 3 Schmidt-Tiago v. Colorado Springs, 633 P.2d 533 (Colo. App. 1981) .............................................................................................. 14 Scott v. Hern, 216 F.3d 897 (10th Cir. 2000) ................................................................................................. 11 Sender v. Mann, 423 F. Supp.2d 1155 (D. Colo. 2006) ........................................................................................ 9 Stauffer v. Stegemann, 165 P.3d 713 (Colo. App. 2006) ................................................................................................ 7 Sterenbuch v. Goss, 266 P.3d 428 (Colo. App. 2011) ................................................................................................ 4 Ward v. Dept. of Natural Res., 216 P.3d 84 (Colo. App. 2008) .......................................................................................... 4 Wolford v. Pinnacol Assurance, 107 P.3d 947 (Colo. 2005) ......................................................................................................... 8 State Statutes C.R.S. § 18-4-401(1) ....................................................................................................................... 6 C.R.S. § 18-4-405 ................................................................................................................... 4, 5, 6 C.R.S. § 4-2-201(1) ....................................................................................................................... 12 C.R.S. § 4-2-403(2) ....................................................................................................................... 15 C.R.S. § 42-9-104(1) ..................................................................................................................... 15 C.R.S. § 42-9-104(2)(a)(I) ............................................................................................................ 14 C.R.S. § 42-9-101 ......................................................................................................................... 15 C.R.S. § 42-9-104 ......................................................................................................................... 15 Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 4 of 22 iv Federal Rules Fed. R. Civ. P. 56 ............................................................................................................................ 1 Fed. R. Civ. P. 56(a) ....................................................................................................................... 2 Secondary Authorities Restatement (Second) of Torts § 876.............................................................................................. 9 Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 5 of 22 1 Pursuant to Fed. R. Civ. P. 56, Defendants Southwest Luxury Coach Sales, LLC (“Southwest”), and Scott Buchanan move this Court for judgment in Defendants’ favor on each of Plaintiff Trans-West, Inc.’s (“Transwest”) claims. Southwest also moves this Court for judgment as to liability on Southwest’s Motor Vehicle Repair Act counterclaim. INTRODUCTION Transwest and Southwest are each automobile dealerships that buy and sell recreational vehicles (“RVs”). These sophisticated parties bargained for and memorialized their agreements into written contracts. Transwest received every single dollar it bargained for under the contracts. Transwest asks the Court to ignore the contracts or re-write them. All of Transwest’s tort claims, and this case itself, arise from written contracts for the sale of RVs. Those contracts and the economic loss rule bar all of Transwest’s tort claims. Transwest limited its damages for the alleged tort claims to one measure: the payments made by Southwest to Mullins. Transwest unequivocally abandoned any claims to lost profits or discounted or inflated RV sale terms. The payments Transwest seeks went through checks from Southwest to Mullins and were never owned by Transwest. So, Transwest has no claim to the unifying element of all its tort claims: damages. The undisputed facts show that the dealings on which Transwest bases its tort claims concern sophisticated businesses dealing at arms-length. Defendants’ dealings, including payments to Mullins, were entirely proper and Transwest’s claims arise from issues with its own employee, not Defendants. More specifically, Defendants’ conduct does not comprise the elements of theft, conversion, aiding a breach of fiduciary duty, fraud, or unjust enrichment. Transwest simply cannot prove its tort claims. Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 6 of 22 2 This leaves Transwest’s breach of contract claim, which Transwest limits to $26,702 for alleged repairs. That alleged contract is an oral contract barred by the statute of frauds. And Transwest undisputedly performed the repairs without Southwest’s written authorization, meaning Southwest is also entitled to judgment on its Motor Vehicle Repair Act counterclaim. LEGAL STANDARD Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Although [the] summary judgment standard requires [a court] to view the facts in the light most favorable to the non-moving party[,] it does not require [a court] to make unreasonable inferences in favor of the non-moving party.” Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008). When, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying “ a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart, 144 F.3d 664, 671 (10th Cir. 1998); see also Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986)( nonmovant “must set forth specific facts showing that there is a genuine issue for trial.”). Conclusory statements based merely on speculation, conjecture, or subjective belief will not bar summary judgment. See Bones v. Honeywell Int’l, 366 F.3d 869, 875 (10th Cir. 2004). ARGUMENT I. THE ECONOMIC LOSS RULE BARS TRANSWEST’S TORT CLAIMS “The economic loss rule ‘maintain[s] the boundary between contract law and tort law.’ It provides that ‘a party suffering only economic loss from the breach of an express or implied Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 7 of 22 3 contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.’” Makoto USA v. Russell, 250 P.3d 625, 627 (Colo. App. 2009). The economic loss rule bars each tort claim Transwest asserts.1 The parties undisputedly entered individual contracts for each transaction at issue.2 Each contract sets forth all transaction terms, including price and identification of the goods involved, and sets forth each party’s duties. See Exhibit 1, ¶ 22; and Exhibit 15. No contract prohibited Southwest from making payments to Mullins. See Exhibit 1, ¶ 23. Yet, Transwest seeks to hold Defendants tortiously liable for these payments even though all the transactions between Transwest and Southwest were memorialized in contracts drafted by Transwest. See id. at ¶¶ 11, 22. Transwest has not identified a legal duty underlying any of its tort claims that was not memorialized in the parties’ contracts. Having limited its claimed damages to the $265,925 Southwest paid to Mullins, Transwest asserts nothing more than alleged economic losses from contracts it drafted. So, the economic loss rule bars Transwest’s tort claims. 1 See Makoto USA, 250 P.3d at 628 (economic loss rule barred civil theft claim since “[t]he theft claim could not have been proven without first proving that defendants also breached their contract with plaintiff”); Rees v. Unleaded Software, 2013 WL 6354532, *6 (Colo. App. 2013)(economic loss rule barred civil theft claim); Hamon Contractors v. Carter & Burgess, 229 P.3d 282, 289 (Colo. App. 2009)(economic loss rule barred fraud claim); Rosiana v. Group O, 2014 WL 679884, *6 (D. Colo. 2014)(plaintiff’s “tort claim for breach of fiduciary duty is barred by Colorado’s economic loss rule and should be dismissed”). 2 See Exhibit 1, ¶ 25; see also Reply in Support of Motion for Protective Order and Motion to Quash Subpoena [58], filed March 28, 2016, p. 1 (acknowledging Transwest’s claims relate to “62 RV transactions”). Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 8 of 22 4 II. TRANSWEST CANNOT ESTABLISH DAMAGES OR PROPERTY LOSSES RECOVERABLE FROM DEFENDANTS Transwest cannot establish damages or losses attributable to Defendants. Damages are an element of every claim asserted by Transwest.3 So, Transwest must establish “a measure of the loss or harm, generally in the form of pecuniary compensation, resulting from an injury suffered by [Transwest] because of the unlawful act, omission, or negligence of [Defendants].” Double Oak Constr. v. Cornerstone Dev., 97 P.3d 140, 150 (Colo. App. 2003). Such damages must “‘redress the concrete loss that the plaintiff has suffered.’” Qwest v. Blood, 252 P.3d 1071, 1099 (Colo. 2011)(citation omitted). “Where a legal injury is of an economic character, as here, legal redress in the form of compensation should be equal to the injury.” Ward v. Dept. of Natural Res., 216 P.3d 84, 95 (Colo. App. 2008). The plaintiff has the burden of proof and must establish by a preponderance of the evidence that he has in fact suffered damage and that the evidence introduced provides a reasonable basis for a computation of damages. Actual damage is an essential element of such damages, and actual damage cannot be based on mere speculation or conjecture. Club Matrix v. Nassi, 284 P.3d 93, 96 (Colo. App. 2011). Transwest alleges $265,925 in tort damages, all of which were funds owned by Southwest and paid directly from Southwest to Mullins. See Exhibit 1, ¶¶ 2-3, 24-25. These funds were neither payable to Transwest nor contemplated by the written contracts between 3 See Holmes v. Young, 885 P.2d 305, 309 (Colo. App. 2008)(damages required to establish aiding and abetting breach of fiduciary duty); Kingvision v. Gutierrez, 544 F. Supp.2d 1179, 1185-86 (D. Colo. 2008)( damages required for C.R.S. § 18-4-405 civil theft claim to exceed $200 limit); Club Matrix v. Nassi, 284 P.3d 93, 96 (Colo. App. 2011)(fraud); U.S. Fax law Center v. iHire, 374 F. Supp.2d 924, 928 (D. Colo. 2005)(conversion); Sterenbuch v. Goss, 266 P.3d 428, 435-36 (Colo. App. 2011)(civil conspiracy); Lawry v. Palm, 192 P.3d 550, 562 (Colo. 2008)(constructive trust); Harris Grp. v. Robinson, 209 P.3d 1188, 1205 (Colo. App. 2009)(unjust enrichment). Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 9 of 22 5 Transwest and Southwest. See id. at ¶¶ 23-25, 41-43; and Exhibit 15. Transwest never possessed these funds. See Exhibit 1, ¶¶ 24-26; and Exhibit 16. Instead, the payments went directly from Southwest to Mullins. See id. Therefore, Transwest has not suffered a “concrete loss” because it never had the payments to lose. Transwest’s likely argument that, had Southwest not paid these funds to Mullins, Southwest would have paid these funds to Transwest is not only false, see Exhibit 1, ¶ 43, it is also the mere speculation or conjecture that cannot serve as a basis for damages. The parties are sophisticated and negotiated terms to buy/sell RVs that were memorialized in written contracts drafted by Transwest. See id. at ¶¶ 11, 16-17; and Exhibit 15. Transwest received every dollar required under these contracts, which do not provide for the payment of any additional funds to Transwest under any circumstance. See Exhibit 15. The transactions between Transwest and Southwest were completed before Southwest made any payments to Mullins. See Exhibit 1, ¶ 31; see also Section III.E, infra. Because the undisputed facts demonstrate Transwest cannot establish damages, Defendants are entitled to judgment as a matter of law on all of Transwest’s claims. III. DEFENDANTS UNDISPUTEDLY ENGAGED IN NO CONDUCT THAT COULD SUPPORT TRANSWEST’S CLAIMS A. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT CIVIL THEFT Civil theft is an action under C.R.S. § 18-4-405 to recover “property obtained by theft.” The statute “was intended to be a punitive measure depriving thieves and persons who buy and sell stolen goods of the immediate fruits of their criminal activities.” Montoya v. Grease Monkey, 883 P.2d 486, 490 (Colo. App. 1994). A defendant who “does not fit into the category Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 10 of 22 6 of thieves or persons who buy and sell stolen property which the statute aspires to punish” has no liability under the statute. Id.; see also In re Dorland, 374 B.R. 765, 780 (Bankr. Colo. 2007)(in enacting the statute, the “General Assembly intended for the statute to require proof of the commission of a criminal act”); In re Duran, 483 F.3d 653, 654-55 (10th Cir. 2007)(plaintiff’s “attempt to collect damages under Colorado’s rights in stolen property statute, Colo.Rev.Stat. § 18-4-405, is likewise unavailing because there has been no showing of any criminal act”). More specifically, civil theft requires a showing that the defendant “knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception” with the intent to “deprive the other person permanently of its use or benefit.” C.R.S. § 18-4-401(1). For instance, in People v. Rotello, 754 P.2d 765 (Colo. 1988), a defendant sold drinks at a county park pursuant to a lease with the county requiring the defendant to report and remit a percentage sales. The defendant underreported sales and was charged with theft. The Colorado Supreme affirmed the dismissal of that charge based on a finding that the “conduct created a debtor-creditor relationship but did not give rise to criminal liability.” Id. at 766.4 As shown above, Transwest never had possession of or entitlement to the funds paid to Mullins. See Exhibit 1, ¶¶ 24-26, 41-43. Yet, Transwest claims Defendants wrongfully interfered with the checks written to Mullins even though they were not intended for or delivered to Transwest. See id. at ¶¶ 3, 24-26, 41-43; and Exhibit 4 at 235:4-9. Therefore, no property belonging to Transwest ever existed-the money was Southwest’s until it wrote checks directly to Mullins, at which time it became his property, not Transwest’s. Nor can Transwest place 4 This is another example of a case where the court looked at the written agreement between the parties for damages rather than alleged tortious conduct. Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 11 of 22 7 either Defendant into the category of thieves or persons who buy and sell stolen property. Like the debtor-creditor relationship in Rotello, the relationship between Transwest and Southwest was one of buyer-seller. See Exhibit 1, ¶¶ 16-17, 22. Such a relationship does not give rise to criminal liability. B. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT CONVERSION Conversion requires a “distinct, unauthorized act of dominion or ownership exercised by [Defendants] over personal property belonging to [Transwest].” Stauffer v. Stegemann, 165 P.3d 713, 717 (Colo. App. 2006). “In general, conversion consists of the wrongful deprivation of property in which the plaintiff is entitled to possess.” Newport Steel v. Thompson, 757 F. Supp. 1152, 1155 (Colo. App. 1990)(emphasis added). Without ever possessing the payments, Transwest lacks the required entitlement of possession to prove damages under its conversion claim. The payments Transwest seeks never belonged to, were intended for, or were possessed by Transwest. See Exhibit 1, ¶¶ 24-26, 41-43. Southwest no longer possesses those payments-Mullins has them. See id. at ¶¶ 24-26. Logically, neither Defendant can be a “controlling party” as required for Transwest to prove a conversion claim because Southwest does not control the funds Transwest seeks. When Defendants had control over these funds, they belonged to Southwest. See id. at ¶¶ 24, 26. Southwest then paid these funds to Mullins, and he took control them. See id. at ¶¶ 24-26; and Exhibit 16. Neither Defendant retained any authority to demand them back. See Exhibit 16. Transwest cannot prove its claim for conversion because Transwest did not, indeed cannot, exercise ownership over the property at issue. Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 12 of 22 8 C. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT FRAUD Transwest’s fraud claim fails because (a) Southwest made no false representation, (b) Transwest was not induced to act, (c) Transwest approved the transactions, and (d) Transwest was not damaged. “‘[F]raud is generally defined as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.’” Wolford v. Pinnacol Assurance, 107 P.3d 947, 952 n.6 (Colo. 2005). “However, fraud is not equated with secretiveness.” Chaffin, Inc. v. Wallain, 689 P.2d 684, 688 (Colo. App. 1984). Instead, to prove fraud by misrepresentation,5 Transwest must establish: (1) a false representation of a material existing fact; (2) knowledge on the part of the one making the representation that it was false; (3) ignorance on the part of the one to whom the representation was made of its falsity; (4) the representation was made with an intention that it be acted on; and (5) the representation resulted in damage. Greenway Nutrients v. Blackburn, 33 F. Supp.3d 1224, 1256 (D. Colo. 2014)(citing cases). The court in Greenway Nutrients also held that conduct in business transactions is not actionable as fraud when the conduct “was not offered as an inducement to anyone for anything.” Id. at 1257. First, Defendants made no false representation to Transwest. See Exhibit 4 at 197:9- 198:25. Transwest cannot show any affirmative representation made to Transwest by either Defendant that was false. Southwest never told Transwest it was not sending payments to Mullins and the contracts never prohibited such payments. See Exhibit 1, ¶¶ 23, 40. Southwest never told Transwest it would pay more or less for the RVs than the amount set forth in each contract and Transwest received all amounts agreed upon in the contracts. See id. at ¶¶ 22, 35, 41; and Exhibit 15. This lack of any misrepresentation to Transwest exists, in part, because 5 Transwest has pled only fraud by misrepresentation. See Amended Complaint ¶¶ 46-52. Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 13 of 22 9 Southwest communicated with no one at Transwest except for Mullins.6 See Exhibit 1, ¶ 18. Because Transwest cannot point to any misrepresentation, it also cannot demonstrate the reliance needed to prove a claim for fraudulent misrepresentation. Transwest approved all the transactions between Transwest and Southwest. As discussed in Section II, Transwest also cannot establish any damages.7 D. AS A MATTER OF LAW, DEFENDANTS DID NOT AID OR ABET ANY BREACH OF FIDUCIARY DUTY Liability for aiding a tortious act requires a showing that “the defendant is generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance, and the defendant knowingly and substantially assists the principal violation.” Holmes v. Young, 885 P.2d 305, 308 (Colo. App. 2008). So, “[t]he gravamen of a claim of aiding and abetting a breach of fiduciary duty is the defendant’s ‘knowing participation’ in the fiduciary’s breach of trust . . . the factfinder is required only to ‘find that the [defendant] knew of the breach of duty and participated in it.’” Id. at 309 (citation omitted). Colorado courts take these elements from Restatement (Second) of Torts § 876, the comments to which provides that: One who innocently, rightfully and carefully does an act that has the effect of furthering the tortious conduct or cooperating in the tortious design of another is not for that 6 According to Transwest, Mullins was not an agent of Transwest, see Responses to First Set of Written Discovery, served February 10, 2016, p. 21, attached as Exhibit 2 (“Mullins was not acting as Transwests agent”). So, any alleged misrepresentation was, according to Transwest, not made to Transwest, also causing Transwest’s fraud claim to fail based on a lack of misrepresentation. 7 See JW Constr. v. Elliott, 253 P.3d 1265, 1272 (Colo. App. 2011)(“The measure of damages in a fraud action is the difference between the actual value of the benefits received and the value of those benefits if they had been as represented”). Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 14 of 22 10 reason subject to liability . . . . ordinarily he is not liable for other acts that, although done in connection with the intended tortious act, were not foreseeable by him. See id. at 309; see also Sender v. Mann, 423 F. Supp.2d 1155, 1175 (D. Colo. 2006)(“Aiding and abetting in Colorado requires that the defendant knowingly participated in the underlying breach or violation.”). The undisputed facts show that Defendants could not have aided or abetted Mullins’ alleged breach of fiduciary duty because neither Defendant knew of any impropriety associated with Mullins’ acts. See Exhibit 1, ¶¶ 21, 37-40. Mr. Buchanan never met Mullins before Transwest filed this lawsuit. See id. at ¶ 28. Mr. Buchanan had only communicated with Mullins through email, text message, and telephone. See id. at ¶ 29. During those communications, Mr. Buchanan never discussed potential payments to Mullins. See id. at ¶ 30. Mr. Buchanan never made any agreement with Mullins to pay him any specific sum. See id. at ¶¶ 27, 32-35. Instead, Mr. Buchanan personally decided if and how much Southwest would pay Mullins on a case-by-case basis for each specific transaction. See id. at ¶¶ 31, 35. Southwest’s payments to Mullins were advertising expenses to cultivate a business relationship and, as far as Defendants knew, Mullins received Transwest’s approval for each transaction’s terms. See id. at ¶¶ 10, 12, 21, 37-39, 42. Southwest relied on Mullins’ representations as a Transwest employee, upon which Transwest admits Southwest had a right to rely. See id. at ¶ 20; and Exhibit 5 at 93:1-94:8. Southwest believed Mullins was acting in accordance with his job requirements. See Exhibit 1, ¶¶ 21, 37-39. So, to the extent Mullins wrongfully hid Southwest’s payments from Transwest, Defendants lacked any knowledge of Mullins acts or the fact that these acts might have breached the terms of Mullins’ employment agreement. Defendants’ lack of knowledge Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 15 of 22 11 prevents Transwest from establishing the necessary knowing participation to succeed on its claim. E. AS A MATTER OF LAW, DEFENDANTS DID NOT ENGAGE IN AN UNLAWFUL CONSPIRACY “[T]he elements of a civil conspiracy claim require that the underlying acts be unlawful.” Lassley v. Aminokit Labs., 2015 WL 9437879, *2 (D. Colo. 2015).8 “A party may not be held liable for doing in a proper manner that which it had a lawful right to do.” Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995); see also Patrick v. Bank of New York, 2012 WL 934288, *16 (D. Colo. 2012)(“plaintiffs have failed to satisfy the fourth element because they have not shown that defendants engaged in any illegal overt act or that the object of the conspiracy was unlawful”). Also, the underlying acts must “create an independent cause of action . . . ‘based on an underlying tort.’” Martensen v. Koch, 2014 WL 3057172, *2 (D. Colo. 2014)(citation omitted). A plaintiff “cannot state a claim for civil conspiracy . . . where the underlying violation does not create a cause of action.” Id. The court will not infer the agreement necessary to form a conspiracy; the plaintiff must prove such an agreement. See Nelson, 908 P.2d at 106. Transwest cannot prove its civil conspiracy claim against Defendants because no “meeting of the minds” existed and Southwest had a lawful right make payments to Mullins. As shown above, Mr. Buchanan never made any agreement with Mullins regarding any payment. See Exhibit 1, ¶¶ 27-35. It was impossible for Southwest to reach an agreement with Mullins regarding any payment to Mullins because Southwest did not determine what, if any, payment 8 The elements of civil conspiracy are “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) an unlawful overt act; and (5) damages as to the proximate result.” Scott v. Hern, 216 F.3d 897, 918 (10th Cir. 2000)(citation omitted). Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 16 of 22 12 would be made to Mullins until after Southwest sold any RV it purchased from Transwest. See id. at ¶ 31. Moreover, Mr. Buchanan had no set formula for determining the amount of any particular payment. See id. at ¶¶ 32-33, 35. Importantly, all payments to Mullins occurred after (a) Transwest approved all sale terms; (b) Southwest paid Transwest for the purchase of the RVs; (c) Southwest sold the RV to a subsequent buyer; and (d) Southwest received a profit in the sale to a subsequent buyer. See id. at ¶ 31. Such facts bar Transwest from establishing that Mullins reached any agreement with either Defendant as to the payments he might have received from Southwest. This lack of any agreement between Defendants and Mullins also prevents Transwest from establishing an unlawful object. Like the defendants in Nelson that had a legal right to “attempt to obtain the most advantageous position for themselves in a transaction,” Defendants had a legal right to curate business relationships in an effort to receive timely notice of quality opportunities. Nelson, 908 P.2d at 106. As established throughout this Motion, Transwest approved the terms of each transaction. See Exhibit 1, ¶¶ 10-12, 17-19. So, Defendants were not pursuing this right at Transwest’s expense, i.e., in an improper manner. F. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT BREACH OF CONTRACT Under Colorado’s statute of frauds, a contract for the sale of goods over $500, like the contracts Transwest entered with Southwest, are unenforceable “unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought.” C.R.S. § 4-2-201(1). Transwest alleges an oral contract with Defendants. See Amended Complaint at ¶ 67. Transwest has described the contract with Defendants as a consignment for the sale of an RV, which is a good. See Motion Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 17 of 22 13 to Dismiss, or in the Alternative, Motion for Partial Summary Judgment on Counterclaims [74], filed May 6, 2016, p. 19. Mr. Buchanan informed Transwest that it had to sell the RV for at least $90,000.00. See Exhibit 1, ¶ 46. So, the statute of frauds applies to Transwest’s breach of contract claim, making the alleged oral contract unenforceable and entitling Defendants to judgment as a matter of law. If Transwest chooses to now change its characterization of the alleged contract to be one for repair services, it cannot prove the acceptance necessary to establish a contract. “Acceptance of an offer is generally defined as words or conduct that, when objectively viewed, manifests an intent to accept an offer.” Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo. App. 2008). Neither Defendant ever agreed to the repairs Transwest performed; nor did they agree to pay $26,702 for those repairs. See Exhibit 1, ¶¶ 50-51. Defendants were never provided an estimate of the repairs, so that they could accept the offer to have the repairs made. See id. at ¶ 50. In fact, any agreement between Transwest and Southwest included Transwest covering the cost of any repairs through the sale price of the Dynamax and still paying Southwest $90,000 after the sale. See id. at ¶ 46. So, Transwest cannot establish the existence of a contract. Finally, Transwest’s failure to substantially perform under the alleged contract’s terms bars recovery. See Marquardt, 200 P.3d at 1129 (breach of contract requires substantial performance by plaintiff). When Southwest left the RV with Transwest for sale on consignment, Southwest understood the RV to need at most approximately $1,500 in repairs, if it needed any repairs at all. See Exhibit 1, ¶ 49. Therefore, substantial performance from Transwest would have been performing approximately $1,500 in repairs before selling the Dynamax for no less than $90,000. Allegedly performing $26,702 in repairs (almost 18 times the amount potentially Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 18 of 22 14 agreed upon and over 25% of the required sales price) does not qualify as substantial performance. Again, Transwest cannot succeed on its breach of contract claim. G. AS A MATTER OF LAW, DEFENDANTS DID NOT COMMIT CONDUCT WARRANTING A FINDING OF CONSTRUCTIVE TRUST OR UNJUST ENRICHMENT “[T]he elements of an unjust enrichment claim are: (1) at plaintiff’s expense (2) defendant received a benefit (3) under circumstances that would make it unjust for defendant to retain the benefit without paying.” R.A.S. Builders v. Euclid & Commonwealth, 965 P.2d 1242, 1244 (Colo. 1998). Similarly, a constructive trust is “imposed to prevent unjust enrichment. It enables the restitution of property that in equity and good conscience does not belong to the defendant.” Lawry v. Palm, 192 P.3d 550, 562 (Colo. 2008). Unjust enrichment requires that the defendant actually “received the benefit” at issue. Harris Grp., 209 P.3d at 1205. Similarly, “[f]or the court to impose a constructive trust, there must be some property to which the trust attaches.” Lawry, 192 P.3d at 562. Defendants did not receive the payments-Mullins received those-and there is nothing for Defendants to return to Transwest. Defendants do not possess the payments or any other property to which a trust could attach. See Schmidt-Tiago v. Colorado Springs, 633 P.2d 533, 534 (Colo. App. 1981)(refusing to create a constructive trust because “there is no res”). Finally, Transwest “cannot recover for unjust enrichment by asserting a quasi-contract when an express contract covers the same subject matter because the express contract precludes any implied-in- law contract.” Harris Grp., 209 P.3d at 1205. So, Defendants are entitled to judgment as a matter of law on Transwest’s unjust enrichment and constructive trust claims. Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 19 of 22 15 IV. SOUTHWEST IS ENTITLED TO SUMMARY JUDGMENT ON ITS MOTOR VEHICLE REPAIR ACT CLAIM Transwest violated C.R.S. § 42-9-104(2)(a)(I) by failing to provide a written estimate or otherwise communicate an estimate of the amount of repairs to be performed on Southwest’s Dynamax RV (the “Dynamax”). See Exhibit 1, ¶ 50. Transwest also violated C.R.S. § 42-9- 104(1) by never receiving written consent or waiver from Southwest prior to performing $26,702 of alleged repairs on the Dynamax Southwest delivered to Transwest for a consignment sale. See id. at ¶ 51. First and foremost, Transwest failed to produce any writing related to an estimate of or consent to the alleged repairs. See id. at ¶¶ 50-51. So, Southwest is entitled to judgment as to liability on its Motor Vehicle Repair Act claim.9 Transwest’s failure to provide a written estimate for repairs or receive approval for the alleged repairs prior to making them also bars any relief to Transwest under its theories of unjust enrichment and constructive trust. Southwest never requested Transwest make any repairs or improvements to the Dynamax. It is axiomatic that a party should not be allowed to perform unrequested work and then demand payment. To allow such acts would be tantamount to legalizing extortion under the guise of unjust enrichment. Therefore, Transwest cannot recover from Southwest for unapproved “repairs” it allegedly performed because forcing Southwest to pay for repairs it never requested would, itself, be unjust. 9 Transwest’s previously asserted argument that consignment somehow removes application of C.R.S. § 42-9-101 et seq., is without merit. Consignment only transfers ownership in a vehicle for the purposes of selling the vehicle and transferring title to a buyer in the ordinary course. See C.R.S. § 4-2-403(2). Consignment does not waive an owner’s rights under C.R.S. § 42-9-104. So, performing repairs without providing a written estimate or receiving written authorization and then charging Southwest for the repairs is an unlawful act whether or not the vehicle is consigned, and Southwest is entitled to judgment as a matter of law under the undisputed facts. Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 20 of 22 16 CONCLUSION For the reasons set forth herein, Defendants request this Court grant summary judgment in their favor as to all of Transwest’s claims. Southwest also requests judgment in its favor as to liability on its Motor Vehicle Repair Act counterclaim. Dated: July 28, 2016. s/ Scott C. Sandberg Scott C. Sandberg Neal McConomy Snell & Wilmer L.L.P. 1200 Seventeenth Street, Suite 1900 Denver, CO 80202 Telephone: 303.634.2000 / Fax: 303.634.2020 Email: ssandberg@swlaw.com; nmcconomy@swlaw.com and /s/ Eric W. Falbe Eric W. Falbe FALBE LAW, PLLC 10575 N. 114th Street, Suite 103 Scottsdale, Arizona 85259 ericfalbe@falbelaw.com Attorneys for Southwest Luxury Coach Sales, LLC and Scott Buchanan Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 21 of 22 17 CERTIFICATE OF SERVICE I hereby certify that on July 28, 2016, a copy of the foregoing was filed and served via email on the following via CM/ECF: James R. Cage Andrew T. Flynn Moye White LLP 1400 16th Street, 16th Floor Denver, CO 80202-1486 jim.cage@moyewhite.com; andrew.flynn@moyewhite.com Attorneys for Plaintiff s/Sandy Braverman for Snell & Wilmer L.L.P. 23713667.5 Case 1:15-cv-02233-RM-MJW Document 117 Filed 07/28/16 USDC Colorado Page 22 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-02233-RM-MJW TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Plaintiff, v. SOUTHWEST LUXURY COACH SALES, LLC; and SCOTT BUCHANAN, Defendants. ______________________________________________________________________________ SOUTHWEST LUXURY COACH SALES, LLC, Counterclaim Plaintiff v. TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Counterclaim Defendant. ______________________________________________________________________________ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Pursuant to this Court’s Practice Standard IV.B, Defendants Southwest Luxury Coach Sales, LLC (“Southwest”), and Scott Buchanan submit this Separate Statement of Undisputed Material Facts in Support of Defendants’ Motion for Summary Judgment. TRANSWEST’S CLAIMS AGAINST DEFENDANTS Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 1. Transwest, Inc. (“Transwest”) originally sought $865,532 plus treble damages, attorney fees, and EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 1 of 19 2 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence pre and post-judgment interest. See Plaintiff’s Responses to First Set of Written Discovery, served February 10, 2016, p. 12- 13 attached as Exhibit 2. 2. Transwest has limited its alleged damages to $292,627: $265,925, representing payments to Jeffery T. Mullins (“Mullins”), and $26,702 in alleged repairs made to a Southwest Luxury Coach Sales, LLC (“Southwest”) RV. See Plaintiff’s Seventh Supplemental Disclosures, served March 11, 2016, p. 1-2, attached as Exhibit 3; Deposition of George Eidsness, dated April 8, 2016, 215:14-216:5, relevant excerpts attached as Exhibit 4. 3. Transwest’s claim for the $265,925 in payments to Mullins is based on a belief that had Southwest not made payments to Mullins, Southwest would have made the same payments to Transwest. See Exhibit 4 at 37:2-21; 40:19-50:1; 52:7- 12; 54:5-9; 91:2-9; 107:3- 14; 107:24-108:1; Deposition of George Eidsness, dated March 3, EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 2 of 19 3 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 2016, 89:9-17; 90:22-91:8; 92:5-12; 94:23-95:5; 104:13-21, relevant excerpts attached as Exhibit 5; Deposition of Andrew Lyons, dated March 7, 2016, 86:12-25, relevant excerpts attached as Exhibit 6; and Deposition of Barbara Eidsness, dated March 2, 2016, 110:9-11 relevant excerpts attached as Exhibit 7. 4. Transwest claims each payment to Mullins was related to a specific transaction between Southwest and Transwest. See Exhibit 4 at 42:22- 43:1. 5. Transwest’s breach of contract claim relates solely to work Transwest allegedly performed on a Southwest RV (referred to herein as the “Dynamax”). See Amended Complaint and Jury Demand [40], filed December 30, 2015, ¶¶ 66-70. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 3 of 19 4 THE NATURE OF TRANSWEST’S BUSINESS Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 6. Transwest is a large company with close to 900 employees. See Exhibit 7 at 13:15-16; 74:1-3. 7. Transwest’s RV sales division has never been profitable; it lost at least $1.5 million in 2015 and has lost approximately $10,000,000 over the past five years. See Exhibit 4 at 64:10-13; 65:6-16; Exhibit 5 at 65:7-66:1; 76:1-6; 83- 20-84:13; 84:19-85:2; 202:24-203:5; and Exhibit 6 at 19:1-2; 20:9-11; 109:9- 12; 111:2-8. 8. Transwest regularly conducts business with RV wholesalers. See Exhibit 5 at 87:18-88:2; Exhibit 6 at 27:1-4; 30:10-12. 9. Transwest employs specific persons to specialize in RV sales. See Exhibit 5 at 73:20-22. 10. Transwest has established review, oversight, and approval procedures for the sale and purchase of RVs that require multiple people to approve each transaction. See Exhibit 4 at 141:3-6; Exhibit 5 at EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 4 of 19 5 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 171:15-18; 173:24-174:3; Exhibit 7 at 120:11-16; 139:19-25; 141143:5; Deposition of Mark Darrell Stenseth, dated April 8, 2016, 74:22-23, relevant excerpts attached as Exhibit 8; and Deposition of Bradley Land, dated February 5, 2016, 20:2-23; 29:14-30:19; 53:4-10; 60:23-61:11, relevant excerpts attached as Exhibit 9. 11. Transwest uses contracts it drafts to sell RVs, including to wholesale RV dealers. See Exhibit 5 at 88:3-22; Exhibit 6 at 28:16- 23; 231:5-6; Exhibit 7 at 41:6-9; and Exhibit 9 at 24:6-20. 12. Andrew Lyons, the general manager of the Transwest dealership at issue, supervised Mullins and reported to Transwest’s President, George Eidsness. See Exhibit 4 at 40:8-9; 101:13-22; 147:3-4; 147:17-21; 149:1-5; Exhibit 5 at 114:9-15; 147:9-16; Exhibit 6 at 10:11-11:3; 32:22-33:4; 87:1-5; 142:2-13; Exhibit 7 at 16:15-20; 17:11-19; Exhibit 9 at 19:1-21; and EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 5 of 19 6 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence Deposition of Scott Buchanan, dated March 7, 2016, 114:2-11, relevant excerpts attached as Exhibit 10. 13. Transwest employees receive incentive payments directly from third parties, and Transwest pays incentive fees to third parties, including payments directly to individuals. See Exhibit 4 at 80:24-81:1; 93:17-18; 93:24-94:2; 96:8- 22; 222:7-12; 223:20-23; 224:2-6; 225:4-6; Exhibit 5 at 59:22-60:25; 100:4-24; 189:12-17; Exhibit 6 at 47:18-48:4; 153:7-19; and Exhibit 7 at 51:11-13; 77:13-18; 159:4-23. THE NATURE OF SOUTHWEST’S BUSINESS Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 14. Southwest is a two-person company that employs a part time bookkeeper. See Exhibit 10 at 16:1-11. 15. Southwest is a wholesale RV dealer that, except for in rare circumstances, does not engage in the retail sale of RVs. Southwest, almost EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 6 of 19 7 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence exclusively, buys and sells RVs with other RV dealers or RV auctions. See Affidavit of Scott Buchanan, dated July 26, 2016, ¶ 2, attached as Exhibit 11. TRANSWEST’S DEALINGS WITH SOUTHWEST Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 16. Starting in February 2013, Southwest and Transwest began entering into a series of transactions to buy, sell, and trade RVs. See Exhibit 10 at 20:8-9; see also Buyers Order and Invoice, dated February 22, 2013, attached as Exhibit 12.1 1 Defendants will supplement this filing with Exhibit 12 upon this Court’s ruling regarding Defendants’ Motion to File Exhibits 12, 13, 15, and 16 to Their Motion for Summary Judgment Under Level 1 Seal (the “Motion to Seal”) [114]. Because Defendants have requested Level 1 sealing of Exhibit 12, Defendants have transmitted a copy of Exhibit 12 to Transwest upon filing this Motion for Summary Judgment. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 7 of 19 8 17. The transactions at issue in this lawsuit are between two sophisticated businesses, both experienced in the sale and purchase of RVs. See Exhibit 5 at 112:9-18; and Exhibit 6 at 30:10-12. 18. Southwest’s sole point of contact at Transwest during the relevant transactions was Mullins; Southwest did not negotiate or otherwise discuss any of the transactions at issue with any other Transwest representative. See Exhibit 11 at ¶ 5. 19. Transwest’s employee handbook requires that all contracts must be approved by its President, George Eidsness. See Transwest Employee Handbook bates labeled TW000850-919, TW000868, TW000894, attached as Exhibit 13.2 20. Transwest acknowledges that it is proper for a purchaser to rely on the authority of a sales manager. See Exhibit 5 at 92:19-94:8. 2 Defendants will supplement this filing with Exhibit 13 upon this Court’s ruling regarding Defendants’ Motion to Seal. Because Defendants have requested Level 1 sealing of Exhibit 13, Defendants have transmitted a copy of Exhibit 13 to Transwest upon filing this Motion for Summary Judgment. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 8 of 19 9 21. Southwest had no knowledge that Transwest employees were not allowed to receive incentive payments during the time period relevant to this lawsuit. See Exhibit 4 at 118:17-25; 120:22-24; 163:13-19; 221:25-222:6; Exhibit 5 at 86:20-22; 87:9- 17; 102:14-103:8; 144:17- 145:6; Exhibit 6 at 25:3-8; 51:4-12; 231:14-17; Exhibit 7 at 38:1-3; and Deposition of Scott Buchanan, dated June 20, 2016, 111:19-112:16, relevant excerpts attached as Exhibit 14. THE CONTRACTS Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 22. Each transaction between Southwest and Transwest at issue in this action was governed by a contract specific to that transaction. See Sales Contracts, dated February 2013-June 2015, attached as Exhibit 15;3 and Exhibit 4 at 52:7-12; 3 Defendants will supplement this filing with Exhibit 15 upon this Court’s ruling regarding Defendants’ Motion to Seal. Because Defendants have requested Level 1 sealing of Exhibit 15, Defendants have transmitted a copy of Exhibit 15 to Transwest upon filing this Motion for Summary Judgment. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 9 of 19 10 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 54:18-22; 59:14-18. 23. The contracts between Southwest and Transwest for Southwest to purchase RVs from Transwest had no prohibition against paying incentive payments to Mullins or anyone else. See Exhibit 5 at 185:22- 186:6; Exhibit 6 at 37:2-13; and Exhibit 15. SOUTHWEST’S PAYMENT OF THE CHECKS TO MULLINS Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 24. The money paid to Mullins was the property of Southwest prior to being paid to Mullins. See Exhibit 4 at 61:16-23; 196:10-14; and Exhibit 5 at 91:22-92:4. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 10 of 19 11 25. The $265,925 paid to Mullins was made by checks not payable to Transwest. See Exhibit 5 at 91:18-21; Exhibit 6 at 36:4- 10; Exhibit 7 at 46:16-17; 49:7-11; 135:7-136:22; and Checks to Jeffrey Mullins, dated December 23, 2013- May 27, 2015, attached as Exhibit 16.4 26. All money paid to Mullins came from checks written from Southwest’s bank account. Except for one $8,000 payment, Southwest issued an IRS Form 1099 for all payments made to Mullins. Exhibit 11 at ¶ 17. 27. Southwest and Mullins had no agreement regarding the payments at issue in this litigation. See Exhibit 5 at 185:9-15; Exhibit 9 at 116:12-25; and Exhibit 10 at 20:8-9; 21:16-25; 33:5- 13; 37:13-38:8; 75:20-76:4; 79:12-15; 117:18-23; 177:1-4. 28. Mr. Buchanan never met Mullins in person during the relevant time period. See Exhibit 10 at 20:8-9. 4 Defendants will supplement this filing with Exhibit 16 upon this Court’s ruling regarding Defendants’ Motion to Seal. Because Defendants have requested Level 1 sealing of Exhibit 16, Defendants have transmitted a copy of Exhibit 16 to Transwest upon filing this Motion for Summary Judgment. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 11 of 19 12 29. Mr. Buchanan only communicated with Mullins through email, text message, and telephone during the relevant time period. See Exhibit 11 at ¶ 5. 30. Defendants never discussed with Mullins any amounts Southwest might later decide to pay Mullins. See Exhibit 10 at 37:25-38:2. 31. Southwest only wrote checks to Mullins after a transaction was complete and Southwest (1) sold the RV to a subsequent buyer and (2) realized a profit from the transaction. See Exhibit 10 at 37:4-6; 122:6- 8; 126:3-13. 32. Mr. Buchanan never agreed upon a specific amount with Mullins for any of the payments. See Exhibit 10 at 37:23-24. 33. There was never a set percentage of the profit Southwest realized from a specific transaction that Southwest would pay to Mullins. See Exhibit 10 at 37:21-22; 177:1-4. 34. Mr. Buchanan and Mullins had no agreement as to when any payments would start. See Exhibit 10 at 117:18-20 EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 12 of 19 13 35. All payments Southwest made to Mullins were at the discretion of Southwest. See Exhibit 10 at 117:21- 23. 36. In Southwest’s dealings with retail dealerships, the dealership never provides Southwest with a written copy of the dealership’s policies and procedures relating to matters such as sale terms, required approvals, and permissible employee compensation. Instead, Southwest relies on representatives of the dealership to inform Southwest of any such policies or procedures. See Exhibit 11 at ¶ 3. 37. In Southwest’s dealings with Transwest, Transwest never informed Southwest of Transwest’s policies and procedures relating to matters such as sale terms, required approvals, and permissible employee compensation. Southwest relied on Mullins to undertake transactions with Southwest in a manner that complied with whatever policies and procedures Transwest may have. At no time did Southwest have any reason to believe that any of its dealings with Transwest did not comply with Transwest’s policies EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 13 of 19 14 and procedures. See Exhibit 11 at ¶ 8. 38. Mullins expressed and implied to Southwest that he had authority from Southwest to engage in all dealings he had with Southwest. Mullins never expressed or implied to Southwest that his acceptance of payments was not authorized by Transwest. To the contrary, Mullins expressed and implied that his acceptance of payments was authorized by Transwest. All of these express and implied representations were consistent with the authority generally provided a sales manager such as Mullins. See Exhibit 4 at 41:23-24; 196:7-9; Exhibit 5 at 92:19- 25; 93:1-94:8; 95:15-16; 154:3-5; Exhibit 7 at 60:9- 12; and Exhibit 11 at ¶ 9. 39. Mullins never informed Southwest that Transwest prohibited him from accepting payments. At no time did Mullins ever inform any Southwest representative that accepting payments from Southwest violated any policy or practice of Transwest. See Exhibit 11 at ¶ 10. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 14 of 19 15 40. The payments paid to Mullins by Southwest were not paid under the table. Mullins represented to Southwest that he disclosed all terms of all transactions with Southwest, including payments, to Transwest. Mullins never represented to any Southwest representative that he was concealing terms, including payments from Southwest to Mullins, from Transwest. See Exhibit 11 at ¶ 11. 41. The payments to Mullins were not part of the RV transactions between Southwest and Transwest. See Exhibit 10 at 38:6-8; and Exhibit 11 at ¶ 12. 42. The payments to Mullins were intended to be payments made in an effort to thank Mullins for providing Southwest with a profitable transaction and to promote Southwest as a good client for Mullins to reach out to in the future when other future transaction opportunities became available. See Exhibit 11 at ¶ 13. 43. Southwest would not have paid Transwest the funds paid to Mullins. See Exhibit 11 at ¶ 14. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 15 of 19 16 TRANSWEST’S UNAUTHORIZED REPAIRS Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 44. Southwest is the owner and has the right to possess and use a 2007 Dynamax Dynaquest 320 motor home (the “Dynamax”) described as follows: 2007 DYNX 16M 1FVACWDD76HW49546. See Exhibit 11 at ¶ 15; and Affidavit of Turner Reaney, dated July 22, 2016, ¶ 2, attached as Exhibit 17. 45. Southwest transferred temporary possession of the Dynamax to Transwest for the sole purpose of selling the Dynamax to a third party. See Exhibit 4 at 176:6-16; Exhibit 6 at 178:11-19; Exhibit 14 at 36:2-10; and Exhibit 17 at ¶ 3. 46. The agreement for Transwest to sell the Dynamax on Southwest’s behalf required Transwest to bear any repairs or other costs and for Transwest to realize at least $90,000 from the sale of the Dynamax, which was to go to Southwest. See Exhibit 14 at 37:1-40:1. EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 16 of 19 17 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 47. Transwest did not sell the Dynamax to a third party, and Southwest requested that Transwest return the Dynamax to Southwest. See Exhibit 17 at ¶ 4. 48. Transwest refused to return the Dynamax unless Southwest paid $26,702 to Transwest for alleged repairs. See Exhibit 17 at ¶ 5. 49. Southwest understood that the Dynamax needed no more than $1,500 of repairs when Southwest delivered the Dynamax to Transwest. See Exhibit 10 at 65:20- 66:4; and Exhibit 11 at ¶ 16. 50. Transwest never provided Southwest a written estimate related to the repairs performed on the Dynamax. See Exhibit 4 at 177:2-4; Exhibit 6 at 180:22-25; and Exhibit 17 at ¶ 6. 51. Southwest never authorized the repairs Transwest allegedly made to the Dynamax. See Exhibit 4 at 181:7-15; 216:25-217:8; Exhibit 6 at 181:21-23; EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 17 of 19 18 Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence Exhibit 10 at 66:13-17; 70:21-71:2; 88:24-89:6; Exhibit 16 at ¶ 6; and Deposition of Turner Reaney, dated May 12, 2016, 112:16-113-2, relevant excerpts attached as Exhibit 18. 52. Southwest sent Transwest a written demand regarding Transwest’s violations of C.R.S. § 42-9-101 et seq. See Letter from Scott Sandberg, dated February 25, 2016, attached as Exhibit 19. / / / EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 18 of 19 19 Dated: July 28, 2016. s/ Scott C. Sandberg Scott C. Sandberg Neal McConomy Snell & Wilmer L.L.P. 1200 Seventeenth Street, Suite 1900 Denver, CO 80202 Telephone: 303.634.2000 / Fax: 303.634.2020 Email: ssandberg@swlaw.com; nmcconomy@swlaw.com and /s/ Eric W. Falbe Eric W. Falbe FALBE LAW, PLLC 10575 N. 114th Street, Suite 103 Scottsdale, Arizona 85259 ericfalbe@falbelaw.com Attorneys for Southwest Luxury Coach Sales, LLC and Scott Buchanan CERTIFICATE OF SERVICE I hereby certify that on July 28, 2016, a copy of the foregoing was filed and served via email on the following via CM/ECF: James R. Cage Andrew T. Flynn Moye White LLP 1400 16th Street, 16th Floor Denver, CO 80202-1486 jim.cage@moyewhite.com; andrew.flynn@moyewhite.com Attorneys for Plaintiff s/Sandy Braverman for Snell & Wilmer L.L.P. 23719013.8 EXHIBIT 1 Case 1:15-cv-02233-RM-MJW Document 117-1 Filed 07/28/16 USDC Colorado Page 19 of 19 02539943.2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02233-RM-MJW TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Plaintiff, v. SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, Defendants. PLAINTIFF’S RESPONSES TO FIRST SET OF WRITTEN DICOVERY Plaintiff, Trans-West, Inc. dba Transwest Truck Trailer RV (“Plaintiff” or “Transwest”), by and through its counsel, Moye White LLP, and consistent with Rules 33, 34, and 36 of the Federal Rules of Civil Procedure, hereby responds to Defendants Southwest Luxury Coach Sales, LLC (“Southwest”), and Scott Buchanan’s (“Buchanan”) (collectively, “Defendants”) First Set of Written Discovery (singularly, a “Request,” collectively, the “Requests”): GENERAL OBJECTIONS 1. Plaintiff objects to the instructions and definitions set forth in Defendants’ Requests to the extent they purport to place any obligation upon Plaintiff beyond what is required by the Federal Rules of Civil Procedure. 2. In responding to any Request, Plaintiff does not concede the relevance or materiality of the information requested nor of the subject matter to which the Request refers. Rather, the responses to any Requests are made expressly subject to, and without in any way EXHIBIT 2 Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 1 of 22 2 02539943.2 waiving or intending to waive, any question or objection as to competency, relevancy, privilege, or admissibility in evidence of any of the matters referred to or responses given herein. Plaintiff reserves all trial objections. 3. Plaintiff objects to each Request to the extent that responsive information or documents are protected by the attorney/client privilege, or were prepared by Plaintiff, his principals, agents, or attorneys in anticipation of litigation or for trial, and/or constitute privileged work product. Plaintiff will withhold information protected by the attorney/client and work/product privileges and all responses will be subject to that limitation. 4. Plaintiff objects to each Request that does not relate to the present action on the grounds that such Requests are overbroad, unduly burdensome, oppressive to Plaintiff, and not calculated to lead to the discovery of admissible evidence. 5. Plaintiff objects to each Request to the extent that such Request is overly broad, unduly burdensome, and fails to describe the documents and/or tangible objects requested with reasonable particularity. 6. Plaintiff reserves the right to continue to develop the law and facts applicable to this case, and to supplement discovery responses in accordance with Fed. R. Civ. P. 26(e). Plaintiff makes no other agreement regarding supplementation of responses. 7. Plaintiff reserves the right to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known by it. INTERROGATORIES INTERROGATORY NO. 1. For each purchase, sale, or repair alleged in the Complaint, state all facts supporting each allegation, identifying the description with the paragraph and the pleading; such description shall include without limitation, the make, model, year and VIN of each vehicle sold, the terms of the sale, the terms of the purchase, the Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 2 of 22 3 02539943.2 buyer and seller when the vehicle was purchased and sold, the location of the transaction, where each vehicle was received and delivered, all loans that were paid off when the vehicle was purchased and all loans that were incurred during their acquisition, the transfer of title and ownership of the vehicle, the amounts an forms payment made for each purchase and sale, all inspection reports made to each vehicle, all repairs, maintenance and upgrades made to the vehicles, the amount and value of all repairs, maintenance and upgrades, and identify all persons with knowledge of the same and all documents relating to the same. RESPONSE: Plaintiff objects to this interrogatory on the basis that it is burdensome, overly broad, and meant for no other purpose other than to harass Plaintiff. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following. Pursuant to Fed. R. Civ. P. 33(d), a response to this interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing Plaintiff’s business records previously produced and/or produced concurrently herewith. INTERROGATORY NO. 2. Describe the organizational structure of Plaintiff and its affiliated companies, including the hierarchal employee structures, the relationship to all, other affiliated companies, which employees report to all other employees, and the hiring process for all employees. RESPONSE: Plaintiff objects to this Request on the basis that it is compound and contains, at a minimum, two separate interrogatories. Accordingly, Plaintiff will treat this interrogatory request as two distinct interrogatories and count these two interrogatories towards Defendants’ limit of 20 interrogatories under Fed. R. Civ. P. 33(a), and the Court’s civil scheduling order Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 3 of 22 4 02539943.2 [Docket No. 27]. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following. Trans-West, Inc. is a holding company, and is the sole shareholder of these wholly- owned subsidiaries: Trans Lease, Inc.; GEP Investments, Inc.; All Maintenance Inc.; and Summit Truck Equipment (Canada), Ltd. Trans-West, Inc. is the single member of these limited liability companies: Transwest Freightliner, LLC; Transwest GMC, LLC; Transwest Trailers, LLC; EP Investments, LLC; Summit Truck Bodies, LLC; Summit Truck Equipment, LLC; BGE, LLC; DigVac, LLC; and Transwest Rentals, LLC. GEP Investments, Inc. is a 50% member of COMO, LLC and GKE Investments, LLC, all of which have the purpose of owning real estate. Similarly, EP Investments, LLC and BGE, LLC are exclusively real estate owning entities. Relevant to this case is the operating entity, Transwest Freightliner, LLC which operates with the tradename Transwest Truck Trailer RV. RV Sales, RV Parts and/or RV Service business are conducted at 2224 Sanford Drive, Grand Junction; 7550 E. I-25 Frontage Road, Frederick, Colorado; and 4001 East Commerce Drive, Frederick, Colorado (the “Frederick Locations”). Trans-West also has a dealership facility at 17327 S. Outer Road, Belton, Missouri (the “Belton Location”). The Belton Location operates in Colorado as Summit Truck Equipment, LLC d/b/a Transwest Truck Trailer RV. At the Frederick Locations and the Belton Location, the branch managers are Andrew Lyons and David Bowe, respectively. Operations at each location have a department manager, such as service manager and parts manager, as well as sales managers for certain product lines. All departments have rank and file subordinates that report to the department manager. The department managers report directly to the branch manager. Mr. Lyons and Mr. Bowe report directly to George Eidsness, president. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 4 of 22 5 02539943.2 Transwest has its own internal recruiting department. All candidates are given a skills, aptitude, and personality profile test for consideration by the hiring manager to decide whether to proceed to an interview. Following the interview process, an offer is extended to the finalist that is contingent upon the finalist passing a background check, pre-employment physical, and drug testing. INTERROGATORY NO. 3. Describe all protocols, procedures, guidelines, standards, policy manual(s), and oversight or supervisory regulation to govern or guide your agents, servants and/or employees, including Mullins in the exercise of his/her duties. RESPONSE: Please refer to the Transwest Employee Handbook, TW 850-930. INTERROGATORY NO. 4. Identify each location where Plaintiff transacts its business and the sales process at each location, including locations in California, Colorado, and Missouri. RESPONSE: Plaintiff objects to this Request on the basis that it is compound and contains, at a minimum, two separate interrogatories. Accordingly, Plaintiff will treat this interrogatory request as two distinct interrogatories and count these two interrogatories towards Defendants’ limit of 20 interrogatories under Fed. R. Civ. P. 33(a), and the Court’s civil scheduling order [Docket No. 27]. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following. 20770 East I-76 Frontage Road, Brighton, Colorado Trans-West, Inc. corporate headquarters, and primary Transwest Freightliner, LLC dealership. 20660 East I-76 Frontage Road, Brighton, Colorado Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 5 of 22 6 02539943.2 Transwest Freightliner, LLC DBA Transwest Truck Trailer RV. 7740 Dahlia Street, Commerce City, Colorado Summit Truck Bodies, LLC DBA Summit Bodyworks. 7911 East 96 th Avenue, Henderson, CO Transwest GMC, LLC. 5196 East 77 th Avenue, Commerce City, Colorado Transwest Freightliner, LLC DBA All Truck & Trailer Parts. 2236 Sanford Drive, Grand Junction, Colorado Transwest Freightliner, LLC DBA Transwest Truck Trailer RV satellite location. 2224 Sanford Drive, Grand Junction, Colorado Transwest Freightliner, LLC DBA Transwest Truck Trailer RV; RV sales and service. 6045 Lipan Street, Denver, CO All Maintenance, Inc. DBA All Fleet Services. 7550 East I-25 Frontage Road, Frederick, Colorado Transwest Freightliner, LLC DBA Transwest Truck Trailer RV. 4001 East Commerce Drive, Frederick, Colorado Transwest Freightliner, LLC DBA Transwest Truck Trailer RV. 4475 East 74 th Avenue, Commerce City, Colorado Trans Lease, Inc. 6220 Champlin Drive, Fountain, Colorado Transwest Freightliner, LLC. 990 Vernon Road, Wathena, Kansas Summit Truck Bodies, LLC. 17327 South Outer Road, Belton, Missouri Summit Truck Equipment, LLC DBA Transwest Truck Trailer RV. 2132 4 th Avenue, Greeley, Colorado Transwest Freightliner, LLC DBA Transwest Truck Trailer RV. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 6 of 22 7 02539943.2 80501 Avenue 48, No. 131, Indio, California A lot in an RV park that is occasionally used for seasonal display of RV product. Display and general marketing activity use only. Trans-West sales processes for RVs are typical for the industry and may vary slightly based on state regulations in Colorado and Missouri. Leads typically originate from the company or branch website after the prospective customer has narrowed his or her interest down to one or a handful of units. There are also leads that occur from customers coming to the dealership location and viewing inventory on hand, and also from RV related shows and events that the branches may elect to display at. A sales representative is assigned to the customer, and where a deal is struck it will be documented with a sales agreement signed by the customer. Arrangements are made for delivery and payment of the unit, often with financing arranged by the branch finance and insurance (“F&I”) personnel. INTERROGATORY NO. 5. Describe all loans incurred by Plaintiff or its affiliates as it relates to the contracts or the subject matter of any of the pleadings, including the nature of the loan, the payments of the loans, the curtailments, and how the curtailments or other payments are calculated. RESPONSE: Plaintiff objects to this interrogatory on the basis that it is burdensome, overly broad, and meant for no other purpose other than to harass Plaintiff. Plaintiff further objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 7 of 22 8 02539943.2 Transwest has a floor plan line of credit with its primary credit source, Mercedes-Benz Financial Services (“MBFS”), that it utilizes to finance a wide variety of whole goods (including trucks, trailers, and RVs), both new and used product. Drafting agreements are in place with most of the manufacturers that Transwest represents, allowing the manufacturer to receive payment for product as it is finished at the plant, or when it is shipped, or when it is delivered to the destination dealership, depending on the arrangements agreed to with the manufacturer. As it pertains to the RV floor plan, the per unit cap of $140,000 can be exceeded with the execution of a security agreement, and there are no advances for product older than eight model years old. MBFS has the right to impose curtailments in accord with the loan agreement, but has never done so. The floor plan line of credit has been in place with MBFS since 1997. INTERROGATORY NO. 6. Identify all Transwest employees, agents, or representatives who communicated with any of Defendants including, without limitation, the dates and describe the subject matter of each communication. RESPONSE: Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects on the basis that compiling responsive information presents an undue burden and expense. Plaintiff objects to this interrogatory on the grounds that it is a “blockbuster” discovery request and thus on its face overbroad and unduly burdensome. Felix v. City and County of Denver, No. 08-cv-02228-MSK-KMT, 2009 WL 3838587, at *1 (D. Colo. Nov. 13, 2009). Plaintiff further objects that this interrogatory is not reasonably limited in scope, because it does not identify the nature or type of the communications sought. Transwest has hundreds of employees, and it is not aware of every Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 8 of 22 9 02539943.2 communication between a Transwest employee and Defendants. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: Please see TW 2005 - 2708. INTERROGATORY NO. 7. Identify the manner in which Transwest’s business records are filed and maintained including, without limitation: all files or repositories in which records are maintained, all software or electronic programs in which records are maintained, document retention policies, and persons with responsibility for filing or maintaining records. RESPONSE: Plaintiff objects to this interrogatory on the basis that it is burdensome, overly broad, and meant for no other purpose other than to harass Plaintiff. Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: The relevant branches and operating entities to this case use two primary applications for their activities. The comprehensive software that is used for sales, parts, service, and accounting is licensed from a company in Carlinville, Illinois called Karmak, and is quite common in the medium and heavy duty truck dealership segment. In addition, the sales representatives involved in RV sales utilize a customer relationship management application called Salesforce.com. Hard copy documents are kept and stored for the legally mandated duration of time, such as vehicle sales deal documents, inventory records, accounts payable invoices, repair order documents, and cash receipts and deposit records. Electronic records are preserved on the company’s network servers. Salesforce.com is a cloud-based product, and Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 9 of 22 10 02539943.2 those records are preserved on servers maintained by Salesforce.com. The F&I department at the Frederick Locations uses an application specific to their needs: Automotive Arts. This software aids the user in creating documents for financing and other supplemental warranty sales. RV sales deal folders are currently overseen by Carol Scott at the Frederick Locations, and Robyn Domer-Blede at the Belton Location. INTERROGATORY NO. 8. Identify all persons who have provided accounting or bookkeeping services for Transwest for the past five years. RESPONSE: All accounting for the Frederick Locations and Belton Location is performed by employees. As it pertains to this case, at the Frederick Location over the last five years, the following people performed accounting services: Erin Garcia, Tina Roseboom, Dee Johnson, Crystal Aragon, and currently the branch controller is Carol Scott. Oversight of these people and their accounting work during the past five years was by Jason Kleve, corporate controller. For the Belton Location, Sabrina Young and Robyn Domer-Blede performed the accounting services pertaining to this case, with oversight by Lance Cooper, Eastern Operations Controller. INTERROGATORY NO. 9. Identify all manuals, guidelines, policies, or procedures relating to the operation of any business conducted by Transwest. RESPONSE: Please see Transwest Employee Handbook, TW 850-930. INTERROGATORY NO. 10. Identify any lawsuit, arbitration, administrative or regulatory action, or investigation filed by or against Transwest in the past five years. Such identification should include, without limitation, the parties, case number, filing date, and disposition of each lawsuit, arbitration, administrative or regulatory action, or investigation. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 10 of 22 11 02539943.2 RESPONSE: Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: CAPTION CASE NUMBER COURT DATE FILED Strong Industries, Inc. v. Transwest, Inc. dba Transwest Trucks Cause No. 997,446 County Court at Law No. 2, Harris County, Texas 2011 Barger, et al. v. Trans-West, Inc., et al. 11CV240 Adams County District Court, Colorado 02/17/11 Carlson v. Transwest Trucks, Inc. 11S264 Small Claims Court, Adams County, Colorado 05/04/11 Duksaco, LLC v. Transwest Trailers, LLC 12C65 Routt County Court, Colorado 03/01/12 Hockett, et al. v. Tran-West, Inc., et al. A588346 District Court, Clark County, Nevada 05/30/12 Trans-West, Inc. v. Easter 12CV4463 Mesa County District Court, Colorado 08/06/12 Payton v. Transwest, Inc. 12C30758 County Court, Adams County, Colorado 12/05/12 On-Site Tires, LLC v. Transwest GMC LLC 14CV31759 Adams County District Court, Colorado 09/22/14 Trans-West, Inc. v. Bauer 14C47132 Adams County Court, Colorado 11/24/14 William Patrick Banks v. Trans- West, Inc., et al. CV-2015- 900056.00 Circuit Court of Baldwin County, Alabama 1/15/15 Trans-West, Inc. v. Jeffrey T. Mullins 15CV30505 Weld County District Court, Colorado 06/11/15 INTERROGATORY NO. 11. Provide an accounting for each item of damages set forth in Transwest’s Fed. R. Civ. P. 26(a) disclosures including, without limitation, the manner by which each damage item was calculated, all documents supporting each damage item, and persons with knowledge of each damage item. RESPONSE: Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 11 of 22 12 02539943.2 Plaintiff objects that discovery is ongoing and this interrogatory is premature. Plaintiff expressly reserves the right to supplement this Response as more information becomes known. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: Plaintiff has been damaged as set forth in its initial disclosures previously provided, and Plaintiff hereby incorporates by reference its initial disclosures. Plaintiff’s damages include: Kickback bribes: $265,925. This amount was calculated by examining the amount of checks issued from Defendants to Mullins. Losses on sales and purchases transactions: $457,455. This amount was derived from Tranwest’s lost profits and revenue from transactions between Mullins and Defendants. This amount has been revised since Transwest made its initial disclosures. Additionally, pursuant to Fed. R. Civ. P. 33(d), the losses on sales and purchase transactions may be determined by examining and auditing Plaintiff’s business records previously-produced. Amounts written off of sales and purchase transactions: $115,450. This amount was derived from the amounts written off by Mullins during transactions with Defendants. Additionally, pursuant to Fed. R. Civ. P. 33(d), the amounts written off of sales and purchase transactions may be determined by examining and auditing Plaintiff’s business records previously-produced. Unsold RVs purchased from Defendants: Plaintiff is still investigating this amount and will supplement its disclosures as required by Fed. R. Civ. P. 26 and 33. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 12 of 22 13 02539943.2 Unpaid repairs: $26,702. This amount was calculated from the amount that Transwest expended making repairs to a Southwest RV for which Transwest has not been compensated. Expenses and costs, pre- and post-judgment interest, treble damages, and reasonable attorney’s fees: These amounts are not yet calculated. Plaintiff will further supplement its damages with its expert disclosures. INTERROGATORY NO. 12. Provide an accounting for each item of damages claimed in the State Court Proceeding including, without limitation, the manner by which each damage item was calculated, all documents supporting each damage item, and persons with knowledge of each damage item. RESPONSE: Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects that discovery in the State Court Proceeding is ongoing, and expressly reserves the right to supplement this Response. Plaintiff further objects that this interrogatory is overbroad and unduly burdensome. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: Plaintiff has been damaged as set forth in its initial disclosures in the State Court Proceeding, and Plaintiff hereby incorporates by reference its initial disclosures. Plaintiff’s damages include: Kickback bribes: $872,925. This amount was determined by totaling the number of Kickback bribes paid to Mullins by various dealerships and individuals. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 13 of 22 14 02539943.2 Cash deposits: $179,240. This amount relates to cash deposits made into Mullins bank account in relation with the Kickback Scheme. Kickbacks paid to Pinnacle Coach: unknown at this time. Losses on Mullins’ sales transactions: $429,801. Losses on Mullins’ purchase transactions: unknown at this time. Mullins’ salary paid by Transwest for times he was in breach of his fiduciary duty: unknown at this time. Expenses and costs, pre- and post-judgment interest, treble damages, and reasonable attorney’s fees: These amounts are not yet calculated. Plaintiff anticipates supplementing its damages with its expert disclosures in the State Court Proceeding. INTERROGATORY NO. 13. State the factual and legal basis for each response to each Request for Admission served by Defendants that is not an unqualified admission. RESPONSE: Please see Response to Request for Admission no. 1, below. INTERROGATORY NO. 14. Describe and provide a copy of all terms of all Dealer Agreements for the past five years. RESPONSE: Plaintiff objects to this interrogatory on the basis that it is burdensome, overly broad, and meant for no other purpose other than to harass Plaintiff. Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects that this interrogatory calls for the production of documents, and will treat this Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 14 of 22 15 02539943.2 interrogatory as one of Defendants’ requests for production. Plaintiff objects to this interrogatory on the grounds that it is a “blockbuster” discovery request and thus on its face overbroad and unduly burdensome. Felix v. City and County of Denver, No. 08-cv-02228-MSK- KMT, 2009 WL 3838587, at *1 (D. Colo. Nov. 13, 2009). INTERROGATORY NO. 15. Describe all compensation that any and all employees received, whether that compensation was paid directly by Plaintiff or indirectly by any other person, when any product or service was sold by Plaintiff during the last five years. RESPONSE: Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects that this interrogatory is not reasonably limited in scope because it calls for information relating to compensation for all Transwest employees, most of which are not relevant or reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects on the basis that compiling responsive information presents an undue burden and expense. Plaintiff objects to this interrogatory on the grounds that it is a “blockbuster” discovery request and thus on its face overbroad and unduly burdensome. Felix v. City and County of Denver, No. 08-cv-02228-MSK-KMT, 2009 WL 3838587, at *1 (D. Colo. Nov. 13, 2009). Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: Please see TW 1760 - 1880. INTERROGATORY NO. 16. Describe the sale of each vehicle purchased and Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 15 of 22 16 02539943.2 sold by you in the past five years including, without limitation, the amount of profit or loss, the number of days the vehicle was in inventory, and all vehicles taken as a trade-in for each transaction. RESPONSE: Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects on the basis that compiling responsive information presents an undue burden and expense. Plaintiff objects to this interrogatory on the grounds that it is a “blockbuster” discovery request and thus on its face overbroad and unduly burdensome. Felix v. City and County of Denver, No. 08-cv-02228-MSK-KMT, 2009 WL 3838587, at *1 (D. Colo. Nov. 13, 2009). Plaintiff further objects that this interrogatory is not reasonably limited in scope, as it request documents for every sale and purchase Transwest has transacted in the last five years, the vast majority of which are unrelated to this action. INTERROGATORY NO. 17. Describe if any claim was filed or tendered or in any way communicated with any insurance provider, bond company or any other company that might provide for any indemnification for any loss in this matter, the State Court Proceeding or any other matter identified in Interrogatory 10 and the status of the same. RESPONSE: Plaintiff objects that this interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: Transwest has insurance coverage for employee dishonesty. A claim has been submitted to Travelers Insurance, and that claim acknowledged. However, the claim is under review and no payment has been made to Transwest or any of its affiliates. