1
1 STATE OF ILLINOIS
IN THE CIRCUIT COURT OF THE
2 TENTH JUDICIAL CIRCUIT
COUNTY OF MARSHALL
3
4 OZINGA BROS., INC., AN )
ILLINOIS CORPORATION, )
5 )
Plaintiff, )
6 )
vs. ) No. 06 CH 39
7 )
RAMAR FARMS, INC., AN )
8 ILLINOIS CORPORATION AND )
RAYMOND KUNKEL, )
9 )
Defendant. )
10
11 The discovery deposition of MARTIN
12 OZINGA, III, taken in the above-entitled cause,
13 before Carol A. Dorencz, a notary public within
14 and for the County of Cook and State of
15 Illinois, and a Certified Shorthand Reporter of
16 said state, at 15959 W. 108th Avenue, Orland
17 Park, Illinois, on May 23, 2008, at 11:30
18 o'clock a.m.
19
20
21
22
23
24
2
1 A P P E A R A N C E S:
2
THE LAW OFFICES OF:
3 HINSHAW & CULBERTSON, LLP
4 BY: MR. RICHARD S. PORTER
100 Park Avenue
5 P.O. Box 1389
Rockford, Illinois 61105-1389
6
Appeared on behalf of the
7 Plaintiff;
8
THE LAW OFFICES OF:
9 ANDERSON LAW OFFICES
10 BY: MR. WILLIAM M. ANDERSON, IV
625 South Main
11 Creve Coeur, Illinois 61610
12 Appeared on behalf of the
Defendant, Raymond Kunkel;
13
14 THE LAW OFFICES OF:
CARL F. REARDON, ESQ.
15
BY: MR. CARL F. REARDON
16 120 Illini Drive
East Peoria, Illinois 61611
17
Intervener on behalf of Kenin
18 Edwards.
19 ALSO PRESENT:
20 MR. BARRY VORN,
Vice President, Secretary and General
21 Counsel Ozinga Bros., Inc.
22 Mr. Kenin Edwards
23
24
3
1 I N D E X
2
EXAMINATION PAGE
3
4 MR. ANDERSON 5
5
6 E X H I B I T S
7
DEPOSITION EXHIBIT MARKED
8
Exhibit 1 4
9
Exhibit A 10
10 Exhibit B 13
11
12 C E R T I F I E D Q U E S T I O N S
13
ATTORNEY PAGE
14
By Mr. Anderson 54
15 By Mr. Anderson 55
16
17
18
19
20
21
22
23
24
4
1 (Whereupon Exhibit No.
2 1 was marked for
3 identification.)
4 MR. ANDERSON: Let the record reflect
5 that it's about 11:35 a.m., and we are
6 beginning the discovery deposition of Martin
7 Ozinga. Would you swear in the deponent,
8 please.
9 (Witness duly sworn.)
10 MR. ANDERSON: Counsel, would you
11 stipulate to the usual stenographic
12 stipulations?
13 MR. PORTER: I'm not sure what you
14 mean by that. This is indeed a discovery
15 deposition.
16 MR. ANDERSON: Will you waive calling
17 the court reporter at a hearing?
18 MR. PORTER: I will. You don't need
19 to do that, but yes, I would.
20 MR. ANDERSON: Would your client like
21 to review the transcript and sign it or waive
22 signature?
23 MR. PORTER: We will let you know at
24 the end of the deposition.
5
1 MR. ANDERSON: Okay.
2 WHEREUPON:
3 MARTIN OZINGA, III,
4 called as a witness herein, having been first
5 duly sworn, was examined and testified as
6 follows:
7 E X A M I N A T I O N
8 BY MR. ANDERSON:
9 Q. Could you please state your name for
10 the record, Mr. Ozinga?
11 A. My name is Martin Ozinga the third.
12 Q. And what is your home and business
13 address, sir?
14 A. My home is 12621 Hadley Road, Homer
15 Glen, Illinois, I think it's 60491, and the
16 business address is 15959 108th Avenue, Orland
17 Park, 60467.
18 Q. And have you ever given a deposition
19 before, sir?
20 A. Yes, I have.
21 Q. I'm going to go over a few basic
22 things in a deposition. I don't mean to insult
23 you in any way; just to make sure we understand
24 what we are doing, and do you understand that
6
1 these proceedings will be taken under oath
2 similar to what would happen in a courtroom,
3 and the oaths and the consequences are
4 approximately the same as giving testimony in
5 court?
6 A. Uh-huh, I understand.
7 Q. And do you understand that anything
8 we say here today may be used in a future court
9 proceeding?
10 A. I do.
11 Q. And as best you can, and we all do
12 this, try to answer verbally in yes or no or
13 however you feel correct, because often times a
14 lot of us will use uh-huhs and uh-uhs, and it's
15 hard for a court reporter to take that down and
16 get it accurate.
17 If there's anything I say, please ask
18 me if you don't understand the question. If
19 you don't ask me that, I'll assume you
20 understand the question, is that okay?
21 A. That's fine.
22 Q. And sometimes I can make mistakes and
23 ask a compound question or something, and it's
24 totally unintentional on my part, so if I ask
7
1 anything that's confusing or you're unable to
2 answer because of the way I phrased it, feel
3 free to straighten me out, okay?
4 A. Okay.
5 Q. You understand that we are taking
6 this -- oh, are you under the influence of any
7 alcohol or prescription drugs or anything else
8 that would affect your memory or your ability
9 to take this deposition today?
10 A. No.
11 Q. As we sit here today do you believe
12 you're of sound mind and memory?
13 A. Yes.
14 Q. And what is your position within
15 Ozinga Brothers?
16 A. I'm the president of the company.
17 Q. Are you one of the founders of this
18 company or, I mean, was this a company you
19 created?
20 A. No, I'm third generation.
21 Q. What type of business does Ozinga do?
22 A. Our primary business is the
23 manufacture, supply and delivery of ready-mix
24 concrete.
8
1 Q. And how many -- how long has Ozinga
2 been in business, doing this kind of business?
3 A. My grandfather started the family in
4 business in 1928. We have been in the
5 ready-mix concrete business since 1952.
6 Q. How long have you been involved in
7 the business?
8 A. Part time as a kid growing up since I
9 was 15, and full time after graduating from
10 college in 1973.
11 Q. And did your father -- did you work
12 for your father in the business?
13 A. My father was the president prior to
14 myself, but our family was also in the banking
15 business, and my father maintained an office at
16 the bank and not at the ready-mix concrete
17 company.
18 Q. Did you kind of work your way up
19 through the ranks of this company?
20 A. Well, I did most jobs in the company
21 as a young person prior to graduating from
22 college, but within a few months of arriving on
23 a full-time basis I became the general manager
24 of the company.
9
1 Q. Where'd you graduate from college?
2 A. Calvin College, Grand Rapids,
3 Michigan.
4 Q. Do you remember what year that was?
5 A. 1973.
6 Q. I imagine through the years -- so
7 you've been general manager or higher ranking
8 in this company since when?
9 A. Since 1973.
10 Q. And who is Mr. Barry Vorn in the
11 company?
12 A. Barry Vorn is vice president and
13 general counsel.
14 Q. And is he an attorney also?
15 A. Yes, he is.
16 Q. And how long has he been with your
17 company?
18 A. I'm not sure. Seems like a long time
19 because I've known him since he was a young
20 man, but maybe ten years, nearly ten years.
21 Q. Do you and he talk on a daily basis
22 about the affairs of the company and coordinate
23 regularly?
24 A. Not daily, but regularly.
10
1 Q. Do you share offices in this building
2 we are in today?
3 A. Yes.
4 Q. You know we are here today to talk
5 about a transaction involving Ramar Farms and
6 Raymond Kunkel for a purchase of property
7 outside of the City of Henry, are you familiar
8 with that?
