Mark Leonard Deposition

Transcript of the Testimony of

Mark A. LeonardAugust 19, 2010

Leonard v. BogdenNo. 08-2-00408-5

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Byers & Anderson Court Reporters/Video/VideoconferencingSeattle/Tacoma, Washington

August 19, 2010Mark A. Leonard

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KITTITAS

MARK LEONARD dba TYTAN )INTERNATIONAL, ) ) Plaintiff, ) ) vs. ) ) No. 08-2-00408-5BOGDEN INC., a Washington )Corporation, and MITCH BOGDEN, ) ) JAMS No. 1160017935 Defendants. ) ) )BOGDEN INC., a Washington )Corporation and MITCH BOGDEN, ) ) Third Party Plaintiffs, ) ) vs. ) )TYTAN INTERNATIONAL, INC., and )JANE DOE LEONARD, ) ) Third Party Defendants. ) )

DEPOSITION OF MARK A. LEONARD

August 19, 2010

Tacoma, Washington

Byers & Anderson, Inc.

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Serving Washington's Legal Community since 1980



Page 2

1 APPEARANCES

2 For the Plaintiff and Third Party Defendants:

3 Laurence R. Wagner

4 Baumgartner Nelson & Price 112 W. 11th Street

5 Suite 150 Vancouver, WA 98660

6 360-694-4344 360-694-6075 Fax

7 [email protected]

8 For the Defendant and Third Party Plaintiff:

9 Howard E. Bundy

10 Bundy Law Firm 5400 Carillon Point

11 Bldg. 5000, 4th Floor Kirkland, WA 98033-7356

12 425-822-7888 206-770-6130 Fax

13 [email protected].

14

15 Also present: Mitch Bogden

16

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20

21

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24

25



Page 3

1 EXAMINATION INDEX

2 EXAMINATION BY: PAGE NO.

3 MR. BUNDY 5

4

5 EXHIBIT INDEX

6 EXHIBIT NO. DESCRIPTION PAGE NO.

7

8 Exhibit No. 4 2-page Tytan International 13 Dealer Agreement

9 Exhibit No. 5 2-page e-mail from Mark 26

10 Leonard to Mitch Bogden, dated 02/09/08

11 Exhibit No. 6 2-page letter to Mitch Bogden 33

12 from Patrick Kubin, dated 03/26/08

13 Exhibit No. 7 3-page Complaint for 44

14 Violation of Consumer Protection Act, dated 6/23/08

15 Exhibit No. 8 4-page Plaintiffs Reply to 109

16 Counterclaim, dated 12/18/09

17 Exhibit No. 9 1-page Table 1, dated 126 02/03/10

18 Exhibit No. 10 1-page hand drawn diagram by 135

19 Mark Leonard

20 Exhibit No. 11 2-page Declaration of James 138 Shillington, dated 10/22/08

21 Exhibit No. 12 1-page Declaration of Darrell 153

22 Haugland, dated 10/22/08

23 Exhibit No. 13 1-page Declaration of Randy 165 Rich, dated 10/18/08

24 Exhibit No. 14 1-page Declaration of Fred 165

25 Cramer, dated 10/17/08



Page 4

1 EXHIBIT INDEX

2 EXHIBIT NO. DESCRIPTION PAGE NO.

3 Exhibit No. 15 1-page Declaration of Robert 165

4 Houglum, dated 10/17/08

5 Exhibit No. 16 2-page Declaration of George 165 Samojedny, dated 10/22/08

6 Exhibit No. 17 2-page Declaration of Tim 165

7 Nelson, dated 10/22/08

8 Exhibit No. 18 2-page Declaration of Luis 165 Beltran, dated 10/24/08

9 Exhibit No. 19 2-page Declaration of Jim 165

10 Storey, dated 10/28/08

11

12

13

14

15

16

17

18

19

20

21

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Page 5

1 BE IT REMEMBERED that on Thursday,

2 August 19, 2010, at 2208 North 30th Street, Tacoma,

3 Washington, at 8:59 a.m., before Christy Sheppard,

4 Certified Court Reporter, CCR, RPR, appeared MARK A.

5 LEONARD, the witness herein;

6 WHEREUPON, the following proceedings

7 were had, to wit:

8

9 <<<<<< >>>>>>

10

11 MARK A. LEONARD, having been first duly sworn

12 by the Certified Court Reporter,

13 testified as follows:

14

15

16 EXAMINATION

17 BY MR. BUNDY:

18 Q Good morning, Mr. Leonard. We have met informally. My

19 name is Howard Bundy. I represent Mr. Bogden and Bogden

20 Inc., the defendants and the counter claimants in this

21 action.

22 Would you please state your full name for the

23 record, please.

24 A Mark Anthony Leonard.

25 Q And what is your home address, sir?



Page 6

1 A 160 Horseshoe Bend Estates, Kelso, Washington.

2 Q Mr. Leonard, as we are sitting here this morning are

3 you -- do you have any condition that would make it

4 difficult for you to understand my questions, to be able

5 to give complete and accurate answers?

6 A No, I just forgot my narcolepsy pills, and that's the one

7 that keeps you from falling asleep, so talk loud and keep

8 me awake.

9 Q Do you really have an issue with falling asleep during

10 the day?

11 A Yeah.

12 Q Okay. Have you been diagnosed with any kind of memory

13 problems or anything?

14 A No.

15 Q You indicated earlier before the record started that you

16 had forgotten your hearing aid. Have you now secured

17 your hearing aid and it's working?

18 A Got 'em in.

19 Q All right. Are you married, sir?

20 A No.

21 Q Are you recently divorced?

22 A A year and a half or two years -- a year or two ago.

23 Q A year or two ago. Do you recall the effective date of

24 the divorce decree?

25 A Not really. It seems like it was April something.



Page 7

1 Q April of 2009?

2 A Yeah, maybe.

3 Q All right. What is your wife's -- your ex-wife's current

4 name?

5 A Serena Leonard.

6 Q What is her address?

7 A I don't know where she's at.

8 Q Is she still in the southwest Washington area?

9 A I really don't know.

10 Q When was the last time you had contact with her?

11 A About then.

12 Q What is the highest level of formal education you have?

13 A I went to college at the University of Washington.

14 Q What year did graduate?

15 A '70.

16 Q 1970?

17 A (Witness nods head.)

18 Q What was your major?

19 A Economics.

20 Q During your adult life since college, give me sort of a

21 thumbnail road map of your career and employment.

22 A Of employment?

23 Q Employment slash career.

24 A After college I worked for a sporting goods distributor

25 for two to flee years out of Vancouver, Washington, that



Page 8

1 are no longer in existence.

2 After that I worked 14 years as a manufacturer's rep

3 in the hunting fishing camping business. And then I

4 started a -- I imported fishing lures out of Canada,

5 which I distributed throughout the US, all the Buzz Bomb

6 fishing lures.

7 And then I had another company. I imported and

8 designed hip and chest waders from -- that I had made in

9 Korea called Pro-Mark and Pro-Line.

10 And then I started a boat trailer distributing

11 company. I distributed Shoreliner boat trailers.

12 And then after that I started a tractor company

13 called Rhino International. And then after that was sold

14 I -- years later I started Tytan International.

15 Q Do you recall the year that you started the Rhino

16 business?

17 A 1988.

18 Q And when did you stop operating the business?

19 A 1995.

20 Q 1995?

21 A Uh-huh.

22 Q Thank you. Maybe I need your hearing aids.

23 What was the cause of your getting out of the Rhino

24 business?

25 A I was approached by several people to buy it. I just



Page 9

1 moved into a large warehouse from Kalama to Woodland and

2 we had a lot of dealers nationwide, and so we were very

3 attractive at the time, and so we sold it to the Alamo

4 Group.

5 Q How did the sale to the Alamo group go?

6 A I don't know what that means.

7 Q Did you have any disputes or litigation arising out of

8 that sale?

9 A Only on the second -- actually, yeah, there was two

10 contract fulfillment litigations out of that.

11 Q What was the outcome of the litigation?

12 A One was on a parts inventory. They had agreed to pay up

13 front 80 -- 75 or 80 percent of the inventory, and then

14 take an inventory and pay the completion after they did

15 inventory it, and they never fulfilled that.

16 And they were -- they lost that case and they paid

17 the balance. And then they owed me the second half of

18 the contract amount for the company itself, and they paid

19 that amount too.

20 Q So there were two pieces of litigation in that?

21 A Yes.

22 Q All right. Now I assume that in the course of that you

23 gave depositions or testimony in court. Is that a safe

24 assumption?

25 A Yes.



Page 10

1 Q Other than those two litigations, have you given prior

2 depositions?

3 A Yes.

4 Q All right. What are the circumstances of those?

5 A I was called to be deposed in one of my dealer's lawsuit

6 against Alamo Group, the company I sold to and they

7 deposed me.

8 Q All right. Any others?

9 A Yeah. I had a -- oh, excuse me. I thought that thing

10 was off. Just a second there. I don't want that thing

11 making noise.

12 MR. BUNDY: Good reminder to me.

13 MR. WAGNER: Yes, I'll double check

14 mine too.

15 THE WITNESS: There's a secret way to

16 turning this thing off. It's off now.

17 Okay. What was the question again?

18 Q (By Mr. Bundy) Can you read that back?

19 THE COURT REPORTER: Yes.

20 (Last question read by

21 the court reporter.)

22

23 THE WITNESS: Yes, I was in a suit

24 with a bank in Spokane.

25 Q (By Mr. Bundy) Were you the plaintiff in that case --



Page 11

1 A Yes, I was.

2 Q -- or the defendant? All right.

3 Mr. Leonard, at the beginning I delayed the usual

4 speech that we all like to give about, you know, making

5 sure that we speak with words and so forth. You appear

6 to be doing okay and we appear to be understanding each

7 other.

8 It's important throughout the day today that if you

9 don't understand a question that I ask, please let me

10 know that and I will try to clarify it. In spite of the

11 reputation of attorneys I'm not here to ask mysterious or

12 trick questions. I really need information, and to

13 understand your view of the facts, so if you don't

14 understand a question, please let me know and we will try

15 to fix it.

16 A Okay.

17 Q Also, if you need a break for any reason, the only time

18 you cannot take a break is between a question and an

19 answer. As soon as the answer is complete, let us know

20 and you can take a break, okay?

21 A We can just follow the same break pattern as yesterday.

22 Q Same as yesterday.

23 And if you have difficulty hearing me, let me know

24 and I will do likewise, same rules as you heard

25 yesterday.



Page 12

1 A Okay.

2 Q Mr. Leonard, you initiated this case by filing a lawsuit

3 against Mr. Bogden and Bogden, Inc.

4 What is your understanding of what this case is all

5 about?

6 A This case is, from our point of view, all about internet

7 slander or defamation.

8 Q What do you mean by internet slander?

9 A Well, slander is when you make statements that are untrue

10 and attempt to defame somebody.

11 Q What is your understanding of the term defamation?

12 A Well, I'm certainly not an attorney, but defamation is

13 when you have an intent to cast a wrongful image of

14 somebody, or whatever the points are, that you are trying

15 to cast an incorrect or a wrong image, I guess.

16 Q What are you looking to achieve in this litigation?

17 A We just want to be -- we want to first put a halt to it.

18 Second, we want to be compensated for the damages that we

19 have had.

20 Q How much damages have you had?

21 A We have an accountant at this moment that's going to be

22 doing -- presenting an accurate accounting of what those

23 will be.

24 Q Who is the accountant?

25 A Jerry Leslie.



Page 13

1 Q What's his address?

2 A I don't know. It's in Vancouver.

3 Q Do you know his telephone number?

4 A I can give it to you off my cell phone later.

5 Q All right. How does he spell his first name?

6 A J-E-R-R-Y.

7 Q And his last name?

8 A Leslie, L-E-S-I-L-E (sic).

9 Q I-L-E?

10 A L-E-S-I-L-E -- no, L-E-S -- just like Leslie.

11 Q Okay.

12 MR. BUNDY: Let's mark that as an

13 exhibit.

14 Off the record.

15 (Discussion off the record.)

16

17 (Exhibit No. 4 marked

18 for identification.)

19

20 Q (By Mr. Bundy) Mr. Leonard, I'm handing you what has

21 been marked as Exhibit 4. Will you identify that

22 document, please, for the record.

23 A This is an agreement that Mr. Bogden and myself had

24 entered into.

25 Q And it's captioned "Tytan International Dealer



Page 14

1 Agreement"; is that correct?

2 A Yes.

3 Q I will represent to you this is substantially identical

4 to what I believe was marked as Exhibit 1 in this case

5 with the exception of the very bottom line, the

6 handwritten note at the bottom that was cut off by a

7 photocopier on Exhibit 1.

8 So does that appear to be a correct statement to

9 you, sir?

10 A Yes.

11 Q Is this the only written agreement that you entered into

12 that governed the terms of the dealership with Mr. Bogden

13 and his company?

14 A I have to think about that one a minute here. Well, I

15 guess my answer is, this is not an all inclusive set of

16 conditions, terms and conditions and representations that

17 we had in entering into this agreement.

18 Q Is there a written memorandum of any kind of the other

19 terms that you allude to?

20 A I think possibly some of the e-mails may have some of

21 those, and I think some of them would be verbal.

22 Q Were there e-mails with Mr. Bogden before the date of

23 this agreement, which is February 19, 2007 that contained

24 other terms?

25 A I'm not real clear without looking at them to give you an



Page 15

1 answer. I assume so.

2 Q Would you turn to the second page of Exhibit 4, please.

3 A Okay.

4 Q Paragraph 21 toward the bottom of the page, would you

5 read that paragraph. It's only two lines.

6 Read it for the court reporter.

7 A Which number?

8 Q Paragraph 21.

9 A "This agreement contains the entire agreement between the

10 company and the dealer. No representations or statements

11 other than those expressly set forth in this agreement

12 have been made or relied on in entering into this

13 agreement."

14 Q And Then paragraph 23, the very first line.

15 A "The agreement replaces and takes priority over all

16 earlier agreements, statements, and understandings

17 between the parties, with the exception of existing

18 documents specifying payment terms, products bought by

19 the dealer from the company before the date of agreement,

20 and as to the payment terms for such products, the

21 existing documents will govern."