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 16 of 22 17 02539943.2 INTERROGATORY NO. 18 Please identify all persons responsible for furnishing any materials or information to complete any pleading. RESPONSE: Subject to the definition of “pleading” as defined by Fed. R. Civ. P. 7(a), George Eidsness and Andrew Lyons. REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1. Please produce all documents identified or referenced in any Interrogatory served by Defendants, and all documents identified, referenced, or reviewed in your responses to any Interrogatory served by Defendants. RESPONSE: Subject to the above objections, all documents have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 2. Please produce all documents relating to any sale, payment, or transaction alleged in your Complaint including, without limitation, contracts, correspondence, checks, bank records, invoices, receipts, titles, and any other document referring or relating to any such sale, payment, or transaction. RESPONSE: All documents have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 3. Please produce all documents relating to the State Court Proceeding including, without limitation, pleadings, transcripts, discovery and discovery responses (including documents produced), motions, orders, and correspondence. RESPONSE: Plaintiff objects to this Request on the grounds that it is overbroad and unduly Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 17 of 22 18 02539943.2 burdensome. Plaintiff objects that this Request is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects to the extent this Request calls for documents subject to attorney/client privilege, the work-product doctrine, or are otherwise confidential and subject to the impending protective order to be entered by the Court. Plaintiff further objects that this Request calls for the production of public documents that are equally available to both Parties. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: All documents have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 4. Please produce all documents concerning or relating to Mullins including, without limitation, employment files other than confidential healthcare records, contracts, correspondence, and payroll or payment records. RESPONSE: All documents have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 5. Please produce all documents relating to any Defendants including, without limitation, correspondence, sale or purchase records, and any other document that references or concerns any Defendants. RESPONSE: All documents have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 6. Please produce all documents relating to the employment of Andrew Lyons, Mark Stenseth, Steve Petley, and Brad Land. Such documents include, without limitation, employee or personnel files other than confidential healthcare records, contracts, correspondence, and payroll or payment records. RESPONSE: Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 18 of 22 19 02539943.2 Plaintiff objects to this Request on the grounds that it is overbroad and unduly burdensome. Plaintiff objects that this Request is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects that its employees have a privacy interest in the contents of their personnel files. REQUEST FOR PRODUCTION NO. 7. Please produce all computers and other electronic devices used by Mullins for purposes of his employment with Transwest. RESPONSE: Plaintiff objects to this Request on the grounds that it is overbroad and unduly burdensome. Plaintiff objects that this Request is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects to the extent this Request calls for documents subject to attorney/client privilege, the work-product doctrine, or are otherwise confidential and subject to the protective order entered by the Court. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: All documents from Mullins’ laptop have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 8. Please produce all documents relating to communications between Transwest and the Weld County District Attorney’s Office. RESPONSE: Plaintiff objects that this Request is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects to the extent this Request calls for documents subject to attorney/client privilege, the work-product doctrine, or are otherwise confidential and subject to the protective order entered by the Court. Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 19 of 22 20 02539943.2 None. REQUEST FOR PRODUCTION NO. 9. Please produce all documents relating to your income, expenses, profits, and assets in the past five years including, without limitation, all financial statements and state and federal tax returns. RESPONSE: Plaintiff objects to this Request on the grounds that it is overbroad and unduly burdensome. Plaintiff objects that this Request is not reasonably calculated to lead to the discovery of admissible evidence because Defendants only transacted business with certain Transwest locations. Plaintiff objects that compiling responsive documents presents an undue burden and expense. Plaintiff objects that this is a “blockbuster” discovery request and thus overbroad and unduly burdensome. Felix v. City and County of Denver, No. 08-cv-02228- MSK-KMT, 2009 WL 3838587, at *1 (D. Colo. Nov. 13, 2009). Notwithstanding such objection, and without waiving same, Plaintiff responds with the following All documents have been produced or are in the process of being produced. REQUEST FOR PRODUCTION NO. 10. Please produce all documents relating to Christian B. Cecil, Doug Neal, and Troy Max Davis including, without limitation, correspondence, notes, court records, and any other document referencing or concerning these individuals. RESPONSE: Plaintiff objects to this Request on the grounds that it is overbroad and unduly burdensome. Plaintiff objects that this Request is not reasonably calculated to lead to the discovery of admissible evidence because Defendants only transacted business with certain Transwest locations. Plaintiff objects that compiling responsive documents presents an undue Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 20 of 22 21 02539943.2 burden and expense. Plaintiff objects that this is a “blockbuster” discovery request and thus overbroad and unduly burdensome. Felix v. City and County of Denver, No. 08-cv-02228- MSK-KMT, 2009 WL 3838587, at *1 (D. Colo. Nov. 13, 2009). Notwithstanding such objection, and without waiving same, Plaintiff responds with the following: All documents have been produced or are in the process of being produced. REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 1. Admit that Mullins acted as Transwest’s agent in all dealings with Defendants alleged in Transwest’s Complaint. RESPONSE: Deny. Mullins was not acting as Transwest’s agent because he was acting in his own interest and to Transwest’s detriment by orchestrating the Kickback Scheme and the Repair Scheme. Mullins was not acting in the course and scope of his employment when he orchestrated the Kickback Scheme and the Repair Scheme, because he was not acting within the scope of his authority as a Transwest employee. Mullins’ conduct substantially departed from Transwest’s business interests for his own benefit. Further, Mullins’ self-dealing violated Transwest company policy. DATED this 10 th day of February, 2016. Respectfully submitted, /s/ Andrew T. Flynn ______________________ James R. Cage #10153 Andrew T. Flynn #43843 ATTORNEYS FOR PLAINTIFF, TRANS-WEST, INC. Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 21 of 22 22 02539943.2 CERTIFICATE OF SERVICE I hereby certify that on this 10 th day of February, 2016, a copy of the foregoing was served on the following: Scott C. Sandberg - ssandberg@swlaw.com Neal J.G. McConomy - nmcconomy@swlaw.com Snell & Wilmer L.L.P. 1200 17 th Street, Suite 1900 Denver, Colorado 80202 Eric W. Falbe - ericfalbe@falbelaw.com Falbe Law, PLLC 10575 N. 114 th Street, Suite 103 Scottsdale, AZ 85259 /s/ Carolyn M. Lux Carolyn M. Lux Case 1:15-cv-02233-RM-MJW Document 117-2 Filed 07/28/16 USDC Colorado Page 22 of 22 02570351.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02233-RM-MJW TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Plaintiff, v. SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, Defendants. PLAINTIFF’S SEVENTH SUPPLEMENTAL DISCLOSURES Plaintiff, Trans-West, Inc. dba Transwest Truck Trailer RV (“Transwest”), by and through its counsel, Moye White LLP, hereby submits the following seventh supplemental disclosures pursuant to F.R.C.P. 26(a)(1): PRELIMINARY MATTERS A. Transwest makes these disclosures based on the information known and reasonably available to it and based on the investigation conducted to date. See F.R.C.P. 26(a)(1) (“A party must make its initial disclosures based on the information then reasonably available to it.”). Transwest reserves the right to supplement these disclosures. DISCLOSURES C. A description of the categories of damages sought and a computation of any category of economic damages claimed by the disclosing party. i. Kickback bribes: $265,925; ii. Unpaid repairs: $26,702; iii. Expenses and costs in an amount to be determined at trial; EXHIBIT 3 Case 1:15-cv-02233-RM-MJW Document 117-3 Filed 07/28/16 USDC Colorado Page 1 of 3 02570351.1 iv. All recoverable pre- and post-judgment interest; v. Treble damages; vi. Reasonable attorney’s fees to the extent permitted by law and to be determined at trial; vii. Any other damages allowable by law. Transwest reserves the right to supplement its initial disclosures if additional information is discovered from parties named in this case or third parties. DATED this 11 th day of March, 2016. Respectfully submitted, /s/ Andrew T. Flynn ______________________ James R. Cage #10153 Andrew T. Flynn #43843 ATTORNEYS FOR PLAINTIFF, TRANS-WEST, INC. Case 1:15-cv-02233-RM-MJW Document 117-3 Filed 07/28/16 USDC Colorado Page 2 of 3 02570351.1 CERTIFICATE OF SERVICE I hereby certify that on this 11 th day of March, 2016, I electronically served the foregoing PLAINTIFF’S SEVENTH SUPPLEMENTAL DISCLOSURES via email on: Scott C. Sandberg - ssandberg@swlaw.com Neal J.G. McConomy - nmcconomy@swlaw.com Snell & Wilmer L.L.P. 1200 17 th Street, Suite 1900 Denver, Colorado 80202 Eric W. Falbe - ericfalbe@falbelaw.com Falbe Law, PLLC 10575 N. 114 th Street, Suite 103 Scottsdale, AZ 85259 /s/ Mindy Glenn Mindy Glenn Case 1:15-cv-02233-RM-MJW Document 117-3 Filed 07/28/16 USDC Colorado Page 3 of 3 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 15-cv-02233-RM-MJW 3 _______________________________________________________ 4 RULE 30(b)(6) DEPOSITION OF: GEORGE EIDSNESS - April 8, 2016 5 Trans-West, Inc., dba Transwest Truck Trailer RV _______________________________________________________ 6 TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, 7 Plaintiff, 8 v. 9 SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, 10 Defendants. 11 _______________________________________________________ 12 PURSUANT TO NOTICE, the Rule 30(b)(6) deposition of GEORGE EIDSNESS was taken on behalf of 13 the Defendants at 1200 17th Street, Suite 1900, Denver, Colorado 80202, on April 8, 2016, at 14 9:12 a.m., before Marchelle Hartwig, Certified Shorthand Reporter and Notary Public within Colorado. 15 16 17 18 19 20 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 4 Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 1 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 9 (Pages 33 to 36) 33 1 A. Well, if you own something for 50,000 2 bucks that was worth 200-, you could sell it for 100- 3 and make 50,000 but still discount it from real market 4 value. 5 Q. And how -- there is a piece of paper 6 somewhere that that exists? 7 MR. CAGE: Objection. Form. 8 A. A piece of paper that that exists? I'll 9 give you a hypothetical. 10 Q. (BY MR. FALBE) I don't need a 11 hypothetical. In this situation, I want you to say -- 12 I want you to answer if Trans-West has a piece of 13 paper that I can determine whether something was 14 deeply discounted or not. 15 A. No, we don't have a piece of paper. 16 Q. So it doesn't exist? 17 A. A specific paper that says -- no, I don't 18 think so. 19 Q. So there is no baseline to determine 20 whether something is discounted or deeply discounted; 21 is that right? 22 MR. CAGE: Objection. Form. 23 You may answer. 24 A. We don't publish something like that. We 25 don't put it in a record, but it could happen. 34 1 Q. (BY MR. FALBE) I'm asking you. Does 2 Trans-West have a piece of paper for transactions that 3 would indicate whether something was discounted or 4 deeply discounted? 5 A. You could probably go back and determine 6 based on a deal jacket and a sale at the time. Do we 7 print a document like that? No. 8 Q. So please turn to paragraph 13. It says, 9 "As part of the Kickback Scheme, Mullins, during the 10 course of his employment at Transwest, would sell an 11 RV to Defendants for a deeply-discounted price. In 12 connection with making the payment to Transwest, 13 Defendants would pay money directly to Mullins in 14 exchange for Mullins selling the RV at the deeply- 15 discounted price," and you call that a "kickback 16 bribe." 17 Please tell me how you think that that 18 works, how Trans-West thinks that that works. 19 MR. CAGE: Objection. Form. 20 You may answer. 21 Q. (BY MR. FALBE) Please tell me the 22 factual underpinnings of that claim. 23 A. Well, when the buyer buys a unit, pays a 24 kickback to our manager to sell it to him, obviously 25 the price is reduced by the amount of the kickback. 35 1 And I can't imagine where somebody would pay somebody 2 a kickback if they didn't receive something -- 3 Q. How much -- 4 A. -- for it. 5 Q. Is that your answer? 6 A. Yes. 7 Q. I didn't mean to interrupt. When you 8 paused, I thought you were finished. 9 So your testimony is that you would look 10 at the price of the sale and you would look at the fee 11 that was paid, and that would be the amount that was 12 deeply discounted; is that correct? 13 A. Well, in addition to what it was bought 14 for below market value. 15 Q. Okay. But at least with respect to the 16 payments, that's when it would be determined, right? 17 MR. CAGE: Objection. Form. 18 A. Well, the payments are part of it. 19 Q. (BY MR. FALBE) Okay. I understand that 20 you're saying that they're part of it. Just with 21 respect to the payments, okay, your testimony is that 22 the deeply discounted portion of the transaction is 23 determined based upon the amount of payment that was 24 paid from Southwest to Mullins in this case; is that 25 correct? 36 1 A. That's part of it, in addition to the 2 sales price. 3 Q. Okay. Ignoring the sales price for a 4 second. I'm only asking you about -- 5 A. I can't ignore the sales price. 6 Q. I'm asking you to ignore the sales price. 7 A. I can't. 8 Q. Listen to my question. You don't get to 9 change the question. So just the sales price 10 component. 11 A. You can ask me whatever you want, but I 12 can't ignore it. 13 Q. Do you understand that you dropped your 14 lost profits claim? 15 A. I do. 16 Q. Okay. So do you understand that the lost 17 profit of whether you made money or lost money is a 18 moot point at this point? 19 A. I do. 20 Q. Okay. So do you understand that we don't 21 really have to focus on that right now? 22 A. That's right. 23 Q. Okay. Do you understand that I'm trying 24 to focus our efforts on just the amount of the 25 payments? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 2 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 10 (Pages 37 to 40) 37 1 A. Okay. 2 Q. So with respect to the payments, your 3 testimony is that you can determine the amount of the 4 discount based upon the amount of the fee that was 5 paid from Southwest to Mullins with respect to the 6 transaction between Trans-West and Southwest; is that 7 correct? 8 MR. CAGE: Objection. Form. 9 You may answer. 10 A. Well, the bribe is actually a discount, 11 if that's what you're asking. 12 Q. (BY MR. FALBE) Okay. If you want to 13 call it a bribe. I'm going to call it a fee. Okay? 14 But that fee, that payment, that's the amount of the 15 discount, right? 16 A. That's a determined amount, yeah. It's a 17 proven amount. 18 Q. That's a proven amount, but that's what 19 you're claiming in damages as a discount; is that 20 correct? 21 A. Yes. 22 Q. That's your sole claim for damages, isn't 23 that right? 24 A. Right now it is, yeah. 25 Q. Do you believe that you can amend it to 38 1 include any other damages later? 2 MR. CAGE: Objection. Legal conclusion. 3 You may answer. 4 A. I don't know. 5 Q. (BY MR. FALBE) Do you plan to amend it 6 to include additional damages later? 7 MR. CAGE: Same objection. 8 A. Not at this point. 9 Q. (BY MR. FALBE) Do you have authority -- 10 not at this point? So is it something that you would 11 consider later? 12 MR. CAGE: Same objection. 13 A. I haven't considered it. I'm not 14 considering it right now. 15 Q. (BY MR. FALBE) Have you been copied on 16 communications between the defendants' counsel and 17 your counsel about the lost profits claim? 18 A. I have gotten some, yeah. 19 Q. Okay. Do you understand that you filed 20 records with the Court indicating that you have 21 abandoned your lost profits claim? 22 A. Yes. 23 Q. Okay. Are you trying to avoid talking 24 about lost profit claims today by filing that 25 paperwork with the Court? 39 1 MR. CAGE: Objection. Form. Legal 2 conclusion. 3 MR. FALBE: It's not a legal conclusion. 4 Q. (BY MR. FALBE) Just answer. 5 MR. CAGE: I think it is. 6 MR. FALBE: It's not even a valid 7 objection. 8 MR. CAGE: It may not be a valid 9 objection. I'm making the objection for the record -- 10 Q. (BY MR. FALBE) Just answer the question. 11 MR. CAGE: -- so that we have a good 12 record on it. That's what I'm entitled to do. I just 13 said form and legal conclusion. That was my 14 objection. 15 You may answer, Mr. Eidsness. 16 A. State your question again. 17 Q. (BY MR. FALBE) Are you trying to not 18 answer questions today about lost profits by filing 19 documents with the Court indicating that your lost 20 profits claims have been abandoned? And when I say 21 "yours," I mean Trans-West's lost profits claims have 22 been abandoned. 23 MR. CAGE: Same objection. 24 A. I don't believe so. 25 Q. (BY MR. FALBE) You don't believe so? 40 1 A. No. 2 Q. Do you have authority to make those 3 decisions on behalf of Trans-West? 4 A. As to whether or not we go after for lost 5 profits or not? 6 Q. Yes. 7 A. Yeah. 8 Q. Are you the president? 9 A. Yes. 10 Q. Do you get to make choices like that as 11 part of your litigation? 12 A. Yes. 13 Q. Okay. And you don't have any reason to 14 believe -- you're not gaming the system to try to 15 avoid talking about the lost profits, are you? 16 MR. CAGE: Objection. Form. Foundation. 17 A. No. 18 MR. CAGE: You may answer. 19 Q. (BY MR. FALBE) So back to our initial 20 question. In the transaction between Trans-West and 21 Southwest where Southwest paid a fee to Mullins, your 22 claim is that the discounted -- the deeply discounted 23 amount that you're claiming as damages is the amount 24 that Southwest wrote to Mullins in a check; is that 25 correct? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 3 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 11 (Pages 41 to 44) 41 1 A. Yes. 2 Q. And that can be determined at the time of 3 the sale? 4 A. What amount it was? 5 Q. Correct. 6 A. Well, we didn't know it was even 7 happening at the time of the sale. 8 Q. But you could calculate it at the time of 9 sale, correct? 10 A. We could calculate it based on the 11 records that shows what he got. 12 Q. Okay. But at the time of the sale -- so 13 when that happened, you could calculate it, right? 14 A. If we would have known at the time? 15 Q. If you would have known. 16 A. Sure. 17 Q. And why would Trans-West sell an RV at 18 this discounted price? 19 A. Why would they? 20 Q. Right. 21 A. The sales manager made that decision 22 based on him receiving a kickback to do it. 23 Q. And he had sole authority to do that? 24 A. He did. 25 Q. And you didn't hang a sign out that says 42 1 that he didn't have authority, right? 2 A. No. 3 Q. Do you understand that the checks aren't 4 made at the time of the transaction? 5 A. Which checks? 6 Q. Payments made from Southwest to 7 Mr. Mullins, they're not made at the time of the 8 transaction. 9 A. Some of them are pretty close. I think 10 they all kind of matched up with the deals. 11 Q. How did they match up? 12 A. The sale occurred and a payment was 13 received. 14 Q. When was that? 15 A. When was the payment received? 16 Q. Correct. 17 A. It varied. Usually within a few days 18 after the sale. 19 Q. You think so. Okay. And that's the 20 basis of your claim? 21 A. The dates of the transaction. 22 Q. The basis of your claim is that Southwest 23 would pay Jeff Mullins a fee to sell an RV at a 24 discounted rate and that that check would arrive a 25 couple of days later? 43 1 A. Yes. 2 Q. On paragraph 14, it indicates that 3 "Defendants paid the Kickback Bribes to Mullins by 4 delivering him a check at or near the time of a sales 5 transaction." 6 You're saying that that's a very short 7 period of time, within a couple of days, right? 8 A. I have looked at a flow chart that showed 9 when they were received. They seemed to be within a 10 few days, yeah. 11 Q. Can you read No. 16? "All of the 12 Kickback Bribe checks were issued by Southwest and 13 signed by Mr. Buchanan." I'm sorry, it says "signed 14 by Buchanan." Do you see that? 15 A. Yes. 16 Q. Why did you sue Mr. Buchanan if all the 17 checks came from Southwest? 18 A. Because he signed them. He's the owner 19 of the company. 20 Q. Which one is it? Is it because he signed 21 the checks or is it because he's the owner of the 22 company? 23 A. Both. 24 Q. Are you aware of piercing the corporate 25 veil? 44 1 A. Yes. 2 Q. Okay. Tell me what you think that means. 3 A. A way to go after somebody personally 4 versus the corporation. 5 Q. And why would you do that? 6 A. So that they wouldn't file bankruptcy and 7 run away. 8 Q. Do you think that if we had counterclaims 9 against Trans-West that we should -- that Southwest 10 should sue you personally as president of the company? 11 A. Ultimately I'll be responsible. 12 Q. Ultimately you would be responsible? 13 A. Yeah. 14 Q. Paragraph 17, "Upon information and 15 belief, Defendants also paid Mullins by other means 16 such as electronic transfers and cash." 17 Have you provided any evidence of that? 18 When I say "you," I mean has Trans-West provided any 19 evidence of that? 20 A. I would have to go back and look at the 21 documents -- at the bank records to see. Some of his 22 funds were put in electronically. Some were checks. 23 I would have to look. 24 Q. Did you know that you were going to be 25 testifying about the issues in this complaint today? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 4 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 13 (Pages 49 to 52) 49 1 MR. CAGE: No. It's argumentative. Did 2 you just pull numbers out of a hat? It's not listed 3 on any of the categories in here. You're just doing 4 it for grasping. It's not part of our claim. Based 5 upon information and belief, it's not even part of our 6 claim. We have given you an estimate as to damages 7 and you're just harassing him. 8 Q. (BY MR. FALBE) What's your information 9 and belief? 10 A. At the time when this was put together, 11 we believed it could be more than the 265,000. 12 Q. Was this recklessly put together? 13 MR. CAGE: Objection. Calls for a legal 14 conclusion. 15 A. No, I don't think it was. 16 Q. (BY MR. FALBE) What amount of diligence 17 did you do in order to put this together? 18 A. There was a lot of work involved in it. 19 Q. Please describe the work that was 20 involved. 21 A. Hiring the private investigators, 22 subpoenaing the bank records, putting together files, 23 pulling records from the dealership. I believe you've 24 got -- what have we got, 20,000 pages of documents 25 that we have gone through. 50 1 Q. Do you believe it's 20,000 pages of 2 documents? 3 A. That you received? 4 Q. Yes. 5 A. Yes, I do. 6 Q. Paragraph 19 says, "After Defendants 7 purchased an RV from Transwest for a deeply- 8 discounted rate, Defendants would sell the RV for a 9 large profit." 10 What's a large profit? 11 A. Oh, anything more than 15 percent. 12 Q. 15 percent of what? 13 A. 15 percent margin on a gross sale. 14 Q. Why would you think that 15 percent is a 15 large profit? 16 A. Just based on what the industry does. 17 Q. Does it matter how long you held it? 18 A. The length of time wouldn't matter on 19 what his profit margin was, no. 20 Q. Okay. So anything less than 15 percent 21 would not be for a large profit? 22 A. That would be what I think would be more 23 of a normal profit. 24 Q. Have you provided any evidence to 25 Defendants about Trans-West's calculations of what 51 1 these large profits are? 2 A. I'm not aware of any, no. 3 Q. But you decided to put it into a 4 complaint, right? 5 A. Yes. 6 Q. Despite having an exhaustive 7 investigation, right? 8 MR. CAGE: It's not part of the 9 allegation currently in the complaint. 10 You may answer. 11 A. Well, we did have some representations of 12 some that were sold at rather large profits. 13 Q. (BY MR. FALBE) Please turn to 14 paragraph 21. "With Defendants' aid, Mullins 15 wrongfully appropriated many thousands of dollars of 16 Transwest funds by selling RVs at deeply-discounted 17 rates, in exchange for Defendants paying Kickback 18 Bribes to Mullins. Transwest is still investigating 19 its total losses due to Mullins's conduct, but it is 20 believed to be approximately $1,000,000." 21 Do you see that? 22 A. I do. 23 Q. Please describe to me the factual 24 underpinnings of "appropriated many thousands of 25 dollars of Transwest." 52 1 A. The meaning of "wrongfully appropriated 2 many thousands of dollars of Trans-West funds"? 3 Q. Correct. 4 A. Well, he received kickbacks for that 5 amount of money, which is wrongful appropriation of 6 those funds. 7 Q. Whose funds were they? They were 8 Southwest's funds? 9 A. Those are funds that were due to 10 Trans-West. 11 Q. By contract? 12 A. By contract? 13 Q. Do you have a contract that says that you 14 were due those funds? Does Trans-West have a contract 15 that indicates that those funds should have belonged 16 to Trans-West? 17 A. Contract with who? 18 Q. Anybody. 19 A. Well, we have a policy in our company 20 that our people not steal money from us. If they sell 21 something at below market value and take funds in 22 exchange for that, that money should be our money. 23 Q. Okay. 24 A. So yes. 25 Q. So your employment handbook, right? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 5 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 14 (Pages 53 to 56) 53 1 A. Just -- 2 Q. When I say "your employment handbook" -- 3 A. It's appropriate business. It's a normal 4 business practice. I don't care what it says in the 5 handbook. I mean, people don't steal from people. I 6 don't need that in a handbook to tell me that. 7 Q. I asked you what the factual 8 underpinnings for "wrongly appropriated many thousands 9 of dollars of Transwest funds," and you said that it 10 was a policy of Trans-West not to steal; is that 11 right? 12 A. Yes. 13 Q. Okay. 14 A. It's my policy. 15 Q. Is there any other factual underpinning 16 for this particular allegation? 17 A. Well, we have documentation showing that 18 he received that much money, so yeah. 19 Q. That's it, though, just the employment 20 handbook? 21 MR. CAGE: Objection. 22 You may answer. 23 A. Not the handbook. We have documentation 24 that he received those kind of dollars 25 inappropriately. 54 1 Q. (BY MR. FALBE) And whose dollars were 2 they? 3 A. They were dollars that were belonging to 4 Trans-West. 5 Q. And how does Trans-West own those 6 dollars? 7 A. We owned an asset that was sold, and the 8 money that was paid for those was partially given to 9 us and the rest was given to Mullins. 10 Q. So you're saying that -- was this 11 contract memorialized -- or was this transaction 12 memorialized in a contract? 13 A. We didn't have a contract. 14 Q. You don't have a contract to sell RVs? 15 MR. CAGE: You didn't let him finish his 16 answer. 17 A. Did I say that? 18 Q. (BY MR. FALBE) I'm asking. Do you have 19 a contract for transactions between Trans-West and 20 Southwest? 21 A. We have a contract to sell that 22 particular unit, yes. 23 Q. Okay. And does that contract provide for 24 the amounts paid to Mullins that that somehow belongs 25 to Trans-West? 55 1 A. No, that's not in the contract. 2 Q. So it's not in the contract? 3 A. No. 4 Q. Okay. So it's not in the contract. 5 Where is it? What right does Trans-West have to the 6 money that Southwest paid? 7 A. What right do we have to it? 8 Q. Right. 9 A. It was our asset. 10 Q. What asset? 11 A. The individual motorhome was our asset, 12 which was sold to Southwest and Southwest paid a 13 portion of that money to Trans-West and they paid the 14 rest to Jeff Mullins. 15 Q. So you're saying that they didn't -- that 16 Trans-West didn't receive the full amount of the 17 purchase price? 18 A. That's exactly what I'm saying. 19 Q. I have a stack of documents that I want 20 you to, like, point to -- can you -- is there -- do 21 you think that if I show you a contract, that you can 22 point to the contract and show me that you didn't 23 receive 100 percent of the purchase price? 24 A. It wasn't in the contract. 25 Q. Oh. So do you understand that -- is it 56 1 your opinion that you have extra terms outside of the 2 contract? 3 A. Well, this kickback scheme wasn't written 4 in a contract. 5 Q. I asked you a question. Is it your 6 testimony -- 7 MR. CAGE: He answered the question. 8 Q. (BY MR. FALBE) Is it your testimony that 9 you have terms outside of the contract? 10 A. We have the right to the funds that was 11 used to purchase our vehicle. You put funds against a 12 vehicle. They paid a portion to us. In their own 13 records, they show that the money paid to Mullins was 14 added to the cost of the vehicle. So yes, we do. 15 Q. Yes, you do what? You have terms that 16 are outside -- 17 A. We have the right to those funds. 18 Q. That's not my question. I want you to 19 answer yes or no. Do you -- 20 MR. CAGE: Objection to the form of the 21 question. 22 Q. (BY MR. FALBE) -- have terms inside or 23 outside of the contract? 24 MR. CAGE: You don't have to answer yes 25 or no. You can explain. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 6 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 15 (Pages 57 to 60) 57 1 A. We do not have a contract saying that a 2 kickback scheme has to be written into our deal, no. 3 Q. (BY MR. FALBE) That's not what I said. 4 A. That was my answer. 5 Q. Is it your testimony that you have terms 6 that are not contained in your contract? 7 A. That we have terms that are not contained 8 in -- no, we probably don't have terms that are in the 9 contract. 10 Q. Okay. In the agreements between 11 Southwest and Trans-West, are there agreements that 12 are not in the written agreement? 13 A. I would say yes, there are. 14 Q. Tell me every single one of those terms. 15 A. The terms that weren't in the agreement 16 would have been the negotiations between Jeff Mullins 17 and Southwest on what he was going to get paid on the 18 side as a kickback. 19 Q. Anything else? 20 A. That wouldn't be in the contract. 21 Q. Anything else? 22 A. Not that I can think of. 23 Q. So everything in the world is 24 memorialized in the contract, but the only thing 25 that's not in the contract is what you just stated? 58 1 MR. CAGE: Objection. Form. 2 A. Is the kickback. 3 Q. (BY MR. FALBE) Is the kickback. Okay. 4 So your testimony is that everything is in the 5 contract? It's integrated, it's merged into the 6 contract? 7 A. We try to incorporate as much as we can 8 in the contract. I'm not saying that everything is in 9 there. 10 Q. What else isn't in there? 11 A. I don't know. 12 Q. Why wouldn't you know? 13 A. Why wouldn't I know? 14 Q. Yeah. 15 A. What things that could not be put in the 16 contract? 17 Q. Right. 18 A. We probably don't put in the contract 19 that it's illegal to come and shoot one of our 20 employees. 21 Q. Would that affect the contract, though? 22 A. It's about as naive as putting into the 23 contract that -- part of the contract that this guy 24 can come and pay our guys under the table. 25 Q. So are you saying that if somebody killed 59 1 somebody, that that would somehow void the contract? 2 A. That isn't what I said. 3 Q. Tell me what you're saying, because I 4 want to know the terms that are not contained in the 5 contract. 6 A. I said not every perceivable thing in the 7 world is written into our contract. 8 Q. I want to know all of the terms that are 9 not in the contract between Trans-West and Southwest. 10 I want you to name every single one of them. 11 A. Every single term? Every possible term? 12 Q. Yes. 13 A. I don't know. It could be unlimited. 14 Q. Is it reasonable to think that all of the 15 terms would be included in the contract? 16 A. I would say the terms necessary to do a 17 proper legal deal are in that contract. The terms to 18 deal with an illegal deal probably are not in there. 19 Q. But you can't name today any terms that 20 are not inside the contract? 21 MR. CAGE: Objection. Form. Already 22 answered. 23 You may answer again. 24 A. Not that I can think of. 25 Q. (BY MR. FALBE) The money that was paid 60 1 to Mullins, was it made out of a Southwest bank 2 account? 3 A. Yes. 4 Q. Does Trans-West have any claim on 5 Southwest's bank accounts? 6 MR. CAGE: Objection. Legal conclusion. 7 You may answer. 8 A. Any claim to their bank accounts? I 9 guess at some point when we win this lawsuit, we may. 10 Q. (BY MR. FALBE) Okay. Do you have any 11 current ownership interest in any of Southwest's bank 12 accounts? 13 A. No. 14 Q. Did you have any current ownership of 15 Southwest's bank accounts at the time of these 16 transactions? 17 A. No. 18 Q. Before any moneys were paid, did you have 19 any ownership interest in Southwest's bank accounts? 20 A. No. 21 Q. Okay. Does Southwest have any interest 22 in Trans-West's bank accounts? 23 A. No. 24 Q. We have counterclaims. Why don't we have 25 an interest in a portion of your bank accounts? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 7 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 16 (Pages 61 to 64) 61 1 A. Why would you? 2 Q. Well, we have counterclaims. Wouldn't we 3 have an interest in those? 4 A. No. 5 Q. No. That's right. 6 A. I think they're frivolous, so . . . 7 Q. They're frivolous, but if they were 8 meritorious, then they would? 9 A. You agree they're frivolous, then? 10 Q. No, I didn't agree that they were 11 frivolous. What I'm saying is if -- Southwest 12 wouldn't necessarily have an interest in your bank 13 account simply because they filed a piece of paper 14 with the court? 15 A. No. 16 Q. Right. So all of that money was 17 Southwest's money, right? 18 MR. CAGE: Objection. Form. 19 A. All of the money that they paid Jeff 20 Mullins was Southwest's money? 21 Q. (BY MR. FALBE) At least before they 22 paid, right? 23 A. Yes. 24 Q. Okay. You understand that Trans-West has 25 dropped its lost profits claim? 62 1 A. I am. 2 Q. Why did it do so? 3 A. It was a -- 4 MR. CAGE: I'm going to instruct the 5 witness not to answer to the extent that it calls for 6 attorney-client privilege. 7 You may answer. 8 A. Well, if it's privileged, I'm not going 9 to answer. 10 Q. (BY MR. FALBE) It's not privileged. 11 MR. CAGE: It's privileged if he got 12 advice from his lawyer. 13 Q. (BY MR. FALBE) Only the conversations 14 are. So the reason why you dropped your lost profit 15 claim is not a privilege. So if you would like to not 16 talk about the -- and I don't want to know any 17 conversations that you had with Jim Mullins -- I'm 18 sorry -- Jim Cage or anybody from Moye White or any 19 other legal counsel. 20 What I do want to know is I want to know 21 why Trans-West decided to drop its lost profits claim. 22 MR. CAGE: You can answer to the extent 23 it doesn't call for a legal conclusion -- I mean legal 24 advice. 25 A. I think primarily because it was too 63 1 complicated. 2 Q. (BY MR. FALBE) Any other reason? 3 A. No. 4 Q. Is it to avoid the discovery of 5 unflattering information? 6 A. No. 7 Q. Is it because you can't really prove that 8 you had lost profits? 9 A. We could prove them, but it would just 10 entail a lot of work. 11 Q. Please turn your attention to 12 paragraph 22. It reads, "Mullins also purchased RVs 13 from Defendants on behalf of Transwest. Upon 14 information and belief, Mullins and Defendants agreed 15 that Mullins would buy RVs from Defendants for a price 16 greater than their fair market value." 17 A. Yes. 18 Q. What are the factual underpinnings of 19 that claim? 20 A. Primarily just the losses that were 21 incurred on them. 22 Q. Do you have -- aside from that summary 23 statement, "the losses that were incurred on them," do 24 you have any factual basis to support that claim? 25 A. Well, the factual basis is the fact that 64 1 he was buying them from them and losing money on them. 2 Q. Has the RV division made money ever? 3 A. We have made money on individual units, 4 yes. We have lost money on the ones that we bought 5 from him. 6 Q. Did you testify last time that 7 Trans-West's RV division has never made any money? 8 A. As a division. We make money on 9 individual deals, yes. 10 Q. Okay. But as a division, Trans-West's RV 11 division has never made any money, right? Let's be 12 crystal clear about this. 13 A. Not in the last four or five years. 14 Q. Is this a new business that's only been 15 in business for four or five years? 16 A. I guess the business of selling RVs has 17 been around for probably about six years now. 18 Q. Did you make a profit your first year? 19 A. I think we did the first year. 20 Q. How much? 21 A. Like 90,000. 22 Q. 90,000. And what were your losses -- 23 what were your total profits or losses in the 24 six years of operation? 25 A. I don't know. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 8 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 17 (Pages 65 to 68) 65 1 Q. You don't know? 2 A. No. 3 Q. We're talking about the profits and 4 losses of Trans-West -- 5 A. Yeah. 6 Q. -- of an RV division that you're claiming 7 is partially responsible because of the conduct of my 8 client, but you can't testify as to the profit and 9 loss during that period of time? 10 A. The exact profit and loss? No. 11 Q. Give me your estimate. 12 A. We have lost a couple million dollars a 13 year. 14 Q. So a couple million dollars a year for 15 five years. $10 million? 16 A. Yeah. 17 Q. So you've lost $10 million and now you're 18 asking my client to bail you out of that? 19 MR. CAGE: Objection. Form. Foundation. 20 A. Bail me out of those losses? 21 Q. (BY MR. FALBE) Right. 22 A. I'm asking -- the only thing I'm asking 23 your client for is the money that he fraudulently paid 24 to my employee that was rightfully and duly ours. I'm 25 not asking him to bail us out of any other losses. 66 1 Q. So you're willing to accept the 2 $10 million losses and that's your course of business. 3 Do you consider that -- is Trans-West particularly 4 skilled at operating an RV dealership? 5 A. Today I would say we are, yes. 6 Q. And when did that start? 7 A. It started after we got rid of Mullins 8 and started cleaning up some problems we had. 9 Q. And how much profit have you made after 10 that? 11 A. I couldn't give you the exact amount. 12 Q. As the president and owner of Trans-West 13 talking about profits and losses and just testifying 14 that you're now a good RV operator, please tell me 15 how many -- how much profit you've made -- Trans-West 16 has made since the time you fired Jeff Mullins. 17 MR. CAGE: I'm going to object and direct 18 him not to answer. None of this is within the 19 30(b)(6) designation, none of it. It's not part of 20 the claims we have in this case. It's not relevant to 21 this case. 22 MR. FALBE: It has absolutely to do with 23 whether these are deeply discounted, because you don't 24 know whether they are deeply discounted or not. The 25 profitability of a particular unit is at issue. I'm 67 1 not -- 2 MR. CAGE: It is not an issue. 3 MR. FALBE: It is an issue. 4 MR. CAGE: It is not an issue in this 5 case and it's not designated in your designations. 6 They have to be designated with painstaking detail. 7 It's not in there. 8 MR. FALBE: Jim, I've heard it. 9 MR. CAGE: I've heard your arguments. 10 You don't like mine any better than I like yours, but 11 it's not in your designation and it's relevant to the 12 case because we're not claiming lost profits, and he 13 just stated that. 14 Q. (BY MR. FALBE) Is there other reason 15 why Mullins -- 16 MR. CAGE: You have all the records -- 17 also, you have all the records that show this. 18 MR. FALBE: Thank you, Jim. Can I ask my 19 question now, Jim? 20 MR. CAGE: Yes. Go right ahead. 21 Q. (BY MR. FALBE) Is there any other reason 22 why Mullins might buy an RV from the defendants for a 23 price greater than fair market value? 24 A. Any other reason other than him getting 25 bribed to do it? 68 1 Q. Is there any reason that Trans-West would 2 have for paying above fair market value for an RV from 3 Southwest? 4 A. No good reason I can think of. 5 Q. Does Trans-West ever trade a vehicle in 6 when it sells a new RV? 7 A. Occasionally. 8 Q. Does Trans-West ever pay more than what 9 that RV is worth in order to get the sale? 10 A. To pay more to get the sale? 11 Q. If you could -- 12 A. I hope not. 13 Q. If you have a new RV and you could sell 14 it for more, right, would you then be willing to pay 15 more for the trade-in? 16 A. In actual cash? 17 Q. I'm asking you if -- would Trans-West -- 18 if it could sell a new RV for more money, would it pay 19 more, especially if there was a payoff, for a trade-in 20 vehicle? 21 MR. CAGE: Objection. Form. 22 You may answer. 23 A. We wouldn't pay more in actual cash 24 value. 25 Q. (BY MR. FALBE) I'm not talking about Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 9 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 19 (Pages 73 to 76) 73 1 price of the coach from $320,000 to $370,000 to make 2 up the difference? 3 A. No, it wouldn't be typical to raise it. 4 It would be typical that we started at the higher 5 amount. 6 Q. Please explain what you mean. 7 A. We don't usually tell a customer that you 8 can sell it to him for 320- and then say, Well, we're 9 going to raise it to 370-. 10 Q. I understand that. Nobody does that. 11 What I'm saying, though, is in the two identical 12 situations, would the two similar customers be able to 13 buy an RV for $320,000? 14 MR. CAGE: Objection. Form. 15 You may answer. 16 A. No. 17 Q. (BY MR. FALBE) Why? 18 A. Because of what you just stated. 19 Q. Because you have to roll the $50,000 20 worth of negative equity into the transaction, right? 21 A. That's right. 22 Q. So what you do is you increase the cost 23 of the RV that you just sold them, right? 24 A. Theoretically. 25 Q. When you say "theoretically," do you mean 74 1 that there are different ways to present it on paper, 2 but that's what happens? 3 A. Yeah. I mean, in theory they are paying 4 the same amount for the new coach, but they are 5 adding -- they're going to finance the shortage into 6 the new deal. 7 Q. Do you believe that Trans-West had any 8 RVs in its inventory that were in a negative equity 9 situation? 10 MR. CAGE: Objection. Form. 11 You may answer. 12 A. Do we have any that were originally in a 13 negative -- 14 Q. (BY MR. FALBE) Do you believe that any 15 of the coaches that Trans-West sold to Southwest were 16 in a negative equity situation? 17 A. They could have possibly been that way 18 when they were coming in, but it wouldn't matter, 19 because you would have booked them at an actual cash 20 value. 21 Q. I'm asking you a simple question. Do you 22 believe that any of the RVs that Trans-West sold to 23 Southwest were in a negative equity situation? 24 MR. CAGE: Same objection. 25 You may answer. 75 1 A. They could have been in a negative equity 2 situation when we acquired them. 3 Q. (BY MR. FALBE) Or held them, right? 4 Because your costs go up after you hold them longer, 5 right? 6 A. What we put in as actual cash value has 7 nothing to do with what the over allowance was on a 8 transaction. 9 Q. I'm not talking about over allowance. 10 Okay? 11 A. Well, you are talking over allowance. 12 That's exactly what you're talking about. 13 Q. People call it a lot of different things. 14 What I'm saying, though, is were there times when 15 Trans-West wouldn't be able to make money by selling 16 its RV? They're under water, they had a negative 17 equity situation. There is lots of things. You can 18 call it whatever you want. It's all the same thing. 19 But do you believe that any of those 20 transactions -- any of the RVs that were sold to 21 Southwest were in that situation? 22 MR. CAGE: Objection. Form. Incomplete 23 hypothetical. 24 You may answer. 25 A. I'll answer it again. They could come in 76 1 in that situation, but the value that we put it on the 2 books for has nothing to do with that. It has to do 3 with what we put in actual cash into the transaction. 4 Just because a customer over financed his new one to 5 absorb a deficiency in his used doesn't change our 6 valuation of the used at all. We don't put more money 7 in a trade because the guy owes more money, if that's 8 what you're asking. 9 Q. (BY MR. FALBE) That's not what I'm 10 asking. 11 A. I'm confused at what you are really 12 asking. 13 Q. I'm asking, did you ever make -- did you 14 ever have RVs on your books that were worth less than 15 what you had them on your books for? 16 MR. CAGE: Objection. Asked and 17 answered. 18 You may answer. 19 A. Ultimately, yes. 20 MR. CAGE: We have been going an hour and 21 a half. Can we take a short break? Is this a good 22 time? 23 MR. FALBE: Yeah. That's fine. 24 (Recess taken, 10:36 a.m. to 10:46 a.m.) 25 MR. FALBE: We can go back on the record. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 10 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 20 (Pages 77 to 80) 77 1 Q. (BY MR. FALBE) Please look at 2 paragraph 22. It says that Trans-West has been unable 3 to sell six of the 11 RVs that were purchased by -- 4 from Southwest; is that correct? 5 A. Yes. 6 Q. How is that Southwest's fault? 7 A. Well, the reason that we were not able to 8 sell them is that we paid too much money for them. 9 Q. This is a good time to ask. Do you 10 understand what a wholesaler does? Does Trans-West 11 understand what an RV wholesaler does? 12 A. An honest one? 13 Q. No. I asked you what -- just answer the 14 question. You don't get to add your other -- just -- 15 MR. FALBE: Read back the question. 16 (The last question was read back as 17 follows: "Do you understand what a wholesaler does? 18 Does Trans-West understand what an RV wholesaler 19 does?") 20 A. I understand what most RV wholesalers do. 21 Q. (BY MR. FALBE) What does Trans-West 22 understand about a wholesaler's business? 23 A. They buy and sell used. 24 Q. Used what? 25 A. Whatever business they're in. 78 1 Q. Okay. What is Trans-West's understanding 2 of an RV wholesaler? 3 A. That they would buy and sell used RVs. 4 Q. Who do they buy from? 5 A. They could buy from many sources. 6 Q. Okay. What's one source? 7 A. They could buy from a dealer, they could 8 buy from an individual, they could buy from a bank, 9 they could buy from an auction company. 10 Q. Who do they sell to? 11 A. Oh, they would sell to dealers, to 12 auctions. They could possibly sell retail. 13 Q. Do you believe that a wholesaler is 14 allowed to sell at retail? 15 MR. CAGE: Objection. Form. Legal 16 conclusion. 17 You may answer. 18 A. A lot of the wholesalers I know do sell 19 some retail. 20 Q. (BY MR. FALBE) Does Trans-West believe 21 that a wholesaler is allowed to sell RVs at retail? 22 MR. CAGE: Same objection. 23 A. If they have a used vehicle license, they 24 can sell retail. 25 Q. (BY MR. FALBE) Would that be a different 79 1 license? 2 A. Not in the state of Colorado. I don't 3 know what other states would be. 4 Q. So if an RV wholesaler buys from one 5 dealership and sells it to another dealership and 6 they're just a wholesaler, do you expect that that 7 wholesaler will make money? 8 A. Yes. 9 Q. Do you believe that wholesaler expects to 10 make money? 11 A. I would assume that he would, yes. 12 Q. Do you believe that Southwest Luxury 13 Coach is primarily a wholesaler? 14 A. I don't know that much about him other 15 than he is a wholesaler. I don't know if he has a 16 retail lot or not. 17 Q. Has he ever represented to Trans-West 18 that he was anything other than a wholesaler? 19 A. Not that I'm aware of, but I don't deal 20 with him, so . . . 21 Q. Is a wholesaler's job to buy RVs at the 22 lowest price that they can? 23 A. I would assume so. 24 Q. Isn't an RV wholesaler's job to sell RVs 25 at the highest price they can? 80 1 A. Sure. 2 Q. Is Southwest responsible for the fact 3 that Trans-West might have bought an RV at an above 4 market price? 5 A. If they paid the buyer to do that, yes. 6 Q. So you're saying that if -- if Southwest 7 had paid the buyer, Trans-West, a dollar to buy their 8 RV, that they would have then violated the law, right? 9 Then they would be responsible for the losses that 10 ensued. Is that your testimony? 11 MR. CAGE: Objection. Form. Foundation. 12 You may answer. 13 A. If they paid any amount of money to one 14 of our employees to induce them to purchase something 15 from them, that would be unethical and they would be 16 basically inducing our employee to do something wrong. 17 Q. (BY MR. FALBE) And they would have to 18 know that they were inducing them to do it wrong, 19 right? 20 A. Well, they would know. 21 Q. How would they know? 22 A. Why else would they be paying him? 23 Q. Do you ever pay a referral fee or a 24 spiff? Does Trans-West ever pay a referral fee or a 25 spiff? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 11 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 21 (Pages 81 to 84) 81 1 A. Absolutely. 2 Q. Absolutely. 3 A. We pay a referral or a spiff to someone 4 to sell a unit. We don't pay a seller or a buyer 5 that's doing business with us. 6 Q. Does a manufacturer -- does any 7 manufacturer that Trans-West deals with pay a fee to 8 any Trans-West employees? 9 A. Yes, they do. 10 Q. Do you buy RVs from these dealerships? 11 A. From dealerships? 12 Q. Yeah. What's one of your dealerships? 13 A. We buy it from manufacturers. 14 Q. Okay. So from a manufacturer. 15 A. Yes, we do. 16 Q. So you buy an RV from a manufacturer, 17 right? 18 A. Absolutely. 19 Q. And that manufacturer pays one of your 20 employees, right? 21 A. They can give them spiffs at certain 22 times, yes. 23 Q. So why aren't you suing the manufacturer 24 for all your $10 million worth of losses? 25 MR. CAGE: Objection. Form. Foundation. 82 1 You may answer. 2 MR. FALBE: Please indicate that's 3 laughter. 4 Q. (BY MR. FALBE) Why is that a laughing 5 matter? 6 A. It is laughter that it's so confusing to 7 you that you don't understand the difference between a 8 buyer and a seller. 9 Q. Why don't you explain it to me. 10 MR. CAGE: He didn't finish his answer. 11 A. A manufacturer is a builder that 12 basically is a partner of ours to go out and sell 13 products. We entice our salesmen to sell at the 14 highest value. That's a lot different than somebody 15 paying our people to sell to them at a reduced price. 16 Q. (BY MR. FALBE) Do you have an agreement 17 that memorializes this relationship? 18 A. An agreement? 19 Q. Right. 20 A. I don't think I need an agreement. 21 Q. You don't have an agreement with your 22 manufacturers? 23 A. No. 24 Q. Trans-West doesn't have an agreement with 25 any of its manufacturers? Newmar, do you sell Newmar? 83 1 A. Do we have an agreement in regards to 2 what? 3 Q. I asked you if you had an agreement with 4 any of your manufacturers and your testimony was no. 5 A. Well, we have dealer agreements, yes. 6 Q. Oh, so you do have dealer agreements? 7 A. We don't have agreements in regards to 8 them giving a spiff. I don't know that we have a 9 written agreement. 10 Q. But the agreement is memorialized, right? 11 MR. CAGE: Objection. Form. Which 12 agreement? 13 A. Is memorialized how? 14 Q. (BY MR. FALBE) The agreement between 15 Trans-West and its manufacturers is memorialized in a 16 contract; is that correct? 17 A. We have contracts with manufacturers 18 that's referred to as a dealer agreement, yes. 19 Q. I'm confused. You just described this as 20 a partnership. Is it called a partnership agreement? 21 A. I don't know if they would be stated as a 22 partnership. I think if you ask any manufacturer that 23 we have, they would describe their relationship with 24 us as a partnership. 25 Q. But you said it was memorialized in a 84 1 contract. What does the contract say? 2 A. The contract would probably say that it's 3 a dealer agreement. 4 Q. A dealer agreement. So it would not be a 5 partnership? 6 MR. CAGE: Objection. Form. Legal 7 conclusion. I'm also going to object to this line of 8 questioning because it's subject to the protective 9 order. 10 MR. FALBE: It's not subject to the 11 protective order. 12 MR. CAGE: Subject to the motion for 13 protection, yes, it is. You asked for dealer 14 agreements. We objected. It's subject to the motion 15 for protection. 16 MR. FALBE: I want to get this on the 17 record. Mr. Mullins, did you -- I'm sorry. Mr. Cage, 18 did you receive a copy of the deposition notice? 19 MR. CAGE: In this case? 20 MR. FALBE: Yes, in this case. 21 MR. CAGE: I did receive a copy. 22 MR. FALBE: Did you make any formal 23 objections? 24 MR. CAGE: I told you -- yes, we did. We 25 told you that we are not going to be answering Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 12 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 22 (Pages 85 to 88) 85 1 questions as it relates to paragraphs 3, 4, 5, 9 -- 2 I'm sorry -- 10, 11 of the deposition notice. Even if 3 I didn't do it in writing, which I did -- 4 MR. FALBE: I disagree. You made 5 that objection to 3, 4, 5, 9, 10, 11. 6 MR. CAGE: You don't get to interrupt and 7 do all that. 8 MR. FALBE: You've interrupted me the 9 entire time, Mr. Cage. 10 MR. CAGE: Well, I've tried not to. I've 11 tried to be very diligent. You've also interrupted 12 the witness. Let's not get petty about this. 13 We told you we weren't going to 14 testify -- we've made it clear in this deposition and 15 in other depositions and I believe in writing that 16 indeed we're not going to answer questions to matters 17 which are before the Court subject to the motion for 18 protective order. You are getting into that area 19 again and I'm going to direct him not to answer. 20 MR. FALBE: Did you make any other 21 objection? 22 MR. CAGE: Those are pretty thorough 23 objections. 24 MR. FALBE: Did you make any -- 25 MR. CAGE: And I have the local rule that 86 1 supports that and provided you -- actually gave you a 2 copy of the local rule that specifically says that. 3 MR. FALBE: Did you make any other 4 objections? 5 MR. CAGE: You are prohibited -- yes, I 6 did that. I did it at every single deposition. I did 7 it in writing. I told you what we were going to do in 8 this deposition and I have filed a motion for a 9 protective order, and I provided you, because you 10 didn't have it, a copy of the local rule that says you 11 can't discover into that until the protective order is 12 ruled on. I've told you that many times. 13 MR. FALBE: Did you make any other 14 objection? 15 MR. CAGE: I'm not answering questions. 16 You know what I did. 17 MR. FALBE: Did you make an objection to 18 item 16? Did you make an objection to item 14? 19 You're trying to make objections now to items that you 20 didn't make objections to, so all of these relate to 21 claims and defenses. You didn't object to them and 22 now they're required to answer them. You have had 23 your opportunity. 24 MR. CAGE: They are subject to a motion 25 for a protective order. 87 1 MR. FALBE: It's not subject to a motion 2 for a protective order. 3 MR. CAGE: You can argue all you want. 4 Go tell the judge. He is not answering questions. 5 Besides that, it's not relevant. He's told you what 6 his damages are, what we're claiming. Go ahead. 7 MR. FALBE: What was the last question? 8 (The last question was read back as 9 follows: "A dealer agreement. So it would not be a 10 partnership?") 11 Q. (BY MR. FALBE) Have you ever formed a 12 joint venture agreement with any of your dealers that 13 you sell for? 14 MR. CAGE: Objection. You don't have to 15 answer the question subject to the protective order 16 and it's not designated in the 30(b)(6). 17 MR. FALBE: It is designated. 18 MR. CAGE: No, it's not. 19 MR. FALBE: You didn't object. 20 MR. CAGE: No, it's not. 21 A. I'm not going to answer. 22 Q. (BY MR. FALBE) Why aren't you going to 23 answer? 24 A. I am instructed not to. 25 Q. You were instructed not to answer 88 1 because -- does this relate to a claim or defense? 2 MR. CAGE: Same objection. 3 You don't have to answer. 4 You're just arguing. All you're doing is 5 arguing with the witness. Ask him a factual question. 6 These are factual questions that you've designated 7 under 30(b)(6). You haven't designated this question. 8 Q. (BY MR. FALBE) Does your dealer 9 agreement allow for your employees to receive spiffs? 10 MR. CAGE: Don't answer. 11 A. I'm not going to answer. 12 Q. (BY MR. FALBE) Have we been provided a 13 copy of the dealership agreements? 14 MR. CAGE: Don't answer. 15 Q. (BY MR. FALBE) Has Trans-West provided a 16 copy of the dealership agreements? 17 A. I'm not going to answer. 18 Q. Are you going to answer any more of my 19 questions? 20 A. Don't know. 21 Q. Does Trans-West floor the RVs that it 22 purchases? 23 A. Some of them. 24 Q. Approximately how many of them? 25 A. All of the new ones. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 13 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 23 (Pages 89 to 92) 89 1 Q. Approximately how many of the used ones? 2 A. I'm going to say about half of them. 3 Q. About half of them. How many of the RVs 4 that were sold from Trans-West to Southwest were 5 floored? 6 A. No idea. 7 Q. Do you think that would be relevant to 8 whether they were deeply discounted or not? 9 A. They have no bearing on it. 10 Q. You don't think that the flooring cost 11 would have any bearing on whether an RV was deeply 12 discounted or not? 13 A. No. 14 Q. What are the terms of your flooring 15 agreement? 16 MR. CAGE: Objection. You don't have to 17 answer subject to the protective order. Don't answer. 18 MR. FALBE: What exactly is that subject 19 to under the protective order? 20 MR. CAGE: There is no protective order. 21 I filed a motion for a protective order. 22 MR. FALBE: Which item under the -- 23 MR. CAGE: The financing. "Bank accounts 24 and credit union accounts registered by Trans-West. 25 Trans-West's business operations, transactions, sales 90 1 efforts." We have gone through this multiple times. 2 It's not part of our damages. We're not claiming it. 3 Q. (BY MR. FALBE) Do you understand that 4 you cannot escape talking about the difference between 5 fair market value -- or deep -- that you're 6 claiming -- I'll rephrase. I'm going to just ask a 7 new question. 8 Does Trans-West appreciate the fact that 9 in order to prove an RV was deeply discounted, it has 10 to have a baseline? 11 MR. CAGE: Objection. Form. Legal 12 conclusion. 13 You may answer. 14 A. I would understand that and I have no 15 idea why it even matters. 16 Q. (BY MR. FALBE) How would it not matter? 17 A. We're not asking for lost revenue in this 18 case. We have dropped that. We're talking about the 19 kickbacks that were paid to Mr. Mullins. That's all 20 we're talking about here, so . . . 21 Q. But if the RVs weren't sold at a deep 22 discount, then it doesn't matter if there was a fee 23 paid, right? 24 A. It does matter. I don't care what they 25 were sold for. If there was a fee paid, there was a 91 1 fee paid. 2 Q. So your claim now is that RVs don't even 3 have to be deeply discounted? Because that's not what 4 it says in your complaint. 5 A. Anytime we would sell an RV and our guy 6 would receive a kickback from the buyer, we would have 7 a claim for that. 8 Q. No matter what? 9 A. No matter what. 10 Q. Even if the RV was not deeply discounted? 11 A. Even if the RV made a profit. It 12 wouldn't matter. 13 Q. Even if it made an exorbitant profit, 14 right? 15 A. Wouldn't matter. 16 Q. Wouldn't matter. You would still have a 17 claim? 18 A. Absolutely. 19 Q. And what would that claim be if it made 20 an exorbitant profit? 21 A. The claim would be for the amount that 22 the kickback was -- the amount of the kickback given 23 to our employee. 24 Q. And what specifically does that violate? 25 Does it violate a law that you're aware of? 92 1 A. There is probably some case study on 2 that. There is -- I believe there is some language 3 that refers to kickback schemes and what they are. 4 Q. Do you believe that that's a requirement 5 that applies to dealerships? 6 A. Kickback schemes? 7 Q. Do you believe that there is a law that 8 applies to RV dealerships? 9 MR. CAGE: Objection. Legal conclusion. 10 Ambiguous. 11 MR. FALBE: I'm asking about his 12 knowledge, Trans-West's understanding. 13 A. I would say that kickbacks are wrong in 14 any circumstances. Whether they're done by a dealer 15 or by an individual, I don't see where it matters. 16 Q. (BY MR. FALBE) I didn't ask if they were 17 wrong. What I asked is: Are you aware of any law 18 that it violates to pay what you're calling a 19 kickback -- 20 MR. CAGE: Objection. Form. 21 Q. (BY MR. FALBE) -- to dealerships? 22 MR. CAGE: Legal conclusion. 23 You may answer. 24 A. I don't know of a specific law. 25 Q. (BY MR. FALBE) Are you aware that there Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 14 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 24 (Pages 93 to 96) 93 1 is an antikickback law for physicians? 2 A. I'm not. 3 Q. You're not. Are you aware that there is 4 an antikickback law with respect to governmental 5 agencies? 6 A. Not specifically. 7 Q. Would it be fair to say that you don't 8 really understand antikickback laws? 9 MR. CAGE: Objection. Form. Foundation. 10 Legal conclusion. 11 You may answer. 12 A. I haven't read the exact law. 13 Q. (BY MR. FALBE) Does Trans-West have a 14 regulatory compliance department that looks into 15 whether it can pay kickbacks? 16 A. We don't pay kickbacks. 17 Q. Do you pay referral fees? 18 A. We do on occasion, yes. 19 Q. Trans-West pays referral fees? 20 A. Yes. 21 Q. And Trans-West receives kickbacks from 22 its manufacturers? 23 A. No. 24 Q. Okay. It receives fees from its 25 manufacturers. Its employees does, right? 94 1 A. Employees will occasionally receive sales 2 incentive from a manufacturer, yes. 3 Q. Do your employees ever receive incentive 4 fees from third-party finance companies? 5 A. No, not that I'm aware of. 6 Q. If Andrew Lyons testified that they do 7 receive -- that your employees -- that Trans-West 8 employees receive incentives from third-party -- from 9 finance companies, would that be incorrect? 10 A. If he says they do, I'm sure they do. 11 Q. I'm not asking about your knowledge. I'm 12 asking about what Trans-West actually does, because I 13 need to know the person, and you were designated. 14 A. I cannot sit here and tell you 15 specifically of an incentive fee that's offered by a 16 finance company today. 17 Q. So you're saying that they -- 18 A. But I will tell you that they probably 19 have been done. 20 Q. They have been done. And do your 21 employees receive kickbacks from third-party warranty 22 companies? 23 A. Our employees do not receive kickbacks. 24 Q. Do they receive any fees from third-party 25 warranty companies? 95 1 A. Our employees could receive incentives 2 from companies that we do business with that are sales 3 incentives that would be approved by us. 4 Q. Do you track those? 5 A. No. 6 Q. How would you approve them if you don't 7 track them? 8 A. Companies would come to us and tell us 9 what the program is. 10 Q. Do you memorialize that in an agreement? 11 A. Typically they wouldn't. 12 Q. In an e-mail? 13 A. I'm sure we have e-mails, yeah, about 14 that. Could have. 15 Q. Have you provided those e-mails? When I 16 say "you," I mean Trans-West. Has Trans-West provided 17 those e-mails? 18 A. I don't know if we have or not. 19 Q. Are you aware that the defendants have 20 asked for this information? 21 A. On e-mails on any incentives? 22 Q. About kickbacks, incentives, referral 23 fees, commissions, spiffs. I don't care what you call 24 it. All of it. We have asked for it all. Are you 25 aware that we have asked for all of that? 96 1 A. I may have. 2 Q. You say that Trans-West pays a lot of 3 these, right? 4 A. I don't believe I did say that. 5 Q. Oh. What did you say? I don't want to 6 mischaracterize it. 7 A. On referral fees? 8 Q. Whatever you want to call it. Your 9 employees receive fees from third-party warranty 10 companies, finance companies and manufacturers. 11 A. Yes. 12 Q. Okay. That's something you know about. 13 How many do you think that is? 14 A. I mean, that's kind of an ongoing 15 process. I couldn't put a number on it. 16 Q. Is it a hundred? A thousand? 17 A. Incentives that are paid? 18 Q. Have been paid historically. 19 A. Over the course of years, it would be 20 thousands. 21 Q. Thousands? 22 A. Yeah. 23 Q. I'll hand you what I think will now be 24 marked as Exhibit 41. 25 (Deposition Exhibit 41 was marked.) Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 15 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 25 (Pages 97 to 100) 97 1 Q. Do you know that this was part of 2 Southwest's eighth supplemental disclosure for 3 information? 4 A. This? 5 Q. Yes. 6 A. I know that we received -- the only one I 7 know we received was from Newmar. You subpoenaed them 8 and I think there were some that probably went 9 directly to you. 10 Q. I'm asking if Trans-West is aware 11 because -- I'm asking Trans-West about the information 12 they provided about spiffs and kickbacks that they 13 received and this was provided in response to that. 14 It lists two items. 15 MR. CAGE: I'm going to object to him 16 answering these questions, because Mr. Stenseth is 17 designated to testify about item No. 8 in your 18 designation, "Payments by Trans-West to third 19 parties." 20 Q. (BY MR. FALBE) This goes to the nature 21 of kickbacks and whether it's allowed by your 22 employees. This is the very foundation of every claim 23 that's been made. 24 MR. CAGE: Mr. Stenseth is designated to 25 testify about this particular subject, not 98 1 Mr. Eidsness, and it's not designated as part of the 2 claims. It's your defense. 3 Q. (BY MR. FALBE) Is this all the fees that 4 have been paid? 5 MR. CAGE: He's not designated to answer 6 that. He can answer based upon his personal 7 knowledge. 8 A. I don't know. The total amount paid to 9 all of our employees? 10 Q. (BY MR. FALBE) I don't know. This is 11 what I'm getting, so you tell me what this means. 12 What is this a list of? 13 MR. CAGE: Same objection. Same 14 objection. 15 A. I haven't seen it before. 16 Q. (BY MR. FALBE) You haven't seen it 17 before, but you provided -- is there any way for the 18 defendants to figure out what this means? 19 MR. CAGE: You can ask Mr. Stenseth, 20 because he is the one that's designated to testify 21 about that. 22 Q. (BY MR. FALBE) Do you know what this 23 means? 24 A. I do not. 25 Q. I'm going to hand you now what is going 99 1 to be marked 42. I'm sorry. It doesn't have to be 2 marked. Scratch that. It's already been designated 3 as Exhibit 38, and I have a copy of it. 4 Do you recognize this exhibit? 5 A. Yes, I've seen it before. 6 Q. What is it? 7 A. This was a list of purchases that Mullins 8 made from Southwest. 9 Q. Who prepared this? 10 A. I believe our attorneys did. 11 Q. Anybody help them prepare it? 12 A. I'm sure several people did. 13 Q. Who were those people? 14 A. I can't answer specifically. They were 15 provided the information they needed to put this 16 together, deal jackets, whatever. Some of the amounts 17 would have come from banks, I would assume. 18 Q. Okay. I'm also going to hand you what 19 has been marked as Exhibit 36. Do you recognize what 20 this document is? 21 A. Yes. 22 Q. What's this document? 23 A. This would be a spreadsheet of deals that 24 were made by Mullins and his various buyers. 25 Q. Okay. On Exhibit 36, would it be fair to 100 1 say that these are -- who created this document? 2 A. I believe this was done by our law firm. 3 Q. And your law firm is Moye White? 4 A. Yes. 5 Q. And on Exhibit 36, is this a summary or 6 compilation of transactions where Trans-West sold RVs 7 to Southwest? Is that correct? 8 A. Yes. 9 Q. Would that be a fair characterization? 10 A. Right. 11 Q. Okay. Is this the basis of your claim -- 12 Trans-West's claim against Southwest? 13 A. It's a large part of it, yes. 14 Q. It's a large part of it. Can you tell me 15 what the last column that says "AL Approved" means? 16 MR. CAGE: Exhibit 36? 17 MR. FALBE: Exhibit 36, I'm sorry. 18 A. I believe that's "Andrew Lyons approved." 19 Q. (BY MR. FALBE) What does that mean? 20 A. That means that he would have seen the 21 deal before it was finalized or he approved of it. 22 Q. And do you know how that was 23 characterized? 24 A. I don't. 25 Q. Do you know how it was coded? How they Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 16 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 26 (Pages 101 to 104) 101 1 determined whether Andrew Lyons approved it or not? 2 A. I don't. 3 Q. Okay. If Andrew Lyons approved a 4 transaction, how did Southwest induce Jeff Mullins to 5 make any of these transactions? 6 A. The same way they would have done it 7 whether he approved it or not. They would have 8 offered him a bribe to buy a vehicle for a certain 9 amount of money. He probably took the deal to Andrew 10 and said, This is the most I can get for this vehicle, 11 that's what it's worth and I would like to sell it to 12 them. 13 Q. You've testified personally to this, but 14 Andrew Lyons is the general manager of the RV 15 division; is that correct? 16 A. Yes. 17 Q. And he is responsible for the entire 18 operation; is that correct? 19 A. Yes. 20 Q. And that entire operation includes the 21 sale of new and used RVs; is that correct? 22 A. Correct. 23 Q. It also includes the sale of parts; is 24 that correct? 25 A. Yes. 102 1 Q. It also includes the service of RVs; is 2 that correct? 3 A. Yes. 4 Q. Does it include anything else that I 5 didn't summarize there? 6 A. Sale of trucks, of trailers. 7 Q. Okay. But specifically we're going to 8 just talk about RVs. 9 A. Okay. 10 Q. And he has the right, even according to 11 this exhibit, to approve transactions; is that 12 correct? 13 A. Yes. 14 Q. So if he approved a transaction, it was 15 authorized not only by Jeff Mullins but also by the 16 company, right? 17 A. Yes. 18 Q. Okay. And did you have a meeting with 19 Andrew Lyons in the fall of 2014 indicating that he 20 had to approve all transactions with Jeff Mullins? 21 A. I don't recall exactly. I could have. 22 We could have had conversations about it. 23 Q. If Andrew Lyons testified to that, would 24 he be incorrect? 25 A. If he said it, then it probably happened. 103 1 Q. If Trans-West issued an order for Andrew 2 Lyons to approve all the transactions and he just 3 didn't do it, isn't that Andrew's fault? 4 A. If he didn't approve them? 5 Q. If you directed the general manager of 6 your RV division to approve all transactions with Jeff 7 Mullins and he just didn't do it, would that be his 8 fault? 9 A. That he didn't do it? 10 Q. Right. 11 A. Yes. 12 Q. Okay. I want you to look at this 13 spreadsheet and I want you to tell me what the fair 14 market value of item No. 1 is. It's a Royale Prevost 15 and it has a VIN number ending in 8488. Do you see 16 that? 17 A. I do. 18 Q. And do you see that Andrew Lyons signed 19 off on that? 20 A. Yes. 21 Q. Okay. Please tell me what the fair 22 market value is. 23 A. I have no idea. 24 Q. You have no idea? 25 A. No. 104 1 Q. How do you not have any idea? 2 A. I'm not involved with the RV market. I 3 don't know what the values are. 4 Q. By how much was this deeply discounted? 5 A. I don't know. 6 Q. Are you claiming that RVs were deeply 7 discounted in your complaint? 8 A. We have stated that they have been 9 discounted. I think with our amended complaint, you 10 know, we're talking about the kickback amounts, not 11 the sale amounts. 12 Q. But your amended complaint says that he 13 was induced to sell RVs at deep discounts and that was 14 the reason for the kickback, right? 15 A. I'm sure that's a partial reason. 16 Q. That is the reason. 17 A. I don't know why any buyer would pay a 18 kickback fee if he wasn't going to get something for 19 it. 20 Q. I'm just talking about the deep discount. 21 I'm asking you to look at all of this information that 22 has been meticulously assembled. Please tell me what 23 the fair market value is. 24 A. And I told you I don't know. 25 Q. On item 1, can you tell how much was Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 17 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 27 (Pages 105 to 108) 105 1 this -- 2 A. I can't tell you on any one of these what 3 the fair market value is. 4 Q. Well, I'm going to go through each one. 5 A. And you'll have the same answer. 6 Q. On No. 1, can you tell from this 7 spreadsheet how much this RV was deeply discounted? 8 A. I do not know what the fair market value 9 is on -- 10 Q. Is there any way to determine that from 11 this spreadsheet or anything else? 12 A. Probably not. 13 Q. On No. 1, is there any way to determine 14 how much this RV was deeply discounted? 15 A. Like I said, I don't know what the fair 16 market value is of these. I can tell what -- 17 Q. I'm going to ask you the question. You 18 can either -- I'm just asking -- 19 MR. CAGE: Don't interrupt him. Let him 20 finish and then ask another question. 21 A. This tells us what we owned them for and 22 what we sold them to RV Outlet for -- or to Southwest. 23 I don't know what the fair market value was in each 24 one of these. 25 Q. (BY MR. FALBE) So how are we to 106 1 determine what the deep discount is? Can you 2 determine? I want Trans-West to tell me what the deep 3 discount is on item No. 2. Can you do that? 4 A. I can't. 5 Q. Can Trans-West tell me the amount of the 6 deep discount on item 3? 7 A. I told you I can't. 8 Q. Can Trans-West tell me the amount of the 9 deep discount on item 4? 10 MR. CAGE: He's already answered the 11 question for all of these. 12 A. I can't do it on items 1 through 44. I'm 13 not -- I don't have knowledge of it. I'm not in the 14 day-to-day business of the RV department. 15 Q. (BY MR. FALBE) I'm not asking you if you 16 have knowledge. I'm asking, is this the fundamental 17 basis of Trans-West's claim? 18 MR. CAGE: Objection. That's not true, 19 but go ahead. 20 A. Our basis of the amended complaint is for 21 the amount of the kickback scheme that was done 22 between him and Mullins. 