9 A. Yes.
10 (Whereupon Defendant's
11 Exhibit A was marked
12 for identification.)
13 BY MR. ANDERSON:
14 Q. I'm going to show you what's been
15 labeled as Defendant's Exhibit A, and ask you
16 if you've ever seen this purchase agreement
17 before?
18 A. I'm not sure. I don't recall seeing
19 it.
20 Q. Are you aware that -- or have you
21 been made aware that there's a contract in
22 existence with Ramar Farms and a Raymond Kunkel
23 to buy some property commonly known as
24 Section 9 in Marshall County, Illinois?
11
1 A. Yes, I am.
2 Q. And do you have any reason to believe
3 that this is not the contract that's involved
4 in buying that piece of property?
5 MR. PORTER: I'm going to object.
6 That calls for conjecture, Counsel. He just
7 told you that he doesn't have any recollection
8 having seen it, so you're clearly asking for
9 conjecture. Beyond that, someone has blacked
10 out the purchase price for some reason, so I
11 can tell you that it's not an accurate copy of
12 the contract.
13 MR. ANDERSON: I think the record may
14 reflect that this is taken from the original
15 complaint that was filed in the case, and this
16 was the copy we were given from that complaint,
17 but whatever the case may be, do you have
18 any --
19 BY MR. ANDERSON:
20 Q. You said before you're just not
21 certain that this is the agreement. If you
22 could flip to Page 7 for me, does that appear
23 to be executed by Barry Vorn on behalf of
24 Ozinga Brothers?
12
1 A. Yes, it does.
2 Q. Does that look like Barry Vorn's
3 signature?
4 A. I believe so, yes.
5 Q. Has Barry Vorn ever told you that he
6 did not execute this document?
7 A. No.
8 MR. PORTER: Counsel, I need you to
9 be very cognizant of the fact Mr. Vorn is the
10 counsel for Ozinga Brothers, and I'd ask you to
11 refrain from asking questions that are going to
12 infringe upon attorney/client privilege --
13 MR. ANDERSON: I'll do my best.
14 MR. PORTER: -- and that as you know
15 is inappropriate. Having said that, you've got
16 an answer to that one and I'll allow the
17 question to stand, but I'm not waiving that
18 privilege in any respect.
19 BY MR. ANDERSON:
20 Q. And now do you recall, Mr. Ozinga,
21 having a meeting with Raymond Kunkel in
22 Marshall County?
23 A. No, I do not.
24 Q. Specifically do you recall being in
13
1 Marshall County toward the middle or end of
2 June, 2004?
3 A. I've been in Marshall County many
4 times, and I can't say for sure when those
5 times were.
6 Q. Okay. Have you ever been at the home
7 of Mr. and Mrs. Joe Brent in Marshall County?
8 A. I'm not sure. I don't know -- I've
9 been to a home in Marshall County, one of the
10 two that we purchased, but I don't know the
11 home by that name.
12 (Whereupon Defendant's
13 Exhibit B was marked
14 for identification.)
15 BY MR. ANDERSON:
16 Q. Let me show you what's been labeled
17 Defendant's Exhibit B, and I'll show you a copy
18 of it, and ask you if this is a copy of the
19 affidavit which you executed with the court and
20 your attorneys filed on your behalf with the
21 court within the litigation of Ozinga Brothers
22 versus Ramar Farms. Is that your signature
23 upon that affidavit?
24 A. Yes, it is.
14
1 Q. And where was that affidavit
2 executed?
3 A. In this office.
4 Q. And here in Orland Park?
5 A. Yes.
6 Q. And the notary public Toni
7 J-e-n-d-r-a-s, who is that?
8 A. That's an employee in this office.
9 Q. Okay. Is she a secretary of yours?
10 A. Not of mine personally, no.
11 Q. But she's an employee of Ozinga
12 Brothers?
13 A. Yeah, yeah.
14 Q. And you were aware at the time you
15 executed this affidavit that you were giving a
16 sworn statement, is that correct?
17 A. Yes.
18 Q. And did you have any conversations
19 with anybody prior to executing this affidavit?
20 A. It was presented to me by Barry Vorn.
21 Q. And I believe your counsel has
22 already claimed a privilege between
23 conversations between you and Mr. Vorn, but
24 does this affidavit accurately reflect the
15
1 claims you are making in this case?
2 MR. PORTER: Well, I'll object,
3 Counsel. This affidavit is not the claims we
4 are making in this case. We have filed a
5 complaint. We are asking this for a legal
6 conclusion as to what I guess the purpose of an
7 affidavit is, and it's beyond the scope of this
8 witness' expertise to provide that.
9 MR. ANDERSON: I'll be happy to
10 rephrase the question. It was probably
11 unartfully asked.
12 BY MR. ANDERSON:
13 Q. Mr. Ozinga, are you claiming that you
14 had absolutely no involvement with any
15 negotiations with Raymond Kunkel or Ramar Farms
16 for the purchase of the Section 9 property in
17 Marshall County?
18 A. This affidavit was meant to state
19 that I have no recollection of meeting Raymond
20 Kunkel or negotiating personally directly with
21 him.
22 Q. Okay. And in other words, and if I'm
23 misstating your words, please tell me so. Have
24 you ever met Raymond Kunkel?
16
1 A. Not to my recollection.
2 Q. And so is it your claim that you've
3 never had a face-to-face meeting with Raymond
4 Kunkel?
5 MR. PORTER: Object, asked and
6 answered. I'll allow him to answer one more
7 time. He's never met him. He's obviously --
8 MR. ANDERSON: I just want to be very
9 clear.
10 MR. PORTER: I think it was clear,
11 Counsel. Please allow me to get my objection
12 out. If I allow him to answer, he certainly
13 will answer. I'm not directing him not to
14 answer. I'm voicing an objection, it's been
15 asked and answered. You can go ahead and
16 answer if you can.
17 THE WITNESS: I have no recollection
18 of meeting Ray Kunkel.
19 BY MR. ANDERSON:
20 Q. And do you have any recollection of
21 any meeting wherein Ron Smith, Kenin Edwards,
22 Joe Brent and Georgiana Brent were present?
23 A. I do not recall that collection of
24 folks meeting all at the same time. I have no
17
1 recollection of that.
2 Q. Do you suffer from any impairment --
3 MR. PORTER: Objection, asked and
4 answered.
5 MR. ANDERSON: -- of your memory?
6 MR. PORTER: It's been asked and
7 answered. You don't have to answer it again.
8 BY MR. ANDERSON:
9 Q. Well, have you ever suffered from
10 any -- since June of 2004 forward, have you
11 ever suffered anything that resulted in an
12 impairment of your memory?
13 A. No.
14 Q. I believe you stated a little bit
15 earlier that you remembered being at one of the
16 two farmhouses you purchased in Marshall
17 County, is that correct?
18 A. That is correct.
19 Q. And do you recall when that would
20 have been?
21 A. No.
22 Q. Do you have any idea of the year or
23 time frame or decade it might have occurred in?
24 A. Well, I would assume it happened in
18
1 the last ten years, the last decade.
2 Q. All right. And do you know who was
3 present at that meeting?
4 A. Kenin Edwards and myself.
5 Q. Just the two of you?
6 A. Best of my recollection, yes.
7 Q. And do you know what the subject was
8 of that meeting?
9 A. My recollection is I was there to
10 look at the house, the one that we either were
11 purchasing or had already purchased.
12 Q. And would that have been at a time
13 when you and Kenin Edwards had some sort of
14 business relationship between you?
15 A. We had a working relationship, yes.
16 Q. At that time you weren't in
17 litigation against Kenin Edwards, is that
18 correct?