22 Q Thank you. Is your testimony today that those two

23 paragraphs were untrue at the time you signed them?

24 A No. That's not what I said earlier. I said -- if you

25 want her to read back what my answer was, it says this is



Page 16

1 not all of the agreements that we had throughout our

2 agreement -- our term. I also mentioned some other term

3 there, ingredients or something.

4 Q I'm talking about the period where you were entering into

5 this agreement back in January/February 2007.

6 Are there other terms of agreement between the

7 parties?

8 I'm excluding from that, sir, things like invoices

9 to purchase tractors and inventory that occurred later on

10 in the relationship. I'm trying to define what the

11 relationship was, what the legal relationship was --

12 A Yeah, but you are talking about a pretty big gray area.

13 When you start mentioning things like that, where do you

14 quit?

15 Because there is just a ton of things that are part

16 of an agreement that are not mentioned here, but this

17 certainly applies to the things that are involved in

18 here.

19 Q You testified there's a ton of things that are part of

20 the agreement. In this relationship what were those ton

21 of things?

22 A Well, you just started on them. Invoices, things that

23 were going to be adhered to as far as paperwork

24 warranties, different things such as that.

25 Q Okay. Let's talk about the time period up through



Page 17

1 February 19, 2007. As of February 19, 2007 were there a

2 ton of other terms to this agreement?

3 A I would have to review all of the e-mails back and forth

4 between us, and I'm not even sure if we had actually

5 shipped him products prior to this day, so I don't really

6 know the answer to that without checking through

7 everything.

8 Q Okay. This agreement contemplates the possibility you

9 might have shipped product during that date. I'm not

10 asking about those terms.

11 A Well, you are getting kind of confusing here. You are

12 talking these terms, those terms, these terms.

13 Q No, I'm being very precise.

14 A Okay.

15 Q As of February 19, 2007, were there other terms of the

16 dealership agreement that are not reflected in these two

17 pages?

18 Were there other promises you made, other promises

19 Mr. Bogden made, that were not contained in this

20 agreement?

21 A Well, I would say this agreement refers to or discusses

22 all of the things that may have had agreements to them.

23 Q What were some of those things that may have had

24 agreements to them?

25 A Our invoices.



Page 18

1 Q Those things happened after February 19, 2007, did they

2 not?

3 A No.

4 Q All right. To the extent that they were -- they happened

5 before that date then they are covered by Paragraph 23;

6 is that correct? They remain in effect.

7 I'm asking other than invoices that might be covered

8 by Paragraph 23, are there any other terms of agreement

9 between you and Mr. Bogden that are not reflected in the

10 dealer agreement as of February 19, 2007?

11 A Again, I guess my answer is that the things that are

12 involved on this in 2007 -- the 19th refer to the things

13 that we have involved in our case, and those are the

14 items that we discussed.

15 Q All right. My question is, are there other terms of

16 agreement, though, that are not reflected in here?

17 A Not reflected?

18 MR. WAGNER: May I interject? Terms

19 of agreement as to what?

20 MR. BUNDY: As to the relationship

21 between dealer and distributor.

22 MR. WAGNER: Well, the confusion I'm

23 getting is that they had an ongoing business relationship

24 for a year and there were invoices that were generated.

25 MR. BUNDY: I'm limiting it to the



Page 19

1 period ending February 19, 2007.

2 MR. WAGNER: No, throughout that year

3 they did business.

4 MR. BUNDY: I don't care about that

5 right now.

6 MR. WAGNER: You are just talking

7 about the terms of the dealer --

8 MR. BUNDY: The terms of the dealer

9 agreement, the relationship, the legal relationship

10 between Bogden, Inc. and Tytan, as it existed on February

11 19, 2007.

12 MR. WAGNER: Okay.

13 Q (By Mr. Bundy) Are there any terms that in your mind are

14 not reflected -- any terms of agreement that are not

15 reflected in these two pages?

16 A I would only say that -- I will say no. There was only

17 discussions over various items in here prior to signing,

18 and that's -- that would be possibly more elaboration of

19 these things.

20 Q What items in here did you discuss, prior to signing,

21 that might affect your interpretation of this two-page

22 document?

23 A We discussed the territory issue here, and this just says

24 "Territory for the above stores will overlap and be 43

25 miles radius of each store." We talked in more detail on



Page 20

1 that.

2 We discussed plans of his growth and expectations of

3 what he planned to do with the product line. We

4 discussed issues that are in here that we went over, such

5 as attending the county shows, how the product is to be

6 presented, invoices, warranty.

7 Q What did you talk about in terms of Mr. Bogden's plans

8 for growth?

9 Again, we are talking before --

10 A No, most of the talking was Mr. Bogden talking about his

11 plans for growth.

12 Q All right.

13 A And actually there is an e-mail there where he kind of

14 elaborates quite a bit about it. I don't know the exact

15 date of it, but I do know that he's talking about his

16 growth plans and things.

17 Q Is your recollection that that e-mail occurred before

18 February 19, 2007?

19 A I don't have a -- I don't know the exact date.

20 Q Okay. What did he tell you his plans for growth were?

21 A Well, he told me that he had two stores, one of them was

22 open and the other one, the one in Thorp was going to be

23 open, and Thorp was right next to the Ford dealership on

24 the freeway, and he told me that he would have people in

25 those stores, service people set up, and run a full scale



Page 21

1 dealership, open eight hours a day.

2 Q Did you include those statements in the dealer agreement

3 anywhere?

4 A Yes, I did. I'm pretty sure they are referred to in

5 here.

6 Q It does have addresses of two locations; is that correct?

7 That's on the top of Page 1.

8 A Yes, it does.

9 Q Did he in fact have both of those locations?

10 A He told me that he had the North Bend facility up and

11 rolling, and that the Thorp one would be started

12 immediately upon getting going with Tytan.

13 Q Did you visit either of those locations before you signed

14 this agreement?

15 A No.

16 Q Where did you sign this agreement?

17 A I signed this at his house.

18 Q And where was that?

19 A In Issaquah.

20 Q Paragraph 1 of -- strike that.

21 What did Mr. Bogden tell you about his plans for the

22 product line?

23 A Well, he told me his great deal of background on the

24 Vietnamese tractors that he was importing, and the

25 service work that he did on them. And that I think he



Page 22

1 said he would bring in a certain amount of them in a

2 container, and it was always about one or two of them

3 that he had to dismantle and use for parts or something

4 along those lines, and that he knew tractors inside and

5 out, and that he would perform all the warranty and

6 dealer requirements with ease.

7 Q Did you write all of those details into the dealer

8 agreement that is Exhibit 4?

9 A Well, I think they are pretty much represented on what's

10 there. They are referred to here like we talked earlier.

11 Q Was this a standard form dealer agreement, or was this

12 something you customized for Mr. Bogden?

13 A No. This is an agreement that we had used back in the

14 Rhino days when I had Rhino.

15 I didn't have it -- this came about, incidentally,

16 so you will know, is that he wanted something on paper

17 that gave him a territory. And that was the primary

18 focus of having this agreement signed and things on this

19 particular day. And so I just took a previous agreement

20 that we used in Rhino and adapted it.

21 Q Was Mr. Bogden your first Tytan dealer?

22 A No.

23 Q Was he the first Tytan dealer that had a written

24 agreement?

25 A He's the only dealer that had a written agreement.



Page 23

1 Q To this day he's the only dealer that had a write

2 agreement?

3 A That's correct.

4 Q What was your promise to him about territories?

5 A I think it's pretty well spelled out right here that he

6 could sell within a certain area. He could be allowed to

7 use the Tytan name in a positive manner with approval.

8 Q What does the term "exclusive" mean to you in this

9 context of dealership?

10 A It means we would sell no other dealers within his

11 territory.

12 Q What about your company making sales into the territory,

13 was that permitted or not?

14 A You can't control anybody where they are going to sell

15 it. It's illegal. Once they own it they can sell it

16 anywhere they want. We preferred to have an agreement,

17 which I had in most -- we do now and we always have had

18 if we sold into somebody else's territory, delivered a

19 product into their territory, that -- that they would get

20 a profit margin on it.

21 And we are -- then are -- they would send our

22 salesman back a ten percent commission, and it was

23 supposed to work both ways.

24 Q Did you have that arrangement with Mr. Bogden?

25 A Yeah. I don't recall delivering any tractors into his



Page 24

1 territory. That's my recollection.

2 Q You talked about one of the things that you discussed

3 during this period leading up to February 19, 2007 was --

4 had to do with county shows.

5 What was the substance of that agreement?

6 A Well, the Puyallup show is the largest show in the world

7 for county fairs, and we certainly didn't want to miss

8 that opportunity. That's a huge opportunity to make

9 sales. And we had actually been involved directly

10 when -- before in giving him the territory at the

11 Puyallup fair.

12 Q What were you expecting him to do at the county fair?

13 A Same thing everybody else does, show their product and

14 promote it.

15 Q All right. Did you provide a sign or anything for him to

16 use or recommend a sign for him to use?

17 A Yeah. We have signs that we gave out to dealers whenever

18 they work shows or even if they just want to put it on

19 their building or anything. We had signs.

20 Q That was available to Mr. Bogden?

21 A Yes, it was available.

22 Q How big is that sign?

23 A It's about three feet by two feet.

24 Q Okay. And what was the -- what words were on the signs

25 at that time?



Page 25

1 A One of them says "Tytan Factory Store," which it just

2 means that it's an outlet type of thing that people get a

3 cheaper price. That was the idea.

4 Q But it clearly had the word "Tytan" on it?

5 A Yes.

6 Q And that was something that you really encouraged, in

7 fact wanted Mr. Bogden to do, as I understand it, is to

8 use that sign at the county fairs or wherever he chose?

9 A We also had numerous banners, not just that item.

10 Q Okay.

11 A We had numerous banners the size of those two pictures or

12 the size of one or both of them together, numerous.

13 Q Let's try to get a guesstimate on the record as to the

14 size of those two pictures.

15 How is your ability to judge sizes? Can you give me

16 an estimate?

17 A Two foot by four foot looks like one of them.

18 Q Okay. So one of them would be two feet by four feet, and

19 two of them would be roughly double that, two feet by

20 eight feet?

21 A Yeah. And dealers more often than not would send us

22 their art work and get their own made.

23 Q Okay. So throughout this time those signs were available

24 to Mr. Bogden?

25 A That's correct.



Page 26

1 Q Let's talk about the Tytan name for just a minute.

2 I take it that's a trade name that you are proud of

3 and have worked to improve the public image of?

4 A Well, that's anybody's goal in my position.

5 Q Right. Is it a federally registered mark?

6 A Yes.

7 Q When did you get that registered, roughly?

8 A I don't know the date.

9 Q Was it before 2007?

10 A Oh, yeah.

11 Q Okay. And you spent a little bit of money getting that

12 registered; is that correct?

13 A Yes.

14 Q All right. So you would agree with the statement then

15 that your trademark is maybe not your most valuable, but

16 one of your very valuable assets in the business?

17 A It's a valuable asset.

18 Q And it's something you really don't want anybody to use

19 in a way that would cause the value of that asset to

20 decrease; is that a correct statement?

21 A Nobody would want that.

22 Q And is that true for you?

23 A That's true.

24 Q Let's mark that as Exhibit No. 5.




Page 27


2

3 Q Mr. Leonard, you have been handed what's been marked as

4 Exhibit 5 to these depositions.

5 A Okay.

6 Q I will make it a little easier. That is a two-page

7 document bearing Bates numbers TCO-000504 and 505; is

8 that correct?

9 A Yes.

10 Q And that is an e-mail from you to Mr. Bogden, Mitch, at

11 tractorco.com, sent on Saturday February 9, 2008 at 9:32

12 p.m.; is that correct?


14 Q Subject being regarding two broken 334 tractors?

15 A Yes.

16 Q All right. This is -- what is the e-mail about?

17 A First part of it is he merely wanted us to take back two

18 tractors and they had been sold and used, and that would

19 have meant that we would have had to sell them as used

20 and he wanted to get new price for them.

21 Q All right. That's the first part?

22 A Uh-huh.

23 Q What's the next part?

24 A I'm merely stating that the tractors are totally

25 repairable and that he should make that effort.



Page 28

1 Q Keep going.

2 A And I was saying weeks have gone by without being able to

3 get an answer from him of what caused that problem, or

4 what the problem actually is.

5 In other words he -- we had no way to access what

6 the problem is. All we saw was two pictures. We saw one

7 picture, and I don't mean the actual picture, I mean in

8 our mind we were looking at one tractor that had trouble

9 moving in reverse, and the other tractor that had a

10 demolished three-point. And the three-point is a no

11 brainer. The guy rammed it into something. The other

12 one we didn't know.

13 Q This Exhibit 5 goes on to say in the fourth paragraph,

14 and why don't you go ahead and read that fourth

15 paragraph.

16 A Well, I'm counting down here, are you talking about the

17 one that says "I cannot"?

18 Q Yes.

19 A "I cannot have a dealership without having a retail

20 facility and service handled. That is part of the terms

21 of our agreement. So this will be notification of our

22 cancelling of the dealer agreement that we have set forth

23 with you. We will allow you 30 days to clean up any

24 deals you may have open."

25 Q Now down below, and let's start in the middle of that



Page 29

1 next paragraph just to avoid having the reporter have to

2 copy it all, and start at "We also."

3 A Where are you talking?

4 Q The very next paragraph.

5 A Oh, "We also do not go along with other products being

6 purchased that are in direct competition, Jinma, with our

7 products. This defeats what we signed an agreement with

8 you, so feel I cannot -- we are not going the same

9 direction."

10 Q At the time you sent this, did you in fact mean what you

11 say, that this was a notification that you were

12 cancelling the dealer agreement?

13 A Yeah. This is after numerous, like Mr. Bogden testified,

14 telephone conversations and things we had had about

15 things such as needing to have mechanics on board, the

16 other facility on board, many of the things in our dealer

17 agreement that just hadn't been consummated.

18 Q I think we didn't communicate there. The answer was a

19 simple, did you intend at that point to cancel the

20 agreement?

21 A Yeah, unless he were to get with doing some of the

22 service things and the issues that we had been talking

23 about that I had asked him several times.