23 Q. (BY MR. FALBE) Okay. We just went 24 through the amended complaint and there are numerous 25 references to the fact that these were deeply 107 1 discounted; is that correct? 2 A. That's in there, yeah. 3 Q. Okay. So you're saying that it doesn't 4 matter whether they were deeply discounted at all and 5 that you have no way of proving it? 6 MR. CAGE: Asked and answered. 7 A. I will tell you that I don't care what 8 price they were sold for, if somebody bribed our 9 people to sell it for that amount and they received a 10 kickback, that that was a fraudulent activity. 11 Q. (BY MR. FALBE) And that you want that 12 money back? 13 A. That money that was paid to our employee, 14 yes, we want it back. 15 Q. So just to be -- I just want to be sure 16 that I'm clear on this. So if you had an RV that was 17 worth $500,000 and you sold it to Southwest Luxury 18 Coach for $600,000 -- $100,000 more than you can sell 19 it to anybody else -- and he paid one of your 20 salespersons out of his own money because he loved 21 that coach, right, $5,000, you think that that -- 22 Trans-West believes that that's Trans-West's money? 23 A. Absolutely. 24 Q. And that is the basis of your claim? 25 A. The basis of our claim is for any 108 1 kickback money that was paid to our employee. 2 Q. Because I want to make sure that I'm 3 clear that it's not because he was somehow induced to 4 do this -- because you're saying that that doesn't 5 matter and you're saying -- right? You're saying it 6 doesn't matter whether he was induced or not. 7 MR. CAGE: Objection. Form. 8 A. If he is paying him, he is inducing him. 9 In my opinion, it is inducement. 10 Q. (BY MR. FALBE) If you got paid $100,000 11 more on an RV than you ever possibly could have hoped 12 for, how is that an inducement? 13 MR. CAGE: Objection. Asked and 14 answered. 15 You may answer. 16 A. We got 100,000 and he paid him 10,000. 17 That probably means that we could have sold it to 18 somebody else for 610-, so he didn't pay top dollar 19 for it. 20 Q. (BY MR. FALBE) Then what if he paid 620- 21 for it? 22 A. Same thing. 23 Q. You understand you're chasing something 24 that's not out there? 25 MR. CAGE: Objection. Form of the Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 18 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 28 (Pages 109 to 112) 109 1 question. Argumentative. 2 You may answer. 3 A. I understand that when somebody pays a 4 bribe to a salesperson in our company, it's wrong. 5 Q. (BY MR. FALBE) Okay. 6 A. And if somebody is paying a bribe, that's 7 money that should have been paid to the company. 8 Q. Okay. How much -- what's the highest fee 9 that Newmar has ever paid to a salesperson at 10 Trans-West? 11 A. I don't know. We gave you that document 12 last week. I didn't really look at it. 13 Q. Would it surprise you if it was $5,000? 14 A. It could be. 15 Q. Why isn't that money Trans-West's money? 16 A. Because that's got nothing to do with the 17 sale price of that vehicle. What that 5,000 does is 18 it induces a salesman to go out and sell it and to 19 make more money for the company, not to give money 20 away. 21 Q. Didn't this incentive also provide an 22 avenue for Trans-West to get rid of all of its 23 underwater inventory? 24 A. At a loss? 25 Q. You were already at a loss. They didn't 110 1 make you buy these RVs. Southwest didn't make you buy 2 these RVs. Southwest was buried in losses. 3 A. Southwest paid -- 4 Q. I'm sorry. Trans-West was buried in 5 losses and Southwest solved your problem. 6 A. Really? Well, that's your opinion. 7 We'll let a court determine what problem they solved. 8 Q. Just to be clear, you're saying that it 9 doesn't matter what the amount of the price is, that 10 this wasn't an inducement. You're saying that if 11 there was ever a payment, no matter what the amount -- 12 A. I didn't say that it wasn't an 13 inducement. It was an inducement. It's always an 14 inducement, in my opinion. If somebody is bribing our 15 people to do something, it is an inducement. I don't 16 care if we lose money or if we make money, it's still 17 an inducement. 18 Q. But I said if you could sell that for -- 19 an RV for $600,000 and it was worth $500,000 and 20 Southwest paid a fee to Jeff Mullins, that that is 21 somehow wrong? That Trans-West is owed that money 22 because you could have sold it for 620-? 23 MR. CAGE: Objection. Form. 24 Argumentative. He's already answered the question. 25 Q. (BY MR. FALBE) Was that your testimony? 111 1 MR. CAGE: You may answer. 2 A. What you keep arguing about is really the 3 basis of this lawsuit. I think the Court will decide 4 that. 5 Q. (BY MR. FALBE) That's not how this 6 works. I'm asking you, is that your testimony? 7 A. You've asked me how many times and I've 8 answered how many times? 9 Q. Okay. 10 A. You don't like the answer I gave you. 11 Q. If you sold it for $100,000 and Southwest 12 paid $10,000 more, you're saying that that is -- that 13 that money is still Trans-West's money? 14 MR. CAGE: We're not answering again. He 15 answered that question 15 times today alone. He 16 answered it in his personal deposition. You're just 17 arguing with him. If you've got some facts you want 18 to ask him about, ask him about them. We're done 19 answering that question. 20 MR. FALBE: Jim Cage just apparently on 21 the record told me that he testified in his personal 22 knowledge. 23 Q. (BY MR. FALBE) Are you saying now that 24 everything in your personal testimony should be 25 attributed to Trans-West? 112 1 A. Did I say that? 2 Q. Are you saying that? 3 A. No, I'm not saying that. 4 Q. Why not? Are you the president of 5 Trans-West? 6 A. Yes. 7 Q. When you speak, do you speak for 8 Trans-West? 9 A. Yes. 10 Q. Is there anybody that would somehow 11 override you? 12 A. Possibly my wife. 13 Q. With respect to business issues? 14 A. Possibly. 15 Q. Which issues would those be? 16 A. It could be any. 17 Q. Are you aware that you are including on 18 Exhibit 36 kickback amounts on transactions where 19 Trans-West made a profit? 20 A. Yes. 21 Q. And on transaction 11 where Trans-West 22 made a profit? 23 A. Yes. 24 Q. And on 15 where it made a profit? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 19 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 30 (Pages 117 to 120) 117 1 Q. (BY MR. FALBE) Is that the end of your 2 answer? I don't want to interrupt. 3 A. You can talk to any wholesaler in the 4 world, you can talk to any dealer in the world that I 5 know of that I've ever dealt with and they would all 6 know it's wrong. 7 Q. And have you combined all of these 8 experts and provided, like, copies of testimony or 9 affidavits from them? 10 A. Of everybody in the world? 11 Q. That's what you said. 12 A. They're out there. I mean, you can go 13 ask them. 14 Q. This is your case. You need to prove 15 this. 16 A. And we will, and I'm pretty confident of 17 that. 18 Q. I'm asking you what you provided to us, 19 because our discovery deadline is fast approaching, of 20 any evidence that my client knew that this was not 21 allowed at Trans-West, that paying Mr. Mullins was not 22 allowed. 23 A. We'll provide witnesses. 24 Q. Are you saying that you're holding back 25 witnesses and that you haven't provided them yet? 118 1 MR. CAGE: Objection. It would be 2 subject to expert testimony, which hasn't been -- 3 there is no deadline -- 4 Q. (BY MR. FALBE) Other than expert 5 testimony, is there anybody else? 6 A. It will be expert testimony. 7 Q. Other than expert testimony? 8 A. I'm not sure. 9 Q. You're not sure? 10 A. I don't know what your deadlines are. 11 Q. I'm just asking you if there is anybody 12 that I need to ask that has knowledge about -- like my 13 clients' knowledge of these matters. 14 MR. CAGE: Objection. Form. 15 You may answer. 16 A. I haven't given you any names, no. 17 Q. (BY MR. FALBE) Is there any e-mail that 18 said -- between Mr. Mullins and the defendants 19 indicating that Trans-West did not allow for these 20 fees to be paid? 21 A. Are there any e-mails to anybody saying 22 that Trans-West did not allow these payments to be 23 made? Is that what you asked? 24 Q. Right. 25 A. I'm not aware of any. 119 1 Q. Do you have a copy of Mr. Mullins' 2 computer? 3 A. I do not. 4 Q. Does Trans-West have a copy of 5 Mr. Mullins' computer? 6 A. We have the computer. I don't know if 7 we've actually gotten anything off of it or not. 8 MR. CAGE: Another witness is designated 9 to talk about records produced, I believe, 10 Mr. Stenseth. 11 Q. (BY MR. FALBE) Are there any text 12 messages between the defendants and Mr. Mullins 13 somehow conspiring to lower the prices or pay 14 kickbacks? Do you have any evidence of that? 15 A. I think Mark has the details on the 16 computer. 17 Q. I'm not asking about the storage of the 18 computer. I'm asking if Trans-West has provided any 19 evidence of communications between the parties, 20 between Mullins and the defendants? 21 A. I don't know. 22 Q. Are there any affidavits that indicate 23 that my client knew about this unwritten policy? 24 A. Not that I'm aware of. 25 Q. You testified previously that you have a 120 1 handbook that prohibits Trans-West employees receiving 2 gifts; is that correct? 3 A. Yes. 4 Q. And you believe that the payments made 5 from Southwest to Mullins violated this policy; is 6 that correct? 7 A. They didn't violate the policy on a gift. 8 They're a kickback, which violates our policy, yes. 9 Q. Is it the gift policy or is there a 10 specific gift kickback policy that I'm not aware of? 11 A. I think it's in the same context. 12 Q. Did we talk about this in your previous 13 testimony? 14 A. Yes. 15 Q. Okay. And did you testify previously 16 that neither of the defendants received a copy of the 17 handbook? 18 A. I don't believe they did. 19 Q. And did you previously testify that 20 neither of the defendants -- that the same book -- I'm 21 sorry. Let me rephrase. 22 Did you previously testify that this 23 handbook isn't generally made aware to the public? 24 A. It's not. 25 Q. Okay. Are you aware that on Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 20 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 31 (Pages 121 to 124) 121 1 transaction -- and I'm looking on Exhibit 36 -- on 2 transaction 17, Trans-West actually broke even? 3 A. I see that. 4 Q. And on transaction 21, Trans-West broke 5 even? 6 A. 21? Yeah, we broke even and there was a 7 kickback of 12,000, so in effect, we would have made 8 12,000. 9 Q. But on your list, on your gross profit 10 list, it shows that you broke even; is that correct? 11 A. Yes. 12 Q. Okay. On the gross profit that you show 13 on -- that Trans-West shows on its attorney-prepared 14 document, it also shows a break-even on items 22, 25, 15 29, 38, 43 and 45. I'm happy to go slower if you 16 would like me to. 17 A. Why don't you. 18 Q. Okay. Does it show that Trans-West broke 19 even on 22? 20 MR. CAGE: Do you want to look at the 21 bigger copy? 22 A. I have trouble reading this. 22, yes, 23 I'll acknowledge that it was break even. 24 Q. (BY MR. FALBE) How about 25? Break even 25 on that one? 122 1 A. 22 was a break-even with a -- am I 2 reading this right -- $26,500 kickback? 3 Q. I'm just asking about the gross profit 4 number. 5 A. I see both of them, so I'm -- 6 Q. I'm asking you only about the gross 7 profit. 8 A. Okay. 9 Q. Are you able to understand my questions? 10 I just want to make sure. I'm asking about the gross 11 profit number. Are we clear on what I'm asking? 12 MR. CAGE: Which number? 13 THE DEPONENT: 21. 14 MR. CAGE: 21 or 25? 15 MR. FALBE: I'm now on 25. He's 16 confirmed 17, 21 and 22. I'm on 25. 17 Q. (BY MR. FALBE) Does it show a gross 18 profit of zero? 19 A. Well, not really. 20 Q. Oh, okay. So the gross profit column 21 doesn't show zero, zero? 22 A. It does. 23 Q. Okay. 24 A. But there is another column. 25 Q. Okay. Tell me about that. 123 1 A. So to break even, we wrote off $12,691. 2 Q. Okay. We'll talk about that in a minute, 3 but on this sheet it says that it broke even, right? 4 I didn't prepare it. I'm just saying it says that, 5 right? 6 A. Yeah. On our individual deal transaction 7 for that unit, we showed it at break even. 8 Q. Okay. You might want to talk about 9 whether the Colorado Rockies are opening today. You 10 might want to talk about the weather or your ski trip, 11 but that's not what this is about. I'm going to ask 12 you specific questions and I need you to answer those 13 specific questions. 14 MR. CAGE: I'm going to take exception to 15 that. You're arguing with the witness about the 16 Rockies game and all kinds of stuff. He has answered 17 every single question you've asked. All you're doing 18 is being argumentative with the witness. Just ask a 19 question. 20 Q. (BY MR. FALBE) I'm talking about the 21 gross profit line on this spreadsheet. Do you 22 understand that? Do you see that? 23 A. I see it. 24 Q. Okay. I'm asking, does the gross profit 25 line on item 29 indicate zero? 124 1 A. It does. 2 Q. Does item 38 also indicate zero? 3 A. It does. 4 Q. Does item 43 also indicate zero? 5 A. Yes. 6 Q. Does 45 also indicate zero? 7 A. I can't answer that. 8 Q. Oh, I'm sorry. That was my mistake. 9 A. You made a mistake? 10 Q. I did. 11 A. I'm sorry. 12 Q. 44? 13 A. 44 is zero. 14 Q. Out of the 44 transactions listed, 15 Trans-West broke even or made a profit on 28 out of 16 the 44 transactions; is that correct? 17 A. I would have to go through and add it up. 18 I would also have to see if we had written it down to 19 get there, so . . . 20 Q. Okay. On 22 out of 44 of the 21 transactions, this sheet shows that there is a 22 gross -- that Trans-West either made a gross profit or 23 broke even, in that column. 24 A. In that column? Possibly. 25 Q. Possibly or yes? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 21 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 35 (Pages 137 to 140) 137 1 Q. And what's the gross profit on that? 2 A. 6,976. 3 Q. And on No. 4? 4 A. After a $21,730 write-off. 5 Q. But just the gross profit, right? So on 6 the number of days on -- 7 A. Well, you're asking me what the gross 8 profit is. This sheet indicates the gross after 9 write-off, so . . . 10 Q. Okay. Are you telling me that this sheet 11 is inaccurate? 12 A. No. It's very accurate. 13 Q. Okay. 14 A. It's just you're not able to interpret 15 it. 16 Q. I'm not able to interpret it? 17 A. No. 18 Q. So how would you -- what do you think is 19 the best way to interpret it? 20 A. Well, you're asking me about gross 21 profits and a write-off and a loss after 196 days. 22 Okay? The loss is a combination of the write-off and 23 the gross profit. That's my true loss. So if you 24 want to talk about what we have lost and what we 25 decided to do at 196 days, that's the amount. 138 1 Q. So in order to calculate what you're 2 considering your true loss, you would have to take 3 whatever the gross profit amount is and then you would 4 have to add in the write-off amount? 5 A. Yes. 6 Q. Is that your understanding or testimony 7 today? 8 A. Right. 9 Q. And you believe this report was prepared 10 accurately? 11 A. Yes. 12 Q. You've reviewed it -- Trans-West has 13 reviewed it? Not you personally. 14 A. Right. 15 Q. It's been reviewed. It's accurate, 16 right? 17 A. Yes. 18 Q. Okay. So on item No. 5, does the number 19 of days indicate 280 days in inventory? 20 A. You skipped 4. 21 Q. I'll go to 4. Okay. I'll go to 4. On 22 4, does it indicate 264 days? 23 A. Yes. 24 Q. And a gross profit of -- you lost $3,579? 25 A. Correct. 139 1 Q. And on No. 5, 280 days? 2 A. Yep. 3 Q. Way more than you were -- way more than 4 150 days in inventory, right? 5 A. Yes. 6 Q. No. 6, 269 days; is that right? 7 A. That's right. 8 Q. No. 7, 216 days; is that right? 9 A. That's right. 10 Q. Okay. This must be a typo. On No. 8, it 11 says 388 days. Is that right? 12 A. No idea. 13 Q. Is it possible that Trans-West would hold 14 a unit for 388 days? It's over a year. 15 A. Yeah. 16 Q. What was Trans-West waiting for? 17 A. Don't know. 18 Q. Maybe it was waiting for Southwest to 19 come in and offer them some money for their aging 20 inventory. 21 MR. CAGE: Objection. Argumentative. 22 You may answer if you know. 23 A. To my knowledge, we were never sitting 24 waiting for Southwest. 25 Q. (BY MR. FALBE) Do you have information 140 1 about the trades or sales of these vehicles other than 2 what's on this sheet? 3 A. No. 4 Q. Okay. Could anybody else have purchased 5 this RV? I mean, was Trans-West diligently trying to 6 sell this RV for 388 days? 7 A. Well, according to Jeff Mullins, he was, 8 yeah. In many cases, it may have been that it was 9 aged. It was in the fall and he says, Hey, we're 10 going to hold this thing until spring, you know, when 11 the market comes back. 12 Q. Was Andrew Lyons in the hospital? 13 MR. CAGE: Objection. Argumentative. 14 You don't have to answer that. 15 Q. (BY MR. FALBE) Was Andrew Lyons in the 16 hospital? 17 MR. CAGE: You don't have to answer that. 18 It's just an argument. 19 MR. FALBE: It's not an argument. 20 MR. CAGE: Sure it is. 21 A. He's been in the hospital. What day do 22 you want to talk about? 23 Q. (BY MR. FALBE) During the 388 days, was 24 he in the hospital? 25 A. Was it that entire time? No. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 22 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 36 (Pages 141 to 144) 141 1 Q. Was he on vacation? 2 A. He takes vacations. 3 Q. Okay. Was he the general manager and 4 overseeing the RV operations of Trans-West during this 5 period of time? 6 A. Yes. 7 Q. Was Mark Stenseth your CFO at the time? 8 A. He was. 9 Q. And you were still the president, right? 10 A. Still. 11 Q. Okay. I mean, back then you didn't take 12 a hiatus or anything, right? 13 A. Not that I recall. 14 Q. Okay. And on No. 9, 282 days. Over 150, 15 right? 16 A. That's right. 17 Q. 236 days for No. 10; is that right? Is 18 that right? 19 A. That's right. 20 Q. So to summarize, 1 through 10 have all 21 been in inventory well over 150 days and were back-end 22 transactions? 23 A. Yeah. 24 Q. Item No. 11 is our first front-end 25 transaction and it shows the number eight days; is 142 1 that correct? 2 A. No. 11? Yeah. 3 Q. What does the gross profit show? 4 A. 5,744 before kickbacks. 5 Q. Item 12, 284 days; is that right? 6 A. Yes. 7 Q. 13, 231? 8 A. Yes. 9 Q. 14, 3. Please look at the gross profit 10 amount, $5,000. 11 A. Sold it for $5,000 and the kickback was 12 only 6,250. They could have doubled their money on 13 that one. 14 Q. Or you might not have made the sale, 15 right? 16 A. We probably wouldn't have made the sale 17 to Southwest. 18 Q. Who would you have made the sale to? 19 A. Some legitimate operation. 20 Q. Why didn't you ask legitimate operations 21 to bid on these? 22 A. I wasn't the guy doing it. It was Jeff 23 Mullins. 24 Q. Okay. Who are the legitimate wholesalers 25 out there that you would call -- that you call today 143 1 now that you've cleaned up your act? What are the top 2 five wholesalers? 3 A. I don't know. 4 Q. How do you not know? Your whole claim is 5 that Southwest was some disreputable wholesaler. 6 A. I don't know, because I don't involve 7 myself in the day-to-day transactions of this 8 business. 9 Q. But your job was to come prepared to talk 10 about the claims that you've alleged against my 11 client. 12 A. I'm talking about that and I wasn't to 13 bring a list of our current wholesalers. 14 Q. But you're saying that my client, the 15 defendants, were doing something wrong. I want to 16 know what wholesalers you're now dealing with that are 17 not doing it wrong that are doing it right. 18 MR. CAGE: An answer to that question 19 isn't required, because it's not a designated topic. 20 It's not part of the claims because we're not claiming 21 lost profits. It's not part of the claims. He's 22 telling you what he knows and you're deposing him, but 23 it's not part of the claims. It's not part of the 24 30(b)(6) deposition. You're just asking questions off 25 the cuff. 144 1 Q. (BY MR. FALBE) Do you not know? 2 A. I do not know the names of the current 3 wholesalers, no. 4 Q. Just back up. I want to make sure I 5 understand. You've testified that this division has 6 lost $2 million a year for five years, $10 million, 7 and yet you're not paying attention to who you're 8 wholesaling your RVs to? 9 A. Me personally? 10 Q. I'm asking if Trans-West is paying 11 attention. 12 A. Trans-West is. Me personally, no. 13 Q. Okay. Who would know the answer to that? 14 A. Andrew Lyons will. 15 Q. Andrew Lyons. I can't wait until he gets 16 here. 17 No. 15, number of days, does that show 18 258? 19 A. Yes. 20 Q. 16, 185? 21 A. Yes. 22 Q. 17, 200? 23 A. That's right. 24 Q. All of these are back-end transactions, 25 right? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 23 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 37 (Pages 145 to 148) 145 1 A. Yes. 2 MR. CAGE: Objection. Form. You've 3 mentioned two that weren't, at least. 4 Q. (BY MR. FALBE) So items 14 through 17 5 are back-end transactions, right? 6 A. No. 7 Q. Which ones were? I'm sorry. 15 through 8 17; is that correct? 9 MR. CAGE: Could you restate the 10 question? 11 Q. (BY MR. FALBE) Were 15 through 17 back- 12 end transactions? 13 A. Yes. 14 Q. No. 18, 95 days. This is our first one 15 that is not a front-end or back-end transaction so far 16 on this list; is that correct? 17 A. That's a back-end transaction. 18 Q. Okay. Why do you think it's a back-end 19 transaction? 20 A. Well, it's 95 days. 21 Q. 95 days. Okay. So is 95 your number, 22 not 150? 23 MR. CAGE: Objection. Form. 24 You may answer. 25 A. A front-end transaction is when you make 146 1 the deal. A back end is when it's done after that. 2 Q. (BY MR. FALBE) Got it. On No. 19, 3 seven days; is that right? 4 A. Yeah. 5 Q. This must be another typo on No. 20. 6 Does that say 321 days? 7 A. It does. 8 Q. Everybody was still working there. There 9 wasn't some catastrophe, right? 10 A. That's right. 11 Q. As the president, do you ever look at 12 these inventory lists? 13 A. I do. 14 Q. Why didn't you tell somebody to go out 15 and sell all of these? 16 A. We did. 17 Q. And it just didn't happen? 18 A. Didn't happen. 19 Q. Did you pick up the phone and call a 20 wholesaler? 21 A. No. 22 Q. All these conventions that you go to, did 23 you pick up other dealers? 24 A. We directed Jeff Mullins to get rid of 25 them. 147 1 Q. Did Andrew Lyons do anything? 2 A. He worked with him, yeah. 3 Q. Did Andrew Lyons oversee him? 4 A. Yes. 5 Q. And if you directed him to do this at 6 150 days, why didn't it happen for 300 or 200 or 321? 7 MR. CAGE: Objection. It's not part of 8 the claims. It's not part of the 30(b)(6) 9 designations. It has nothing to do with the claims or 10 damages in this case. 11 A. Why didn't it happen? 12 Q. (BY MR. FALBE) Why didn't Andrew just 13 tell him to sell everything? Why didn't he just do 14 it? 15 A. He was instructed to do it and it didn't 16 happen. 17 Q. And Andrew Lyons oversees Jeff Mullins, 18 right? 19 A. Yes. 20 Q. And you oversee Andrew Lyons? 21 A. Yes. 22 Q. Why didn't you make a change of the 23 general manager? 24 A. It was my discretion not to. 25 Q. No. 22 is 23 days? 148 1 A. And I don't think that changing a general 2 manager would have corrected the problems that we had 3 with Jeff Mullins. We should have changed Jeff 4 Mullins. 5 Q. If you had had a new general manager, 6 wouldn't they have found out that Jeff Mullins was 7 doing this? 8 A. Would they have fired Jeff Mullins 9 quicker? 10 Q. Yeah. 11 A. Possibly. 12 Q. Wouldn't that have saved you a bunch of 13 money and eliminated all of this? 14 A. No, it wouldn't have eliminated all of 15 it. 16 Q. Why? If you had a competent general 17 manager in there and they would have known the value 18 of these and would have managed your inventory, you 19 wouldn't have sold 95 percent of -- or almost all of 20 these to Southwest, because they wouldn't have been in 21 your inventory. 22 MR. CAGE: Objection. Form. 23 Speculation. 24 A. It's hard to say what you would have done 25 without Jeff Mullins. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 24 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 38 (Pages 149 to 152) 149 1 Q. (BY MR. FALBE) But Andrews Lyons hired 2 Jeff Mullins, right? 3 A. He did. 4 Q. And supervised him? 5 A. Yes. 6 Q. And you hired him, too? 7 A. Yes. 8 Q. Because you make all personnel decisions? 9 A. Right. 10 Q. Did the defendants hire them? Did the 11 defendants hire -- 12 A. The defendants did not hire Jeff Mullins. 13 They just paid him. 14 Q. Okay. Did the defendants hire Andrew 15 Lyons? 16 A. No, but they didn't pay him either. 17 Q. No. 24 is 16; is that right? 18 A. Yeah. 19 Q. 25 is 177; is that right? Is that right? 20 A. I'm still looking at 24. 21 Q. Okay. I'm sorry. What number are you 22 on? 23 A. I was just studying 24 trying to figure 24 out why we sold it to Southwest in 16 days and took a 25 $60,000 hit on an up-front deal. 150 1 Q. For which one? 2 A. 24, but we can move on. 3 Q. On 23, it's 111 days; is that right? 4 A. Are you going back to 23? 5 Q. What number are we on? 6 A. We were on 24. 7 Q. Okay. So let's do 25. 177 days; is that 8 right? 9 A. Yeah. 10 Q. 26 is 220 days? 11 A. Yes. 12 Q. 27 is, again, 321; is that right? 13 A. Yeah. 14 Q. Again, no catastrophe that prevented 15 people from actually doing their jobs, right? 16 A. No. 17 Q. Okay. 28, 313 days? 18 A. Yeah. 19 Q. Here is a front-end one, 29, seven days. 20 It's a front-end transaction. It looks like 21 Trans-West broke even, right? 22 A. Yeah. 23 Q. Then we go to 30, 332 days. Do you see 24 that? 25 A. Yes. 151 1 Q. After 332 days of owning an RV, it looks 2 like your gross profit, even without write-offs, you 3 only lost $20,000. That doesn't seem too bad, does 4 it? 5 A. No. 6 Q. 31, eight days. Break even; is that 7 right? 8 A. Yeah. 9 Q. 32, 252 days; is that right? 10 A. That's correct. 11 Q. Gross profit of 18,000-and-change; is 12 that right? 13 A. That's right. 14 Q. That's pretty good. I don't even know 15 how you did that. 16 33, 16 days. You made a gross profit of 17 10,000. Good for you. 18 No. 34, three days, $6,000 profit. 19 No. 35, 17 days, 3,537.40 gross profit; 20 is that right? 21 A. That's right. 22 Q. Are all of these numbers correct? 23 A. I would have no reason to believe that 24 they're not. 25 Q. Now, you said that Moye White compiled 152 1 these, right? 2 A. Yes. 3 Q. You said they compiled them based upon 4 what information? 5 A. Information that we supplied them. 6 Q. Financial information, right? 7 A. Yes. 8 Q. Okay. Is it Trans-West's policy to 9 provide the purchase price to a wholesaler, 10 Trans-West's purchase price? 11 A. To a wholesaler? 12 Q. Yeah. 13 A. I would guess a lot of times they would 14 probably tell them what they got in them. 15 Q. Would they publish their cost? 16 A. Publish it? 17 Q. Does Trans-West tell -- did Trans-West 18 tell Southwest the cost of their unit? 19 A. In this case, I would say quite likely 20 they do, yeah. 21 Q. Is that a policy that if you pick -- if 22 Trans-West picks up the phone and wants to wholesale a 23 unit, it tells them what their cost is? 24 A. It's not a policy. 25 Q. Why not? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 25 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 41 (Pages 161 to 164) 161 1 MR. CAGE: He has landed and is in town. 2 MR. FALBE: Great. 3 Q. (BY MR. FALBE) Mr. Eidsness, what 4 policies does Trans-West disclose to wholesalers? 5 A. None that I'm aware of. 6 Q. You don't disclose any policies to 7 wholesalers? 8 A. Not that I'm aware of. 9 Q. Does it disclose how much profit or loss 10 it has on an RV transaction? 11 A. It could, but it's not policy. 12 Q. Would it be reasonable to expect a 13 wholesaler to know how much Trans-West purchased an RV 14 for? 15 A. Would it be reasonable for a wholesaler 16 to know what Trans-West purchased an RV for? Is that 17 the question? 18 (The last question was read back as 19 follows: "Would it be reasonable to expect a 20 wholesaler to know how much Trans-West purchased an RV 21 for?") 22 A. No. 23 Q. (BY MR. FALBE) Would it be reasonable to 24 expect a wholesaler to know the cost Trans-West 25 invested in an RV? 162 1 A. No. 2 Q. Would it be reasonable to expect a 3 wholesaler to know how many days in inventory 4 Trans-West had an RV? 5 A. No. 6 Q. Would it be reasonable to know if 7 Trans-West -- would it be reasonable for a wholesaler 8 to know if Trans-West had floored an RV? 9 A. No. 10 Q. When I say "floored," you understand that 11 to mean financed with a floor plan, right? 12 A. I do, yes. 13 Q. Would it be reasonable to expect a 14 wholesaler to know the amount of curtailments that 15 were made on a floor plan? 16 A. No. 17 Q. Would it be reasonable for a wholesaler 18 to know any amounts that were due on any loan that 19 Trans-West had with respect to its inventory? 20 A. No. 21 Q. Would it be reasonable for a wholesaler 22 to know whether a manager received a commission on a 23 wholesale transaction? 24 A. No. 25 Q. When I said that, I mean a Trans-West 163 1 manager. Does your answer change at all? 2 A. No. 3 Q. Would it be reasonable for a 4 wholesaler -- I'm sorry. I'm going to rephrase. 5 Would it be reasonable to expect a 6 wholesaler to know where an RV at Trans-West had been 7 stored? 8 A. No. 9 Q. Would it be reasonable for a wholesaler 10 to know if Trans-West had displayed an RV out of 11 state? 12 A. No. 13 Q. Would it be reasonable for a wholesaler 14 to know the terms and conditions of Trans-West's 15 employee handbook? 16 A. No. 17 Q. Do you have any evidence the defendants 18 knew any of these policies? 19 A. No. 20 Q. You testified that you believe that 21 you're in a partnership with the manufacturers of RVs 22 that you sell; is that correct? 23 A. Yes. 24 Q. Even though it's not memorialized by a 25 partnership agreement, right? 164 1 A. That's correct. 2 Q. It's called a dealer agreement; is that 3 right? 4 A. Yes. 5 Q. Do you believe that you have the same 6 partnership with Southwest? 7 A. No. 8 Q. Would you describe it as sort of an 9 adversarial relationship? 10 A. It shouldn't be adversarial. 11 Q. But a wholesaler doesn't have the same 12 type of partnership with Trans-West; is that correct? 13 A. That's correct. 14 Q. When Trans-West sold vehicles -- the RVs 15 to Southwest, did it consider it to be a wholesale 16 transaction? 17 A. Yes. 18 Q. Did Trans-West consider Southwest to be a 19 wholesale dealer? 20 A. Yes. 21 Q. Is Trans-West aware that a wholesale 22 dealer in Arizona is only allowed to sell to a dealer? 23 A. No. 24 Q. Is it your policy to try to comply with 25 all laws? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 26 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 43 (Pages 169 to 172) 169 1 Q. Trans-West engages in wholesale 2 transactions, right? 3 A. Which we can do as a dealer. 4 Q. Okay. 5 A. I don't know what a wholesale dealer's 6 license encompasses in the state. 7 Q. But if a wholesale dealer sold an RV to 8 you, do you believe that they would be reasonable to 9 rely that you were licensed? 10 MR. CAGE: Did you finish the question? 11 I'm sorry. I didn't know you finished the question. 12 Object to the question for form and foundation. Calls 13 for a legal conclusion and it's outside of the scope 14 of the 30(b)(6), but you may answer if you know. 15 A. As far as I know, a wholesaler could sell 16 a unit to anyone in the state of Colorado. They 17 wouldn't have to be a licensed dealer. 18 Q. (BY MR. FALBE) So you think that a 19 wholesale dealer in Colorado can sell to anybody? 20 A. I'm saying a wholesale dealer from 21 outside of the state of Colorado could probably sell a 22 unit to an individual in the state of Colorado. 23 Q. How about a Colorado wholesale dealer, 24 could they sell to somebody -- anybody in the state of 25 Colorado? 170 1 MR. CAGE: Same objection. 2 You may answer. 3 A. I haven't read that law. 4 Q. (BY MR. FALBE) Is it a practice that 5 you -- to know the laws that deal with motor vehicles? 6 MR. CAGE: Same objection. 7 A. With retail, yes. 8 Q. (BY MR. FALBE) Does Trans-West only do 9 retail transactions? 10 A. We're a retail dealer and we -- and under 11 the retail dealer's license in the state of Colorado, 12 we can do new, used and we can wholesale. We don't 13 have a separate license to do that. 14 Q. Trans-West doesn't make a very big effort 15 to comply with the law, does it, or to know the law, 16 does it? 17 MR. CAGE: Objection. Form. 18 Speculation. Not speculation, I'm sorry. 19 Argumentative. 20 You may answer. 21 A. We do attempt to know the law that deals 22 with us, yes. 23 Q. (BY MR. FALBE) You're alleging 24 violations of my client of the law, right? 25 MR. CAGE: Same objection. 171 1 A. Of the law? 2 Q. (BY MR. FALBE) Yeah. 3 A. I'm alleging that he bribed our employee 4 to do business with him. 5 Q. Do you think that that's against any 6 statute? 7 MR. CAGE: Same objection. 8 A. You know, that's under investigation. 9 I'll wait and see. 10 Q. (BY MR. FALBE) You filed a claim 11 referencing a statute, so I don't think this is a 12 mystery. Do you not understand the claim that you 13 filed? 14 MR. CAGE: Same objection. 15 A. Is there a statute against using 16 kickbacks in the state? 17 Q. (BY MR. FALBE) You are not answering my 18 questions at all. 19 MR. CAGE: You didn't ask a very good 20 question, that's why I object to the form. You may 21 ask it again. 22 MR. FALBE: I'm going to remind Mr. Cage 23 again about coaching the witness. 24 MR. CAGE: I'm not coaching the witness. 25 MR. FALBE: And that this would be 172 1 sanctionable. 2 A. Restate your question. 3 MR. CAGE: You're wrong about that, and 4 I'm not coaching the witness and it was a bad 5 question. I'm objecting to the form of the question. 6 MR. FALBE: I'm going to reiterate to 7 Mr. Cage -- 8 MR. CAGE: You don't have to reiterate. 9 I understand the rules. 10 MR. FALBE: -- that interrupting the 11 examination by counsel except to determine whether to 12 assert a privilege is unallowed and abusive conduct 13 subject to sanctions. Every time you interrupt me, 14 I'm going to cite the rule to clarify the record so 15 that we can cover our sanctions. 16 MR. CAGE: I'm glad you're going to do 17 that because you're wasting your own time. 18 Q. (BY MR. FALBE) How much effort does 19 Trans-West make in order to comply with the licensing 20 and regulatory requirements to operate a motor vehicle 21 dealership? 22 A. I would say we take as much effort 23 necessary to do it. 24 Q. As much effort? The most? 25 A. Yeah. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 27 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 44 (Pages 173 to 176) 173 1 Q. On a scale of 1 to 10, 1 being low like I 2 care about it not very much and 10 being I care about 3 it the highest amount? 4 A. 10. 5 Q. You're a 10? 6 A. Yeah. 7 Q. Okay. But you don't know what the 8 regulations are with respect to a wholesaler in the 9 state of Colorado; is that correct? 10 MR. CAGE: Objection. Form. Foundation. 11 Legal conclusion. 12 You may answer. 13 A. I haven't paid attention to what exactly 14 a wholesaler can do. I know if a guy is going to 15 wholesale, he has to have a license. Who he can sell 16 to, if he can sell retail or not, I am not familiar 17 with that. 18 (Deposition Exhibit 44 was marked.) 19 Q. I hand you Exhibit 44. I'll refer you to 20 Exhibit 44, Colorado Revised Statute 12-6-102. Please 21 turn to Section 18. It reads -- do you see where it 22 reads, "'Wholesaler' means a person who, for 23 commission or with intent to make profit or gain of 24 money or other thing of value, sells, exchanges, or 25 offers to negotiate a sale, lease or exchange of an 174 1 interest in new or new and used motor vehicles solely 2 to motor vehicle dealers or used motor vehicle 3 dealers"? 4 MR. CAGE: Is there a question? 5 Q. (BY MR. FALBE) Do you see that section? 6 A. I do. 7 Q. Do you actively try to comply with this? 8 A. I don't know how -- what we have to do to 9 comply with it. We're not a wholesale dealer. 10 Q. Do you think that wholesalers rely on 11 Trans-West to be licensed when they sell you a 12 vehicle? 13 MR. CAGE: Objection. Form. Foundation. 14 Speculation. Calls for a legal conclusion. Outside 15 the scope of the 30(b)(6). 16 You may answer. 17 A. I would assume that they would, yes. 18 Q. (BY MR. FALBE) Do you think Southwest 19 relied on the fact that you were licensed when they 20 sold you vehicles? 21 MR. CAGE: Same objection. 22 A. I could only assume. 23 Q. (BY MR. FALBE) Would it be reasonable 24 for Southwest to assume that Trans-West was licensed 25 when they sold Trans-West vehicles? 175 1 MR. CAGE: Same objection. 2 A. I would expect him to assume that. 3 Q. (BY MR. FALBE) I would like to draw your 4 attention back to Exhibit 40, which is the amended 5 complaint and jury demand. 6 A. Excuse me. What was that? 7 Q. Exhibit 40. It is the amended complaint 8 and jury demand. Do you have that document in front 9 of you? 10 A. Yes. 11 Q. Please turn to paragraph 28. It says, 12 "As part of the Repair Scheme, Mullins, on behalf of 13 Transwest would purchase a certain RV from one of the 14 Buyers. After purchasing the RV, Mullins would direct 15 other Transwest employees to repair and refurbish the 16 RV at Transwest's expense. After the repairs and 17 refurbishments were completed, Mullins would sell the 18 RV to another one of the Buyers, at no profit or at a 19 loss to Transwest." Do you see that? 20 A. I do. 21 Q. Do you have any evidence that Defendants 22 communicated with Mullins about the alleged repair 23 scheme? 24 A. That the defendants consulted with 25 Mullins over it? 176 1 (The last question was read back as 2 follows: "Do you have any evidence that Defendants 3 communicated with Mullins about the alleged repair 4 scheme?") 5 A. No. 6 Q. (BY MR. FALBE) Please direct your 7 attention to paragraph 33. It reads, "In or around 8 December of 2014, Southwest transported a" -- and it 9 has a VIN number, the Dynamax -- "(the 'Vehicle') to 10 Transwest for the purpose of selling it to a potential 11 third party customer." 12 Do you see that? 13 A. Yes, I do. 14 Q. Was this a consignment transaction? 15 A. I believe it is. I don't know what the 16 exact agreement was between Mullins and him. 17 Q. Please direct your attention to 18 paragraph 35. It says -- are you there? 19 A. I'm there. 20 Q. Okay. Do you see where it says, 21 "Southwest authorized Transwest to perform repairs and 22 refurbishment on the Vehicle. Transwest incurred 23 $26,702.03 in costs making the repairs and 24 refurbishment." 25 Do you see that? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 28 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 45 (Pages 177 to 180) 177 1 A. I do. 2 Q. Do you have any evidence that -- did 3 Trans-West provide a written estimate of the repairs? 4 A. I don't believe they did. I don't know. 5 MR. CAGE: I would just point out, too, 6 that Mr. Lyons -- 7 MR. FALBE: Objection. Objection. 8 MR. CAGE: I would just point out, too, 9 that Mr. Lyons is designated to testify on this topic, 10 but -- 11 MR. FALBE: Objection. This is coaching. 12 This is exactly -- this is the definition of 30.3. 13 MR. CAGE: Can I finish my statement? 14 Mr. Lyons is designated to testify on that subject. 15 I'm not coaching the witness. Mr. Lyons is here in 16 town ready to testify on that subject. So it's 17 outside of the scope of the 30(b)(6). That's all I'm 18 saying. 19 MR. FALBE: It's not outside the scope of 20 the 30(b)(6). 21 MR. CAGE: It's not outside the scope of 22 the 30(b)(6), you're right. I apologize. It's 23 outside the scope of what he's been designated to 24 testify to concerning the 30(b)(6). 25 MR. FALBE: Is Mr. Eidsness listed in the 178 1 30(b)(6)? 2 MR. CAGE: I'm allowing him to testify. 3 I'm just saying Lyons is here to give you better 4 detail. 5 MR. FALBE: "The factual basis for each 6 material allegation, affirmative defense or denial 7 asserted by Trans-West in any pleading in this action 8 or in the state court action against Jeff Mullins." 9 MR. CAGE: And item No. 12 says, "The 10 repair as approved and performed on the Dynamax." 11 Q. (BY MR. FALBE) Please answer the 12 question. 13 MR. CAGE: Andrew Lyons is designated and 14 he's exactly who we designated to testify about it, 15 but I'm allowing him to testify. 16 MR. FALBE: Please read back the answer. 17 (The last answer was read back as 18 follows: "I don't believe they did. I don't know.") 19 Q. (BY MR. FALBE) Is it because you don't 20 know or they didn't? 21 A. I don't know. 22 Q. Are the defendants located in Arizona? 23 A. Yes. 24 Q. Do you have any record of Trans-West 25 e-mailing a written estimate to the defendants? 179 1 A. You know, when I looked at this thing, I 2 was told that Andrew was going to answer these 3 questions. I did not investigate what went on with 4 this particular one, so I don't really know. 5 Q. That's okay. It's part of your 6 complaint, so I'm asking you: Does Trans-West have a 7 copy of an e-mail of a written estimate that was sent 8 to Southwest? 9 A. And my answer is I don't know if we do or 10 not. 11 Q. Okay. Do you -- does Trans-West have a 12 copy of a fax that was sent from Trans-West to 13 Southwest authorizing the repairs? 14 A. Same answer. I don't know. I wasn't 15 involved in it. 16 Q. Are you aware that Colorado requires 17 this? 18 A. Yes. 19 Q. Did you not testify just a little bit ago 20 that on a scale of 1 to 10, 10 being the very highest 21 of complying with the law, that Trans-West is at the 22 very highest level? 23 A. Yes. 24 Q. And so if Trans-West didn't comply with 25 what would be a very basic requirement that you would 180 1 have to provide for every single transaction, that 2 would be far below a 10, wouldn't that be right? 3 A. I don't know that we didn't follow that 4 here. I don't know that it was Jeff Mullins -- I know 5 it was Jeff Mullins that ordered these repairs and he 6 was doing it on behalf of the defendant. The 7 defendant is paying him money at that time, so I would 8 assume that he probably had conversations with him and 9 he probably was authorized to do it. 10 This isn't a retail order. This is a 11 repair order done on a unit that's in our possession 12 in which apparently -- which they had an agreement on 13 a consignment basis. It's not the same as a customer 14 coming in off the street wanting some work done. 15 Q. Are you saying that this law doesn't 16 apply to this transaction? 17 MR. CAGE: Objection. Form of the 18 question. Calls for a legal conclusion. 19 You may answer if you know. 20 A. I'm saying that there was probably a 21 repair authorization done by someone, possibly the 22 defendant, possibly Jeff Mullins. I don't know. 23 Q. (BY MR. FALBE) A written authorization? 24 You believe there is a written authorization for the 25 repairs that were done? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 29 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 46 (Pages 181 to 184) 181 1 A. Not a written, no. 2 Q. Do you believe that the law requires a 3 written authorization? 4 A. Not for us internally, no. 5 MR. CAGE: Objection. Form. Foundation 6 and legal conclusion. 7 Q. (BY MR. FALBE) Does Trans-West have a 8 policy of requiring written authorization before 9 repairs are being made? 10 A. Not internally. 11 Q. You have none? 12 A. No. We have internal POs that are 13 supposed to be used. They're not always used. Our 14 sales manager can walk in the shop and order work to 15 be done. 16 (Deposition Exhibit 45 was marked.) 17 Q. I'm handing you what has been marked as 18 Exhibit 45. Do you recognize this document? 19 A. No. 20 Q. Have you ever seen this document? 21 A. I may have seen a copy of it. Let me 22 read it. 23 MR. CAGE: Is there a question pending? 24 MR. FALBE: I asked if he recognized this 25 document and he was reviewing it. 182 1 Q. (BY MR. FALBE) Have you seen this 2 document before? 3 A. I believe I've seen a copy of this. 4 Q. So you are familiar with the document? 5 A. I'm getting familiar with it now. 6 Q. Are you aware of the claim that's being 7 made in here? 8 A. Right now I am, yeah. 9 Q. Maybe I would like to clarify that. Are 10 you familiar with the demand that's being made there? 11 A. I've read it, yes. 12 Q. Have you made yourself aware of Colorado 13 Revised Statute 42-9-104? 14 A. If that's the repair -- Motor Vehicle 15 Repair Act, yes. 16 Q. Oh, so you have made yourself aware of 17 that? 18 A. I understand it. 19 Q. Okay. So do you understand that this 20 particular requirement requires a written 21 preauthorization for repairs? 22 MR. CAGE: Objection. Legal conclusion 23 and form. 24 You may answer. 25 A. I think that's what's being disputed 183 1 here. 2 Q. (BY MR. FALBE) Did you make any payments 3 according to this demand? 4 A. No. What's being disputed here, I think, 5 is did Mr. Mullins, which we believe he did, order 6 these repairs? 7 Q. Mr. Eidsness, I'm going to ask you to 8 answer the question that I asked. 9 MR. FALBE: Can you please read back the 10 question? 11 (The last question was read back as 12 follows: "Did you make any payments according to this 13 demand?") 14 A. No, I don't believe so. 15 Q. (BY MR. FALBE) Do you understand that if 16 fees aren't paid under here that it would allow for 17 treble damages? 18 MR. CAGE: Objection. Form of the 19 question. Legal conclusion. 20 You may answer if you know. 21 A. I did not understand that they were 22 subject to treble damages, no. 23 Q. (BY MR. FALBE) Did you look -- did 24 Trans-West make any calls about this particular 25 letter? 184 1 A. They probably did. I'm not aware if they 2 did or not. 3 Q. So a $54,000 claim with treble damages, 4 $150,000, roughly, claim, doesn't even hit your radar 5 screen? You don't have any knowledge about this? 6 A. No. 7 Q. Okay. Who would? Is this an Andrew 8 Lyons question? 9 A. He would have been directly involved with 10 it, yes. 11 Q. I am going to now hand you what is going 12 to be marked as Exhibit 46. 13 (Deposition Exhibit 46 was marked.) 14 Q. Do you see this is a condition report? 15 A. That's what it says on the top. 16 Q. And is this for the same vehicle that's 17 referenced in the complaint, referred to as "the 18 Vehicle" in paragraph 33 and referenced throughout the 19 complaint? 20 A. It appears to be. 21 Q. Do you see the date of the report at the 22 top that indicates it was done November 3 of 2014? 23 A. Yes. 24 Q. Do you know who performed this condition 25 report? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 30 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 49 (Pages 193 to 196) 193 1 Q. Did Trans-West disclose to Southwest -- 2 MR. CAGE: Could he finish his answer? 3 MR. FALBE: He did. 4 MR. CAGE: No. He was mid-sentence. 5 A. That's all right. 6 Q. (BY MR. FALBE) Did Trans-West disclose 7 to Southwest whether Trans-West was making or losing 8 money on a transaction? 9 A. I couldn't answer that. That would have 10 been a conversation between Jeff Mullins and him. I 11 don't know. 12 Q. Do you have any evidence that any 13 representative from Trans-West disclosed to Southwest 14 whether Trans-West was making or losing money? 15 A. I don't. 16 Q. Does Trans-West disclose whether it's 17 making or losing money to its customers when it sells 18 an RV? 19 A. Occasionally, yes. 20 Q. As a regular practice or policy? 21 A. I suppose if the conversation leads to 22 that, we would answer that question per customer, yes. 23 Q. So if I came in and bought an RV from you 24 and I asked you, Hey, how much are you making on this 25 RV, you would tell me? Not me, because you don't like 194 1 me, but somebody else. 2 A. We probably would. Most of our RV buyers 3 already know what our costs are, so it's not a big 4 secret. 5 Q. So do you remember when we asked you to 6 disclose all policies and procedures with respect to 7 sales, do you think that this would have been a 8 disclosure item? 9 MR. CAGE: Objection. Calls for a legal 10 conclusion. 11 You may answer. 12 Q. (BY MR. FALBE) The defendants asked 13 Trans-West to describe all its policies and procedures 14 with respect to selling RVs. Was this disclosed? 15 A. Was it disclosed that we might tell a 16 customer the cost? 17 Q. Yeah. 18 A. I don't know if it was or not. 19 Q. But you testified that it's part of your 20 policy. 21 A. No, I didn't testify to that. You asked 22 a question. You asked the question would I tell you? 23 Q. Is it your policy to tell -- 24 A. It's not our policy, no. 25 Q. Okay. Is it your policy to tell dealers 195 1 whether you make or lose money on a transaction? 2 A. It's not our policy, no. 3 Q. Is it your policy to tell other 4 wholesalers, other than Southwest, whether you make or 5 lose money on transactions that you enter into with 6 them? 7 A. No. 8 Q. Please direct you attention to 9 paragraph 44 of Exhibit 40. It says, "Defendants 10 obtained Transwest's property by theft. Specifically, 11 Defendants knowingly obtained Transwest's property by 12 deception and intended to permanently deprive 13 Transwest of the use or benefit of its property." 14 Do you see that? 15 A. I do. 16 Q. And the sole property we're talking about 17 are the checks; is that right? 18 A. At this point. 19 Q. I've been very clear about whether you 20 intend to make additional claims, and you have said 21 no. And I've asked you if you're gaming this trying 22 to dismiss claims so that it's not discoverable. I 23 want to be very clear that we're only talking about 24 the checks? 25 A. And I told you there is an ongoing 196 1 investigation, and at this point, I don't know if 2 there was additional cash, and if that's discovered, 3 then you'll owe us more money. 4 Q. But it's only checks? From a category, 5 only checks, is that the sole basis of the claim? 6 A. Yes. 7 Q. Okay. And you said that Jeff Mullins was 8 authorized to sell RVs; is that correct? 9 A. That is correct. 10 Q. And the checks were written from 11 Southwest's bank account; is that correct? 12 A. The checks to Mullins? 13 Q. Correct. 14 A. Yes. 15 Q. Has Trans-West provided any evidence that 16 any other party was willing to pay more for the same 17 RV that was sold to Southwest? 18 A. Not that I'm aware of, especially since 19 we amended the claim and dropped the lost profits 20 portion of it. 21 Q. So when you say "amended the claim," that 22 has a specific meaning for me. What does it mean for 23 you? 24 A. That we weren't going after Southwest for 25 lost profits -- Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 31 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 50 (Pages 197 to 200) 197 1 Q. Okay. 2 A. -- on the sale of the units. 3 Q. This amended claim still has it, right? 4 A. I don't believe so. 5 Q. There isn't another -- there isn't a 6 second amended claim that's out there in the works 7 that I'm not aware of, right? 8 A. I don't believe so. 9 Q. Okay. I just want to be sure. 10 Please direct your attention to 11 paragraph 47 where it says, "Defendants made false 12 representations of material fact concerning their 13 purchases from Transwest, the Kickback Scheme, and the 14 Repair Scheme." 15 Do you see that? 16 A. Yes. 17 Q. Exactly what false representations did 18 Southwest make or the defendants make? 19 Are you thinking, or do you understand 20 the question? 21 A. I'm reading this. 22 Q. Mr. Eidsness, what false statements did 23 the defendants make? 24 A. I'm trying to think about that. 25 Q. It's not readily available, is it? 198 1 A. No. 2 MR. FALBE: Please let the record reflect 3 that -- how long has it taken for Mr. Eidsness to 4 answer? Minutes? 5 Q. (BY MR. FALBE) Can you name all the 6 false representations that were made by the 7 defendants? 8 A. Not at this time, no. 9 Q. Look at paragraph 48. "Defendants made 10 these representations knowing them to be false." 11 Do you see that? 12 A. Yes. 13 Q. What evidence does Trans-West have that 14 Southwest knew about the falsity of these statements 15 that you can't even come up with? Is this question 16 moot now because we can't come up with any false 17 statements? 18 A. I'm sure we have them. I'm just not 19 recollecting exactly what they are. 20 Q. You're just not willing to describe them 21 to the defendant that is defending the case? 22 MR. CAGE: Objection to the form of the 23 question. 24 A. If I come up with them, I'll certainly 25 tell them. 199 1 Q. (BY MR. FALBE) Do you think it would be 2 a good idea to come up with whatever the false 3 statements were before you filed the complaint? 4 A. I'm sure we have some false statements. 5 I just can't tell you exactly what they are right now. 6 Q. You think you have evidence that 7 defendants knew about the falsity of those statements, 8 too? 9 A. Well, if they made them, I would say so, 10 yes. 11 Q. Do you understand the difference between 12 the two? 13 A. Making them and knowing if they were? I 14 think so. 15 Q. Okay. Who is going to be able to tell me 16 about those? Because this is why I'm here today. 17 A. I would assume that Andrew Lyons would. 18 Q. I'm not assuming, because you're the 19 president and you're designated as the person to 20 defend the underpinnings of each material claim. I 21 believe this is a material claim. 22 I want to know who is going to tell me, 23 because right now I don't have a false representation 24 and I don't have any knowledge that my client knew of 25 them. 200 1 A. I will just tell you that Andrew Lyons 2 will. 3 Q. Yeah. Look at No. 49. "Defendants made 4 these representations with the intent that Transwest 5 and others would rely on these representations." 6 What evidence does Trans-West have that 7 Southwest knew that Trans-West would rely on these 8 statements? 9 A. I don't know. I would have to look into 10 it. 11 Q. No. 50, "Transwest and others relied on 12 Defendants' representations." 13 What evidence does Trans-West have that 14 Southwest actually relied on these false statements? 15 A. Well, I guess one thing is they signed a 16 buyers order saying they were going to purchase a 17 particular unit from us for X number of dollars. We 18 had to believe that when they did that, signed the 19 order and they were buying it that's what they were 20 purchasing it for. 21 In fact, they were purchasing it for more 22 than that. They were paying our employee money on the 23 side, a kickback, which was over and above what it was 24 represented on a purchase order that was signed by 25 your defendant. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 32 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 51 (Pages 201 to 204) 201 1 Q. That's it, though, the purchase order? 2 A. That's one thing, yes. 3 Q. Okay. During Andrew Lyons' testimony, 4 previous testimony, he alluded to the fact that 5 Trans-West might be setting up Jeff Mullins and 6 monitoring him. Do you know anything about that? 7 A. Setting him up and monitoring him? I 8 would have to know the time frame that he was talking 9 about. 10 Q. Are you aware of Trans-West ever setting 11 up Mr. Mullins and monitoring his activities? 12 A. We may have during the investigation. 13 Q. When did that happen? 14 A. I don't know. I know the investigation 15 was ongoing when we started getting information. He 16 probably started to monitor his phone conversations or 17 something. I'm not aware at this time exactly what 18 was done. I'm sure that he started paying more 19 attention to his activities. 20 Q. Did Mr. Lyons started monitoring Jeff 21 Mullins as early as 2014? 22 A. Not that I'm aware of. 23 Q. If you could please look at Exhibit 42. 24 A. What is that? 25 Q. Please look at Exhibit 42. 202 1 A. My question is, what is it? 2 Q. I'm sorry. It's Andrew Lyons' 3 deposition. 4 A. Okay. 5 Q. So starting on page 118 at the bottom -- 6 take your time flipping through there. Let me know 7 when you get there. It says, "So from the fall of 8 2014, you were in charge of approving all sales?" 9 Do you see that? That was my question on 10 lines 22 and 23. Do you see that? 11 A. Yes. 12 Q. And his response on line 24 is, "Yeah. I 13 looked at every one of them." 14 And I asked, "Every single one of them?" 15 And he said, "Yeah." 16 I asked, "So you had the opportunity to 17 evaluate whether this was a good deal or a bad deal, 18 right?" 19 And he said, "Uh-huh." 20 And I asked, "And you exercised your 21 professional judgment and you decided that was -- that 22 all transactions to sell RVs was a good deal, 23 correct?" 24 And he said, "No, I didn't say that." 25 And my question was, "But you had to 203 1 authorize them, right?" 2 And he answered, "Yes, but I did not say 3 that it was a good deal." 4 And I asked, "Then why would you enter 5 into something that was a bad deal?" 6 And he answered, "Because I was 7 monitoring Jeff." 8 Was Trans-West monitoring Jeff Mullins 9 and setting him up from the fall of 2014? 10 MR. CAGE: Objection. Form. 11 You may answer. 12 A. I don't know exactly what he meant by 13 monitoring him. He was watching his deals. I don't 14 know. 15 Q. (BY MR. FALBE) You testified he had to 16 approve all the deals and he had authority to and was 17 directed to do so. That's what it says, right? 18 A. Yes. 19 Q. And then he said, "Well, maybe I didn't 20 really, you know, approve these deals. I was 21 monitoring him to see if he would make bad deals." 22 MR. CAGE: You're talking about -- 23 MR. FALBE: Mr. Lyons -- 24 MR. CAGE: -- Mr. Lyons' testimony. 25 Okay. 204 1 Q. (BY MR. FALBE) Why would Trans-West -- 2 was Trans-West actively setting up Mr. Mullins at this 3 time? 4 A. Setting him up? 5 Q. Were they monitoring his transactions 6 from the fall of 2014? 7 A. Monitoring to do what? Look at his sales 8 profits or what are you talking about? Describe 9 "monitoring." 10 Q. I mean it just the way I said it. 11 A. You could monitor his activity. You 12 could monitor his performance. 13 Q. Well, here it looked like he was 14 monitoring the efficacy of the RV transactions. This 15 is your general manager that you hand selected. This 16 is his testimony, Trans-West's general manager that 17 you're the president of. I'm asking you what he 18 meant, because he said he did it under your direction. 19 MR. CAGE: I'm going to object to the 20 question for form and foundation. 21 Q. (BY MR. FALBE) So I'm asking you -- 22 MR. CAGE: I'm objecting to form and 23 foundation. It's also outside the scope of the 24 30(b)(6) notice. 25 You may answer if you know. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 33 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 54 (Pages 213 to 216) 213 1 understand this. You're saying that defendants' 2 actions interfered with Trans-West's right to control 3 the RVs that eventually got sold to Southwest; is that 4 right? 5 A. Yes. 6 Q. How did it seriously interfere with 7 Trans-West's rights? 8 A. With the payment of funds, with bribes, 9 kickbacks. 10 Q. Just the payment of funds? 11 A. Yes. 12 Q. Please look at paragraph 57. 13 "Defendants' actions have caused injuries, losses, and 14 damages to Transwest." 15 Would it be accurate to summarize, so I 16 don't have to ask you a thousand questions, that 17 you're limiting now your damages with respect to this 18 to just the checks that were written from Southwest to 19 Mullins? 20 A. Yes. 21 Q. And that's the sole evidence that you 22 have with respect to your losses -- Trans-West's 23 losses on this claim? 24 A. Yes. 25 Q. Please look at paragraph 59. Do you see 214 1 where it says, "Defendants and others, including but 2 not limited to Mullins, agreed by words and conduct to 3 accomplish an unlawful goal or to accomplish a goal 4 through unlawful means." 5 Do you see that? 6 A. Yes. 7 Q. What unlawful goal did Southwest have? 8 A. To purchase an RV from Trans-West by 9 paying Mullins a kickback. That's kind of the basis 10 for this. 11 Q. Any others? 12 A. I would say it primarily all revolves 13 around paying him to sell a unit at a reduced price or 14 selling a unit that we hadn't sold to someone else. 15 That's what it is. At this point, it's measured by 16 the amount of the checks. 17 Q. Look at paragraph 60 where it says, "One 18 or more unlawful acts were performed to accomplish the 19 goal or one or more acts were performed to accomplish 20 the unlawful goal, including, but not limited to, 21 theft, fraud, conversion, and breach of fiduciary 22 duty." 23 Please list all unlawful acts that were 24 performed by Southwest -- I'm sorry -- the defendants. 25 A. Well, there is 44 here. 215 1 Q. When you say "here," are you referring to 2 a certain exhibit? 3 A. 36. There is not a total of -- I would 4 have to add up the total. You want the number? 5 Q. No. Let me help. Would it be fair to 6 summarize that the transactions listed on Exhibit 36 7 would be all of the unlawful acts that you're claiming 8 that Defendants undertook? 9 A. 36 and 38. 10 Q. And that would be a fair characterization 11 that everything is listed on 36 and 38 -- Exhibits 36 12 and 38? 13 A. Yes. 14 Q. Okay. On paragraph 61 it says, 15 "Transwest suffered damages and losses that were 16 caused by the acts performed by Defendants to 17 accomplish this goal." 18 Would it be a correct summary to say that 19 those losses are limited to the amount of the checks 20 described on Exhibits 36 and 38? 21 A. The losses aren't limited to that, but 22 we've reduced our claim for that. 23 Q. The losses -- all I care about are the 24 losses in this litigation. So with respect to this 25 particular claim, the losses that you're claiming 216 1 under this particular paragraph, are those limited to 2 what you have labeled kickback checks from Southwest 3 to Mullins on Exhibits 36 and 38? Would that be 4 correct? 5 A. Yes. 6 Q. 63, "Defendants acquired property and 7 other assets of Transwest by aiding and abetting a 8 breach of fiduciary duty, conspiracy, fraud, theft, 9 and other unconscionable acts." 10 Do you see that? 11 A. Yes. 12 Q. With respect to acquired property and 13 other assets of Trans-West, is that limited to the 14 checks listed at -- the checks paid from Southwest to 15 Mullins that are listed on Exhibits 36 and 38? 16 A. Yes. 17 Q. Please read paragraph -- look at 18 paragraph 67. Does it read "Defendants entered into 19 an oral contract with Transwest whereby Southwest 20 promised to pay for certain repairs and refurbishments 21 that it authorized to be performed by Transwest on the 22 Vehicle"? 23 Do you see that? 24 A. Yes. 25 Q. Is it your testimony that you're not Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 34 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 55 (Pages 217 to 220) 217 1 aware of any written authorization that was provided 2 by Trans-West to the defendants for these repairs? 3 A. That's correct. 4 Q. Or the refurbishment or any other claims 5 in this paragraph? 6 A. That is in writing? 7 Q. Yes. 8 A. No. 9 Q. Okay. As an owner of multiple vehicle 10 dealerships, are you familiar with the statute of 11 frauds? 12 MR. CAGE: Objection. Form. Legal 13 conclusion. 14 You may answer if you know. 15 A. Statute of frauds? Not specifically. 16 Q. (BY MR. FALBE) If I told you that the 17 statute of frauds had to deal with certain contracts 18 being in writing, would that refresh your memory? 19 MR. CAGE: Same objection. 20 You may answer if you know. 21 A. On the repair orders? Yeah. 22 Q. (BY MR. FALBE) Do you think it is 23 limited to repair orders, or do you think that there 24 is a law out there that says certain contracts have to 25 be in writing? 218 1 MR. CAGE: Same objection. 2 You may answer if you know. 3 And it's outside the scope of the 4 30(b)(6). 5 A. I don't know. 6 Q. (BY MR. FALBE) You don't know? 7 A. If there is other contracts that have to 8 be in writing? No. 9 Q. You've been in business for how many 10 years? I just want to refresh my memory. 11 A. 43. 12 Q. 43. 13 Please direct your attention to 14 paragraph 68. It says, "Transwest fully performed 15 its part of the contract." 16 Is this referring to the contract to 17 perform repairs and refurbishments? 18 A. Yes. 19 Q. It was provided after the fact? 20 A. What was -- 21 MR. CAGE: Objection to the form of the 22 question. 23 A. The contract was after the fact? 24 Q. (BY MR. FALBE) Well, you're saying that 25 there was a contract to make certain repairs, right? 219 1 A. Yeah. I think it was a verbal contract. 2 Q. A verbal contract. Please describe all 3 the terms of this verbal agreement. 4 A. Someone authorized our shop to do that 5 work. They didn't do it without authorization. 6 Whether it was your client or Jeff Mullins who was 7 being paid by your client that made that 8 authorization, somebody did. Our shop just doesn't 9 walk out and grab a vehicle and start doing work on it 10 that somebody hasn't ordered. So between the two of 11 them, someone has asked the shop to do that work. 12 Q. But in here on paragraph 68 it says, 13 "Transwest fully performed its part of the contract." 14 Please tell me how you -- what evidence you have that 15 it fully performed this verbal agreement. 16 A. We repaired it. 17 Q. By doing what? 18 A. I would have to look at the repair order. 19 Q. How do you know that that contains the 20 verbal agreement? 21 A. I don't. 22 Q. So you can't really testify that 23 Trans-West fully performed any part of the contract, 24 because you don't know what the terms were? 25 A. I don't. 220 1 Q. What evidence does Trans-West have that 2 the repairs that were allegedly made were actually 3 performed? 4 A. We have a repair order, parts tickets, 5 mechanic's time, all of the things that would be put 6 into a repair. 7 Q. Did you give copies of all of the -- did 8 you give all of the parts that were replaced? Did you 9 provide all of the parts that were replaced? 10 A. Did we provide -- 11 Q. Did Trans-West provide -- 12 A. I would assume that the parts were all 13 sourced from our parts department. 14 Q. All of the parts that were replaced, 15 meaning not used, taken off, right, were they provided 16 back to Southwest? 17 A. I don't know. 18 Q. Do you believe that that would be a 19 requirement? 20 A. Normally it's not, no. 21 Q. Do you believe it would be a requirement 22 if the parties had consented to that? 23 MR. CAGE: I couldn't hear you. 24 A. It's not a standard practice. 25 (The last question was read back as Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 35 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 56 (Pages 221 to 224) 221 1 follows: "Do you believe it would be a requirement if 2 the parties had consented to that?") 3 MR. CAGE: Thank you. 4 A. I mean, if a customer asks for the parts 5 back, we would save them for them, but that's not 6 normally -- it's not a normal procedure. 7 Q. (BY MR. FALBE) But you don't know what 8 the terms are because it was a verbal agreement, 9 right? 10 A. That's right. 11 Q. Paragraph 70 is, "As a result of 12 Defendants' breach, Transwest has suffered damages in 13 an amount to be proven at trial." 14 Do you know what those damages are? 15 A. No. 16 MR. CAGE: I will just point out 17 Mr. Lyons is designated to talk about this stuff. 18 Q. (BY MR. FALBE) Do you know that 19 Trans-West approached Southwest about purchasing some 20 of Trans-West's RV inventory? Let me rephrase. That 21 was a bad question. 22 Do you know how the relationship started 23 between Southwest and Trans-West? 24 A. I do not. 25 Q. Trans-West's handbook is the only written 222 1 policy that prohibits Trans-West employees from 2 accepting spiffs or payments; is that correct? 3 A. It's the only written policy, yes. 4 Q. And the defendants never received a copy 5 of the handbook; is that correct? 6 A. That's my testimony. 7 Q. And Trans-West acknowledges that they 8 allow their employees to accept spiffs from 9 manufacturers, right? 10 A. That's correct. 11 Q. And from finance companies? 12 A. That's correct. 13 Q. And third-party warranty companies? 14 That's a question. 15 A. I'm not -- 16 Q. -- sure about that one? 17 A. -- aware of the warranty. I know there 18 has been some through finance companies. Warranty, 19 I've never heard of it. 20 Q. Even though this violates Trans-West's 21 employee handbook; is that correct? 22 A. It does not. 23 Q. Did we talk about the judge in the 24 Mullins case indicating that there was a -- he thought 25 there was a violation of the terms of the employee 223 1 handbook? 2 MR. CAGE: Objection. Form. Foundation. 3 Outside the 30(b)(6). 4 You may answer. 5 Q. (BY MR. FALBE) Do you recall? 6 A. We had a discussion, yeah. 7 Q. Okay. Do you remember what the Court's 8 concerns were about accepting spiffs? 9 MR. CAGE: Same objection. 10 A. I don't recall exactly, no. 11 Q. (BY MR. FALBE) Do you recall generally? 12 A. I think the judge was confused on that 13 issue. 14 Q. But do you recall what the judge said? 15 A. Not verbatim, no. 16 Q. Okay. Trans-West has a policy of paying 17 spiffs or referral fees or kickbacks to third parties; 18 is that correct? 19 A. No, it's not. 20 Q. Trans-West has a policy of paying fees to 21 third parties for referrals; is that correct? 22 A. That's correct. Big difference between a 23 referral and a kickback. 24 Q. So a referral fee is more like a bribe? 25 No, that's not right. Sorry. That was meanspirited. 224 1 A. You're confused now. 2 Q. No. I was getting confused. Sometimes I 3 hear that from you. Trans-West does have a policy of 4 paying referral fees to third parties; is that 5 correct? 6 A. That's correct. 7 Q. And Trans-West does not check to see if 8 there is a prohibition against paying these referral 9 fees to that person's employer? 10 A. Paying a referral fee to an employer? I 11 don't know where we would be directly paying a 12 referral fee to someone's employer. 13 Q. You wouldn't. You would be paying it to 14 an individual. 15 A. That's not what you asked. 16 Q. Yeah, it is. The question I asked was -- 17 THE DEPONENT: Will you read that 18 question back, please? 19 (The last question was read back as 20 follows: "And Trans-West does not check to see if 21 there is a prohibition against paying these referral 22 fees to that person's employer?") 23 A. That's what you said. 24 Q. (BY MR. FALBE) That person's employer. 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 36 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 57 (Pages 225 to 228) 225 1 Q. So do you check with the individual -- 2 A. We don't pay a referral fee to a person's 3 employer. 4 Q. That's not the question. Do you pay a 5 referral fee to individuals? 6 A. We do. 7 Q. Okay. Does Trans-West check with that 8 individual's employer before paying it? 9 A. We have only done it a handful of times, 10 and I would say if we were going to pay one where we 11 thought there would be a conflict, we would check, but 12 I don't know that we've had that situation. 13 Q. Do you have a policy about checking 14 before a referral fee is paid? 15 A. Not a written policy, no. 16 Q. Exhibit 36. Does Trans-West have any 17 evidence that a third party was willing to pay more 18 than the price paid that were listed on the 19 transactions listed here that are numbered 1 through 20 44? 21 A. Written evidence? No. 22 Q. Okay. Did Southwest buy all of the RVs 23 that Trans-West wholesaled? 24 A. No. 25 Q. Why not? 226 1 A. There was other people that bought some. 2 I guess Southwest isn't the only one that has bribed 3 Jeff Mullins. 4 Q. I didn't hear that last part. 5 A. They are not the only ones that have 6 bribed Mullins and given him a kickback. 7 Q. Did Jeff Mullins -- did Trans-West sell 8 any RVs to wholesalers that did not involve bribes or 9 kickbacks that you're aware of? 10 A. Yes. 11 Q. To whom? 12 A. I don't have the names of them. We have 13 them. We can supply them, but I don't have that off 14 the top of my head. 15 Q. Great. Is it your testimony that it's 16 not -- do you believe that Southwest is the only 17 wholesaler that pays spiffs to dealership employees? 18 A. No. There is others. 19 Q. How many others? 20 A. Two. 21 Q. There are two others. What are the two 22 others? 23 A. I guess it's Christian Cecil and Ranger 24 RV. 25 Q. Anybody else that you know of? 227 1 A. No. 2 Q. That's it? 3 A. The only ones that we're aware of. 4 Q. So would it be fair to say that this 5 isn't -- this is isolated -- paying kickbacks to 6 dealership employees is isolated to at least these 7 two wholesalers that you're aware of? 8 MR. CAGE: Objection. Form. Foundation 9 and also outside the 30(b)(6), but you may answer. 10 A. Well, we know of three. 11 Q. (BY MR. FALBE) Is it two or three? 12 A. Three, total. 13 Q. Oh. Ranger, Southwest and Cecil; is that 14 correct? 15 A. Yes. 16 Q. I'm going to hand you what has been 17 previously marked as Exhibit 5. Do you recognize this 18 document that's labeled "Kickback Checks and 19 Transfers"? 20 A. Yes, I've seen this before. 21 Q. And was this prepared by your legal 22 counsel, Moye White? 23 A. I would assume so. 24 Q. If you look at page 5, do you see that 25 there is a summary of "Total Kickbacks by Dealers"? 228 1 A. Okay. 2 Q. Do you see Angelo RV, LLC? 3 A. Yes. 4 Q. Is that a kickback? 5 A. It appears, yes. 6 Q. BEJH LLC (Buelson, Texas), do you see 7 that? 8 A. Yes. 9 Q. Is that a kickback? 10 A. Yes. 11 Q. Christian Cecil, do you see that? 12 A. Yes. 13 Q. Was that a kickback? 14 A. Yes. 15 Q. Tiffany & Christian Cecil, is that a 16 kickback? 17 A. I think it's one and the same. 18 Q. Why is it listed differently here? 19 A. I don't know. It probably had two 20 different checking accounts or something. 21 Q. CMC truck & RV, Inc., is that a kickback? 22 A. Yes. 23 Q. T. Max & Wilma Davis, is that a kickback? 24 A. Yes. 25 Q. E&B Cars, Inc., is that a kickback? Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 37 of 39 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. GEORGE EIDSNESS - RULE 30 (b)(6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 59 (Pages 233 to 236) 233 1 A. No. 2 Q. Who else have you talked to in the 3 industry? 4 A. Oh, I've talked to people at North Trail 5 in Florida. Joe. 6 Q. Joe -- 7 A. I don't recall his last name. He's a 8 sales manager there. 9 Q. Anyone else? 10 A. You know, I was on a trip with about 11 15 other dealers and we all talked about it a lot, but 12 I can't give you the names of each one of them. 13 Q. Have they prepared sworn statements or 14 affidavits? 15 A. No, not that I'm aware of. 16 Q. If there were, you wouldn't be holding 17 those back from us, right? 18 A. I haven't asked them for them yet. I'm 19 sure they would give us statements if we want them. 20 Q. You know that we have been through our 21 discovery requests and we asked for all communications 22 about all of this stuff, claims and defenses and 23 things like before, and we haven't received any of it. 24 MR. CAGE: I will object that you have 25 not asked for this kind of information previously in a 234 1 30(b)(6) deposition, but he can answer to the best of 2 his ability. 3 A. I can tell you that almost every dealer 4 that communicates with me and throughout the U.S. 5 would bring this subject up, because it's pretty well 6 known and -- 7 Q. (BY MR. FALBE) How is it pretty well 8 known? 9 A. Oh, you don't keep stuff like this in the 10 RV industry a secret. It's -- 11 Q. How many people do you think do this? 12 A. That know about this suit? 13 Q. Not the suit. Know about it in general. 14 MR. CAGE: Objection. Form. 15 You may answer. 16 A. About what Mullins did? 17 Q. (BY MR. FALBE) How many dealerships are 18 you aware of that know that referral fees or spiffs or 19 kickbacks or whatever are paid to wholesalers? 20 MR. CAGE: Objection. Form. 21 A. Is your question how many dealers know 22 that a kickback is paid to a wholesaler? The ones I 23 talked to think it's highly unethical and illegal and 24 they don't allow it in their dealerships. I have 25 never talked to a dealer ever that would say they 235 1 would condone it. I don't have a bunch of guys that 2 say it's okay. I don't know anyone that thinks it's 3 okay. 4 Q. (BY MR. FALBE) The only unauthorized 5 exercise and control over property that you're 6 claiming in this lawsuit that was owned by Trans-West 7 are the checks that were written from Southwest's bank 8 account to Jeff Mullins; is that correct? 