19 A. That is correct.
20 Q. At that time you and he had -- I
21 mean, you can tell me more accurately, what was
22 the nature of your relationship with Kenin
23 Edwards at that time?
24 A. Kenin was assisting us in the
19
1 acquisition and development of a large sand and
2 gravel operation in the immediate area.
3 Q. Was Mr. Edwards acting as an employee
4 of yours or an independent agent, or in what
5 kind of capacity were you and he working
6 together?
7 MR. PORTER: I'll object to the
8 extent that calls for a legal conclusion, and I
9 direct the witness to answer only if you know.
10 THE WITNESS: He was acting as a --
11 not as an employee, but as a friend.
12 BY MR. ANDERSON:
13 Q. What type of work was he doing for
14 you or with you?
15 A. Property research, property
16 acquisition efforts, as well as pursuing --
17 helping us pursue sand and gravel -- whatever
18 necessary issues are involved in a sand and
19 gravel production facility.
20 Q. And would I be correct in assuming
21 that the reason you have an interest in this is
22 for your company or Ozinga Brothers?
23 MR. PORTER: I'm sorry, can you read
24 that back to me?
20
1 (Record read as requested.)
2 MR. PORTER: I'm going to object as
3 vague and unanswerable. An interest in what,
4 Counsel?
5 MR. ANDERSON: An interest in the
6 purchase of land for sand and gravel, what he
7 was just describing.
8 THE WITNESS: The purpose is to
9 expand our business investments, yes.
10 BY MR. ANDERSON:
11 Q. And as I understand your business,
12 you can tell me if this is correct, sand and
13 gravel is part of the raw materials you need in
14 the concrete business?
15 A. Yes, but this is a separate --
16 typically a separate business activity, and it
17 would be for us as well.
18 Q. Separate from the -- what do you mean
19 by separate?
20 A. Well, our primary business, as I said
21 before, is the manufacture and deliver of
22 ready-mix concrete. The ingredients in the
23 product are aggregates, sand, gravel, stone,
24 cement, those sorts of things. All these
21
1 ingredients are ingredients that we purchased
2 from various vendors and suppliers throughout
3 the region.
4 Q. Why were you interested in purchasing
5 the Section 9 property of Raymond Kunkel?
6 A. It related to contiguity issues
7 between some other parcels that we had
8 purchased.
9 Q. Which parcels were those?
10 A. Section 10 and Section 4.
11 Q. And so what was your plan for
12 Section 9?
13 MR. PORTER: At what time, Counsel?
14 MR. ANDERSON: At the time you
15 entered into the purchase agreement on or about
16 July 22nd of 2004.
17 MR. PORTER: And when you say your
18 plan, Counsel, do you mean this witness
19 individually? I guess my objection is vague.
20 MR. ANDERSON: I assume this witness
21 is testifying as the chief officer of Ozinga
22 Brothers, Inc., so I'm asking what were Ozinga
23 Brothers' plans.
24 MR. PORTER: That's a different
22
1 question. Go ahead and answer that question.
2 THE WITNESS: The purpose was to
3 acquire a large amount of property for the
4 purpose of eventually mining sand and gravel.
5 BY MR. ANDERSON:
6 Q. And did this involve the purchase of
7 Sections 9, 4 and 10 for those purposes?
8 A. Yes.
9 Q. And had extensive or somewhat
10 extensive research been done on these
11 properties to know that they had the mining
12 reserves necessary to make it worthwhile for
13 Ozinga Brothers to be purchasing them?
14 A. Yes.
15 Q. Was that some of what Kenin Edwards
16 was assisting you in?
17 A. The best of my recollection he was
18 participating in that, yes.
19 Q. Did you have an agreement with the
20 City of Henry that contemplated you acquiring
21 Section 9 and Section 4 properties and annexing
22 them into the City of Henry?
23 MR. PORTER: I'm going to object as
24 to vague. Again, you've asked him if he had an
23
1 agreement. You've also asked him -- you
2 haven't given him a time frame, Counsel.
3 MR. ANDERSON: Well, just to make it
4 clear, sir, when I'm asking you questions about
5 whether you had an agreement, let's go into
6 that a little bit.
7 BY MR. ANDERSON:
8 Q. Did you ever seek to acquire any of
9 this land for yourself personally, or were you
10 seeking to acquire it for Ozinga Brothers,
11 Inc., an Illinois corporation?
12 A. The purpose was to acquire it to
13 develop a sand and gravel business owned and
14 operated by Ozinga Brothers.
15 Q. So you never attempted to purchase
16 any of this land just for yourself personally
17 outside of the corporate business interest, did
18 you?
19 A. No.
20 Q. So whereas everything you're doing,
21 any actions you took vis-a-vis Raymond Kunkel,
22 Section 9 and Section 4 properties, were they
23 all in relation to your capacity as an officer
24 of Ozinga Brothers for Ozinga?
24
1 MR. PORTER: I'm going to object. It
2 assumes facts not in evidence. You're making
3 some assumption that he took some activity
4 toward purchasing this property, which there is
5 no --
6 MR. ANDERSON: I'll say if any, if
7 there is any activity.
8 MR. PORTER: -- there is no fact it's
9 been testified to which establishes such, so
10 again, you're assuming facts not in evidence.
11 Perhaps you could rephrase.
12 BY MR. ANDERSON:
13 Q. Sir, has any of the acquisition of
14 Sections 9 and 4 been for anyone -- any of that
15 activity to your knowledge been for anyone
16 personally, or has it all been for the benefit
17 of Ozinga Brothers, the corporation?
18 A. The best of my recollection it is for
19 the development of a business entity to be
20 owned and operated by Ozinga, the corporation.
21 Q. Thank you, sir.
22 So any future questions I have about
23 actions you may have taken, I want to make it
24 clear that I'm asking those about -- that you
25
1 may have taken or not taken or knowledge you
2 may have or not have as an officer of the
3 corporation on behalf of Ozinga, the
4 corporation, not you personally, unless you
5 inform me that this was something you were
6 doing personally that had no business with the
7 corporation, okay?
8 MR. PORTER: Counsel, I think your
9 problem is you're trying to get around my
10 objection, which is most easily corrected by
11 just simply phrasing your questions in the
12 terms of Ozinga Brothers rather than you.
13 Having said that, I'm not --
14 MR. ANDERSON: I'll do my best.
15 MR. PORTER: -- I'm not going to
16 object if you do the same thing again, so
17 proceed.
18 MR. ANDERSON: Thank you.
19 BY MR. ANDERSON:
20 Q. Sir, how did you find out about this
21 Section 9 property?
22 A. I don't know for sure. My guess is
23 it was brought to my attention by either Ron
24 Smith or Kenin Edwards.
26
1 Q. And back in June and July of 2004,
2 was Ron Smith an employee of Ozinga Brothers?
3 A. Yes.
4 Q. When did he leave the employ of
5 Ozinga Brothers, if you know?
6 A. Sometime within the last year or 18
7 months.
8 Q. So he would have been an employee of
9 Ozinga Brothers when this -- through July and
10 August of 2006, is that correct?
11 A. I'm not sure about the exact dates.
12 Q. Okay. Now, according to the terms of
13 this Defendant's Exhibit A I'm looking at, and
14 it talks about contingencies on Page 3,
15 contingent upon purchaser securing within 730
16 days from the date of this agreement any and
17 all necessary -- it's 11A. I'll give you a
18 chance to look at it; any and all necessary
19 zoning changes and permits or approvals from
20 the appropriate governmental authorities to
21 allow purchaser to mine sand and gravel on the
22 premises. Do you see that section, sir?
23 A. Yes.
24 Q. Do you know what if any actions
27
1 Ozinga Brothers took to obtain the necessary
2 zoning changes, permits and approvals from
3 government authorities to mine sand and gravel
4 on this Section 9 property?