24 Q Was there any other written notice that you sent to him

25 announcing your plans to cancel his dealership?



Page 30

1 A No. I think there's several e-mails where I talked about

2 getting his facilities and service and other issues up.

3 Q Okay.

4 A There's a mixture of e-mail, I think, and verbal.

5 Q Was there any other -- just to clarify it, as I

6 understand your testimony, there was no other written

7 notice that threatened cancellation unless he took

8 certain actions?

9 A No. There was other notices given to him that fully

10 notified him that he had to get his service situation in

11 order.

12 Q And have you produced copies of all of those e-mails to

13 us in this litigation?

14 A I'm fairly certain we have. Some of it was verbal. Some

15 of it was -- some of the things we talked about were in

16 e-mail. I'm not sure of the ratio.

17 Q Now as I read this e-mail, Exhibit 5, I interpret it as

18 containing two bases, two grounds for the cancellation.

19 First, the absence of a retail facility and service

20 handled, whatever that means, and second that you did not

21 go along with other products being purchased from Jinma.

22 Was there any other written notification in

23 connection with the cancellation of reasons for the

24 termination?

25 A I don't talk to people on cancelling. A cancellation is



Page 31

1 a final notice. And I talk to them about that we can't

2 continue this way, or in that type of language, and

3 that's to me giving him notice.

4 Q Now the one sentence in here reads, "We will allow you 30

5 days to clean up any deals that you may have open."

6 Did you give him any other periods of time to take

7 any other actions?

8 A We didn't -- we would -- you know, that -- we would have

9 given him all the time he needed. That was just a time

10 that we came up with, and if he had any argument with

11 that time then we would have certainly extended it.

12 It was just a matter to let him know that, you know,

13 if he needed a tractor for a pending sale, or if he

14 needed whatever we would adapt to it.

15 Q But it was for the purpose of cleaning up those pending

16 deals and limited to that?

17 A No. It was for the purpose of taking care of whatever

18 matters he still had on the table that he needed to take

19 care of.

20 Q Okay. What matters would have been on the table that he

21 would need to take care of that didn't involve pending

22 sales?

23 A Anything to do with sales. Anything to do with warranty.

24 Q Did I correctly state the two reasons that you gave in

25 this Exhibit 5 for the cancellation?



Page 32

1 A What was the second one again? Do you want to repeat

2 that.

3 Q The products being purchased that are in direct

4 competition, Jinma.

5 A There's a little clarification on that second one. And

6 that was part of the things that we had discussed in

7 detail, and that is that our products have very similar

8 parts to a Jinma. And if we allow a dealer to take on

9 another product with the same parts, we have an extremely

10 good liberal warranty relations with our dealers and give

11 them a lot of parts for warranty and Jinma does not.

12 So what happens is if they take on another product

13 line that pretty soon we are supplying for both lines,

14 and that's the problem we get into.

15 Q Are there other lines that you won't allow your dealers

16 to carry?

17 A If we just -- anything that has a high degree of similar

18 parts. It's a death spiral we can't get into. We can

19 say it won't happen, but it does happen because pretty

20 soon they can't get the parts from the other guy and they

21 want the warranty through us for the other one.

22 Q What are some other companies -- excuse me, some other

23 brands that you have had that problem with?

24 A I haven't really -- I pretty much had most of them with

25 Jinma.



Page 33

1 Q Okay.

2 A Because that's the most popular one.



5

6 Q Mr. Leonard, I'm handing you what has been marked as

7 Exhibit 6 to these depositions.

8 I will help a little bit by identifying that as a

9 two-page document bearing Bates numbers, which at the

10 bottom of the first page is a little bit obliterated,

11 TCO-000065 and 66; is that correct?

12 A Yes, it is.

13 Q And that's a letter from a gentleman named Patrick L.

14 Kubin -- is that how we pronounce it -- attorney at law?

15 A Yes.

16 Q To Mitch Bogden, dated March 26, 2008 regarding Tytan

17 International; is that all correct?

18 A Yes.

19 Q Who is or was Mr. Kubin?

20 A He's an attorney for my corporation.

21 Q And directing your attention, if you would please, to the

22 third paragraph, the one that begins "Your dealer

23 agreement."

24 A Okay.

25 Q It reads, the first sentence, "Your dealer agreement



Page 34

1 commenced February 19, 2007 and terminated automatically

2 on February 19, 2008 by failure to renew."

3 Did I read that correctly?

4 A Yes.

5 Q Is that a true statement?

6 A Partially.

7 Q What part of it is not true?

8 A Well, I mean, for obvious reasons we were dissatisfied

9 with the things that we just got done talking about.

10 Q Okay. Mr. Kubin here, was he representing you at the

11 time?

12 A Yes. He's always been the attorney I used.

13 Q Did you review this letter or a draft of it before it

14 went to Mr. Bogden?

15 A I'm fairly certain I did.

16 Q And you authorized Mr. Kubin to send this letter?

17 A Yes.

18 Q Which is the truth, did you cancel, or was it a failure

19 to renew?

20 A I think it's a both situation.

21 Q Do you know why Mr. Kubin did not mention the

22 cancellation -- the concept of cancellation in this

23 letter that's Exhibit 6?

24 A Probably because he saw it the same way I did. I mean,

25 in our particular case both things are the same.



Page 35

1 Q Got you to the same result?

2 MR. WAGNER: May I interject? It

3 doesn't say cancellation in the second from the bottom

4 last paragraph of the letter.

5 MR. BUNDY: It will speak for itself.

6 There is a reference to the earlier letter. I was

7 getting there.

8 MR. WAGNER: Okay.

9 MR. BUNDY: But now I don't have to.

10 MR. WAGNER: All right.

11 Q (By Mr. Bundy) When Mr. Kubin says in this next

12 paragraph, your -- and I quote, "Your continued refusal

13 to provide access to these goods for warranty work," and

14 it goes on, what goods did Mr. Bogden refuse to make

15 available for you to do warranty work on?

16 A Oh, I think we are talking about this Cashmere tractor

17 here, aren't we, as being one of the items for sure.

18 Q How did he refuse to make that available?

19 A Oh, we had asked to come up and take a look at it. We

20 asked for pictures. We asked for, you know, we really

21 wanted to see it because we had never had such a problem.

22 Q Did you travel to Cashmere to try to see it?

23 A No, we couldn't at the time.

24 Q Why?

25 A Because we only have two-wheel drive trucks, and we had



Page 36

1 to go either through Goldendale or we had to go up over

2 Snoqualmie, and every time that we had available it was

3 horrible weather.

4 Q Did Mr. Bogden cause that horrible weather?

5 A I don't know. I mean, not the weather, no.

6 Q Did he tell you you could not come to examine the

7 tractor?

8 A Well, I'm not sure of my time zones at this point

9 whether -- this is March 26th, so I assume he had the

10 tractor back in his possession by then.

11 Q Did Mr. Bogden ever tell you you could not come and

12 examine the tractor?

13 A Yeah. We asked for it numerous times. We have asked

14 constantly to see parts and things to -- about these

15 tractors for warranty, and we have never been allowed to

16 see it, not once.

17 Q Did you travel to Thorp to examine them?

18 A No. We talked to him on the phone and e-mails or

19 whatever.

20 Q Is your testimony that Mr. Bogden never provided you with

21 photographs of the objects?

22 A We had some pictures, but they were just not clear. You

23 can't really -- we have never seen this problem. We

24 didn't know what it was. And we wanted to -- you have to

25 really see it in person to see all the complexities of



Page 37

1 what possibly could have happened.

2 Q Was there any other situation in which you allege that

3 Mr. Bogden refused to provide access to goods so that you

4 could do warranty work?

5 A Yeah. There was a situation where we were exchanging

6 some tires, and he -- we had asked and asked and asked

7 for -- to find out what this problem was, and then he

8 claimed that his -- his mechanic was going to come down

9 and pick these tires up and then fully explain to us and

10 show us exactly what was happening and he did not.

11 Q Mr. Kubin makes a general allegation in here, and I will

12 quote, "You continue to make threats and extortionate

13 demands," and it goes on.

14 What threats and extortionate demands --

15 A Where are you reading all of this?

16 Q Fourth paragraph, last two lines. The second of the long

17 paragraphs.

18 A Okay.

19 Q All right. What threats did Mr. Bogden make?

20 A Well, he basically was trying to blackmail us or extort

21 us. I don't know the exact definition of those deals

22 that he's using here, but for one he said he was going to

23 leave the tractors open out in the weather for all the

24 customers to see, and that -- that we would pay, you

25 know. So he was going to show them in a real horrible



Page 38

1 light. And he did actually show them in a horrible light

2 and pictures and all sorts of different means.

3 Q Are you testifying that the pictures were not accurate

4 pictures of the things they were depicting?

5 A I just told you, he left our tractors open to the

6 weather, wide open, and showed them in the worst possible

7 light. You have rain and water and rust and everything

8 else that will enter into the situation and that's not a

9 fair, level playing field.

10 Q Did you see the tractors exposed to the weather?

11 A Yeah. And then another issue is that he's got a picture

12 of one of our hoods up, with a tractor lifting our

13 tractor up in the front with their opposite front loader

14 trying to depict that there's troubles with our tractors,

15 trying to depict that our tractor is weak. And in

16 actuality, our tractor is a very comparable tractor in

17 every means to what he was showing us from those two

18 issues.

19 Q Were any of the pictures -- are you testifying that any

20 of the pictures that Mr. Bogden used were altered so they

21 did not show accurately whatever they were showing?

22 A They were staged to depict a defamatory idea in a

23 consumer's mind.

24 Q You testified that there was a photograph of a different

25 tractor lifting the front of a Tytan tractor. Is that



Page 39

1 the photograph that you have a copy of?

2 A No, but you do. If you want to pull it out we will just

3 talk about it.

4 Q So you don't have a copy of that photograph?

5 A I'm sure my attorney has it in the records.

6 Q Okay. But you are not testifying that those photographs

7 were altered?

8 A My testimony is that they were staged.

9 Q Okay. The question is, and I understand you're

10 testifying that they are staged, but the question is, are

11 you testifying that they were altered?

12 A The photographs themselves altered?

13 Q Yes.

14 A No. I think they were true pictures of a staged

15 situation.

16 Q All right. Now looking at Exhibit 6, do you still have

17 that in front of you?

18 A Okay.

19 Q Is it a fair representation that Exhibit 6 was sent by

20 Mr. Kubin more than 30 days after your February 9 e-mail

21 that is Exhibit 5?

22 A That's accurate.

23 Q Okay. So you would agree with me that nothing in Mr.

24 Kubin's letter gave Mr. Bogden advance notice of any

25 reasons for nonrenewal or cancellation; is that a fair



Page 40

1 statement?

2 A Can you read that question again.

3 MR. BUNDY: All right. Why don't you

4 read that back, please.

5 (Last question read by

6 the court reporter.)

7

8 THE WITNESS: I'm sorry. I still

9 didn't understand that question.

10 Q (By Mr. Bundy) All right. We will try to rephrase it.

11 We will set up the predicate again.

12 It's -- you agreed with me that Mr. Kubin's letter

13 was more than 30 days after your e-mail dated February 9;

14 is that correct?

15 A That's a fact.

16 Q All right. So having happened more than 30 days after

17 you canceled the agreement, Mr. Kubin's letter could not

18 possibly give Mr. Bogden advance notice before the

19 effective date of the cancellation of the reasons for

20 cancellation; is that a true statement?

21 A I'm sorry. You know, I don't quite get that sentence.

22 I'm having a little trouble with what you are asking me

23 there.

24 I can, you know, I can make a stab at answering it,

25 but I don't want to answer it unless I know what you are



Page 41

1 asking me here.

2 Q That's fair.

3 A I have got two letters here, and I'm kind of simple

4 minded, I guess.

5 Q That's all right. We will try to make it so simple that

6 even an attorney can understand it.

7 Two documents, Exhibit 5 and Exhibit 6, Exhibit 6 is

8 more than 30 days after Exhibit 5; is that correct?

9 A That's right.

10 Q Exhibit 5 says this will be notification of our canceling

11 the dealer agreement that we have with you, and we will

12 allow you 30 days to clean up any deals, right?

13 A Yes.

14 Q By the time Mr. Kubin's letter arrived sometime after

15 March 26, 2008, more than 30 days had expired; is that

16 correct?

17 A Yes.

18 Q So Mr. Kubin's letter could not have possibly arrived

19 more than 30 days after February 9, which would have been

20 approximately March 9 ; is that correct?

21 A Yes.

22 Q So it could not have given Mr. Bogden notice of what he

23 had done wrong back before February 9?


25 Q He couldn't have received the notice before he got the



Page 42

1 letter?

2 A He got the letter from me.

3 Q Right. He got the e-mail from you on February 9?

4 A That's right.

5 Q Okay. Was there any other written -- I don't care about

6 verbal -- any other written communication to Mr. Bogden

7 that told him his agreement would be canceled or not

8 renewed for any reason?

9 A Like I told you before, the way I -- I talked to Mr.

10 Bogden, I always talk in a manner that I want to get

11 things resolved, but I told him we cannot continue with

12 this sort of situation, and to me that's giving a

13 warning.

14 Q All right. I'm not trying to be argumentative, but I

15 need to understand.

16 Was there any other written -- I understand you have

17 testified that there were verbal warnings.

18 A I'm certain --

19 Q Any written warnings?

20 A I'm certain there is an e-mail in there using those very

21 words I just gave you.

22 Q Was there any e-mail in there that told him he would be

23 canceled unless he did X, Y, and Z within a certain

24 number of days?

25 A When you have an agreement over here, which is kind of



Page 43

1 the rule book, and over here somebody is telling you that

2 you cannot continue to violate this thing, and he is not

3 canceling you at that point, he's telling you something

4 and that's what I was doing.

5 Q All right.

6 A Telling him to correct it.

7 Q I understand you were telling him things verbally. Did

8 you tell him anything else written that we don't have

9 copies of in Exhibit 5 and 6?

10 A I would have to review all the e-mails. I know there is

11 one, or maybe two, maybe three e-mails talking about

12 service issues and things.

13 Q All right.

14 A And there is phone calls and whatever else.

15 Q Did any of those e-mails, to the best of your

16 recollection, contain a threat of cancellation if he did

17 not make changes?