9 A. Yes. 10 Q. Is Trans-West aware that Southwest never 11 concealed the fact that spiffs were paid and issued 12 1099s for the same? 13 MR. CAGE: Objection. Form. 14 You may answer. 15 A. I've looked for those 1099s. I've never 16 seen them. They say they exist, but I've never seen 17 any proof of that. 18 Q. (BY MR. FALBE) Would it be helpful if I 19 provided a copy? 20 A. It would be very helpful. 21 Q. Would that dissuade your interest in this 22 particular litigation? 23 A. Not at all. 24 Q. Okay. Are you aware that Southwest 25 issued 1099s for every year except for the first year 236 1 because it was an $8,000 amount? 2 A. I'm not. 3 Q. Okay. Trans-West doesn't have any term 4 in any of its form contracts that prohibit paying a 5 kickback or a referral fee or a spiff or any other 6 kind of remuneration to any Trans-West employee; is 7 that correct? 8 A. We don't have -- 9 THE DEPONENT: Read that back to me. 10 (The last question was read back as 11 follows: "Trans-West doesn't have any term in any of 12 its form contracts that prohibit paying a kickback or 13 a referral fee or a spiff or any other kind of 14 remuneration to any Trans-West employee; is that 15 correct?") 16 A. I believe that's correct. 17 Q. (BY MR. FALBE) You believe that there 18 were terms that were outside the scope of the purchase 19 contracts between Trans-West and Southwest; is that 20 correct? 21 MR. CAGE: Objection. Form. Foundation. 22 Legal conclusion. Asked and answered. 23 You may answer. 24 Q. (BY MR. FALBE) I'm just trying to 25 refresh my memory. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 38 of 39 GEORGE EIDSNESS - RULE 30 (b)(6) 245 REPORTER'S CERTIFICATE STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) I, MARCHELLE HARTWIG, Certified Shorthand Reporter and Notary Public, ID 20014012312, State of Colorado, do hereby certify that previous to the commencement of the examination, the said GEORGE EIDSNESS was duly sworn by me to testify to the truth in relation to the matters in controversy between the parties hereto; that the said deposition was taken in machine shorthand by me at the time and place aforesaid and was thereafter reduced to typewritten form; that the foregoing is a true transcript of the questions asked, testimony given, and proceedings had. I further certify that I am not employed by, related to, nor of counsel for any of the parties herein, nor otherwise interested in the outcome of this litigation. IN WITNESS WHEREOF, I have affixed my signature this 12th day of April, 2016. My commission expires April 19, 2017. ___X__ Reading and Signing was requested. ______ Reading and Signing was waived. ______ Reading and Signing is not required. Case 1:15-cv-02233-RM-MJW Document 117-4 Filed 07/28/16 USDC Colorado Page 39 of 39 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 15-cv-02233-RM-MJW 3 _______________________________________________________ 4 DEPOSITION OF: GEORGE EIDSNESS - March 3, 2016 _______________________________________________________ 5 TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, 6 Plaintiff, 7 v. 8 SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, 9 Defendants. 10 _______________________________________________________ 11 PURSUANT TO NOTICE, the deposition of GEORGE EIDSNESS was taken on behalf of the Defendants 12 at 1200 17th Street, Suite 1900, Denver, Colorado 80202, on March 3, 2016, at 9:04 a.m., before 13 Marchelle Hartwig, Certified Shorthand Reporter and Notary Public within Colorado. 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 5 Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 1 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 15 (Pages 57 to 60) 57 1 Q. Do you know who did? 2 A. No. 3 Q. Interrogatory 14, "Describe and provide a 4 copy of all terms of all Dealer Agreements for the 5 past five years." Do you see that interrogatory? 6 A. Yes. 7 Q. Did you prepare the response below? 8 A. No. 9 Q. How many dealer agreements do you have? 10 MR. CAGE: Objection. Subject to the 11 protective order, you don't have to answer. 12 Q. (BY MR. FALBE) Interrogatory 15, 13 "Describe all compensation that any and all employees 14 received, whether that compensation was paid directly 15 by Plaintiff or indirectly by any other person, when 16 any product or service was sold by Plaintiff during 17 the last five years." 18 And the response below indicates that 19 TW 1760 to 1880 was provided. Do you see that? 20 A. Yes. 21 Q. Did you prepare that response? 22 A. No. 23 Q. Do you know who did? 24 A. No. 25 Q. Do you track items that have been 58 1 received by your employees? Do you track compensation 2 that your employees received that were not paid 3 directly by Trans-West? 4 A. Well, there shouldn't be any compensation 5 that isn't paid directly by us. 6 Q. And that's your statement that you're 7 aware of? 8 A. That I'm aware of, yeah. 9 Q. Are you aware that manufacturers pay 10 spiffs to salespersons? 11 A. Yes, but that goes through us, so we're 12 aware of that as part of their compensation. 13 Q. That's not what the question said. 14 MR. FALBE: Please read back the question 15 and response to Mr. Eidsness before, the preceding 16 question and response. 17 (The testimony was read back as follows: 18 Question: Do you track compensation that 19 your employees received that were not paid directly by 20 Trans-West?" 21 Answer: "Well, there shouldn't be any 22 compensation that isn't paid directly by us." 23 Question: "And that's your statement 24 that you're aware of?" 25 Answer: "That I'm aware of, yeah.") 59 1 Q. (BY MR. FALBE) So did you just give 2 testimony that all compensation is paid by Trans-West? 3 A. All -- you know, all salaries and earned 4 income is. If there is something paid by a 5 manufacturer, that could be outside of that, yeah. 6 Q. We didn't ask for salary information, 7 Mr. Eidsness. This request is specifically for 8 compensation. 9 A. Okay. What's your question? 10 Q. Are you aware -- I'm asking because there 11 is a contradiction in your testimony. 12 A. Okay. 13 Q. And this is part of the problem. I'm 14 asking you if your employees receive compensation from 15 anybody other than Trans-West. And at first you told 16 me no. Is that correct? 17 MR. CAGE: Objection to the form of the 18 question. 19 You can answer. 20 A. Yeah. I mean, I'm thinking of earned 21 income. 22 Q. (BY MR. FALBE) You understand that 23 manufacturers pay spiffs to your salespersons, right? 24 A. I do. 25 Q. Okay. Do you track those? 60 1 A. In some cases we may, in some cases not. 2 Q. In what cases do you track them? 3 A. Well, some of them they may run through 4 us so we know what the amounts are. I don't know if 5 we track all of them or not. 6 Q. Okay. I'm asking you which ones you 7 track. So the ones that they run through you, do you 8 track those? 9 A. You know, I can't answer that. I don't 10 know if we really keep a running total of it or not. 11 Q. Who does know? 12 A. I don't know if I have an individual that 13 would really know overall. Maybe a sales manager in a 14 particular case or -- 15 Q. I'm going to remind you that the question 16 was who would know what amounts are tracked? 17 MR. CAGE: He answered that. 18 A. I don't know. I don't know if we have 19 any particular person that would. We may. 20 Q. (BY MR. FALBE) Do you track amounts that 21 are paid by third parties to your employees? 22 A. I would say in some cases we may and some 23 cases we may not. Sales managers may be aware of 24 programs through the manufacturers. Whether they 25 would track it, I don't know. Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 2 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 16 (Pages 61 to 64) 61 1 Q. Do you understand that this case is 2 revolving around referral fees that were paid by 3 Southwest to an employee of yours? 4 A. This case is about kickbacks, not spiffs 5 or referrals. I don't see what spiffs and referrals 6 have anything to do with this case. 7 Q. Do you have a definition of kickback? 8 A. Yes. 9 Q. What's your definition of kickback? 10 A. It's a fraudulent inducement by a buyer 11 to a seller. 12 Q. That's sounds like a legal conclusion. 13 Are you a lawyer? A fraudulent inducement? 14 MR. CAGE: Objection. Form of the 15 question. Argumentative. Just ask a fact question. 16 MR. FALBE: I'm going to ask whatever 17 questions I want. You can object and your objection 18 is noted. 19 MR. CAGE: Thank you. 20 A. Am I a lawyer? No. 21 Q. (BY MR. FALBE) Okay. Do you know what 22 fraudulent inducement means? 23 A. My interpretation is -- yeah. 24 Q. What is it? 25 A. Compensating someone to make a fraudulent 62 1 act. 2 Q. Okay. And what's a fraudulent act? 3 MR. CAGE: Objection. Form. Legal 4 conclusion. 5 You may answer. 6 MR. FALBE: He apparently knows. 7 A. In my opinion, it's to buy something 8 under market or something that shouldn't be sold. 9 They're going to induce the salesperson to do 10 something that normally wouldn't be a good business 11 practice. 12 Q. (BY MR. FALBE) That's your definition of 13 fraudulent. Did you prepare the response indicated 14 below? 15 A. No. 16 MR. CAGE: Which response? "Indicated 17 below." 18 Q. (BY MR. FALBE) I'm sorry. Did you 19 prepare the response below Interrogatory 15? 20 MR. CAGE: Thank you. 21 A. No. 22 Q. (BY MR. FALBE) Do you know who did? 23 A. No. 24 Q. Interrogatory 16, "Describe the sale of 25 each vehicle purchased and sold by you in the past 63 1 five years including, without limitation, the amount 2 of profit or loss, the number of days the vehicle was 3 in inventory, and all vehicles taken as a trade-in for 4 each transaction." 5 Do you see that? 6 A. Yes. 7 Q. Do you think this is important 8 information? 9 A. No. 10 Q. Why not? 11 A. I think it should only be based on the 12 vehicles that we're talking about in this case. 13 Q. And why -- 14 A. We sell thousands of vehicles a year. 15 Q. And why would it only be based upon the 16 transactions that occurred with Southwest Luxury 17 Coach? 18 A. Well, what we do at our GMC store has no 19 bearing on this. What we do at our Freightliner store 20 has no bearing on this. What we did do at our trailer 21 store and manufacturing -- this RV business is a small 22 part of our business. 23 Q. Do you think that all of the sales in 24 your RV business would be relevant? 25 A. No. 64 1 Q. Why not? 2 A. I don't know what the sales price of new 3 would have to do with this, which is just involving 4 used. 5 Q. Okay. What if it was just used, do you 6 think that those would be relevant? 7 A. I don't know why. 8 Q. Are you aware that you're alleging lost 9 profits? 10 A. Yes. 11 Q. Are you aware that in order to calculate 12 lost profits, you would have to look at transactions 13 that don't involve these transactions between 14 Southwest and Trans-West? 15 A. We can look at that amount without 16 looking at each transaction. 17 Q. How could you do that? 18 A. We can look at gross profits. 19 Q. Okay. What were your gross profits last 20 year? 21 A. As a percentage? 22 Q. No. What were your gross profits in the 23 RV division for 2015? 24 A. I don't know. If you look at our -- 25 Q. You don't know? You're the owner of the Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 3 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 17 (Pages 65 to 68) 65 1 company and you don't know what the gross profits for 2 your RV division was in 2015? 3 A. Absolutely not. 4 Q. Why don't you know? 5 A. I oversee a lot of divisions and I don't 6 track it. 7 Q. Okay. Andrew Lyons testified that he 8 lost $1.5 million last year. 9 A. Okay. 10 Q. How would you have any lost profits when 11 you're losing $1.5 million a year? 12 A. It depends where the losses were. 13 Q. What about 2014? 14 A. What about it? 15 Q. How much did you lose then? 16 A. 2014, I don't recall. 17 Q. Have you ever made a profit in the RV 18 business? 19 A. I believe we have, yeah. 20 Q. Do you remember what year? 21 A. Probably 2010, '11. We made a profit, I 22 believe, the year prior to Jeff starting, or it was 23 about breakeven, I guess. 24 Q. Was it breakeven or was it a profit? 25 A. I would have to go back and look. It was 66 1 close to a breakeven. 2 Q. We'll talk about this, because I think we 3 have other testimony from your wife and you where you 4 indicated it's never made a profit. 5 A. I don't know. I would have to go back 6 and look at the records. 7 Q. Did you provide an expert report in the 8 Mullins case that indicated a profit and loss based 9 upon historical operations of the entity? 10 A. We may have. 11 Q. Okay. Did he look at all of the other 12 transactions that happened? 13 A. Did who? 14 Q. The expert that you provided that 15 published the report. 16 A. I don't know. 17 Q. Okay. You're saying that I'm not allowed 18 to look at any of the -- or that none of the other 19 transactions in the RV division are relevant to 20 calculating profit and loss? That's your contention. 21 We should only look at the transactions -- 22 A. That's not what you asked for. This was 23 a broad statement. 24 Q. But what I'm asking you was, are the 25 sales of used RVs -- that was the last question -- 67 1 relevant to calculating profit and loss? 2 MR. CAGE: Objection. Form. Foundation. 3 Calls for a legal conclusion. 4 You may answer if you know. 5 A. The sale of the other used units? 6 Q. (BY MR. FALBE) Correct. 7 A. Yeah. 8 Q. Okay. So those would be relevant, right? 9 A. Yes. 10 Q. Okay. Did you provide those? 11 A. I don't know if we have yet, no. 12 Q. Okay. I haven't received them. Do you 13 know why they weren't produced? 14 A. I don't think they were calculated, or 15 they weren't -- it wasn't defined as just those units. 16 Q. Okay. Let's look at Interrogatory 17, 17 "Describe if any claim was filed or tendered or in any 18 way communicated with any insurance provider, bond 19 company or any other company that might provide for 20 any indemnification for any loss in this matter, the 21 State Court Proceeding or any other matter identified 22 in Interrogatory 10 and the status of the same." 23 Do you see that interrogatory? 24 A. Yes. 25 Q. And do you see the second paragraph below 68 1 your objection where it says, "Transwest has insurance 2 coverage for employee dishonesty. A claim has been 3 submitted to Travelers Insurance, and that claim 4 acknowledged. However, the claim is under review and 5 no payment has been made to Transwest or any of its 6 affiliates"? Do you see that? 7 A. Yes, I do. 8 Q. Did you prepare that response? 9 A. No. 10 Q. Do you know who did? 11 A. No. 12 Q. Do you know if all of that information 13 has been provided? 14 A. I believe it has. 15 Q. Were you part of that production? 16 A. No. 17 Q. Do you know who was? 18 A. No. 19 Q. How do you believe that it's all been 20 provided? 21 A. I don't know. I'm assuming it has. 22 Q. Do you just make assumptions like that? 23 Do you just casually answer questions, or do you 24 answer questions precisely? 25 MR. CAGE: Objection. Argumentative. Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 4 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 18 (Pages 69 to 72) 69 1 You may answer. 2 A. I don't know. We stated we have a claim. 3 It's an ongoing deal. I don't think the total amounts 4 were calculated, you know, as we got into this case, 5 so where we are with it, I don't know at the time of 6 this. 7 Q. (BY MR. FALBE) This is asking you about 8 information provided to the insurance company. I 9 asked you if all of this information has been provided 10 to us. Not calculation of damages. That was the 11 question, and you answered that all of this 12 information has been provided even though you said 13 that you didn't order it to be provided. I'm asking 14 you how you have knowledge about this. 15 MR. CAGE: You have the information. 16 Go ahead, you may answer. 17 A. I'm assuming that you have it. 18 Q. (BY MR. FALBE) Okay. I don't want -- 19 during this deposition, I'm not asking for you to 20 assume. I'm asking you only about your personal 21 knowledge. Is that fair? 22 A. Okay. 23 Q. Okay. Do you have -- 24 A. I do not have knowledge if you have 25 actually received it or not. 70 1 Q. Okay. Do you have personal knowledge 2 about the status of this claim? 3 A. The insurance claim? 4 Q. Correct. 5 A. I know that it's been submitted and I 6 know we haven't been paid. 7 Q. Who submitted it? 8 A. Mark Stenseth. 9 Q. Have you ever submitted an insurance 10 claim before? 11 A. Personally? 12 Q. Or caused somebody to. Been involved 13 with an insurance claim that had been submitted? 14 A. We probably submit insurance claims on a 15 monthly basis. 16 Q. Okay. And how do you submit an insurance 17 claim? 18 A. I don't. 19 Q. Okay. How do you direct somebody? Do 20 you know the process by which you submit an insurance 21 claim? 22 A. No. We have people that do it. I'm not 23 involved with it. 24 Q. Have you ever heard of notice of a claim? 25 A. Notice of a claim? 71 1 Q. Right. Have you ever provided a notice 2 of a claim before or ever seen one provided on your 3 behalf? 4 A. No. 5 Q. Okay. Have you ever received a letter 6 from an insurance company indicating that there was 7 coverage or not coverage? 8 A. Personally? No. 9 Q. Okay. Have you ever seen a proof of loss 10 form that's been filed? 11 A. You know, I'm not involved with the 12 insurance in our business. 13 Q. Okay. You can just answer no. 14 A. Other people file it, so I don't see 15 them, no. 16 Q. Okay. Interrogatory 18, we've been 17 through this, "Please identify all persons responsible 18 for furnishing any materials or information to 19 complete any pleading." 20 It says that -- well, the response is 21 what it is. Did you provide this response? 22 A. No. 23 Q. Do you know who did? 24 A. No. 25 MR. FALBE: I think this is a good time 72 1 for a break. 2 (Recess taken, 10:39 a.m. to 10:47 a.m.) 3 MR. FALBE: Let's go back on the record. 4 Q. (BY MR. FALBE) Did you testify in the 5 hearing involving Jeff Mullins and Trans-West? 6 A. The one I spoke about earlier in Greeley? 7 Q. Correct. 8 A. Yes. 9 Q. And were you truthful and honest? 10 A. Yes. 11 Q. Have you reviewed that transcript? 12 A. I have not. 13 Q. Would you like to change any of your 14 testimony that you're aware of? 15 A. No. 16 Q. The description of the business that we 17 reviewed in the interrogatories, do you remember that, 18 the hierarchy of Trans-West being a holding company 19 and there were a bunch of subsidiaries? 20 A. Yes. 21 Q. Is that an accurate description of the 22 hierarchal structure of Trans-West? 23 A. Yes. 24 Q. Okay. During most of this, I'm going to 25 ask primarily about the RV business unless I designate Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 5 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 19 (Pages 73 to 76) 73 1 otherwise. So if I ask you about Trans-West's 2 business, I'm trying to refer to the RV business, but 3 from an expeditious perspective, if I have to say RV 4 business every single time, you know -- if you're ever 5 unclear, just ask me, but primarily I'm going to refer 6 to the RV business. 7 Which company operates Trans-West's RV 8 business? 9 A. It's Transwest Truck Trailer RV. 10 Q. Where are you located? Where is this 11 business located? 12 A. It's in Frederick, Colorado. 13 Q. Any other locations? 14 A. Grand Junction, Colorado. Belton, 15 Missouri. 16 Q. Fountain, do you have one in Fountain? 17 A. Not yet. 18 Q. That's in Colorado, right? 19 A. Yes. 20 Q. Can anyone sell RVs? 21 A. We have specific salespeople that 22 specialize in RVs. 23 Q. Do you need authorization from a 24 manufacturer to sell certain types of RVs? 25 A. Do we need authorization? 74 1 Q. Right. 2 A. On a deal-by-deal basis or -- 3 Q. Do you have to have a dealer agreement to 4 sell RVs made by certain manufacturers? 5 A. Yes. 6 Q. Are they provided on a manufacturer-by- 7 manufacturer basis? 8 A. Yes. 9 Q. Do you know how many of these dealer 10 agreements you have, Trans-West has? 11 A. Well, we have Newmar, Renegade, 12 Winnebago, Roadtrek, Emerald. I think that's it. 13 Q. Is that about five? 14 A. Is that what they added up to? 15 Q. I added five: Newmar, Renegade, 16 Winnebago, Roadtrek and Emerald? 17 A. Yeah. 18 Q. Okay. Any others that you can think of? 19 A. No. 20 Q. Do you sell used RVs? 21 A. Yes. 22 Q. On a percentage basis, how much do you 23 sell new versus used? 24 A. You know, I don't know those exact 25 numbers. I would guess that it's probably about 75 1 50-50. 2 Q. Okay. Do you provide service to RVs? 3 A. Yes. 4 Q. Do you provide F&I products? 5 A. Yes. 6 Q. Do you know what F&I stands for? 7 A. Yes. 8 Q. What does it stand for? 9 A. Finance and insurance. 10 Q. Are you aware that Andrew Lyons doesn't 11 know what F&I stands for? 12 MR. CAGE: Objection. Form of the 13 question. 14 You may answer. 15 A. I'm not aware of that. 16 Q. (BY MR. FALBE) How many of your 17 vehicles -- how many of your RVs that you sell are 18 financed? 19 A. I don't have those numbers. 20 Q. On a percentage basis -- do you have any 21 knowledge on a percentage basis how many are financed? 22 A. No. 23 Q. Can you tell me about the profitability 24 of your RV business? 25 A. As far as which part of it? 76 1 Q. Have you -- tell me about the 2 profitability on a year-by-year basis of the overall 3 RV business at Trans-West. 4 A. Overall or by store or -- 5 Q. Overall. 6 A. Overall we've lost money. 7 Q. Which years? 8 A. Oh, I think '12, '13, '14 and '15. 9 Q. How is 2016 shaping up? 10 A. We think it's going to be okay. 11 Q. Do you have -- do you get monthly 12 reports? 13 A. We do. 14 Q. And what's the last two months look like? 15 A. We haven't got February. We lost money 16 in January, which we always do. It's seasonal. 17 Q. Okay. You haven't gotten February? 18 A. No. 19 Q. How was December of 2015? 20 MR. CAGE: Just the one month or the 21 cumulative? 22 MR. FALBE: Just the one month. 23 A. I don't recall how December ended up 24 there. 25 Q. (BY MR. FALBE) How about November '15? Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 6 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 20 (Pages 77 to 80) 77 1 A. I just have the annual. 2 Q. Okay. Did you become more profitable 3 after Jeff left? 4 A. Yes. 5 Q. Will your financial statements reflect 6 that? 7 A. Our profits went up on our percentage of 8 gross on units, but we're still liquidating some of 9 the problem childs we inherited with him. 10 Q. Did you have any problem childs -- when 11 you say "problem child," what do you mean by that? 12 A. Units that he bought or traded and put 13 too much money in. 14 Q. Would you call that a negative equity 15 situation? 16 A. Negative equity? 17 Q. Yeah. 18 A. Well, if we sold it and lost money, it 19 was lost. 20 Q. If a customer comes in and they want to 21 trade in an RV and buy a new one and it's not worth 22 what their loan is that they have a loan on it for, do 23 you consider that a negative equity situation? 24 A. Yeah. They would have negative equity in 25 their trade, yes. 78 1 Q. Okay. Do you finance 80 percent of your 2 RVs? 3 A. I don't know. 4 Q. Are you aware of the percentage of RVs 5 that are floored at Trans-West? 6 A. That are floored? 7 Q. Have flooring financing on. 8 A. When you ask these questions, are you 9 asking on -- financing on the ones that we own or ones 10 that we sell to a customer? 11 Q. All of the RVs that are in Trans-West's 12 inventory, are you aware of approximately how many 13 have inventory financing on them? 14 A. It would be the ones that are -- the new 15 ones and then a portion of the used. 16 Q. And which portion of the used? 17 A. Probably most of them that are newer than 18 seven years would probably be floored. Not always, 19 but -- 20 Q. So you understand what the term 21 "flooring" means, right? 22 A. I do. 23 Q. Okay. Is this a term that you use in 24 your everyday business? 25 A. Yes. 79 1 Q. Okay. So if I use the term "flooring," 2 do you understand that it's a vehicle that has been 3 financed through a flooring line of credit? Is that 4 right? 5 A. Yes. 6 Q. Okay. So when Trans-West floors its RVs, 7 what's the LTV, what's the loan-to-value that it gets? 8 This isn't a trick question. Is it 100 percent? 9 A. We would floor the whole vehicle, yeah. 10 Q. Correct. Okay. So if you have 11 100 percent financing on vehicles and they are not 12 worth what the loan is on it, do you understand that 13 would be a negative equity situation? 14 A. Yes. 15 Q. Is that a concept that you're familiar 16 with? 17 A. Negative equity on a floor plan line? 18 Q. Negative equity in any vehicle that you 19 might own or anybody else might own. 20 A. Well, if you have a finance come out more 21 than the market value of the vehicle, it would be a 22 negative equity. 23 Q. Okay. Did you have any negative equity 24 units in inventory when Jeff took over operations or 25 was hired by Trans-West? 80 1 A. I can't answer that. I don't know. 2 Q. You don't know? 3 A. No. 4 Q. Did you ever look? 5 A. No. 6 Q. Okay. Do you think that would be 7 relevant? 8 A. For me to look at? 9 Q. Do you think it would be relevant in this 10 case? 11 A. No. 12 Q. Why not? 13 A. Well, when he took over, it was three and 14 a half years ago, four years ago. I don't know what 15 our negative equity or positive equity would have with 16 this case. 17 Q. So if Trans-West was sitting on a bunch 18 of vehicles that it had negative equity in that were 19 really hidden losses -- are negative equity units 20 really hidden losses? 21 A. They are not hidden, no. 22 Q. What's that? 23 A. Hidden losses? 24 Q. Losses that haven't been recorded on your 25 books yet. Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 7 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 21 (Pages 81 to 84) 81 1 A. It depends. I mean, we write some 2 inventory down if we think that it's overbooked. 3 Q. Okay. Do you realize those losses at 4 that point? 5 A. Yes. 6 Q. Okay. So if Trans-West hadn't been 7 operating at a profit up until Jeff Mullins was hired 8 and you're claiming that most of your profits -- the 9 lost profits were during the period of time that Jeff 10 Mullins was hired, if you never made any profits 11 beforehand, you don't think that that's relevant to 12 this particular discussion? 13 MR. CAGE: Objection. Form. 14 You may answer. 15 Foundation, too. 16 A. I don't know what our profits have to do 17 with our case with Southwest. 18 Q. (BY MR. FALBE) You understand that 19 you're alleging lost profits, right? 20 A. On the vehicles that were purchased by 21 him. 22 Q. Do you understand that my -- that there 23 has been testimony that the RV division of Trans-West 24 has never made any money even before Jeff Mullins was 25 there? 82 1 A. Okay. 2 Q. And that Andrew Lyons told us that it 3 wasn't making money since he's left? 4 A. Okay. 5 Q. You don't think that that's relevant to 6 this -- to your claim for lost profits? 7 A. No, I don't. 8 Q. Okay. Can you describe to me how you can 9 claim lost profits from a business segment that's 10 never shown a profit? 11 A. We're talking about profits on individual 12 units, not -- 13 Q. So you would like -- I'm sorry. Please 14 continue. I didn't mean to interrupt. I thought 15 there was a pause. 16 A. It would be profits on an individual 17 unit, not on the entire store. 18 Q. Okay. So you want to claim units on just 19 transactions that Southwest has sold even though you 20 haven't been able to make a profit on any of the other 21 transactions? Would that be a fair characterization? 22 A. No. 23 Q. Okay. What would be a fair 24 characterization? 25 A. I think once we give you the information 83 1 on the sale of the other units, you'll see that there 2 is a difference in the profit. 3 Q. But that hasn't been provided. 4 A. You'll get it. 5 Q. When? 6 MR. CAGE: I represented to you that you 7 would get it today. As soon as I get a phone call to 8 clear it, it'll come to you. 9 MR. FALBE: Okay. 10 Q. (BY MR. FALBE) I would like to direct 11 your attention to Exhibit 19. Is this the transcript 12 for the November 20, 2015, proceedings In Re The 13 Matter of Trans-West, Inc. v. Jeffrey Mullins? 14 A. Is it? 15 Q. Do you see that document? 16 A. Yes. 17 Q. Okay. Do you remember testifying in this 18 matter? 19 A. I do. 20 Q. If you turn to page 61 -- it might help 21 you if you look at page 60. It reads 22 "Cross-Examination," so this is the cross-examination 23 by Mr. Meyers. On lines 21 and 22, the question was, 24 "But it's true that your RV business which started in 25 2008 never made a profit?" 84 1 And you answered, "Not in the used." Is 2 that correct? 3 A. What line are you on? 4 MR. CAGE: He's down here. 5 Q. (BY MR. FALBE) Line 23. 6 A. Okay. I'm there. 7 Q. Is that a truthful statement? 8 A. Yes. 9 Q. "And still has not made a profit," the 10 next line, and you said, "Not in used, no." 11 A. Okay. 12 Q. Is that a truthful statement? 13 A. Yes. 14 Q. The next question, "Mr. Mullins didn't 15 start with you until 2011?" 16 You said, "That's correct." 17 That's a truthful statement, right? 18 A. Yes. 19 Q. The next question, "So 2008, 2009, 2010, 20 you weren't making any money either?" 21 And you answered "No." 22 Is that a truthful statement? 23 A. Yes. 24 Q. So can you definitively say that the used 25 RV department has never made money from the time it Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 8 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 22 (Pages 85 to 88) 85 1 started until now? Is that a truthful statement? 2 A. Yes. 3 Q. You're claiming lost profits for the sale 4 of used vehicles from Trans-West to Southwest Luxury 5 Coach; is that correct? 6 A. Yes. 7 Q. Okay. Does Trans-West's RV business make 8 money in its service department? 9 A. Yes. 10 Q. Does it make money in its F&I department? 11 A. Yes. 12 Q. Do you have an understanding of 13 confidential information? 14 A. Yes. 15 Q. What do you think it means? 16 A. It means that certain information you 17 keep confidential. 18 Q. Okay. And do you have certain 19 confidential information that's part of Trans-West's 20 RV business? 21 A. Do I have -- 22 Q. Does Trans-West -- are you aware of any 23 confidential information that Trans-West has as part 24 of its RV business? 25 A. F&I files would be confidential. 86 1 Q. Anything else? 2 A. Well, I mean, certain parts of our 3 business I would consider confidential. 4 Q. Which parts? 5 A. Financial information, that should not be 6 passed outside of our organization. 7 Q. Do you consider your sales process part 8 of confidential information? 9 A. The sales process? 10 Q. Correct. 11 A. No. 12 Q. Do you consider your business practices 13 confidential? 14 A. No. 15 Q. Personnel information? 16 A. Yes. 17 Q. Do you think that your employee handbook 18 would be confidential information? 19 A. No. 20 Q. Do you hand out your employee handbook to 21 your customers? 22 A. No. 23 Q. Why not? 24 A. They are not employees. 25 Q. Do you hand them out to your 87 1 manufacturers? 2 A. No. 3 Q. Do you post it on your website? 4 A. A handbook is available to our employees 5 on our internal website. 6 Q. Internal website. Is it available to the 7 outside world? 8 A. I don't believe so. 9 Q. Did you ever make a copy available to 10 your wholesalers? 11 A. No. 12 Q. Did you ever make your employee handbook 13 available to Southwest Luxury Coach that you're aware 14 of? 15 A. No. 16 Q. To Scott Buchanan? 17 A. Not that I know of. 18 Q. Okay. Does Trans-West ever sell RVs to 19 other dealers? 20 A. Yes. 21 Q. Does it ever buy RVs from other dealers? 22 A. Yes. 23 Q. Does Trans-West ever buy RVs from 24 wholesalers? 25 A. Yes. 88 1 Q. Does it ever sell to wholesalers? 2 A. Yes. 3 Q. What types of contracts do you have with 4 these customers? 5 A. We wouldn't have a contract. We would 6 have an individual buyers order sales agreement based 7 on a particular sale. 8 Q. Who provides that agreement? 9 A. We do. 10 Q. So a customer can't come in with its own 11 contract and say, I would like to buy it and here is 12 my contract? 13 A. No. 14 Q. So Trans-West is the author of that 15 contract, right? 16 A. Yes. 17 Q. What types of contracts do you have with 18 wholesalers? The same buyers order? 19 A. Yes. 20 Q. And is Trans-West the author of that 21 contract? 22 A. Yes. 23 Q. When you buy and sell RVs at wholesale, 24 you use Trans-West's paperwork, don't you? 25 A. If we're going to buy them? Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 9 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 23 (Pages 89 to 92) 89 1 Q. Correct. 2 A. We would buy them based on the buyers 3 order that the seller provided to us. 4 Q. Is that the form that you use? You don't 5 have an internal form for that? 6 A. As a contract? 7 Q. Uh-huh. 8 A. No. 9 Q. Can you describe the claims that 10 Trans-West has made against Mr. Mullins? 11 MR. CAGE: Objection to the extent it 12 calls for a legal conclusion. 13 You may answer based on your knowledge. 14 A. Our claim against Mullins? 15 Q. (BY MR. FALBE) Correct. 16 A. Yeah. It's for the money that he 17 illegally received while under our employment. 18 Q. Have any claims been charged -- any 19 criminal charges been filed? 20 A. I don't believe so. 21 Q. Did you alert the authorities? 22 A. Yes. 23 Q. Did they decline to prosecute? 24 A. It's an ongoing case. I don't know where 25 they're at on it. 90 1 Q. How do you claim that Mullins illegally 2 received monies? 3 A. Well, it's been proved and he's admitted 4 to taking bribery money or kickbacks when he sold 5 units out of our inventory. 6 Q. That's interesting. Where was it proven 7 that -- 8 A. Where was it proven? 9 Q. Yeah. 10 A. We had a hearing, evidence was shown, 11 he's admitted to it. 12 Q. And you believe that that testimony 13 indicates that it's proven that he took Trans-West's 14 money? 15 A. Yes. 16 Q. Did you win that hearing? 17 A. No. 18 Q. How was it proven? 19 A. He admitted it on the stand. 20 Q. That he accepted money? 21 A. He accepted the money, yeah. 22 Q. Okay. And whose money was this? 23 A. It was money that normally would have 24 been Trans-West's. 25 Q. How would it normally have been 91 1 Trans-West's money? 2 A. Well, if somebody is going to buy a unit 3 from us for a certain amount, they would have paid us 4 the whole amount, not paid him a portion of it. 5 Q. Why do you think that they would have 6 paid you more? 7 A. Well, they paid that much, so why 8 wouldn't they? 9 Q. Did you ask them for the money? 10 A. Ask who? 11 Q. The buyers, the persons who wrote the 12 checks to Mr. Mullins. 13 A. Did we ask for the money? 14 Q. Right. 15 A. Well, at that time we didn't know that he 16 wasn't paying it. We didn't know that he was paying a 17 kickback to Mullins. 18 Q. Were the checks written in Trans-West's 19 name? 20 A. No. If they were, we would have had the 21 money. 22 Q. So the person who wrote the check, it was 23 their money, right? 24 A. It was their money at the time? 25 Q. Right. 92 1 A. Sure. 2 Q. Okay. And they decide to write a check 3 to Jeff Mullins, right? 4 A. Yes. 5 Q. How did that become Trans-West's money? 6 A. Well, it's money that should have been 7 ours. 8 Q. How should it have been yours? 9 A. Well, if you're going to sell a piece of 10 equipment and somebody is going to pay that much for 11 it, they should have paid the owner of the equipment 12 for it, not the salesman. 13 Q. Why didn't Trans-West just ask for more 14 money? 15 A. Because Trans-West -- the representative 16 for Trans-West was Mullins. 17 Q. And was there any oversight? 18 A. On those particular deals? No. 19 Q. There was no oversight. So you're saying 20 that he acted without authority? 21 A. He acted in the scope of his authority to 22 sell a unit, yes. 23 Q. He did? Okay. So he had authority to 24 sell this? 25 A. That was part of his job, yeah. Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 10 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 24 (Pages 93 to 96) 93 1 Q. Did anybody else know that he didn't have 2 authority -- so everybody could rely on his authority 3 to sell -- everybody that bought vehicles from Jeff 4 Mullins could rely on his authority to act on behalf 5 of Trans-West; is that correct? 6 MR. CAGE: Objection. Form. Foundation. 7 Legal conclusion. 8 You may answer. 9 A. I would assume that if they were buying a 10 unit from Jeff that they would assume that he had the 11 authority to sell it to them. 12 Q. (BY MR. FALBE) And they could rely on 13 that, his authority in his position? 14 MR. CAGE: Same objection. 15 You may answer. 16 A. I would assume so. 17 Q. (BY MR. FALBE) And how long have you 18 been in business? 19 A. 26 years. 20 Q. 26 years. Did you testify that you were 21 in the automotive business for 42 years in your 22 previous hearing? 23 A. Okay. I've owned my own business for 26. 24 I've been in the industry for 42 years. 25 Q. So after 42 years of vehicle experience, 94 1 you would think that somebody could rely on the 2 authority of an RV sales manager to transact business, 3 right? 4 MR. CAGE: Same objection. It's 5 speculation. 6 You may answer. 7 A. Absolutely. That's what he was paid to 8 do. 9 Q. (BY MR. FALBE) Perfect. Can you 10 describe the claims against Southwest? 11 A. Claims against them are for the money 12 that was paid to Mullins and the lost profits that we 13 would have had if he would have paid the fair amount 14 to us. 15 Q. Okay. So let's go back, because those 16 are two different things; is that right? 17 A. Yeah. 18 Q. That's fair. One is sort of the checks 19 that were written; is that right? 20 A. One is the dollar amount that he was 21 written, yes. 22 Q. So let's talk about that for a second. 23 Please describe Trans-West's claim against Southwest 24 for just the checks that were written. 25 MR. CAGE: And objection to legal 95 1 conclusion and form and foundation. 2 You may answer. 3 A. Well, if somebody is willing to pay a 4 certain amount for a piece of equipment, then that 5 amount should have been paid to us. 6 Q. (BY MR. FALBE) Why didn't you just ask 7 for more money? 8 MR. CAGE: Objection. Asked and 9 answered. 10 You may answer. 11 A. Why didn't I ask for more money? 12 Q. (BY MR. FALBE) From Southwest. 13 A. Why didn't who? 14 Q. Why didn't Trans-West? 15 A. Jeff Mullins was Trans-West in making 16 that deal. 17 Q. Why do you think that Southwest would 18 have paid more for the unit? 19 A. Well, they did pay. They paid him and 20 they paid us. 21 Q. They didn't pay more for the unit. 22 A. Oh, they didn't? 23 Q. They didn't. How did they pay more for 24 the unit? 25 A. Where did the money go? 96 1 Q. What money? 2 A. The money they paid Jeff. 3 Q. It went to Jeff. 4 A. Yeah. 5 Q. As a spiff. 6 A. Not a spiff. 7 Q. So if a manufacturer paid a spiff to one 8 of your salespersons and -- how much -- let's say that 9 that spiff was $1,000. Okay? 10 A. Okay. 11 Q. And the manufacturer paid that spiff to 12 the salesperson, why don't you -- why does Trans-West 13 take that money? 14 A. We're selling. We're not -- 15 Q. But that money should have belonged to 16 you, right? 17 MR. CAGE: He didn't finish his answer, 18 but you may answer. 19 A. The manufacturer would supply a spiff to 20 sell a product. There's a big difference than a buyer 21 paying one of our people to buy a product. 22 Q. (BY MR. FALBE) What's the difference? 23 A. What's the difference? That's pretty 24 simple. You're enhancing our ability to sell a 25 product probably for more money. On the other side, Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 11 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 25 (Pages 97 to 100) 97 1 the seller is paying to get the unit for less money 2 and the company is out the funds that he's paying him. 3 Q. Okay. So isn't a manufacturer out the 4 money that it made, because it could have not paid the 5 spiff, right? 6 A. Sure. 7 Q. And isn't Trans-West out the money, 8 because if the spiff would have been paid to 9 Trans-West, they would have collected that money, 10 because the manufacturer was clearly willing to sell 11 their unit for less money, right? 12 A. Yes. 13 Q. So why don't you have a claim against 14 every single one of your employees that took a spiff? 15 A. We would allow that to happen. We spiff 16 our own salespeople. 17 Q. Okay. I'm not talking about your own 18 spiffs. I'm talking about third-party spiffs. 19 A. Why would we not allow it? 20 Q. They would have paid more, right? You 21 would have been able to sell the vehicle for more 22 because you could have made more money? 23 A. Not necessarily. 24 Q. How? 25 A. A spiff is an incentive to promote sales. 98 1 So in theory, the manufacturer feels that if they're 2 going to offer a spiff, they're going to encourage the 3 salesmen to sell more, which in the end we're going to 4 make more money if we sell more vehicles. 5 Q. Okay. And if the manufacturer was 6 willing to sell their vehicle for $1,000 less, why 7 isn't Trans-West entitled to that money? 8 A. Well, they're upfront. They come in and 9 they tell us about the deal. Actually, if somebody 10 came in and wanted to give a spiff and we said we 11 won't allow it, they probably wouldn't do it. 12 Q. Okay. 13 A. And it doesn't happen -- I mean, it's 14 not -- a spiff in the manufacturing world is maybe 100 15 or $200. It's not 20,000 like this man paid my 16 salesman to buy it. 17 Q. So there is two things that you just 18 indicated. One is amount, right? 19 A. Yeah. 20 Q. And two is advanced knowledge; is that 21 correct? 22 A. Amount, advanced knowledge and 23 manufacturer is a partner of ours out there to sell a 24 vehicle. 25 Q. Isn't a wholesaler a partner of yours out 99 1 there to take off, like, your bad inventory? 2 A. An honest one is, yeah. Dishonest ones 3 aren't. 4 Q. Okay. So do you ever pay spiffs or 5 referral fees to third parties, for people who buy 6 coaches from you or RVs from you? 7 MR. CAGE: Objection. Form. Foundation, 8 compound. 9 You may answer. 10 A. Well, there is a big difference between a 11 spiff and a referral fee. 12 Q. (BY MR. FALBE) I'm not asking that. The 13 question is very simple: Does Trans-West pay referral 14 fees to third parties when it sells an RV to a 15 customer? 16 A. That's a different question than you just 17 asked. 18 Q. Okay. 19 MR. FALBE: Why don't you read back the 20 original question? 21 Q. (BY MR. FALBE) Actually, why don't you 22 just answer that last question? Does Trans-West -- 23 A. You asked me if we paid a spiff and 24 referral fee to a third party? 25 Q. Correct. 100 1 A. Okay. My answer is no. You asked me if 2 we pay a referral fee to a third party. My answer is 3 yes. 4 Q. Okay. So you have -- Trans-West has paid 5 referral fees to third parties? 6 A. We do it every day. 7 Q. Why would you do that? 8 A. Why would we do it? 9 Q. Right. 10 A. We would pay a referral fee for a person 11 to refer business and bring a sale to us. 12 Q. Really? Why would you do that? 13 A. Why would we do it? 14 Q. Right. 15 A. We like to have more sales. 16 Q. And who do you pay these referral fees 17 to? 18 A. Oh, we pay them internally to our people 19 that would refer a customer to different parts of our 20 business. We'll pay a referral fee to an individual 21 out there that says, Hey, I got a friend that's 22 looking for something. We'll say, Bring him on a 23 Saturday. If we can sell him, we're going to give you 24 a referral fee. 25 Q. What's an example of a person -- an Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 12 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 26 (Pages 101 to 104) 101 1 individual outside that you pay a referral fee to? 2 A. Oh, customers. Just individuals. We'll 3 pay referral fees to people who bring referrals to us. 4 Q. Okay. So these third parties that bring 5 customers to you to buy RVs, do you inquire with their 6 employer first if they're allowed to accept them? 7 A. If they were -- if they were a person 8 employed in the industry, like, for instance, a 9 salesperson from Bob's RV, we would never pay that 10 referral fee. 11 Q. Why? 12 A. Because we would be taking somebody in 13 the same industry and asking him to do something that 14 was not very moral or ethical. 15 Q. What if they didn't have that on their 16 lot? 17 A. If they didn't have it on their lot, they 18 would probably call us and try to transfer it to the 19 dealer so they could sell it. 20 Q. Why not just pay the referral fee? 21 A. It would be something that would sanitize 22 somebody to do something unethical. 23 Q. But anybody not in the RV business you 24 would pay a referral fee to? 25 A. We would, yes. I would have paid a 102 1 referral fee to -- I was going to say to you, but I 2 wouldn't. I would pay it to almost any individual out 3 there that wanted to bring us business. 4 Q. Okay. And before you pay that referral 5 fee, do you have -- did you ever require -- or did you 6 ever inquire about whether their employer had any 7 other covenant not to accept referral fees? 8 A. No. 9 Q. Why not? 10 A. We wouldn't be doing anything -- it's 11 just an average person. We're not doing anything that 12 would really have a negative impact on his employee/ 13 employer relationship. 14 Q. What if that employee had a covenant in 15 their employee agreement that said that they weren't 16 allowed to except referral fees? 17 A. Then they should tell us that. 18 Q. But you wouldn't know that without -- 19 A. Wouldn't know that. 20 Q. Wouldn't know that. Did you ever notify 21 Southwest that you have a policy against employees 22 accepting referral fees? 23 A. No, because we never had an opportunity 24 to pay Southwest a referral fee. 25 MR. FALBE: Can you read back his answer? 103 1 (The last question was read back as 2 follows: "No, because we never had an opportunity to 3 pay Southwest a referral fee.") 4 Q. (BY MR. FALBE) The question was: Did 5 you ever notify Southwest that you had a policy that 6 your employees were not allowed to accept referral 7 fees? 8 A. Referral fees? No. 9 Q. Okay. Did Southwest ever take an RV from 10 Trans-West without paying for it? 11 A. I believe they have a unit that they 12 maybe bonded something. 13 Q. Are you referring to the Dynamax? 14 A. I don't know. It's a unit. I don't know 15 what it is. 16 Q. Aside from one unit, the Dynamax that I 17 believe is subject to a bond for repairs that now is 18 in the possession of Southwest with approval of the 19 Court, did Southwest ever take an RV without paying 20 for it, that you're aware of? 21 A. I hope not. I don't know. I mean, our 22 policy would be that they wouldn't. 23 Q. Are you aware of any? 24 A. Not that I'm aware of. 25 Q. Did Southwest take any money from 104 1 Trans-West without paying for it? 2 A. Take money from Southwest? 3 Q. Did they sneak in and take money from 4 Trans-West? 5 A. Sneak in and take money? I guess paying 6 Mullins a kickback would be probably sneaking in and 7 taking money, yeah. 8 Q. How is writing a check out of Southwest's 9 bank account your money? 10 A. How is it? Well, you and I seem to have 11 a different opinion on that, but I believe it's my 12 money. It's our money. 13 Q. Can you describe how your opinion is that 14 money that's sitting in Southwest's checking account 15 is Trans-West's money? 16 A. I think I have. If he is paying for a 17 unit, he is buying a unit, obviously -- if he's going 18 to pay a kickback of $20,000, he would have paid 19 $20,000 more for that unit. He puts it on his books 20 for that amount of money. He sells it based on that. 21 We didn't get the money. It was our property. 22 Q. Just like you didn't get the money from 23 the manufacturer for the spiffs that they paid the 24 salesperson -- or the referral fees that you paid 25 other third parties. You didn't pass that along to Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 13 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 27 (Pages 105 to 108) 105 1 the customer, did you? 2 A. No. We did receive a benefit from the 3 manufacturer. We sold units. 4 Q. Didn't you receive a benefit when you 5 sold your underwater inventory to Southwest? 6 A. We got a negative benefit. 7 Q. Weren't you already in a negative 8 benefit? 9 A. Not always. 10 Q. We'll go through some of the transactions 11 and we'll talk about how underwater these transactions 12 were. 13 Did Southwest ever forge a check from 14 Trans-West? 15 A. Did Southwest ever what? 16 Q. Forge a Trans-West check. 17 A. Forge a Trans-West check? 18 Q. Did they take Trans-West's checks, forge 19 signatures on them and pay them money? 20 A. Not that I'm aware of. 21 Q. Because money in Trans-West's checking 22 account would be Trans-West's money, right? 23 A. Yes. 24 Q. If Trans-West misdescribed a condition of 25 an RV, would the money for the repair or the 106 1 reconditioning cost in your bank account belong to 2 Southwest? 3 MR. CAGE: Objection. Form. Foundation 4 Speculation. 5 A. I don't know what you -- what are you 6 saying? 7 Q. (BY MR. FALBE) If Trans-West sold an RV 8 and misrepresented the condition, and it was sold and 9 Southwest had to pay money for reconditioning that it 10 said -- Trans-West represented that didn't need to be 11 made, would the money sitting in Trans-West's account 12 belong to Southwest? 13 MR. CAGE: Same objection, and it's an 14 incomplete hypothetical. 15 A. I wouldn't say the money in somebody's -- 16 in our account would belong to them, no. 17 Q. (BY MR. FALBE) Why not? 18 A. Why not? 19 Q. Right. 20 A. It's our money. 21 Q. Exactly. Because it's in your bank 22 account, right? 23 A. Yes. 24 Q. And nobody can go into somebody else's 25 bank account and just take it, right? 107 1 A. No. 2 Q. That's not how ownership transfers with 3 money; is that right? 4 A. That's not how ownership transfers with 5 money? 6 Q. Having a claim on money, that's not how 7 ownerships transfers? 8 MR. CAGE: Objection. Foundation. Form. 9 Q. (BY MR. FALBE) Do you know how you 10 transfer money? 11 A. By check, wire. 12 Q. Any other forms? 13 A. Cash. 14 Q. Okay. Do you know of any false 15 statements that Southwest made to Trans-West? 16 A. False statements? You know, I didn't 17 have personal conversations with Southwest other 18 than -- the only time I talked to them is when he 19 tried to bribe me on dropping this suit. 20 Q. I'm going to come back to that in a 21 minute. 22 We already went through a lot of the 23 discovery. Do you remember that part of the discovery 24 is all communications you had -- that Trans-West has 25 had with Southwest? Do you remember that? We can 108 1 look back. 2 A. Okay. 3 Q. But is it your understanding that all of 4 the communications between Southwest and Trans-West 5 has been provided in the discovery process? 6 A. Yes. 7 Q. Are you aware of any other communication 8 that has been deliberately held back? 9 A. Not that I'm aware of, no. 10 Q. Okay. Are you aware of any information 11 that hasn't been provided throughout this process? 12 A. No. 13 Q. Are there any conversations that you're 14 aware of that haven't been otherwise described -- 15 A. No. 16 Q. -- by Trans-West to Southwest? 17 A. Conversations initiated by Trans-West to 18 Southwest? 19 Q. Correct. 20 A. No, I'm not aware of any. 21 Q. Let's talk about the conversation that 22 you had with Scott Buchanan. Have you ever met Scott 23 Buchanan before? 24 A. No. 25 Q. Have you ever talked to him on the phone Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 14 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 28 (Pages 109 to 112) 109 1 before? 2 A. Nope. 3 Q. When did this alleged bribe take place? 4 A. Oh, probably a month ago now or 5 something. 6 Q. And how did this take place? 7 A. I received a call from him. 8 Q. So when I asked you if you've ever talked 9 to Scott Buchanan on the phone, I meant that 10 conversation. 11 A. You said before. 12 Q. Oh, I'm sorry. At any time, have you 13 ever had any conversation with Scott Buchanan? 14 A. One time. 15 Q. Okay. And please describe the nature of 16 that conversation. 17 A. He just called me up asking me to drop 18 this suit against Mullins. 19 Q. Okay. Against Mullins? 20 A. Yeah. 21 Q. Okay. Not against him? 22 A. Mullins. 23 Q. Okay. That's it? That was the entire 24 nature of the conversation? 25 A. Yeah. 110 1 Q. You just accused him of bribing you. 2 A. Well, I thought it was kind of 3 threatening that somebody should ask me to drop a suit 4 against somebody. 5 Q. How was it threatening? 6 A. His demeanor. 7 Q. On the phone? 8 A. Yeah. 9 Q. Threatening. What kind of demeanor was 10 threatening? 11 A. He just said, If you don't -- you know 12 what's good for you, you'll drop this suit. 13 Q. Anything else? 14 A. He said, If you don't, you're going to be 15 in big trouble. 16 Q. Anything else? 17 A. That was about it, I guess. 18 Q. What information does Trans-West have to 19 disclose to Southwest when it sells an RV to 20 Southwest? 21 A. I would assume that they would have given 22 him the vehicle description, specs -- specifications, 23 condition. 24 Q. Is that it? 25 A. I would assume so, yeah. 111 1 Q. So Trans-West doesn't tell Southwest how 2 much profit or loss it's making on an individual unit? 3 A. No. 4 Q. Why would they care, right? 5 A. Why would Southwest care? They want to 6 know what they can purchase the vehicle for. 7 Q. Exactly. And why does Trans-West care? 8 Because it's none of their business, right? 9 A. Yes. 10 Q. Does Trans-West have to disclose any 11 payoff information? 12 A. No. 13 Q. Are there any terms Trans-West needs to 14 disclose to Southwest other than what is on the title 15 or on the buyers order? 16 A. That they would have to disclose? 17 Q. Right. 18 A. I imagine the only thing they have to 19 disclose is the year, make, model and serial number. 20 Q. Why is that? 21 A. That's enough to make a transaction. 22 Q. At least between two sophisticated 23 parties, right? 24 A. I'm sure that there was a lot more 25 discussion than that, but I don't know what it was. 112 1 Q. But there is no financial disclosures. 2 You're not dealing with a consumer, right? 3 A. Right. 4 Q. You have a bunch of truth and lending 5 requirements, Reg Z? You're familiar with all that 6 stuff, right? 7 A. Right. No, we're not -- we don't have to 8 disclose any of that. 9 Q. Is that because you both are 10 sophisticated parties? 11 A. It's a wholesale transaction. It's not a 12 consumer transaction. 13 Q. And a wholesale transaction is, by its 14 nature, between two -- 15 A. Two dealers. 16 Q. Two dealers that are in the business of 17 valuing RVs, right? 18 A. Right. 19 Q. Is Southwest required to disclose how 20 much it paid a driver to pick up the RV? 21 A. No. 22 Q. Is Southwest required to disclose how 23 much it is going to sell an RV for? 24 A. No. 25 Q. If Trans-West wanted additional items to Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 15 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 29 (Pages 113 to 116) 113 1 be disclosed, could it have included it on its forms? 2 A. If Trans-West wanted to include 3 additional items? 4 Q. Right. 5 A. I'm sure if the buyer wanted additional 6 items, we could have probably provided them. 7 Q. I mean, if you wanted additional terms, 8 you would put it in the contract, right? 9 A. Could. 10 Q. Does Trans-West as a whole business 11 operate on a national basis, the holding company of 12 Trans-West? 13 A. Do we operate on a national basis? In 14 some respects, yes. 15 Q. I'm reading, actually, from your 16 testimony and the question was whether -- "Does 17 Trans-West do business in various names?" And you 18 say, "Nationally with some." So I'm just trying to 19 find out if they're a national company. 20 A. With some. 21 Q. Okay. And you're the president and owner 22 of Trans-West? 23 A. Yes. 24 Q. Okay. And would you describe yourself as 25 a hands-on president? 114 1 A. In some areas, yeah. 2 Q. Are you a hands-on president in the RV 3 business? 4 A. No. 5 Q. Is Andrew Lyons allowed to hire somebody 6 without your approval? 7 A. I ultimately sign off on every employee. 8 Q. Is Andrew Lyons the general manager of 9 the RV business? 10 A. Yes. 11 Q. And he reports directly to you? 12 A. Yes. 13 Q. And Jeff Mullins reported to Andrew 14 Lyons? 15 A. Yes. 16 Q. Is it true that you've been in the 17 vehicle sales business for 42 years? 18 A. Yes. 19 Q. Were you the general manager of a truck 20 division? 21 A. Yes. 22 Q. How did you get to be a general manager 23 of a truck division? 24 A. Years of working and experience. 25 Q. Were you good at it? 115 1 A. I survived for a few years. 2 Q. What company were you the general manager 3 of a truck division for? 4 A. Wallwork Truck Center. 5 Q. What was your performance like there? 6 A. We made money. 7 Q. How much? 8 A. I don't recall. 9 Q. Were you doing well? On a scale of 1 to 10 5, 5 being, like, great? 11 A. On good years, we would make 7 million. 12 Q. That sounds really good. And you were 13 the general manager? 14 A. Yeah. 15 Q. I would call that knocking it out of the 16 park. Would you call it that? 17 A. Not necessarily. 18 Q. I would, and I've been around a lot of 19 general managers. How were you so successful? 20 A. Oh, I guess going to work, working hard, 21 using good ethics and good business practices and 22 having good relationships with our clientele. 23 Q. Does it require a certain amount of 24 business judgment? 25 A. Yes. 116 1 Q. If you were losing money, do you think 2 that you would have been put in the general manager 3 position? 4 A. Probably not. 5 Q. Why? 6 A. Why not? 7 Q. Yeah. 8 A. I probably wouldn't have been escalated 9 to that level. 10 Q. Who's the owner of -- is it Walworth? 11 A. Wallwork. 12 Q. Wallwork? 13 A. Yeah. It's Bill Wallwork. 14 Q. Would Bill have promoted you to general 15 manager if you were losing millions of dollars a year? 16 MR. CAGE: Objection. Form. Foundation. 17 Speculation. 18 You may answer. 19 A. We lost money in certain divisions while 20 he promoted me, but overall we made money. 21 Q. (BY MR. FALBE) Were you in charge of the 22 division that you were losing money in? 23 A. Yes. 24 Q. Which ones? 25 A. We had two dealerships that were losing Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 16 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 36 (Pages 141 to 144) 141 1 Speculation. 2 You may answer. 3 A. I suppose you could try to do anything. 4 I've never heard of it myself. 5 Q. (BY MR. FALBE) Okay. As the president 6 of Trans-West and the RV division that are -- you are 7 the president of Trans-West's RV division, right? 8 A. President of Trans-West. 9 Q. Okay. And the company that operates the 10 RV; is that correct? 11 A. Yes. 12 Q. Do you have authority to make sure 13 that -- do you have authority to have a contract in 14 place between Trans-West and wholesalers? 15 A. Do I have authority to have a contract? 16 Q. To require a contract, an overriding 17 contract of standard terms and conditions. 18 A. I suppose I have authority to do whatever 19 we want to do. 20 Q. Okay. Would it be difficult to include 21 in those standard terms and conditions not to pay 22 employees spiffs or referral fees or any amounts 23 without the knowledge of Trans-West? 24 A. You could probably write an agreement. 25 I've never seen it done in my years of being in 142 1 business. 2 Q. Would that be, like, a ten-page agreement 3 or would that be, like, a one-page agreement? 4 A. I've never seen one, so I don't know. 5 MR. CAGE: Speculation. 6 A. I suppose if you give a bunch of lawyers 7 the job of writing it, it would be ten pages. 8 Q. (BY MR. FALBE) Are you familiar with 9 Trans-West's employee handbook? 10 A. Somewhat. 11 Q. Have you ever seen a copy? 12 A. I have seen copies, yes. 13 Q. If I could direct your attention to 14 Exhibit 16, Volume 1, TW 850 to 884. 15 MR. CAGE: What is the page again? I 16 should have it memorized. 17 MR. FALBE: 850. 18 MR. CAGE: Thank you. I have hearing 19 aids. I couldn't hear you. 20 Q. (BY MR. FALBE) Do you recognize this 21 document? 22 A. Yes. 23 Q. Okay. Is this a copy of a Trans-West 24 employee handbook? 25 A. It appears to be, yes. 143 1 Q. Does it say "Revised 10/7/2010"? 2 A. Yes. 3 Q. Would you call this an employee contract? 4 A. Do I call it what? 5 Q. An employment contract? 6 A. No. 7 Q. Why not? 8 A. We don't have contracts with our 9 employees. 10 Q. Is it important for employees to follow 11 the handbook? 12 A. Yes. 13 Q. Is it important for the company to follow 14 the handbook? 15 A. Yes. 16 Q. What happens if either party does not 17 follow the handbook? 18 A. The handbook is a guideline. I guess it 19 depends on the situation. 20 Q. Can you make a generalization about if -- 21 in a situation where an employee violated the 22 handbook, what would happen? Pick any situation you 23 want. 24 MR. CAGE: Object to the form of the 25 question. Calls for speculation. 144 1 Go ahead and answer it. 2 Q. (BY MR. FALBE) Has anybody ever violated 3 the employee handbook? 4 A. Yes. 5 Q. And what happened? 6 A. They may be written up, they may be given 7 a day off, they may be given conditions for 8 improvement or they may be terminated. 9 Q. Has the company ever violated the 10 employee handbook? 11 A. I'm not aware that we have. 12 Q. Is a copy provided to each employee? 13 A. Each employee gets one, yes. 14 Q. Is there a place for each employee to 15 sign? 16 A. Yes. 17 Q. Is a copy provided to each customer? 18 A. No. 19 Q. Is there a place for the customer to 20 sign? 21 A. No. 22 Q. Is a copy provided to each manufacturer? 23 A. No. 24 Q. Is there a place for the manufacturer to 25 sign? Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 17 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 37 (Pages 145 to 148) 145 1 A. No. 2 Q. Is a copy provided to every wholesaler? 3 A. No. 4 Q. Is there a place for a wholesaler to 5 sign? 6 A. No. 7 Q. Do you consider -- I think we already 8 addressed that. 9 Are the terms of this handbook the 10 primary basis of the claim against Mr. Mullins? 11 A. Is the term of the handbook the primary 12 claim? 13 (The last question was read back as 14 follows: "Are the terms of this handbook the primary 15 basis of the claim against Mr. Mullins?") 16 MR. CAGE: Object to form. Foundation. 17 Legal conclusion. 18 You may answer. 19 A. I would say no, that's not the primary 20 basis. 21 Q. (BY MR. FALBE) What is the primary 22 basis? 23 A. The primary basis is he stole from the 24 company. 25 Q. So if the employee handbook wasn't there, 146 1 there would still be a violation, right? 2 A. Oh, absolutely. 3 Q. Are you an employee of Trans-West? 4 A. I'm the owner of Trans-West. 5 Q. Are you an employee of Trans-West? 6 A. I receive a paycheck from them. I guess 7 you could call me an employee. 8 Q. Did you sign a copy of this handbook? 9 A. No. 10 Q. Why not? 11 A. I didn't. 12 Q. Is Barb an employee of Trans-West? 13 A. Yes. 14 Q. Did she sign a copy of the handbook? 15 A. I have no idea. 16 Q. Would it surprise you to hear that she's 17 never really looked at this before? 18 A. It wouldn't surprise me. 19 Q. Do you know if Mr. Mullins signed this 20 handbook? 21 A. I assume he did. I haven't looked at his 22 signature, but every employee is given one and asked 23 to sign it in orientation, so I would assume that he 24 has. 25 Q. Do you know if Southwest signed this 147 1 handbook? 2 A. I have no knowledge of them signing it. 3 Q. Do you know if Scott signed the handbook? 4 A. I have no knowledge of him signing it. 5 Q. Who is in charge of administering the 6 policies of the handbook? 7 A. Basically the HR department and every 8 manager in the company. 9 Q. With respect to just the RV division, who 10 would be in charge of administering the policies of 11 the employee handbook? 12 A. It would be the same, HR and the manager. 13 Q. Who are those people in the RV division? 14 A. Andrew Lyons. 15 Q. Anybody else? 16 A. No. 17 Q. If you could please turn to Section 2.1 18 of this handbook, which is on page 9 of the handbook 19 and is Bates-numbered TW 000862. 20 A. Okay. 21 Q. Have you read this provision of the 22 handbook before? 23 A. At one point in time I have read this 24 handbook in its entirety. 25 Q. On the third bullet point, do you see the 148 1 section where it says, "No employee or member of the 2 employee's immediate family should accept gifts from 3 any person or firm doing or seeking to do business 4 with the Company if by doing so it might infer the 5 gift was given to influence the employee in conducting 6 business with the donor"? 7 A. Yes. 8 Q. Do you remember this provision of the 9 employee handbook being presented in the November 2015 10 Mullins hearing? 11 A. I do not. 12 Q. Do you believe that the amounts received 13 by Jeff Mullins violated the terms of this employee 14 handbook? 15 A. A million dollars? Yeah, I do. 16 Q. You said a million dollars. Is a million 17 dollars -- is that a threshold amount? 18 A. No. It's an approximation of what he's 19 taken. 20 Q. Okay. 21 A. There is no threshold amount. 22 Q. There is no threshold amount? 23 A. Well, if somebody is bought lunch by 24 somebody or whatever -- if we didn't deem there was 25 something that was of value to influence something, I Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 18 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 38 (Pages 149 to 152) 149 1 guess we wouldn't have a problem with it. 2 Q. In fact, the last section of this 3 actually says, "However, employees are not prohibited 4 from accepting advertising novelties such as pens, 5 pencils, and calendars, or other gifts of nominal 6 value when circumstances clearly show that the gifts 7 are offered for reasons of personal esteem and 8 affection." 9 Do you see that? 10 A. Yes. 11 Q. Would you think of this as a de minimis 12 exception? 13 A. I would guess, yeah. 14 Q. Sandwiched in between those two 15 provisions, do you see the section that says, "Such 16 gifts should be returned with a note of explanation"? 17 A. Yes. 18 Q. Why haven't you returned all the money 19 that Southwest paid to Jeff Buchanan? I'm sorry. 20 Why haven't you returned all the checks 21 received by Jeff Mullins to Southwest? 22 A. Those weren't gifts. That was a bribe. 23 Q. You're saying this was a violation of the 24 policy, right? You just said that this was a 25 violation of the policy, the million dollars, right? 150 1 So under the provisions of your employee handbook, it 2 says "Such gifts should be returned with a note of 3 explanation." I haven't seen a return or a note of 4 explanation. 5 A. I guess my interpretation of a gift and 6 yours is different. 7 Q. I'm just -- 8 A. Stealing 256,000 or whatever this guy 9 wrote to him, I don't look at as being a gift. That 10 was a bribe. 11 Q. You just said in your previous testimony 12 that this violated the provision where it said that 13 they should not accept gifts, and you classified that 14 as a gift in violation of this policy. 15 A. I did? 16 Q. You just did. 17 A. Okay. 18 Q. So I'm asking: Why you haven't returned 19 this money to my client with a note of explanation? 20 A. And I answered. 21 Q. What was your answer? 22 A. It isn't a gift. It's a bribe. 23 Q. You just said it was a gift. 24 A. Okay. Whatever. Gift, I don't care. 25 Call it whatever you want. 151 1 Q. Okay. So why hasn't the gift been 2 returned? 3 A. I'm not going to return it. 4 Q. Why not? 5 A. Why not? 6 Q. Why are you violating this policy in your 7 handbook? 8 A. I think it's the right thing to to. 9 Q. Could you please turn to Section 2.17 of 10 the employee handbook, which is on page, I believe, 15 11 of the handbook and is Bates-numbered TW 868. Do you 12 see that section? 13 A. Yes. 14 Q. 2.17 says "Authority to Enter Into 15 Contracts." 16 A. Yes. 17 Q. It says, "No employee has the authority 18 to enter into a contract or agreement for services, 19 purchases, leases, or other similar documents on 20 behalf of the Company, except the President." 21 A. Yes. 22 Q. Are you the president? 23 A. I am. 24 Q. Has the company ever entered into a 25 contract or agreement for services, purchases or 152 1 leases or other similar documents on behalf of the 2 company -- 3 A. They have. 4 Q. -- without -- okay. 5 So the company just doesn't follow this 6 provision? 7 A. I have given people authority to sign a 8 contract on occasion, yes. 9 Q. And who has authority to sign contracts? 10 A. I do. 11 Q. Anybody else that you've given authority 12 to? 13 A. On an individual basis, yes. 14 Q. Is that referenced anywhere, or is that 15 just verbal? 16 A. It would be verbal. 17 Q. Did Jeff Mullins have authority to 18 execute contracts on your behalf? 19 A. No. 20 Q. How did he ever sell an RV? 21 A. This doesn't pertain to vehicle sales. 22 This is for contracts with a dealership for services, 23 purchases, leases. We have many people in our company 24 that sign purchase orders, buyers orders, every day 25 sign service contracts and write up orders and Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 19 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 39 (Pages 153 to 156) 153 1 whatever. I mean, this pertains to leasing a copier 2 or signing an agreement with a company on a long-term 3 basis. 4 Q. Is there an exclusion for vehicles on 5 here? 6 A. No. 7 Q. Is a buyers order between Trans-West and 8 a customer a contract? 9 MR. CAGE: Objection. Form. Legal 10 conclusion. 11 You may answer. 12 A. It's a contract to purchase a vehicle, 13 yeah. 14 Q. (BY MR. FALBE) Are the contracts that 15 you're alleging damages against my client -- are they 16 contracts? 17 MR. CAGE: Same objection. 18 You may answer. 19 A. Yeah. There would be a contract to 20 purchase. 21 Q. (BY MR. FALBE) And did you authorize 22 those? 23 A. No. 24 Q. Did you authorize Jeff to make those 25 transactions? 154 1 A. No. Well, it's part of his job 2 description. 3 Q. So did he have authority to enter into 4 those transactions? 5 A. He did. 6 Q. How did he know that he had authority to 7 enter into those transactions? 8 A. It's part of his job description. 9 Q. How did -- how would my client have known 10 that he had authority to enter into those 11 transactions? 12 A. I would assume that he's done business 13 with enough people that he would know if a sales 14 manager sells you a piece of equipment, he's got 15 authority to do that. 16 Q. So you are saying the sales manager, by 17 his position, has implied authority. Would that be a 18 fair statement, to sell vehicles? 19 A. In 25 years of having this, you're the 20 only one that has ever questioned this type of a 21 contract. 22 Q. I've never had somebody sue somebody for 23 damages for money that was never offered to them. 24 A. You probably never had a thief to 25 represent to do it. 155 1 Q. Do you see Section 2.18? 2 A. I do. 3 Q. Does it say, "Compliance with All Local, 4 State and Federal Laws and Applicable Professional 5 Certification Requirements"? 6 A. Yes. 7 Q. Does it say, "The Company expects all 8 employees to comply with all local, state and federal 9 laws and to keep current on all professional 10 certification requirements"? 11 A. Yes. 12 Q. Do you have a way of tracking whether all 13 your salespersons are licensed? 14 A. We do. 15 Q. How do you do that? 16 A. We have, number one, a person in our 17 office that tracks that and then we put them on the 18 boards of each location so they are displayed and it 19 meets the requirements of the State. 20 Q. Is this an important aspect of your 21 business? 22 A. Yes. 23 Q. What states are they licensed in? 24 A. Colorado. 25 Q. Are there licenses in any other states? 156 1 A. We have people that work in Missouri that 2 would be licensed in Missouri. 3 Q. But nowhere else? 4 A. Not that I -- no, I don't think so. 5 Q. Not California, right? 6 A. No, we have -- not in California. 7 Q. Can you read the next section where it 8 says "Hiring of Relatives"? It says, "The Company 9 discourages the practice of hiring relatives of 10 current employees for positions within the same 11 operating entity, and does not permit relatives to be 12 employed in a direct supervisor/subordinate reporting 13 relationship." 14 Do you see that section? 15 A. I do. 16 Q. Do you understand it? 17 A. I do. 18 Q. Is hiring Andrew Lyons a violation of 19 that provision? 20 MR. CAGE: Objection. Form. 21 A. No. 22 Q. (BY MR. FALBE) Why isn't it? 23 A. Why isn't it? I have the discretion to 24 hire whoever I want. This states that we discourage 25 it. Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 20 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 43 (Pages 169 to 172) 169 1 kind of licenses were required? 2 A. An expert? No. 3 Q. A lawyer? 4 A. No. 5 Q. Local lawyer? 6 A. No. 7 Q. When you closed on the real estate in 8 Colorado -- I'm sorry -- in Missouri, did you hire 9 legal counsel to close on that? 10 A. We had -- most of the time we'll have 11 counsel review the contracts. 12 Q. Make sure you have the right licensing 13 permits or signs, things like that? 14 A. No. 15 Q. No? 16 A. They are more looking at the title work 17 and the survey and that sort of thing. 18 Q. So title survey review? 19 A. Yeah. 20 Q. Is that Missouri counsel? 21 A. No. 22 Q. Do you have Colorado counsel look at 23 that? 24 A. Yes. 25 Q. Is that Moye White? 170 1 A. Yes. 2 Q. Do you know if Moye White is licensed to 3 practice law in Missouri? 4 A. I don't. 5 Q. Do you know that lawyers are only 6 licensed to practice law in certain states? 7 A. I do. I don't think they need a Missouri 8 license to review a contract for me. 9 Q. Have you ever signed a check for a 10 referral fee? 11 A. Personally signed the check? I don't 12 recall. I don't sign many checks. 13 Q. Who does sign the checks? 14 A. Oh, we have got several people in the 15 company that can sign. 16 Q. Who are those people? 17 A. Mark Stenseth, Jason Kleve, Brian Eschman 18 Brian Smith, myself, my wife, my daughter. 19 Q. Why do you have just those people who 20 have to sign checks? 21 A. Well, we try to keep some control of 22 where the money is going, separation of duties. We 23 have people who do check requests and get approvals, 24 and the final check signing is done by another 25 individual, and there is two signatures on every 171 1 check. 2 Q. And do you implement these policies as 3 part of a check and balance? 4 A. Yes. 5 Q. To prevent people from taking money from 6 Trans-West? 7 A. Yes. 8 Q. Was Jeff Mullins allowed to sign checks? 9 A. No, absolutely not. 10 Q. Why not? 11 A. Why not? Well, we would never have 12 someone in the position of buying to be signing the 13 checks. We don't have any of our sales managers as 14 check signers. 15 Q. If I -- on the transactions between 16 Trans-West and Southwest, how many people had to touch 17 that transaction? Could you guess? 18 A. Two or three maybe. 19 Q. Would Jeff Mullins have had to approve 20 that transaction? 21 A. He would have initiated it. 22 Q. Would Andrew Lyons have had to approve 23 it? 24 A. Not necessarily. He may have looked at 25 some of them, but some of them he probably didn't. 172 1 Q. Did you have a meeting with Andrew Lyons 2 in 2014 indicating that he had to approve all sales 3 initiated by Jeff? 4 A. We had several meetings trying to put in 5 controls. I don't remember that meeting. 6 Q. If Andrew Lyons said that that meeting 7 happened, would you question that? 8 A. If he said it happened, it happened. 9 Q. And who would issue a check request if 10 you were buying a vehicle? 11 A. The sales manager. 12 Q. And who would approve that check request? 13 A. Well, if Andrew had to approve it, he 14 would probably be approving it at that point. 15 Q. Okay. And does this go through your 16 accounts payable department? 17 A. No. On vehicles -- we buy vehicles every 18 day, so it will just get down to the main office and 19 somebody will sign it. 20 Q. How many people have to sign? 21 A. Two. 22 Q. I'm up to five people so far. Okay? Who 23 does the title work on that? 24 A. The individual at each location. 25 Q. And who's that individual for an RV Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 21 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 44 (Pages 173 to 176) 173 1 transaction? 