5 A. My recollection is there were a lot
6 of activities associated with zoning and
7 permitting both at the -- or with the --
8 appealing to the County of Marshall and
9 somewhat involving also the City of Henry,
10 public hearings, et cetera.
11 Q. So is it your recollection that
12 Ozinga Brothers was actively seeking permission
13 to acquire these necessary zoning changes,
14 permits and approvals to allow you to mine sand
15 and gravel on this property?
16 A. That is my recollection, yes.
17 Q. In fact, that was what you hoped to
18 be able to do with this property, wasn't it?
19 MR. PORTER: Again, at what time,
20 Counsel?
21 MR. ANDERSON: Throughout from July
22 of 2004 through the proposed closing date in
23 July of 2006.
24 MR. PORTER: I think that calls for
28
1 conjecture on behalf of this witness. You
2 haven't established that he has the knowledge,
3 the corporate knowledge, as to what the intent
4 was of the purchase in July of 2006. I think
5 it calls for conjecture. Lack of foundation.
6 MR. ANDERSON: If he can answer, he
7 can answer, and sir --
8 MR. PORTER: And I haven't directed
9 him not to answer.
10 MR. ANDERSON: Okay.
11 BY MR. ANDERSON:
12 Q. Did you enter into this contract in
13 July of '04 with the intent of trying to get
14 the necessary permits to allow you to mine on
15 this property?
16 A. Yes.
17 Q. To your knowledge did that ever
18 change?
19 A. Yes, it took a turn as we began
20 negotiations with the City of Henry.
21 Q. When did it take a turn?
22 A. When we started having conversations
23 with the City of Henry.
24 Q. And when would that have been?
29
1 A. Sometime later, I'm not sure.
2 Q. Would that have been around the time
3 of the zoning board meeting in September or
4 October of 2006?
5 A. I don't recall.
6 Q. Certainly when you entered into this
7 agreement in 2004, you were conditioning this
8 agreement upon you being able to mine sand and
9 gravel on the property, correct?
10 A. My recollection is that this property
11 was related to contiguity issues to Section 4.
12 Q. And by contiguity issues, in this
13 aspect do you mean that you were more concerned
14 with being able to move sand and gravel from
15 Section 4 across 9 to the port on Section 10 to
16 be able to get it to the Illinois River?
17 A. Yes.
18 Q. And I don't want to put words in your
19 mouth, but was it -- you're not -- when you say
20 contiguity here, you're not really talking at
21 that time about contiguity to the City of
22 Henry; are you talking instead about the
23 ability to take this sand and gravel and get it
24 to a barge where you can most economically
30
1 transport it?
2 A. Yes, that's correct.
3 Q. And that was what a lot of the true
4 value of Section 9 was to you?
5 A. That was an issue with regard to the
6 purchase of Section 9. There's much more value
7 beyond that as well.
8 Q. What was the rest of the value beyond
9 the ability to move product across Section 9?
10 A. Well, it's contiguous real estate,
11 and it's got its inherent value in and of
12 itself and future value potentially for
13 development or any other purpose.
14 Q. And Section 9 itself also had sand
15 and gravel deposits on it?
16 A. As well as --
17 MR. PORTER: Objection, foundation.
18 THE WITNESS: Yes.
19 BY MR. ANDERSON:
20 Q. Well, to your knowledge did Section 9
21 also have valuable sand and gravel deposits
22 underneath it?
23 A. To the best of my knowledge, yes.
24 Q. And all of that added to its value to
31
1 you, is that correct?
2 A. Potential value, yes.
3 Q. Did you obtain to your knowledge the
4 necessary zoning changes, permits and approvals
5 to allow you to mine sand and gravel on the
6 Section 9 property prior to or by July 21,
7 2006?
8 MR. PORTER: Again, I'm going to
9 object, Counsel. You've asked this witness if
10 he obtained. The question respectfully is did
11 Ozinga Brothers obtain, and --
12 BY MR. ANDERSON:
13 Q. To your knowledge did Ozinga Brothers
14 obtain the necessary permits or permission,
15 governmental permission, to mine sand and
16 gravel on the Section 9 property by July 21,
17 2006?
18 A. Not to my knowledge, no.
19 Q. Are you aware that Marshall County
20 has entered into an agreement to allow mining
21 on Section 9 property at this time?
22 MR. PORTER: Objection, irrelevant.
23 MR. ANDERSON: You can answer the
24 question.
32
1 THE WITNESS: No.
2 BY MR. ANDERSON:
3 Q. Has anyone ever told you that?
4 A. Well --
5 MR. PORTER: Object to the extent
6 you're trying to invade the attorney/client
7 privilege.
8 MR. ANDERSON: I'm not trying to
9 invade the attorney/client privilege.
10 MR. PORTER: Well, I would direct you
11 to answer as long as it doesn't invade the
12 attorney/client privilege.
13 THE WITNESS: I read things in the
14 newspaper, but I'm not at all clear as to what
15 the status is with regard to mining in
16 Section 9.
17 BY MR. ANDERSON:
18 Q. Would you agree that obtaining the
19 necessary permits and approvals to mine sand
20 and gravel on Section 9 certainly increases the
21 value of the property?
22 MR. PORTER: Objection, irrelevant.
23 THE WITNESS: My answer would be
24 that's impossible to say.
33
1 BY MR. ANDERSON:
2 Q. Well, it was important enough to you
3 that you were only willing to buy it if you
4 could obtain that when you -- when your company
5 wanted to buy it in 2004, correct?
6 MR. PORTER: Objection. There's been
7 no such testimony, Counsel. At no time did he
8 say that would be the only way that his company
9 would purchase it. Indeed they waived those
10 contingencies, so you're stating facts that are
11 not in evidence.
12 BY MR. ANDERSON:
13 Q. Would you agree with me, sir, that
14 when you entered into this agreement -- and
15 when I say you, I mean when Ozinga Brothers
16 entered into this agreement in 2004, they
17 wanted a way out of this contract in the form
18 of these contingencies if they couldn't get the
19 permits to mine sand and gravel on the
20 property?
21 A. It's common to have contingencies in
22 real estate contracts that relate to our
23 intended use, but at the same time it's my
24 understanding that contingencies are put in
34
1 there at our discretion relative to whether
2 they are satisfied or not.
3 Q. I understand that, but my question
4 was you wanted a way -- you, Ozinga Brothers,
5 wanted a way out of this contract if you
6 couldn't get permission to mine sand and
7 gravel, correct?
8 A. It was an opportunity to get out of
9 it. It was not a sole and limited
10 consideration.
11 Q. I understand that's your position,
12 but you --
13 MR. PORTER: Objection, asked and
14 answered, if you are going to repeat the
15 question again.
16 MR. ANDERSON: Did you want that
17 provision in the contract, or was it forced
18 upon you, and by you, I mean Ozinga Brothers.
19 MR. PORTER: Objection, compound.
20 Could you rephrase, Counsel?
21 BY MR. ANDERSON:
22 Q. Yes. Did Ozinga Brothers want this
23 Paragraph 11 in the contract, or was this
24 contingency provision something that the seller
35
1 would have wanted in the contract?
2 MR. PORTER: I'm going to object to
3 foundation. He already told you he doesn't
4 recall even seeing the contract. Obviously he
5 wasn't involved in the negotiation of it. You
6 can I guess answer if you can.
7 THE WITNESS: Sure. It would be my
8 belief that this was something that we
9 requested in the contract.
10 BY MR. ANDERSON:
11 Q. Do you know is there a -- are you at
12 all familiar with the annexation agreement with
13 the City of Henry?
14 A. I am somewhat familiar with that,
15 yes.