18 A When I tell somebody we cannot continue with this, that

19 is a threat of cancellation.

20 Q Okay. I see you are looking at your watch. Shall we

21 take a five- or ten-minute break and let everybody

22 stretch?

23 A Yes.

24 (Recess 10:13 a.m. to

25 10:22 a.m.)



Page 44

1

2 Q (By Mr. Bundy) We are back on the record after a brief

3 break.

4 Mr. Leonard, you testified earlier that your

5 complaints in this case involve certain statements that

6 you allege that Mr. Bogden made.

7 I'm looking to understand what those statements were

8 and the -- as much detail as we can recall about that,

9 who they were to and so forth.

10 A You are saying I made those statements?

11 Q No. You are alleging that Mr. Bogden made those

12 statements, as I understand your testimony.

13 A I didn't quite get what you are referring to.



16

17 Q Mr. Leonard, I'm handing you what's been marked as

18 Exhibit 7 in these depositions. Will you identify that

19 document, please.

20 A This is a complaint that my attorney filed, violation of

21 consumer protection, slander and interference of business

22 relationship.

23 Q Okay. And that is the complaint, the original complaint

24 in the case that we are involved in today; is that

25 correct?



Page 45

1 A Yes.

2 Q And to this date, you have never changed what you have --

3 what you are formally complaining about in this case,

4 have you?

5 A I don't believe so.

6 Q Under the section on Page 2 -- I should ask you, did you

7 authorize Mr. Johnson to file this complaint on your

8 behalf?

9 A Yes, I did.

10 Q Did you review it with Mr. Johnson or -- with Mr. Johnson

11 before he filed it?

12 A Yes.

13 Q And at the time, did you believe all of the allegations

14 made in the complaint were true?

15 A Yes.

16 Q Page 2, under Roman Numeral III, entitled "Facts," you

17 state, "Over the last year, the defendants have made

18 false and/or misleading statements about the plaintiff

19 and/or the products the plaintiff sells."

20 Is that what it says?

21 A Yes.

22 Q What -- let's take those false and misleading statements

23 one at a time.

24 What's the first false and/or misleading statement

25 that the defendants made?



Page 46

1 A That the 334 had a faulty transmission.

2 Q Okay. Before we get into any details about those, let's

3 list all of those false and misleading statements because

4 you have an "S" on the end of statements, so I assume

5 there is more than one.

6 What was the second one?

7 A Another version of that same thing was that the 334 had a

8 faulty design idler gear.

9 Q All right. And number three false and/or misleading

10 statement?

11 A That Tytan was -- had poor parts supply.

12 Q Number four false and/or misleading statement?

13 A That the insides of the Tytan transmission were -- I'm

14 using the word "junk," but it was that basic comment.

15 Q Number five false and/or misleading statement?

16 A That the front axle of the Tytan 334 was not designed for

17 a front loader.

18 Q Number six false and/or misleading statement?

19 A He made comments to people that the shape of the axle on

20 the front four-wheel drive was not of a substantial

21 tractor design.

22 Q Number seven false and/or misleading statement?

23 A He made comments that the certain parts of the bolts, for

24 example, were not industry standard on the tractor.

25 Q Did that relate to the 334?



Page 47

1 A Yes, steering brackets.

2 Q Number eight false and/or misleading statement?

3 A He told people that Tytan is hiding an internal recall of

4 products on the steering brackets.

5 Q And number nine false and/or misleading statement?

6 A He made the comment that the clutches on the Tytan 334

7 were substandard design and materials.

8 Q Number ten false and/or misleading statement?

9 A He made comments to numerous people that -- that were

10 false concerning things about myself.

11 Q Number eleven false and/or misleading statements?

12 A I would have to refer to the documents. There's -- it

13 just keeps going on. I would have to refer to the

14 documents and different people we have talked to and all

15 those things to come up with a report on that sort of

16 thing.

17 Q Can you recall any others sitting here today?

18 A You know, that's about the longevity of my memory right

19 now is ten items.

20 Q I believe we will go back up to the list and we will

21 start to work through those so I understand what your

22 claims are.

23 You are alleging Mr. Bogden made certain

24 representations of the transmission of the 334 tractor

25 being faulty is some respect.



Page 48

1 Am I correctly summarizing your testimony?

2 A He said the transmission was a faulty design.

3 Q Who did he say that to?

4 A There's several witnesses. I don't have that in my mind

5 right now. There were several of them.

6 Q Is there anyone who you did not obtain a declaration or

7 an affidavit from?

8 A Yeah. I didn't have that -- the ingredients of those ten

9 items in each and every declaration that had some of

10 those things in them, no, but I do have declarations from

11 most of the people that I talked with.

12 Q Who specifically did Mr. Bogden tell, in your words, that

13 the transmission was faulty?

14 A Well, the other one is he's told people that the -- well,

15 Item No. 1 and No. 2 he's told most all of those dealers

16 that I had on board.

17 Q What did he say to them?

18 A He called them up and told them that he had some breakage

19 and it was a faulty design.

20 Q Were you present during those conversations?

21 A No, they called me. All of them did.

22 Q Did you ask Mr. Bogden what he told any particular

23 person?

24 A I didn't have to. He also put it in writing in e-mails.

25 Q Okay. And do you have copies of those e-mails?



Page 49

1 A You do and he does. They are in there.

2 Q Are there any e-mails that did not get exchanged in

3 discovery that you are aware of that address the -- your

4 allegations that -- that support your allegations that

5 Mr. Bogden stated that the transmission on the 334 was

6 faulty?

7 A I -- that's between you two. You can compare your

8 documents and check that out.

9 Q That's not my question, sir. My question is, are you

10 aware of any other written documents?

11 A I'm not aware of any.

12 Q That we have not exchanged in this case?

13 A I'm not aware.

14 Q Did any of the people who reported these statements to

15 you report Mr. Bogden's exact words regarding the 334

16 transmission?

17 A Basically they said that he had mentioned that it had a

18 faulty transmission and that those are the comments that

19 we received.

20 Q Regarding your allegation that he told people that Tytan

21 had poor parts supply, I believe were your words, who did

22 he tell that to?

23 A All of these things have been told to numerous consumers,

24 numerous. I haven't, you know -- we haven't put together

25 all of it, their names, but those dealers and those



Page 50

1 people have been told those things. Jim Storey was one

2 of the dealers.

3 Q Besides Jim Storey, who else do you know by name who was

4 a recipient of those alleged statements?

5 A There was an attorney who attempted to buy a tractor from

6 us at first and then went to Mr. Bogden's location and

7 got all of those types of comments.

8 Fred Cramer got all of those types of comments.

9 Q Is Fred Cramer the attorney?

10 A No, no. The attorney I will have to look up his name.

11 He's an attorney in Woodland. He was a prosecuting

12 attorney, federal prosecuting attorney.

13 Q Have you talked with the attorney?

14 A Yes.

15 Q You don't remember his name?

16 A Not off the top of my head.

17 Q All right. Have you talked with Fred Cramer?

18 A Yes.

19 Q All right. What did each -- what did the attorney report

20 to you that Mr. Bogden said about parts supply?

21 A About parts supply that we -- that was just amongst many

22 other types of comments about the transmission was

23 faulty, the idler gear was faulty.

24 Q I understand. I'm not asking that question though, sir.

25 I'm asking the simple question of what did the attorney,



Page 51

1 whose name we don't know from woodland, say to you that

2 Mr. Bogden said about parts supply, not about any other

3 topic right now. We will get to those.

4 A Uh-huh.

5 Q What did the attorney say about parts supply?

6 A He said that we were -- had a real poor parts supply.

7 Q What did he say that Mr. Bogden said about the poor parts

8 supply?

9 A He just said what I just told you.

10 Q All right. Nothing more than that?

11 A Yeah.

12 Q All right. Mr. Cramer, what did he tell you about Mr.

13 Bogden's statements regarding parts supply?

14 A Same thing.

15 Q Same words?

16 A We had a very poor parts supply.

17 Q So Mr. Cramer told you that Mr. Bogden used the words

18 "Tytan has a very poor parts supply"?

19 A Yes.

20 Q All right. Did Mr. Cramer elaborate on that statement at

21 all?

22 A I would have to review my e-mail copies that I have and

23 different things. I didn't think about that.

24 Q What e-mail copies would you need to review?

25 A Oh, this was a copy that Mr. Cramer forwarded to me of



Page 52

1 conversations he had with Mitch, and he also quoted what

2 he had said on a phone call and different things.

3 Q Who else told you that Mr. Bogden allegedly made comments

4 regarding poor parts supply at Tytan?

5 A There was a lot of dealers -- consumers. I would just

6 have to review my -- I don't have their names on the tip

7 of my tongue.

8 Q Could you provide that list of consumers?

9 A I can work on that.

10 Q All right. I will be getting a request out.

11 Now you had -- you broke the transmission topic into

12 two topics. The first one I think we dealt with a little

13 bit awhile ago about general statements about it being a

14 faulty transmission.

15 Now you have also alleged he claimed there was a

16 faulty design of the idler gear. Did I get that

17 allegation correct?

18 A You did.

19 Q Who did he make that -- those statements to?

20 A Every one of those dealers. Every one of those dealers

21 and numerous consumers including --

22 Q Specifically -- go ahead.

23 A Including that attorney.

24 Q Specifically, what did Mr. Bogden say to every one of

25 those dealers?



Page 53

1 A I just told you right there. You have them listed.

2 Q The words are "faulty design of the idler gear"?

3 A Yes.

4 Q Now, again, for all ten of these categories that we are

5 talking about, were you present for any of the

6 conversations in which Mr. Bogden allegedly made these

7 statements?

8 A No. But some of those things have been on the internet

9 as well.

10 Q Whatever is on the internet would speak for itself, would

11 that be a safe assumption?

12 A That's the only presence I have had.

13 Q Now -- do I understand your testimony that all ten of

14 these alleged statements were made by Mr. Bogden by

15 telephone?

16 A A great deal of them were.

17 Q All right. Are you alleging that he made any statements

18 in face-to-face conversations that fall within these ten

19 categories?

20 A To consumers.

21 Q All right. Were you present for any communications

22 between Mr. Bogden and consumers?

23 A No.

24 Q How did you gain knowledge of communications between Mr.

25 Bogden and consumers?



Page 54

1 A They would come through our facility and tell us.

2 Q Did you keep any contemporaneous records in writing of

3 what consumers told you regarding statements allegedly

4 made by Mr. Bogden?

5 A I may have some notes scratched here and there. I would

6 have to find them.

7 Q All right. We will be asking for those.

8 Down to Item 4 on this ten item list, you allege

9 that Mr. Bogden told certain people that the insides of

10 Tytan transmissions were quote, junk, I believe you

11 conceded that junk was your word.

12 Is that a correct summary of what you testified to?

13 A Yes.

14 Q What were the exact words that Mr. Bogden allegedly used?

15 A I would have to review some of the e-mail -- some of the

16 internet comments and some of the comments that were made

17 to different people.

18 Q What would you review to obtain that information besides

19 e-mails that have been exchanged between counsel in this

20 matter and --

21 A What was number three again? Is that the one you are on?

22 Q I'm on number four.

23 A What was that one again?

24 Q The insides of Tytan transmissions were junk.

25 A All right.



Page 55

1 Q What were the exact words that were reported to you as

2 being Mr. Bogden's words to dealers?

3 A Basically that those -- that type of comment right there.

4 Q All right. You don't know what the exact words were?

5 A The words that were in the internet as well as what

6 people were told.

7 Q And when you talk about in the internet, where would one

8 look to find those words in the internet?

9 A Well, they are on different internet postings that he

10 had.

11 Q Where did Mr. Bogden make internet postings?

12 A He had an area called Jinma slash Tytan.

13 Q Are you talking about on his website?

14 A That's what I'm talking about.

15 Q All right. Anything outside of the tractorco.com

16 website?

17 A No.

18 Q And would that answer apply to all ten of these

19 categories?

20 A No, let's go again. No, not outside of that. Obviously

21 there is e-mails and several things I would have to

22 research, but I have dealers that were told that and some

23 of the declarations reflect some of those types of

24 comments as well.

25 Q Okay. Other than documents that we have already



Page 56

1 exchanged in this litigation, are there any other e-mails

2 or declarations that we would need to look at to get a

3 full understanding of every word that was allegedly said

4 by Mr. Bogden?

5 A I can only say that there is a lot of consumers out there

6 that had said those things to us, and I would have to

7 research those possible notes that we may have.

8 Q When do you allege that Mr. Bogden made the statements

9 that we have discussed in items one through four?

10 A Oh, they have been made constantly since the first

11 postings he did on the internet that were in the

12 defamatory mode.

13 Q When did Mr. Bogden, in your view, first post something

14 that was in a defamatory mode on the internet?

15 A Oh, there's pictures that have been made part of the

16 documents that show those.

17 Q I understand there are pictures and I understand there

18 are documents.

19 When did he post those things on the internet?

20 When did he first post those things on the internet?

21 A Sometime after that letter that we had discussed of --

22 after February 9th, in that area, that general time zone

23 of 2008.

24 Q So you are not alleging that anything that he posted on

25 the internet was a basis for canceling his dealer



Page 57

1 agreement; is that a safe assumption?

2 A I would have to review my notes. I would have to review

3 the documents to answer that one.

4 Q Okay. You have your -- the cancellation e-mail and

5 that's Exhibit 5 in front of you, and you have Mr.

6 Kubin's letter that is Exhibit 6. You testified a minute

7 ago that he made the -- started making the postings after

8 the date of Exhibit 5. I -- did he -- are you alleging

9 that he made what you would characterize as defamatory

10 postings before the date of Exhibit 5?

11 A I don't know exactly the time -- exactly the deal, and I

12 don't want to speculate on it. I would have to review

13 the --

14 Q What would you review to determine that?

15 A The e-mails and postings.

16 Q Do you have copies of all of the postings?

17 A I think we do, yeah.

18 Q Number five on your list is the allegation that Mr.

19 Bogden made statements to the effect that the front axle

20 of the 334 was not designed for a front loader.

21 Who did Mr. Bogden make that statement -- those

22 statements to?

23 A Those were made to some of the same people that put in

24 declarations and also to numerous consumers.