2 A. Up there, it could be Bobbe Jackson, I 3 guess, or it could be -- there is another young gal up 4 there. I'm not sure what her name is. 5 Q. Does the office manager have to approve 6 transactions? 7 A. I don't know that Carol would have to 8 approve it. 9 Q. Is that a detail that you might not have 10 specific information about? 11 A. Yes. 12 Q. Would it surprise you if everybody I've 13 talked to so far said that the office manager had to 14 approve transactions like that? 15 A. No. 16 Q. So if she did, would that be seven people 17 that all had to know about that transaction? 18 A. I don't count seven. 19 Q. Jeff Mullins, Andrew Lyons, the office 20 manager, the title person, the check person and the 21 two people signing checks. 22 A. The title person wouldn't necessarily 23 look at that until after the title work was done. 24 Q. But before the transaction was completed, 25 at least seven people would have their hands on 174 1 that -- on those pieces of paper, right? 2 A. I don't know. It could be five, it could 3 be seven. I'm not sure. 4 Q. Okay. And do you segregate those 5 functions out to make sure that, you know, vehicles 6 aren't leaving out the door or checks aren't leaving 7 out the door without dual authorization? 8 A. We attempt to. 9 Q. And do you ask these employees and expect 10 them to exercise their judgment in approving and 11 completing their tasks? 12 A. We ask every manager to use good 13 judgment, yeah. 14 Q. Okay. Have you ever hosted parties in 15 order to induce -- or to encourage sales? 16 A. Host a party to -- 17 Q. Has Trans-West ever sponsored a party to 18 encourage sales of RVs? 19 A. Yeah. We do that all the time. 20 Q. Can you give me an example? 21 A. We've had open houses. We have had 22 different factories, you know, manufacturers come in, 23 manufacturers' open houses. We've displayed at 24 different shows, RV shows. A lot of promotional 25 events. 175 1 Q. Do you ever provide cookies and things 2 like that in order to encourage people to buy RVs? 3 A. Yes. I think we give them cookies after 4 the sale, too. 5 Q. Have you ever considered not giving them 6 cookies until after they complete the transaction? 7 A. We do both, before and after. 8 Q. Because if it was after, it wouldn't 9 really be an inducement, would it? 10 A. We do it as an inducement that they would 11 give us a referral for someone else to buy. 12 Q. Let's talk about some wholesale 13 transactions. Is Trans-West primarily a retail 14 dealership with respect to RVs? 15 A. Yes. 16 Q. Okay. By a retail dealership, do you 17 mean that Trans-West primarily sells to retail 18 customers? 19 A. Well, we're not strictly a wholesale 20 operation. We would buy and sell used, but we buy 21 some from wholesalers and sell some to wholesalers. 22 Q. But is your primary business wholesaling 23 or trading with dealers used inventory or is it -- 24 A. Our primary business is a retail 25 operation. 176 1 Q. Okay. And you have a retail license to 2 sell RVs; is that correct? 3 A. Last I checked, yeah. 4 Q. But Trans-West does sell to wholesalers; 5 is that correct? 6 A. On occasion, yes. 7 Q. Do you know basically what a wholesaler 8 does? 9 A. Yes. 10 Q. Can you describe that? 11 A. You buy from one entity and sell to 12 another that do a lot of retail. Some of them do 13 both, but . . . 14 Q. And this wholesaler, do they try to buy 15 the vehicle for less money than they sell it for? 16 A. That would be a good business practice 17 for them to have, yeah. 18 Q. And you know that wholesalers make money 19 when they buy vehicles from you -- or anticipate 20 making money; is that correct? 21 A. That's correct. 22 Q. And do you understand that wholesalers 23 try to get rid of their inventory as fast as possible? 24 A. I would assume so. 25 Q. Do you assume so or do you know so? Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 22 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 46 (Pages 181 to 184) 181 1 A. I would say your chances of making a big 2 profit aren't very good. 3 Q. Are there any other wholesale 4 transactions that Trans-West regularly enters into 5 other than those typical transactions that we just 6 talked about? 7 A. In other parts of our company? 8 Q. Just in the RV division. I'm sorry. 9 A. I don't know. I mean, we wholesale units 10 for various reasons and -- 11 Q. What are reasons other than the two that 12 I just described? 13 A. I think we just covered them. 14 Q. Okay. Those two? 15 A. No. We went through several. 16 Q. Those two, the sort of front end 17 wholesale transaction -- 18 A. You just went through about five that I 19 agreed to. 20 Q. Okay. In all of those situations, the 21 wholesale transaction makes little to no money; is 22 that correct? 23 A. Correct. 24 Q. When RVs have been in Trans-West's 25 inventory for an extended period of time, actually for 182 1 any period of time, does it incur costs associated 2 with being in its inventory? 3 A. Yes. 4 Q. What are some of those costs? 5 A. Oh, you know, you pay insurance on them. 6 If they are floor planned, you have interest on them. 7 You would have advertising costs. You would have the 8 cost of keeping them in your system. I guess you 9 could say you had a cost to have them on the lot, cost 10 of reconditioning. 11 Q. Fuel, would that be a cost? 12 A. Not if they're sitting there. It 13 shouldn't be. If you're driving them around, it could 14 have some fuel. 15 Q. How about washing? 16 A. Yes. 17 Q. Repair? 18 A. Repairs. 19 Q. Service? 20 A. Service. 21 Q. Winterizing? Would winterizing be a 22 cost? 23 A. If you winterize, yes. 24 Q. I'm not familiar with the system costs. 25 Are there additional costs that Trans-West incurs just 183 1 by virtue of it being in the system? 2 A. What do you mean by "the system"? 3 MR. FALBE: I wrote down "system" because 4 he had responded "system costs." 5 Q. (BY MR. FALBE) I just want a 6 clarification. 7 A. Did I say system? 8 MR. CAGE: I don't recall him saying 9 "system." 10 MR. FALBE: I thought he said by "being 11 in the system." Can you look back? 12 (The answer was read back as follows: 13 "You would have the cost of keeping them in your 14 system.") 15 A. Keeping them in the system, yeah. 16 Q. (BY MR. FALBE) I don't know what that 17 means. Can you explain that? 18 A. In the system, I mean, you have rent 19 costs on your facility and you have utility bills and 20 everything else. If you've got 200 coaches sitting 21 there and your cost is 20,000 bucks, you can allocate 22 it amongst the -- 23 Q. Would another cost be sort of an 24 opportunity cost? Because you could have an RV in 25 there that could sell, right? 184 1 A. Yes, that's correct. 2 Q. Is managing the days in inventory an 3 important cost measure for Trans-West? 4 A. Yes. 5 Q. Do outside third parties have any 6 influence on that? 7 A. On -- 8 Q. How long an item is in Trans-West's 9 inventory. 10 A. Under normal situations, I would say no. 11 Q. In what situations would you say yes? 12 A. If our manager was purposely putting a 13 vehicle aside for someone. 14 Q. Could that manager do it for, say, 15 200 days? 16 A. He could probably milk it out. 17 Q. For 200 days? 18 A. Yeah. 19 Q. Why wouldn't Andrew catch that? 20 A. He probably did catch it and he got the 21 wrong answer. 22 MR. FALBE: What was the last response? 23 (The last answer was read back as 24 follows: "He probably did catch it and he got the 25 wrong answer.") Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 23 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 47 (Pages 185 to 188) 185 1 Q. (BY MR. FALBE) What do you mean by "he 2 got the wrong answer"? 3 A. Well, in the case of Mullins, there would 4 be vehicles that he would say, Well, this vehicle, 5 we're waiting on repairs or I'm waiting on this or 6 something, and it wasn't true. He was actually 7 holding it for someone so that it would become aged 8 and he could sell it. 9 Q. Are you aware of any correspondence or 10 communications between Southwest and Mr. Mullins 11 indicating that Southwest asked Mr. Mullins to just 12 hold units and not sell them? 13 A. I'm not aware of any communications 14 between Southwest and Mr. Mullins. Obviously he had a 15 lot, but I wasn't involved with it. 16 Q. If you could please turn to Exhibit 16, 17 Volume 1, with the Bates number TW 1 through 6. Do 18 you see the first page? 19 A. I do. 20 Q. Where it says "Buyers Order and Invoice"? 21 A. Yes. 22 Q. Is this a sale from Trans-West to 23 Southwest? 24 A. That's what it appears to be. 25 Q. Whose form is this? 186 1 A. Trans-West's. 2 Q. Can you look on the form and tell me if 3 there are any terms or conditions that prohibit paying 4 any type of referral fee? 5 A. I don't need to look. I know it's not in 6 there. 7 Q. Are you familiar with this form? 8 A. Yes. 9 Q. You've looked at it a lot? 10 A. I looked at it when we designed it, I 11 guess. 12 Q. Okay. Would you think that paying 13 referral fees to your employees would be a material 14 term that you would want to include? 15 A. Paying a referral fee to one of my 16 employees? 17 Q. If Southwest wanted to pay a referral fee 18 on this transaction, would you consider that to be a 19 material term? 20 A. Yeah. 21 Q. Okay. If Trans-West didn't want 22 Southwest to pay a referral fee -- if Trans-West 23 didn't want Southwest to pay a referral fee to one of 24 its employees, would that be a material term? 25 A. Yeah. I've never seen anything like that 187 1 put on an order for anything. You would print out an 2 order. We don't allow you to bribe our people. 3 Q. I didn't say "bribe." I said "referral 4 fee." 5 A. We would never pay a referral fee to 6 someone that we're a selling unit to. 7 Q. I asked if you -- if Trans-West didn't 8 want Southwest to pay a referral fee to an employee if 9 that would be a material term. It's a yes or no. 10 A. Well, yes, it would be. I can't imagine 11 an instance that that could ever happen. You've got a 12 buyer and a seller. Where would a referral fee come 13 into this between those two people? A referral fee is 14 tied into a third party, not the two people doing 15 business. 16 Q. Well, isn't a manufacturer paying a 17 referral fee or a spiff to a salesperson? They're not 18 a third party, are they? 19 A. They're not paying a referral fee. 20 Q. What are they paying? 21 A. A spiff. 22 Q. Is there a definition of a spiff that 23 you're aware of in the dictionary? 24 A. I could probably find you a definition of 25 a spiff. 188 1 Q. I could find the definition of a spiff 2 that you gave in your previous testimony. 3 A. There is probably a written definition of 4 a spiff someplace. 5 Q. Is that included anywhere in the 6 Trans-West buyers order and invoice? 7 A. A spiff? 8 Q. Right. 9 A. No. 10 Q. Is it included anywhere in the records 11 that you maintain with the manufacturers that pay 12 these spiffs? 13 A. I don't believe so. 14 Q. Does anybody other than manufacturers pay 15 spiffs to your employees? 16 A. Just us. We do a lot of it internally. 17 Q. Do your third-party warranty companies 18 pay spiffs to your employees? 19 A. I don't believe so. We get a commission 20 from a third-party warranty that's paid to the 21 dealership. 22 Q. Do finance companies pay spiffs to your 23 employees? 24 A. No. 25 Q. If Andrew Lyons testified that spiffs Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 24 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 48 (Pages 189 to 192) 189 1 were paid to Trans-West employees by both finance 2 companies and third-party warranty companies, would he 3 be wrong? 4 A. We get a fee from our finance company, 5 and I know in certain cases we will give a spiff to 6 the -- our employees to finance. I'm not aware that 7 the finance company pays a spiff to the -- directly to 8 the employee. 9 Q. Do you track all of these spiffs that 10 your employees receive? 11 A. No. 12 Q. Are some of them sent directly to the 13 employees? 14 A. Some of them are, yeah. 15 Q. So some of them you wouldn't know about, 16 right? 17 A. That's possible. 18 Q. Can you look at TW 0003. Do you 19 recognize this document, or at least the form of the 20 document? 21 A. It looks like a document that they are 22 using just to recap a deal. 23 Q. Is it entitled "Frederick Admin Sheet"? 24 A. Yes. 25 Q. At the bottom is there a manager's 190 1 signature? 2 A. There is. 3 Q. Do you recognize the signature? 4 A. I really don't, but it's probably 5 Andrew's. I don't know. 6 Q. Do you think that signature indicates 7 that he approved this transaction? 8 A. Whoever signed it, yes. 9 Q. But if Andrew signed this? 10 A. If Andrew signed it, then he's the guy 11 who approved it. 12 Q. If you could turn to the next page. They 13 actually work together, TW 0004 and 0005. I think 14 they are slightly out of order, but this was how it 15 was provided to us. 16 A. Okay. 17 Q. Do you recognize this as a Transwest 18 Truck Trailer RV unit cost analysis? 19 A. Yes. 20 Q. The first item indicates there was a 21 purchase price. Do you see that? 22 A. Yes. 23 Q. Before we go there, are these records 24 maintained by Trans-West electronically? 25 A. I'm assuming that we have this 191 1 electronically. I'm not positive. I'm sure we do. 2 Q. Was this form generated by hand? 3 A. It wasn't generated by hand. I'm not 4 sure how they're all stored. It could be generated 5 and put in a deal jacket or -- these are dated 2013. 6 I don't know when these were produced. 7 Q. If Andrew said that this was maintained 8 on one of the programs -- I think it was Karmak -- and 9 this report was provided by ProfitMaster, would that 10 jog your memory? 11 A. If he said it. He doesn't lie, so 12 whatever he said. 13 Q. The first item, does that indicate the 14 purchase price of $505,000? 15 A. Yes. 16 Q. The next item says "LDown." Do you know 17 what that item is? 18 A. That is a -- that's money that would be 19 allocated to that and went into a write-down account. 20 Q. Can you explain that? I'm not tracking. 21 A. Sometimes when we buy things, they'll 22 take and add a number to it that goes into a write- 23 down account. 24 Q. Can you describe what a write-down 25 account is? 192 1 A. So they would accumulate funds in there, 2 so if they had a bad deal they could pull money out of 3 that account and write down another vehicle. 4 Q. The way it was described to me by a 5 couple of other employees, including Andrew, was this 6 was a slush fund account or packing a deal. Have you 7 heard of those terms before? 8 A. Yeah. 9 Q. Is it a way to sort of add profit to the 10 transaction on the front end? 11 A. It doesn't add profit. It would take 12 profit away. 13 Q. Does it increase the cost of the unit? 14 A. Yeah, which obviously wouldn't increase 15 the profit. 16 Q. Well, it would increase the cost of the 17 unit, but it's not an actual expense that you had to 18 write a check for; is that correct? 19 A. That's correct. 20 Q. Do you see a park-n-wash fee for $165? 21 A. I do. 22 Q. Invoice accounting BR-5, do you know what 23 that is? 24 A. More than likely it's a repair order. 25 Q. Park-n-wash for $500? Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 25 of 27 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC GEORGE EIDSNESS 3/3/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 51 (Pages 201 to 204) 201 1 A. No. 2 Q. Have you ever heard of "TrueCar"? 3 A. What? 4 Q. Have you ever heard of "TrueCar"? 5 A. TrueCar? 6 Q. Right. 7 A. No. 8 Q. Never heard of them, a publicly traded 9 company? 10 A. No. 11 Q. They get paid referral fees for each 12 customer they bring to auto dealerships. Never heard 13 of them? 14 A. No. 15 Q. Would you please look at Exhibit 18? Do 16 you recognize these documents? 17 A. Yes, an operating statement. 18 Q. Are they financial statements for the 19 years ending 2015, 2014, 2012 and 2011? 20 A. Yes. 21 Q. For what company is this? 22 A. Transwest Trucks. 23 Q. Is this your RV division? 24 A. Yes. 25 Q. Are these the true financial records of 202 1 Trans-West's RV division? 2 A. I would assume they are accurate. 3 Q. Are they just for the Frederick location? 4 A. Yes, I believe so. 5 Q. Does the net profit show a loss of 6 $1.164 million-and-change? 7 A. No. 8 Q. I'm sorry. What does it show? 9 A. 2-million-280. 10 Q. You're right. 2,280,073; is that right? 11 A. Yes. 12 Q. Can you look at the year ending 2014? 13 Does this show a net profit after taxes of $1,873,074? 14 A. That's correct. 15 Q. The next one for the year ending 2012, do 16 you see a net profit after taxes of $98,887? 17 A. Yes. 18 Q. For 2011, do you see a net profit of 19 negative $757,314? 20 A. Yes. 21 Q. Do you have any reason to believe that 22 these financial statements -- let me reask that. 23 Sorry. 24 Do these financial statements accurately 25 state the financial performance of Trans-West during 203 1 the applicable periods of time? 2 A. As far as I know they do, yeah. 3 Q. According to these financial statements, 4 has the RV division ever made money? 5 A. Not in these years, no. 6 MR. FALBE: Can we take a 10- or 7 15-minute break? 8 (Recess taken, 2:36 p.m. to 2:48 p.m.) 9 MR. FALBE: Back on the record. 10 I think I'm going to conclude this, but 11 leave the deposition open subject to our disputed 12 items, which include the California issues, all the 13 stuff that's been recorded in all of the other 14 depositions. 15 MR. CAGE: I have one question, though. 16 MR. FALBE: Do you want it on the record? 17 MR. CAGE: Sure. Yes. 18 EXAMINATION 19 BY MR. CAGE: 20 Q. You had mentioned that you had a 21 telephone conversation with Scott Buchanan on direct 22 examination. Do you recall that? 23 A. Yes. 24 Q. Okay. You said, I believe -- correct me 25 if I'm wrong, you said that he threatened that you 204 1 would be in big trouble if you didn't drop the lawsuit 2 against Mr. Mullins; is that correct? 3 A. Yes. 4 Q. Did he mention to you what the big 5 trouble was? 6 A. He said he was going to have the State of 7 California come after me, I guess is the way he stated 8 it. 9 MR. FALBE: Objection. 10 MR. CAGE: I have no other questions. 11 MR. FALBE: So I think you just opened 12 the door for me to ask all about the California 13 operation. 14 MR. CAGE: I was just asking a question 15 as a follow-up to what you asked to get a more 16 specific answer. 17 MR. FALBE: Can you read back the 18 question? 19 (The last question was read back as 20 follows: "Did he mention to you what the big trouble 21 was?") 22 MR. FALBE: And what was the response? 23 (The last answer was read back as 24 follows: "He said he was going to have the State of 25 California come after me, I guess is the way he stated Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 26 of 27 GEORGE EIDSNESS 207 REPORTER'S CERTIFICATE STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) I, MARCHELLE HARTWIG, Certified Shorthand Reporter and Notary Public, ID 20014012312, State of Colorado, do hereby certify that previous to the commencement of the examination, the said GEORGE EIDSNESS was duly sworn by me to testify to the truth in relation to the matters in controversy between the parties hereto; that the said deposition was taken in machine shorthand by me at the time and place aforesaid and was thereafter reduced to typewritten form; that the foregoing is a true transcript of the questions asked, testimony given, and proceedings had. I further certify that I am not employed by, related to, nor of counsel for any of the parties herein, nor otherwise interested in the outcome of this litigation. IN WITNESS WHEREOF, I have affixed my signature this 7th day of March, 2016. My commission expires April 19, 2017. ___X__ Reading and Signing was requested. ______ Reading and Signing was waived. ______ Reading and Signing is not required. Case 1:15-cv-02233-RM-MJW Document 117-5 Filed 07/28/16 USDC Colorado Page 27 of 27 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 15-cv-02233-RM-MJW 3 _______________________________________________________ 4 DEPOSITION OF: ANDREW LYONS - March 1, 2016 _______________________________________________________ 5 TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, 6 Plaintiff, 7 v. 8 SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, 9 Defendants. 10 _______________________________________________________ 11 PURSUANT TO NOTICE, the deposition of ANDREW LYONS was taken on behalf of the Defendants at 12 1200 17th Street, Suite 1900, Denver, Colorado 80202, on March 1, 2016, at 9:04 a.m., before Marchelle 13 Hartwig, Certified Shorthand Reporter and Notary Public within Colorado. 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 6 Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 1 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 3 (Pages 9 to 12) 9 1 A. Yes. 2 Q. Was it accurate? 3 A. Yes. 4 Q. Do you wish to clarify any of your 5 testimony in that proceeding? 6 A. No. 7 Q. In your conversations with Mr. Cage about 8 this deposition, what did those entail? 9 MR. CAGE: Objection. Attorney-client 10 privilege. 11 Don't answer. 12 Q. (BY MR. FALBE) Have you prepared any 13 written statements or outlines? 14 A. Ask the question again. 15 Q. Have you prepared any written statements 16 or outlines? 17 A. No. 18 Q. Have you been involved with any prior 19 lawsuits? 20 A. No. 21 Q. Have you been involved with the Mullins 22 lawsuit? 23 A. Yes. 24 Q. Other than the Mullins lawsuit and this 25 lawsuit, have you been involved in any other lawsuits? 10 1 A. No. 2 Q. So can you tell me a little bit about the 3 business that Trans-West operates? 4 A. Trans-West sells trucks, vehicles, motor 5 homes, horse trailers. There is a manufacturing 6 division and a leasing division. 7 Q. And what part of the business are you 8 involved with? 9 A. Horse trailers, trucks, motor homes, 10 parts and service. 11 Q. And are you employed by Trans-West? 12 A. I am. 13 Q. What is your position there? 14 A. I am a GM of the Frederick location. 15 Q. What are your responsibilities as a 16 general manager? 17 A. I get to oversee at that branch parts, 18 service, horse trailers, trucks and RVs. 19 Q. When you say "RVs," do you mean the sales 20 and service of RVs? 21 A. That is correct. 22 Q. When you say "oversee that," what does 23 that mean? 24 A. Each division under that has a division 25 manager, so there is division managers for each piece 11 1 of that, and I get to oversee that and just general 2 day-to-day operation of everything that happens at the 3 dealership. 4 Q. Are you responsible for the operations at 5 this Frederick location? 6 A. I am responsible for most of it, but it's 7 not a -- there are wholesale managers involved in some 8 of the divisions. 9 Q. Are you responsible for the performance 10 of the managers that operate as your subordinates? 11 A. Partially, yes. 12 Q. In what way partially? 13 A. Some of the divisions have also other 14 managers. 15 Q. And so where does your responsibility 16 start and when does it end? 17 A. My responsibility is more day-to-day. 18 There are other managers that look at a lot of 19 different pieces of the business, but I'm the one 20 that's there on a day-to-day basis. 21 Q. Okay. So if parts are stolen out of the 22 parts bin, are you responsible for that? 23 A. Well, there is layers of people that are 24 responsible for that, but at the end of the day, there 25 would be two people, ultimately, at the end of the 12 1 chain responsible for that. 2 Q. And who is that? 3 A. That would be myself and the parts 4 director. 5 Q. So if somebody stole out of the parts 6 bin, you just testified that you would ultimately be 7 responsible as well as the parts director; is that 8 correct? 9 A. That's correct. 10 Q. And what if somebody stole out of the 11 parts bin twice, would you be responsible for that? 12 A. It's still stealing. 13 Q. And you would ultimately be responsible 14 for that? 15 A. I would have to answer for it. 16 Q. Do you have an oversight over things like 17 stealing out of the parts bin? 18 A. I get to oversee that stuff, yeah. 19 Q. I didn't ask if you oversaw it. I asked 20 if you had responsibility over stealing out of the 21 parts bin. 22 A. It would not -- it would not be totally 23 up to me to make whatever decision was made, no. 24 Q. I didn't ask you if you had 25 decision-making ability. I said would you be Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 2 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 5 (Pages 17 to 20) 17 1 looking. 2 Q. Higher or lower than 250? 3 A. '14? New? Are we talking about new or 4 used? 5 Q. New. 6 A. I don't know. 7 Q. No idea? 8 A. No idea. 9 Q. You don't know if it's higher or lower? 10 Is it more than 200? 11 A. Yes. 12 Q. Is it less than 300? 13 A. I don't know. 14 Q. How about 2013? 15 A. I couldn't tell you. 16 Q. When did you start as a general manager? 17 A. 20- -- when did Randy retire? There was 18 a hand-off in 2011, I think. 19 Q. Okay. So you've been the general manager 20 since 2011, and you think that 250 new RVs were sold 21 by Trans-West at your location that you're responsible 22 for. You have no idea in 2014 and you have no idea in 23 2013; is that correct? 24 A. Yeah. That's -- 25 Q. Do you know how many used RVs were sold 18 1 by Trans-West -- 2 MR. CAGE: Let him finish answering the 3 question. You're interrupting him. 4 A. I would have to go look to give you exact 5 numbers. I do not know the exact -- 6 Q. (BY MR. FALBE) Did I ask for exact 7 numbers? 8 A. No. You said approximately, but I don't 9 have -- let's say I don't know. 10 Q. How many used RVs did you sell -- did 11 Trans-West sell in Frederick in 2015? 12 A. In 2015? I don't know. 13 Q. 2014? 14 A. Don't know. 15 Q. 2013? 16 A. Don't know. 17 Q. How many of these were trades? 18 A. How many of them were trades? 19 Q. Right. 20 A. It was the majority. 21 Q. Majority. Has your location ever made a 22 profit in new RV sales? 23 A. In new RV sales? No, but it's not run as 24 a new RV division. It's run as an RV division, so I 25 don't know. 19 1 Q. Has the RV division ever made a profit? 2 A. No, it has not. 3 Q. Has the used RV division ever made a 4 profit? 5 A. I don't know. 6 Q. You don't know if the used RV department 7 has ever made a profit? 8 A. I just said it was run as an entire 9 division. 10 Q. Has the RV service department that you're 11 responsible for ever made a profit? 12 A. Yes. 13 Q. What years? 14 A. Last year. 15 Q. How much? 16 A. Probably 90- -- are you talking net 17 profit? 18 Q. You tell me. 19 A. 90,000. 20 Q. $90,000 net? 21 A. Somewhere around there. 22 Q. And service? 23 A. And service. 24 Q. I asked you about parts. I'm asking you 25 now about service. 20 1 A. No. You asked me about service. 2 MR. FALBE: Can you read that back? 3 (The question was read back as follows: 4 "Has the RV service department that you're responsible 5 for ever made a profit?") 6 Q. (BY MR. FALBE) Has the RV parts 7 department ever made a profit? 8 A. No. I'm going to say no. 9 Q. Has the RV division as a whole, including 10 parts, service, sales -- has it ever made a profit? 11 A. It has not. 12 Q. Have you ever been reprimanded for not 13 being profitable? 14 A. I've had many discussions about it. 15 Q. Have you ever received a bonus? 16 A. Not recently. 17 Q. Have you ever received a bonus while you 18 were employed as a general manager at Trans-West? 19 A. Yes. 20 Q. And in what year did you receive a bonus? 21 A. There were some in 2015, there were some 22 in '14. Beyond that, I couldn't tell you. 23 Q. Didn't you just tell me that you didn't 24 receive a bonus recently? 25 A. Yeah, I did. I'll say there was monthly Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 3 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 6 (Pages 21 to 24) 21 1 bonuses paid on several occasions between '14 and '15. 2 Q. And how many bonuses did you receive in 3 2015? 4 A. Maybe one or two. 5 Q. What was the amount of the bonuses? 6 A. Oh, so it was -- I think one of them was 7 20-something-hundred. I would have to go look. It 8 wasn't very much. 9 Q. It wasn't very much? 10 A. No. 11 Q. What was your bonus in 2015 -- '14? I'm 12 sorry. 13 A. I couldn't tell you without looking. It 14 wasn't much. It was very similar. 15 Q. What was your bonus in 2013? 16 A. Couldn't tell you. 17 Q. How is your bonus calculated? 18 A. There is a monthly calculated and then a 19 year-end. 20 Q. And how is that calculated? 21 A. It's calculated off of the net profit of 22 the division. 23 Q. How does a division that loses money pay 24 a bonus to its general manager on net profit when you 25 just testified that it has a loss? 22 1 A. It was a monthly bonus. 2 Q. On certain months you actually made a 3 profit? 4 A. Yes. 5 Q. And received a bonus for that? 6 A. Yes. 7 Q. Did you have to give the bonus back at 8 the end of the year when you ended up losing money? 9 A. No. 10 Q. Who's your boss? 11 A. At the end of the day, it's the owner of 12 the company. 13 Q. Who's that? 14 A. George Eidsness. 15 Q. Is he also the president? 16 A. He is. 17 Q. Did you complete interrogatories that 18 indicate that you report directly to George Eidsness? 19 A. I believe so. 20 Q. Is that truthful? 21 A. That I report directly to George? 22 Q. Correct. 23 A. He's my -- that's who I report to. 24 Q. And he's the owner of the company? 25 A. Yes. 23 1 Q. He's also the president of Trans-West, 2 right? 3 A. That's correct. 4 Q. Is he also your father-in-law? 5 A. He is. 6 Q. Do you have certain confidential 7 information that's part of your business? 8 A. Ask the question again. 9 Q. Do you have certain confidential 10 information that's part of Trans-West's business? 11 MR. CAGE: That calls for a legal 12 conclusion. 13 You may answer if you know. 14 A. I don't understand the question. 15 Q. (BY MR. FALBE) Do your best. 16 A. No. Ask me the question again. 17 Q. Does Trans-West have confidential 18 information? 19 MR. CAGE: Same objection. 20 You may answer. 21 A. I don't understand. I don't know what it 22 means. 23 Q. (BY MR. FALBE) Do you know what 24 confidential information is? 25 A. Yeah. 24 1 Q. What is it? 2 A. If it's confidential, it's confidential. 3 I don't understand the question, I guess. I need to 4 ask somebody, but . . . 5 Q. I'm asking you the question. 6 A. Okay. 7 Q. Do you know what confidential information 8 is? 9 MR. CAGE: Same objection. 10 You may answer if you know. 11 A. I don't know. 12 Q. (BY MR. FALBE) Are there -- is there 13 business information that Trans-West -- that you are 14 in charge of safeguarding? 15 A. There are no secrets. 16 Q. Okay. Do you consider personnel 17 information at your location to be confidential 18 information? 19 A. Yes. Define "confidential," because 20 there is confidential information that we deal with 21 every day that when we get into a court hearing like 22 this, it comes out. There are no secrets. 23 Q. Would you consider your employee handbook 24 confidential information? 25 A. No. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 4 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 7 (Pages 25 to 28) 25 1 Q. Do you hand it out to everybody? 2 A. Yes. 3 Q. You hand it out to everybody? When I say 4 "everybody," I don't mean every employee, I mean 5 everybody. Do you hand it out to everybody that buys 6 a coach from Trans-West? 7 A. We do not. It's called an employee 8 handbook. 9 Q. Do you hand out your employee handbook to 10 people who sell you coffee? 11 A. No. 12 Q. Do you hand out your employee handbook to 13 your manufacturers? 14 A. No. 15 Q. If I walked into Trans-West and said, 16 Could I have a copy of your employee handbook, would 17 you give it to me? 18 A. Probably. 19 Q. What if I wasn't a lawyer and you didn't 20 know me? 21 A. I would probably ask you who you are, but 22 it's not -- it's not under lock and safe, believe me. 23 It's available. 24 Q. Are your sales practices important 25 business information for Trans-West? 26 1 A. Sales practices? 2 Q. The sales practices that you oversee as a 3 general manager, are they important to Trans-West? 4 A. Yes. 5 Q. Do you tell everybody how to sell 6 vehicles? 7 A. We don't just tell them, no. 8 Q. Would you consider that a trade secret? 9 MR. CAGE: Objection. Form of the 10 question. It calls for a legal conclusion. 11 You may answer if you know. 12 A. There are no trade secrets to selling 13 motor homes. 14 Q. (BY MR. FALBE) Do you think there's a 15 trade secret to the way that Marcus Lemonis would sell 16 a motor home? 17 MR. CAGE: Same objection. 18 You may answer. 19 A. No, there are no trade secrets to selling 20 motor homes. 21 Q. (BY MR. FALBE) Do you ever sell to other 22 dealers? 23 A. We do. 24 Q. Do you ever buy from other dealers? 25 A. We do. 27 1 Q. Do you ever buy RVs from wholesalers? 2 A. We do. 3 Q. Do you ever sell RVs to wholesalers? 4 A. We do. 5 Q. What type of contracts do you use when 6 you purchase -- or when you sell an RV to a customer? 7 A. What contracts? What was the question? 8 Q. What types of contracts does Trans-West 9 use when it sells an RV to a customer? 10 A. All the standard forms that are required 11 by the State. 12 Q. What are those? 13 A. I couldn't tell you. 14 Q. As you sit here today as the general 15 manager, you don't know what forms are required. Do 16 you know any forms that are required? 17 A. Yeah, I do. I couldn't tell you every 18 one of them because there is -- 19 Q. Why don't you tell me -- 20 MR. CAGE: Let him finish his answer 21 before you interrupt him again, please. 22 A. So ask the question again. 23 Q. (BY MR. FALBE) Tell me the documents 24 that you do know that are part of a transaction with a 25 customer. 28 1 A. There is a buyers order. 2 Q. Anything else? 3 A. There is a temp tag, there is a temporary 4 registration, there is a delivery receipt. Those are 5 the three big things that happen every day, but I have 6 a department and we have procedures that we make sure 7 we stay in compliance with the State. 8 Q. Is it all state based? 9 A. Is it all state based? 10 Q. Are your forms based on state forms? 11 A. We have some of our own. 12 Q. Which forms are your own? 13 A. I have a delivery receipt that is ours. 14 That one is ours I know for sure, but I don't know if 15 there are any others. 16 Q. When you sell an RV to another dealer, 17 whose paperwork do you use? 18 A. When we sell it to another dealer? 19 Q. Yes. 20 A. We use ours. We're supposed to use ours. 21 Q. When you sell vehicles/RVs to 22 wholesalers, whose forms do you use? 23 A. We would use ours. 24 Q. When you say "ours," do you mean 25 Trans-West's? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 5 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 8 (Pages 29 to 32) 29 1 A. No, not necessarily. 2 Q. Oh. What forms would those be, then, if 3 they're not Trans-West's forms? 4 A. We use whatever is required. 5 Q. Does Trans-West generate the forms? 6 A. No, they don't. 7 Q. Who does? 8 A. There is companies that you buy them 9 from. 10 Q. And who provides the transaction 11 documents when you sell to a wholesaler? 12 A. Does this wholesaler have a dealer's 13 license? 14 Q. I don't know. Which wholesalers do you 15 sell to? Do they have dealer's licenses? 16 A. Yes. I know for a fact that there are 17 some people that try and represent themselves as 18 wholesalers and they do not have dealer's licenses, 19 but it's our job to check that, and the forms would be 20 a standard buyers order or contract. I mean, if you 21 want to, you can write it on a piece of paper. There 22 is no -- 23 Q. A wholesaler wants to buy an RV from you. 24 Do they hand you a stack of documents and say, Sign 25 here? Or do you hand them a stack of documents and 30 1 you say, Sign there? 2 A. If they were smart, they would. 3 Q. How many of those wholesalers are smart? 4 MR. CAGE: Objection. Form of the 5 question. Foundation. 6 You may answer. 7 A. Some of them are. 8 Q. (BY MR. FALBE) Which ones? 9 A. Don't know. 10 Q. How many wholesalers do you sell to at 11 Trans-West? 12 A. A lot. 13 Q. Name all of them that you can. 14 A. RV America, Camping World, Windish. 15 There is -- I'm not going to get into a list of 16 wholesalers, no. 17 Q. What do you mean you're not going to get 18 into that? 19 A. Well, what do you want? 20 Q. I asked you to list as many as you could. 21 A. Okay. That's who I can list. 22 Q. That's all you can list? 23 A. Yeah. 24 Q. So before you testified that you sell to 25 a lot of wholesalers and you can come up with three 31 1 names right now? 2 A. Yeah. 3 Q. Can you describe the claims that 4 Trans-West filed against Mr. Mullins? 5 MR. CAGE: I would point out that that's 6 part of the 30(b)(6) inquiry. 7 MR. FALBE: I'm asking -- 8 MR. CAGE: I'm going to make my objection 9 and then you can say whatever you want to say. Okay? 10 My objection is that that's part of a 30(b)(6) 11 inquiry. He's testifying as -- this is not the 12 designee for that. He is testifying in his individual 13 capacity. So if he knows, he knows in his individual 14 capacity. He's not speaking for the company in regard 15 to that nor anything else today. 16 You may answer. 17 MR. FALBE: I would like to go on the 18 record indicating that Mr. Cage yelled and this will 19 be the last time that you yell at me. 20 MR. CAGE: Well, let me go on the record, 21 too, and say you're the smartest ass son of a gun I've 22 seen in a long time. You sit there and chuckle. You 23 sit there and make faces. You just disgrace this 24 whole procedure by your snide remarks and your snide 25 comments and your laughter. So I'm on the record, 32 1 too. It's certainly irritating to deal with a lawyer 2 who is as unprofessional as you are. 3 Q. (BY MR. FALBE) Do you know any of the 4 claims that Trans-West has filed against Jeffrey 5 Mullins? 6 A. I do. 7 Q. Can you state the nature of those claims? 8 A. Ask the question again. 9 Q. Can you state the nature of the claims? 10 A. We are basically filing against Jeff for 11 stealing from us. 12 Q. How did Jeff steal against you? 13 A. He used a simple kickback system. 14 Q. What is a simple kickback system? 15 A. He would either buy or sell motor homes 16 but not limit it to motor homes. I don't know what 17 else. And he was either enticed or he came up with 18 it -- I don't know -- to where he would buy or sell 19 these said motor homes for a discount or on a buying 20 side on a -- for an increased price and he would get a 21 kickback from whoever he did the transaction with. 22 Q. Are these transactions that you oversaw? 23 A. Well, Jeff worked for me. 24 Q. How long did this relationship last? 25 A. Well, he came to work for us in 2011 and Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 6 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 9 (Pages 33 to 36) 33 1 he got fired in June of last year. 2 Q. Were you his general manager the entire 3 time? 4 A. I was. 5 Q. Can you describe the claims against -- 6 Trans-West made against Southwest Luxury Coach and 7 Scott Buchanan? 8 MR. CAGE: Same objection as before. You 9 may answer. 10 A. Pretty simple. He would sell a coach to 11 Southwest Luxury and there was an amount of money, a 12 kickback, that Jeff received at very similar times to 13 those transactions. 14 Q. (BY MR. FALBE) Walk me through a sample 15 transaction where Jeff received a kickback from 16 Southwest. 17 A. From Southwest. A coach is sold from 18 Trans-West to Southwest Luxury Coaches, and right 19 around that time, Jeff would receive a kickback. 20 Q. Perhaps I wasn't as clear as I should 21 have been. Can you give me a particular example of a 22 transaction where you believe this happened? 23 A. A particular? No. I would have to go 24 look through all my stuff and give you dates and 25 times, but it's all out there. But no, I cannot. 34 1 Q. Did you complete the discovery requests? 2 A. Did I complete the discovery? 3 Q. Are you aware that Southwest -- I'm 4 sorry. 5 Are you aware that Southwest Luxury Coach 6 and Scott Buchanan propounded discovery on Trans-West 7 to answer? 8 A. Yeah. 9 Q. Did you help participate in providing 10 that discovery? 11 A. Did I participate? If that's going and 12 getting a file out of a drawer, yeah. 13 Q. Did you get these files out of a drawer? 14 A. Yeah. 15 Q. And then you provided them to your 16 attorneys? 17 A. That is correct. 18 Q. Did they ever tell you not to get any 19 information? 20 A. To not get information? No. 21 Q. Do you know of anything that Southwest 22 took that belonged to Trans-West? 23 A. Southwest took that belonged to 24 Trans-West? 25 MR. CAGE: Objection. Legal conclusion. 35 1 You may answer. 2 A. Yeah. 3 Q. (BY MR. FALBE) What? 4 A. They -- well, it was taken in a 5 roundabout way. 6 Q. What property that belonged to Trans-West 7 did Jeff Mullins take? 8 A. A portion of a value of a motor home. 9 Q. What did Southwest take that was 10 Trans-West's property? 11 A. Trans-West's property? 12 Q. What did Southwest -- 13 A. They didn't pick up anything and carry it 14 out, no. 15 Q. What property did they take that belonged 16 to Southwest? 17 A. That belonged to Southwest? 18 Q. Right. 19 A. If it belonged to Southwest, they can 20 take it. 21 Q. I'm sorry. To Trans-West. What property 22 did the defendants take that belonged to Trans-West? 23 A. Partial values of motor homes. 24 Q. Can you give me an example? 25 A. Do you want an example? 36 1 Q. How did they take the value of a motor 2 home? Did they take the RV without paying for it? 3 A. No, they did not. 4 Q. Did Southwest take any money from 5 Trans-West without paying for it? 6 A. Any money? No. 7 Q. So they didn't steal money from 8 Trans-West? 9 MR. CAGE: Same objection. 10 A. No. They didn't steal money, no. 11 Q. (BY MR. FALBE) Are you aware of the 12 defendants ever forging a check from Southwest -- I'm 13 sorry -- from Trans-West? Are you aware of the 14 defendants ever forging a check from Trans-West? 15 A. Forging a check? No. 16 Q. Is there anything on your buyers order 17 that indicates that fees are not allowed to be paid to 18 a Trans-West employee? 19 A. Ask me that again. 20 Q. Are you familiar with the buyers order 21 that you used on every sale transaction for RVs? 22 A. Buyers order? Yeah. 23 Q. Have you looked at that before? 24 A. I have. 25 Q. Are you familiar with that document? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 7 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 10 (Pages 37 to 40) 37 1 A. Somewhat. 2 Q. Are you aware of any provision that says 3 that fees are not allowed to be paid to a Trans-West 4 employee? 5 A. On that particular document? 6 Q. Correct. 7 A. On a buyers order? 8 Q. Correct. 9 A. No. 10 Q. Are you aware of any document that 11 prohibits paying a Trans-West employee that you give 12 to any outside third party? 13 A. Not that I know of. 14 MR. FALBE: Are you passing him notes? 15 MR. CAGE: Do you see me passing him 16 notes? 17 MR. FALBE: I see you writing on your pad 18 of paper and I see you gesturing toward your pad of 19 paper. 20 MR. CAGE: See what you want. Ask the 21 questions you want. I'm just taking notes. That's 22 all. I've taken three. 23 Q. (BY MR. FALBE) Did employees of 24 Trans-West sign these buyers orders to Southwest? 25 A. Some of them. 38 1 Q. How many people have to sign a buyers 2 order? 3 A. A buyers order is typically signed by the 4 purchaser and the seller. 5 Q. Is there any other paperwork that goes 6 along with that transaction? 7 A. Are we talking about to a wholesaler or a 8 dealer? 9 Q. Transactions between Southwest and 10 Trans-West. 11 A. There is titles that need to be 12 transferred. There is a buyers order. There is a 13 copy of a dealer's license. That's pretty much it. 14 Q. Did employees of Trans-West sign the 15 checks that were paid to Southwest? 16 A. Did employees of Trans-West -- somebody 17 has to sign a check, don't they? 18 Q. I don't know. You tell me. 19 A. Yeah. 20 Q. You're the general manager, right? 21 A. They have to be signed or they don't 22 work, right? 23 Q. I don't know. Do they work? 24 A. They must have. 25 Q. Were the checks written from 39 1 Trans-West -- or to Trans-West from Southwest 2 deposited into a Trans-West account? 3 A. As far as I know. 4 Q. Was it your job to know as the general 5 manager? 6 A. It's my job to know that the money shows 7 up, yes. 8 Q. So it's your job to know if money is 9 deposited into Trans-West's account? 10 A. Yes. 11 Q. Did Trans-West -- employees of Trans-West 12 sign titles that were sent from Southwest to 13 Trans-West? 14 A. Did Trans-West -- ask me the question 15 again. 16 Q. Did employees who worked for Trans-West 17 sign the titles that were sent from Southwest to 18 Trans-West? 19 A. Yeah, some of them. 20 Q. Did employees from Trans-West sign the 21 titles that were sent from Trans-West to Southwest? 22 A. Yes. 23 Q. Were they doing so under their authority? 24 MR. CAGE: Objection. Form. 25 You may answer. 40 1 Foundation. 2 A. Yeah. 3 Q. (BY MR. FALBE) Could you have stopped 4 them from signing these checks? 5 A. Checks or titles? 6 Q. Could you have stopped them from signing 7 any of the documents that we've talked about? 8 A. Yeah, could have. 9 Q. Are you familiar with the damages that 10 Southwest has alleged against the defendants in this 11 litigation? 12 MR. CAGE: Objection. Form of the 13 question. 14 You may answer if you know. 15 A. Ask me the question again. 16 Q. (BY MR. FALBE) Do you know how 17 Trans-West calculated the damages they alleged against 18 the defendants? 19 A. Not entirely, no. 20 Q. Do you know who does? 21 A. I would say legal counsel. I did not 22 file -- 23 Q. Are you aware of anybody at Trans-West 24 coming up with the damage calculation? 25 A. No. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 8 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 12 (Pages 45 to 48) 45 1 honestly don't know. I don't know where it is right 2 now. I think the IT department has it. 3 Q. Who's in charge of your IT department? 4 A. Adam Richter. 5 Q. Who else is in your IT department? 6 A. Who else? There is a handful of people. 7 Q. How many people work in the IT 8 department? 9 A. I think there is three. I think there is 10 four of them right now. 11 Q. Did you ask your IT employees to provide 12 electronically stored information relating to this 13 case? 14 A. Did I? I did not, no. 15 Q. Are you aware of anybody else that did? 16 MR. CAGE: Objection. Foundation. 17 You may answer if you know. 18 A. I'm sure somebody did. 19 Q. (BY MR. FALBE) Did you find any loan 20 documents in connection with this discovery process? 21 A. Loan documents? No. 22 Q. Did you look for any loan documents? 23 A. No. 24 Q. Why didn't you look for loan documents? 25 They were requested. 46 1 A. Loan documents? 2 Q. Loan documents. 3 A. I don't know anything about it. Loans? 4 Whose loan documents? 5 Q. Trans-West's loan documents. 6 A. It wasn't asked of me, no. 7 Q. Did you read all of the discovery 8 requests that were provided to Trans-West from 9 Southwest? 10 A. No. Not all of it, no. 11 Q. You didn't read all of it? 12 MR. CAGE: I'm going to just object. 13 You're asking 30(b)(6) questions from the wrong 14 witness. 15 MR. FALBE: I'm asking what his personal 16 knowledge is. 17 MR. CAGE: That's fine. I just want to 18 put my objection on the record. That's all. 19 Q. (BY MR. FALBE) And I want to be clear. 20 You said you've not read all of the discovery 21 requested from you? 22 A. No. I looked through it, but if I had to 23 sit here and say that I read it all, no, I have not 24 read it all. 25 Q. Not all of the discovery documents. All 47 1 of the discovery questions. 2 A. No, I didn't. 3 Q. You didn't read it? 4 A. I browsed through it and I had to go get 5 certain pieces, so no. 6 Q. Were you asked to get dealer agreements? 7 A. Dealer agreements? 8 MR. CAGE: I'm just going to object. 9 It's part of the protective order, motion for the 10 protective order. It's privileged until the Court 11 rules on that under local rule 30.2. 12 So you don't have to answer that. 13 Q. (BY MR. FALBE) Do you have any knowledge 14 about spiffs that were paid to Trans-West employees? 15 MR. CAGE: Object to form. 16 You may answer. 17 A. I guess define "spiffs." 18 Q. (BY MR. FALBE) Why don't you define 19 spiff. 20 A. Yeah. Trans-West employees receive 21 spiffs from various people, yes, they do. 22 Q. And what is a spiff? 23 A. A spiff is typically above and beyond, 24 outside the scope of the normal commission that's paid 25 to our salesperson. 48 1 Q. And who pays these? 2 A. Manufacturers. Typically manufacturers. 3 Sometimes finance companies, third-party warranty 4 companies. 5 Q. Anything else? 6 A. No. 7 Q. How are these paid? 8 A. How are they paid? They can be in the 9 form of credit cards, points, checks. There are 10 various forms. 11 Q. Do you track what amounts are paid to 12 Trans-West employees? 13 A. I do not, no. 14 Q. Do you know if that is tracked within 15 Trans-West's accounting or finance department? 16 A. No, it's not. 17 Q. For any of it? 18 A. Some pieces of it are, but no. 19 Q. Which pieces are? 20 A. The stuff that we pay. 21 Q. The stuff that you pay? 22 A. That Trans-West pays, yes. 23 Q. But it doesn't track anything else. 24 A. No. It does not track manufacturer 25 spiffs, no. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 9 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 13 (Pages 49 to 52) 49 1 Q. So if I wanted to get this information, I 2 would have to go directly to those individuals? 3 A. You would have to go to the 4 manufacturers. 5 Q. Okay. And these manufacturers, finance 6 companies, third-party warranty companies, they would 7 have copies of all of this stuff? 8 A. Oh, yeah. 9 MR. CAGE: Objection. Foundation. 10 You may answer, if you know. 11 A. Yeah. 12 Q. (BY MR. FALBE) Are you familiar with 13 Trans-West's employee handbook? 14 A. Somewhat. 15 Q. How familiar are you? 16 A. I read it when I signed on, which is a 17 while ago, and there are parts and pieces of it that 18 we look at here and there. Not super familiar, no. 19 Q. Is every Trans-West employee required to 20 sign it? 21 A. I believe so. 22 Q. Are they allowed to negotiate this? 23 A. Negotiate it? I guess there is a 24 possibility they could. 25 Q. Have you ever seen a Trans-West employee 50 1 negotiate the terms of their employee handbook? 2 A. I have not. 3 Q. Not once? 4 A. No. 5 Q. How many employees does Trans-West have? 6 A. 700, maybe more. 7 Q. And you're not aware of any of them ever 8 negotiating their employee handbook that they signed? 9 A. I'm not aware of it. I'm not saying that 10 it didn't happen, but I'm not aware of it, no. 11 Q. Would you call that an employment 12 contract? 13 MR. CAGE: Objection. Form of the 14 question. Calls for a legal conclusion. 15 You may answer. 16 A. I don't know. 17 Q. (BY MR. FALBE) Are you -- your 18 understanding of the employee handbook, are there 19 requirements for Trans-West to act in a certain way, 20 or is it just on the employees' side? 21 MR. CAGE: Same objection. 22 You may answer. 23 A. There is some pieces in there where there 24 are employee actions requested. 25 Q. (BY MR. FALBE) Do you give copies of 51 1 this employee handbook to each customer that comes in 2 to Trans-West? 3 A. We do not. 4 Q. When somebody buys a part, you don't give 5 them a copy of your employee handbook? 6 A. No. 7 Q. How about a dealer? 8 A. No. 9 Q. Customer? 10 A. No. 11 Q. Wholesaler? 12 A. No. 13 Q. That's no to all of those questions, 14 right? 15 A. It is no to all of the questions. 16 Q. I'm going to hand you what I'm going to 17 mark as Exhibit 1, which is a two-volume set -- 18 MR. CAGE: Before you mark it as 19 Exhibit 1, I would -- my recollection is that we told 20 the Court in a pretrial order that we would use 21 consecutive numbering of deposition exhibits, so I 22 would recommend that we follow that and mark it as 23 Exhibit 16. 24 MR. FALBE: Okay. 25 MR. CAGE: I think that's what we told 52 1 the Court. I may be wrong, but that's what I think we 2 told the Court. 3 MR. FALBE: I'm not opposed to it, so we 4 can mark it as Exhibit 16. 5 Is that your binder? 6 MR. CAGE: This is my binder of the 7 exhibits that was on the table when I walked it. It's 8 not mine. It could be mine, but nobody has given it 9 to me. It was just sitting here. 10 Q. (BY MR. FALBE) Volume 1 and Volume 2. 11 MR. CAGE: That's the witness exhibit. 12 MR. FALBE: It is the witness exhibit. 13 MR. CAGE: Is there a copy for counsel? 14 MR. FALBE: There is. 15 (Deposition Exhibit 16 was marked.) 16 Q. (BY MR. FALBE) If you could please turn 17 to -- I'm going to -- 18 MR. FALBE: Can we also mark the 19 Trans-West documents as 17, then? 20 (Deposition Exhibit 17 was marked.) 21 Q. (BY MR. FALBE) Could you please turn 22 to -- 23 MR. CAGE: Is there a copy for counsel? 24 Documents produced by Southwest, is that to be 25 Exhibit 17? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 10 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 21 (Pages 81 to 84) 81 1 Q. That's what I'm asking for, exceptions 2 that don't relate to the Eidsness family. 3 A. That work in my division? 4 Q. Correct. 5 A. Right now I don't have any. 6 Q. Okay. On page 35 of the handbook, it 7 talks about conflicts of interest. It's on TW 000919. 8 It says "Conflict of Interest/Business Ethics." Is 9 this approximately the same provision that you saw 10 before? Does it look familiar? 11 A. Yeah. 12 Q. The third bullet point, does it say, "No 13 employee or member of the employee's immediate family 14 should accept gifts (including but not limited to 15 services, discounts, trips, cash) from any person or 16 firm doing or seeking to do business with the Company, 17 as by doing so, it might infer the gift was given to 18 influence the employee in conducting business with the 19 donor"? Is that what it says? 20 A. That's what it says. 21 Q. Does it also say that "Such gifts should 22 be returned with a note of explanation"? 23 A. That's what it says. 24 Q. And you already testified that Trans-West 25 made an exception to this policy when it allowed its 82 1 employees to accept spiffs from manufacturers, 2 financing companies and third-party warranty 3 companies, correct? 4 MR. CAGE: Objection. Form of the 5 question. That's not his testimony. 6 You may answer. 7 A. Yeah, we made exceptions about stuff we 8 know about. 9 Q. (BY MR. FALBE) So that would be a fair 10 characterization? 11 A. There are exceptions made to stuff we 12 know about, yes. 13 Q. When you allowed the employees to receive 14 this, did they get some sort of acknowledgment that 15 this is an exception to the employee handbook? 16 A. In some cases, yes. Some companies 17 actually send us a letter that says your employees are 18 going to receive X, Y, Z. 19 Q. When you assembled all of this discovery 20 information that you gave to us, did you collect any 21 of those notices that you sent out to the employees 22 that said you're allowed to receive this? 23 A. I don't know. 24 Q. Do you maintain records that have that? 25 A. I don't believe so. 83 1 Q. Did you destroy these records? 2 A. No. I have to send it back to the -- 3 whoever sent it to you. 4 Q. I'm confused. You have to send it back 5 to whoever you sent it to. What does that mean? 6 A. Whoever sent it to us. It's an 7 acknowledgment. It says, Your employees are going to 8 receive this spiff, et cetera. Okay? We have to 9 acknowledge it and send it back to them. 10 Q. Okay. So somebody that pays a spiff 11 sends you an acknowledgment that they are going to pay 12 your employees and you send that back? 13 A. Yes, that is correct. 14 Q. And did you keep a copy of that? 15 A. Not that I know of, no. 16 Q. How many of the people who pay spiffs 17 require an acknowledgment to be sent back? 18 A. There is only two that come to mind right 19 now. 20 Q. And who are those two? 21 A. They are both third-party warranty 22 companies. 23 Q. Who are those? 24 A. Without going and looking, I couldn't 25 tell you. 84 1 Q. You know that there are two, but you 2 don't know their names? 3 A. Yeah. I remember signing -- someone 4 bringing me the form and saying, I am going to get a 5 spiff from this company. Is this allowed? I said, 6 Yes, it is allowed. We know about it and we would 7 have sent it back. 8 Q. Because if you didn't get that 9 acknowledgment, they would be in violation of the 10 handbook, right? 11 A. I don't believe they've ever seen the 12 handbook. 13 Q. The employees? 14 A. No. The company that sent us the 15 notification. 16 Q. So the company wouldn't be in violation 17 because they have never seen a copy of the handbook, 18 right? 19 A. That is correct. 20 Q. Are there any other handbooks that were 21 in place during the time that Mr. Mullins was employed 22 at Trans-West? 23 A. Not that I know of. 24 Q. Did you ever talk to your wife about this 25 litigation? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 11 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 22 (Pages 85 to 88) 85 1 A. I have. 2 Q. What was that conversation? 3 MR. CAGE: I think that the conversations 4 between husbands and wives are privileged. 5 You don't have to answer that if you 6 don't want to. There is a state court decision on 7 that. 8 MR. FALBE: Is this a criminal matter? 9 MR. CAGE: I don't know. The decision 10 I'm thinking about doesn't apply to criminal cases. 11 MR. FALBE: Are you directing your client 12 not to answer? 13 MR. CAGE: He doesn't have to answer if 14 he doesn't want to. 15 A. If I don't have to -- it's not relevant, 16 so . . . 17 Q. (BY MR. FALBE) Have you talked to Barb 18 about this litigation? 19 A. Yeah. 20 Q. What were those conversations like? 21 A. She said it's sad. 22 Q. What else? 23 A. She said it's sad. It's not right. It's 24 a shame. 25 Q. Why do you think she's sad? 86 1 A. Because we gave somebody an incredible 2 opportunity and they abused it. 3 Q. Is she sad about the defendants? 4 A. Yeah. 5 MR. CAGE: Objection. Form. I don't 6 know what defendants you're talking about. 7 Q. (BY MR. FALBE) Did she indicate that she 8 was sad about Southwest or Scott Buchanan? 9 A. Yeah. It's sad because we -- there was a 10 lot of money stolen. It was -- it's -- yeah, it's not 11 a good deal. 12 Q. Can you tell me exactly how Scott and 13 Southwest stole any money from Trans-West? 14 A. Yeah. 15 Q. Okay. Please do. 16 A. Jeff sold motor homes at either a 17 discounted rate or whatever they agreed on and a 18 kickback came back from Southwest to Jeff. It's that 19 simple. 20 Q. So was it the kickback that was stealing? 21 A. That money should have been Trans-West's. 22 Q. Okay. Why do you think that Scott should 23 have paid you that money? 24 A. Because it was part of the value of the 25 coach. 87 1 Q. Why didn't you sell that coach to 2 somebody else for more money? 3 A. Because that's what Jeff decided to do. 4 Q. He reports to you, correct? 5 A. He does. 6 Q. And how many coaches are we talking 7 about? 8 A. It's his division to run. 9 Q. How many coaches are we talking about? 10 A. I don't know. There is a lot. 11 Q. More than 50? 12 A. It's pretty simple. 13 Q. More than 100? You said "It's pretty 14 simple." What's pretty simple? 15 A. It's a simple scheme. 16 Q. What's simple about it? 17 A. Jeff sells the coach to Southwest Luxury 18 Coaches, okay, for an agreed amount between Jeff and 19 Southwest. Jeff gets X amount of money in return. 20 Okay? A nice little kickback. Okay? And because of 21 that kickback, he has an incentive to sell coaches to 22 Southwest. 23 Q. Is that any different than the incentive 24 that your finance company that you wouldn't name paid 25 to the employees? 88 1 MR. CAGE: Objection. Form. He couldn't 2 recall the name. 3 You may answer it. 4 A. Yeah, I didn't name those. It is 5 different, yes. 6 Q. (BY MR. FALBE) How is it different? 7 A. We know about it is the first difference. 8 Q. But if you didn't know about it -- 9 A. It's above the table. 10 And secondly, we pay Jeff or that 11 division manager a salary plus incentive to manage 12 that division. His income shouldn't be coming from an 13 outside source, from a competitor, basically. 14 Q. Have you ever received a spiff? 15 A. Probably. I don't know. 16 Q. Doesn't your salary come from Trans-West? 17 A. Yes. 18 Q. So what's the difference? 19 A. My spiffs were $50. 20 Q. So it's the amount? 21 A. It's the amount. It's it was known 22 about. It was above board. It was something to 23 basically lure Jeff to sell a motor home at a 24 discounted value to a certain buyer. That's the 25 difference. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 12 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 27 (Pages 105 to 108) 105 1 A. He was not fired. 2 Q. Why did he leave? 3 A. It was a mutual agreement between he and 4 I. 5 Q. Okay. Why did you mutually agree for him 6 to leave? 7 A. Because he was uncomfortable running that 8 size of an RV division. He did not have good 9 management skills and he wanted to do something 10 different. 11 Q. How many years of experience have you -- 12 let me back up. 13 Do you think that you have a lot of 14 experience valuing RVs? 15 MR. CAGE: Objection. Form. 16 You may answer. 17 A. Not a lot. Medium. 18 Q. (BY MR. FALBE) Do you have a lot of 19 experience selling RVs? 20 A. A fair amount. 21 Q. Do you have a lot of experience servicing 22 RVs? 23 A. No. 24 Q. Do you have a lot of experience in 25 managing all the aspects of an RV dealership? 106 1 A. Yeah. As time goes by, I get more and 2 more experience, yeah. 3 Q. Sort of learning on the job? 4 A. Everybody learns on the job. 5 Q. Not everybody gets to learn at a general 6 manager position, though, do they? 7 MR. CAGE: Objection. Form of the 8 question. Calls for speculation. 9 MR. FALBE: What's the form? 10 MR. CAGE: Speculation. Does everybody? 11 Q. (BY MR. FALBE) Do you know of anybody -- 12 do you know of any general managers who have gotten to 13 learn on the job? 14 MR. CAGE: Same objection. 15 You may answer. 16 A. Learn what? 17 Q. (BY MR. FALBE) Learn the business that 18 they are running as the general manager. 19 MR. CAGE: Same objection. 20 A. Yeah. "Learning" is a very broad term. 21 Everybody learns every day. 22 Q. (BY MR. FALBE) If you were the president 23 and you were hiring a general manager, would you want 24 to hire somebody that knew the business, number one, 25 or number two, was learning the business? 107 1 MR. CAGE: Objection. Form. Foundation. 2 Speculation. 3 You may answer. 4 A. There is a lot of different criteria that 5 go into managing. 6 Q. (BY MR. FALBE) What's your criteria? 7 I'm just asking your opinion. 8 MR. CAGE: Same objection. 9 You may answer. 10 A. And my opinion is that there is a lot of 11 things that go into hiring somebody. It's not just 12 experience, no. 13 Q. (BY MR. FALBE) Okay. 14 A. It is part of it. 15 Q. Do you think that your qualifications -- 16 do you think that your evaluation of subordinates is 17 partly responsible for the losses that have been 18 experienced in your division? 19 A. Well, Jeff's -- yeah. Ask me the 20 question again. 21 Q. Do you believe that your ability to hire 22 people is partly responsible for the losses that are 23 in your division? 24 MR. CAGE: Objection. Form. 25 You may answer. 108 1 A. The hiring of Jeff was a joint decision. 2 Q. (BY MR. FALBE) Do you blame all of your 3 losses on Jeff? 4 A. Not all of them, no. 5 Q. On a percentage basis, how much of them? 6 A. A big percentage. 7 Q. What's a big percentage? 10 percent? 8 A. No. It's -- 9 Q. 50 percent? 10 A. Keep going higher. 11 Q. 70 percent? 12 A. Somewhere in there, yeah. 13 Q. In the 70 percent range. How did you 14 arrive at the 70 percent number? 15 A. You and I just did. It was something we 16 just talked about. 17 Q. Okay. And what are your total losses? 18 A. For when? 19 Q. Well, you said that Jeff is responsible 20 for 70 percent of your total losses, right? 21 A. I said approximately. 22 Q. Okay. What are your total losses? 23 MR. CAGE: I'll just object to the form 24 of the question. Also, it's a 30(b)(6) question and 25 he's not designated. He may be in the future, but you Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 13 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 28 (Pages 109 to 112) 109 1 haven't -- this it not a 30(b)(6) deposition. 2 So you may answer on your knowledge that 3 you have yourself. 4 A. I guess if it's something that I don't 5 have to answer, it's not -- 6 MR. CAGE: I didn't say you didn't have 7 to answer. You can go ahead and answer it. 8 A. What year? While Jeff was there or -- 9 Q. (BY MR. FALBE) Pick a year. 2015. 10 A. RV division 2015, 1.8 million. 11 Q. That's the total loss? 12 A. It's close, yeah. 13 Q. Have you ever considered liquidating? 14 MR. CAGE: Objection. Form. Foundation. 15 You may answer. 16 A. Liquidating what? 17 Q. (BY MR. FALBE) The business. 18 A. That's not my decision. 19 Q. Have you ever considered it as the 20 general manager? 21 MR. CAGE: Same objection. 22 A. No. 23 Q. (BY MR. FALBE) As a general manager, 24 you've never considered that if you can't operate a 25 business profitably that perhaps you should shut it 110 1 down? 2 MR. CAGE: Same objection. 3 You may answer. 4 A. It's crossed my mind, yeah. 5 Q. (BY MR. FALBE) Okay. So have you ever 6 had a conversation with anybody about that? 7 A. Yeah. 8 Q. What was that conversation like? 9 A. It was basically we need to figure out 10 how to make money or get out of the RV business. 11 Q. And when did you have that conversation? 12 A. About the time we fired Jeff. 13 Q. The time you fired Jeff? 14 A. Yeah. 15 Q. Not before that? 16 A. Not that I recall, no. 17 Q. So Jeff was terminated at what date, 18 approximately? 19 A. In June last year. 20 Q. 2015? 21 A. Yeah. 22 Q. You're nine months into -- what kind of 23 profitability have you -- as Trans-West, your division 24 had, since Jeff has left? 25 A. Since Jeff left, the remainder of 2015 111 1 was a massive cleanup. 2 Q. That's not what I asked. I asked what 3 your profit was. 4 A. Well, in 2015 there wasn't a profit in 5 the RV business. 6 Q. So in the nine months since Jeff has 7 left, have you operated profitably? That's a 8 yes-or-no question. 9 A. No. 10 Q. Okay. How much of a loss have you 11 experienced in the approximately nine months or 12 whatever period of time it's been since Jeff Mullins 13 has left? 14 A. Well, 2015 is rolled into one year, so 15 that's part of it, and then there is 2016. I'm going 16 to say -- and we already have 2015's numbers. 2016, 17 200,000, somewhere in that range. 18 Q. Well, do you know -- in 2016, if we just 19 looked at the first two months now, are you up for 20 this year? 21 A. I am not up for this year, no. 22 Q. Why not? 23 A. Several reasons. 24 Q. Why? 25 A. Number one is seasonality. It's commonly 112 1 known in the RV business and now is about the time 2 that we start getting busy. 3 Q. Tell me about that. Why do you start 4 getting busy now? 5 A. RVs are not meant to be driven in the 6 snow. 7 Q. They're not? And where is your 8 dealership located? 9 A. Frederick, Colorado. 10 Q. Is there snow in Frederick, Colorado? 11 I'm not from Colorado. 12 A. Today there is not. 13 Q. There is not. Are there a lot of people 14 buying RVs in Frederick, Colorado, right now? 15 A. There is a few, yeah. 16 Q. So explain to me the seasonality of this 17 business. 18 A. People do not get their motor homes out 19 and start using them in the northern -- wherever we 20 are, northern part of Colorado, the U.S. until the 21 weather is nice. It's a known fact. That's why 22 the -- it's seasonality. It's in the business. It is 23 what it is. 24 Q. And where do these people in the north 25 go? Where to they drive their RVs? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 14 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 36 (Pages 141 to 144) 141 1 Q. So you've testified that you typically 2 don't make profits when you pass them through on the 3 front-end transactions and you typically don't make a 4 profit on the back-end transactions. Are there other 5 typical transactions that you would make a profit on? 6 A. There are some. 7 Q. Wholesale transactions? 8 A. A wholesale transaction? Typically no, 9 but there are always exceptions, yes. 10 Q. Typically no? 11 A. Typically no. 12 Q. So typically, you don't make money on 13 wholesale transactions? 14 A. No. 15 Q. You know that Trans-West has a claim 16 against Southwest for not making money, for lost 17 profits against my client, right? 18 A. Yeah. 19 Q. Okay. Would you notice if Jeff sold a 20 vehicle below what it should be sold for? 21 A. Usually, but it's speculated value, so we 22 would have to look at the -- 23 Q. Is it part of your job to determine if he 24 sold a vehicle below what it should have been sold 25 for? 142 1 A. That was actually his job. 2 Q. No. I'm asking if -- so his job is to 3 self-monitor? So his job is to find out if he sold a 4 unit for less than what he was supposed to? Is that 5 your testimony? 6 A. No. His job was to make sure that he got 7 all the money for it. 8 Q. And was it your job to supervise that? 9 A. Ultimately, yeah. 10 Q. Okay. And I asked if it was part of your 11 job and you said yes. Right? 12 A. It's part of my job. It's under my 13 division, so . . . 14 Q. And is it part of your job to make sure 15 that Jeff or Trans-West buys vehicle at a price that 16 you can sell them for more money? 17 MR. CAGE: Objection. Form. 18 A. Yeah. He was handed a division to take 19 over, run and make money. 20 Q. (BY MR. FALBE) And you handed him that 21 division, right? 22 A. Trans-West did. It wasn't just my 23 decision, no. 24 Q. But you were part of the decision? 25 A. I was part of the decision. 143 1 Q. You and George were the two decision- 2 makers there? 3 A. Yes. 4 Q. So you and George handed Jeff this 5 responsibility? 6 A. Yes. 7 Q. Was it part of your job that Jeff and 8 other salespersons sell vehicles at a profit? 9 A. That's what they are supposed to do, 10 yeah. 11 Q. No. I asked if part of your job was to 12 make sure that they sell units for a profit. 13 A. Yeah. It was Jeff's job to run that 14 division and sell stuff at a profit. I was monitoring 15 Jeff, yes. Was I involved in every deal? No. 16 Q. So your answer is yes, it was your job to 17 make sure that Jeff and the other salespeople sold 18 vehicles at a profit? 19 MR. CAGE: Objection. Form. Foundation. 20 It's not his testimony. You can go back and read it 21 if you want. 22 Q. (BY MR. FALBE) Sir, if you don't like a 23 price that a wholesaler is providing you, do you pick 24 up the phone and ask for another price? 25 A. I would typically shop around. It's 144 1 pretty standard in the industry to get more than one 2 bid. 3 Q. It's standard in the industry to get more 4 than one bid? 5 A. It is. 6 Q. Have you ever known on any of the 7 transactions that are involved in this case where 8 there was a bid that was higher than the amount that 9 Southwest was willing to pay? 10 A. No, I never said that. 11 Q. Did you ever call anybody on any of these 12 transactions to see if you could get a higher bid? 13 A. Towards the end of Jeff's employment, 14 yes. 15 Q. And did you ever find anybody that was 16 willing to pay more money? 17 A. A little, but not -- no. I mean, it 18 was -- which transactions are we talking about? 19 Q. All the transactions that you're alleging 20 that Jeff Mullins and now Scott Buchanan aided and 21 abetted in taking money that Trans-West now believes 22 is theirs. 23 A. Yeah. 24 Q. I'm asking if you ever got a wholesale 25 bid that was higher on any of those deals? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 15 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 38 (Pages 149 to 152) 149 1 Q. (BY MR. FALBE) Have you ever made any 2 sales -- have you ever collected sales tax in 3 California? 4 MR. CAGE: Same objection. 5 Q. (BY MR. FALBE) How many people sold 6 vehicles in California? 7 MR. CAGE: Same objection. 8 I think you've made your record. You can 9 go on for an hour if you want. I don't care. 10 MR. FALBE: That's fine. 11 MR. CAGE: I think you've made your 12 record. I just want to make it clear that because of 13 the motion for a protective order and because of the 14 local rule, I don't think he has to answer those 15 questions. That's all. 16 MR. FALBE: Do you think that all the 17 dealer agreements are subject to the protective order? 18 MR. CAGE: Yes. In fact, if you look on 19 page 2 or 3 of our motion for a protective order, it 20 sets out exactly what it is we are moving to protect 21 and includes the dealer agreements. So the same 22 objections I would make with respect to dealer 23 agreements. 24 Q. (BY MR. FALBE) So just for the record, 25 are you aware of any dealer agreements that Trans-West 150 1 has signed? 2 MR. CAGE: Same objection. 3 Q. (BY MR. FALBE) Do you know the terms and 4 conditions of these -- any of these dealer agreements? 5 MR. CAGE: Same objection. Just so 6 you're clear, too, so you don't waste your own time or 7 ours either, on page -- I thought it was 2, but it's 8 page 3 and 4. It sets out what we're moving to 9 protect. It includes the California sales of any 10 deal. It includes accounting of financial policies, 11 licensing and regulatory compliance policies, 12 obligations under dealership agreements, business 13 operations in California, bank and credit union 14 accounts. So we would be objecting to all of those 15 things until it's resolved by the Court. 16 MR. FALBE: And we would also like to 17 make it clear that this deposition remains open and 18 not closed subject to recalling these -- 19 MR. CAGE: Yeah. If the Court rules 20 against us, you can come back and ask those questions. 21 I'm sure of it. As I understand it, many of those 22 questions are related to the 30(b)(6) witnesses -- the 23 designated topics that you want to take under 24 30(b)(6), so you would be asking those questions of 25 the designated 30(b)(6) witness anyway, not 151 1 necessarily him. 2 MR. FALBE: Some of the questions aren't 3 just as a 30(b)(6), but it would be the 30(b)(6) 4 witness -- 5 MR. CAGE: Yes. 6 MR. FALBE: -- and the individuals? 7 MR. CAGE: Yeah. But you gave, like, 8 16 areas. 9 MR. FALBE: I just want to be clear. 10 Your objection is not only to sales but also service 11 in California? 12 MR. CAGE: I think it's broad enough. I 13 think the motion for a protective order is broad 14 enough to include all of that. Let me double-check. 15 Anything -- yeah. Anything related to Indio, 16 California, yes. That's what we objected to. 17 Q. (BY MR. FALBE) Mr. Lyons, do you have a 18 personal relationship with Scott Buchanan? 19 A. I do not. 20 Q. Have you ever seen Scott Buchanan before? 21 A. Not that I know of. 22 Q. Do you see Scott Buchanan today? 23 A. I do. 24 Q. How do you know this is Scott Buchanan? 25 A. Didn't we at the start enter -- there was 152 1 a thing where we said who's here. 2 Q. Have you ever received any money from 3 Scott Buchanan? 4 A. I have not. 5 Q. Did you have a personal relationship with 6 Jeff Mullins? 7 A. He worked for me. 8 Q. Do you know what bird-dog fees are? 9 A. Bird dog? Yeah. There is 10 interpretations, but . . . 11 Q. What's your interpretation? 12 A. If I send somebody out to go find 13 something and they find it for me, I would pay a bird- 14 dog fee. 15 Q. What kind of thing would you send them 16 out for? 17 A. It could be anything. An RV, truck, 18 trailer. I mean, a bird-dog fee is a very broad term. 19 Q. So have you ever paid a bird-dog fee? 20 A. There is none that come to mind, but -- 21 there is none that come to mind right now, no. 22 Q. Is there anything illegal about paying a 23 bird-dog fee? 24 MR. CAGE: Objection to form. 25 Foundation. Legal conclusion. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 16 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 39 (Pages 153 to 156) 153 1 You may answer it. 2 A. If it's all above board, probably not, 3 no. 4 Q. (BY MR. FALBE) Do you believe there is 5 anything wrong with paying a bird-dog fee? 6 A. As long as all parties are involved, no. 7 Q. So has Trans-West ever paid a referral 8 fee to a customer? 9 A. Yeah. 10 Q. To a customer? 