16 Q. Have you seen that agreement?
17 A. I don't recall whether I actually
18 seen the paperwork or not.
19 Q. Do you know if there's a portion of
20 it labeled confidentiality agreement?
21 A. Not to my knowledge, I don't know.
22 MR. PORTER: Counsel, now may be an
23 appropriate time to talk about the rider.
24 MR. ANDERSON: Okay.
36
1 MR. PORTER: For the record, counsel
2 submitted a document rider with his deposition
3 notice. We have filed and are filing with the
4 court reporter an objection to that which I've
5 had marked as Ozinga Exhibit No. 1. That
6 document rider did not give us sufficient time
7 to even respond to it. It sought
8 attorney/client privileged communication,
9 irrelevant information that was not likely to
10 lead to discoverable evidence as well as trade
11 secret information.
12 For a variety of reasons which have
13 been stated in the motion, I'm not going to
14 belabor now or the objection that I'm not going
15 to belabor now, we object to that rider.
16 However, we have attempted to respond
17 to it as best we can in the short time that we
18 received it, which was less than 48 hours ago.
19 The reason I believe it was an
20 appropriate time to get into that now, Counsel,
21 is that confidentiality agreement is included
22 in the documents we provided to you today.
23 MR. ANDERSON: Okay. And for the
24 record, I was provided a group of documents
37
1 here today right at the start of this
2 deposition which I've not had an opportunity to
3 review, and so we would reserve our ability to
4 depose Mr. Ozinga in regard to any of those
5 documents which I have not yet had an
6 opportunity to examine or which I have not yet
7 received.
8 MR. PORTER: Well, I don't want
9 my silence to speak volumes. We clearly object
10 to that. This is your opportunity to depose
11 him. You're the one that provided us a
12 document rider 48 hours ago. You have the
13 documents. You've had Mr. Reardon and
14 Mr. Edwards reviewing them since they got here.
15 You have a chance to do it, and this is your
16 opportunity right now.
17 MR. ANDERSON: Well, and I understand
18 that's your position, Counsel, and you realize
19 also that this discovery deposition was
20 rescheduled from the 29th to today --
21 MR. PORTER: But there was no
22 document rider to the prior notice.
23 MR. ANDERSON: -- so that Mr. Ozinga
24 can leave the country on a prior commitment I
38
1 believe. You are leaving the country on the
2 28th or 29th?
3 THE WITNESS: Yes, sir.
4 MR. PORTER: Regardless, Counsel, you
5 never had a document rider in any prior notice.
6 The first time you ever established a document
7 rider was in relation to this notice.
8 MR. ANDERSON: I would so stipulate.
9 But however, you know, I believe you will also
10 agree that these documents have prior been
11 requested in discovery. There's nothing new
12 here that hasn't already been the subject of a
13 request to produce.
14 MR. PORTER: No, Counsel, I do not
15 agree. Your request to produce was issued on
16 May 19 and isn't even due yet.
17 MR. ANDERSON: As I said, though,
18 it's our position it's prior been requested.
19 MR. PORTER: Then you should have
20 waited to take this deposition until you had a
21 response to the production request. We are not
22 in any respect agreeing to ever present him
23 again for this case.
24 MR. ANDERSON: We will deal with that
39
1 at a later date in front of the court if
2 necessary. Hopefully it won't be.
3 BY MR. ANDERSON:
4 Q. In regard to this Section 9 property,
5 Mr. Ozinga, I believe you stated at one point
6 that Kenin Edwards was acting as a friend in
7 regard to the acquisition of this property.
8 Did you make a statement similar to that
9 effect?
10 A. Yes.
11 Q. Was it just a friendship or was it a
12 form of a business relationship?
13 MR. PORTER: Again, I'll object to
14 the extent it calls for a legal conclusion,
15 plus it's been asked and answered. Go ahead.
16 THE WITNESS: He was working with Ron
17 Smith, our employee, assisting us in
18 identifying parcels of property and eventually
19 helping with acquiring zoning, permitting and
20 so forth.
21 BY MR. ANDERSON:
22 Q. Would Mr. Edwards -- on these
23 acquisitions of parcels of property, were there
24 more parcels of property involved than just the
40
1 Section 9 property?
2 A. Yes.
3 Q. Was the Section 4 property one of
4 those parcels also involved?
5 A. Yes.
6 Q. Were there other parcels beyond
7 Section 9 and Section 4 in Marshall County?
8 MR. PORTER: Counsel, objection,
9 vague. Yes, there are many parcels in Marshall
10 County. What is the question?
11 BY MR. ANDERSON:
12 Q. In which Ozinga Brothers and Kenin
13 Edwards had some form of relationship in the
14 acquisition of those parcels?
15 A. Yes.
16 Q. And you've described it as a friend
17 relationship. Was it also a financial
18 relationship wherein Kenin Edwards would
19 receive any money for his services?
20 MR. PORTER: I'm going to object to
21 the relevancy, Counsel, and that this doesn't
22 likely lead to any discoverable evidence
23 concerning this contract and the meaning of
24 this contract, but I'll allow some leeway. Go
41
1 ahead and answer.
2 THE WITNESS: No, nothing specific.
3 BY MR. ANDERSON:
4 Q. So he wasn't doing -- your
5 understanding was he wasn't going to receive
6 any financial gain for these services he was
7 rendering?
8 MR. PORTER: Objection. Sorry, same
9 objection. Go ahead.
10 THE WITNESS: There wasn't any
11 agreement along those lines. There was a
12 significant amount of benefit financially and
13 so forth that he received, but not by virtue of
14 any kind of employment or specific agreement.
15 BY MR. ANDERSON:
16 Q. How was he to receive a financial
17 benefit for instance as vis-a-vis the Section 9
18 and Section 4 properties?
19 A. There was nothing discussed with
20 regard to those parcels.
21 Q. Okay. Did he receive substantial
22 benefit in terms -- in the purchase of other
23 parcels prior to these parcels?
24 A. Yes.
42
1 Q. And what parcels were those?
2 A. These were earlier parcels. I don't
3 know how to properly describe them. One was a
4 parcel I think we referred to as Anderson Farm,
5 in which a portion of the real estate acquired
6 was given to Kenin Edwards.
7 Q. Okay. Was there some sort of loose
8 understanding between you and he that these
9 enterprises would benefit both of you?
10 MR. PORTER: Object, again, if that's
11 calling for legal conclusion as to whether or
12 not there's a contract. To the extent you
13 understand --
14 MR. ANDERSON: I don't believe I
15 asked that question.
16 MR. PORTER: I'm not sure -- it's
17 vague. I'm not sure what loose understanding
18 means, so go ahead and answer.
19 MR. ANDERSON: You can answer if you
20 can.
21 THE WITNESS: It was always my
22 understanding based on many discussions with
23 Kenin Edwards that he was seeking to help
24 Ozinga Brothers establish a sand and gravel
43
1 operation in this area, and he was not doing it
2 for any monetary benefit of his own.
3 BY MR. ANDERSON:
4 Q. Sir, have you seen the affidavits of
5 the five individuals who have claimed that you
6 met with Raymond Kunkel, Joe and Georgiana
7 Brent, Ron Smith and Kenin Edwards at a
8 farmhouse in Marshall County to discuss the
9 terms of the purchase of the Section 9 property
10 for Ozinga Brothers?
11 A. I don't believe so.
12 Q. Have you heard about them?
13 A. Yes.
14 Q. Does that surprise you that those
15 five individuals would sign affidavits to that
16 effect?
17 A. It surprised me when I heard about
18 it.
19 Q. Are you aware of any reason or
20 explanation why your memory would be so
21 different from that of those five individuals?
22 A. I don't have any explanation, no.
23 Q. If you had gone to Marshall County
24 and met those five individuals to discuss the
44
1 terms of a purchase agreement for this
2 Section 9 property, would you expect to
3 remember it?