25 Q Okay. Same question as to the consumers, what are their



Page 58

1 names?

2 A I don't have them all on the tip of my tongue right now.

3 Q But you could determine who they are?

4 A Yeah, we already mentioned that we would.

5 Q All right. What specifically did Mr. Bogden say to those

6 dealers?

7 A Well, I think you have already got declarations there.

8 Q All right. Who prepared those declarations?

9 A Basically, I was given the information from the dealer

10 and put it into the declaration and had them sign it.

11 Q So you or somebody under your direction typed those

12 declarations?

13 A That's right.

14 Q Who interviewed the dealers in preparation for signing

15 those declarations?

16 A Myself and in some cases I think maybe a salesman we had

17 working for us.

18 Q What was his name?

19 A I would have to review who it was. We had different

20 salesmen at different times, so I would have to review

21 some of those.

22 Q Do you know if you have identified the salesman as a

23 witness in this case?

24 A I'm not sure.

25 Q Those declarations are all dated around October of 2008.



Page 59

1 Does that help you to identify who the salesman was?

2 A No, I don't know off the top of my head who it was at the

3 time.

4 Q Did you visit those dealers to obtain that information,

5 or did you interview them over the telephone?

6 A Over the telephone and some of them showed up personally.

7 Q All right.

8 A At different times.

9 Q Did you make notes of your conversations with the dealers

10 while you were on the telephone with them?

11 A I did.

12 Q Where are those notes?

13 A I'm not sure if I kept them or not actually after we did

14 the declaration.

15 Q What would you have done with them if you didn't keep

16 them?

17 A They may be in the file.

18 Q If they are not in the file, where would they be?

19 A In the trash.

20 Q Did you take those notes in your own handwriting?

21 A Yes.

22 Q Did you take any of them on a computer or other device as

23 you were speaking with people?

24 A No. Handwritten.

25 Q Then the sixth item on our list here of alleged



Page 60

1 statements by Mr. Bogden is that the shape of the axle on

2 the front of the four-wheel drive was not of substantial

3 tractor design, I think close to that were your words.

4 Is that a more or less an accurate summary of what

5 you testified to?

6 A That's accurate.

7 Q Who did Mr. Bogden allegedly say that to?

8 A I think he said it to Fred Cramer. I think he said it to

9 Jim Storey.

10 Q Anybody else?

11 A I don't have all of that at my fingertips right now.

12 Q Anybody besides Fred Cramer and Jim Storey and anyone

13 whose declaration we may have here to look at?

14 A I would have to review that. I don't have all the

15 answers in my head right now.

16 Q To the best of your recollection, sitting here today, is

17 there anyone else to whom you allege Mr. Bogden made

18 statements regarding the shape of the axle not being

19 substantial enough on the --

20 A Yeah. I know that there are.

21 Q All right. Who are those people?

22 A Well, I know that he -- at the TYM meeting had passed

23 around our front axle brackets and made statements to the

24 same effect to the many dealers there.

25 Q Who reported that meeting to you?



Page 61

1 A Darrell Haugland.

2 Q How do you spell his last name?

3 A H-A-U-G-L-A-N-D.

4 Q Where is he from?

5 A Montana.

6 Q What did Mr. Haugland report that Mr. Bogden said?

7 A He took the axle brackets and passed them around to the

8 dealers and asked them if they had ever seen anything so

9 crappy, and that's my word.

10 Q You are not testifying that Mr. Bogden used the word

11 "crappy"?

12 A No.

13 Q Are you testifying that the items passed around at that

14 meeting were not Tytan brackets?

15 A No, they were.

16 Q Is there anything else that anyone reported to you that

17 Mr. Bogden said at that meeting of TYM dealers?

18 A Yeah, that we had idler gear problems, and front axle

19 problems, and that they were of poor quality.

20 Q Did Mr. Haugland report to you that Mr. Bogden used the

21 words, quote, unbelievable poor quality?

22 A Poor quality.

23 Q Just poor quality?

24 A Yeah.

25 Q Not the word unbelievable?



Page 62

1 A No.

2 Q Was Mr. Haugland asked to give Mr. Bogden's exact words

3 or was he summarizing Mr. Bogden's words?

4 A He told me that's what he said.

5 Q All right. Did you ask him for Mr. Bogden's exact words?

6 A I asked him what he said.

7 Q The seventh item on our ten item list here has to do with

8 parts, and I think you narrowed it down to bolts not

9 being industry standard on the 334 steering brackets.

10 Is that a fair summary?

11 A Yes.

12 Q Who did Mr. Bogden allegedly make those comments to?

13 A Well, I saw an e-mail where he made those comments to

14 Wayne Stroscher and to Steve Olsen, and there might have

15 been some other people copied. And I'm not sure if the

16 consumer protection people were copied.

17 Q What specifically did -- strike that.

18 Other than the e-mail that you speak of, is there --

19 are you alleging that Mr. Bogden, in these conversations

20 with dealers, made the statement regarding the bolts?

21 A Actually, yeah. He copied that e-mail to a lot of

22 dealers as -- I do remember this now. He copied it to

23 dealers. He copied it to an insurance company that I

24 had. He copied it to quite a few people.

25 Q All right. The question was, other than the e-mail, the



Page 63

1 e-mail will say whatever it says so we don't need to

2 worry about that, but other than that e-mail, are you

3 alleging that Mr. Bogden made statements regarding the

4 quality of the bolts to anyone?

5 A I would have to review those notes too, if I have some.

6 Q What notes would you be reviewing?

7 A I may have written down a comment or two that Steve Olsen

8 had told me.

9 Q All right. So you interviewed Steve Olsen?

10 A Yeah, he called me on the phone.

11 Q And you interviewed Mr. Stroscher, is that his name?

12 A I talked to him on the phone.

13 Q What did Mr. Stroscher tell you that Mitch Bogden said

14 about the quality of bolts?

15 A I didn't get into that one with him.

16 Q All right. What did Mr. Olsen tell you that Mr. Bogden

17 had said about the quality of bolts?

18 A That that statement had come up and I told him that they

19 were totally industry standard. He brought it up.

20 Q All right. I understand you told him they were industry

21 standard. What did he say that Mr. Bogden said?

22 A He called me up and asked me to get the correct bolts,

23 that would meet what Mr. Bogden was claiming was correct,

24 to him ASAP. And I said they are the correct bolts and

25 they do meet industry standard.



Page 64

1 Q Okay.

2 A And he claimed they weren't industry standard.

3 Q Who claimed they were not industry standard?

4 A Steve Olsen.

5 Q All right. Where did Steve Olsen say that he got that

6 information?

7 A In an e-mail from Mitch.

8 Q Is it the same e-mail that we are talking about?

9 A Yes.

10 Q Did Mr. Olsen tell you that he had spoken with Mr.

11 Bogden?

12 A Yes.

13 Q What did he say that Mr. Bogden said about bolts?

14 A Basically the same thing that the -- that they were poor

15 quality.

16 Q Anything more specific than the words poor quality?

17 A They were not industry standard.

18 Q Anything else that you allege that Mr. Bogden said to

19 anyone about the quality of the bolts?

20 A I don't have a full memory on everything, but that's one

21 that sticks out right now.

22 Q The eighth item on the list has to do with the allegation

23 that Mr. Bogden told someone that Tytan was hiding an

24 internal recall of products on the steering brackets.

25 Am I close on that one?



Page 65

1 A Yes.

2 Q My penmanship trailed a little bit there.

3 Who did -- who did Mr. Bogden allegedly tell that

4 to?

5 A He sent it to Steve Olsen and Wayne Stroscher and copied

6 all the previous people I mentioned.

7 Q All the previous people you mentioned? We have talked

8 about a lot of people.

9 A The dealers.

10 Q The dealers that you obtained declarations from?

11 A Most of them.

12 Q Anybody else?

13 A There's a Tim Nelson as well.

14 Q Tim Nelson?

15 A I'm not sure he got that one or not.

16 Q Again, the e-mail we can read. We have that, I assume?

17 A Uh-huh.

18 Q Did -- are you alleging that Mr. Bogden, in any other

19 respect or in any other way, communicated to anyone

20 concerns about hiding an internal recall?

21 A Yeah, I believe I heard that from Mr. Cox.

22 Q Mr. Cox is another dealer?

23 A Customer of his.

24 Q A customer?




Page 66

1 Q Okay.

2 A An ex-customer.

3 Q Is Mr. Cox a customer of yours?

4 A No. Well, only from the standpoint that we fixed his

5 tractor -- or fixed his tractor.

6 Q Does he still own a Tytan tractor?

7 A Yes.

8 Q What are you doing to fix his tractor?

9 A Just a -- I don't have all the worksheets on it. We

10 haven't actually got possession. It's supposed to be on

11 its way to us.

12 Q What do you expect to be repairing on that tractor?

13 A Oh, I think it's a large variety of issues that seem to

14 be service issues. And it may be hydraulics and I don't

15 know all of them.

16 Q Is the front steering bracket one of those items?

17 A I don't believe so.

18 Q Is the reverse idler gear or anything involving the

19 transmission one of those items?

20 A No.

21 Q Is the three-point one of those items?

22 A I don't believe so, other than the fact that the

23 three-point wouldn't work if the hydraulics didn't work.

24 Q What do you understand is wrong with the hydraulics on

25 Mr. Cox's tractor?



Page 67

1 A I don't know all the details. I just know that there was

2 some threats of litigation between Mr. Bogden and Cox

3 about getting his tractor fixed, and that it never got

4 resolved, or it's about ready to go to court, or it still

5 might, I don't know which, but he just wanted his tractor

6 fixed.

7 Q And you are planning to fix that?

8 A Sure.

9 Q Number nine on our list is your allegation that Mr.

10 Bogden made statements to the effect that the clutches on

11 the 334 were substandard in design and materials.

12 Is that a close approximation of your testimony?

13 A Yes. Uh-huh.

14 Q Who did Mr. Bogden make those statements to?

15 A Steve Olsen and Marina Foix.

16 Q Who is Marina Foix?

17 A One of his customers.

18 Q Is Steve Olsen a customer or a dealer?

19 A Customer of his.

20 Q What specifically did Mr. Olsen and Ms. Foix say?

21 A Both of them called me up and said that Mitch had told

22 them that the clutches were of inferior quality and

23 poor -- poor quality clutches and that they wore out way

24 too soon.

25 Q Did either of those customers have a problem with the



Page 68

1 clutch?

2 A I think Mrs. Foix -- I don't know how to say her name,

3 but it's F-O-I-X, I guess.

4 In her case, she was just buying a tractor. I think

5 her dad had just bought a tractor this was used.

6 Q Did it develop a clutch problem?

7 A That was my understanding. We sent the parts for it.

8 Q Mr. Olsen was the other individual?

9 A Yes. Uh-huh.

10 Q Did he have a clutch problem?

11 A Yes.

12 Q And these are both on the 334?

13 A Yes.

14 Q And there is no doubt that either of those people had a

15 problem with the clutch?

16 A Worn out clutches.

17 Q What do you mean by worn out?

18 A Means they are toast. It means they are worn out.

19 Q How does a transmission -- how does a clutch behave when

20 it's worn out?

21 A When it's worn out it's -- you burn up the disk, or you

22 either crystallize the disk or you wear it down to

23 nothing like you would on a car.

24 Q Have you or your staff examined the clutches on the two

25 334s that we just talked about, the Olsen and Foix?



Page 69

1 A I saw some pictures of it, I believe, and I only got the

2 clutch of Olsen's in on repair after the -- I only

3 got the repaired -- supposedly the repaired one back.

4 Q The one that failed you now have possession of?

5 A It has a new clutch put into it, and it was still

6 failing.

7 Q It was still failing?

8 A Yes.

9 Q Even with a new clutch?

10 A Yes.

11 Q What was the cause of that problem?

12 A It had not been set up correctly and also the PTO disk

13 was put in backwards.

14 Q Who put those things in wrong?

15 A I'm assuming that Mitch's mechanic or whoever he had work

16 on it did.

17 Q Who did the clutch replacement?

18 A Mitch.

19 Q When did this clutch replacement happen?

20 A I don't have exact dates on me, but a couple months ago.

21 Q Is that the time frame for both of those clutch issues?

22 A It could have been two to four months ago. I'm kind of

23 blurry on the exact time.

24 Q Have you had any other clutch failures by customers who

25 were not Mr. Bogden's customers?



Page 70

1 A Not Mr. Bogden's customers? Well, we have people wear

2 out clutches routinely. That's part of the business.

3 Q All right. On the 334s, what percentage of those have

4 developed clutch problems within the first two years?

5 A I don't know the answer to that.

6 Q You don't have statistics on that?

7 A It has to do with how they use it and how much they use

8 it.

9 Q Do you keep statistics on how many tractors or records of

10 how many tractors develop clutch issues?

11 A No.

12 Q Do you keep statistics or records of how many tractors

13 develop transmission issues?

14 A No.

15 Q Do you keep statistics or records of how many tractors

16 develop reverse idler gear issues?

17 A Yes.

18 Q How many 334 tractors during the last three years have

19 developed reverse idler gear issues?

20 A There was only three at Randy Rich Equipment. The

21 other -- these first people did not develop problems.

22 They got the parts and just made the replacement ahead of

23 time. Randy Rich in Idaho -- Randy Rich is in -- it's

24 Idaho anyway. I will think of it later. And Darrell

25 Haugland in Montana had two. We had four, and Mitch had



Page 71

1 I believe three.

2 Q Any others?

3 A No. And just to clarify, they did not have idler gear

4 problems. They had wrongly installed parts in place of

5 the correct idler gear part.

6 Q The part was installed correctly?

7 A Wrong part.

8 Q All right. Who put the wrong part in there?

9 A Factory.

10 Q At some point, did the factory notify you that these one

11 or thirteen tractors had the faulty part?

12 A No. Well, yes, they did.

13 Q How did they --

14 A After the fact.

15 Q After the fact. When did they give you that notice?

16 A They -- after we discovered that that was a problem they

17 told me that it happened only in one container.

18 Q Did they -- were they able to identify the container?

19 A Yes.

20 Q And from that were you able to identify the specific

21 serial numbers?

22 A Yeah -- well, no because they were not able -- they

23 didn't -- they only knew it was one assembly period that

24 had that wrong part. They did not know exactly which

25 tractors had them.