11 A. To a customer, yeah. 12 Q. So let me be clear about this. So if a 13 customer walks in and says, I want to buy an RV. You 14 would say, Okay. Here's a referral fee? 15 A. It doesn't work like that, no. 16 Q. Okay. How does it work? 17 A. A referral fee would go back to another 18 individual, typically a customer, that sent their 19 friend in or send a colleague in or -- 20 Q. Okay. Have you ever known Trans-West to 21 pay a referral fee to anybody? 22 A. Yeah. 23 Q. Who? 24 A. I don't know. There have been some 25 that's been paid, but I couldn't even tell you who. 154 1 Q. Is Pam Maloof one of them? 2 A. Not that I know of. 3 MR. CAGE: What was the last name? 4 Pam -- 5 MR. FALBE: Maloof, M-a-l-o-o-f. 6 MR. CAGE: Okay. Thank you. 7 Q. (BY MR. FALBE) There is Mr. Farber. Are 8 you aware of a referral fee ever being paid to 9 Mr. Farber? 10 A. Not that I know of, but I don't know. 11 Q. What's Trans-West's policy with respect 12 to the referral fees or bird-dog fees that you paid 13 about paying them? Can you describe the approval 14 process? 15 MR. CAGE: I'm going to object to form. 16 You may answer. 17 A. A referral fee is usually paid to, like I 18 said, a friend or colleague, someone like that who 19 sends in someone. They said so-and-so said to come 20 over here. If we pay a referral fee, it's all -- it's 21 part of the deal. It's actually deducted from that 22 deal, and then a check request would go in and a check 23 would go off to that person, to that designated 24 person. 25 Q. (BY MR. FALBE) The customer that bought 155 1 the coach, did you ever disclose those referral fees? 2 Is that part of the process? 3 A. I think sometimes it is and sometimes 4 it's not. There is no written rule there. 5 Q. Is it on the buyers order? 6 A. It's not on the buyers order. 7 Q. Is it on the financing transactions that 8 you get from -- who was your supplier? Is it -- it's 9 not -- do you use ADP? 10 A. For -- 11 Q. Your financing transaction documents. 12 A. That prints them up? 13 Q. You use their forms? 14 A. Yeah. We use some of their forms. 15 Q. Okay. Does it list those fees? 16 A. Will those fees be listed on those forms? 17 Q. Right. 18 A. No. They would be on the washout sheet 19 or admin sheet. There would be a check request. 20 That's where it would show up. 21 Q. So you don't really disclose it to the 22 end consumer at all? 23 A. To the purchaser? 24 Q. Correct. 25 A. No. We don't have to. 156 1 Q. Does Trans-West issue 1099s to the people 2 that they pay referral fees to? 3 MR. CAGE: Objection. Form. Foundation. 4 A. 1099s to people that receive, is that the 5 question? 6 (The last question was read back as 7 follows: "Does Trans-West issue 1099s to the people 8 that they pay referral fees to?") 9 MR. CAGE: Same objection. 10 You can answer if you know. 11 A. Only if it's over a certain amount. I 12 don't recall what the amount is, but if it's over a 13 certain amount, yeah. 14 Q. (BY MR. FALBE) Is that something that 15 you're part of, the approval process of referral fees? 16 A. A lot of times I have asked if it's okay. 17 I actually promote it, but . . . 18 Q. You do? 19 A. Yeah, I do. 20 Q. So if you promote it, can you think of 21 one referral fee that you've paid, just one? 22 A. That I paid? 23 Q. Or you've authorized to be paid. 24 A. No, not offhand. I would have to go back 25 through paperwork. I don't study on referral fees, Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 17 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 45 (Pages 177 to 180) 177 1 Q. Why would it be asked of Jeff if he's not 2 the service manager? 3 A. Because all the work has to be approved 4 by -- the service manager cannot do work without 5 approval from sales. 6 Q. Okay. So Jeff would have the ability to 7 approve service work? 8 A. Uh-huh. 9 Q. Without a customer's approval? 10 A. Without a customer's approval? 11 Q. Correct. 12 MR. CAGE: Objection. Form of the 13 question. 14 You may answer. 15 A. He would have the authority to approve 16 work on units that are basically in our inventory. 17 Q. (BY MR. FALBE) Was the Dynamax in your 18 inventory? 19 A. Well, it was on -- it was there. It was 20 sent to us, I believe, because this is Jeff's -- this 21 was Jeff's department at the time. So what was worked 22 out with Jeff, I couldn't tell you. 23 Q. So you don't know about any of the work 24 that was performed on the Dynamax? 25 A. I do after the fact. 178 1 Q. What do you know now? 2 A. What do I know now? 3 Q. Yeah. 4 A. That there was a bunch of work done to 5 it. We did not own the coach and it needed a lot of 6 work to get it ready to sell. According to Jeff, it 7 was sold, but it needed enough work that we couldn't 8 sell it, so the customer obviously didn't take it 9 because it wasn't ready. And then Jeff left and there 10 I was with a Dynamax. 11 Q. Why was the Dynamax sitting on 12 Trans-West's lot? 13 A. I would say that it was an agreement 14 between Southwest and Jeff. 15 Q. To do what? 16 A. Ultimately to sell it. 17 Q. To sell it. Do you ever call those 18 consignment transactions? 19 A. Yes. 20 Q. Do you ever enter into consignment 21 transactions? 22 A. Very few. 23 Q. Very few? 24 A. Very few. 25 Q. How many consignment transactions does 179 1 Trans-West or your department -- when I say you, 2 I'm -- are you aware of Trans-West entering into in 3 2015 -- in any calendar year, how many consignment 4 transactions? 5 A. Maybe two or three. 6 Q. Okay. And would those kind of stick out 7 as a red flag to you since they're so odd? 8 A. Yes and no. I mean usually, if there is 9 a consignment, typically it's because, you know, a 10 past customer, someone that we do business with, has 11 probably asked us to take a consignment. Usually I 12 say no, but every once in a while, I say yes. 13 Q. Was this Dynamax approved as a 14 consignment? 15 A. Not by me, no. 16 Q. Not by you? 17 A. No. 18 Q. Were all transactions that needed to 19 be -- so this happened after fall of 2014, right? 20 A. This happened after the fall of 2014? 21 Q. Did the Dynamax arrive on Trans-West's 22 lot after the fall of 2014? 23 A. It arrived right around there, yeah. 24 Q. So it was on there after you were under 25 the "Jeff Mullins does not have authority to transact 180 1 business alone" policy, right? 2 A. To purchase and wholesale. 3 Q. And you nodding indicates yes? 4 A. Yes. 5 Q. So this happened after the no Jeff 6 Mullins buy, sell or trade policy, right? 7 A. It was right in there. I wouldn't be 8 able to say before or after, but it was right in that 9 time period, yes. 10 Q. So if another customer brought in a 11 vehicle and wanted some repairs done to that vehicle, 12 would you give them an estimate of the cost ahead of 13 time? 14 A. Yes. 15 Q. "You" meaning Trans-West? 16 A. Yes. 17 Q. And what does that look like? Is there a 18 document that goes along with that? 19 A. Yeah. If we give a customer an estimate, 20 it's a printout from service out of Karmak that says 21 this is an estimate. 22 Q. Are you aware of any estimate that was 23 provided to Southwest or Mr. Buchanan regarding any 24 repairs that were done? 25 A. No, I don't believe there was. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 18 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 46 (Pages 181 to 184) 181 1 Q. What happens in other situations -- if 2 you didn't provide an estimate and you went ahead and 3 did the work, what would happen in that situation? Do 4 you know? 5 A. It depends on the situation. 6 Q. Okay. Well, why do you give an estimate 7 ahead of time? 8 A. So that the customer knows what they're 9 spending. 10 Q. Okay. Any other reason? 11 A. No. It's basically so that they know 12 what repairs X, Y and Z would cost. 13 Q. Okay. And would you ever do it because 14 you wouldn't want unauthorized repairs being done? 15 A. Yeah. 16 Q. So if a customer doesn't sign off on the 17 form, you would have a potential liability for repairs 18 or alterations to a vehicle without the owner's 19 authorization, right? 20 A. That's correct. 21 Q. And do you have such an authorization 22 from Mr. Buchanan that you're aware of? 23 A. No, I do not. 24 Q. Let me turn your attention in the book to 25 546, the reconditioning cost. Do you know where the 182 1 $39,000 number came from? 2 A. Not exactly, no. 3 Q. If you could turn to page 550 and 551. 4 Do you see a bunch of costs listed there? 5 A. I do. 6 Q. What's the name of this report? 7 A. This is what we call our cost analysis. 8 Q. Is that because it's called a "Unit Cost 9 Analysis"? 10 A. Yeah. It's a printout from ProfitMaster. 11 Q. From ProfitMaster. 12 A. ProfitMaster/Karmak. It's all the same 13 company. 14 Q. Bradley Land testified that this actually 15 came from Salesforce. Is that incorrect? 16 A. This document? 17 Q. Right. 18 A. No. This does not come from Salesforce, 19 no. 20 Q. That's very helpful knowledge, by the 21 way. So where does this come from? 22 A. This is exactly what it says. It's the 23 unit cost analysis that can be printed out from 24 ProfitMaster. 25 Q. Is this available for every vehicle? 183 1 A. Yeah. It's -- 2 Q. It's stored on a computer somewhere? 3 A. Well, it's not stored in this format. 4 It's a report that's requested in the system. 5 Q. Okay. And the information that -- the 6 source information is electronically stored, right? 7 A. That is correct. 8 Q. Okay. In order to evaluate or to 9 generate these reports, I would need access to 10 ProfitMaster is what you're calling it, right, and 11 Karmak? 12 A. Yes. 13 Q. And this is used to show the alleged 14 profit or loss on our 2006 Royale Prevost; is that 15 correct? 16 A. Yeah, it's not to calculate profit or 17 loss. It's to calculate cost in that unit at that 18 given time. 19 Q. I agree with that, by the way, but for 20 the purposes of this summary sheet, do you believe 21 that this was used -- the unit cost analysis was used 22 for the loss-on-deal calculation that was prepared by, 23 apparently, counsel? 24 A. Yeah. 25 MR. CAGE: Objection. Form. Foundation. 184 1 You may answer. 2 A. Yeah. Those numbers have been taken 3 directly off that report and put -- yeah. Those are 4 numbers that have been taken directly off that and put 5 on that sheet, that is correct. 6 Q. (BY MR. FALBE) That's right. So are you 7 familiar with the unit cost analysis? 8 A. Yeah. 9 Q. Okay. And do you see the line item on 10 page 550 that says "LDown"? What does that stand for? 11 A. LDown is right there. Second line? 12 Q. Yes. 13 A. LDown -- what was the question? 14 Q. What does it mean? What does it stand 15 for? 16 A. LDown is an amount that is basically 17 added to the cost of the unit and put in a reserve 18 account, let's call it. 19 Q. Would some people call this a slush fund? 20 A. Slush fund, reserve. 21 Q. Packing a deal, have you ever heard of 22 that term? 23 A. Packing a deal. Depending on the 24 dealership and the terminology, packing can be 25 different than LDown and slush, but . . . Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 19 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC ANDREW LYONS 3/1/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 58 (Pages 229 to 232) 229 1 that's not for me to -- 2 Q. What's your idea, then? 3 A. My idea is that it should be shopped. 4 Q. And is this a policy at Trans-West? 5 A. Is it a -- if I had to go get a written 6 policy? No, it's not. I haven't seen it in writing. 7 Q. Is it an informal policy, a non-written 8 policy? 9 A. I would say yes. 10 Q. Let's turn to a sample transaction. Does 11 your admin sheet require two wholesale bids or prices? 12 Do you have, like, a check the box kind of thing on 13 your internal paperwork? 14 A. I do not. 15 Q. Do you have authority to change, like, an 16 admin sheet, a washout sheet to include these are my 17 two wholesale bids? 18 A. No. This sheet has nothing to do with 19 bids. 20 Q. Could you create a piece of paper? Do 21 you have the authority as the general manager of the 22 RV division at Trans-West? Can you create a policy 23 where a salesperson or -- a salesperson or a sales 24 manager would have to get two wholesale bids before a 25 vehicle is sold? 230 1 A. I can create that piece of paper, yes. 2 Q. How long would it take you to do that? 3 A. A couple minutes. 4 Q. And could you implement a policy that 5 would require that? 6 A. Yeah. 7 Q. Have you ever done that? 8 A. I've never made a piece of paper, no. 9 Q. Are you going to do it tomorrow? 10 A. I don't know. 11 Q. Why not? 12 A. Why not? I think it's a good idea. 13 Maybe I will. 14 Q. If you could look at -- I believe it's 15 Exhibit 16, Volume 1, TW 0001 through 6. It's the 16 first transaction, 1 through 6. 17 MR. CAGE: The page one more time? 18 MR. FALBE: 1 through 6. 19 MR. CAGE: That was easy. 20 Q. (BY MR. FALBE) All right. What's this 21 first page on TW 0001? 22 A. This page right here? 23 Q. The page in front of you, yes. 24 A. It's a buyers order. 25 Q. And who signed the bottom of it? 231 1 A. Jeff Mullins. 2 Q. And who prepared this buyers order? 3 A. It's printed up, so it would have been 4 someone in the F&I office. 5 Q. Is this a Trans-West form? 6 A. This is a Trans-West form. 7 Q. Are there terms on this buyers order form 8 that prohibit Southwest from paying any fees to a 9 salesperson? 10 MR. CAGE: I would just object because 11 you've asked that question twice before, but go ahead 12 and answer. 13 A. Ask me the question again. 14 Q. (BY MR. FALBE) Is there any term on this 15 buyers order form that prohibits Southwest from paying 16 a Trans-West employee? 17 A. No. 18 Q. Are you familiar with this form? 19 A. I've seen a lot of them. 20 Q. How many? 21 A. I couldn't tell you. 22 Q. A thousand? 23 A. Yeah, probably. 24 Q. If you want -- do you think that paying a 25 referral fee or a spiff would be a material term? 232 1 A. Yeah. Material? Yes. 2 Q. Do you know why that material term is not 3 on this contract? 4 A. The material term that someone cannot 5 receive a kickback? 6 Q. Well, you call it a kickback. I call it 7 a fee. 8 A. Okay. 9 Q. I think a fee is sort of a mutual term. 10 A. Okay. 11 Q. Do you see anything on here that 12 prohibits the buyer, which would be Southwest Luxury 13 Coach in this situation -- if that's your testimony 14 that it's not here, why isn't -- if it's a material 15 term, why isn't it on this form? 16 A. It's not on this form. It's not -- well, 17 I would say it's not common practice for a buyer to be 18 paying one of my salespeople. That's why we pay our 19 salespeople. 20 Q. So do you know the common practice of 21 wholesalers? 22 A. No. Common practice for us. 23 Q. The question was whether wholesalers pay 24 fees, spiffs. Are you aware of any common practice 25 among wholesalers to pay spiffs or not pay spiffs? Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 20 of 21 ANDREW LYONS 252 REPORTER'S CERTIFICATE STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) I, MARCHELLE HARTWIG, Certified Shorthand Reporter and Notary Public, ID 20014012312, State of Colorado, do hereby certify that previous to the commencement of the examination, the said ANDREW LYONS was duly sworn by me to testify to the truth in relation to the matters in controversy between the parties hereto; that the said deposition was taken in machine shorthand by me at the time and place aforesaid and was thereafter reduced to typewritten form; that the foregoing is a true transcript of the questions asked, testimony given, and proceedings had. I further certify that I am not employed by, related to, nor of counsel for any of the parties herein, nor otherwise interested in the outcome of this litigation. IN WITNESS WHEREOF, I have affixed my signature this 4th day of March, 2016. My commission expires April 19, 2017. ___X__ Reading and Signing was requested. ______ Reading and Signing was waived. ______ Reading and Signing is not required. Case 1:15-cv-02233-RM-MJW Document 117-6 Filed 07/28/16 USDC Colorado Page 21 of 21 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 15-cv-02233-RM-MJW 3 _______________________________________________________ 4 DEPOSITION OF: BARBARA EIDSNESS - March 2, 2016 _______________________________________________________ 5 TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, 6 Plaintiff, 7 v. 8 SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, 9 Defendants. 10 _______________________________________________________ 11 PURSUANT TO NOTICE, the deposition of BARBARA EIDSNESS was taken on behalf of the Defendants 12 at 1200 17th Street, Suite 1900, Denver, Colorado 80202, on March 2, 2016, at 12:02 p.m., before 13 Marchelle Hartwig, Certified Shorthand Reporter and Notary Public within Colorado. 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 7 Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 1 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 4 (Pages 13 to 16) 13 1 A. I have two years of business. 2 Q. At what school? 3 A. I was in Devils Lake, North Dakota. 4 Q. Would you consider yourself a self-made 5 person? 6 A. Yes. 7 Q. Have you helped build this business over 8 the last 25 years? 9 A. Yes. 10 Q. Would you say you're knowledgeable about 11 the business affairs of Trans-West? 12 A. To some degree, yes. I don't think I 13 know everything, because I can't know everything. 14 It's too big. 15 Q. How many employees, just for scale? 16 A. We're getting close to 900. 17 Q. Okay. Do you know, approximately, how 18 many employees work in the RV division? 19 A. Would you encompass all four stores? 20 Q. Sure. 21 A. Not really, no. 22 Q. Okay. Do you know how many employees 23 work at the Frederick location? 24 A. In the RV store? 25 Q. Correct. 14 1 A. With parts and service and sales, I think 2 there is 30, 35 maybe. 3 Q. Would you think it would be fair to 4 describe the transactions that we're going to discuss 5 that are involved in the litigation that we described 6 took place largely, if not all, at the Frederick 7 location? 8 A. I have no idea. 9 Q. You don't know? 10 A. I don't know. 11 Q. You don't know because you don't know the 12 transactions? 13 A. Right. 14 Q. Okay. Where was Jeff Mullins located? 15 A. Frederick. 16 Q. Are you aware of Jeff Mullins working at 17 any other location? 18 A. Well, he supervised them. You know, he 19 was like the overall of all the stores. He did the 20 inventory. 21 Q. I seem a little confused, because that's 22 not exactly how it was described to me so far, so I'm 23 going to ask you a couple of follow-up questions. Was 24 Jeff Mullins in charge of RV sales over all four of 25 your RV locations? 15 1 A. Yes. 2 Q. Okay. 3 A. He controlled the inventory. I don't 4 know if he was in on every sale, if that's what you 5 mean. He probably wasn't. But if there was a 6 question about something or if someone wanted to trade 7 something in, he's the guy that had the knowledge. 8 Q. Okay. So it's Frederick and what are 9 other three locations? 10 A. Grand Junction. Fountain isn't selling 11 RVs yet, but they will be, and then Belton, Missouri. 12 Q. Where is Fountain? I'm not familiar with 13 Colorado. 14 A. Just outside of Colorado Springs. 15 Q. And Grand Junction -- are they all 16 approximately the same size? 17 A. Yeah. They're small. 18 Q. Is Frederick the largest location? 19 A. Yes. 20 Q. On a percentage basis, how much would you 21 describe the sales at the Frederick location? 22 A. I have no idea. 23 Q. Okay. 24 A. I'm not involved in the sales. 25 Q. Okay. Is there a general manager at each 16 1 location, the Frederick, Grand Junction, Fountain and 2 Belton location? 3 A. No. 4 Q. There is not? 5 A. Huh-uh. 6 Q. Is there a general manager over all four 7 of those entities? 8 A. No. The Fountain store doesn't have a 9 general manager. We have a parts manager and a 10 service manager and there is guys in there selling 11 trucks, but their sales manager would be the one 12 that's in Brighton where I work. 13 Q. And Brighton does not sell RVs? 14 A. No. 15 Q. What role does Andrew Lyons hold? 16 A. Andrew -- I believe his title is general 17 manager. 18 Q. And what locations or divisions is he a 19 general manager of? 20 A. Frederick. 21 Q. Who's the general manager at Grand 22 Junction? 23 A. There isn't a general manager. 24 Q. Is there a general manager at Fountain? 25 A. No. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 2 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 5 (Pages 17 to 20) 17 1 Q. At Belton? 2 A. Dave Bowe. 3 Q. Can you spell that last name? 4 A. B-o-w-e. 5 Q. Thank you. 6 Did Jeff Mullins report to Andrew Lyons? 7 A. I think it was a dotted line working 8 together relationship that they had. You could have 9 maybe said that he reported to him. They talked 10 together, dotted line to George. 11 Q. The way it was described in the discovery 12 was that George was the president, underneath was the 13 general manager, who was Andrew Lyons, and then 14 underneath was managers for each product, which would 15 be RV sales, which would be Jeff, and then there was a 16 parts and a service manager. The hierarchal structure 17 that you described is a little bit different. 18 A. You know what? The way you're saying it 19 I would say you're correct. 20 Q. Okay. 21 A. Everybody -- Andrew was in there first 22 with the -- we just had the trailer store there. 23 Andrew, I think -- he just acquired the other store. 24 It just evolved into that, so that's why Jeff was put 25 in as a sales manager for the RVs, because that's what 18 1 he was going to do. 2 Andrew is on the side in the trailer -- 3 in the horse trailer side and the truck side. That's 4 where his office is. The sales and the parts -- there 5 is only a parts -- well, the parts manager even for 6 the RV side, he's over on Branch 5, too. He's in the 7 other building. 8 Q. Okay. 9 A. If someone had a problem, the first 10 person they were supposed to see would be Andrew. If 11 it was like a customer upset or -- you know, each 12 department has their own manager. There is a parts 13 manager and there is a service manager. If there is 14 an issue with a customer, they are to see those 15 managers first to see if it can be resolved. They are 16 all paid to take care of their department. 17 Q. Fair enough. Have you had conversations 18 with George about this litigation? 19 A. Not really. 20 Q. Not even one? 21 A. You know, no. I mean, I don't really 22 involve myself in these issues because I'm busy doing 23 other things. He does things and I do things, but 24 it's not like we discuss -- what I've discussed is how 25 sad I was about Jeff Mullins, because I really went -- 19 1 tried to make Jeff -- you know, do whatever Jeff 2 needed. I do promotional. I do all of these things 3 for their shows. It was very disheartening to have an 4 employee steal from you. 5 Q. Did you have any other conversations 6 about Jeff Mullins and his unseemly departure? 7 A. No. 8 Q. When you say that you don't have very 9 much involvement in these matters, would it be fair to 10 characterize that statement as you don't have very 11 much involvement in the litigation aspect of this? 12 A. Correct. 13 Q. It sounds like you have a very in-depth 14 knowledge -- or at least you have a significant amount 15 of knowledge about the operation of the business. 16 A. Correct, because I do the day-to-day 17 operations. All this other stuff, when you look at 18 George and what he does, it's -- I mean, there are 19 days I don't talk to him all day. I mean, we're just 20 busy. Just everybody is doing their own thing running 21 a company. 22 Q. Is the RV division of Trans-West a 23 significant part of Trans-West's total business? 24 A. No. 25 Q. How much to you think Trans-West is worth 20 1 in total, ballpark? 2 A. I have no idea. I don't even want to 3 know -- 4 Q. Okay. 5 A. -- to tell you the truth. 6 Q. Why don't you want to know what the 7 company you own is worth? 8 A. I don't care. 9 Q. Okay. 10 A. It's just, to me, not a big deal. I am 11 just -- you know, we just have worked our whole life. 12 We're been married 45 years, and it's like we've just 13 got up every day and have worked doing so many things. 14 It's just get up and go to work. I just get up and go 15 to work. George takes care of the acquisitions and 16 real estate and all the business side of that. 17 I'm the person on the back side making 18 sure all that stuff gets done. We have state 19 requirements, we have deadlines we have to meet, all 20 those things, that's what I do. I don't worry, 21 because George just takes care of it. 22 Q. Have you ever had any conversations with 23 anybody about this litigation? 24 MR. CAGE: Other than her lawyer? 25 Q. (BY MR. FALBE) Other than your lawyer. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 3 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 10 (Pages 37 to 40) 37 1 A. I don't know what is confidential. I 2 mean -- I don't know. 3 Q. (BY MR. FALBE) You just said you did. 4 Don't let Jim intimidate you. 5 MR. CAGE: I'm not trying to intimidate 6 her either. 7 A. I don't know what's confidential. What 8 would be confidential? I don't know. Someone's pay 9 would be confidential. 10 Q. (BY MR. FALBE) Okay. That's a good one. 11 A. To me that's very important. That's 12 confidential information. 13 Q. Do you think any of the sales processes 14 that Trans-West undertakes is confidential? 15 MR. CAGE: Same objection. 16 Q. (BY MR. FALBE) Do you protect your sales 17 process? 18 A. I don't know. 19 Q. Do you consider business practices 20 confidential? 21 MR. CAGE: Same objection. 22 A. Yes and no. 23 Q. (BY MR. FALBE) Personnel information, 24 would you consider that confidential? 25 A. Yes. 38 1 Q. Would you consider your employee handbook 2 confidential? 3 A. I would say yes. 4 Q. Do you provide copies of your employee 5 handbook to all of your employees? 6 A. I don't know what they do. I'm not in 7 the HR department. I don't know if they give it out 8 in orientation. I have no idea, honestly. 9 Q. Do you know if your employee handbook is 10 posted on the Internet? 11 A. I don't know. 12 Q. Do you know if your employee handbook is 13 given out to your Trans-West customers? You look 14 surprised. 15 A. I hope not. 16 Q. Okay. Do you know if your employee 17 handbook -- 18 A. Why? 19 Q. I agree. 20 Do you hand out your employee handbook to 21 your manufacturers? 22 A. I don't know. No, I don't think so. 23 Q. You probably hope not, right? 24 A. Right. 25 Q. Would you hand out a copy of your 39 1 employee handbook to a wholesaler? 2 A. I don't know. I don't have anything to 3 do with it. I have no idea what they do, what their 4 discussion is. 5 Q. Would you hope that they don't as an 6 owner of the business? 7 A. Yeah. 8 Q. Do you know if you ever sell to other 9 dealers? 10 A. Sell what? Dealer transfer? 11 Q. I'm trying to make the question as clear 12 as I can. So do you ever sell vehicles, whether 13 they're RVs -- do you sell RVs to other RV dealers? 14 A. Wholesale them? Yes. 15 Q. Okay. Do you ever buy RVs from other 16 dealers? 17 A. Yes. 18 Q. Do you ever buy RVs from wholesalers? 19 A. I don't know who -- I don't know what a 20 wholesaler is considered or what it would be. I don't 21 know of any. 22 Q. Do you know what a wholesaler's function 23 in this business would be? 24 A. I'm not very clear on it, no, because I 25 don't involve myself in it. 40 1 Q. If I described a wholesaler as somebody 2 that bought a vehicle from one dealer and sold that 3 same vehicle to another dealer, would that accurately 4 describe your basic understanding of a wholesale 5 transaction? 6 MR. CAGE: Object. Foundation and form. 7 She just testified she didn't know, but go ahead and 8 answer. 9 A. I don't know. 10 Q. (BY MR. FALBE) You don't know. Are you 11 familiar with the paperwork that buyers receive when 12 you sell them an RV? 13 A. No. 14 Q. Have you ever seen any of them, the 15 paperwork? 16 A. I'm not involved in the sales. 17 Q. So if I handed you a buyers order, it 18 would be the first time you've ever seen it? 19 A. I know what a buyers order looks like 20 because I order a blank buyers order because I order 21 all the forms. 22 Q. Do you know what an admin sheet is? 23 A. I know what it looks like. 24 Q. Do you know what a unit cost analysis is? 25 A. No. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 4 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 11 (Pages 41 to 44) 41 1 Q. Where do you receive your buyers order 2 forms? Where do you order them from? 3 A. A printing company. 4 Q. Are these Trans-West forms? 5 A. Well, not every location is the same. 6 Q. Maybe I can clarify my question. When 7 you sell an RV, you use a form provided by Trans-West; 8 is that correct? 9 A. Correct. 10 Q. And who drafted the terms of that buyers 11 order? 12 A. I don't know. I think it was proofed by 13 Jim. 14 MR. CAGE: We're not going to go into 15 attorney-client. 16 A. I mean, he does the legal thing on it. 17 If it's drafted, we just make sure it's all legal 18 through our attorney. I don't know. 19 Q. (BY MR. FALBE) And I'm not asking for 20 client communication. 21 Did you purchase the form from a supplier 22 and then have Jim review it? 23 A. No. I don't know who originally set the 24 whole form up or what needed to be on it. I suppose 25 several people put it together and then we just make 42 1 sure it's legally correct, the documentation is good. 2 Q. And who looks over whether that's legally 3 correct? 4 A. The verbiage on it would probably be 5 cleared by our attorney. 6 Q. Do you use any other attorneys other than 7 Moye White? 8 A. No. 9 Q. Do you have legal counsel also look at 10 the documents that relate to financing the 11 transaction? 12 A. I don't know what form they use. 13 Q. Okay. Do you order those forms? 14 A. No. 15 Q. Who asks your legal counsel to review the 16 forms for legal compliance? 17 A. George. It would be a direct from 18 George. 19 Q. Would it be correct to say that George is 20 in charge of regulatory compliance? 21 A. What do you mean? 22 Q. Making sure that the buying forms and the 23 financing forms and the business licenses and sales 24 tax are all -- 25 A. No. 43 1 Q. Who does that? 2 A. It's a variety of people. Whoever is 3 dealing with -- you know, there is finance people. 4 There is a controller. 5 Q. So please describe your legal compliance 6 team with respect to the RV division, because I'm very 7 interested in that. 8 A. The legal team? The sales form? I don't 9 even know where the sales form started. It could have 10 been when they drew it up when Randy was doing it. He 11 probably was the one in charge of it. He just says, 12 This is ready to go. You can order these. That's my 13 knowledge on it. 14 Q. Can you describe the person and the 15 responsibility for regulatory compliance? For 16 example, you said that you're in charge of OSHA 17 compliance. 18 A. Uh-huh. 19 Q. Are you in charge of OSHA compliance for 20 every location? 21 A. Yes, but I work with a gentleman that 22 is -- that's his main job. 23 Q. Who's that? 24 A. Outside. He's an outside source. 25 Q. Okay. And who's that? 44 1 A. Al Martin. 2 Q. Is he a lawyer or is he just a 3 consultant? 4 A. No. He does safety in OSHA. 5 Q. Do they have big signs you have to put 6 up -- 7 A. No. 8 Q. -- in like your break room? 9 A. Oh. Yeah. 10 Q. Does he provide those? 11 A. No. That's HR. 12 Q. Okay. Who gets those signs put up? 13 A. HR department. 14 Q. HR. And how about things that says like, 15 minimum wage and things like that? 16 A. HR. 17 Q. HR. And who at HR is in charge of that? 18 A. Shannon Anderson. 19 Q. So if you had employees at a location not 20 in Colorado -- like you're opening up your Fountain 21 location, correct? 22 MR. CAGE: That's in Colorado. 23 Q. (BY MR. FALBE) I'm sorry. What's the 24 one in Missouri? 25 A. Belton, Missouri. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 5 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 12 (Pages 45 to 48) 45 1 Q. Belton. When you opened up the Belton, 2 Missouri, location, did you have to comply with a 3 bunch of new state rules with respect to wage and hour 4 and labor compliance? 5 A. I'm not in HR. I don't know. 6 Q. Okay. But somebody in the HR department 7 is in charge of making sure that you comply with that? 8 A. Yes. 9 Q. And if you were to have employees located 10 in those locations, do you think that it would be 11 important for somebody in Trans-West to make sure that 12 you're complying with the local laws? 13 A. Yeah. 14 Q. What if you didn't comply with the local 15 laws? 16 MR. CAGE: Objection. Form. Foundation. 17 Speculation. 18 A. Why wouldn't you? 19 Q. (BY MR. FALBE) I don't know. 20 A. I don't know either. We want to be in 21 compliance and we try to do our best. If there is 22 something we don't know and we're made aware of it, 23 then -- 24 Q. Has anyone ever made you aware that you 25 might have a regulatory compliance issue in 46 1 California? 2 A. No. 3 Q. Let me be the first. 4 Can you please describe the claims that 5 have been asserted against Jeff Mullins? 6 A. What do you mean? 7 Q. Why are you suing him? 8 A. I believe Jeff took a lot of money on the 9 side. 10 Q. What kind of money did he take? 11 A. Checks. 12 Q. You believe he took checks? 13 A. Uh-huh. 14 Q. Checks that belonged to Trans-West? 15 A. Yes, I would say so. 16 Q. So they were issued to Trans-West? 17 A. No. 18 Q. I'm confused. Did he take checks with 19 Trans-West's name on them and forge checks? 20 A. He took our property. 21 Q. Which property was that? 22 A. An RV and would wholesale it out and get 23 a check on the side written out to him by Scott. 24 Q. Okay. So let's back up for a second. So 25 which property do you believe that he took? 47 1 A. I'm just saying -- I don't have a list. 2 You probably have a list of RVs. I don't know. 3 Q. So he took an RV and he sold it without 4 authorization? 5 A. He did it on his own. 6 Q. So nobody else signed anything? 7 A. I have no knowledge. I don't know if 8 someone did or someone didn't. 9 Q. When Trans-West transfers title to an RV 10 to a wholesaler like Southwest, does title transfer? 11 MR. CAGE: Objection. Calls for a legal 12 conclusion. 13 You may answer. 14 A. Yes. 15 Q. (BY MR. FALBE) Do you know that in order 16 to transfer a title to an RV, that you have to 17 transfer title after 25 years of being in the vehicle 18 sales business? 19 A. Yes. 20 Q. Who signs that title paperwork? 21 A. Title clerk, documentation clerk. 22 Q. So did Jeff, like, pay them on the side? 23 A. I don't know. Did he? 24 Q. I don't know. I don't know anything 25 about Jeff. He wasn't my employee. 48 1 A. I don't know. 2 Q. I'm asking you. You don't know of any -- 3 A. I don't know if he paid somebody on the 4 side. 5 Q. How did he get the title clerk to sign 6 off on a title? 7 A. He told them to do it. 8 Q. He told them to do it? 9 A. Uh-huh. And he was their manager. He 10 was the manager. 11 Q. And how do you know that he told them to 12 do that? 13 A. He would tell them what to do. Southwest 14 Luxury Coach, send it to them. 15 Q. Is there any check and balance? 16 A. No. I mean, when a manager -- you think 17 he's doing the right thing. Why would you doubt 18 him -- 19 Q. Well -- 20 A. -- until he gets caught? 21 Q. After running a vehicle sales and 22 manufacturing business for 25 years and I had a 23 general manager and his subordinate was losing money 24 or this division was losing money, I would think at 25 some point I would put some responsibility on the Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 6 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 13 (Pages 49 to 52) 49 1 general manager. Did you ever put that responsibility 2 on Andrew Lyons? 3 A. I put it on everybody. You look at the 4 whole picture and say, What are we all doing wrong, 5 collectively. You aren't looking for a thief in the 6 night. 7 Q. So the checks that were written to Jeff 8 Mullins by Southwest Luxury Coach, were those in the 9 name of Trans-West? 10 A. No. They were in the name of Jeff 11 Mullins. 12 Q. Is this a spiff? 13 MR. CAGE: Objection. Form of the 14 question. 15 You may answer. 16 A. It shouldn't have been. 17 Q. (BY MR. FALBE) Do you know what a spiff 18 is? 19 A. Why would it be a spiff? 20 Q. I'm asking. 21 A. If it was a spiff, we would have been 22 writing him a spiff for selling it, not the person 23 buying it. 24 Q. Doesn't a manufacturer ever write spiffs 25 to your salespersons? 50 1 A. If they run a program or they have a 2 contest or something. I don't know. I've seen that 3 on the truck side. I don't know what the RV people 4 do. 5 Q. So manufacturers sometimes pay your 6 employees spiffs for sales; is that correct? 7 A. I don't know for sure, so I really can't 8 answer it. I don't know. 9 Q. Do finance companies pay your employees 10 spiffs? 11 A. I don't know. 12 Q. Are you aware that Andrew Lyons testified 13 that finance companies pay your employees spiffs? 14 A. I'm not aware of it. 15 Q. Are you aware of third-party warranty 16 companies paying your employees spiffs? 17 A. I'm not aware of it. 18 Q. Are you aware that Andrew Lyons testified 19 that third-party warranty companies did pay your 20 employees spiffs? 21 A. I'm not aware of it. 22 Q. When was the first time you became aware 23 that Southwest Luxury Coach paid a spiff to Jeffrey 24 Mullins? 25 MR. CAGE: Objection. Form. 51 1 You may answer. 2 A. When -- I don't know. How long has it 3 been? Four, five, six, seven weeks, eight weeks. I 4 don't know how long ago it was. I was told by George. 5 Q. (BY MR. FALBE) Were you told right 6 before Jeff Mullins was fired or right after? 7 A. I don't know. I don't remember. I 8 remember it as being a sad day. 9 Q. Do you ever pay referral fees? 10 A. Me? 11 Q. No. I mean Trans-West's RV division, 12 does it ever pay referral fees? 13 A. Yes. 14 Q. When does it pay referral fees? 15 A. I've seen one where someone brought a 16 customer in. 17 Q. So you paid somebody for a sale, right? 18 A. They paid them for the customer, and if 19 they made the sale, they got paid. 20 Q. Okay. 21 A. If they didn't make the sale, they didn't 22 get paid. 23 Q. Okay. And how many of those referral 24 fees have you ever paid? 25 A. I have no idea. 52 1 Q. So can you describe to me the difference 2 between a referral fee that Trans-West pays and a 3 referral fee that Southwest Luxury Coach pays? 4 A. I don't know anything about how they do 5 their business. 6 Q. Okay. I think I know the answer to this, 7 but I'm going to ask it. Are you aware that Southwest 8 Luxury Coach asked for a bunch of documents and 9 information from Trans-West? 10 A. No. 11 Q. You're not aware of that? 12 A. No. 13 Q. Were you requested for information? 14 A. No. 15 Q. That was never communicated to you? 16 A. No. 17 Q. Are you in charge of your HR department? 18 A. No. 19 Q. Who's in charge of your HR department? 20 A. Shannon Anderson. 21 Q. And who would you be directly in charge 22 of? 23 A. Me? It would be my assistant, Kat, 24 Katherine. 25 Q. Okay. Aside from Katherine, nobody has Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 7 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 15 (Pages 57 to 60) 57 1 MR. CAGE: Objection. Form. 2 You may answer. 3 A. You know, is it $5? Is it $40,000? Big 4 difference. 5 Q. (BY MR. FALBE) Would it be fair to 6 characterize that it's the amount that's offensive to 7 you rather than the act? 8 A. The act is also important. 9 Q. Okay. 10 A. If it's set up already and everybody 11 knows about it. There are programs out there and the 12 sales manager goes over it with his people, they know 13 about it. It's not hidden. Where what Jeff was doing 14 was hidden. 15 Q. Okay. Are you aware that Southwest 16 Luxury Coach pays spiffs not just to salespeople but 17 also to other dealers? 18 A. No. 19 Q. And are you aware that they do that when 20 they are notified that it might be against a company's 21 policy? 22 A. I don't know anything about their 23 business. 24 Q. Are you aware that if -- they have been 25 notified before about not paying employees, so they 58 1 make the checks directly out to the dealer? 2 A. Which would be the right thing to do. 3 Q. Are you aware of any communications that 4 Trans-West had with Scott Buchanan or Southwest 5 indicating that they wanted all spiffs to be paid to 6 Trans-West? 7 A. I have no knowledge of that. 8 Q. That's fine. Are you aware that this 9 provision about not accepting gifts was the primary if 10 not the only basis for the initial hearing that 11 Trans-West filed against Jeffrey Mullins? 12 MR. CAGE: Objection. 13 Mischaracterization, but you may answer if you know. 14 A. I don't know. 15 Q. (BY MR. FALBE) Do you know who's in 16 charge of administering the policies of this employee 17 handbook? 18 A. I mean, not really. 19 Q. That's fine. Since you don't want this 20 handbook handed out, you don't have any knowledge that 21 Scott ever signed this handbook, right? 22 A. I have no knowledge. 23 Q. Okay. If you could turn to page 15 of 24 the employee handbook, which is TW 00868. Under 25 section 2.17, do you see the provision where it says, 59 1 "No employee has the authority to enter into a 2 contract or agreement for services, purchases, leases, 3 or other similar documents on behalf of the Company, 4 except the President"? 5 A. Do you know what that means? That means 6 like a Cintas uniform agreement or let's say Stanley 7 Security. That's what everyone takes from that. 8 Q. At least that's what you take from it. 9 Would that be fair? 10 A. Yes, and that's all of our people in the 11 department. I sign all those contracts for all 12 uniforms, all safety. All of this is -- no one signs 13 on behalf of Trans-West for any of that business. 14 Q. Okay. So when Trans-West sells a 15 vehicle, wouldn't that be a contract? 16 A. If a sales manager signs it, then he has 17 the authority to do it. 18 Q. And how does he have the authority? It 19 says "except the President." 20 A. George okayed it. 21 Q. Each transaction? 22 A. No. The general. You're given that 23 responsibility. You have the authority. You have -- 24 he believed that you"re going to do the right thing 25 for Trans-West. 60 1 Q. Okay. So anybody that signs on behalf of 2 Trans-West has the authority of George to conduct 3 business? 4 MR. CAGE: Objection. 5 Mischaracterization. 6 You may answer. 7 A. I can't say that, you know, for 8 everything. I have no idea. 9 Q. (BY MR. FALBE) Did Jeff Mullins have the 10 authority of George to sell RVs? 11 A. Of course. He was hired as a sales 12 manager. 13 Q. I'm just asking a question. 14 A. I'm just telling you. 15 Q. I like you more and more every day. 16 Under Section 2.18, do you see the 17 section reads "Compliance with All Local, State and 18 Federal Laws and Applicable Professional Certification 19 Requirements"? Do you see that? 20 A. Under 2.18, yes. 21 Q. And underneath that it reads, "The 22 Company expects all employees to comply with all 23 local, state and federal laws and to keep current all 24 professional certification requirements." Do you see 25 that? Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 8 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 16 (Pages 61 to 64) 61 1 A. Yeah. 2 Q. Is that part of the licensing 3 requirements for the salespersons in Colorado? 4 A. Yes. 5 Q. Do you think that if Trans-West had 6 employees located in California that they should also 7 be licensed? 8 MR. CAGE: Objection. Form. Foundation. 9 Legal conclusion. That's dealing with California and 10 subject to the protective order. 11 You don't have to answer. 12 Q. (BY MR. FALBE) Do you see the next 13 section called "Hiring Relatives," Section 2.19? 14 A. I do. 15 Q. Does it read, "The Company discourages 16 the practices of hiring relatives of current employees 17 for positions within the same operating entity, and 18 does not permit relatives to be employed in a direct 19 supervisor/subordinate reporting relationship"? Do 20 you see that? 21 A. Uh-huh. 22 Q. Has Trans-West ever made an exception to 23 this policy? 24 A. It has. And you can see that next line 25 says exceptions to the policy by the president's 62 1 approval. 2 Q. Okay. That's not the next line. That's 3 the third -- 4 A. The third line. 5 Q. -- third paragraph down? 6 A. Right. 7 Q. The next line actually reads, "The 8 employment of relatives can cause various problems, 9 including charges of favoritism, conflicts of 10 interest, family discord and scheduling conflicts that 11 work to the disadvantage of both the Company and its 12 employees." Do you see that? 13 A. Uh-huh. 14 Q. Why do you think that provision is in 15 there? 16 A. I don't know. It started a long time ago 17 when someone would want to hire their sister or their 18 brother and whatever, so I'm assuming they put that in 19 there at that time. 20 Q. Do you think that's a wise policy? 21 A. Yes and no. You can have a good employee 22 and they want to hire their family member. That 23 happened. You know, like we had an accounts 24 receivable girl. She wanted to hire her daughter for 25 receptionist. Her daughter was not the right fit for 63 1 the receptionist. So when we denied it, that 2 employee -- you know, blood runs pretty thick -- that 3 employee got very upset with us. So in order to save 4 yourself from that, it's a good practice not to do it. 5 Q. I agree. I think -- would it be fair to 6 say that this policy was used to not hire -- this 7 policy was enforced not to hire a relative, at least 8 in that situation that you described? 9 A. I think at the time when they did this, 10 it probably was. 11 Q. Okay. Are you aware of any other times 12 when somebody wasn't hired because of this familial 13 relative exclusion? 14 A. I can't think of any off the top of my 15 head. I don't know. I'm sure there has been times. 16 I don't know. 17 Q. That's okay. Do you know if there are 18 any exceptions that have been made to this policy? 19 A. Oh, yeah. We have got a service manager 20 and his brother is a mechanic. 21 Q. Who is that service manager? 22 A. Nate Josey. 23 Q. Where is he located? 24 A. In Brighton. His brother is a mechanic 25 in the big shop. 64 1 Q. Any other exceptions? 2 A. We have got a mechanic and now his wife 3 is in the warranty department. She is an awesome 4 employee. He is an awesome employee. 5 Q. Does the warranty person and mechanic 6 report to each other? 7 A. They're all under service. 8 Q. Okay. So would they be in a direct 9 reporting relationship? 10 A. Yeah, to the service manager. It's a 11 tough spot to be in when you're the service manager -- 12 Q. So -- 13 A. -- with somebody's wife. I would have 14 never put myself there, but, you know what? Go for 15 it. 16 Q. Does the warranty person report to the 17 mechanic? 18 A. No. 19 Q. Does the mechanic report to the warranty 20 person? 21 A. No. 22 Q. So my actual understanding of this 23 particular policy is that it would be -- it's not a 24 violation because it's not a direct reporting -- 25 A. They all report to that service manager. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 9 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 19 (Pages 73 to 76) 73 1 A. No. 2 Q. It wouldn't? 3 A. No. You know what? If you're a good 4 person and you work -- if you're a hard-working person 5 and you do your job, that's all we ask of anybody. 6 But the problem comes in -- like if I got sideways 7 with her, that would be a bad deal, but -- because 8 blood is thicker than water, so you don't want to put 9 yourself in that spot. 10 These people have helped me so much to 11 accomplish what we have done in the background of what 12 we do all the time, that to find that person is very 13 hard. I would hire them -- I don't care if she's my 14 sister, my mother, my whatever. 15 Q. I'm not -- please don't take this as 16 though I'm attacking you on your decision to hire 17 these individuals. 18 A. You are attacking me. 19 Q. I'm not. 20 A. You know what? You have to be in the 21 thick of the business every day to know how hard it is 22 to run a business and to find good people that just do 23 it without supervision and you don't have to baby-sit 24 them. What they do is important to the business, and 25 that's where I'm coming from. 74 1 Q. How many employees does Trans-West have, 2 again, approximately? 3 A. I'm going to say we're close to 890. 4 Q. Okay. So if Trans-West has 890 employees 5 and I've now listed four or five different exceptions 6 to the hiring of relatives policy and the only other 7 relatives that have been hired as an exception to this 8 policy is one other person, you don't think that that 9 favors an exception to the policy for the owners more 10 than anybody else? 11 A. No. There is a lot of other people. I 12 just don't know them all. 13 Q. That's fair. 14 A. There are brothers as mechanics working 15 in there. There are people all over, but I don't know 16 all those people. 17 Q. Do you know if there is a policy or 18 procedure to evaluate the risks of having an exception 19 to this policy? 20 A. I don't know. 21 Q. Who makes the decision if there is an 22 exception? 23 A. It would probably be HR going to the COO 24 and then George would probably be involved. 25 Q. Okay. 75 1 A. The department manager would be involved. 2 Q. The policy reads, "Exceptions to this 3 policy may be made only upon approval of the 4 President." So would it be fair to say that George 5 would have to approve all of these? 6 A. George -- if they run it by George, and 7 they probably do, the HR department does, I don't know 8 if all of them -- I can't say if all of them are. You 9 would have to ask them. 10 Q. Okay. If you can now flip to page 35 of 11 the same handbook, which is TW 000919. The third 12 bullet point, do you see where it reads, "No employee 13 or member of the employee's immediate family should 14 accept gifts (including but not limited to services, 15 discounts, trips, cash) from any person or firm doing 16 or seeking to do business with the Company, as by 17 doing so might infer the gift was given to influence 18 the employee in conducting business with the donor"? 19 Do you read that? 20 A. I read it. 21 Q. Do you agree that the accepting of the 22 chocolates by you probably violates the terms of that. 23 A. Yeah, I do. I get it. Guilty as 24 charged, but there is a problem with that. I can do 25 it. 76 1 Q. Do you realize that a salesperson 2 accepting gifts by manufacturers would probably 3 violate the terms of that policy, too? 4 MR. CAGE: Objection. Form of the 5 question. 6 You may answer. 7 A. You know, I don't think that's really 8 fair to say that. You would have to know the 9 circumstance behind the gift. 10 Q. (BY MR. FALBE) Does it say anything 11 about the circumstance behind the gift in this 12 provision? 13 A. I don't see it, but . . . 14 Q. I don't see it either. 15 A. Okay. 16 Q. I'm not asking you if it's a right or 17 wrong decision. What I'm asking you is, Does it 18 violate this policy? 19 A. I'm going to say yes because you want me 20 to. 21 Q. Does receiving a spiff from a third-party 22 warranty company violate the technical terms of this 23 policy? 24 MR. CAGE: Objection. Form. 25 You may answer. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 10 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 20 (Pages 77 to 80) 77 1 A. Yes and no. 2 Q. (BY MR. FALBE) Okay. What's the no 3 part? 4 A. I believe the no part for me is when -- 5 I've seen -- I open the mail at our business. You see 6 a gift card come in and it will say the salesman's 7 name on it and it's from Meritor, you know that they 8 have a whole program going because all the salesmen 9 are getting them. And it's okay, because Meritor is 10 offering it to them and everybody knows about it. The 11 salesmen know about it. The sales manager knows about 12 it, and it's 50 bucks. 13 Q. So if they mailed it directly to the 14 employee -- 15 A. And they do do that, too, but we know 16 about the program. You have to set up the program in 17 your dealership on the computer, and your sales 18 manager probably is the one in charge of it. 19 Q. Are these big companies that offer these 20 spiffs? 21 A. Yeah. Like Meritor is a big company. 22 That's one that comes to my mind that I have seen. 23 Q. So they might be a little bit more 24 sophisticated than, you know, a one-person operation, 25 right? 78 1 A. Boxed candies? He just walks in and 2 gives it to me. 3 Q. He doesn't set up a program? 4 A. No. 5 Q. Okay. 6 A. And everybody said, Oh, you got a box of 7 candy, and I go, Here you go, guys. Have at it. 8 Q. So if Jeff would have come to you with a 9 check and said, Hey, here is some money I would like 10 to share with you, would that have made everything 11 okay? 12 A. Jeff should have never accepted a check 13 made out to Jeff himself. If it was made out -- for 14 that dollar amount, that should have been all talked 15 about out in the open, first of all, with George. I 16 mean, what he did for the dollar amount that he 17 collected, are you kidding me? 18 Q. What dollar amounts did he collect? 19 A. It's huge. When you get a $40,000 check 20 or a $10,000 check, you get a $5,000 check and you 21 keep getting them for a whole year, hey, that's 22 awesome, isn't it? That's theft. 23 Q. And if Jeff would have shared that with 24 Trans-West -- 25 A. George would have said, What are you 79 1 doing? 2 Q. And then what? 3 A. I don't know then what would have 4 happened. I don't know. There would have been a 5 discussion. 6 Q. Okay. Do you have any idea what would 7 have happened after that? 8 A. No. 9 Q. The next line, does it read, "Such gifts 10 should be returned with a note of explanation"? 11 A. Yeah, it says that. 12 Q. So under this policy, all of those gifts 13 should have been returned with a note of explanation? 14 A. I have no idea. I don't know what to 15 read into that. I don't know. I didn't write that 16 policy. I don't know what they meant by it, so I 17 guess you would have to ask them. 18 Q. How would an employee know what this 19 means if you, as the owner, don't know? 20 A. I don't know, because I didn't write this 21 and I didn't do this paragraph and I don't know what 22 went into the background of it. 23 Q. Did Jeff Mullins write this paragraph? 24 A. I have no idea. 25 Q. Okay. Did Scott Buchanan write this 80 1 paragraph? 2 A. I hope not. 3 Q. Me, too. 4 A. He wasn't employed there. 5 Q. Right. 6 Did you know Andrew Lyons before or after 7 your daughter married him? 8 A. Well, I knew him before she married him. 9 Q. Okay. That was probably a poorly worded 10 question. 11 A. Really? Yeah. 12 Q. Did you know Andrew Lyons before your 13 daughter met Andrew Lyons? 14 A. No, I didn't. 15 Q. Would it be fair to say that your 16 daughter brought Andrew Lyons to your attention? 17 A. Yes. 18 Q. What did he do when he met your daughter? 19 A. Horses. They were both -- he sold her a 20 horse, I think. 21 Q. Okay. And do you know what his 22 occupation was at that time? 23 A. He was managing the ranch next to ours. 24 Q. Do you ride horses? 25 A. No. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 11 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 25 (Pages 97 to 100) 97 1 A. Yeah, I see the question. 2 Q. Do you see your response where it says, 3 "You know, I had a conversation when we were in Indio 4 with Jeff and Steve, and Brad and I were probably 5 standing around the counter and I said -- we were 6 talking about how we could do better, and I think I 7 said, Do you think Andrew does a good job as a 8 manager?" 9 A. Yeah. 10 Q. Why would you be asking that? 11 A. I'm asking, Do you think we could do 12 better? Like I said before, we're always asking, Can 13 we do better? How can we make our business better? 14 What's wrong with that question? 15 Q. That's wasn't the question. You asked, 16 Do you think Andrew does a good job as a manager? 17 A. Yeah. Is there something wrong with 18 asking that question? Because my response is, I ask 19 that about every manager all the time. Do you think 20 you're a good manager? Do you think you're doing a 21 good job? Can we do better? 22 Q. My question wasn't whether that was an 23 appropriate question or not. I don't honestly care 24 about Trans-West's business. I'm asking you why you 25 asked that question. 98 1 A. Because Jeff was there and Andrew wasn't 2 there. He was the one missing, so I'm asking those 3 guys, Is Andrew doing a good job? 4 Q. Why would you ask if Andrew was doing a 5 good job if you thought he was doing a good job? 6 A. I meant nothing of that. 7 Q. Did you ever ask? 8 A. Could we do better? I'm asking, Can we 9 do better, to the guys. 10 Q. So you're saying that you thought Andrew 11 was doing a great job, but you decided to ask -- 12 A. I didn't say that. I did not say that 13 Andrew was doing a great job. 14 Q. Well, was Andrew doing a great job? 15 A. I don't know if he was doing a great job. 16 Apparently he wasn't doing a good enough job because 17 he didn't catch Jeff being a thief. 18 Q. I agree. 19 A. But he is not trained to do that either, 20 so give him some credit for that. Nor was I, because 21 I was right in the thick of it, too, with helping Jeff 22 and here he is stealing from us. 23 Q. Why were you in Indio, California? 24 A. A trip. 25 Q. What kind of trip? 99 1 A. Jeff wanted us to look at property. 2 Q. What was this property for? 3 A. To display motor coaches. 4 Q. Where? 5 A. In Indio. 6 Q. Why would you display coaches in 7 California? 8 MR. CAGE: I'm going to object now and 9 assert the privilege, 30.2, the basis of the 10 protective order. I think it's beyond the scope of 11 what was in the previous deposition, and you're headed 12 right down the same path that you've tried before. 13 You've made your record. I don't fault you for that. 14 You've made your record. 15 Q. (BY MR. FALBE) Does Trans-West have a 16 license to operate in California? 17 MR. CAGE: Same objection. 18 Don't answer that. 19 Q. (BY MR. FALBE) Could you look at 20 page 44, line 24? The question was, "Was it a meeting 21 that you called --" 22 And you answered, "No." 23 Do you see that? 24 A. Yes. 25 Q. And the question was "-- basically?" 100 1 And you responded, "A meeting?" 2 The question was, "Yes." 3 And you said, "No, we were standing 4 around a counter." 5 The question was, "A counter. What kind 6 of counter?" 7 And you said, "In Indio, at the counter. 8 There's only the kitchen counter, whatever." 9 And the question is, "Indio, California?" 10 And you answered, "Uh-huh." 11 The question was, "And what's in Indio, 12 California?" 13 And you answered, "A lot. A lot. Two 14 lots. Three lots." 15 The next question, "A lot at an RV 16 resort?" 17 And you answered, "Yeah." 18 The question was, "And what -- does 19 Trans-West own these lots?" 20 And you answered, "Yes, we do." 21 What did you mean by that? 22 A. What do we do? 23 Q. Yeah. 24 A. We were standing there wanting to 25 purchase -- we purchase lots. I was in a kitchen. I Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 12 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 28 (Pages 109 to 112) 109 1 manager position, but I'm referring to page 47, 2 lines 24 and 25, and it continues onto page 48, 3 line 1. 4 A. Well, mine are white. 5 Q. And I'll get you a copy, but I'm reading 6 to you what the testimony is, and it says, "He can fix 7 all of this computer business. But I don't know, with 8 the position that he's in, does he want all that?" 9 It sounds to me like you're questioning 10 whether he wants the responsibility of a general 11 manager position. 12 A. Does he want it? I don't know. 13 Q. But you were questioning that, right? 14 A. No. I question my own ability. Do I 15 want it? It's a general fair question. 16 Q. But you indicated that he was competent 17 at fixing "computer business." 18 A. He is very competent at a lot of things 19 and he is probably very competent at running that 20 store. He is not probably good at catching a thief. 21 I'm not good at it either. I'm not trained for it, 22 because I believe the best in everybody, but you don't 23 go around lying and cheating to employer who pays your 24 paycheck and you make a good salary. 25 He's not the one that should be run 110 1 through the ringer here. It's Jeff Mullins that 2 should be. 3 Q. Do you think my client should be run 4 through the ringer? 5 A. He is part of it -- 6 Q. But not Andrew? 7 A. -- writing the checks. Andrew didn't 8 write checks and Andrew didn't take the money. 9 Q. What exactly did Southwest do that was 10 wrong? 11 A. Write checks to Jeff Mullins. 12 Q. Did Trans-West write checks for referral 13 fees? 14 A. Honestly, don't go there. 15 Q. Oh, I'm going there. 16 A. Okay. So you say 30,000, 20,000, 17 $10,000. You probably saw the list. 18 Q. I saw the list. 19 A. Is that not theft? You think that's 20 okay? 21 Q. I'm the one asking questions here. 22 A. Well, it's not okay. 23 Q. But you think that paying referral fees 24 is okay? 25 A. If it's a referral fee for a client, yes. 111 1 It's approved by everybody, yes. Was this approved? 2 No. Nobody knew about it. 3 Q. So when you pay a referral fee, have you 4 ever paid -- so every time you pay a referral fee, you 5 ask the employer before you pay the referral fee if 6 it's allowed? 7 A. It's approved by the manager. 8 Q. Have you ever paid a referral fee to a 9 Pam Maloof? 10 A. I don't know. 11 Q. Do you know who Pam Maloof is? 12 A. No. 13 Q. Do you know anybody that you paid a 14 referral fee to? 15 A. No. 16 Q. We'll go through a couple, because your 17 signature is on the checks for those. 18 A. I'm sure -- my signature is on every 19 check that probably goes out of Trans-West, the 20 majority of them, because I'm there every day signing 21 checks, and we go through millions of dollars, so that 22 doesn't mean anything to me. 23 Q. Why are you -- is it a stamp or do you 24 sign these checks? 25 A. I sign. 112 1 Q. Is there a review process? 2 A. No. 3 Q. So if there was a check -- there is no 4 review process? 5 A. It goes -- it's signed off on by the 6 manager. Our check request goes to accounts 7 receivable, it's signed by the controller, it comes 8 down to my desk. 9 Q. And how many people have to sign off on 10 checks? 11 A. Two. 12 Q. Why two people? 13 A. That's what is the requirement. 14 Q. Why have that requirement? 15 A. I don't know. 16 Q. Aren't you the business owner? 17 A. Yeah. 18 Q. Are you hiding behind somebody else for 19 making all your decisions? 20 A. No. 21 Q. Who made this decision? 22 A. I have no idea. 23 Q. You just follow along? 24 A. Ask Mark, ask the COO, ask the auditors, 25 ask who -- don't ask me. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 13 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 30 (Pages 117 to 120) 117 1 RVs? 2 A. No. 3 Q. Do you think that having somebody that 4 signs the check would be a good check and balance to 5 have before checks were written? 6 A. That was Jeff's job to make the good 7 decision of buying an RV. That was the trust put in 8 him. 9 Q. And did somebody compel you to make that 10 decision? 11 A. Me to make the decision? 12 Q. Yeah, Trans-West. Did somebody compel 13 Trans-West to put Jeff in charge and give him this 14 much authority? 15 A. When he was hired by George, but, you 16 know, a lot of times he would call and ask if he could 17 buy. 18 Q. Okay. So you're saying that -- 19 A. It's not me. 20 Q. -- he had authority to write all of these 21 checks, right? So there wasn't anything illicit about 22 these checks that were being written, right? 23 A. When you're purchasing an RV? 24 Q. When he requested checks to purchase an 25 RV. 118 1 A. I didn't say there was. 2 Q. Okay. When -- 3 A. I didn't question him. I didn't know he 4 was stealing. 5 Q. In 2013, did you ever have a meeting with 6 Jeff Mullins on the phone not to buy anymore RVs? 7 A. I don't know. 8 Q. Are you aware of Andrew Lyons telling 9 Jeff Mullins to sell everything? 10 A. I'm not aware. 11 Q. Can you tell me how inventory sheets 12 work? 13 A. No. 14 Q. You testified previously that you knew 15 about inventory sheets and that he would know that by 16 his inventory sheet, by the date, how many days an 17 item was in his inventory. 18 A. Your inventory is on a piece of paper. 19 You know the day it hits your floor plan and there is 20 columns for 30, 60, 90 days or whatever and it tells 21 you how many days are on it, but I don't -- 22 Q. And who gets these inventory sheets? 23 A. I don't know who gets them. 24 Q. Do you get them? 25 A. No. 119 1 Q. Do you know when your floor plan requires 2 a mandatory write-down? 3 A. No. 4 Q. Do you know how much interest is charged? 5 A. No. 6 Q. Do you know much about the flooring plan? 7 A. No. 8 Q. On your copy, can you see page 22 clear 9 enough? 10 A. What are you looking at? 11 Q. On page 22, it starts with line 9 and it 12 ends with line 13. The question was, "And what do you 13 mean exactly when you say, let them sit in the back 14 yard?" 15 And your answer was, "Well, when they're 16 overaged and you're paying interest in floor plan, 17 after 120 days, that's bad -- that's bad." 18 Do you remember saying that? 19 A. Yeah. 20 Q. So here it looks like you kind of have 21 knowledge of -- 22 A. I've been in this world long enough to 23 know people and hear people talk about floor plan and 24 interest and know that if you have something 120 days, 25 you need to turn it. You don't have to be too smart 120 1 to figure that one out. 2 Q. Smarter than the people that were in 3 charge, because they weren't doing it, right? 4 A. Yeah. That would be Jeff. 5 Q. Anybody else in charge of that, or just 6 Jeff? 7 A. Jeff. 8 Q. Just Jeff. That's a lot of 9 responsibility. 10 A. It is, and he got paid well. 11 Q. Was there any oversight? 12 A. No. Don't know. Probably the controller 13 and the CFO or COO were on him. 14 Q. Just not your son-in-law, right? 15 A. Hey, Andrew could have been there, too. 16 Put him down. 17 Q. Do you think of Andrew as an employee or 18 as your son-in-law? 19 A. He's an employee and I'm an employee. We 20 run a business. 21 Q. But when you think of Andrew, do you 22 think of him as your son-in-law? 23 A. No, I don't. I'm at work every day with 24 my husband. I don't think of him as my husband 25 either. He's in charge and we run a business. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 14 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 31 (Pages 121 to 124) 121 1 Q. Do you see on page 24, lines 13 through 2 17, your response is, "So you're paying a floor plan. 3 You're not paying interest. And you want your 4 salespeople to make a living"? Do you see that? 5 A. "So you're not paying a floor plan." 6 What's the question? 7 Q. It's talking about the aged inventory. 8 A. Yes. You want to turn it as fast as you 9 can. 10 Q. So this was something that you were 11 focused on? 12 A. So you don't want to pay for a floor 13 plan. Who wants to pay interest? 14 Q. I'm clarifying, because my initial 15 questions was, tell me about the terms of your floor 16 and you said you had no idea. 17 A. Well, this isn't -- I don't know what the 18 floor plan -- the percentage is that you asked me. 19 Q. I didn't ask that. 20 A. You did. 21 Q. I asked you, tell me the terms. 22 A. No, I don't know the terms. I don't know 23 the terms of paying on the floor plan. I don't know 24 any of that business, but I do know and I've been in 25 this business long enough with cars, trucks, trailers, 122 1 everything, floor plan and overaged inventory is for 2 any dealer a bad deal. You don't have to be very 3 smart to know that. 4 Q. Do you know that if you're paying floor 5 plan interest, that it's a big chunk of your income? 6 A. It is. Floor plan is a big chunk of 7 change for any dealer, which takes out of your 8 profits. Pretty simple. 9 Q. Can you read page 32 on your copy? 10 A. Which one? 11 Q. Lines 15 and 16. 12 A. 15, "You will have your inventory that 13 you have on the floor." What does it say? 14 Q. Well, this is your response. 15 A. Well, I can't read it because my copy is 16 white. 17 Q. That's okay. Your response is, "You will 18 have your inventory that you have on the floor plan." 19 It seems like -- and I've counted 20 numerous times where you reference and are concerned 21 about the interest that you are paying on the floor 22 plan, and I'm asking you to now describe to me what 23 the floor plan is and how Trans-West uses it. Can you 24 please describe that to me? 25 A. No. I don't know what the floor plan 123 1 interest is. That's what you asked me. 2 Q. I am asking you to describe what a floor 3 plan is. 4 A. I just did. I told you, 30, 60, 90. If 5 you get to 120 days, that's -- 6 Q. Why is that bad? 7 A. That's a lot of days to have a unit on 8 your floor plan. It costs a lot of money. It doesn't 9 matter if it costs $5 a day or $20 a day. I don't 10 know what it costs, but it costs money. 11 Q. Does it go up as the -- 12 A. Well, of course it does. 13 Q. These are the terms that I'm asking you 14 about. 15 A. It does. 16 Q. So tell me what else happens with the 17 floor plan. 18 A. You have to pay it. 19 Q. Do you know what being out of trust is? 20 A. Yes. 21 Q. What's that? 22 A. That means you didn't pay your floor 23 plan. You didn't pay off your vehicle. 24 Q. Anything else? 25 A. That's the most important thing. 124 1 Q. That's one of them. Are there other, you 2 know, coverage ratios in the floor plan that you might 3 have to satisfy? 4 A. I have no idea. 5 Q. I'm just asking, because it seems to me 6 in your previous testimony that you were very 7 concerned about the floor plan interest and how -- 8 A. I'm always concerned about paying 9 interest. 10 Q. And I'm asking for you to describe it, 11 because I don't know. 12 A. And I did. I did describe to you what I 13 know. 14 Q. Okay. 15 A. I know that it's a bad thing to have 16 inventory on your floor plan for a long period of time 17 because it costs you a lot of money when you are 18 paying interest. 19 Q. Okay. 20 A. Anybody would know that that's in 21 business. It's not that hard. 22 Q. How does Trans-West keep track of its 23 inventory of RVs? 24 A. By their inventory sheet. 25 Q. Anything else? Is there a computer Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 15 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 34 (Pages 133 to 136) 133 1 curve with respect to your RV business? 2 A. You're always going through a learning 3 curve every day of your life. There isn't a day goes 4 by that you don't learn something new, just when you 5 thought you were so smart. 6 Q. Aside from interest cost associated with 7 an RV sitting on a lot for an extended period of time, 8 are there other expenses associated with that? 9 A. Yes. 10 Q. What other expenses? 11 A. Detail, paint, windshields, advertising, 12 repairs. 13 Q. Would you also include fuel? 14 A. Yes. 15 Q. Servicing? 16 A. If there is repairs. 17 Q. Winterizing? 18 A. Yes. 19 Q. Depreciation? 20 A. Yes. 21 Q. Do these RVs get more valuable as they 22 sit on their lots? 23 A. Oh, yeah. Yeah. No. 24 Q. For clarification, because she -- 25 A. No. 134 1 Q. -- she can't pick up sarcasm, you mean 2 no, right? 3 A. Yeah. I'm laughing because you asked me 4 that question and it's, like, really? 5 Q. And do you call these RVs "overage" in 6 your business? 7 A. Call them what? 8 Q. Do you have a term for RVs that have been 9 on your inventory for too long? I thought I read that 10 you had called them overage. If I'm wrong, I'm wrong. 11 You can just say no. 12 A. No. 13 Q. With respect to the fees that Trans-West 14 is claiming were, in this particular case, paid from 15 Southwest to Jeff Mullins, were any of these fees paid 16 by Southwest to Mullins written in the name of 17 Trans-West? 18 A. I don't know. 19 Q. Did you see any of the checks? 20 A. No. 21 Q. Did you see a list of any of the checks? 22 A. I don't think I saw a list. 23 Q. If the checks were written to Trans-West 24 and Jeff Mullins had cashed them, would you consider 25 that wrongful? 135 1 A. Yes. And how in the world would you cash 2 a check if it was written to Trans-West and he cashed 3 it? I don't know how you could do it. 4 Q. I'm not a criminal, but . . . 5 A. You don't want to be. You don't want to 6 be. It's a bad spot. 7 Q. But my understanding is that the checks 8 that were written from Southwest weren't made to 9 Trans-West at all. Is that your understanding? 10 A. Yes. 11 Q. Instead they were made to Jeffrey 12 Mullins; is that correct? 13 A. Right. 14 Q. So did the money paid by Southwest to 15 Mullins belong to Trans-West at any time? 16 A. I don't know. 17 Q. Doesn't it seem like at one point it was 18 Southwest's money and then at one point it was Jeff 19 Mullins' money, but at no point it was Trans-West's 20 money? 21 A. I think it was our money. It shouldn't 22 have been Jeff Mullins'. Why would Jeff Mullins be 23 getting a check from Southwest? 24 Q. Could you have cashed that check that was 25 made to Jeff Mullins? 136 1 A. No. 2 Q. No. Could you have forced Southwest to 3 issue a check for that amount? 4 A. To who? 5 Q. To Trans-West. 6 A. Forced them? 7 Q. Yeah. Could you have compelled them to? 8 A. I didn't know about it. 9 Q. Okay. But if you had known about it, 10 could you have said -- 11 A. I don't know. 12 Q. -- I want these checks made out to me? 13 A. I don't know. What are the 14 circumstances? 15 Q. Could you force them to do anything? 16 A. I can't force anybody to do anything. 17 Q. Did Mullins ever take money that was held 18 in the name of Trans-West? 19 A. I don't know. 20 Q. Are you aware of any money that Mullins 21 took that was held in the name of Trans-West? 22 A. Was our name on it? 23 Q. Are you aware of it, yes. 24 A. No. 25 Q. Are you aware of Southwest ever forging Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 16 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 35 (Pages 137 to 140) 137 1 any checks from Trans-West? 2 A. No. 3 Q. Did Southwest ever steal any vehicles 4 from Trans-West? 5 A. I have no idea. 6 Q. Are you aware of any vehicles that were 7 ever stolen from Trans-West? 8 A. No. 9 Q. Did Southwest ever steal any title 10 paperwork that belonged to Trans-West? 11 A. I don't know. 12 Q. Do you know how vehicles are removed from 13 inventory? 14 A. Sold. 15 Q. After they are sold, do you know how they 16 are removed from Trans-West's inventory listing? 17 A. After they are sold? No. 18 Q. If Southwest issued a check to Trans-West 19 for the purchase of an RV, who would deposit or 20 endorse that check? 21 A. If it went to Frederick to the business 22 office there, Carol. 23 Q. Is there an office manager at Frederick? 24 A. Carol. 25 Q. What's Carol's last name? 138 1 A. Scott. 2 MR. CAGE: She just said it. 3 A. I just told you. 4 Q. (BY MR. FALBE) Is there a Charlie? 5 A. Charlie used to work there. She was 6 titling. 7 Q. What was her position? 8 A. She did titles, title work. 9 Q. Why didn't you just have Jeff do all of 10 this stuff? 11 A. Do what? 12 Q. Issue the titles, write checks. 13 A. Seriously? He didn't even answer his 14 phone. The work wouldn't have gotten done. 15 Q. Do you think it would be a wise move to 16 entrust all of that responsibility in one person? 17 A. What? 18 Q. The ability to transfer title, issue 19 checks. 20 A. We have title clerks in every location. 21 Q. Is there a reason why you have title 22 clerks in every location? 23 A. Because there is too much paperwork and 24 guys don't get it done. 25 Q. Is there a reason other than just the 139 1 volume of work? 2 A. It's always been that way. 3 Q. Is it a natural check and balance not to 4 have a person who is transferring title -- 5 A. We have office managers, we have titling 6 clerks. They handle it. 7 Q. And do you intentionally segregate these 8 responsibilities? 9 A. They do it for the purpose of the 10 paperwork getting out. 11 Q. Is it for pure efficiency? 12 A. Yes. 13 Q. Okay. So it's not because you don't want 14 the person who transfers title also writing a check? 15 MR. CAGE: I'm going to object to the 16 form of the question because it's a non sequitur. 17 A. Yeah. It doesn't make any sense to me 18 what you're saying. 19 Q. (BY MR. FALBE) So you don't -- as a 20 matter of policy and procedure, Trans-West doesn't 21 segregate duties in its business operations from a 22 check-and-balance perspective? 