4 A. Could you say that question again?
5 Q. Yes. You're familiar with the
6 Section 9 property, correct, in Marshall
7 County?
8 A. Yes.
9 Q. And if you had met at a farmhouse on
10 or adjacent to that Section 9 property and met
11 with the owner of that property and four other
12 people, would you expect to remember doing
13 that?
14 A. I don't remember doing that. Is the
15 question beyond that?
16 Q. I'll withdraw that question. I think
17 you've answered you simply don't remember doing
18 it, correct?
19 A. Yeah.
20 Q. And you don't remember any
21 negotiations regarding that property that you
22 conducted for Ozinga Brothers?
23 A. Eventually I approve or disapprove of
24 you might say basic issues associated with,
45
1 number one, acquiring the property, number two,
2 the eventual price tag and so forth, so that
3 applies to virtually all the property we buy.
4 Q. But is it your claim that none of
5 that occurred with the seller of the property
6 personally?
7 A. I have no recollection of ever even
8 meeting Mr. Kunkel.
9 Q. Is it still your intent today if you
10 acquire Section 9 and Section 4 properties, to
11 use the Section 9 property to transmit
12 materials across that property to the -- help
13 transmit it to the Illinois River?
14 MR. PORTER: Objection, irrelevant,
15 not likely to lead to admissible evidence. If
16 you can tell me how that could possibly be
17 relevant to this case, I might allow him to
18 answer. I am inclined not to at the present
19 time.
20 MR. ANDERSON: It has all to do with
21 the contingencies and the waiver and the
22 efforts, and it certainly is very relevant to
23 these proceedings.
24 MR. PORTER: How does it have to do
46
1 with the contingencies?
2 MR. ANDERSON: Well, because that's
3 what the contingencies provided for, his mining
4 operations.
5 MR. PORTER: I'm going to stand by my
6 objection and go ahead and allow him to answer.
7 I'd ask you, madam court reporter, to repeat
8 the question.
9 (Record read as requested.)
10 THE WITNESS: Subject to complicated
11 agreements with the City of Henry and
12 complications associated with the ownership of
13 Section 4, all of those things are very unclear
14 and uncertain as we sit here today, but in the
15 long, long run the eventual answer to that
16 question would be yes.
17 BY MR. ANDERSON:
18 Q. And would it also be your intent in
19 the long run for Ozinga Brothers to be able to
20 mine the sand and gravel reserves on Section 4?
21 MR. PORTER: Again, same objection,
22 Counsel. It's completely irrelevant --
23 MR. ANDERSON: Noted. Noted,
24 Counsel.
47
1 MR. PORTER: -- to this case, which
2 involves the meaning of a contract and whether
3 or not it's enforceable. What their present
4 intent is with that parcel of property is
5 highly irrelevant, not likely to lead to
6 admissible evidence. Nonetheless, I will allow
7 you to answer the question to avoid the
8 possibility of having to be redeposed.
9 THE WITNESS: Again, subject to
10 agreements and ongoing discussions of probably
11 a long term view, the eventual answer would be
12 yes.
13 BY MR. ANDERSON:
14 Q. And would you agree that the highest
15 and best use of Section 4 and Section 9 would
16 be for, to your knowledge, for mining
17 operations of sand and gravel?
18 MR. PORTER: Objection, foundation,
19 qualifications. He's not here to testify as an
20 expert. It's highly irrelevant to this case.
21 Do not answer.
22 MR. ANDERSON: I would ask that that
23 question be certified.
24 MR. PORTER: Give me one moment. I
48
1 need to take a quick break.
2 (Whereupon a short
3 recess was had.)
4 MR. PORTER: Counsel, while
5 maintaining my objection, in the interest of
6 avoiding any possibility of a redeposition, I'm
7 going to go ahead and allow him to answer.
8 MR. ANDERSON: Okay. Let the record
9 reflect that Mr. Ozinga has left the room with
10 his legal counsel to obtain apparently advice
11 from legal counsel and is now prepared to
12 answer the question.
13 MR. PORTER: And I would ask the
14 court reporter to read it back, please.
15 (Record read as requested.)
16 THE WITNESS: At this point in time I
17 would not agree with that. At this point it's
18 highly speculative as to what real estate now
19 and long term in that immediate area would be
20 the highest and best use.
21 BY MR. ANDERSON:
22 Q. What if anything would lead you to
23 any conclusion that the highest and best use
24 would be anything other than sand and gravel
49
1 mining?
2 MR. PORTER: Same objections, and,
3 Counsel, may I show an ongoing objection,
4 particularly in regard to lack of foundation of
5 qualifications? Counsel, may I have an ongoing
6 objection?
7 MR. ANDERSON: Yes, I'd prefer it to
8 be an ongoing objection.
9 You can answer the question, sir.
10 THE WITNESS: Well, a lot is
11 changing.
12 BY MR. ANDERSON:
13 Q. Are you aware -- well, I'll let you
14 answer the question. I apologize.
15 MR. PORTER: Do you need the question
16 read back?
17 THE WITNESS: Sure, what is it again?
18 (Record read as requested.)
19 THE WITNESS: The value of real
20 estate is extremely dynamic, and it depends on
21 various types of development taking place in
22 the region.
23 BY MR. ANDERSON:
24 Q. Are you aware of any development in
50
1 this region that would change your mind as to
2 its value?
3 A. A major river port being constructed.
4 Q. Well, that major river port makes a
5 sand and mining gravel operation more
6 profitable for you, correct, for Ozinga
7 Brothers?
8 A. More profitable?
9 Q. Yes.
10 A. No, not necessarily.
11 Q. Well, doesn't the river port give you
12 access to the river for your sand and gravel
13 product?
14 A. Yes, it does.
15 Q. And isn't barge transport of that
16 sand and gravel product more financially
17 reasonable than moving it by any other means?
18 A. It's essential.
19 Q. So putting a port in that you have
20 immediate access to doesn't do anything but aid
21 you in the transport of that sand and gravel
22 product, correct?
23 A. The port as it relates to the sand
24 and gravel operation is a baseline issue. It's
51
1 a necessity, but once the port is there, the
2 river is used for all kinds of commodities, and
3 that's an ever changing issue, and the creation
4 of other types of industry in development may
5 be significantly more valuable than sand and
6 gravel mining.
7 Q. I see. So you're not claiming that
8 the port would create a diminishment of value
9 of section -- of the original value that you
10 may have determined Section 4 and Section 9
11 contained, is that correct?
12 MR. PORTER: Counsel, in this case we
13 are not claiming anything in relation to the
14 value of any properties in the area. That's
15 something that's not at issue in this case.
16 The claim is that we entered into a purchase
17 contract with your client that he failed to
18 honor. That's it. That's the only issue.
19 I'll allow him to answer that question, but
20 then we need to move on to relevant topics.
21 THE WITNESS: Can you state the
22 question again?
23 BY MR. ANDERSON:
24 Q. Yes. Is what you're telling me is
52
1 that, and feel free to answer this question any
2 way you desire, but am I understanding that
3 what you are saying is that the fact that there
4 is now a port there may make this land have a
5 value even above and beyond what you might have
6 originally anticipated for sand and gravel
7 mining operations?
8 A. That's highly speculative and
9 extremely long term, but I believe that is a
10 possibility, yes.
11 Q. And you're not claiming that the port
12 decreased the value of the land for sand and
13 gravel mining operations, are you?
14 MR. PORTER: Again, objection,
15 irrelevant.