Page 72

1 Q How did you determine which tractors had them?

2 A Because we took every -- we had taken -- before I got

3 that notice, I had taken every tractor on my lot apart

4 and split it to see if it had the wrong part.

5 Q When did you do this taking every tractor on your lot

6 apart?

7 A It was after Mitch had discovered what the problem was

8 and we -- sometime between him and myself discovering the

9 problem that we wanted to see how many tractors had that

10 part.

11 Q And your testimony is that you found, do I count right,

12 12 tractors --

13 A Yeah.

14 Q -- that had the wrong part?

15 A Yeah.

16 Q What was the nature of the wrong part?

17 A They were almost identical looking parts, but -- and they

18 were both obviously made for tractors, but one part

19 merely had a lubrication bushing in it and the other one

20 did not. But you couldn't see it unless you really

21 looked for it.

22 Q So what is the part at issue?

23 A Idler gear.

24 Q The entire idler gear?

25 A Small thing.



Page 73

1 Q Whatever size it is?


3 Q You testified that you opened up -- I think you said you

4 opened up every tractor on your lot, and I will give you

5 the benefit of limiting that to the 334s, I assume, so

6 did you --

7 A Yes.

8 Q Did you have to check other tractors?

9 A No, it only was pertaining to the 334.

10 Q How many 334s did you have on your lot at that time?

11 A I don't know the exact number. It was 20 or 30. There

12 may have been a few more. I don't know. It was in that

13 range.

14 MR. BUNDY: I apologize to everybody.

15 I need a five-minute break. Breathing is overrated, I

16 know, but I have to handle it.


18 (Recess from 11:23 a.m.

19 to 11:34 a.m.)

20

21 Q (By Mr. Bundy) We talked earlier in several of these --

22 this list of items about Mr. Olsen. What is Mr. Olsen's

23 first name?

24 A Steve.

25 Q Where is he located?



Page 74

1 A I don't know. I think it's Olympia or Tacoma.

2 Q Okay. You testified earlier that you currently have

3 possession of Mr. Olsen's tractor; is that correct?

4 A No, I don't.

5 Q Oh, okay. Do you have his transmission or -- strike

6 that.

7 Do you have his clutch?

8 A Yes.

9 Q Okay. And is that the clutch that has been repaired and

10 is working, or is that the clutch that has been repaired

11 and continues to not work correctly?

12 A I assume it was the clutch that came in the tractor when

13 he asked us to repair it, so that's all I know. And it

14 had oil on it and it was -- I don't know, maybe it was a

15 previous clutch but it appeared to be new.

16 Q It appeared to be a new clutch?

17 A Uh-huh.

18 Q Do you know whether that was the clutch that originally

19 came with the tractor or whether it was a different

20 clutch?

21 A Different clutch.

22 Q How do you know that?

23 A It didn't have any wear on it.

24 Q Did you observe the original clutch?

25 A No. We were never able to get it back.



Page 75

1 Q To the best of your knowledge, where is the original

2 clutch of Mr. Olsen's?

3 A Bogden has it.

4 Q Do you know where Mr. Olsen's tractor is today?

5 A I think it's up at his house or his -- wherever he takes

6 his tractor.

7 Q Mr. Olsen's house?

8 A I don't know if it's his house or his cabin or whatever

9 it is.

10 Q All right. Do you know where that cabin or whatever it

11 is is?

12 A Somewhere over by Cle Elum, I think.

13 Q As far as you know, is that where Mr. Olsen has always

14 used his tractor?

15 A I assume so.

16 Q What do you base that assumption on?

17 A Just from his comments.

18 Q All right. Do you know if at some point Mr. Olsen's

19 tractor was at Mr. Bogden's facility?

20 A Yes, I do.

21 Q When did it leave Mr. Bogden's facility?

22 A I don't know. Sometime about two months ago or something

23 like that.

24 Q What were the circumstances of that move?

25 A I only know that he called us up to pick it up and he



Page 76

1 wanted us to -- for some reason it wasn't getting

2 repaired. I don't know the details of his deal on it.

3 It wasn't getting repaired and he called us to come pick

4 it up.

5 Q Did you come pick it up?

6 A I said -- I told him that I will send a man to pick it

7 up, but we are not going to be dealing with Mr. Bogden or

8 anything else like that. You will have to do whatever --

9 we are not going to enter into his facility at all to

10 pick up anything.

11 Q Who did you send up to do that?

12 A One of my mechanics.

13 Q What's his name?

14 A Sergio.

15 Q Is that a first name or a last name?

16 A That's his first name.

17 Q What's his last name?

18 A You have to give me a minute on that one. I will have to

19 give it to you later. I don't know it right now.

20 Q Is it spelled S-E-R-G-O?

21 A I-O.

22 Q S-E-R-G-I-O?

23 A Yeah.

24 Q Did he use one of your trucks?

25 A Yes.



Page 77

1 Q Did he use one of your trailers?

2 A Yes.

3 Q And did you authorize Sergio to do what he did?

4 A I told Steve that he had to get the tractor off of

5 Bogden's lot, and we weren't going to participate in any

6 part of that, and then we would pick it up for him, and

7 so that's what we did.

8 Q Were you present for any of that?

9 A No.

10 Q Other than Sergio, was anyone from Tytan present for that

11 event?

12 A No.

13 Q Did Sergio provide you with any written report of the

14 event where he recovered possession of Mr. Olsen's

15 tractor?

16 A Yes. He didn't write a report. He gave the report to me

17 and I wrote it.

18 MR. BUNDY: We will want a copy of

19 that report.


21 THE WITNESS: Okay. It's just notes.

22 Q (By Mr. Bundy) What did Sergio tell you, to the best of

23 your memory here today?

24 A He said that he talked with Mr. Olsen, and Olsen told him

25 to wait at the Cle Elum exit, I think it was. I don't



Page 78

1 know where, but I thought it was the Cle Elum exit. And

2 as soon as he moved his tractor off of his property we

3 would call him to come pick it up.

4 Q Did he describe the -- what he saw in terms of the --

5 A Yes, he did.

6 Q What did he say?

7 A He said he showed up, and I don't know if the police were

8 already there or they had arrived, and Olsen and Bogden

9 were into some kind of arguments or whatever, and they

10 would not help him move his tractor, or they resisted it

11 or something like that, I think resisted.

12 And I guess the police got in the middle of it and

13 they gave Olsen his tractor, and as a result Olsen had to

14 pay whatever money was due on the tractor, for whatever

15 work had been done.

16 Q And as far as you know, was there any other information

17 about that incident reported to you?

18 A Yeah, I have been told that Olsen had -- Olsen or his man

19 or whoever had secured the box of some parts, a starter,

20 hydraulic pump, different things, and put it into

21 Sergio's truck. And I don't -- I'm assuming -- I think

22 it was Sergio's truck, and then Bogden's men came and

23 removed all those parts. They were the ones that I

24 understood were Olsen's parts.

25 Q Do you have any knowledge today of where those parts are?



Page 79

1 A From talking to Olsen and Sergio -- and by the way his

2 name is Saucedo, S-A-U-C-E-D-O, and I assume that Bogden

3 still has them because his man picked them out of the

4 truck.

5 Q All right. Your tenth item on your list of alleged

6 statements had to do with, I quote, things about myself,

7 close quote.

8 A What?

9 Q When you were giving me the list of ten items earlier?

10 A Oh, yeah.

11 Q The last one was, I think I'm quoting it correctly,

12 things about myself, close quote.

13 Let's break that down. And what's the first thing

14 about yourself that Mr. Bogden allegedly said?

15 A Oh, I have seen correspondence between him and various

16 people where he makes real high credibility comments.

17 Q Okay. We will get into the details later just like we

18 did the other nine, but I would like to get the list of

19 specifically what you are saying that Mr. Bogden said so

20 that then we can --

21 A Well, I'm not going to speculate. It's real black and

22 white on those things. And, I think, if we want to look

23 at them we can pick up e-mails from -- one e-mail is from

24 Mitch to Cramer, one is from Mitch to Randy Riddell

25 (phonetic), and I'm trying to think of who else. I think



Page 80

1 there may be more.

2 Q Okay. Setting aside the e-mails because we can all look

3 at those e-mails, and I think we have established that.

4 Did -- are you alleging that Mr. Bogden said "things

5 about myself" to anyone other than in an e-mail?

6 A Yeah. I'm very certain there's other people too. And

7 I'm not sure if my salesman made notes or whether I did.

8 We will have to search that out.

9 Q What did he allegedly say other than in e-mails?

10 Don't worry about the e-mails, we are not going --

11 A It was all basically to the effect that Leonard's big

12 marketing effort was nothing but a big con to the

13 consumer.

14 Q Did he use the words "big con to the consumer"?

15 A No. I told you it was to the effect that it was a big

16 con.

17 Q All right. Okay. Let's leave that one alone for a

18 minute. We will come down to the second.

19 What's the second thing that you allege that Mr.

20 Bogden said, not in the e-mails because we can read

21 those, but again verbally or otherwise?

22 A He had told people that we were just going to -- this

23 is -- that we were just going -- that I was just going to

24 sell the company just like I did Rhino.

25 Q Okay. Third?



Page 81

1 A That comment there that basically is reference to leaving

2 people hanging for parts and warranty.

3 Q All right. Any other things he said about yourself?

4 A That's all I can remember right now.

5 Q All right. Let's take them in reverse order. No, let's

6 go to lunch.

7 (Recess 11:48 a.m. to

8 12:48 p.m.)

9

10 Q (By Mr. Bundy) We were talking earlier, Mr. Leonard,

11 about how you learned about the problems with the 334

12 reverse idler gear?

13 A Yes.

14 Q I think that was just before I lost air or something and

15 we had to take a break, and I never quite got back to it.

16 As I recall your testimony, you were talking about

17 how you became aware of the problems with the reverse

18 idler gear because of work you did and work that Mr.

19 Bogden did to try to figure out what the problem was.

20 Did I get that kind of correct?

21 A I'm not sure if -- if we had gotten anything pictorially

22 from Mr. Bogden, but I know that at one point we -- we

23 had tried numerous times to get access to go see those --

24 I think it was actually the Conner one, but at one point

25 we decided to open a rig up and we had never had any



Page 82

1 problems.

2 And we opened -- I don't know actually if we -- if

3 something failed on us, or whether we actually opened one

4 up to see if we could find that problem. I think it was

5 one of the two, but it was somewhere around the time that

6 he was exchanging tires and was going to pick up some

7 parts from us.

8 It was for a time that we -- it was right up near

9 the time where we shipped him our first idler gears

10 because we shipped simultaneously to him and the other

11 two dealers and ourselves, of course, we had them shipped

12 in there by air.

13 Q Was that in 2008?

14 A It was, yeah, I believe it was right about when that guy

15 came down for the -- some parts. I don't remember

16 exactly.

17 Q So if we could track down when Buck Charles came to your

18 facility that would be about the time?

19 A I will look and pull up the Fed Ex stuff if I can find it

20 that far back and show you exactly what we shipped all

21 three people at the same time.

22 Q All right. How did you obtain the replacement parts for

23 the reverse idler gear?

24 A We just notified the factory that we had a problem with

25 the idler gear. Once we figured out exactly what it was



Page 83

1 and the part we needed, they air shipped them in. And

2 that's when they realized what had happened and how

3 many -- they thought it was limited to one shipment. I

4 don't know the details of it.

5 Q Are you aware of whether there were problems with reverse

6 idler gears in any other shipments?

7 A There were not from our records ever.

8 Q All right.

9 A The problem I'm saying, by the way, is the wrong part was

10 put in.

11 Q The wrong part was put in by whom?

12 A The factory.

13 Q All right. So if I understand your testimony, you had

14 received complaints for lack of a better word, from at

15 least the other two or three -- two dealers that you

16 identified earlier who had -- that you also shipped

17 replacement parts to?

18 A No.

19 Q How did you know that those two dealers needed those

20 parts?

21 A Because we backtracked on that container that the factory

22 said they were in, and we sent them how many tractors

23 they got out of that container.

24 Q So were there only twelve 334s in that container?

25 A No, 16.



Page 84

1 Q All right. So what came of the other four?

2 A We checked -- we had already checked them -- we checked

3 our whole entire inventory before we got the information

4 from the factory of the 16, and the remaining four were

5 in the bunch that we had already checked.

6 Q Shortly before we broke for lunch we were talking about

7 things that you allege that Mr. Bogden said about you

8 yourself, and the first of those was something to the

9 effect of Leonard's marketing program is a big con to the

10 consumer.

11 Is that a fair restatement of your testimony?

12 A Con or deception.

13 Q Did he use the words "con" or "deception"?

14 A I would have to look at the documents.

15 Q What documents would you look at?

16 A Oh, there's letters to Fred Cramer. There's letters to

17 Randy Riddell.

18 Q All right. Are those letters all in the documents that

19 have been exchanged between us attorneys?

20 A I think they are. I gave them to him and I assume he

21 gave them to you.

22 Q All right. Well, I will talk to him about that off the

23 record.

24 The -- other than those written documents, which

25 presumably we have, do you allege that Mr. Bogden made



Page 85

1 any other statements to the effect that your marketing

2 efforts are a con or a deception?

3 A Well, I think the whole internet ploy of saying we have a

4 coverup going on on our steering brackets is basically

5 saying the same thing.

6 Q Anything else other than what's in e-mails or on the

7 internet?

8 A I just think all of the untrue statements reflect back on

9 myself.

10 Q Okay. And are there any untrue statements, other than

11 the 10 or 12 that we have talked about here today?

12 A Yes, there are.

13 Q What are those?

14 A I don't have them all on the tip of my tongue here.

15 Q Have you thought of any others?

16 A I haven't, no.

17 Q All right. If you do during the course of today, I hope

18 you will interrupt me and make sure that we have that

19 complete list.

20 A Yeah.

21 Q And if you think about it a week from now, I hope you

22 will ask your attorney to inform me because we will be

23 getting some more questions out that that would be

24 responsive to if they are not to the others.

25 All right. The other things about yourself that you



Page 86

1 testified that Mr. Bogden said was, and I'm trying to

2 paraphrase you, you were just going to sell just like

3 with Rhino.