23 A. Yes, we do. That's why you have a title 24 clerk who does that, plus for the efficiency of 25 getting the paperwork out in a timely fashion. 140 1 Q. So that's what I want to clarify. You 2 have different people doing different functions not 3 just for efficiency; is that correct? 4 A. Not just for efficiency? But because 5 why? 6 Q. I'm asking, do you also do -- 7 A. There's a check and balance for 8 everything to make sure everything gets done. 9 Q. And that people aren't stealing; is that 10 correct? 11 A. I don't think that's ever been the -- no, 12 I'm not going to say that's correct. I mean, do you 13 hire people thinking they're going to steal from you? 14 No. 15 Q. Have you ever -- has Trans-West ever had 16 an audit? 17 A. Yes. Every year. 18 Q. Who's your auditing company? 19 A. Eide Bailly. And we have floor plan 20 audits every two months or three months or whatever. 21 I don't know. 22 Q. Who does your floor plan audit? 23 A. Daimler. 24 Q. Do they outsource that? 25 A. I don't know. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 17 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 36 (Pages 141 to 144) 141 1 Q. And does your auditing company ever talk 2 to you about segregation of duties? 3 A. They don't talk to me about it, no. 4 Q. Who would they talk to about that? 5 A. Probably Mark, George. 6 Q. If Jeff wanted to sell a vehicle to a 7 friend for a dollar, could he do that? 8 A. It depends. I don't know. I'm going to 9 say no. Let's just go with no. 10 Q. Why wouldn't he? 11 A. Why wouldn't he what? 12 Q. Why wouldn't he be able to sell an RV to 13 a friend for a dollar? 14 A. Probably wouldn't be allowed. 15 Q. Who would stop him? 16 A. We would probably have more cost in it. 17 Q. Who would catch him? 18 A. Who would catch him? 19 Q. Yeah. Who would disapprove of this 20 transaction? 21 A. To catch a thief. Let's see. Probably 22 Mark, George, Andrew. I don't know. 23 Q. How would they -- 24 A. The titling clerk. First of all, it 25 would probably be the titling clerk. The office 142 1 manager, let's go there first, and go, What are you 2 doing? 3 Q. And the office manager is -- 4 A. Carol Scott. 5 Q. Okay. So Carol at some point looks at 6 this and says, I'm not writing this check. This 7 doesn't seem right. Is that correct? 8 A. Writing a check for a dollar? 9 Q. I'm asking you, does she exercise 10 business judgment in valuing -- 11 A. Yes, she does. 12 Q. Does Charlie exercise business judgment 13 in her job? 14 A. She would probably go to the office 15 manager. 16 Q. Carol? So she reports to Carol? 17 A. Yes. 18 Q. Does Mark exercise independent judgment 19 about -- 20 A. Yes. 21 Q. -- whether transactions make business 22 sense? 23 Does George exercise independent judgment 24 with respect to the efficacy of a business 25 transaction? 143 1 A. If he knows about it. 2 Q. Does Andrew exercise independent business 3 decision-making ability for the efficacy of a business 4 transaction? 5 A. If he knows about it. 6 Q. Are these people supposed to know about 7 it? 8 MR. CAGE: Objection to the form of the 9 question. Ambiguous. 10 A. I don't know. Not all the time. 11 Q. (BY MR. FALBE) Are these individuals 12 responsible for -- 13 A. It's not like a car dealership. Is that 14 what you're thinking? 15 Q. How is it not like a car dealership? 16 A. They have a manager and a manager and a 17 manager, all these managers where you have to go to 18 all these people. That isn't how we operate. We have 19 a sales manager who is supposed to use good judgment. 20 Q. Why don't you operate that way? 21 A. I don't know. We just don't. 22 Q. Do you have a car dealership? 23 A. No, we don't have a car dealership. We 24 have a medium-duty dealership. It's SUVs. 25 Q. And is that set up in a traditional car 144 1 dealership format? 2 A. No. 3 Q. Are you familiar with how -- it seems 4 like you are familiar with how a car dealership is 5 normally organized. Is that correct? 6 A. Because if you've gone into a car 7 dealership to buy a car, you sit there and you wait 8 for 13 managers to make their circle give their 9 blessing for the deal. 10 Q. Why do you think that car dealerships 11 implement that? 12 A. Why do they? I don't know. I think it's 13 nasty. 14 Q. Do you think one of the reasons is so 15 that their employees don't steal from them? 16 A. That's never crossed my mind. I don't 17 think about stealing and cheating. 18 Q. Do you think it's also to make sure that 19 the business is operating efficiently? 20 A. What? 21 Q. Do you think that there is a segregation 22 of duties and direct responsibilities so that vehicles 23 are sold for a profit and not a loss? 24 MR. CAGE: Objection. Form. 25 You may answer. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 18 of 20 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC BARBARA EIDSNESS 3/2/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 40 (Pages 157 to 160) 157 1 have a service truck. We have field service trucks 2 that go out in the field. 3 Q. If you go out and service a truck in 4 Wyoming, do you have to comply with, like, the Wyoming 5 laws with respect to servicing that vehicle? 6 MR. CAGE: Objection. Form of the 7 question. Legal conclusion. 8 A. I don't know what you mean by "laws." 9 Q. (BY MR. FALBE) Do you know if -- does 10 Colorado have any laws about registering service 11 departments? 12 MR. CAGE: Same objection. 13 A. No. 14 Q. (BY MR. FALBE) Would it surprise you to 15 learn that other states do require service departments 16 to have a license? 17 A. Yeah. I don't know anything about it. 18 Q. It would surprise you. 19 Have you ever heard of bird-dog fees? 20 A. I've heard the term. 21 Q. Tell me. 22 A. But I don't know what it means. 23 Q. You don't know what it means? 24 A. No. 25 Q. So if somebody said, Hey, what's a bird- 158 1 dog fee, it could be a fee for finding a bird dog? 2 A. What's a bird dog? 3 Q. I think it's a dog that chases birds. 4 A. No, I don't know. 5 MR. CAGE: Pointers are retrievers. They 6 don't chase them. 7 MR. FALBE: Point them out. I'm not a 8 hunter. 9 Do you care if we break for, like, ten 10 minutes and come back? 11 MR. CAGE: Sure. 12 (Recess taken, 3:26 p.m. to 3:44 p.m.) 13 Q. (BY MR. FALBE) If you could please -- I 14 think it's Exhibit 16, Volume 1, TW 506. 15 A. Admin sheet? 16 Q. I'm turning there, too. Do you see 17 the -- yes, that's the right one. Do you see the date 18 7/1 of 2013? 19 MR. CAGE: Old ones. 20 A. Wait a minute. Are you on 16? 21 Q. (BY MR. FALBE) I'm on 506. 22 MR. CAGE: Is that the unit cost 23 analysis? 24 MR. FALBE: Unit cost analysis and the 25 stock number is UM207. 159 1 A. Okay. 2 Q. (BY MR. FALBE) Do you see that? 3 A. Yeah. 4 Q. Okay. On 7/1 of 2013, do you see a line 5 item there that says "Referral to Rich Oliver" for 6 $100? 7 A. Yeah, I see it. 8 Q. Does this look like Trans-West paid a 9 referral fee to Rich Oliver? 10 A. If that's what -- I don't know. I have 11 no idea. 12 Q. Could you turn to TW 517? 13 A. Okay. 14 Q. I'm sorry. 519. It's a unit cost 15 analysis. It's for stock code 5U131034. 16 A. Okay. 17 Q. Do you see the second-to-last line 18 item -- third-to-last line item where it says on 19 February 3, 2014, referral fee to Terry Farber, $500? 20 A. Yep. 21 Q. Is this a referral fee that Trans-West 22 paid? 23 A. I don't know. 24 Q. Does it indicate that on the unit cost 25 analysis? 160 1 A. It says that, but I honestly don't know 2 anything about these sheets. I don't work with this. 3 Q. Does it at least appear to be a 4 Trans-West accounting document? 5 A. That's what it says at the top. They 6 must print these off there. I don't know. I've never 7 seen these. 8 Q. Did Trans-West, to your knowledge, every 9 contact Mr. Farber's employer and find out if this 10 referral fee was permitted? 11 A. I have no idea. 12 MR. CAGE: Are you done with 16? 13 MR. FALBE: For now. Just hold it open. 14 I might have a use for it. I want to see if I can get 15 done. 16 Q. (BY MR. FALBE) If you can turn to 17 Exhibit 17, No. SWLC203. Is this an invoice to 18 Southwest Luxury Coach? 19 A. It's an invoice. 20 Q. Okay. Does the name -- does it say "Sold 21 to Southwest Luxury Coach" at the top? 22 A. Yes. 23 Q. And under the description, does it say 24 "Transport motor home. Wild California/Indio 25 California"? Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 19 of 20 BARBARA EIDSNESS 165 REPORTER'S CERTIFICATE STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) I, MARCHELLE HARTWIG, Certified Shorthand Reporter and Notary Public, ID 20014012312, State of Colorado, do hereby certify that previous to the commencement of the examination, the said BARBARA EIDSNESS was duly sworn by me to testify to the truth in relation to the matters in controversy between the parties hereto; that the said deposition was taken in machine shorthand by me at the time and place aforesaid and was thereafter reduced to typewritten form; that the foregoing is a true transcript of the questions asked, testimony given, and proceedings had. I further certify that I am not employed by, related to, nor of counsel for any of the parties herein, nor otherwise interested in the outcome of this litigation. IN WITNESS WHEREOF, I have affixed my signature this 7th day of March, 2016. My commission expires April 19, 2017. ___X__ Reading and Signing was requested. ______ Reading and Signing was waived. ______ Reading and Signing is not required. Case 1:15-cv-02233-RM-MJW Document 117-7 Filed 07/28/16 USDC Colorado Page 20 of 20 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 15-cv-02233-RM-MJW 3 _______________________________________________________ 4 RULE 30(b)(6) DEPOSITION OF: MARK DARRELL STENSETH - April 8, 2016 5 Trans-West, Inc., dba Transwest Truck Trailer RV _______________________________________________________ 6 TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, 7 Plaintiff, 8 v. 9 SOUTHWEST LUXURY COACH SALES, LLC, and SCOTT BUCHANAN, 10 Defendants. 11 _______________________________________________________ 12 PURSUANT TO NOTICE, the Rule 30(b)(6) deposition of MARK DARRELL STENSETH was taken on 13 behalf of the Defendants at 1200 17th Street, Suite 1900, Denver, Colorado 80202, on April 8, 2016, 14 at 4:51 p.m., before Marchelle Hartwig, Certified Shorthand Reporter and Notary Public within Colorado. 15 16 17 18 19 20 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 8 Case 1:15-cv-02233-RM-MJW Document 117-8 Filed 07/28/16 USDC Colorado Page 1 of 3 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. MARK DARRELL STENSETH - RULE 30 (b) (6) 4/8/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 19 (Pages 73 to 76) 73 1 ProfitMaster. 2 Q. Okay. I don't know where it comes out of 3 either. What I'm asking is, where does it come from? 4 A. I believe it's a spreadsheet. 5 Q. Okay. 6 A. They do this to recap deals. A typical 7 deal -- this one went to Southwest Luxury Coast. But 8 a sale to a customer, if we promised to put new tires 9 on and those types of things, extenuating 10 circumstances are documented on here under "Additional 11 Charges." 12 Q. And this is mainly typed out onto a 13 spreadsheet; is that right? 14 A. Yes. 15 Q. And are these spreadsheets maintained? 16 A. Yes. 17 Q. Is there a form spreadsheet? 18 A. Yeah. Somebody created this and they use 19 it for RVs. 20 Q. Would you say that this is a template and 21 that they manually -- or they physically type it in? 22 A. Yes. 23 Q. They save by deal? 24 A. Yeah. 25 Q. And then maybe they make handwritten 74 1 comments on it? 2 A. My belief is it's a spreadsheet. It's 3 printed out. Somebody handwrote information on here. 4 Q. Fair enough. The next page is a check. 5 Actually, that's the one we need to talk about. 6 A. Okay. 7 Q. So TW 003025. 8 A. Yes. 9 Q. Do you see that check? 10 A. Yeah. 11 Q. Do you see who it's made payable to? 12 A. Yes. Texas RV Outlet. 13 Q. And who are the signers? 14 A. Barb Eidsness and myself. 15 Q. Did you sign this check? Is that your 16 actual signature? 17 A. That's my signature. 18 Q. Is that Barb's -- 19 A. Yes. 20 Q. -- signature? 21 A. Yeah. 22 Q. Why do you have two signatories? 23 A. For control, internal control. 24 Q. Tell me why you have an internal control 25 like this. 75 1 A. Double review of a disbursement. 2 Q. Okay. So what if that was for 3 $5 million, would you have signed it? 4 A. I don't know that I've ever signed a 5 $5 million check at Trans-West. 6 Q. All right. 7 A. This may be one of the larger ones, half 8 a million dollars. 9 Q. Half a million dollars. Do you, like, 10 look into the transaction to make sure there was -- 11 A. Yeah. Typically when we sign checks, 12 there is backup documentation attached. 13 Q. So you look at it? You make sure, like, 14 this isn't some sort of fraudulent transaction? 15 A. Right. 16 Q. Got it. And you have two signers because 17 both parties are responsible for looking at it; is 18 that right? 19 A. That is correct. 20 Q. Okay. This is a typical accounting 21 control that lots of companies put in place? 22 A. It is. 23 Q. Especially prudent ones, correct? 24 A. Correct. 25 Q. If you flip to the next page, there is a 76 1 vehicle motor purchase agreement that I can't even 2 see. If you look at the next page -- 3 MR. CAGE: Which page are you referring 4 to? 5 MR. FALBE: 3027. 6 MR. CAGE: Thank you. 7 Q. (BY MR. FALBE) This looks like an 8 invoice; is that correct? 9 A. It's a -- yeah, repair order invoice. 10 Q. Okay. And this is probably backup to the 11 summary of the cost analysis sheet that was listed on 12 3022 and 3023. Would that make sense? 13 A. Yeah. It's the fourth item down on Bates 14 No. TW 003022. 15 Q. And do you think that that would be 16 consistent for how you put all of this information 17 together? 18 A. Yeah. And going back to what the 19 original shortcoming was with the deal jackets, these 20 don't always get printed and put in the deal jackets. 21 Q. Where are they maintained? 22 A. They are stored electronically. They 23 would be viewed. It's on our ProfitMaster system. 24 Q. Got it. Okay. 25 A. Somebody would look at this, either a Case 1:15-cv-02233-RM-MJW Document 117-8 Filed 07/28/16 USDC Colorado Page 2 of 3 MARK DARRELL STENSETH - RULE 30 (b) (6) 93 REPORTER'S CERTIFICATE STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) I, MARCHELLE HARTWIG, Certified Shorthand Reporter and Notary Public, ID 20014012312, State of Colorado, do hereby certify that previous to the commencement of the examination, the said MARK DARRELL STENSETH was duly sworn by me to testify to the truth in relation to the matters in controversy between the parties hereto; that the said deposition was taken in machine shorthand by me at the time and place aforesaid and was thereafter reduced to typewritten form; that the foregoing is a true transcript of the questions asked, testimony given, and proceedings had. I further certify that I am not employed by, related to, nor of counsel for any of the parties herein, nor otherwise interested in the outcome of this litigation. IN WITNESS WHEREOF, I have affixed my signature this 11th day of April, 2016. My commission expires April 19, 2017. ___X__ Reading and Signing was requested. ______ Reading and Signing was waived. ______ Reading and Signing is not required. Case 1:15-cv-02233-RM-MJW Document 117-8 Filed 07/28/16 USDC Colorado Page 3 of 3 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLORADO 3 TRANS-WEST, INC., dba TRANSWEST ) 4 TRUCK TRAILER RV, ) ) 5 Plaintiff, ) ) 6 vs. ) Civil Action No. ) 15-cv-02233-MJW 7 SOUTHWEST LUXURY COACH SALES, LLC, ) and SCOTT BUCHANAN, ) 8 ) Defendants. ) 9 ) 10 11 12 13 DEPOSITION OF BRADLEY LAND 14 Phoenix, Arizona 15 February 5, 2016 9:02 a.m. 16 17 REPORTED BY: Kristy A. Ceton, RPR 18 AZ Certified Court Reporter No. 50200 19 DEPOSITION OF BRADLEY LAND commenced at 9:02 a.m., on February 5, 2016, at Snell & Wilmer, LLP, 400 East Van Buren 20 Street, Suite 1900,Phoenix, Arizona, before Kristy A. Ceton, RPR,Arizona Certified Court Reporter No. 50200. 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 9 Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 1 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 2 (Pages 5 to 8) 5 1 Phoenix, Arizona February 5, 2016 2 9:02 a.m. 3 4 BRADLEY LAND, 5 called as a witness herein, having been first duly 6 sworn, was examined and testified as follows: 7 8 EXAMINATION 9 BY MR. FALBE: 10 Q. And, you know, I would like to introduce 11 myself. My name is Eric Falbe. Falbe Law. I'm 12 representing Southwest Luxury Coach. And with me 13 today is Scott Buchanan and Turner Reaney. 14 And, Jim, do you want to introduce 15 yourself? 16 MR. CAGE: I'm Jim Cage. I represent 17 Trans-West. 18 Q. BY MR. FALBE: Also, you know, obviously 19 Brad. Bradley Land. 20 So, Brad, can you tell me, you know, your 21 name? 22 A. Brad Land. 23 Q. And can you spell it? 24 A. B-r-a-d; L-a-n-d. 25 Q. All right. And do you know the purpose 6 1 of taking your deposition today is about a dispute 2 between Trans-West on one side and Southwest Luxury 3 Coach and Scott Buchanan on the other side? 4 A. Yes, sir. 5 Q. And do you know the general allegations 6 that are involved? 7 A. No, sir. Not in this case, no. 8 Q. Generally, are you familiar with the 9 allegations that Trans-West filed against Jeffrey 10 Mullins? 11 A. Yes, sir. 12 Q. Okay. It's a similar case. What they're 13 saying is that Southwest would be potentially liable 14 for payments that were made to Jeff in the course of 15 his employment -- 16 A. Okay. 17 Q. -- generally speaking. 18 So it's, you know, conspiracy and other 19 kinds of charges. But that's the facts and 20 circumstances surrounding this. You know the claims. 21 I'm not sure that you need to know entirely, but at 22 least the circumstances surrounding that. That's 23 what we're talking about. 24 So today, I'm going to ask you a bunch of 25 questions. And if you don't understand a question, 7 1 just tell me and ask and I'll try to restate it so 2 that, you know, you can -- you can answer truthfully. 3 Please answer out loud. So nodding your 4 head like you're doing now -- 5 A. Yes, sir. 6 Q. -- the court reporter can't pick that up. 7 So, you know, if you just verbally communicate your 8 answers, that would be best. In the event that you 9 don't, I will, you know, help correct you. I see 10 that you're nodding -- or, I'll try to. Does that 11 make sense? 12 A. Okay. 13 Q. If you need a rest room break or if, you 14 know, there's water here, let us know and we'll take 15 a break. 16 A. Okay. 17 Q. Same thing with everybody that's 18 involved. But I'll try to schedule a break some time 19 in between now and noon. We'll naturally break at 20 noon and then at least one break in between. 21 A. Okay. 22 Q. So whenever is a good stopping point, 23 we'll try to do that just so that you're not overly 24 taxed. 25 Are you here in your individual capacity? 8 1 A. Yes. 2 Q. And are you taking any medication that 3 would affect your ability to understand, you know, 4 the questions today? 5 A. No, sir. 6 Q. Any medications that would affect your 7 ability to respond? 8 A. No, sir. 9 Q. Okay. And are you normally under any 10 medications that you've not taken -- 11 A. No, sir. 12 Q. -- in regard to this deposition? Okay. 13 Is there anything about your physical or 14 emotional condition that would affect your ability to 15 testify here today? 16 A. No, sir. 17 Q. Okay. And do you understand the oath 18 that was administered to you? 19 A. Yes, sir. 20 Q. And what does that mean to you? 21 A. To tell the truth. 22 Q. Okay. 23 A. I swore to tell the truth. 24 Q. Okay. And have you been coerced or, you 25 know, paid for your testimony today? Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 2 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 5 (Pages 17 to 20) 17 1 A. Same. RV sales. 2 Q. And who do you work for? 3 A. Motorhomes of Texas. 4 Q. Motorhomes of Texas. 5 Is that a big operation or a small one? 6 A. Small. Compared to Trans-West, it's 7 small. 8 Q. Motorhomes of Texas you said? 9 A. Uh-huh. 10 Q. And what is Trans-West's business as -- 11 as you worked for them? 12 A. Selling RVs and servicing RVs. Yeah. 13 Sales, service, parts. 14 Q. So Trans-West's sells and services RVs? 15 A. As a small portion of their company. 16 Q. Okay. Is there a larger portion of their 17 company? 18 A. Oh, yeah. 19 Q. What's that? 20 A. The Freightliner trucks, trailers. The 21 GMC Buick dealership. I think we had somewhere 22 around 750, maybe, employees. 750. I don't know. 23 Somewhere close to that. 24 Q. That sounds like a big operation. Would 25 you call it a big company? 18 1 A. Yeah. I thought it was a big company. 2 Q. Was the RV portion of the company big or 3 small? 4 A. Well, that's actually stuff that I -- I'm 5 -- I don't -- 6 Q. You don't know? 7 A. I have no idea. 8 Q. That's fine. 9 A. I don't know George's -- I don't know 10 where he has his stuff. I don't know. 11 Q. If I didn't clarify this before. If you 12 ever don't know, it's fine to say "I don't know." So 13 I would rather you not speculate. I would rather you 14 just tell me what you know. 15 So is there a difference between the 16 sales business of the RV business and the service 17 business of the RV business? 18 A. Yes, sir. 19 Q. All right. And you -- Just to be clear, 20 you worked on the sales side and not the service 21 side? 22 A. Right. Yes. 23 Q. Okay. And who did you report to? 24 A. Jeff and Andrew. Jeff Mullins and Andrew 25 Lyons. 19 1 Q. And who did Jeff Mullins report to? 2 A. Andrew and George. 3 Q. Andrew and George. 4 Do you know what Jeff's title was? 5 A. Sales manager. 6 Q. And do you know what Andrew Lyons' title 7 was? 8 A. The general manager of that location. 9 Q. Okay. 10 A. Of branch 5 and 15. 11 Q. Okay. And what was Andrew Lyons' title? 12 A. General manager. 13 Q. General manager. 14 And was he in charge of the sales 15 operations? 16 A. Everything. 17 Q. Was he in charge of the service 18 operations? 19 A. Yeah. He ran everything. 20 Q. Okay. And who reported to George? 21 A. Andrew. 22 Q. Okay. 23 A. And Jeff occasionally. 24 Q. Jeff occasionally? 25 A. I mean, that's -- I don't know. I know 20 1 they had meetings and they had meetings every Monday. 2 Q. Okay. Do you know what software 3 Trans-West uses to track sales? 4 A. I do, but I'm going to have to remember 5 it. 6 Q. If I told you it was Salesforce -- 7 A. Yes. Yeah. 8 Q. That's okay. 9 A. Sorry. 10 Q. So Salesforce is sort of a CRM -- 11 A. Uh-huh. 12 Q. -- a contact resource management software 13 that tracks sales; is that correct? 14 A. Yes, sir. 15 Q. Okay. And can you tell me how you 16 utilized this, generally speaking? Maybe I can 17 clarify this. 18 So do you use it to track different sales 19 campaigns? 20 A. Yes. 21 Q. Okay. So when you have different sales 22 campaigns, it's recorded in the Salesforce program? 23 A. Yes, sir. 24 Q. Okay. And can you search that program 25 for different sales campaigns? Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 3 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 6 (Pages 21 to 24) 21 1 A. Yes, sir. 2 Q. Okay. Now, you told me that -- 3 (An off-the-record discussion was held.) 4 Q. BY MR. FALBE: You told me that Andrew 5 was in charge of -- was the general manager of the 6 whole RV business. The sales, the service, 7 everything; is that correct? 8 A. Of -- of that -- of that branch. 9 Q. Of that branch. Okay. 10 And how much -- 11 A. I'm not sure that he was over the Kansas 12 City branch, but I think he was over Grand Junction, 13 maybe. 14 Q. Okay. 15 A. I don't know. 16 Q. And do you know how much experience Jeff 17 Mullins had in the RV business? 18 A. A lot. 19 Q. When you say "a lot," what do you mean? 20 A. His whole adult life. 21 Q. His whole adult life? 22 A. Is RVs. 23 Q. And how old -- Do you know approximately 24 how old Jeff is? 25 A. 35. 22 1 Q. So when you say his "adult life," do you 2 mean 18? 3 A. Yeah. 18 to -- Yeah. Yes, sir. 4 Q. And how much experience did Andrew Lyons 5 have? 6 MR. CAGE: Objection. Foundation. 7 You may answer, if you know. 8 THE WITNESS: I don't know. 9 Q. BY MR. FALBE: Do you know how much 10 experience Andrew Lyons had? 11 A. No, sir. I have no idea. 12 Q. Do you know if Andrew Lyons was related 13 in any way to the owners of Trans-West? 14 A. Yes, sir. 15 Q. How was he related? 16 A. He was a son-in-law. 17 Q. Okay. 18 A. Married to George's daughter. 19 Q. And do you know Andrew Lyons' previous 20 employment? 21 A. No, sir. Nothing. 22 Q. You knew nothing about it? 23 A. Huh-uh. 24 Q. Do you believe that Andrew Lyons was 25 given the job based upon his merit? 23 1 MR. CAGE: Objection. Foundation. 2 You may answer. 3 THE WITNESS: I have no idea. He had the 4 job before I got there, so he hired me. I don't 5 know. 6 Q. BY MR. FALBE: Did people talk about the 7 relative experience of Andrew Lyons in the workplace? 8 A. Did they talk about their -- like their 9 take on his ability to lead? Is that what you're 10 saying? 11 Q. Let me ask you this. Do you believe 12 Andrew Lyons had experience selling and running an RV 13 business? 14 MR. CAGE: I'm going to object to 15 foundation again. 16 But you may answer. 17 THE WITNESS: I don't know what that 18 means when he says that. That's just for the record? 19 Q. BY MR. FALBE: It is. 20 A. Okay. Repeat your question because -- 21 Q. Do you believe that Andrew Lyons had 22 sufficient experience to run an RV dealership? 23 MR. CAGE: Same objection. Foundation. 24 You may answer, sir. 25 THE WITNESS: No. I don't -- I mean, I 24 1 have no idea of his experience. 2 Q. BY MR. FALBE: Okay. All right. 3 So what I want to do is I want to go 4 through the sales process at Trans-West. 5 A. Okay. 6 Q. Okay. So is there a form for a sale 7 called a buyer's order form? 8 A. Yes, sir. 9 Q. And is that included in each and every 10 sale? 11 A. Yes, sir. 12 Q. Who prepares these buyers' orders? 13 A. The salesmen. 14 Q. The salesperson? 15 A. Or whoever is selling the coach. 16 Q. Okay. Is there an admin sheet? 17 A. Yes, sir. 18 Q. And who prepares that? 19 A. The salesman prepares the admin sheet to 20 give to Andrew. 21 Q. Why do they give it to Andrew? 22 A. Because he has the final say. Make sure 23 the math's right. 24 Q. Is it just checking math, or does he 25 approve the general business terms of the Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 4 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 7 (Pages 25 to 28) 25 1 transaction? 2 MR. CAGE: Objection. Foundation. 3 You may answer. 4 THE WITNESS: He -- I think that he had 5 -- he approves the whole thing. He -- It doesn't 6 get to that point if he hasn't approved the whole ... 7 Q. BY MR. FALBE: When you have a sale -- 8 A. Yeah. 9 Q. -- do you have -- does Andrew have to 10 approve it? 11 A. Jeff. Jeff has to approve it if I have a 12 sale. And if Jeff's not there, then I would go to 13 Andrew and Andrew would approve it. 14 Q. If Jeff approved a sale and Andrew didn't 15 approve it, would the sale still go through? 16 A. No. 17 Q. Okay. So after a sale's completed, that 18 vehicle, would it be removed from the inventory 19 system at Trans-West? 20 A. Once the sale is completed and -- yes, it 21 would be removed. 22 Q. And do you remove that as a salesperson? 23 A. You're talking about? 24 Q. The accounting portion of it. 25 A. The accounting side of it. I'm confused 26 1 by that. 2 Q. How do you know what vehicles are in 3 inventory? 4 A. Because we have it in Salesforce. 5 Q. Okay. So it's in Salesforce. 6 So if you sell a unit -- 7 A. It's noted in Salesforce. 8 Q. Do you take it out of Salesforce or does 9 the accounting team take it out of Salesforce? 10 A. I don't. No one takes it out of 11 Salesforce. 12 Q. Is there a master inventory listing at 13 Trans-West? 14 A. Yes, sir. 15 Q. Who maintains that inventory listing? 16 A. I don't know. 17 Q. You don't know? 18 A. I don't know who maintains that. 19 Q. But it's not you? 20 A. No. 21 Q. Okay. Do you think Jeff maintains that? 22 A. No. 23 Q. Do you think that Andrew Lyons maintains 24 that? 25 A. I don't know what we're maintaining, 27 1 really. We're talking about maintaining. Is it, 2 like, a -- Are you talking about just the whole 3 inventory of Trans-West? 4 Q. Yeah. Correct. 5 A. Yeah. 6 Q. All the RVs. 7 A. No. I mean, it's -- it's just set up. 8 It's kind of -- it kind of works on its own. That's 9 why we have Salesforce. 10 Q. Okay. Do you transfer a title when you 11 sell a vehicle? 12 A. You're talking about me personally? 13 Q. Yeah. 14 A. No, sir. I don't transfer a title. 15 Q. Does Jeffrey Mullins transfer a title? 16 A. No. We have a title clerk. 17 Q. You have a title clerk. 18 Somebody else? 19 A. Yeah. 20 Q. Who was your title clerk? 21 A. At the time -- Well, Bobbie Jackson is 22 the finance manager. She would -- She would work on 23 it. And there was a lady named Charlie. She was the 24 title clerk. I can't remember Charlie's last name. 25 She does -- She's no longer employed there. 28 1 Q. Okay. 2 A. But that was her -- while we were there, 3 that was her title. 4 Q. So if somebody comes in, buys an RV, 5 let's say they give you a check. Do they give you 6 the check and do you run down to the bank and cash 7 it? 8 A. No, sir. 9 Q. Who does? 10 A. Trans-West. Bobbie. 11 Q. Bobbie does? 12 A. Well, whoever -- I'm trying to put 13 Bobbie's name -- 14 MR. CAGE: Object to foundation. 15 You may answer. Go ahead, to the extent 16 you know. 17 THE WITNESS: No. It would go to Bobbie, 18 the finance manager. And then from that point, I 19 have no idea who takes it to the bank. 20 Q. BY MR. FALBE: And after you negotiate 21 the terms of a sale -- 22 A. Uh-huh. 23 Q. I want to clarify this. You can't -- can 24 you -- You can't negotiate a sale without the 25 approval of Jeff Mullins and Andrew Lyons. I want to Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 5 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 8 (Pages 29 to 32) 29 1 make sure that that's your testimony? 2 A. Yes. 3 Q. Okay. So they have to approve the terms 4 and conditions of the sale? 5 A. Yes. 6 Q. And what's -- Let's say that both of 7 those people agreed to the terms of the sale and 8 would Bobbie Jackson have to -- I think, yeah, Bobbie 9 Jackson -- would Bobbie Jackson have to approve that 10 too before they started issuing checks? 11 A. Well, there's -- 12 MR. CAGE: Objection. Foundation. 13 You may answer. 14 THE WITNESS: There's several steps. 15 But, you know, I would check it, obviously, because 16 I'm selling it. And then Jeff and Andrew. Andrew's, 17 you know, the last -- not necessarily the last one. 18 But his approval goes, it's checked when it's with 19 financing, and then it's checked when it's -- the 20 office manager. At the very end before it gets to 21 the office manager, it has to go through Andrew. 22 Whatever goes to the office manager is what we get 23 paid on. 24 Q. BY MR. FALBE: And you described -- 25 A. So he can change it. 30 1 Q. You described a lot of people in that 2 process. 3 Would you say that there are a lot of 4 checks and balances before -- 5 A. Oh, yeah. 6 Q. -- a transaction is completed at 7 Trans-West? 8 A. Yeah. Most definitely. 9 Q. What would happen if you tried to sell 10 one of your friends an RV for a dollar? 11 MR. CAGE: Objection. Speculation. 12 You may answer. 13 THE WITNESS: I would -- that wouldn't 14 happen. 15 Q. BY MR. FALBE: Why wouldn't it happen? 16 A. Because there's no way that I can. 17 Q. Why? 18 A. Because there's too many checks and 19 balances. 20 Q. Because -- what if Jeff approved it? 21 A. Well, it would eventually get caught by 22 Andrew or by one of the other people. 23 Q. One of the many other people that looked 24 at the transaction? 25 A. Right. 31 1 Q. Okay. I'm going to hand you one of the 2 sales jackets -- 3 A. Yes, sir. 4 Q. -- for Southwest. 5 (Exhibit 1 was marked for identification.) 6 Q. BY MR. FALBE: On page 1, which is 7 labeled TW0001 -- 8 A. Yes. 9 Q. -- is this a buyer's order and invoice? 10 A. Yes, sir. 11 Q. Whose form is this on? 12 A. Trans-West's. Who is this? Is that what 13 you're asking or who is it sold to? 14 Q. Who prepared -- whose form is it? 15 A. Trans-West's form. 16 Q. Trans-West's form. Okay. 17 Who purchased the vehicle, according to 18 this buyer's order form? 19 A. Southwest Luxury Coach. 20 Q. So this isn't on Southwest Luxury Coach's 21 form at all? 22 A. No, sir. 23 Q. Are the terms in the buyer's order the -- 24 that discuss referral fees. Take your time to look 25 through it. 32 1 A. Does it discuss -- you're talking about 2 in fine print somewhere over here? 3 Q. Anywhere on there. 4 A. No. 5 Q. Does it say SPIF? 6 A. No, sir. 7 Q. Does it say commissions? 8 A. No, sir. 9 Q. So nowhere in this buyer's order form 10 does it talk about referral fees at all? 11 A. No, sir. 12 Q. So there's no prohibition in this 13 document that prohibits paying referral fees in this 14 document? 15 MR. CAGE: Objection. Legal conclusion. 16 You may answer. 17 Also speculation. 18 MR. FALBE: That's not legal conclusion. 19 Go ahead and answer. 20 MR. CAGE: I'm not saying he can't 21 answer. I'm just saying it's a bad question. 22 THE WITNESS: No. There's nothing in 23 this document that states anything like that. 24 Q. BY MR. FALBE: Would the -- Would paying 25 a referral fee, in your opinion, be a material term? Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 6 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 13 (Pages 49 to 52) 49 1 Q. Okay. But the -- If you turn to the 2 previous page, the 26-, 25,000, $24,000 were actually 3 reduced. Do you see that? So instead of credits, 4 they were -- or, instead of debits, they were 5 credits? 6 A. Uh-huh. 7 Q. That's for $76,491, which is also listed 8 on the second page? 9 A. But they have little minus signs beside 10 them on the page. 11 Q. Correct. Right. 12 So wouldn't the cost actually be closer 13 to $625,000? 14 A. No. It would be -- this is money, the 15 26-, 25-, and 24- were money put to that coach to 16 write it down. 17 Q. So Trans-West spent more money -- 18 A. Yes. 19 Q. -- to write it down? 20 A. Yes. 21 Q. Okay. Do you write -- Do you know or 22 recognize the handwriting that says 465,853 below the 23 totals? 24 A. I do not. I do not, sir. 25 Q. Does that look like Jeffrey Mullins' 50 1 handwriting? 2 A. No. 3 MR. CAGE: Objection. Foundation. 4 Q. BY MR. FALBE: Can you tell if that's 5 Bradley -- or, if that is Jeffrey Mullins' 6 handwriting? 7 A. I cannot tell if it's Jeff's handwriting. 8 Q. Can you look at that handwriting and then 9 can you look at the handwriting on the admin sheet 10 under "Total cost"? 11 A. Yes. 12 Q. Does that appear to be the same? 13 A. Yes, sir. 14 Q. And we already discussed that that 15 handwriting is actually different than the 16 handwriting above that? 17 A. Yes. 18 Q. Okay. Can you flip to the next page, 19 which is labeled SWLC0008, and then the page after 20 that, which is SWLC0009. What are those two pages? 21 A. It looks like certificate of title. 22 Q. And who is it from and to? 23 A. Trans-West. It's from Trans-West to 24 Southwest. 25 Q. Okay. And is this for the same vehicle? 51 1 A. I assume it is, yes, sir. 2 Q. Yeah. 3 If you look at the VIN, which is labeled 4 TPCW334 -- 5 A. Yes. 6 Q. -- on the title. You'll also see on the 7 buyer's sheet that the VIN starts with TPCW334? 8 A. Yeah. 9 Q. So you can confirm this is the same 10 vehicle? 11 A. Yes. 12 Q. All right. Can you flip to the next 13 page, SWLC0009? 14 A. Yes, sir. 15 Q. Is there a -- Are there two sets of 16 signatures there? 17 A. Yes, sir. 18 Q. Who signed on behalf of Trans-West Truck 19 Trailer RV? 20 A. Charlie. 21 Q. Charlie. 22 A. The title clerk. 23 Q. Not -- not Jeffrey Mullins? 24 A. No. 25 Q. Not Andrew Lyons? 52 1 A. No. 2 Q. And Charlie's job is? 3 A. Title clerk. 4 Q. Okay. Is she also the office manager? 5 A. No. 6 Q. Okay. Can you go to the next page? 7 A. Yes. 8 Q. TW00010? 9 A. Yes, sir. 10 Q. Do you see a check there? 11 A. Yes, I do. 12 Q. Have you seen a check like this? Who is 13 the check from? 14 A. It's from Trans-West. 15 Q. It's from Trans-West. 16 And who signed these checks? 17 A. Barb, and I don't know the other 18 signature. 19 Q. When you say "Barb," do you know Barb's 20 last name? 21 A. Eidsness. E-i-d-s -- I don't know how to 22 spell it -- -n-e-s-s. 23 Q. And we don't know -- but there are two 24 signatures. Are they both from Trans-West? 25 MR. CAGE: Objection. Foundation. Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 7 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 14 (Pages 53 to 56) 53 1 You may answer. 2 THE WITNESS: They are authorizing 3 signatures. Both. 4 Q. BY MR. FALBE: Does it appear that two 5 people need to sign checks in order for a check to be 6 written? 7 A. It appears that way, yes, sir. 8 Q. Okay. Is this how most of the checks 9 look from Trans-West? 10 A. Yes, sir. 11 Q. Okay. Can you go back to the cost unit 12 analysis? 13 A. Yes, sir. 14 Q. I want you to look through there, and I 15 want you to tell me if you see any charges for loan 16 payments or curtailments? 17 A. For loan payments? 18 Q. Right. Under the flooring line. Do you 19 see any charges there? 20 A. No, I don't. 21 Q. Okay. All right. 22 That's all that I have for this set of 23 documents right now. 24 A. Okay. 25 Q. So you can just kind of set it aside. 54 1 And I'm going to ask you some more questions about 2 sort of a sample transaction. 3 Do many people trade in RVs when they're 4 buying a new or used RV? 5 A. Yes. Many. 6 Q. If you had to guess, what percentage of 7 people are buying an RV outright without a trade? 8 MR. CAGE: Objection. Speculation. 9 You may answer. 10 Foundation. 11 THE WITNESS: Percentage, without a 12 trade? Very, very low. 13 Q. BY MR. FALBE: Very low? 14 A. Very low. 15 Q. Okay. So would I be correct in saying 16 that the number of people who come in with a trade to 17 buy a new RV or used RV is very high? 18 A. Very high. The majority. 19 Q. Okay. Do the prices of new vehicles vary 20 from new dealer to new dealer? 21 A. No, not a lot. The new vehicle. 22 Q. Not a lot? 23 A. No. 24 Q. Okay. And how do people shop for the 25 best deal that they can get on an RV? 55 1 A. The Internet. 2 Q. The Internet. 3 And do they buy just from their own local 4 dealership? 5 A. No. 6 Q. Okay. So, in your experience, what's a 7 significant issue about why they choose one dealer 8 over another dealer? 9 A. Price. 10 Q. Price. Okay. 11 And since the price doesn't vary a lot 12 between the new products, right, would it be fair to 13 say that what a dealership is willing to pay for 14 their used RV, the one they're trading in, is a 15 significant reason why they would complete a 16 transaction? 17 MR. CAGE: Objection. Foundation. 18 THE WITNESS: Yes. 19 Q. BY MR. FALBE: Have you heard of the term 20 "buying a deal"? 21 A. Yes. 22 Q. What does that mean to you? 23 A. Paying more for the trade than it's worth 24 to get the deal, or selling a coach for less than 25 it's worth to get the trade. 56 1 Q. Okay. 2 A. Make your money on the trade or something 3 along those lines. 4 Q. So if Trans-West paid more for trade-ins 5 than other dealerships, would they sell more new 6 vehicles? 7 MR. CAGE: Objection. Speculation. 8 You may answer. 9 THE WITNESS: If they paid more for 10 trades, would they -- 11 Q. BY MR. FALBE: Sell more? 12 A. -- sell more. Yes. 13 Q. Have you seen Trans-West pay more for 14 trade-in vehicles than other dealerships? 15 A. To get the deal? 16 Q. Uh-huh. 17 A. I -- 18 Q. Yes. 19 A. You know, that's -- you know, being 20 honest, that's -- Yes, I've seen that. But that's 21 way outside of my scope. 22 Q. So you've seen it, but you can't speak to 23 the overall. 24 So you've seen it in your personal 25 transactions, but you don't feel comfortable opining Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 8 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 15 (Pages 57 to 60) 57 1 on Trans-West's business as a whole? 2 A. True. 3 Q. Okay. Fair enough. 4 Do you think that paying too much for a 5 -- paying too much for a trade-in is a wise business 6 practice? 7 A. No, sir. 8 MR. CAGE: Objection. 9 Q. BY MR. FALBE: Why not? 10 A. Because I am stuck with selling whatever 11 I paid too much for. 12 Q. Well, and why is that a bad thing for 13 you? 14 A. Well, because I want to -- because 15 there's -- if I paid too much for it, then nobody's 16 going to -- I'm going to eat it somewhere. 17 Q. What do you mean by "eat it"? 18 A. I'm going to lose money. I'm not going 19 to make money as a salesperson. 20 Q. Does it mean that you can't resell that? 21 A. It's harder for me to resell. 22 Q. So now you have a vehicle in inventory 23 that is more difficult for you to sell? 24 A. Yes. 25 Q. How do you get rid of those vehicles that 58 1 you paid more for? 2 A. We wholesale them. 3 Q. You wholesale them. 4 So if you had asked a -- 5 A. Or we cut them. 6 Q. Or you cut them? 7 A. We cut the price. We lose money. 8 Q. So you either -- have a choice. You 9 either lower the price and sell them retail, or you 10 wholesale them. How long does it take -- 11 Is that correct? 12 A. Or you're a really good salesman that can 13 sell it. But no. Yes, you're correct. 14 Q. Okay. How long would it take, on an 15 average, to sell a well-priced RV? 16 A. Not long. A month. 17 Q. What's "not long"? 18 A. Two months. 19 Q. 60 days? 20 A. Yeah. 21 Q. Okay. What about vehicles that were 22 purchased above -- that were purchased too high? 23 A. It's -- Unless you're lucky, it's just 24 hard to get rid of, unless you're lucky. 25 Q. Who values trade-ins? 59 1 A. Jeff and Andrew. 2 Q. If Jeff valued a trade-in -- what's the 3 basic formula for valuing a trade-in? 4 A. NADA. 5 Q. NADA. And do you pay NADA? 6 A. No, sir. 7 Q. When I say "you," I mean Trans-West. 8 A. Right. 9 Q. So I -- I want to correct that. 10 So when Trans-West values a trade, do 11 they pay the NADA value? 12 MR. CAGE: I'm going to object to the 13 form of the question. 14 He's not Trans-West. He's not a 30(b)(6) 15 witness. He doesn't speak for Trans-West. None of 16 his answers deal or are from Trans-West. They're 17 from him individually. You can certainly ask him 18 about his experience and what he's seen -- 19 MR. FALBE: Okay. 20 MR. CAGE: -- but he's not Trans-West. 21 MR. FALBE: I understand. 22 Q. BY MR. FALBE: So have you ever -- Based 23 upon the trades that you saw, how are they valued? 24 Are they NADA value? 25 A. How are they valued? No. You would be a 60 1 little less of NADA value. 2 Q. Approximately how much less? 3 A. 20 percent less. 4 Q. 20 percent less? 5 A. Or more. 6 Q. Or more. Okay. 7 What if Brad came in and said, I'm going 8 to value this at 400 percent trade-in value. Have 9 you ever seen him do that? 10 MR. CAGE: Objection to speculation. 11 You can answer. 12 THE WITNESS: No, sir. 13 Q. BY MR. FALBE: Have you ever seen him 14 value anything over trade value or over NADA value? 15 A. Yes. 16 Q. Okay. How much over? Significantly? 17 A. No. 18 Q. Okay. Did Andrew approve that? 19 A. I don't know. Like, I honestly don't 20 remember a specific -- 21 Q. Okay. Fair enough. 22 A. -- deal. 23 Q. If you had a friend walk into the 24 dealership, could you offer to pay him 10 times what 25 the NADA value was? Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 9 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 16 (Pages 61 to 64) 61 1 A. No, I could not. 2 Q. Why not? 3 A. I never had that authority. 4 Q. Would somebody stop that from happening? 5 A. I would hope so. 6 Q. How many people would be able to stop 7 that from happening? 8 A. Jeff, Andrew. Three, four, five people. 9 Q. George? Bobbie? 10 A. It would end at George. George would 11 stop it for sure. 12 Q. Does George see these kinds of things? 13 MR. CAGE: Objection. Foundation. 14 Q. BY MR. FALBE: Have you known George to 15 ever see bad transactions? 16 A. Yes. 17 Q. Okay. And what was his response? 18 A. He would question why a coach was sold 19 where it was. 20 Q. And -- 21 A. This is not -- He never questioned or 22 talked to me about it. 23 Q. Have you ever seen him refuse to 24 authorize a transaction? 25 A. It's always after the fact. 62 1 Q. It's after the fact? 2 A. After the fact. 3 Q. Okay. How many times have you known 4 George to be upset with a transaction after the fact 5 or displeased? 6 A. Personally, probably -- maybe two or 7 three times that I know of. 8 Q. Okay. I want to talk about service work 9 now. Okay. So we're going to shift a little bit. 10 You testified that the sales and service 11 departments are different; is that correct? 12 A. Yes, sir. 13 Q. Who is in charge of the service 14 department? 15 A. Ultimately, there was a service manager. 16 Q. Who is the service manager? 17 A. I don't know the service -- the current 18 service manager. I don't know his name. 19 Q. Okay. 20 A. There's two service managers. 21 Q. Do you remember either of their names? 22 A. Ken Hearst was one of the service 23 managers. 24 Q. Okay. And does Andrew Lyons oversee both 25 of the service managers? 63 1 A. Those service managers have -- have 2 bosses. But they -- that they answer to that could 3 -- that hire and fire them. Andrew basically runs 4 and makes sure everything goes smooth. So, yes, they 5 do answer to Andrew, but they also have a service 6 manager over the whole company. 7 Q. Okay. Is Jeff Mullins -- 8 A. No. 9 Q. -- over the -- Okay. 10 Could you authorize service for free? 11 A. Could I personally? 12 Q. Right. Could you convince the service 13 department to do work for free? 14 A. Yes, I could. 15 Q. How? 16 A. Well, if I had a good relationship with 17 the guy. 18 Q. Like the tech? 19 A. No, I could not. I would not do that. 20 No. 21 Q. Okay. Do you think that that happens? 22 A. No. 23 Q. Okay. Have you ever seen something like 24 that happen? 25 A. No, sir. 64 1 Q. Would it adversely affect the service 2 managers if they were doing -- 3 A. Yes. 4 MR. CAGE: Objection. 5 Let him finish the question so I can get 6 my objection in before you start answering, if you 7 would, please. 8 Objection. Form. Foundation. Calls for 9 speculation. 10 You may answer. Thank you. 11 THE WITNESS: I don't remember the 12 question. 13 Q. BY MR. FALBE: Have you ever seen anybody 14 authorize service work for free? 15 A. No, sir. 16 Q. Were Trans- -- Did Trans-West charge for 17 the service work that it did on its own inventory? 18 A. Yes. 19 Q. Is that above, at, or below market? 20 A. I don't know what -- It's the same 21 price. They charged us the same to work on their 22 coaches as they would someone walking off the street. 23 Q. Have you ever had a coach serviced 24 outside of Trans-West? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 10 of 12 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. BRADLEY LAND 2/5/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 29 (Pages 113 to 116) 113 1 Q. Yeah. You can use your calculator on 2 your phone. 3 Let's say that you did that for three 4 years. What would the total be? 5 A. 30 million. 6 Q. 30 million. 7 What would an eight percent -- what would 8 eight percent of 30 million be? 9 A. I don't know. Ask me and I'll say yes. 10 I don't know. 11 Q. If it's $2.4 million, and that was the 12 tax rate, would that be the amount of taxes that 13 would be owed? 14 A. Yes, sir. 15 Q. Have you ever met Scott Buchanan before 16 today? 17 A. Once. 18 Q. When? 19 A. When I was delivering a coach to him. 20 Dropping it off. 21 Q. Is that the only time you've ever met 22 him? 23 A. The only time. 24 Q. Have you ever talked to him on the phone? 25 A. Yes. 114 1 Q. What were those conversations about? 2 A. Helping his driver. Helping his -- 3 Q. Have you ever talked to Scott Buchanan 4 about the delivery of this one vehicle? 5 A. Oh, the one? 6 Q. Have you talked to Scott Buchanan about 7 anything other than the delivery of the vehicle that 8 you helped him deliver? 9 A. No, sir. 10 Q. Okay. Are you friends with Jeff Mullins? 11 A. Yes. 12 Q. How good of friends? 13 A. Known each other for 20 years or so. 14 Q. Would you consider him a close friend? 15 A. I consider him a friend. 16 Q. Okay. Have you ever traveled with Jeff? 17 A. I have. 18 Q. How often have you traveled with Jeff? 19 Was that a one-time trip or did you travel from time 20 to time? 21 A. Throughout the year. 22 Are we talking work-related trips or all 23 in general? 24 Q. All trips. 25 A. You know several. Several times a year. 115 1 Q. Would you ever go to Las Vegas? 2 A. I would. 3 Q. Okay. Was that for recreation? 4 A. For work. 5 Q. Okay. But that was for work? 6 A. Yes. 7 Q. Tell me how that's for work. 8 A. We were showing coaches. 9 Q. You were showing coaches in Las Vegas? 10 A. Displaying coaches. 11 Q. Okay. 12 A. For different shows. 13 Q. Oh, shows that were located in Las Vegas? 14 A. Yes. 15 Q. Did you socialize with him after the 16 shows? 17 A. I would. 18 Q. Did you go to any of the casinos? 19 A. Yes. 20 Q. Did you take trips with Jeff that were 21 not work-related? 22 A. I did. 23 Q. What kind of trips were those? 24 A. The same. 25 Q. Same. What do you mean "same"? 116 1 A. Well, it would be a camping trip. It 2 would be, you know, like vacation. Like if Super 3 Bowl -- 4 Q. Okay. 5 A. -- go watch the Super Bowl in Vegas. 6 Q. Would you classify him as, like, your 7 buddy? 8 A. Yes, I would. At the time, yes. 9 Q. So would you spend a significant amount 10 of time with Jeff socially? 11 A. Yes. 12 Q. Have you ever seen Scott Buchanan with 13 Jeff Mullins? 14 A. Never. 15 Q. Have you ever heard about Jeff Mullins 16 telling you about a trip with Scott Buchanan? 17 A. Never. 18 Q. Okay. 19 A. Other than the fact they've never met is 20 what he always told me. 21 Q. So Jeff told you that he's never met 22 Scott Buchanan? 23 A. Right. 24 Q. Ever? 25 A. Like face to face, no. Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 11 of 12 Case 1:15-cv-02233-RM-MJW Document 117-9 Filed 07/28/16 USDC Colorado Page 12 of 12 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLORADO 3 TRANS-WEST, INC., dba TRANSWEST ) 4 TRUCK TRAILER RV, ) ) 5 Plaintiff, ) ) 6 vs. ) Civil Action No. ) 15-cv-02233-MJW 7 SOUTHWEST LUXURY COACH SALES, LLC, ) and SCOTT BUCHANAN, ) 8 ) Defendants. ) 9 ) 10 11 12 13 DEPOSITION OF SCOTT M. BUCHANAN 14 15 16 Phoenix, Arizona March 7, 2016 17 8:56 a.m. 18 19 REPORTED BY: Kristy A. Ceton, RPR 20 AZ Certified Court Reporter No. 50200 21 22 23 24 25 Court Reporting, Legal Videography, and Videoconferencing Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 EXHIBIT 10 Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 1 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 4 (Pages 13 to 16) 13 1 Q. And what was the name of that? 2 A. Big Sky Liquidation. 3 Q. And how long were you involved in Big Sky 4 Liquidation? 5 A. I couldn't tell you. Eight years. 6 Q. Okay. 7 A. I'm not sure. 8 Q. So that would have taken you to early 9 2000, you started that until about 2011, 10 approximately? 11 A. Not sure. 12 Q. And Big Sky Liquidation, what did it do? 13 A. Wholesale. 14 Q. Wholesale what? 15 A. RVs. 16 Q. And did Big Sky Liquidation have its own 17 license? 18 A. Yes. 19 Q. And it was under the name of Big Sky 20 Liquidation? 21 A. Yes. 22 Q. Was that license ever suspended or 23 revoked? 24 A. Never. 25 Q. And any complaints filed with the State? 14 1 A. No. 2 Q. And prior to Big Sky Liquidation, did you 3 have another company? 4 A. I did, and I'm not sure of the name 5 because it's been such a long time ago. 6 Q. Why did you stop working under the name 7 of Big Sky Liquidation? 8 A. We needed to start a license that we 9 could retail. There's two different licenses. A 10 wholesale, which -- the name. Wholesale, retail. 11 Q. And so Big Sky Liquidation was a 12 wholesale license? 13 A. Yes. 14 Q. And Southwest Luxury is a wholesale 15 resale? 16 A. Yes. 17 Q. Are you still in business as Southwest 18 Luxury? 19 A. Yes. 20 Q. I didn't look myself, but somebody told 21 me your presence on the Internet had gone down 22 substantially or ceased to exist. Is that correct or 23 did I get bad info? 24 A. You might have got bad info. I know it's 25 the same. I don't pay attention to it. 15 1 Q. Do you do business under any other name, 2 other than Southwest Luxury? 3 A. No. 4 Q. And when I say "do business," I'm talking 5 about the RV business. 6 A. No. 7 Q. Do you do any other businesses of any 8 kind? 9 A. Do I do any other businesses? 10 Q. Do you have any other businesses? Do you 11 run any other businesses? Do you work in any other 12 businesses? 13 MR. FALBE: Objection. Compound 14 question. 15 Q. BY MR. CAGE: You may answer. 16 A. No, but my family owns a business that 17 I'm part of. 18 Q. Oh, really. What's that? 19 A. It's an aerospace. 20 Q. Aerospace? 21 A. Yes. 22 Q. Do you work in that business? 23 A. No. 24 Q. Just the family? 25 A. Family. 16 1 Q. With respect to Southwest Luxury, do you 2 have employees? 3 A. Yes. 4 Q. How many employees? 5 A. One. 6 Q. Who is that? 7 A. Well -- 8 Q. I'm sorry. Go ahead. 9 A. One and a half. My -- I have a -- 10 Actually two. So I have an accountant that comes in. 11 A bookkeeper. And Turner Reaney. 12 Q. And how long has Mr. Reaney worked for 13 you? 14 A. I think 12 years. I'm not exactly sure. 15 Q. And what does Mr. Reaney do? 16 A. All the paperwork. 17 Q. Does he sell? 18 A. No. 19 Q. He's in -- He's a salaried employee? 20 A. Yes. 21 Q. No commissions? 22 A. No. 23 Q. Okay. I assume you bonus him 24 occasionally? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 2 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 5 (Pages 17 to 20) 17 1 Q. Thank you. 2 Does Southwest Luxury do repair work of 3 any kind? 4 A. No. 5 Q. And so if a coach that you purchase needs 6 repair, what do you do? 7 A. Outsource. 8 Q. And who do you outsource to generally? 9 A. Taylor Tours. 10 Q. T-a-y-l-o-r? 11 A. Yes. 12 Q. And the last word? 13 A. Tours. 14 Q. Tours. 15 And what kind of work do they do? 16 A. Mainly bus stuff. 17 Q. Explain what you mean by that, please. 18 A. We do some Prevost work, and so we bring 19 the stuff to them. 20 Q. Did you say bus work? 21 A. Yeah, you know, that's like, you have 22 RVs, which are Fiberglas. Bus is like a Prevost. 23 Q. And are they -- Taylor Tours here in 24 Phoenix as well? 25 A. Yes. They're in Anthem. 18 1 Q. Anthem? 2 A. Yes. 3 Q. And what's another one of your people 4 that work for you to do repair work? Any others? 5 A. Not that I can recall. I don't pay 6 attention to that. 7 Q. Mr. Reaney does that? 8 A. Yes. 9 Q. Okay. Thank you. 10 And where is Southwest Luxury located? 11 A. 9211 North 9th Avenue. 12 Q. In Phoenix? 13 A. Yes. 14 Q. So we're close to 7th. Are we close -- 15 Is it close to here? 16 A. No. 17 Q. How far away? 18 A. I don't know. 19 Q. North? South? 20 A. It's north. We have another office, too. 21 Q. Where is that? 22 A. It's PS Business Parks. I can't even 23 tell you the address. It's on the check stubs there, 24 I believe. 25 Q. Okay. Is that a location where you 19 1 display? 2 A. We don't display. 3 Q. You don't display at any of your 4 locations? 5 A. No. 6 Q. Don't have a lot? 7 A. We have a lot, but it's not a display 8 deal. 9 Q. Do you have coaches on the lot? 10 A. Yes. 11 Q. And if you're selling retail, don't 12 people come in and look at them? 13 A. We don't hardly do any retail. We just 14 did that in case we ever retailed. 15 Q. I see. 16 So it's primarily a wholesale-type 17 business? 18 A. Yeah. 19 Q. Dealer to dealer? 20 A. Yes. 21 Q. Thank you. 22 Approximately how many coaches do you 23 have on your lot at any time? 24 A. Most of the coaches, we don't even see. 25 Q. But you said you had coaches on the lot. 20 1 Approximately how many do you have on the lot at any 2 time? 3 A. Something might come in. But most 4 coaches, like I said, I don't even see them. They're 5 at an arm's length away. 6 Q. Do you know Mr. Jeff Mullins? 7 A. Yes. 8 Q. When did you first meet Mr. Mullins? 9 A. I've never met Jeff Mullins. 10 Q. Oh, you've never met him? 11 A. No. 12 Q. When did you first talk to him? 13 A. When I first talked to Jeff. I think it 14 was somewhere February 2013. 15 Q. And what was the occasion, or what were 16 the circumstances, however you want to describe it? 17 A. Circumstances were he -- we heard that he 18 was looking for inventory. 19 Q. That he was looking for what? 20 A. Inventory. 21 Q. Inventory. Okay. 22 Did he contact you, or did you contact 23 him? 24 A. I contacted him. 25 Q. And by telephone? Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 3 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 6 (Pages 21 to 24) 21 1 A. Yes. 2 Q. And he was working at Trans-West at the 3 time? 4 A. I believe. 5 Q. What was the nature of that first phone 6 call? 7 A. I don't recall. 8 Q. Did you establish a business relationship 9 with him? 10 A. What was that question? 11 Q. Did you establish a business relationship 12 with him? 13 A. Not at that time. 14 Q. Did you at some time? 15 A. Yes. 16 Q. And what was the nature of that business 17 relationship? 18 A. Buy and sell motorhomes. 19 Q. Was it a formal relationship? I mean, 20 did you text back and forth or e-mail or anything 21 like that? 22 A. I -- I hadn't -- I know nothing about 23 Jeff Mullins. I don't know how many kids he has. I 24 don't know -- I know he's married. I never met 25 anybody. Never met Jeff. 22 1 Q. What I was trying to get at is, I'm sorry 2 if I didn't ask it more clearly. What I was trying 3 to get at. You said you established a business 4 relationship to buy and sell RVs, correct? 5 A. Right. 6 Q. Was it formalized in any way via 7 paperwork? Contract? Texts back and forth or 8 e-mails back and forth? 9 MR. FALBE: Objection. Form. 10 MR. CAGE: You may answer. 11 MR. FALBE: There's lots of questions 12 there. I don't know how you can answer. 13 THE WITNESS: Did we -- One more time on 14 the question. 15 Q. BY MR. CAGE: I'm just trying to find out 16 if you formalized your business relationship. 17 A. I don't understand "formalized." 18 Q. With documentation. 19 A. I think so. 20 Q. And in what way did you formalize it? 21 A. Contracts. 22 Q. Oh, contracts for the sales of individual 23 units? 24 A. Yes. 25 Q. Did you actually have a contract with 23 1 Jeff to buy and sell between the two of you? 2 A. It was with Trans-West. 3 Q. With Trans-West. 4 And was it an actual contract document? 5 A. I've never seen their documents before. 6 Q. How did you generally communicate with 7 Jeff Mullins? 8 A. E-mail, phone. Once in a while a text. 9 Q. I haven't seen too many e-mail 10 correspondence between you and Mr. Mullins. Do you 11 have any? 12 A. No. 13 Q. How come? 14 A. Well, I have some that I gave you. 15 Q. But there just didn't seem to be very 16 many, and I have some. 17 Did you do anything to preserve e-mail 18 correspondence between you and Mr. Mullins? 19 A. There wasn't a lot. 20 Q. Did you do anything to delete e-mail 21 correspondence -- 22 A. Never. 23 Q. -- between you and Mr. Mullins? 24 A. Never. 25 Q. Thank you. 24 1 And how about texts? Do you have any 2 text messages between you and Mr. Mullins that you've 3 saved? 4 A. No. 5 Q. Do you delete those on a regular basis, I 6 take it? 7 A. Yeah. Everybody's. 8 Q. I do too. 9 And I take it you had no social 10 relationship with him? 11 A. None. 12 Q. Are you related to anybody in his family? 13 A. No. 14 Q. Well, I think the only reason I ask is I 15 think that his wife's name is the same last name as 16 you. Buchanan. 17 A. It's amazing. 18 Q. But you're not related? 19 A. No. 20 Q. Okay. Thank you. 21 Is your wife friends with Charity at all? 22 A. No. 23 Q. Do you know Mr. Christian Cecil? 24 A. Yes. 25 Q. And how do you know Mr. Christian Cecil? Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 4 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 8 (Pages 29 to 32) 29 1 Q. If he made a payment to you, would that 2 payment be made to you individually or to your 3 company? 4 A. To my company. 5 Q. And the company would -- would register 6 that, I take it, as income in connection with the 7 transaction? 8 A. Yes. 9 Q. Let me see if I have that straight. 10 So there were occasions when you sold RVs 11 to Mr. Cecil or his company, correct? 12 A. There were occasions, yes. 13 Q. And in connection with those sales, 14 Mr. Cecil may or may not have written a check to 15 Southwest, correct? 16 A. He would have had to pay for the coach, 17 yes. 18 Q. Not just the coach. I mean an individual 19 payment to you, like a SPIF, as you called it? 20 A. No. 21 Q. He never did that? 22 A. I don't -- I know there's one payment 23 that I know of. 24 Q. That Mr. Cecil made to Southwest? 25 A. Yes. 30 1 Q. Outside of the payment for the coach? 2 A. It wasn't outside the payment for the 3 coach. It was for a loan that he took from me. 4 Q. You lent him money or he lent you money? 5 A. I lent him. 6 Q. And he paid you back? 7 A. Yes. 8 Q. Okay. Other than that circumstance, are 9 you aware of any time that Mr. Cecil wrote a check to 10 you, other than -- 11 A. No. 12 Q. -- for the payment of the coach? 13 A. No. 14 Q. Thank you. 15 Do you know Mr. Troy Max Davis? 16 A. No. 17 Q. Do you do business with a company called 18 Ranger RV? 19 A. No. 20 Q. Are you familiar with a company called 21 Pinnacle Coach? 22 A. No. 23 Q. I would tell you that Pinnacle Coach is a 24 company that was -- used to be, at least in part, 25 owned by Mr. Mullins. Does that refresh you at all? 31 1 A. No. 2 MR. CAGE: Do you know what exhibit we're 3 up to? 4 MR. FALBE: I don't. Maybe 22. But I'm 5 not sure. 6 MR. CAGE: Why don't we start at 25. 7 (Exhibit 25 was marked for identification.) 8 Q. BY MR. CAGE: You've been handed what's 9 been marked as Deposition Exhibit No. 25. And it's a 10 series of checks, I would represent, payable from 11 Southwest Luxury Coach Sales to Mr. Mullins; is that 12 correct? 13 A. Excuse me? 14 Q. It's a series of checks from Southwest to 15 Mr. Mullins; is that correct? 16 A. Yes. 17 Q. Did you sign all these checks? It looks 18 like you did. I take it back. If you look at page 19 SWL040257 -- 20 MR. FALBE: Jim, it might be SWLC. 21 Q. BY MR. CAGE: Okay. SWLC040257, which is 22 about third page up from the bottom. Is that your 23 signature? 24 A. No. 25 Q. Do you know whose signature that is? 32 1 A. That's Turner Reaney. 2 Q. Who is authorized to sign on the 3 Southwest Luxury Coach account? 4 A. Myself and Turner Reaney. 5 Q. Thank you. 6 The last check in the pile is written to 7 Mullbuch Capital. Do you know who that is? 8 MR. FALBE: Objection. I don't think 9 that's what it actually says. 10 Q. BY MR. CAGE: Do you know what it says? 11 Do you know what it says? 12 A. Yes. 13 Q. I mean, I can't read it. What does it 14 say? 15 A. It says I think it says Mullbuch Capital. 16 Q. Mullbuch? 17 A. Mullbuch Capital. 18 Q. Okay. Do you know who Mullbuch Capital 19 is? 20 A. I think it's Jeff Mullins. 21 Q. And do you know anything about that 22 company or that -- 23 A. Nothing. 24 Q. -- account? Okay. 25 Why did that check get written to Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 5 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 9 (Pages 33 to 36) 33 1 Mullbuch Capital? 2 A. I was instructed. 3 Q. By? 4 A. Jeff Mullins. 5 Q. And did Mr. Mullins instruct you to write 6 all of these checks to him individually? 7 A. No. 8 Q. But he did instruct you to write that 9 last check to Mullbuch? 10 A. Yes. 11 Q. And the other checks to Mr. Mullins, why 12 did you write those to him? 13 A. They're SPIFs. 14 Q. And why did you write those SPIFs to him? 15 A. Rephrase the question, please. 16 Q. Why did you write those checks to him? 17 A. It's -- Southwest pays SPIFs -- 18 Q. Okay. 19 A. -- to some people. 20 Q. Paid them to Mr. Mullins, correct? 21 A. Yes. 22 Q. And who else did you pay them to? 23 A. Who else do I pay SPIFs to? What's the 24 question? 25 Q. Yes. Who else? 34 1 A. I got Jerry LaFever I pay them to. 2 Q. What's his name? 3 A. Jerry LaFever. 4 Q. Who else? 5 A. John Russo. 6 Q. Anybody else? 7 A. There's lots of them. I just can't 8 remember them all. 9 Q. Is Jerry LaFever associated with a 10 company? 11 A. You know, I'm not sure what he's doing 12 now. 13 Q. How about in 2003, was he associated with 14 a company? 15 A. I can't honestly answer that. 16 Q. How about in 200- -- I said 2003. I 17 meant 2013. 18 A. Right. Right. Sure. 19 Q. You don't know? 20 A. I don't know. 21 Q. How about 2014? 22 A. I'm not sure. 23 Q. How about John Russo? Is he associated 24 with a company, to your knowledge? 25 A. Not sure of the name of it. You would 35 1 have to look him up. LM RV wholesale or something. 2 I don't know. 3 Q. Would you say that one more time, please? 4 A. I'm not sure. 5 Q. But you said something V wholesale? 6 A. Yeah. Something wholesale. I don't 7 know. 8 MR. CAGE: Could you read back his 9 initial answer? 10 (The record was read back, as requested.) 11 Q. BY MR. CAGE: And do you know whether 12 he's the owner of that company? 13 A. I don't. 14 Q. Do you know where he's located? 15 A. Indiana. 16 Q. Do you know approximately the total 17 amount of checks, the value of the checks that you 18 wrote to either Mr. Jerry LaFever or John Russo? 19 A. I don't. 20 Q. Approximately? 21 A. I don't. 22 Q. Is it in the five figures? Six-figure 23 range? 24 A. I don't know. 25 Q. Do you have records that show that? 36 1 A. I do. 2 Q. And how would those -- How are those 3 records maintained? 4 A. In my office. 5 Q. This group of checks listed in Deposition 6 Exhibit 25, they start chronologically in February of 7 2014, and they end chronologically, I believe, in 8 June of 2015. Second to the last page. It's the 9 last chronologically, as I see it. Did you write any 10 checks to Mr. Mullins either prior to or after those 11 dates? 12 A. Without the proper documentation in front 13 of me, I can't tell you. 14 Q. These are the ones that were produced by 15 your office. Did you produce all of them, to your 16 knowledge? 17 A. To my knowledge, yes. 18 Q. Thank you. 19 And, in addition to any checks, did you 20 make any, like, wire transfers to Mr. Mullins' 21 account? 22 A. I don't believe so. 23 Q. How about cash deposits? 24 A. No. 25 Q. And would you tell me what the general Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 6 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 10 (Pages 37 to 40) 37 1 business relationship was such that you would send 2 these checks to Mr. Mullins? Why did you do it? 3 A. Thank you. Please call me again. 4 Q. And would it be when there was a profit 5 on a sale of a coach that you would do it? 6 A. It's the only way my company does that. 7 Q. Okay. So if Mr. Mullins' company, 8 Trans-West, sold you, Southwest, a coach and 9 Southwest made money on it, you would send 10 Mr. Mullins a check, correct? 11 A. I don't understand the question. 12 Q. Well, let me see if I can say it again. 13 If Mr. Mullins' company, Trans-West, sold 14 you, Southwest, a coach, and you sold it to a third 15 party and made money on it, would you send 16 Mr. Mullins a check? 17 A. I would send him a SPIF. 18 Q. But the check, the SPIFs are in the forms 19 of these checks, correct? 20 A. Yes. 21 Q. Was there a set percentage? 22 A. Never. 23 Q. Was there an agreed-upon amount? 24 A. Never. 25 Q. Did you discuss the amounts with 38 1 Mr. Mullins? 2 A. Never. 3 Q. If Mr. Mullins had directed you to send 4 that money to Trans-West, would you have done it? 5 A. Yes. 6 Q. And did you consider it to be part of the 7 purchase of the vehicle? 8 A. No. 9 Q. Did you account for it as a cost in 10 purchasing the vehicle? 11 A. No. 12 Q. How did you account for it? 13 A. If I made profit on a coach at the end of 14 the day, I would pay SPIFs. 15 Q. And that would be a cost of the 16 transaction, correct? 17 A. Don't understand the question. 18 Q. Well, it cost you so much for the coach? 19 A. Right. 20 Q. And then you paid a check to Mr. Mullins, 21 which is another cost, correct? 22 A. No cost. I pay off of my net profit. 23 Q. Okay. But for accounting purposes, and 24 for tax purposes for that matter, you would have 25 deducted that as an expense of the transaction, 39 1 correct? 2 A. I don't look at it that way. I'm not 3 really formulated in that way. 4 Q. Whether you're formulated in that way or 5 not, that's how you did it, correct? 6 A. I don't understand it. 7 Q. Well, as a businessman, don't you take 8 the expenses in connection with a sale of the car -- 9 of a coach in connection with determining your gross 10 or net profit? 11 A. I don't see it like that. I see it more 12 like overhead. 13 Q. And whether it's overhead or not, or a 14 specific expense, you would deduct that as part of 15 the expense of being in business, correct? 16 A. I'm confused with that. I just, you 17 know -- I mean, I just look at something. I made X 18 and Y, and then I look at profit and then I pay SPIFs 19 on that. 20 Q. And the amount that you pay on that would 21 be a business deduction for you, correct? 22 A. I don't know. I would have to ask my 23 accountant. 24 Q. And who is your accountant? 25 A. His name -- it's -- The firm is Edward 40 1 Osinski. 2 Q. Could you say that last name again? 3 A. Osinski. 4 Q. Osinski. Thank you. 5 A. Yes. 6 Q. Am I correct -- and I think you kind of 7 said this indirectly. You never sent Mr. Mullins any 8 money individually before he worked for Trans-West, 9 correct? 10 A. I never knew Jeff Mullins before 11 Trans-West. 12 Q. Thank you. 13 How about after he left Trans-West, so 14 after June of 2015? I think he was terminated in 15 June of '15. 16 A. No. 17 Q. You said that Mr. Mullins had directed 18 you to send this check to Mullbuch or Mullbuch -- 19 whatever it is -- Capital for $7,000. Did he direct 20 you to send any monies to any other accounts, other 21 than to him personally? 22 A. No. 23 Q. So just this one occasion you sent it to 24 Mullbuch Capital versus Jeff Mullins, correct? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 7 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 16 (Pages 61 to 64) 61 1 an auction? 2 A. No, Southwest ran it through. 3 Q. And is that how you bought it -- 4 A. No. 5 Q. -- at an auction? 6 Oh, you ran it through an auction and 7 couldn't get rid of it? 8 A. Right. 9 Q. Okay. So then you sent it up to 10 Trans-West? 11 A. Right. 12 Q. And do you know when that was 13 approximately? 14 A. I do not. 15 Q. It looks like you bought the coach -- if 16 you turn down to page -- it's the third page down. 17 SWLC000465. 18 A. Right. 19 Q. It looks like you were -- you were trying 20 to sell it. Is that -- Explain that to me. Is this 21 the auction you were trying to sell it through? 22 A. We ran it through the auction, and it 23 just didn't bring what I wanted. 24 Q. Okay. 25 A. So -- 62 1 Q. You no-saled it? 2 A. Yes. 3 Q. And that was 11/03 of '14, correct? 4 A. Yes. 11 -- let's see. 11/13. Whatever 5 the date says on there. 6 Q. And am I correct that this -- this third 7 page, page 465, describes the auction that you sent 8 it through? 9 A. Yes. 10 Q. And it didn't sell. Okay. Okay. I want 11 to make sure I'm reading it right. 12 Okay. So if you go a couple more pages 13 down to page 468, SWLC468. So just so I get the 14 chronology right. It looks like Southwest purchased 15 the truck from Tom Johnson in October of 2014. 16 Correct? 17 A. Right. 18 Q. And you paid $95,000 for it? 19 A. Yes. 20 Q. And you bought it as-is? 21 A. Yes. 22 Q. And then going back to the previous page 23 we just looked at, 465, it looks like then you tried 24 to auction it a month or several weeks later and you 25 didn't like the price? 63 1 A. Right. 2 Q. So then you sent it up to Trans-West, 3 correct? 4 A. Yes. 5 Q. And was there any paperwork associated 6 with you sending that up to Trans-West? 7 A. No. 8 Q. So it was just a phone call between you 9 and Mr. Mullins? 10 A. Yes. 11 Q. And have you described completely the 12 phone call? 13 A. I just -- I knew Jeff was selling -- 14 sells Dynamaxes, and I asked him about the coach. If 15 it was something they were interested in purchasing. 16 He said, "No, but send it here. We'll sell it for 17 you." 18 Q. And do you know when that was? 19 A. I don't know exact dates. 20 Q. Do you know approximately when that was? 21 A. I don't. I mean, honestly, it's after 22 the date of the auction. 23 Q. And I'm just trying to get a ballpark 24 here. 25 A. Sure. 64 1 Q. Because I don't know. I don't know when 2 it came up. I mean, maybe we can find a 3 transportation sheet on it somewhere. 4 A. Okay. 5 Q. But I can't tell when it came up there. 6 Do you think it was in that same year? 7 October, November, December of 2014? 8 A. Yeah. It would have been after -- right 9 after whenever it ran through the auction. 10 Q. So it would have been -- In your belief, 11 it would have been shortly after the auction, 12 correct? 13 A. It went from the auction directly there. 14 Q. Oh, it went from the auction directly? 15 A. Yes. 16 Q. Okay. That's very helpful. Thank you. 17 A. Yeah. 18 Q. Now, while it was at Trans-West, certain 19 repair services were provided to that coach. 20 A. Okay. 21 Q. Is that your understanding? 22 A. After everything, it was my 23 understanding, yeah. 24 Q. Do you know whether it actually -- repair 25 services were provided to the coach? Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 8 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 17 (Pages 65 to 68) 65 1 A. I don't know. It's all hearsay that they 2 called me and said they did, they performed work on 3 the coach. 4 Q. But you sent the coach up in a particular 5 condition, and it came back to you in a particular 6 condition, correct? 7 A. Never saw the unit before. I don't -- 8 like I said, 90 percent of the vehicles, 95, I don't 9 see. 10 Q. Okay. Why did -- But you still own the 11 vehicle? 12 A. Yes. 13 Q. Okay. And is it on your lot over here in 14 Phoenix? 15 A. No. 16 Q. Where is it? 17 A. I sent it to another Dynamax dealer. 18 Q. Okay. 19 A. Just recently. 20 Q. And you never inspected it to determine 21 whether or not certain repairs were performed? 22 A. No. I have a condition report from 23 Manheim that they basically issue -- they do a 24 condition report. 25 Q. Okay. 66 1 A. And I just went off of what -- you know, 2 what people buy around the country. I went off of 3 what they said that the coach needed. Like $1,500 4 worth of work to make it a sellable coach. 5 Q. You say "Manheim." Are you referring to 6 -- 7 A. To the auction house. 8 Q. But you're referring to pages SWLC465 9 through -- and 46 -- 10 A. 466. 11 Q. 466 and 465? 12 A. Yep. 13 Q. So if Trans-West said that they made 14 certain repairs to the coach, you wouldn't be able to 15 dispute that one way or another, would you? 16 A. I never authorized anything to be done to 17 that coach. 18 Q. I didn't ask you that. What I was asking 19 you, if Trans-West said that they made certain 20 repairs to the coach, you wouldn't be able to dispute 21 that, correct? 22 A. I don't understand "dispute." 23 Q. You wouldn't be able to say, No, you 24 didn't make those repairs? 25 A. All I can go by is what the auction and 67 1 every other dealer around the country that buys from 2 them. I can go by that. 3 Q. But you can't say for certain that 4 Trans-West didn't make any repairs to the coach, 5 correct? 6 MR. FALBE: Objection. He's answered 7 this three times now. 8 MR. CAGE: I don't think so because he 9 said he didn't understand the question the first 10 time. But go ahead. 11 And would you read back that last one, 12 please. 13 MR. FALBE: It also calls for a legal 14 conclusion. He can certainly dispute whether repairs 15 have been made. 16 (The record was read back, as requested.) 17 Q. BY MR. CAGE: Is that correct or not? 18 A. I've not looked at the coach to see that 19 they did repairs. 20 Q. Or not? 21 A. I just -- Like I said. I haven't looked 22 at it to see. 23 Q. So you don't know, one way or another? 24 A. No, I don't know. 25 Q. Did you pay any kickback or SPIF to 68 1 Mr. Tom Johnson in connection with the purchase of 2 this vehicle? 