16 THE WITNESS: No.
17 BY MR. ANDERSON:
18 Q. Now, are you aware that there was a
19 request a couple of days before, I believe it
20 was around a couple of days before the July 21,
21 2006, closing deadline on the purchase of
22 Section 9 property for a one-year extension?
23 A. I don't recall.
24 Q. Do you recall whether an extension
53
1 was being sought to the closing deadline of
2 July 21, 2006 with Raymond Kunkel on the
3 Section 9 property?
4 A. I don't recall.
5 Q. Would that have been a policy item
6 that would have been run by you as part of the
7 overall major decisions you make for this
8 company?
9 MR. PORTER: Objection, conjecture.
10 Go ahead.
11 THE WITNESS: It's possible there was
12 a discussion between myself and our legal
13 counsel.
14 BY MR. ANDERSON:
15 Q. Because, I mean, if Ozinga Brothers
16 is going to come up with over a million dollars
17 to close a deal within a week, wouldn't you be
18 aware of it?
19 A. Not necessarily.
20 Q. Normally you wouldn't be aware of
21 that kind of thing?
22 A. It's hard to say.
23 Q. So you don't know -- do you know if
24 anyone was authorized on behalf of Ozinga to
54
1 seek an extension of the July 21, 2006 closing
2 date with Raymond Kunkel?
3 A. Well, Barry Vorn would be authorized
4 to do something like that.
5 *** Q. But do you know if he was authorized
6 in this case?
7 MR. PORTER: Objection, asked and
8 answered. He just said he was authorized.
9 MR. ANDERSON: I don't believe
10 that's --
11 MR. PORTER: He just testified that
12 Barry Vorn would be authorized to do such a
13 thing. The question has been asked and
14 answered. Move on. I'm not going to allow you
15 to rephrase the question to try to get a
16 different answer that you prefer.
17 MR. ANDERSON: You can answer the
18 question.
19 MR. PORTER: No, you cannot. I'm
20 directing him not to answer.
21 MR. ANDERSON: Ask that the question
22 be certified.
23 BY MR. ANDERSON:
24 Q. Do you have any knowledge of why an
55
1 extension of that July 21, 2006 closing date
2 would have been sought in the last week, if it
3 was sought?
4 A. Well, I can -- I mean, the request
5 for an extension would be on its face what it
6 is.
7 *** Q. Well, I'm asking if you have any
8 knowledge of what the corporate reasons would
9 be for seeking that extension in the week prior
10 to July 21, 2006?
11 A. No.
12 MR. PORTER: Counsel, I'm going to
13 object. You're asking him clearly conjecture
14 at this point. He's already told you that he
15 was not aware of whether or not an extension
16 was requested, so now you're asking him to
17 conjecture as to why it was requested.
18 MR. ANDERSON: This is directly
19 relevant to the terms of the ability to close a
20 contract. If you instruct him not to answer
21 the question, I'll certify the question and we
22 will go on.
23 MR. PORTER: It calls for conjecture,
24 Counsel. I'm telling him not to answer.
56
1 MR. ANDERSON: Okay. Ask that the
2 question be certified.
3 BY MR. ANDERSON:
4 Q. Mr. Ozinga, was Ozinga Brothers
5 prepared to pay Mr. Kunkel the remainder of the
6 purchase price due him on or before July 21,
7 2006?
8 A. Yes.
9 Q. And where were the funds to do so?
10 A. It would be within the corporate
11 working capital activity.
12 Q. Were the funds in cash or in a
13 segregated account as of July 21, 2006?
14 MR. PORTER: Objection, compound.
15 BY MR. ANDERSON:
16 Q. Were the funds in cash as of July 21,
17 2006?
18 A. I have no knowledge of that.
19 Q. Were the funds in a separated
20 segregated account as of July 21, 2006?
21 A. I don't manage the funds of the
22 business, so I don't know.
23 Q. Were the funds in the form of a
24 cashier's check as of July 21, 2006?
57
1 A. I don't know.
2 Q. Do you know if the funds were ever
3 placed in an escrow account on or before July
4 21, 2006?
5 A. I don't know.
6 Q. Do you know if the funds were ever
7 tendered, offered to my client in the form of a
8 check or proof of funds on or before July 21,
9 2006?
10 A. I don't know.
11 Q. Are you aware of any request for
12 title work made and received by my client prior
13 to July 21, 2006?
14 A. Not to my knowledge.
15 Q. Are you claiming that you -- I
16 apologize, Counsel, if I've already asked this
17 question. Are you claiming that the
18 contingencies in 11A, B and C were ever met
19 prior to July 21, 2006?
20 MR. PORTER: Objection, irrelevant.
21 MR. ANDERSON: Of the contract?
22 MR. PORTER: Those are not your
23 client's contingencies.
24 MR. ANDERSON: I understand your
58
1 position. Are you claiming that the
2 contingencies were ever met?
3 THE WITNESS: No, I'm not making any
4 claims.
5 BY MR. ANDERSON:
6 Q. Were the contingencies ever met?
7 A. I don't know.
8 Q. Were the contingencies ever waived
9 prior to July 21, 2006?
10 A. I don't know.
11 Q. Do you know if any efforts were ever
12 made to schedule a closing date on July 21,
13 2006 or beforehand?
14 A. I believe there were.
15 Q. Do you know what they were?
16 A. No.
17 Q. You made a statement, sir, that
18 things took a turn when you began negotiations
19 with the City of Henry. Do you know about when
20 that happened?
21 A. Sometime in the last couple years.
22 Q. What was the turn that things took?
23 A. The topic of annexation and the issue
24 of contiguity with the city limits of Henry
59
1 became an issue on the Section 9 property, and
2 10.
3 Q. And how did that affect Ozinga
4 Brothers?
5 A. How did what affect Ozinga Brothers?
6 Q. Those issues, or Ozinga Brothers'
7 desire to acquire or use this section for --
8 A. Well, the effect of negotiations
9 resulted in a better relationship and positive
10 agreement with the City of Henry.
11 Q. And in fact was there an agreement
12 reached between Ozinga Brothers and the City of
13 Henry to annex in Sections 9 and 10 -- I'm
14 sorry, Sections 9 and 4 to the City of Henry if
15 they were acquired by Ozinga Brothers?
16 MR. PORTER: If you know, Mr. Ozinga.
17 THE WITNESS: Yeah, I'm not sure. I
18 believe there was a long term agreement there.
19 BY MR. ANDERSON:
20 Q. And did that annexation agreement to
21 your understanding, sir, also deal with the
22 potential for mining or conducting mining
23 operations on Sections 9 and 4 if they were
24 annexed -- if they were acquired by you? And
60
1 by you, I mean Ozinga Brothers, I'm sorry.
2 A. Yeah, my recollection is that I don't
3 have any recollection of discussions pertaining
4 specifically to Section 4 as it relates to
5 Section 9. Our discussions were that we had no
6 immediate plans, no plans in the foreseeable
7 future to do any mining on Section 9, but that
8 we were planning on mining on Section 10 to
9 create the port.
10 Q. And were your plans also to mine on
11 Section 4?
12 A. In relation to the City of Henry and
13 discussions with Henry, I don't recall any
14 discussions about Section 4 specifically.
15 Q. But as far as Ozinga Brothers'
16 intentions after they acquired Section 4, their
17 intent was to mine on that property, correct?
18 MR. PORTER: Objection, irrelevant,
19 Counsel. Your client's property is on
20 Section 9, right?
21 MR. ANDERSON: And my client's
22 property is being acquired to move materials
23 from 4 across 9. Isn't that correct,
24 Mr. Ozinga?
61
1 MR. PORTER: Well, you had a question
2 pending, Counsel. Do you want to -- I objected
3 to it --
4 MR. ANDERSON: Well, I'd like him to
5 answer the question I just asked and then we
6 will go back.
7 MR. PORTER: Please read back the
8 last question.
9 (Record read as requested.)