4 Is that close?

5 A He told people that the longevity of our company would

6 not be very long and that, you know, people would

7 basically get caught without service or parts because we

8 would -- we would be long gone.

9 Q Why the reference to Rhino? Was there some sort of

10 problem with the Rhino dealers not being able to get

11 service or parts after the sale?

12 A No, Alamo bought Rhino, but in some people's mind since

13 they moved back to Texas that it was gone.

14 Q So Rhino was a local -- Alamo was a local company at the

15 time they bought?

16 A Texas.

17 Q Okay. So they simply moved the Rhino brand headquarters

18 to Texas where their headquarters had always been?

19 A Yes.

20 Q As far as you know, did Rhino under Alamo's ownership

21 continue to honor warranties and supply parts?

22 A Yes.

23 Q As far as you know, did they continue to do that on the

24 same basis that they had before -- that you had before?

25 A The problem is they were gone after a short period, and



Page 87

1 so a lot of people didn't pick up on Alamo buying the

2 company and it reflected back on me being gone.

3 Q Okay. So it was a perception problem?

4 A Just a problem of people not being able to buy parts.

5 Q Okay. Could they contact Alamo slash Rhino in Texas and

6 obtain parts?

7 A They could, but only 50 percent of the time -- actually,

8 at that time probably 80 percent of the people in the '95

9 to 2000 time were not computer literate people.

10 Q Did Alamo make it hard to find their contact information?

11 A Once they dissolved the company they didn't make any

12 effort to anything.

13 Q They dissolved Rhino Company?

14 A Yes.

15 Q Did they discontinue the Rhino product line?

16 A They just discontinued Rhino period.

17 Q Okay. Did they stop then providing parts for Rhino

18 equipment?

19 A Yes.

20 Q How long after the sale did that occur?

21 A Oh, about two and a half years.

22 Q Did they stop honoring warranties at about the same time?

23 A They stopped everything.

24 Q All right. Did they -- did Alamo file for bankruptcy for

25 either itself or for the Rhino brand?



Page 88

1 A No.

2 Q So they just simply stopped providing it and --

3 A They are a very large company. They just dissolved it.

4 Q Mr. Leonard, I need to bring you back, at least briefly,

5 to Exhibit 7. Do you have it in front of you? That's

6 the original complaint you filed.

7 A Yeah.

8 Q We spent all this whole time talking about Paragraph A

9 under Roman Numeral III, Facts.

10 What do you -- reading Paragraph B there, it says,

11 "Said false statements were unfair and deceptive and

12 affect the public interest."

13 What do you mean by affecting the public interest?

14 MR. WAGNER: Well, I will object to

15 the extent that this is a Consumer Protection Act claim

16 and may call for a conclusion of law as to the elements

17 of the Consumer Protection Act claim.

18 MR. BUNDY: I'm simply asking him what

19 his understanding is what the public interest is in this

20 context.

21 THE WITNESS: Oh, I think the public

22 interest is that when people that own all of those

23 tractors are being told that the parts -- well, let's

24 just change it.

25 Let's say that there is a real credibility problem



Page 89

1 in the parts and the company and everything else. They

2 made a big investment and so their investments have been

3 ruined.

4 Q (By Mr. Bundy) Are you or Rhino a consumer of anything

5 from Mr. Bogden or Bogden, Inc.?

6 A Not that I know of.

7 Q Down under Roman Numeral IV, I'm looking at C.

8 A It looks like there is two fours.

9 Q I think you are right. We will have to have a

10 conversation with the typist about that.

11 Look at the first four.

12 A Okay.

13 Q Claims or causes of action. It says here, "Said

14 statements interfered with plaintiff's contractual

15 relationships?

16 What contractual relationships did those interfere

17 with?

18 A All my dealerships.

19 Q All of your dealerships?

20 A Sure.

21 Q How many dealerships did you have in January 2008?

22 A Oh, I don't know, 10 or 15.

23 Q How many dealerships do you have today?

24 A One, two.

25 Q One or two?



Page 90


2 Q Who are those that are continuing dealerships?

3 A Randy Rich Equipment and Janco.

4 Q Where is Janco located?

5 A In Medford.

6 Q Were Randy Rich and Janco both distributors in January

7 2008?

8 A Yeah.

9 Q So did you add any new distributors or dealers after

10 January 2008?

11 A Yeah, I think I had one.

12 Q So if I'm doing the math correctly, you have lost nine

13 dealerships since January 2008?

14 A Yes.

15 Q Were any of those -- did any of those dealerships leave

16 you specifically for the reason that Mr. Bogden had made

17 any of the statements that you allege he made?

18 A Yeah, they all did.

19 Q Specifically because of that?

20 A Well, you know, I don't know all the reasons. I know

21 only what they have told me.

22 Q All right. Are you alleging that Mr. Bogden told them

23 they should leave their dealerships?

24 A I'm only saying that he interfered contractually.

25 Q All right. I'm trying to determine how he interfered.



Page 91

1 A He interfered by these people had money invested in my

2 products, and the minute you go on the internet it

3 doesn't matter if you are in Nova Scotia, your customers

4 all start coming in and negating a product as having

5 certain problems. And once that's done, those guys don't

6 want to put their money in that product line again

7 because they can't afford to have stuff not turn.

8 Q How has your retail business been since January 2008?

9 A It's gone way down.

10 Q By way down, are we talking a ten percent dip or are we

11 talking a 70 percent dip?

12 A 70 percent.

13 Q More than 70 or less than 70?

14 A Maybe more.

15 Q Was that pretty much true of your dealers as well?

16 A No.

17 Q What was their business trend?

18 A I don't -- I didn't do all of their accountings.

19 Q So you don't know?

20 A I only know what they told me.

21 Q What did they tell you?

22 A I just went over it with you a few minutes ago.

23 Q What did they tell you about their business trends during

24 the time from January 2008 until today?

25 A They only told me when people came in to look at our



Page 92

1 products they had already been on the internet and our

2 products were no longer a consideration.

3 Q Okay. I hear what you are saying. The question is, what

4 did they tell you about the trend in sales of their

5 business generally?

6 A I didn't discuss their overall business with them.

7 Q Okay. How many of those nine dealers are still in

8 business carrying other tractor lines?

9 A They all are.

10 Q Are Randy Rich's sales of Tytan tractors up or down from

11 January of 2008?

12 A Totally one hundred percent down. He is still a dealer,

13 however, he will not buy tractors under the current

14 situation.

15 Q Does Randy Rich have Tytan tractors on his lot?

16 A He sold his last ones out.

17 Q How recently?

18 A I don't know, six months ago probably.

19 Q Janco, Medford, Oregon you said?

20 A Yeah.

21 Q Still a dealer?

22 A Same thing. He won't buy our products with the internet

23 interference.

24 Q Is there any internet interference, to use your terms,

25 other than what we have already talked about today



Page 93

1 involving Mr. Bogden?

2 A I don't know what more interference you want than trying

3 to disparage the quality of a product.

4 Q But you are not testifying that you have any evidence

5 that Mr. Bogden contacted any of your 11 dealers and told

6 them you should get out of your dealership?

7 A He contacted some of those people three times and --

8 Q That's -- that's --

9 A Okay. If you want to go ahead, go ahead.

10 Q I apologize for interrupting. We all do that sometimes,

11 right? Let me rephrase the question.

12 Has -- do you have any information that would

13 suggest that Mr. Bogden created or contacted any of those

14 11 dealers specifically telling them they should

15 terminate they dealership with Tytan?

16 A No, he did everything else to make them want to terminate

17 it. He put their names on the internet and they --

18 within two days they were going hysterical. They wanted

19 their names off the internet.

20 Q Why did they want their names off the internet?

21 A Because they don't want anything to do with him or the

22 negative stuff that he puts on there.

23 Q Earlier today you gave me the name of the accountant who

24 is putting together your damages assessment?




Page 94

1 Q What was that name again?

2 A Jerry Leslie.

3 Q Thank you. What information have you given Mr. Leslie to

4 do his job?

5 A He's got -- he's been given all sorts of information.

6 Q Okay. I understand.

7 A He's been given sales, all the things you would want to

8 show.

9 Q Okay. So he's been given your profit and loss statement?

10 A Yes.

11 Q Your tax returns?

12 A Yes.

13 Q Your balance sheets?

14 A Yes.

15 Q Your sales records?

16 A Yes.

17 Q What else?

18 A He's got customers who were stockholders who have called

19 in and complained in about Mr. Bogden's linkage to the

20 stock things. He's got -- so he's got stock loss

21 information. He's got -- and we have also lost on

22 several different ways, warrant -- work with people that

23 talked to Mr. Bogden. We can't even charge them or

24 collect our monies on regular routine service stuff.

25 Q All right. Any other information that you have given to



Page 95

1 Mr. Leslie?

2 A He's got everything that has to do with accounting.

3 Q All right. Other than the amount of your financial

4 losses, if I can characterize it that generically, is Mr.

5 Leslie going to provide other opinions for your benefit

6 in this case?

7 A Yes, he will.

8 Q What is the nature of those opinions?

9 A Well, he will be in charge of -- he will be in contact

10 with the other attorney that is involved here from LA

11 that is assessing the different fields.

12 Q Who is the attorney in LA?

13 A Erik Siverson.

14 Q Siverson?

15 A S-I-V-E-R-S-O-N, something like that. Erik is with a K

16 too.

17 Q What is Mr. Siverson's role in the case?

18 A Advisor. He may be a trial attorney too. I'm not sure.

19 Q So does he represent you at this point?

20 A Yes.

21 Q All right. You mentioned in your last -- one of your

22 last answers, information from stockholders or complaints

23 from stockholders, I believe is the way you characterized

24 it.

25 Which stockholders have complained?



Page 96

1 A I don't have those names. I would have to get those from

2 the stock people.

3 Q Does Mr. Nelson have those names?

4 A Mr. Who?

5 Q I'm sorry. Leslie.

6 A He will, if he doesn't.

7 Q And do you have access to those names?

8 A I will, but I don't have them right now.

9 Q You don't have them all right now? Do you have some?

10 A I'm not sure. I may have.

11 Q Do you recall any of them at this time?

12 A No.

13 Q What was the nature of their complaints?

14 A Well, they felt that -- that the value of their stock had

15 been totally diminished by his linkage.

16 Q In what way had it been diminished by his linkage?

17 A Well, he had -- he had -- any potential stockholders had

18 been linked right to Mr. Bogden's -- trying to present

19 that there is problems with our products, and so -- and

20 both potential stockholders and existing stockholders

21 both reacted in a negative way.

22 Q How many stockholders reacted in negative ways?

23 A I told you, I don't have those names handy. There's far

24 more than we are going to be able to raise as well, I can

25 tell you that.



Page 97

1 Q How many have talked to you directly expressing concerns

2 about anything --

3 A About five or six.

4 Q All right. Have others corresponded with you by e-mail?

5 A No, they have talked to the stock people.

6 Q Who are the stock people?

7 A They are on our website under "Contact us." Go to

8 "Contact us" and then you can see it says "Investors,"

9 and if you click on that you will get the guy.

10 Q You don't know his name?

11 A Shawn something.

12 Q All right. What is his role?

13 A He's the one that does all the public relations with the

14 stock company.

15 Q Is he an attorney?

16 A No. He's a stock guy.

17 Q All right. When did you first start offering stock?

18 A I'm not sure. Maybe a year, or a year and a half ago or

19 so.

20 Q So that was sometime after you filed this lawsuit?

21 A Yes, I believe so.

22 Q According to Exhibit 7, it looks like it says it was

23 filed on June 26th, 2008, the lawsuit.

24 Does that help you determine --

25 A I'm not sure of the answer.



Page 98

1 Q All right. If you don't know, you don't know. That's

2 all right.

3 We have talked today about some problems and alleged

4 problems with the -- particularly with the 334 tractor,

5 and perhaps it spills into others but we don't need to go

6 there in any detail.

7 The reverse idler gear problem, you don't deny that

8 there was a problem with some of the reverse idler gears?

9 A There was no problem ever with the reverse idler gear.

10 There was a problem of a wrong part being put in place of

11 the reverse idler gore.

12 Q So there was a problem, and the problem was the incorrect

13 part?

14 A Error in assembly.

15 Q But the long shot of it was that it didn't work right for

16 the consumer?

17 A The long shot it was the wrong part.

18 Q All right. And you certainly don't deny that on all four

19 of the 334s that Mr. Bogden purchased the reverse idler

20 gear had problems?

21 A I think he only had throe problems, if I'm not mistaken.

22 Q Okay. But he had problems with at least three?

23 A He shouldn't have a problem with only one of them, the

24 other two should have been replaced before he sold them.

25 Q One of the other issues we have talked about is the front



Page 99

1 steering bracket on the 334s. You are not denying that

2 on at least one tractor that Mr. Bogden purchased that a

3 front steering bracket broke?

4 A I assume so. I never had the faulty ones returned and he

5 wouldn't return them.

6 Q Do you have any reason to believe that they were in fact

7 not broken?

8 A I assume they were, just from a couple pictures I saw.

9 Q So you did see pictures that indicated --

10 A Two of them.

11 Q All right. And you are not denying that the clutches on

12 the Olsen and Foix tractors wore out very quickly?

13 A It all depends on what your use is and how you use it.

14 Q But in fact they did wear out?

15 A They wore out. I didn't get to see Foix's either. I

16 haven't seen any of the parts.

17 Q Have you ever issued -- strike that.

18 Do you understand what a service bulletin is?

19 A Yes.

20 Q All right. Would you describe it to me, please.

21 A It's a notification of some sort of service information

22 that the factory wants everybody to know that they may

23 not have a way of contact.

24 Q Did you issue a service bulletin in connection with the

25 front steering brackets on the 334?



Page 100

1 A No.


3 reverse idler gear in the 334?

4 A No.


6 clutch issue?

7 A No.

8 Q Have you issued any service bulletins relating to the 334

9 tractor for any purpose?

10 A No.

11 Q Have you issued a service bulletin for the -- for the 324

12 tractor for any purpose?

13 A No.

14 Q Same question for the 504 tractor, for any purpose?

15 A No.

16 Q Would agree with the statement that between January 2008

17 and today the economy generally has been in a major

18 recession?