3 A. I don't know what a kickback is because I 4 don't pay kickbacks. The first time I've heard it is 5 when you guys talked the other day. So rephrase 6 that, please, again. 7 Q. I made that in the alternative, a 8 kickback or a SPIF. So did you pay any SPIF to 9 Mr. Johnson, in your language? 10 A. Mr. Johnson? 11 Q. Tom Johnson, the person or the company 12 you bought the coach from. 13 A. I don't recall. 14 Q. Did you pay any, in your language, SPIF 15 to Mr. Mullins in connection with anything having to 16 do with this vehicle? 17 A. No. 18 Q. Do you know what dealership you sent this 19 to -- this vehicle to? The Dynamax? 20 A. Trans-West. 21 Q. No. No. You said you got it back. You 22 bonded it off from the Court, right? 23 A. Yes. 24 Q. And then you got it back, and I thought 25 you said you sent it to another Dynamax dealer? Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 9 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 18 (Pages 69 to 72) 69 1 A. Yes, SportTruck. 2 Q. SportTruck. And where is SportTruck 3 located? 4 A. They're in Chandler. 5 Q. Do you know what -- Is there, like, a 6 list price for that vehicle or a price that it's 7 being listed for sale? 8 A. I don't know. 9 Q. Who would know? 10 A. Probably what they ask, you know. You 11 know, I don't know what they ask. 12 Q. But, I mean, somebody at SportTruck would 13 be able to say what they're asking for that coach, 14 correct? 15 A. I would believe that it would be on their 16 website. 17 Q. Did you look at the list of repairs that 18 Trans-West reportedly made to the coach? 19 A. Yes. 20 Q. Huh? 21 A. Yes. 22 Q. And if, in fact, they made those repairs, 23 would that be a reasonable price for those repairs? 24 A. I know nothing about the repair business. 25 Q. So you don't know whether it's reasonable 70 1 or not? 2 A. I don't know if it was reasonable or not. 3 It's not reasonable for sure, for that unit, because 4 it says that there's only $1,500 that all dealers 5 follow that when they buy coaches. 15- to 27,000. A 6 little difference. 7 Q. Trans-West, according to the documents, 8 made repairs beyond the scope of those repairs listed 9 by the auction house, correct? 10 A. Yes. 11 Q. Huh? 12 A. Yes. 13 Q. And you don't know whether those repairs 14 were needed or not, correct? 15 A. Shows that they were not. 16 Q. When you say "shows that they were not," 17 you're talking about what the auction house said, 18 correct? 19 A. Yes. That's what us dealers go by when 20 we buy a vehicle from them. They're pretty accurate. 21 Q. You would agree, wouldn't you, that if, 22 indeed, Trans-West made repairs beyond the scope of 23 that listed in the auction house and as represented 24 on there -- on their repair invoices, that you 25 received the benefit of that? 71 1 A. I would never have authorized that coach 2 to be repaired. 3 Q. I'm not -- I'm not asking you that. 4 A. Yes. 5 Q. I'm just saying that, if you sent a coach 6 down and a bunch of repairs were made, you received 7 the benefit of the repairs? 8 A. Consignments don't get repaired. 9 Q. That's not my question. 10 A. I understand. 11 Q. So would you answer my question, please? 12 A. Rephrase that to me, again, please. 13 Q. So you sent the coach to Trans-West, 14 correct? 15 A. Okay. 16 Q. And if Trans-West made the repairs they 17 said they made, and you got the coach back, then you 18 received the benefit of whatever repairs they made, 19 correct? 20 A. No. 21 Q. Who did get the benefit of it? 22 A. I don't know. It clearly looks like they 23 retailed it. And then they basically did some 24 modifications to the coach that I never asked for and 25 never knew about. 72 1 Q. I really wasn't asking you whether you 2 authorized it or you asked for it. Whether you knew 3 about it. I'm just asking you that if, in fact, they 4 made changes, repaired, upgrades to the coach and 5 you've got the coach back, then you received the 6 benefit of whatever good they did to the coach, 7 correct? 8 A. I didn't look at the coach, so if they 9 altered anything, it basically would bring the value 10 down on the motorhome. 11 Q. So I'm not talking about -- I'm talking 12 about improvements. If they altered it to improve it 13 or repaired it, you would receive the benefit of 14 that, having gotten the coach back, correct? 15 MR. FALBE: Objection. You've asked that 16 three or four times now. He's answered it. You 17 don't like his answer. 18 MR. CAGE: No, he hasn't answered it. 19 THE WITNESS: They altered the coach. 20 Q. BY MR. CAGE: So if the altercations were 21 for the good, then you received the benefit of that, 22 correct? 23 A. Were they factory alterations? 24 Q. I don't know. I'm just asking the 25 question if they were alterations that were for the Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 10 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 19 (Pages 73 to 76) 73 1 good of the coach, did you receive the benefit? 2 MR. FALBE: Objection. Form. 3 THE WITNESS: I said no. 4 (Exhibit 31 was marked for identification.) 5 Q. BY MR. CAGE: You've been handed what's 6 been marked as Deposition Exhibit No. 31, which is a 7 series of documents, both -- that we got both from 8 our office and from the Internet and from your 9 office. And it deals with a 2008 Newell, which I 10 think is a type of coach; is that correct? 11 A. Right. 12 Q. And on the first page, you e-mailed to 13 Mr. Mullins a group of pictures concerning the -- 14 this so-called 2008 Newell, correct? 15 A. Right. 16 Q. First off, why did you send him those 17 pictures? 18 A. That's the only form of e-mail 19 conversation we would have is, like, pictures of the 20 coach. Tires. Condition of the coach. 21 Q. And why were you sending it to 22 Mr. Mullins? 23 A. I don't remember the conversation. 24 Q. But at the time you sent the pictures, 25 you didn't own the coach, correct? 74 1 A. No. 2 Q. So you don't remember the conversation. 3 But why would you want to send him pictures if you 4 didn't own the coach? 5 A. I send pictures of coaches to everybody a 6 lot of times. 7 Q. Okay. 8 A. They ask. They ask about pictures. 9 Q. Now, this e-mail wasn't sent to anybody, 10 other than Mr. Mullins, correct? 11 A. Right. Well, I don't know that. Sorry. 12 Q. Well, at least on the first page, that's 13 what it suggests? 14 A. Right. It says from "RV man Turner," so 15 I don't know who I told Turner to send it all to. 16 Q. And you don't know why you sent it to 17 Mr. Mullins? 18 A. A purchase. Probably a coach that he was 19 interested in. 20 Q. And how do you know that? 21 A. Because I believe that this was probably 22 the -- one of the first transactions that we did. 23 Q. And Mr. Mullins writes back and says, 24 "Bad ass coach. Let's get it"? 25 A. It was at an auction, and I think -- I 75 1 don't even remember the conversation we had. 2 Q. But that's what he e-mailed back to you. 3 "Bad ass coach. Let's get it"? 4 A. Yeah. I think he sent that to Turner's 5 thing. So I don't know that I ever would have saw 6 that. 7 Q. Well, it says "To: Scott Buchanan"? 8 A. It does? 9 Q. Yes. In the "To" line. And the return 10 is sunnyside55@aol.com? 11 A. Maybe it did. You know, I hardly look at 12 my e-mail. 13 Q. Okay. But your e-mail address is 14 sunnyside55@aol.com? 15 A. Yes, it is. Uh-huh. 16 Q. Thank you. 17 And he did send that back to you, 18 correct? 19 A. Yes. 20 Q. And he said, "Let's get it." Did you 21 have an agreement with him on the 29th of September 22 to purchase this coach? 23 A. No. I don't know when the purchase date 24 to him was. 25 Q. Well, we're going to go into that. But 76 1 did you have an agreement with him on the 29th -- 2 A. No. 3 Q. -- concerning the purchase of this coach? 4 A. No. 5 Q. Now, if you turn down to -- And it's not 6 a numbered page because we got it off of the 7 Internet, and it looks like Apple Auctioneering Co. 8 Do you see that? 9 A. Yep. Got it. 10 Q. And there's a series of documents. And 11 almost identical pictures of that same vehicle, 12 correct? 13 A. Right. 14 Q. And it was sold on 9/30/2013. The next 15 day, correct? 16 A. Okay. 17 Q. Is that correct? 18 A. 9/30. 19 Q. If you go to the first page, that doesn't 20 have a number? 21 A. Date sold says right there, 9/30/2013. 22 Right. 23 Q. So it was the following day after the 24 e-mail communication with Mr. Mullins, correct? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 11 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 20 (Pages 77 to 80) 77 1 Q. And this is the same vehicle, correct? 2 A. Yes. 3 Q. Okay. Good. 4 And then if you turn down beyond the 5 Internet information and you go to SWLC00043. 6 A. Yes. 43. 7 MR. FALBE: Are some of these out of 8 order? 9 MR. CAGE: Yes. I apologize. They're in 10 logical order, but not in chronological order. 11 THE WITNESS: What are we looking at? 12 Purchase order? 13 Q. BY MR. CAGE: Yeah. Doc number 5378. Is 14 that your document? 15 A. Yes. 16 Q. What do you call that document? 17 A. That is a -- a deal jacket. 18 Q. And it's dated 10/23/2013, correct? 19 A. Okay. 20 Q. And the date of purchase is 10/1/2013, 21 correct? 22 A. Okay. 23 Q. Is the date of purchase, is that the date 24 you bought it? 25 A. That would be. 78 1 Q. And the date 10/23/2013, that's the date 2 you sold it? 3 A. Yes. 4 Q. So you sold it, like, three weeks later 5 to Trans-West, correct? 6 A. Yeah. It's part of a two-piece 7 transaction. 8 Q. Okay. Just -- And help me understand 9 this. It looks like you paid $501,300 for the unit, 10 correct? 11 A. Yes. 12 Q. Okay. And you sold it to Trans-West for 13 590-, correct? 14 A. It looks like that. 15 Q. Okay. So your profit would have been 16 89,000, $90,000, correct? 17 A. I -- I don't have my -- all my expenses 18 down here. It kind of looks like that's what it -- 19 Q. I mean, roughly, that's the -- 20 A. Yeah, I don't know. There's expenses to 21 everything, you know, transportation, tires, whatever 22 there is. 23 Q. SPIFs. 24 So approximately 90,000, correct? 25 A. Yes. 79 1 Q. Now, did Mr. Mullins know what you paid 2 for that coach? 3 A. No. 4 Q. Aren't the results of the auction public? 5 A. What's that? 6 Q. Are they? 7 A. I don't know if they are or not. I mean, 8 they're public. I'm sure anybody can go on them. 9 You have to know how to get on them. You have to 10 know how to find them. I don't know how the pictures 11 were sent. 12 Q. So did you have an arrangement with 13 Mr. Mullins that you would buy this coach and then 14 sell it to Trans-West? 15 A. No. 16 Q. Did you pay Mr. Mullins any payments or 17 SPIFs in connection with this transaction? 18 A. You know, I don't think so. It doesn't 19 look -- I don't know. It doesn't show on the jacket 20 here. 21 Q. Did you always put it on the jacket if 22 there was a payment? 23 A. If there were SPIFs, yes. Sometimes I 24 don't pay attention to that stuff because I don't do 25 the accounting part of my business. I just do the 80 1 buy/sell stuff. 2 This coach was a part of a trade deal on 3 a coach that Trans-West had on their books for, like, 4 298 days or something like that. 5 Q. Is that shown on the deal jacket? 6 A. No, but it would be in accounting, 7 probably, somewhere. I mean, you can look at the 8 dates, and it will tell you two coaches that are the 9 same date when we sell them. 10 Q. Well, on the right-hand side of the -- 11 what you're calling the deal jacket, page 43, it 12 says, "Partial 210 and partial 190, remainder 190." 13 What is that? 14 A. I don't know without looking at, you 15 know, the -- you know, my other documents that I 16 have. 17 Q. And then in the middle, it says 18 "Reconditioning costs." It says "Deposit $5,000"? 19 A. Uh-huh. 20 Q. And then it says check No. 1252. 21 A. Yeah. I don't know that. The deposit 22 might be to get into the auction house. 23 Q. Okay. 24 A. It might be. I'm not sure. 25 Q. And indeed the auction papers appear to Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 12 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 22 (Pages 85 to 88) 85 1 MR. CAGE: Oh, I'm sorry. 2 MR. FALBE: I think that's it. 3 Q. BY MR. CAGE: You got it? 4 A. Yes. 5 Q. So you struck the deal with Trans-West by 6 at least 10/10/13, right? 7 A. Yes. 8 Q. So that's like -- 9 A. It looks like it. 10 Q. So that's, like, nine days after you 11 bought it, right? 12 A. Uh-huh. 13 Q. Is that yes? 14 A. Yes. 15 Q. Thank you. 16 If, in fact, you made the 90- or $89,000 17 worth of profit, approximately, did you send any of 18 that to Mr. Mullins? 19 A. Without looking at further documentation, 20 I don't know what I did here. 21 Q. Okay. Do you know what happened to that 22 coach? 23 A. I don't care what happens to the coaches. 24 Hopefully they sold and they made a lot of money. 25 Q. Yeah. I'm just asking if you knew. 86 1 A. Yeah. 2 Q. You don't know? 3 A. No, I don't. 4 (Exhibit 32 was marked for identification.) 5 Q. BY MR. CAGE: You've been handed 6 Deposition Exhibit No. 32, which is a sale, a couple 7 sales of the same vehicle. A Newmar King Aire. 8 A. Okay. 9 Q. Do you see that? 10 A. I do. 11 Q. And if you go down to the second page of 12 the exhibit, which is TW148. It looks like you sold 13 that vehicle to Trans-West on June 20th, 2014; is 14 that correct? 15 A. Yes. 6/20. 16 Q. Pardon me? 17 A. Yes. 6/20. 18 Q. Okay. And they paid $535,000 for it, 19 correct? 20 A. Yes. 21 Q. And then, if you go to the first page, it 22 looks like they sold that vehicle back to you on 23 April 2nd, 2015, correct? 24 A. Yes. 25 Q. So they sold it back to you for $490,000? 87 1 A. Yes. How many days is that? Can you add 2 that up, Jim? 3 Q. Well, I can do it approximately. 4 A. Yeah. 5 Q. But I was going to ask you. What is 6 that? 7 A. I mean, that's like -- 8 Q. It's like six months, maybe seven? 9 A. Six, maybe seven. Seven, eight months. 10 MR. FALBE: It's 10 months. 11 THE WITNESS: 10 months. 12 Q. BY MR. CAGE: Do you know whatever the 13 dates are, it's from 6/20/14 to 4/2 -- 14 A. Yeah. 15 Q. '15? 16 A. Sure. 17 Q. Do you remember this transaction? 18 A. No. I do 300 coaches a year. 200. I 19 don't remember half the transactions. 20 Q. I understand. I'm just asking you if you 21 remember, that's all. 22 A. Okay. 23 Q. And you don't. Correct? 24 A. Yeah, I don't. 25 Q. Do you know whether Trans-West made any 88 1 repairs or upgrades to this coach while it had it in 2 its possession? 3 A. I don't. 4 Q. Okay. 5 A. It's 2014. I wouldn't think so. 6 Q. Why do you say that? 7 A. It was new and -- newer coach. 8 Q. Okay. They have a sheet, if you go down 9 to TW150, which is the fourth page down in the 10 exhibit. 11 A. Okay. 12 Q. I take it back. That's the wrong page. 13 If you go to the next page. It looks like certain 14 costs that they've included in connection with their 15 -- their possession in the vehicle? 16 A. Holy moly. 17 Q. Do you know whether they made any repairs 18 or improvements to the vehicle? 19 A. It's a Trans-West document. You know, I 20 don't know if it's true and accurate. I don't know 21 what they do there. I would have no information. 22 Q. I'm just asking if you knew? 23 A. No. 24 Q. You don't. Okay. 25 If they, in fact, made these repairs that Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 13 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 23 (Pages 89 to 92) 89 1 are suggested on this document, you received the 2 benefit of those repairs, correct, when you bought it 3 back? 4 A. No. 5 Q. Why not? 6 A. I didn't authorize any of this stuff. 7 Q. I'm not asking if you authorized it. I'm 8 just saying that if the coach was in a certain 9 condition when you sold it to them, and then you 10 bought it back and it was in better condition, you 11 received the benefit of that? 12 A. Once again, it's -- The repairs could be 13 alterations, and then it would decrease the value of 14 a motorhome. I don't know. 15 Q. It could increase the value of the motor 16 home, too? 17 A. Like I said, I don't know what they did 18 to it. It doesn't show. They have different things 19 on there. 20 Q. It was really a hypothetical question. 21 If they improved the vehicle, you got the benefit of 22 the improvements, correct? 23 MR. FALBE: Objection. Form. 24 Q. BY MR. CAGE: Is that correct? 25 MR. FALBE: Speculation. 90 1 THE WITNESS: I don't know. 2 (Exhibit 33 was marked for identification.) 3 Q. BY MR. CAGE: You've been handed what's 4 been marked as Deposition Exhibit No. 33. As you can 5 see at the bottom, this is a document we received 6 from you. It's labeled SWLC020001. 7 Do you see that? 8 A. Yes. 9 Q. Do you know where you got this document? 10 A. I didn't receive it. 11 Q. It came from your office? 12 A. No, but I didn't -- I never received it. 13 Q. You never saw this? 14 A. No. I mean, have I seen it? Yes. My 15 attorney told me about it, but I have not seen it. I 16 mean, I've seen it, but it did not come to me. 17 Q. Okay. Did it come to anybody in your 18 office? 19 A. No. 20 Q. Okay. So you got this from your 21 attorney? 22 A. Yes. 23 Q. And you produced it in discovery? 24 A. Produced it? 25 Q. You sent it to us. Your lawyer sent it 91 1 to us. 2 A. I don't know. I mean, he didn't -- he 3 didn't tell me that he sent it to you, but we 4 discovered -- we gave you everything that we have 5 discovered. 6 Q. I'm not -- It's not a trick question. 7 I'm just trying to establish where it came from. 8 That's all. 9 A. Yeah. 10 Q. In there, in about the middle paragraph, 11 it says, "Trans-West failed to collect California 12 sales tax for retail sales of motor homes from 2011 13 to 2015." 14 Do you know if that's true or not? 15 A. I don't know anything Trans-West has 16 done. 17 Q. So you don't have any firsthand knowledge 18 of whether or not they collected California sales 19 tax, correct? 20 A. I -- Bradley, I think, one of the sales 21 guys, said that in his testimony that he -- they did 22 not. 23 Q. Okay. But besides Bradley, do you know 24 whether or not Trans-West collected California sales 25 tax? 92 1 A. Jeff Mullins told me that they did not 2 collect. 3 Q. And besides -- But you don't know 4 firsthand? Other than what Mr. Mullins told you or 5 Mr. Land told you, do you have any knowledge? 6 A. No. 7 Q. Would the same be true about the rest of 8 the statements made in this? 9 A. I don't know anything about the 10 statements. I mean, you know, I don't know 11 Trans-West's operations. I've just heard via certain 12 parties. 13 Q. If you assume for the purpose of this 14 question that Trans-West did not pay California sales 15 taxes, what difference does it make to you? 16 A. Does it matter to me? 17 Q. Yeah. 18 A. I believe it does. 19 Q. Why? 20 A. Because they ran an illegal dealership 21 and they're saying that I -- basically, they're suing 22 me for lost profits. 23 Q. So what does that -- Even assuming that 24 they did, why does that have to do with any lost 25 profits? Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 14 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 29 (Pages 113 to 116) 113 1 Deposition Exhibits 37 and 38. I would represent to 2 you that Exhibit 37 contains 18 tabs dealing with 18 3 vehicles that Southwest sold to Trans-West. 4 A. Okay. 5 Q. And Exhibit 38 is kind of a spreadsheet 6 that we put together -- my office put together which 7 kind of details some of the information concerning 8 those sales. 9 The first sale in here is a sale dated -- 10 it's your sales jacket, first page, as I understand 11 it, and it's dated 2/28/13, which is almost the same 12 date as the sale we were talking about in Exhibit 35, 13 tab 1. 14 Do you know if this is the other vehicle 15 you're referring to? 16 A. It is. 17 Q. It is. 18 So now that you have this documentation, 19 can you explain to me exactly what the transaction 20 was? 21 A. Simple. 22 Q. Okay. 23 A. I ACV'd their coach at $375,000. 24 Q. Got it. 25 A. And then I basically -- they wanted me to 114 1 write a check for $475,000. 2 Q. And you say "they," that would have been 3 Mullins. Mr. Mullins? 4 A. Well, I believe Jeff always had to go 5 through -- he would always say he had to go someplace 6 else and get it -- get it signed off on. So that 7 would probably be the Mr. Lyons, I think it is. 8 Q. Okay. But your conversation was always 9 with Mr. Mullins, correct? 10 A. Yeah, but he never -- he always had to go 11 and have it approved. 12 Q. Right. But you're talking to Mullins? 13 A. Right. I don't know if they were both in 14 the room together. I wasn't there. I don't know 15 about how it works. 16 Q. Okay. 17 A. So anyways. 375-, they were in it 475-. 18 So they marked theirs -- they want me to pay 475- for 19 theirs, and then I marked mine up because they owed 20 me $100,000 on the -- on the other one. So it was 21 basically a trade. 22 Q. You say you marked yours up on the other 23 one. You're referring to what is -- tab 1 is a 24 Parliament 2008 Prevost? 25 A. Yes. Yes. 115 1 Q. And tell me how you marked that up. 2 A. I said, "I want X for mine." And Jeff 3 said, "I need 475- out of mine." I said, so ... 4 Q. What's the "X" for yours that you wanted? 5 A. Take the $100,000 that they owed me on 6 the deal off, and that would been $450,000. 7 Q. But the transaction sheet -- or, the sale 8 jacket sheet, tab 1 in Deposition Exhibit No. 37 9 indicates that you paid $400,000 for the American 10 Monarch -- I'm sorry -- for the Parliament -- 11 A. For the Parliament, 2008. 12 Q. -- and it looks like you sold it for 13 550-? 14 A. Right. 15 Q. Well, that's $150,000 markup from what 16 you had in it, right? 17 A. Uh-huh. 18 Q. Is that yes? 19 A. Yes. 20 Q. Okay. So if I wanted to compare when 21 there's a trade, it would be done on or about the 22 same date as a purchase and a sale, correct? 23 A. Yeah. 24 Q. Got it. 25 Now, I was -- We can go through the 116 1 first -- I want to say six sales in Deposition 2 Exhibit 35, which is sales to Trans-West. And you 3 can look at those, but it might be easier just to 4 look at the summary. There's a column in the summary 5 sheet that says, "Amount of KB," which stands for 6 kickback, or, in your parlance, a SPIF. 7 And for the first six sales that we show 8 to Southwest from Trans-West, there are no payments 9 to Mr. Mullins. And we can go through each exhibit, 10 but I'm just going to ask you to assume that so we 11 don't have to go through each one of these exhibits 12 and -- 13 MR. FALBE: Objection. We're not going 14 to assume that. 15 Q. BY MR. CAGE: I'm going to assume there 16 was no kickbacks. 17 If there weren't any during that period 18 of time, why not? 19 A. Well, first of all, I don't know what the 20 kickback word is that you're saying. They're SPIFs, 21 Jim. We've already talked that. 22 Q. You have a characterization of them and I 23 have a characterization of them. 24 A. Okay. 25 Q. That's fine. I said kickbacks or SPIFs. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 15 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 30 (Pages 117 to 120) 117 1 I'm trying to use your language. 2 THE COURT REPORTER: Okay. One at a 3 time, please. 4 THE WITNESS: I told you before. SPIFs. 5 So let's not go there. You know what I mean. 6 Q. BY MR. CAGE: I could say the same to 7 you. Let's not go with SPIFs; let's go with 8 kickbacks. So, they're payments. They're payments. 9 Okay. 10 A. They're SPIFs. 11 Q. Payment to Mr. Mullins. There's none for 12 the first six transactions. Do you know why not? 13 A. I don't know why. 14 Q. Was there some point in time where you 15 decided you would start paying payments to 16 Mr. Mullins? 17 A. I don't recall. 18 Q. Was there some agreement with Mr. Mullins 19 as to when those payments would start? 20 A. Never. 21 Q. Okay. Were they discretionary on your 22 part? 23 A. Yes. 24 Q. Let's look at tab 7. 25 A. Which one there, buddy? 118 1 Q. I'm sorry. It's in Exhibit 35. The big 2 notebook. 3 A. Okay. This one right here. 35. What 4 number? 5 MR. FALBE: Tab 7. 6 THE WITNESS: Tab 7. Okay. 7 Q. BY MR. CAGE: This -- this tab deals with 8 a 2012 Tiffin Allegro. Correct? 9 A. Okay. 10 Q. And if you look through the documents, it 11 looks like it was sold -- the first page on the 12 right-hand side, this is a Trans-West document. But 13 it says it was sold to Southwest Luxury Coach on 14 12/24/13. 15 Do you see that? 16 A. On the first page? 17 Q. On the right-hand side. First page. 18 A. Okay. 19 Q. It says "Customer: Southwest Luxury 20 Coach, 12/24/13," correct? 21 A. Okay. Yep. 22 MR. FALBE: Jim, is the page TW00034? 23 MR. CAGE: Yes. 24 MR. FALBE: So it's a Trans-West 25 document. 119 1 Q. BY MR. CAGE: So it's the first page of 2 that tab. Yes. Sometimes it's easier to say the 3 first page because they're stamped in over some other 4 type, and it's hard to read. 5 And it was sold to Southwest, correct? 6 A. Yes, it looks like it. 7 Q. And if you go down to page -- it's 8 actually, it's the -- it may be easier. It's the 9 fifth page down. One, two, three, four, five, and 10 that's SWLC00086. 11 Do you see that? 12 A. Yes. 13 Q. And that's your form? 14 A. Yes. That's a copy of our jacket. 15 Q. And it says, "Purchased from Trans-West." 16 And the purchase price is scratched out, unless it's 17 down further. 232,000? 18 A. Okay. 19 Q. Can you tell? 20 A. Yeah. It says that, but I don't know 21 why. 22 Q. Well, the page prior to that is a 23 Trans-West page 0031. It says it was sold for 24 280,000? 25 A. Right. 120 1 Q. Can you reconcile that? 2 MR. FALBE: Which page, Jim? I'm sorry. 3 MR. CAGE: It's the page prior to his 4 deal sheet. It's Trans-West page 00031. 5 MR. FALBE: So you're asking him to -- 6 Okay. On Trans-West 031? 7 Q. BY MR. CAGE: Yeah. I'm asking him to 8 tell me how much he paid for the vehicle. That's all 9 I'm asking. 10 A. Does it show it? 11 Q. Trans-West documents show that it was 12 sold for $280,000, which is page 31, which is right 13 preceding your sale jacket page. 14 A. Okay. 15 Q. 86. 16 A. I don't think I have 31 on here. Do I? 17 Oh, there it is, right there. Okay. It says sales 18 amount $280,000. 19 Q. Yes. 20 And what I'm saying is, your sheet has 21 something crossed out. I can't read it. But then it 22 says $232,000? 23 A. That's what I sold the coach for because 24 there was another trade involved. 25 Q. And the date of the other trade would be Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 16 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 31 (Pages 121 to 124) 121 1 what? 2 A. It would -- if you look at 12/31, you 3 would probably find it. 4 Q. That's helpful. 5 A. Actually, 12/24 would be the day it would 6 happen because it would have been part of a trade. 7 Q. Okay. So the real -- the real 8 question -- but another question I have is, on the 9 last page of this tab -- 10 A. Okay. 11 Q. -- is a check from Southwest Luxury Coach 12 to Jeffrey Mullins in the amount of $8,000? 13 A. Yes. 14 Q. And why did you pay Mr. Mullins $8,000 in 15 connection -- And I assume that was in connection 16 with this purchase and trade; is that correct? 17 MR. FALBE: Objection. Jim, are you 18 asking him to opine something that you wrote down on 19 a spreadsheet? 20 MR. CAGE: No. I'm looking at the check, 21 which is the last page of this exhibit. 22 MR. FALBE: Okay. Which page is that? 23 MR. CAGE: It's the last page of tab 7 of 24 the exhibit. 25 MR. FALBE: Which is what document 122 1 number? 2 MR. CAGE: Deposition Exhibit No. 35. 3 MR. FALBE: Bates number? 4 MR. CAGE: Bates number's 4253. 5 MR. FALBE: Got it. 6 THE WITNESS: Well, SPIFs were paid on 7 transactions by themselves when they were completed. 8 Fully completed. 9 Q. BY MR. CAGE: Does this payment to 10 Mr. Mullins in the amount of $8,000 relate to this 11 transaction for the 2012 Tiffin Allegro? 12 A. I can't accurately say that it does 13 because it doesn't -- the dates kind of coincide. 14 Q. But you wouldn't necessarily pay them on 15 the exact date that -- that you purchased the coach, 16 would you? 17 A. Well, no. SPIFs are paid at the end of 18 things because they could be later. The end of 19 sales. Full deals. So it might have been for 20 something else. 21 Q. For another sale? 22 A. Could be. 23 Q. Could there be anything else? 24 A. Define "else." 25 Q. Well, it would be another sale or 123 1 transaction? 2 A. It could be. 3 Q. What else could it be for? 4 A. Another -- another SPIF for another deal 5 that happened. 6 Q. Yeah. But it would be in connection with 7 another sale or purchase of an RV with Trans-West, 8 correct? 9 A. Could be. 10 Q. And I'm trying to find out what the 11 alternatives could be. If that's only one 12 alternative, what would the other alternatives be? 13 A. There could be SPIFs from a customer that 14 he sent me a deal in. 15 Q. The next tab, tab No. 8, in Deposition 16 Exhibit No. 35, is a transaction involving a 2008 17 Krystal. Am I saying that right? It's 18 K-r-y-s-t-a-l. 19 A. Krystal. 20 Q. Krystal. I'm sorry. I'm not in the 21 business. 22 And it's another vehicle that was sold -- 23 RV that was sold to Southwest Luxury, correct? 24 A. Yes. 25 Q. And if you go down several pages to 124 1 SWC252, that's your -- what you call your deal 2 jacket, correct? 3 A. Yes. 4 Q. And can you tell what you paid for this 5 vehicle? 6 A. No. 7 Q. Go one page up in the exhibit. And 8 there's a -- just a deal sheet, I guess, is what it 9 is. An admin sheet, they called it. 10 A. Yep. 11 Q. It says that the sale amount was 85,000. 12 Do you know how much you paid for it? 13 A. I don't. It's a Trans-West document, so 14 I don't know if they're all true and accurate. 15 Q. If you go another page, two -- another -- 16 it would be another page up. It looks like a -- 17 MR. FALBE: So that we're clear. What's 18 the Bates number? 19 MR. CAGE: I'm not sure yet. TW456. 20 MR. FALBE: Okay. 21 Q. BY MR. CAGE: Does that help you out with 22 what the price was? 23 A. Yes. 24 Q. I think -- What did you pay for it? 25 A. 85,000 it shows. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 17 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 32 (Pages 125 to 128) 125 1 Q. And then if you go back to your deal 2 sheet, you sold it to Freedom RV for 65,000, correct? 3 A. Yes. Another trade. 4 Q. Was there another trade involved in this 5 one? 6 A. No. This one was the trade. 7 Q. I'm sorry. I didn't hear you. 8 A. I just said it as another trade. Another 9 trade that they did. 10 Q. But there was only one vehicle involved 11 in this? 12 A. Yeah, one vehicle. 13 Q. Involved with the purchase from 14 Trans-West. So it looks like you lost 20 Gs on this 15 deal, right? 16 A. More than that, probably. Because we had 17 to transfer it -- or, we had to transport it. I 18 think we had another -- you look at our expenses, we 19 had a bunch more probably stuff done to it. 20 Q. And then -- And at about the same date, 21 you go to the last page of that tab, there's a check 22 to Mr. Mullins from Southwest? 23 A. Okay. 24 Q. It's for $7,500? 25 A. Okay. 126 1 Q. Was this related to that sale? 2 A. Can't tell you. 3 Q. Okay. Would you write a check to 4 Mr. Mullins in connection with a transaction where 5 you lost money? 6 A. It's a transaction-by-transaction deal. 7 So you know, I would have to look at everything at 8 the end of it. 9 Q. So you don't know? 10 A. What's that? 11 Q. You don't know -- 12 A. I would never. I would never on a losing 13 deal, no. 14 Q. Okay. So the $7,500 relates to some 15 other payment made to Mr. Mullins on another 16 transaction? 17 A. Yeah. I would have to look over my 18 documents. 19 Q. Your checks don't relate to a specific 20 transaction. Is there a record that relates to 21 specific transactions? 22 A. I believe we've given that to you. I'm 23 sure. 24 Q. What document is that, because I don't 25 recall? 127 1 A. I don't know. I've never seen. I don't 2 know. Accounting does it. 3 Q. So there may or may not be a document 4 that relates payments to transactions? 5 A. I believe we've given you all our 6 discovery stuff. 7 Q. I'm not saying you didn't. I'm just 8 asking -- I'm just trying to find out if there's an 9 actual document? 10 A. I would believe that there is, you know, 11 and it was given to you already. 12 Q. Okay. For example, we showed you -- I 13 showed you earlier a summary that summarized all the 14 checks written to Mr. Mullins. Both the summary that 15 we did, but also a summary that we got out of your 16 office? 17 A. Okay. 18 Q. But I couldn't find anything that related 19 that to a transaction. But you think a document like 20 that exists? 21 A. I'm not sure. 22 Q. Would you look at tab No. 9 in the same 23 exhibit. 24 A. Okay. 25 Q. Exhibit No. 35. This one deals with the 128 1 2012 Coachmen. 2 A. No. 9? 3 Q. Yes, sir. 4 A. Okay. 5 Q. And this -- The first page, which is 6 TW38, shows that it was sold to Southwest, correct? 7 That's what it shows? 8 A. That's what it says. 9 Q. And then if you go three pages -- third 10 page down, it's Trans-West's admin sheet, and, again, 11 it shows it was sold to Southwest for 35,000. Is 12 that what it indicates? 13 MR. FALBE: Objection. Form. 14 Foundation. It's Trans-West's document. 15 Q. BY MR. CAGE: Yeah. I'm going to get to 16 the one that shows that he sent it too. I'm not 17 trying to trick anybody here. I'm just trying to 18 figure it out. That's all. 19 So their admin sheet shows they sold it 20 for 35,000 to you, correct? 21 A. Like I said, I -- I don't know that it's 22 true and accurate. I would have to look at my 23 documentation. 24 Q. Let's go down two more pages so we can 25 look at your documentation. Okay? Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 18 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 44 (Pages 173 to 176) 173 1 of the other coach. They had them in inventory for 2 over 200 to 300 days. And you don't have the 3 documentation showing what I sold them for, I don't 4 believe. 5 Q. You sold the one vehicle to American -- I 6 mean, the American Eagle for $340,000, right, or is 7 that a combination of all of them? 8 A. No. 9 Q. No what? 10 A. Like I said, I overpaid for theirs; they 11 overpaid for mine. I lost money on their trades. 12 Q. And it looks like you paid Mr. Mullins 13 $66,875 on this transaction, correct? 14 A. Like I said, I don't know if it was for 15 this transaction. It could have been for another 16 transaction. 17 Q. But it's on this deal jacket? 18 A. Yes. 19 Q. Okay. And, again, the last page of the 20 exhibit shows a check to Mr. Mullins for $6,875, 21 correct? 22 A. It does. 23 Q. Now, underneath that, it says, I think 24 it's JMCV or KV. I'm not sure. $500. Do you know 25 what that is? 174 1 A. That's another SPIF. 2 Q. For 500? 3 A. Yes. 4 Q. To who? 5 A. JM -- it looks like JM RV Wholesale. 6 Q. And there's a check No. 360? 7 A. Okay. 8 Q. On June 5th, 2014? 9 A. Yep. 10 Q. And then on the right-hand side, it says, 11 "Wire 220" -- $220,000, and then it's got two trades, 12 correct? 13 A. Yes. 14 Q. Can you read the amounts of those trades 15 where it's stamped "posted"? 16 A. The amount of the trades? 17 Q. I guess what are those amounts there? 18 A. 65,000 and 55,000. Well, on this one 19 here, I can't read the amounts. 20 Q. You say "on this one here." Are you 21 talking about your -- what you call your deal sheet, 22 204? 23 A. Let's see. Give me a second here. The 24 amounts are 69,000 and 51,000. 25 Q. Let's see. I think I got it figured. If 175 1 you turn down to SWLC206. 2 A. Okay. 3 Q. That's your invoice to Trans-West, right? 4 A. Right. 5 Q. And it says, "American Eagle, 340,000"? 6 A. Right. 7 Q. And part of that was taken for 69,000 and 8 51,000 for the trades? 9 A. Right. Which both of them I lost money 10 on them. 11 Q. The cash difference was 220-? 12 A. Right. 13 Q. Okay. If you go down to tab 12. 14 A. Okay. 15 Q. First page of that is your deal sheet 16 SWLC276? 17 A. Okay. 18 Q. And this deals with a Newmar Mountain 19 Aire? 20 A. Yes. 21 Q. 2012. And you paid 235,000 for it? 22 A. Yes. 23 Q. And was there a trade? It looks like on 24 the right-hand side there were two trades? 25 A. Two trades. 176 1 Q. And you paid Mr. Mullins $14,850 in 2 commission on this deal, right? 3 A. Once again, I'm not exactly sure that it 4 was with us, but it's on the jacket. 5 Q. Well, if you look to the last page of the 6 exhibit, it's a check for $14,850 to Mr. Mullins 7 dated 5/20/14, which is almost the same date. Within 8 a day. 9 A. Okay. I see that. 10 Q. So it appears to relate to this 11 transaction? 12 A. Yes. 13 Q. And then there's a Tom -- I don't know if 14 it's Desmond? 15 A. Driver. 16 Q. Driver. Okay. 17 And then Perry D-o-d-d? 18 A. Detail. 19 Q. Detail. And it looks like there's two 20 trades referenced. Stock No. 5570 or 76, 70 and 21 5571. 22 A. Okay. 23 Q. So if I had those deal jackets, that 24 would explain that trade? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 19 of 21 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 45 (Pages 177 to 180) 177 1 Q. Do you know how you arrived at the 2 $14,850 paid to Mr. Mullins? 3 A. No formula. I just look at my net profit 4 and then decide. 5 Q. Tab 13. It's a 2011 Newmar Essex, 6 correct? 7 A. Yes. 8 Q. Is that correct? 9 A. Yes. 10 Q. And you paid -- I can't read that. Is 11 that 345 or 245? 12 A. I think it's 245. 13 Q. It looks like you sold it to Trans-West 14 for 350-, right? 15 A. I -- I'm not sure that it's that. 16 Q. Well, here. Look several pages down to 17 SWLC333, which is your invoice. That may clear it up 18 now that I'm figuring out how to read these things. 19 That's your invoice to Trans-West, right? 20 A. Yeah. But it looks like a trade, and it 21 doesn't show on here. I'm not seeing the trades in 22 here. Trade-in. 23 Q. Based on that invoice, it looks like you 24 paid 350-. And you took that payment in a trade for 25 a Monaco for 160- and you netted it out for 190-. 178 1 A. Oh, okay. 2 Q. Is that right? 3 A. Yes. Put $160,000 in the trade. 4 Q. And then on your deal jacket, what you 5 call your deal jacket sheet 329 -- page 329. You got 6 Jeff Mullins in there. And it looks like -- it looks 7 like a check to Jeff Mullins for an amount of -- I 8 can't hardly read it. It looks like it's scratched 9 out. Do you know? 10 A. I don't know. 11 Q. It looks like it's scratched out, and 12 then to the right-hand side, it says 13,000? 13 A. That's what it shows, but I'm not sure 14 what that's for. Like I said, I don't -- 15 Q. Look at the last page of the exhibit. 16 The tab of that exhibit. 17 A. Okay. 18 Q. That's the check for -- to Jeff Mullins 19 from you, Southwest, check No. 688 in the amount of 20 $13,000? 21 A. Okay. Yes. 22 Q. So it looks like you paid Mr. Mullins 23 $13,000 in connection with this deal, right? 24 A. It looks like that's a SPIF for 13,000, 25 yes. 179 1 Q. And Tom Desmond, again, that's a 2 delivery? 3 A. Yes. 4 Q. Okay. "Jerry L"? 5 A. Jerry LaFever. 6 Q. What's that for? Work done on the 7 vehicle? 8 A. No. That would be a SPIF also. 9 Q. And Jerry LaFever? 10 A. Yes. 11 Q. And that was $22,500? 12 A. Yes. 13 Q. And is he associated with a company? 14 A. I believe he has his own company. 15 Q. Okay. 16 A. Independent. 17 Q. And there's a couple numbers I haven't 18 seen here. On the left-hand side, it says "Warranty, 19 date mailed, service contract, and as is." And then 20 it's got a date, 8/13/14, and then a couple of 21 numbers, 0668 and 0661. Do you know what those 22 numbers refer to? 23 A. I don't. 24 Q. Did you send out contracts with those 25 numbers or information to the buyer with those 180 1 numbers? 2 A. No. 3 Q. Okay. And then on the right-hand side, 4 there's a "Cash deposited, 190,000." Is that what 5 that says? 6 A. Yeah. But we've never taken $190,000 7 cash, so I'm not familiar with that. 8 Q. Well -- 9 A. Here's where it's -- there's a memo 10 there. 11 Q. If you go down to page 331, what is that? 12 A. It looks like a $190,000. So it looks 13 like there was a trade somewhere involved in it. It 14 says Trans-West $190,000. 15 Q. And it says "Please send to Crystal 16 ASAP." 17 A. I don't know what that means. 18 Q. But there's a note "Newmar Essex"? 19 A. So there's a trade involved in this 20 coach. 21 Q. What's that I was looking for. 22 A. Yes. 23 Q. Oh, I see. I see. That's the Monaco 24 Executive? 25 A. Yes. Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 20 of 21 Case 1:15-cv-02233-RM-MJW Document 117-10 Filed 07/28/16 USDC Colorado Page 21 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-02233-RM-MJW TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Plaintiff, v. SOUTHWEST LUXURY COACH SALES, LLC; and SCOTT BUCHANAN, Defendants. ______________________________________________________________________________ SOUTHWEST LUXURY COACH SALES, LLC, Counterclaim Plaintiff v. TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Counterclaim Defendant. ______________________________________________________________________________ AFFIDAVIT OF SCOTT BUCHANAN IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Scott Buchanan being sworn and competent to be a witness in this case, and having personal knowledge states and testifies as follows: 1. I am the owner, sole manager, and a member of Southwest Luxury Coach Sales, LLC (“Southwest”). I have knowledge of the factual matters set forth in this Affidavit or I have verified them from reliable sources. 2. Southwest is a wholesale RV dealer that, except for in rare circumstances, does not engage in the retail sale of RVs. Southwest, almost exclusively, buys and sells RVs with other RV dealers or RV auctions. Case 1:15-cv-02233-RM-MJW Document 117-11 Filed 07/28/16 USDC Colorado Page 1 of 4 2 3. In Southwest’s dealings with retail dealerships, the dealership never provides Southwest with a written copy of the dealership’s policies and procedures relating to matters such as sale terms, required approvals, and permissible employee compensation. Instead, Southwest relies on representatives of the dealership to inform Southwest of any such policies or procedures. 4. In approximately February 2013, Southwest began entering into transactions with Trans-West, Inc. (“Transwest”) for the purchase, sale, and trade of RVs. 5. Southwest’s sole point of contact at Transwest during the relevant transactions was Transwest’s sales manager Jeffrey Mullins (“Mullins”); Southwest did not negotiate or otherwise discuss any of the transactions at issue in this lawsuit with any other Transwest representative. 6. I did not meet Mullins in person until after this lawsuit began. 7. I only communicated with Mullins through email, text message, and telephone during the time period relevant to this lawsuit-approximately February 2013 through June 2015. 8. In Southwest’s dealings with Transwest, Transwest never informed Southwest of Transwest’s policies and procedures relating to matters such as sale terms, required approvals, and permissible employee compensation. Southwest relied on Mullins to undertake transactions with Southwest in a manner that complied with whatever policies and procedures Transwest may have. At no time did Southwest have any reason to believe that any of its dealings with Transwest did not comply with Transwest’s policies and procedures. 9. Mullins expressed and implied to Southwest that he had authority from Southwest to engage in all dealings he had with Southwest. Mullins never expressed or implied to Southwest that his acceptance of payments was not authorized by Transwest. To the contrary, Mullins expressed and implied that his acceptance of payments was authorized by Transwest. All Case 1:15-cv-02233-RM-MJW Document 117-11 Filed 07/28/16 USDC Colorado Page 2 of 4 3 of these express and implied representations were consistent with the position Transwest had given Mullins. 10. Mullins never informed Southwest that Transwest prohibited him from accepting payments. At no time did Mullins ever inform any Southwest representative that accepting payments from Southwest violated any policy or practice of Transwest. 11. The payments paid to Mullins by Southwest were not paid under the table. Mullins represented to Southwest that he disclosed all terms of all transactions with Southwest, including payments, to Transwest. Mullins never represented to any Southwest representative that he was concealing terms, including payments from Southwest to Mullins, from Transwest. 12. The payments to Mullins were not intended to be part of the RV transactions at issue. 13. The payments to Mullins were determined after the transactions at issue were completed; were based, in part, on the profit to Southwest resulting from the RV transactions, and were intended to be payments to Mullins made in an effort to thank Mullins for providing Southwest with a profitable transaction and to promote Southwest as a good client for Mullins to reach out to in the future when other profitable transaction opportunities became available. 14. Southwest would not have paid to Transwest the funds given to Mullins under any circumstances without an express understanding to do the same. 15. Southwest transferred temporary possession of a Dynamax RV (the “Dynamax”) to Transwest for the sole purpose of selling the Dynamax to a third party. 16. Southwest understood that the Dynamax needed no more than $1,500 of repairs when Southwest delivered the Dynamax to Transwest. Case 1:15-cv-02233-RM-MJW Document 117-11 Filed 07/28/16 USDC Colorado Page 3 of 4 Case 1:15-cv-02233-RM-MJW Document 117-11 Filed 07/28/16 USDC Colorado Page 4 of 4 EXHIBIT 12 Buyers Order and Invoice, dated February 22, 2013 Southwest will supplement upon ruling regarding Defendants’ Motion to File Exhibits 12, 13, 15, and 16 to Their Motion for Summary Judgment Under Level 1 Seal [114] Case 1:15-cv-02233-RM-MJW Document 117-12 Filed 07/28/16 USDC Colorado Page 1 of 1 EXHIBIT 13 Transwest Employee Handbook labeled TW000850-919 Southwest will supplement upon ruling regarding Defendants’ Motion to File Exhibits 12, 13, 15, and 16 to Their Motion for Summary Judgment Under Level 1 Seal [114] Case 1:15-cv-02233-RM-MJW Document 117-13 Filed 07/28/16 USDC Colorado Page 1 of 1 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLORADO 3 TRANS-WEST, INC., dba TRANSWEST ) 4 TRUCK TRAILER RV, ) ) 5 Plaintiff, ) ) 6 vs. ) Civil Action No. ) 15-cv-02233-MJW 7 SOUTHWEST LUXURY COACH SALES, LLC, ) and SCOTT BUCHANAN, ) 8 ) Defendants. ) 9 ) 10 11 12 13 DEPOSITION OF SCOTT BUCHANAN 14 15 16 Phoenix, Arizona June 20, 2016 17 10 a.m. 18 19 20 21 22 23 24 25 Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 Court Reporting, Legal Videography, and Videoconferencing EXHIBIT 14 Case 1:15-cv-02233-RM-MJW Document 117-14 Filed 07/28/16 USDC Colorado Page 1 of 6 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. SCOTT BUCHANAN 6/20/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 9 (Pages 33 to 36) 33 1 A. It appears to be. 2 MR. FALBE: Wait. 3 Q. BY MR. CAGE: You may want to look 4 through it because there are a number of pages there. 5 They're all checks written to Mr. Mullins or to his 6 related company -- or, checks to his related company 7 from Southwest, correct? 8 A. Correct. 9 Q. Thank you. 10 I had asked you at your previous 11 deposition whether you had ever added up the total 12 number of dollars that were sent to Mr. Mullins via 13 check from Southwest. And you -- you said you 14 hadn't? 15 A. Yeah. 16 Q. Since then, have you done that? 17 A. I haven't. 18 Q. Okay. 19 A. I saw it on the -- your deal. Whatever. 20 Q. On the summary sheet? 21 A. Yeah. Whatever it was. 22 Q. Did you have any reason to believe that 23 summary sheet was not a correct addition? 24 A. I mean, a lot of documents that you guys 25 did were not accurate, so ... 34 1 Q. So you're not aware? 2 A. Yeah. I don't know if it's accurate. 3 Q. But if we added up all those checks in 4 Exhibit 25, that should come to the total, correct? 5 A. I'm not sure. I don't know what exactly 6 you guys have. 7 Q. But if I added all the checks in Exhibit 8 25, that would add up to all the amounts that 9 Southwest paid Mr. Mullins, correct? 10 A. I don't know. 11 Q. Would there be some other checks that 12 were out there? 13 A. You know what? I haven't -- I haven't 14 added it up, so I don't know. 15 Q. I'm not asking you to add it up. I was 16 just saying, if I added them up and I added them up 17 correctly, that would be the total? 18 A. I've looked at some of your guys' stuff, 19 and it's not always accurate, so I wouldn't say that 20 it is. I would have to do it myself, yes. 21 Q. Okay. So -- 22 MR. FALBE: Jim, you're asking him for 23 completeness on Exhibit 25, which he can't possibly 24 answer. 25 Q. BY MR. CAGE: So there may be more checks 35 1 out there that are not contained in Exhibit 25? 2 A. We gave you everything that we had. 3 Q. Okay. Thank you. 4 In paragraph 28, it says, "Trans-West 5 agreed to sell a Dynamax RV, the VIN number, Dynamax, 6 and owned by Southwest on a consignment basis." 7 Do you know what the terms and conditions 8 of that assignment were? 9 MR. FALBE: Objection. You're asking him 10 about Trans-West's information. This is his personal 11 deposition. 12 Q. BY MR. CAGE: Do you have any personal 13 knowledge what the terms and conditions of the 14 consignment would be? 15 A. You guys were going to sell it. 16 Trans-West. 17 Q. Okay. And -- and -- And where was the 18 transfer of the title going to occur? 19 A. Once they sold. 20 Q. Who would it be transferred to? The 21 ultimate purchaser or to Trans-West and then the 22 ultimate purchaser? 23 A. It would have been to Trans-West. They 24 sold the unit or had the coach sold. 25 Q. I maybe misunderstood you. I apologize. 36 1 I didn't quite hear you, maybe. 2 Are you saying that -- I mean, this 3 Dynamax was titled in the name of Southwest, correct? 4 A. Yes. 5 Q. And then it physically went up to 6 Trans-West's location in Colorado, correct? 7 A. Yes. 8 Q. And then Trans-West, according to your 9 testimony, was in -- was authorized to sell it? 10 A. Yes. 11 Q. And how would they have done that? Would 12 the title have passed directly from Southwest to the 13 ultimate consumer, or would it have passed from 14 Southwest to Trans-West to the ultimate consumer? 15 A. I'm not a licensed dealer in Colorado. I 16 could not do that. So I would have to go through 17 Trans-West. 18 Q. Okay. So the transfer would have gone to 19 Trans-West and then to the ultimate consumer? 20 A. Yes. 21 Q. Thank you. 22 And in connection with that consignment, 23 were there any other terms or conditions in 24 connection with that? 25 A. Huh-uh. Case 1:15-cv-02233-RM-MJW Document 117-14 Filed 07/28/16 USDC Colorado Page 2 of 6 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. SCOTT BUCHANAN 6/20/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 10 (Pages 37 to 40) 37 1 Q. If Trans-West incurred any costs in 2 connection with that vehicle to winterize it or to -- 3 or to clean it or fuel it, who would have paid those 4 costs? 5 A. That would be Trans-West because they 6 sold the coach or were selling the coach. 7 Q. So -- but the -- but the idea was to pass 8 those costs on to the ultimate consumer? 9 A. It's their -- their deal. 10 Q. Okay. Was there a price set on how much 11 they could sell it for? 12 A. They told me they sold it for $90,000. 13 Q. I thought this was the vehicle that came 14 back to you? 15 A. It's the vehicle they held for ransom. 16 When we came back, they put $27,000 when there was 17 only $1,500 worth of repairs on it, yes. And there 18 was no written authorization for it, right? They 19 broke Colorado laws, yes, they did. You got it. 20 Q. You're an expert on Colorado law, but not 21 California law? 22 A. You know what, you're right because, you 23 know what? You guys held my -- took my coach and 24 held it for ransom. 25 Q. Okay. But my question is related to the 38 1 sale. 2 A. Yeah. 3 Q. And you said they sold it for 90,000? 4 A. Right. 5 Q. Did they sell it? 6 A. You know what? Apparently not. 7 Q. Okay. Did they have a buyer for 90,000; 8 do you know? 9 A. Not for 90,000. They were making money 10 on it. 11 Q. Who "they"? 12 A. Trans-West. 13 Q. Okay. And did they -- 14 A. Salesman Wade. 15 Q. Pardon me? 16 A. Salesman Wade. 17 Q. Wade? 18 A. Yes. 19 Q. Is the name of the salesman? 20 A. Check it out. 21 Q. And did you have a conversation with 22 Mr. Wade? 23 A. I actually did. 24 Q. And what did Mr. Wade -- 25 A. Told me he had it sold. 39 1 Q. Just let me finish the question. 2 Please tell me what your conversation was 3 with Mr. Wade. 4 A. I just asked him what had happened. 5 Q. And when was that, sir? 6 A. I don't remember. Months ago. 7 Q. Oh, after the litigation started? 8 A. Yes. 9 Q. And what exactly did Wade tell you? 10 A. He had it retailed. 11 Q. And? 12 A. Apparently, they didn't get it retailed. 13 Q. So Mr. Wade thought they had a sale to 14 somebody for $90,000, correct? 15 A. No. 90,000 was to me. 16 Q. And did Mr. Wade tell you what he thought 17 he had it retailed for? 18 A. 114-. 19 Q. So under the terms of the consignment, 20 you authorized Trans-West to sell the vehicle for 21 90,000 or more? 22 A. 90,000 is what they were paying me. 23 Q. And so you authorized them to sell the 24 vehicle for 90,000 or more, correct? 25 A. 90,000 is what I told them that I would 40 1 take for it. 2 Q. And did Mr. Wade tell you why that sale 3 fell through at 114,000? 4 A. No. 5 Q. Did Mr. Wade tell you or anybody from 6 Trans-West tell you who the potential purchaser was? 7 A. No. 8 Q. And that Dynamax, did you ultimately sell 9 it? 10 A. I just sold it because I thought I had to 11 hold it until the litigation was over. 12 Q. And what was the sales price? 13 A. Sales price, to me, after this long was 14 $80,000. 15 Q. And do you know what the consumer paid 16 for it? 17 A. I don't. 18 Q. Approximately? 19 A. I don't. 20 Q. Who was the seller? 21 A. SportTruck RV. 22 Q. SportTruck RV? 23 A. Yep. 24 Q. And they are located in? 25 A. Chandler. Case 1:15-cv-02233-RM-MJW Document 117-14 Filed 07/28/16 USDC Colorado Page 3 of 6 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. SCOTT BUCHANAN 6/20/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 28 (Pages 109 to 112) 109 1 comprehensive estate planning system? 2 A. Three years ago. 3 Q. Okay. And how often do they talk to you 4 about this? 5 A. All the time. 6 Q. Okay. When you say "all the time," would 7 you say, like, three or four times a year or three or 8 four times a month or three or four times a week? 9 A. Three or four times a month. 10 Q. Okay. You know, is this a function of 11 your parents encouraging you to come up with an 12 estate plan? 13 A. Yes. 14 MR. CAGE: Objection. Form. Foundation. 15 Leading. 16 You may answer. 17 Q. BY MR. FALBE: Does this have anything to 18 do with the litigation at all? 19 A. No. 20 Q. Okay. Do you know -- Do you know who 21 prepared your estate planning documents? 22 A. Yes. 23 Q. And who was that? 24 A. Robert Traica. 25 Q. And is he a family lawyer? 110 1 A. Yes. 2 Q. Okay. So did he provide estate planning 3 work for other members of your family? 4 A. Yes. 5 Q. Okay. Please direct your attention to 6 Exhibit 51. At the top of it, it says "Carefree 7 Resorts." Take your time. I know I go fast. 8 A. You think? 9 Q. It just wasn't marked as 51 on your copy. 10 A. That's what threw me off. 11 Q. You do see the letter dated January 21, 12 2016. We'll assert -- or, Mr. Cage has represented 13 that this was previously marked as Exhibit 51. 14 Do you see that? 15 A. Yes. 16 Q. Does Southwest pay SPIFs to National 17 Indoor? 18 A. Yes. 19 Q. Does it pay it to Carefree Resort Homes? 20 MR. CAGE: Objection. Form. Foundation. 21 Leading. 22 THE WITNESS: Yes. 23 Q. BY MR. FALBE: Okay. Is this an example 24 of a dealership who communicated their policy to 25 Southwest? 111 1 A. Yes. 2 MR. CAGE: Same objection. 3 Q. BY MR. FALBE: And how did they do that? 4 A. By verbally. 5 Q. Okay. And did they also send a letter 6 indicating their policy? 7 A. Yes. 8 Q. Okay. And does this letter indicate that 9 they have a policy? 10 A. Yes. 11 MR. CAGE: Same objection. 12 Q. BY MR. FALBE: And does this policy 13 indicate that they would like for you to pay the 14 dealership, as opposed to the individual employee? 15 MR. CAGE: Same objection. 16 THE WITNESS: Yes. 17 THE COURT REPORTER: Okay. You have to 18 wait for him to object. 19 Q. BY MR. FALBE: Did you receive any kind 20 of letter like this from Trans-West? 21 A. No. 22 Q. Could Trans-West have issued you a letter 23 like this? 24 MR. CAGE: Same objection. 25 Q. BY MR. FALBE: I'm sorry -- Southwest a 112 1 letter like this? 2 MR. CAGE: Same objection. 3 THE WITNESS: Yes. 4 Q. BY MR. FALBE: Okay. Did they ever issue 5 you a letter like this? 6 A. No. 7 MR. CAGE: Same objection. 8 Q. BY MR. FALBE: Did they ever issue you a 9 letter indicating that you weren't allowed to pay 10 their employees SPIFs? 11 A. No. 12 MR. CAGE: Same objection. 13 Q. BY MR. FALBE: Okay. Could they have 14 sent a letter? 15 MR. CAGE: Same objection. 16 THE WITNESS: Yes. 17 Q. BY MR. FALBE: Okay. How did Carefree 18 Resort Homes ever find out that you paid their 19 employee directly -- or, that Southwest paid their 20 employee directly? I misspoke. 21 A. Checks. 22 Q. Okay. So they found out that a check was 23 there. Was this part of their own internal 24 accounting and review policy? 25 MR. CAGE: Same objection. Case 1:15-cv-02233-RM-MJW Document 117-14 Filed 07/28/16 USDC Colorado Page 4 of 6 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC SCOTT M. BUCHANAN 3/7/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 29 (Pages 113 to 116) 113 1 Deposition Exhibits 37 and 38. I would represent to 2 you that Exhibit 37 contains 18 tabs dealing with 18 3 vehicles that Southwest sold to Trans-West. 4 A. Okay. 5 Q. And Exhibit 38 is kind of a spreadsheet 6 that we put together -- my office put together which 7 kind of details some of the information concerning 8 those sales. 9 The first sale in here is a sale dated -- 10 it's your sales jacket, first page, as I understand 11 it, and it's dated 2/28/13, which is almost the same 12 date as the sale we were talking about in Exhibit 35, 13 tab 1. 14 Do you know if this is the other vehicle 15 you're referring to? 16 A. It is. 17 Q. It is. 18 So now that you have this documentation, 19 can you explain to me exactly what the transaction 20 was? 21 A. Simple. 22 Q. Okay. 23 A. I ACV'd their coach at $375,000. 24 Q. Got it. 25 A. And then I basically -- they wanted me to 114 1 write a check for $475,000. 2 Q. And you say "they," that would have been 3 Mullins. Mr. Mullins? 4 A. Well, I believe Jeff always had to go 5 through -- he would always say he had to go someplace 6 else and get it -- get it signed off on. So that 7 would probably be the Mr. Lyons, I think it is. 8 Q. Okay. But your conversation was always 9 with Mr. Mullins, correct? 10 A. Yeah, but he never -- he always had to go 11 and have it approved. 12 Q. Right. But you're talking to Mullins? 13 A. Right. I don't know if they were both in 14 the room together. I wasn't there. I don't know 15 about how it works. 16 Q. Okay. 17 A. So anyways. 375-, they were in it 475-. 18 So they marked theirs -- they want me to pay 475- for 19 theirs, and then I marked mine up because they owed 20 me $100,000 on the -- on the other one. So it was 21 basically a trade. 22 Q. You say you marked yours up on the other 23 one. You're referring to what is -- tab 1 is a 24 Parliament 2008 Prevost? 25 A. Yes. Yes. 115 1 Q. And tell me how you marked that up. 2 A. I said, "I want X for mine." And Jeff 3 said, "I need 475- out of mine." I said, so ... 4 Q. What's the "X" for yours that you wanted? 5 A. Take the $100,000 that they owed me on 6 the deal off, and that would been $450,000. 7 Q. But the transaction sheet -- or, the sale 8 jacket sheet, tab 1 in Deposition Exhibit No. 37 9 indicates that you paid $400,000 for the American 10 Monarch -- I'm sorry -- for the Parliament -- 11 A. For the Parliament, 2008. 12 Q. -- and it looks like you sold it for 13 550-? 14 A. Right. 15 Q. Well, that's $150,000 markup from what 16 you had in it, right? 17 A. Uh-huh. 18 Q. Is that yes? 19 A. Yes. 20 Q. Okay. So if I wanted to compare when 21 there's a trade, it would be done on or about the 22 same date as a purchase and a sale, correct? 23 A. Yeah. 24 Q. Got it. 25 Now, I was -- We can go through the 116 1 first -- I want to say six sales in Deposition 2 Exhibit 35, which is sales to Trans-West. And you 3 can look at those, but it might be easier just to 4 look at the summary. There's a column in the summary 5 sheet that says, "Amount of KB," which stands for 6 kickback, or, in your parlance, a SPIF. 7 And for the first six sales that we show 8 to Southwest from Trans-West, there are no payments 9 to Mr. Mullins. And we can go through each exhibit, 10 but I'm just going to ask you to assume that so we 11 don't have to go through each one of these exhibits 12 and -- 13 MR. FALBE: Objection. We're not going 14 to assume that. 15 Q. BY MR. CAGE: I'm going to assume there 16 was no kickbacks. 17 If there weren't any during that period 18 of time, why not? 19 A. Well, first of all, I don't know what the 20 kickback word is that you're saying. They're SPIFs, 21 Jim. We've already talked that. 22 Q. You have a characterization of them and I 23 have a characterization of them. 24 A. Okay. 25 Q. That's fine. I said kickbacks or SPIFs. Case 1:15-cv-02233-RM-MJW Document 117-14 Filed 07/28/16 USDC Colorado Page 5 of 6 Case 1:15-cv-02233-RM-MJW Document 117-14 Filed 07/28/16 USDC Colorado Page 6 of 6 EXHIBIT 15 Sales Contracts, dated February 2013-June 2015 Southwest will supplement upon ruling regarding Defendants’ Motion to File Exhibits 12, 13, 15, and 16 to Their Motion for Summary Judgment Under Level 1 Seal [114] Case 1:15-cv-02233-RM-MJW Document 117-15 Filed 07/28/16 USDC Colorado Page 1 of 1 EXHIBIT 16 Checks to Jeffrey Mullins, dated December 23, 2013-May 27, 2015 Southwest will supplement upon ruling regarding Defendants’ Motion to File Exhibits 12, 13, 15, and 16 to Their Motion for Summary Judgment Under Level 1 Seal [114] Case 1:15-cv-02233-RM-MJW Document 117-16 Filed 07/28/16 USDC Colorado Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 15-cv-02233-RM-MJW TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Plaintiff, v. SOUTHWEST LUXURY COACH SALES, LLC; and SCOTT BUCHANAN, Defendants. ______________________________________________________________________________ SOUTHWEST LUXURY COACH SALES, LLC, Counterclaim Plaintiff v. TRANS-WEST, INC., dba TRANSWEST TRUCK TRAILER RV, Counterclaim Defendant. ______________________________________________________________________________ AFFIDAVIT OF TURNER REANEY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Turner Reaney being sworn and competent to be a witness in this case, and having personal knowledge states and testifies as follows: 1. I am an employee of Southwest Luxury Coach Sales, LLC (“Southwest”). I have knowledge of the factual matters set forth in this Affidavit or I have verified them from reliable sources. 2. Southwest is the owner and has the right to possess and use a 2007 Dynamax Dynaquest 320 motor home (the “Dynamax”) described as follows: 2007 DYNX 16M 1FVACWDD76HW49546. EXHIBIT 17 Case 1:15-cv-02233-RM-MJW Document 117-17 Filed 07/28/16 USDC Colorado Page 1 of 2 Case 1:15-cv-02233-RM-MJW Document 117-17 Filed 07/28/16 USDC Colorado Page 2 of 2 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF COLORADO 3 TRANS-WEST, INC., dba TRANSWEST ) 4 TRUCK TRAILER RV, ) ) 5 Plaintiff, ) ) 6 vs. ) Civil Action No. ) 15-cv-02233-MJW 7 SOUTHWEST LUXURY COACH SALES, LLC, ) and SCOTT BUCHANAN, ) 8 ) Defendants. ) 9 ) 10 DEPOSITION OF TURNER REANEY Phoenix, Arizona 11 May 12, 2016 10:05 am 12 13 DEPOSITION OF TURNER REANEY commenced at 10:05 a.m., on May 12, 2016, at the Law Offices of Gerald D. Sherrill, 14 9927 East Bell Road, Suite 120, Scottsdale, Arizona, before Kristy A. Ceton, RPR, Arizona Certified 15 Court Reporter No. 50200. 16 17 18 19 20 21 22 23 24 25 Hunter+Geist, Inc. 303.832.5966 800.525.8490 www.huntergeist.com scheduling@huntergeist.comDenver, CO 80203 Your Partner in Making the Record 1900 Grant Street, Suite1025 Court Reporting, Legal Videography, and Videoconferencing EXHIBIT 18 Case 1:15-cv-02233-RM-MJW Document 117-18 Filed 07/28/16 USDC Colorado Page 1 of 4 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. TURNER REANEY 5/12/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 28 (Pages 109 to 112) 109 1 Q. And you've seen documents from Trans-West 2 before this litigation, right? 3 A. Yes, I have. 4 Q. Did it ever have Trans-West's logo on it? 5 A. It did. 6 Q. Did that indicate to you that they were a 7 licensed dealership? 8 MR. FLYNN: Object to form. 9 THE WITNESS: It did, yes. And they 10 carried new product. I would assume you would have 11 to be a licensed dealer to sell new product. 12 Q. BY MR. FALBE: Why do you think that? 13 A. I don't think a manufacturer would allow 14 an unlicensed business to go and sell their product. 15 Q. Do you see Scott Buchanan's T-shirt? 16 A. Yes, I do. 17 Q. What does it say on it? 18 A. It says "golf tournament." 19 MR. FLYNN: Object to form. 20 THE WITNESS: "2014. Trans-West Truck 21 Trailer RV First Annual Outdoor Resort, Indio, 22 California." 23 Q. BY MR. FALBE: What do you think that 24 T-shirt is? 25 MR. FLYNN: Object to form. Foundation. 110 1 THE WITNESS: It looks to be some sort of 2 promotional item handed out at a golf tournament, 3 possibly sponsored by Trans-West. 4 MR. FLYNN: Also, I'll object to this is, 5 again, an exhibit that's not in evidence. 6 Also, Mr. Falbe is attempting to elicit 7 testimony that is subject to a protective order 8 entered by the Court. 9 MR. FALBE: You asked about whether there 10 were advertisements. I saw a T-shirt. 11 Q. BY MR. FALBE: Did you ever arrange for 12 delivery of an RV outside the state to -- an RV that 13 Southwest sold to Trans-West outside the state of 14 Colorado? 15 A. I did. 16 Q. Where was that? 17 A. Indio, California. 18 MR. FLYNN: Same objection. This 19 testimony is subject to a protective order that has 20 been entered by the Court. 21 MR. FALBE: And just to clarify the 22 record, is it your belief that that protective order 23 also applies to all counterclaims as well? Or does 24 that just apply to -- 25 MR. FLYNN: We had a discussion off the 111 1 record earlier where I asked whether you would agree 2 if I inquire into California, subject to the 3 counterclaim. You said no, that if I did that, you 4 would argue that we had waived the protective order. 5 With that understanding, I have not 6 inquired into California due to the protective order 7 entered by the Court. So, yes, my position is it 8 does apply to the counterclaims because that seems to 9 be your position. 10 MR. FALBE: I haven't taken an official 11 position on the record. I'm asking you what your 12 position is right now. 13 MR. FLYNN: Yes. My position right now 14 is that the protective order applies to all discovery 15 that has to do with California. 16 MR. FALBE: So that your -- your 17 questions about California issues would have been 18 inappropriate. 19 MR. FLYNN: That's why I asked you since 20 you this morning filed an objection to the order 21 whether we could come to an agreement whether I could 22 inquire into California within the four corners of 23 the counterclaim. You indicated that you would not 24 agree to that, which is why I did not inquire into 25 California during my inquiry. 112 1 MR. FALBE: But you did request to 2 inquire into those counterclaims because you thought 3 they were relevant? 4 MR. FLYNN: I requested because they are 5 in your counterclaim, which, clearly, Trans-West does 6 not think has merit based on our motion to dismiss. 7 However, we did not come to any sort of agreement, so 8 the protective order is still in place. 9 Q. BY MR. FALBE: Are you familiar with -- 10 I'm going to refer you to Exhibit 56, page 10, item 11 28. Do you see where it says "Trans-West agreed to 12 sell a Dynamax RV" with a VIN number there? 13 A. I do. 14 Q. Are you familiar with that vehicle? 15 A. I am. 16 Q. Did Trans-West ever provide a written 17 authorization or written waiver of written 18 authorization to make repairs to the Dynamax? 19 A. No, they did not. 20 Q. Is that something they would have sent to 21 you? 22 A. It would be, yes. 23 Q. Is that part of your job as administering 24 these kinds of claims? 25 A. Yes, I would review to see what kind of Case 1:15-cv-02233-RM-MJW Document 117-18 Filed 07/28/16 USDC Colorado Page 2 of 4 Trans-West, Inc. v. Southwest Luxury Coach Sales, LLC, et al. TURNER REANEY 5/12/2016 scheduling@huntergeist.com HUNTER + GEIST, INC. 303-832-5966/800-525-8490 29 (Pages 113 to 116) 113 1 work was being done and whether or not the pricing 2 was in line with what needed to be done. 3 Q. And were you present during some of the 4 deposition testimony where Trans-West testified that 5 as a policy, they don't provide written estimates for 6 repairs? 7 A. I think that was one I was absent for. 8 Q. Are you aware that Southwest made a 9 written demand for its damages from Southwest (sic) 10 by certified letter on March 25, 2016? 11 A. Yes, I am. 12 Q. To your knowledge, have you received any 13 payments for that demand? 14 A. No, we have not. 15 Q. When I say "you," I mean Southwest? 16 A. Southwest. No. 17 Q. Have you had an opportunity to review 18 Trans-West's handbook during the course of this 19 litigation? 20 A. I did, yes. 21 Q. Have you heard testimony about 22 Trans-West's employee handbook? 23 A. I did. 24 Q. Do you understand there's a policy 25 against employees receiving gifts? 114 1 A. I do. 2 MR. FLYNN: Object to foundation. 3 Q. BY MR. FALBE: Do you also -- have you 4 heard testimony or do you understand that this 5 employee handbook also has a requirement that all 6 gifts be returned to the giver? 7 A. Yes. 8 MR. FLYNN: Object to foundation. 9 THE WITNESS: With a note of explanation. 10 Q. BY MR. FALBE: Okay. Please continue. I 11 didn't mean to interrupt. 12 A. No. I said that all gifts must be 13 returned with a note of explanation. 14 Q. And is that from your memory from 15 reviewing the documents? 16 A. Yes. 17 Q. Okay. And just under your 18 interpretation, any amounts that were paid to Jeff 19 Mullins as an employee should have to be returned to 20 Southwest? 21 A. Yes. 22 Q. Do you believe that the failure to 23 disclose the operating of an unlicensed dealership 24 would be a misrepresentation? 25 MR. FLYNN: Objection to form and 115 1 foundation. 2 THE WITNESS: Yes, it would. 3 Q. BY MR. FALBE: If Trans-West was 4 operating an unlicensed dealership, would that be an 5 act of omission, misrepresentation, or practice? 6 MR. FLYNN: Object to form. Calls for a 7 legal conclusion. 8 THE WITNESS: It would be, yes. 9 Q. BY MR. FALBE: Does Southwest make 10 repairs to vehicles? 11 A. In-house, no. 12 Q. Is there a reason for that? 13 A. We have no facility and don't care to be 14 in the service business. 15 Q. Do you think that there's a certain 16 amount of liability that's associated with that? 17 A. It's big because when I investigated our 18 insurance, it added a whole other portion to our 19 policy that we had no interest in being involved in. 20 Q. Do you believe that you could offer 21 repair services in the state of California? 22 MR. FLYNN: Objection. 23 MR. FALBE: I'm asking about Southwest's 24 ability to offer repairs. 25 THE WITNESS: Southwest could not, no. 116 1 Q. BY MR. FALBE: Why do you believe 2 Southwest couldn't offer repair services in the state 3 of California? 4 A. We have -- 5 MR. FLYNN: Same objection. 6 Sorry, Mr. Reaney. 7 Same objection. Discovery into 8 California is barred by protective order that's been 9 entered by the Court. 10 MR. FALBE: And what do you believe that 11 that objection is? Do you believe that it applies 12 to, like, what Southwest does? 13 MR. FLYNN: You're seeking discovery into 14 California. And that's been -- there's a blanket 15 protective order. 16 MR. FALBE: There's a blanket protective 17 order on -- Please explain that because I don't 18 believe that the protective order covers any of this. 19 MR. FLYNN: You're asking about one of 20 the parties' conduct in California. And there's a -- 21 MR. FALBE: Southwest's conduct; not 22 Trans-West's. 23 MR. FLYNN: And there is a protective 24 order into discovery matters into California. So I 25 will stand on the objection. Case 1:15-cv-02233-RM-MJW Document 117-18 Filed 07/28/16 USDC Colorado Page 3 of 4 Case 1:15-cv-02233-RM-MJW Document 117-18 Filed 07/28/16 USDC Colorado Page 4 of 4 Snell & Wilmer _____________ L.L.P _____________ LAW OFFICES 1200 Seventeenth Street Suite 1900 Tabor Center Denver, CO 80202 303.634.2000 303.634.2020 (Fax) www.swlaw.com D E N V E R L A S V E G A S L O S A N G E L E S L O S C A B O S O R A N G E C O U N T Y P H O E N I X R E N O S A L T L A K E C I T Y T U C S O N Snell & Wilmer is a member of LEX MUNDI, The Leading Association of Independent Law Firms. Scott C. Sandberg 303.634.2010 ssandberg@swlaw.com February 25, 2016 VIA CERTIFIED MAIL Trans-West, Inc., dba Transwest Truck Trailer RV c/o James Cage Andrew Flynn Moye White LLP 16 Market Square 1400 16th Street Denver, CO 80202 RE: DEMAND PURSUANT TO C.R.S. § 42-9-113 Dear Mr. Cage: We write this letter on behalf of our client, Southwest Luxury Coach Sales, LLC (“Southwest”), to make a written demand pursuant to C.R.S. § 42-9-113 for damages owing by your client, Trans-West, Inc., dba Transwest Truck Trailer RV (“Transwest”) arising from Transwest’s failure to comply with Colorado’s Motor Vehicle Repair Act of 1977, C.R.S. § 42- 9-101 et seq. Specifically: 1. Transwest agreed to sell Dynmax RV (VIN 1FVACWDD76HW49546) (the “Dynamax”) owned by Southwest on a consignment basis. 2. When Southwest purchased the Dynmax an independent third party evaluation inspection identified $1,550 of repairs that were needed. 3. Transwest never received authorization or a written waiver of written authorization to make repairs to the Dynamax in compliance with C.R.S. § 42-9- 104. 4. Yet, Transwest claims to have made $26,702.03 of repairs and has filed suit against Southwest for that amount. Pursuant to C.R.S. § 42-9-113, Southwest demands that Transwest pay Southwest the following amounts: EXHIBIT 19 Case 1:15-cv-02233-RM-MJW Document 117-19 Filed 07/28/16 USDC Colorado Page 1 of 3 Snell & Wilmer _____________ L.L.P _____________ James Cage Andrew Flynn DEMAND PURSUANT TO C.R.S. § 42-9-113 February 25, 2016 Page 2 Depreciation $6,300 Lost use $19,000 Transport $1,718 Bond fees $3,516 Legal fees (through March 1, 2016) $23,486 TOTAL: $54,020.00 Southwest further demands that Transwest release and dismiss all claims against Southwest relating to the Dynamax, with prejudice, to avoid the need for Southwest to incur additional fees and damages to enforce its rights under the Motor Vehicle Repair Act. Southwest demands that Transwest take these actions within ten days, after which Southwest will bring suit to enforce its rights under the Motor Vehicle Repair Act. Southwest reserves the right to assert additional claims for damages and fees in that suit. Please let me know if you have any questions. Sincerely, Snell & Wilmer L.L.P. Scott C. Sandberg cc: Eric Falbe Client 23745160 Case 1:15-cv-02233-RM-MJW Document 117-19 Filed 07/28/16 USDC Colorado Page 2 of 3 A, Signaturê B, by Name) COII¿IPLETE THIS SECTION ON DELIVERYSENDER: cOMPLE TE THIS SECTION r r Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. r Pr¡nt your name and address on the reverse so that we can return the card to you. r Attach th¡s card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: of Yes E t'lo 3. ServlceType E Certified Mailô E Prlorlty Mail Express- E Registered E Return ReceiptforMerchandise tf lnsured Mail E Cotlecton 4. Restricted Dellvery? (Extra Fee) El Yes ?u1,5 l,5eI EEEe 3?83 05n1 D. ls delivery address different from item 1? lf YES, enter delivery address below: 6"rn Trans-'West, Inc., dba Transwest Truck Trailer RV c/o James Cage Andrew Flvnn Move Whiic LLP 16 Ñ{arket Souare 1400 16fl'Sftèer Denver, CO 80202 2. Artlcle Number (Transfer from servlce label) PS Form 3811, July 2013 Domestic Return Receipt Case 1:15-cv-02233-RM-MJW Document 117-19 Filed 07/28/16 USDC Colorado Page 3 of 3