10 THE WITNESS: Section 9 is being
11 acquired to provide contiguity at this stage of
12 the game between Section 4 and also contiguity
13 to the City of Henry city limits, and on a
14 speculative basis as to what the long term
15 highest and best use of the property is is
16 purely speculative at this point in time.
17 BY MR. ANDERSON:
18 Q. Well, you've already stated, have you
19 not, sir, that in terms of for your purposes of
20 contiguity, you saw the value in Section 9, and
21 by you, again, I mean Ozinga Brothers, to be
22 able to move product that was mined on 4 across
23 Section 9 to the river, is that correct?
24 MR. PORTER: Objection, Counsel, it
62
1 misstates his prior testimony. His prior
2 testimony you asked at the time that the
3 contract was originally entered into what the
4 intent was, and that's how he responded.
5 You're now trying to spin that apparently, so
6 you're misstating and mischaracterizing prior
7 testimony. Go ahead and answer.
8 THE WITNESS: Say the question again.
9 BY MR. ANDERSON:
10 Q. If you can mine -- I'll go on to
11 another question.
12 If you can mine Section 4, Section 4
13 still has value for mining unless you can find
14 an even greater value, is that correct, for the
15 use of the land?
16 A. That's speculative, but the answer
17 would be that is one of the potential values of
18 the property, yes.
19 Q. And that value is more than farmland
20 for instance, correct?
21 MR. PORTER: Objection, irrelevant.
22 THE WITNESS: Well, what I've been
23 reading about farmland recently, it may not be.
24 Value of farmland's going up rapidly.
63
1 BY MR. ANDERSON:
2 Q. You weren't buying farmland in 2004
3 when you were entering into this; you were
4 hoping to buy land for development of sand and
5 gravel reserves, correct?
6 A. Yes.
7 Q. Give me a second; see if I have any
8 other questions.
9 MR. PORTER: Counsel, we will give
10 you that second, and I need to take a brief
11 break.
12 MR. ANDERSON: Okay.
13 (Whereupon a short
14 recess was had.)
15 MR. ANDERSON: Just one or two more
16 questions at this time, Mr. Ozinga.
17 BY MR. ANDERSON:
18 Q. On this issue of contiguity, so that
19 I understand what your testimony has been, if
20 Section 9 was annexed into the City of Henry
21 without you acquiring it, would you still have
22 any use for Section 9?
23 A. If Section 9 was annexed into Henry?
24 Q. Right.
64
1 A. Without me acquiring it?
2 Q. Right.
3 A. We would like to acquire the
4 property, because I believe that it's a good
5 investment long term, that there are many uses
6 for Section 9 in addition to sand and gravel.
7 Q. Okay. So your interest in Section 9
8 is not merely to provide contiguity to allow
9 the annexation of Section 10?
10 A. No, not merely. No, not merely.
11 Q. That's just one of the --
12 A. That's one of the issues, yes.
13 Q. Okay.
14 MR. ANDERSON: Because of time
15 constraints that I talked to you about before,
16 I've got to be in Eureka at 3:00, we will
17 terminate the deposition at this time, unless
18 anybody else has any questions.
19 MR. PORTER: Counsel, so you're
20 aware, I mean, we have no time constraints
21 until the termination of the time allowable for
22 the deposition.
23 MR. ANDERSON: I understand that is
24 your position.
65
1 MR. PORTER: And certainly when you
2 agreed to this deposition, you never indicated
3 that you were in any way trying to conserve
4 time because of your conflicts. As a matter of
5 fact, to the contrary. You checked on your
6 conflicts and then went ahead and scheduled it.
7 MR. ANDERSON: I checked on my
8 conflicts, went ahead and scheduled it, and I
9 informed you or Mr. Hevrin -- I believe it was
10 Mr. Hevrin; you might have been in the room at
11 the time, I don't know -- of my conflicts, time
12 conflicts in order to be able to get this
13 deposition scheduled before Mr. Ozinga left the
14 country. We have several questions that have
15 been certified, and we have some production
16 issues on discovery, but I hope that I've asked
17 all the questions I need to ask outside of
18 that.
19 MR. PORTER: We will reserve
20 signature.
21 MR. ANDERSON: Can we get a photocopy
22 at a later date after you've had some more time
23 of this one binder of documents that you stated
24 you did not have an opportunity to copy?
66
1 MR. PORTER: If it's contained within
2 the production request, which my suspicion is
3 that it is, yes. Obviously you're --
4 MR. ANDERSON: For the record, you're
5 referring to this Phase 1 Environmental Site
6 Assessment for 190 acre parcel in Section 9
7 from Shaw Environmental, Inc., Project Number
8 121737 dated August 2006.
9 MR. PORTER: Correct.
10 MR. ANDERSON: Okay.
11 MR. REARDON: Are we going to -- we,
12 Kenin and I, could wait for a photocopy of this
13 that we could take with us.
14 MR. PORTER: No, we will send it to
15 you, Counsel.
16 MR. REARDON: You're going to send us
17 a copy of this entire document?
18 MR. PORTER: If it is requested in
19 the production request, which my suspicion is
20 that it is, then yes, I have a responsibility
21 of providing you a copy of that with your
22 payment of your cost -- or payment of our cost
23 for reproducing it, absolutely.
24 MR. ANDERSON: Okay.
67
1 THE COURT REPORTER: Would you like a
2 transcript?
3 MR. ANDERSON: Yes.
4 THE COURT REPORTER: Copy?
5 MR. PORTER: Copy, please.
6 FURTHER DEPONENT SAITH NOT...
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68
1 STATE OF ILLINOIS
IN THE CIRCUIT COURT OF THE
2 TENTH JUDICIAL CIRCUIT
COUNTY OF MARSHALL
3
4 OZINGA BROS., INC., an )
Illinois Corporation, )
5 Plaintiff, )
vs. )
6 RAMAR FARMS, INC., an ) No. 06 CH 39
Illinois Corporation and )
7 RAYMOND KUNKEL, )
Defendant. )
8
9 I, MARTIN OZINGA, III, being first
10 duly sworn, on oath, say that I am the deponent
11 in the aforesaid deposition, that I have read
12 the foregoing transcript of my deposition taken
13 at the aforesaid time and place and that the
14 foregoing is a true and correct transcript of
15 my testimony so given.
16
17 ____________________________
18 MARTIN OZINGA, III
19 SUBSCRIBED AND SWORN TO
before me this ________ day
20 of ___________________, A.D. 2008.
21
_________________________
22 Notary Public
23
24
69
1 STATE OF ILLINOIS )
) ss.
2 COUNTY OF C O O K )
3 I, Carol A. Dorencz, a Notary Public
4 within and for the County of Cook, State of
5 Illinois, and a Certified Shorthand Reporter of
6 said state, do hereby certify:
7 That previous to the commencement of
8 the examination of the witness, the witness was
9 duly sworn to testify the whole truth
10 concerning the matters herein;
11 That the foregoing deposition
12 transcript was reported stenographically by me,
13 was thereafter reduced to typewriting under my
14 personal direction, and constitutes a true
15 record of the testimony given and the
16 proceedings had;
17 That the said deposition was taken
18 before me at the time and place specified;
19 That the said deposition was
20 adjourned as stated herein;
21 That I am not a relative or employee
22 or attorney or counsel, nor a relative or
23 employee of such attorney or counsel for any of
24 the parties hereto, nor interested directly or
70
1 indirectly in the outcome of this action.
2 IN WITNESS WHEREOF, I do hereunto set
3 my hand and affix my seal of office at Chicago,
4 Illinois, this 25th day of May, 2008.
5
6
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______________________________________
9 Carol A. Dorencz
Notary Public, Cook County, Illinois.
10 My commission expires 5-31-09
License No.084-002632
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