19 A I'm not -- I can only say it's obviously in the downturn.

20 I don't know to what degree.

21 Q Do you have knowledge of how other tractor companies are

22 doing in terms of selling tractors and other related

23 equipment into this market niche that Tytans generally

24 appeal to?

25 A I don't know what you are talking about as far as a



Page 101

1 market niche.

2 Q Well, I think there was a lot of discussion over the last

3 two days about tractors that are less sturdy, less

4 muscular, if you will, than full farm commercial tractors

5 and more than I might need on a quarter acre lot, so

6 something between 20 horsepower and the 60 or 70

7 horsepower?

8 A I can't identify with any of that description.

9 Q Okay. Who is the typical customer for a Tytan tractor?

10 A Small acreage owner, up to -- we sell them up to 50

11 acres, two to 50 acres.

12 Q Okay. For other competing brands that sell to that same

13 demographic, do you have any knowledge as to how their

14 sales have gone during this two-year period?

15 A I know Mahindra is way up.

16 Q How do you know that?

17 A Talking to reps throughout the industry, and looking at

18 the reports in the what -- I get some trade magazines

19 with numbers in them and stuff.

20 Q Do you regard Mahindra as a competitor?

21 A Yes.

22 Q Anybody else who is up in sales to that demographic that

23 you described?

24 A Yes. There's a company called DF, Dong Feng, and their

25 numbers are way up.



Page 102

1 Q Do you know of any others that are way up?

2 A I think John Deere just had a banner year last year.

3 That's what the reports show.

4 Q Based on the same demographic?

5 A I just saw a publication that showed their -- some sort

6 of reporting that they did for an article with way up

7 profits and numbers.

8 Q All right. The question is whether the article had to do

9 with competitive tractors, or the larger farm tractors

10 that we see on the large farms?

11 A I don't know that answer.

12 Q Okay. Are you aware of any tractor manufacturers besides

13 Tytan that are down over the last two years?

14 A I don't know any.

15 Q Okay. Do you know how Jinma tractors are doing in the

16 current economy?

17 A That's Mahindra.

18 Q Oh, okay. Do you know how TYM tractors are doing in the

19 current economy?

20 A I don't talk to those folks.

21 Q Why not?

22 A I don't buy them anymore.

23 Q You don't buy TYM tractors anymore?

24 A No.

25 Q And subsequently you don't talk to them?



Page 103

1 A No.

2 Q Just because you are not doing business with them?

3 A Yeah, I don't do business with them.

4 Q Is there some sort of problem between you and the TYM

5 people?

6 A No.

7 Q Okay. During the year -- years 2007 and 2008 on your

8 website, did you have a page, for lack of a better term,

9 that was specifically for dealers?

10 A Sometime back there I did, yeah.

11 Q Was there a link that was entitled "Factory and Friends,"

12 is that how you would get into it?

13 A No.

14 Q No?

15 A (Witness shakes head.)

16 Q Okay. What was the link that took you to that page?

17 A I didn't have a link. It was a password protected area

18 that you went into. Only dealers could get in.

19 Q Okay. So it was a matter of typing extra words into the

20 URL line?

21 Do you understand what I'm talking about there?

22 A No, it wasn't that. There was a button somewhere that

23 dealers could click on, and then all of a sudden it asked

24 for passwords, user name and password.

25 Q Okay. I'm not looking for details. I understand why



Page 104

1 people put those behind a password. I'm not trying to go

2 there, but I need to understand generally the categories

3 of information that were in that dealer access portion of

4 the website.

5 A It's product announcements. I don't know if I put any

6 pricing in there or not. I don't know. It's been too

7 far back to remember much about it, but it had product

8 information.

9 Q What kind of product information, just by category?

10 A Just items, new items.

11 Q New things that were coming out?

12 A Yeah, things like that.

13 Q Did you have marketing ideas in there?

14 A Yeah, possibly.

15 Q Maybe some advertising recommendations?

16 A I don't think so.

17 Q Any materials to try to help the dealers promote the

18 product and the brand?

19 A I don't think so.

20 Q Okay. How did you do those things? How did you help the

21 dealers promote the product?

22 A Gave them brochures and offered them a warranty, and I

23 don't know much more than that.

24 Q The brochures you gave them, were they product oriented

25 brochures?



Page 105

1 A Just picture oriented and feature oriented.

2 Q Okay. And those were things that you at least hoped they

3 would hand out to prospective customers?

4 A Yeah.

5 Q The whole idea was to sell Tytan tractors?

6 A That's right.

7 Q Okay. Did it cost you something to put those brochures

8 together?

9 A The printing of it.

10 Q What were your printing bills like in those days?

11 A I don't know. You got to describe what you are talking

12 about. I mean, if you are talking about a year or if you

13 talking about a -- for a certain brochure, or what you

14 are talking about.

15 Q I'm looking to you to help me identify what it is we

16 would be talking about, you know, what would it cost to

17 get a typical brochure printed.

18 A A one-pager?

19 Q Whatever you used.

20 A I used mostly the earlier stage one-page, and it seemed

21 like we bought three thousand of them for -- I don't

22 remember the price. It seemed like it was about four or

23 five hundred bucks.

24 Q Okay. And you just shipped those out to the dealers?

25 A Yeah.



Page 106

1 Q Did you charge extra for that?

2 A No.

3 Q I assume that most, if not all, of those brochures had

4 the Tytan name prominently displayed?

5 A Yes.

6 Q And a picture of a Tytan tractor?

7 A Other whatever they were for.

8 Q It might have been for a snowblower or whatever you were

9 trying to sell at that time?

10 A Uh-huh.

11 Q I assume that also you were available or had people

12 available to answer telephone calls and inquiries from

13 dealers about all aspects of their dealership operation

14 if they needed it; is that true?

15 A Well, you got to define what you are talking about.

16 Q All right. If a dealer called you and said he needed

17 some help, some idea about how to market tractors to rich

18 people from Seattle who were buying small farms in

19 central Washington, could he call and ask you for help in

20 things like that?

21 A I really didn't get into that. I just told them what we

22 did. If something that we did correlated to what they

23 wanted to do, then they could copy us.

24 Q But you were happy to tell them what you did?

25 A Huh?



Page 107

1 Q You were happy to tell them what you did?

2 A Well, you are still in a very broad area. I don't know

3 what you are talking about. But I am just going to go

4 along with it and say that of we had a success on

5 something then we would share it.

6 Q All right. And should I also assume that if you had

7 something that didn't work you also shared that?

8 A I'm certain we would.

9 Q And for that kind of advice you didn't charge them an

10 extra fee or anything?

11 A No.

12 Q And in fact when Mr. Bogden found himself on the wrong

13 side of the courtroom with a customer, you offered and

14 provided assistance in that case, didn't you?

15 A All I remember is he wanted me to sign some sort of

16 document, and I did whatever he told me. If it was, you

17 know -- I don't remember exactly what it was, but I

18 thought it was probably reasonable at the time or I

19 wouldn't have signed it.

20 Q Okay. Now we talked this morning about the fact that

21 your trademark is something you place some value on.

22 Is that a fair statement?

23 A Yes.

24 Q Is it also fair to say that you wouldn't let just anybody

25 use that trademark or hang that sign unless they were



Page 108

1 going to be a dealer selling Tytan tractors?

2 A Oh, we carry implements too.

3 Q Or other Tytan products?

4 A Done on an approval basis, you know, if it's a customer

5 we are going to deal with then we would allow it.

6 Q If it was a customer you were going to deal with, meaning

7 a customer that was buying some tractors and then

8 reselling them, or an ultimate customer?

9 A If we wanted them to use our name, we would let them use

10 it.

11 Q Okay. If they weren't a customer, would you want

12 somebody out there with a Tytan bar, for example?

13 A If we sold them without any product designation on it,

14 and we didn't want them to be using it, they couldn't use

15 it.

16 Q Okay. If Mr. Wagner over here wanted to open a Tytan

17 Tractor Bar & Grill, kind of seedy looking place down on

18 South Tacoma Way, setting aside the fact that he's an

19 attorney and you definitely wouldn't want to do business

20 with him, would you generally think that would be a use

21 of the name that you would want to approve it without --

22 A I mean, it has to relate to agricultural products.

23 Q All right. So you want it to be used only in connection

24 with the sale of Tytan agricultural products?

25 A We couldn't control it beyond the agricultural products.



Page 109

1 Q Okay.



4


6 Exhibit No. 8 in these depositions.

7 While you are glancing at that, I will represent to

8 you that that is a copy of the reply and counterclaim and

9 answer to third-party complaint that your lawyer filed on

10 your behalf in this case when it was in Kittitas County.

11 It appears to be dated December 18, 2009 and it

12 consists of four pages. Is that an accurate description?

13 A It looks like it.

14 Q If you would turn please to the fourth page, and I will

15 preface this line of questioning with the fact that I

16 understand you are not an attorney. I just need your

17 understanding of whatever it is I'm asking about. I'm

18 not asking you for a legal opinion, just whatever you

19 understand it to mean is what we are looking for.

20 Paragraph 12 says in their counterclaim and

21 third-party claims, et cetera, "Plaintiffs have failed to

22 state claims upon which relief can be granted."

23 Do you have any understanding of that phrase,

24 "failed to state claims upon which relief can be

25 granted"?



Page 110

1 A I don't know what that means. That's you guy's jargon.

2 Q All right. Paragraph 13 reads, "The dealer agreement was

3 not a franchise agreement and did not give rise to a

4 franchise," and it goes on.

5 Did you have any factual basis for that statement?

6 A Yes.

7 Q What is it?

8 A Our contract says that there is no -- that this is not a

9 franchise.

10 Q So that's based entirely on the language in the contract

11 that says this is not a franchise?

12 A No. It's also the language in the contract and also the

13 actions. We never have had a franchise.

14 Q Okay. What do you understand a franchise to be?

15 A A franchise?

16 Q Yes.

17 A I'm not an expert on it. I -- it's -- I know that it's

18 when somebody buys into owning a portion of one of your

19 outlets or owns an outlet that is -- somehow pays you

20 money to use your, you know, some sort of fee or

21 something like Red Robin is a -- has made most of their

22 growth through selling franchises.

23 Q Okay. So you understand a franchise is like what Red

24 Robin does?

25 A I only know that they have franchises. Some of the



Page 111

1 chains have their own ownership, some have franchises,

2 and some have both.

3 Q I'm just trying to understand what you believe the

4 distinguishing characteristics of a franchise are.

5 A McDonald's is a franchise. A lot of those are franchise

6 stores.

7 Q What makes them a franchise?

8 A It means they have to have a use -- they have to put up

9 some sort of fee to buy it, opportunity to use the exact

10 facilities, equipment, name, advertising, everything and

11 they have to follow within a certain rule, but I'm not an

12 expert on it. I just know that that's the concept.

13 Q Okay. Did we leave anything out of your understanding

14 there?

15 I just want to give you one more opportunity to

16 clarify if there is anything else.

17 A I'm sure there is, but I'm not an attorney.

18 Q I gave you that at the beginning.

19 A Yeah. You know, it's a real complicated agreement in

20 most cases about a half inch thick with all the do's and

21 don'ts. That's why all the McDonald's are exactly the

22 same.

23 Q Looking down Exhibit 8, let's go to Paragraph 14. It

24 reads as follows: "The dealer agreement is void and

25 unenforceable as a result of," to shorten it, Mr.



Page 112

1 Bogden's fraud in inducing Tytan to enter into the

2 contract."

3 Is that an adequate paraphrase of that sentence?

4 A Yes.

5 Q What fraud do you allege Mr. Bogden or Bogden, Inc.

6 committed that induced Tytan to enter into the contract?

7 A I'm not an expert legal advisor on this either, opinion

8 maker or knowledgeable, but my understanding what this

9 means, and what I think my answer is, is that we had

10 discussed, you know, several things that he was going to

11 fulfill. There was insurance, there was numerous things.

12 There was service work that was going to be done. There

13 was going to being mechanics. Stores were going to be

14 open eight hours a day, you know, just routine, regular

15 everyday tractor dealer stuff.

16 Q Are we talking there about those conversations you and I

17 talked about this morning that happened before the dealer

18 agreement was signed?

19 A Yeah. Some of those are things that we discussed ahead

20 of time, you know, that were not -- some of them were

21 allotted for in the contract and some weren't.

22 Q Before you entered into the contract, and I believe

23 that's Exhibit 4 from this morning, before you entered

24 into the contract that is Exhibit 4, and that would be

25 before February 19, 2007, did Mr. Bogden or Bogden, Inc.



Page 113

1 tell you any facts that later turned out to have been

2 untrue?

3 A Yes.

4 Q What are those facts?

5 A The stores were not open during normal business hours.

6 Both of them weren't open at the time, and he didn't have

7 mechanics on board that were anywhere near what he

8 described.

9 Q Was he obligated to have the stores open eight hours a

10 day before February 19, 2007?

11 A No, from that point on.

12 Q Did he tell you that before February 19, 2007 his stores

13 were in fact open eight hours a day?

14 A One of them.

15 Q He said that one was? Which one?

16 A North Bend.

17 Q Did he tell you that before February 19, 2007 he had a

18 mechanic on duty?

19 A Yes.

20 Q Did he in fact have a mechanic on duty?

21 A Before the contract?

22 Q Before the contract.

23 A No. It was the things that happened after the contract

24 that didn't, you know, he -- if somebody tells you that

25 I'm a duck and you turn out to not be a duck, it don't



Page 114

1 matter what contract you signed, if you are not a duck

2 you can't sign a duck contract.

3 Q So your testimony would be that the problem with

4 mechanics happened after the contract?

5 A We had lots of problems with that issue. He didn't have

6 mechanics.

7 Q All right. But that happened after the contract and not

8 before the contract?

9 A That was part of the inducement though that we entered

10 into the contract.

11 Q So it was a promise that he would make sure there were

12 mechanics in place after the contract was signed?

13 A Qualified mechanics, that he had them and that they would

14 be in both locations.

15 Q Did you inquire into the qualifications of those

16 mechanics?

17 A He said they were highly qualified. Gave me details of

18 their experience.

19 Q Did you see their resumes?

20 A No.

21 Q Did you interview them?

22 A No.

23 Q Do you believe that Mr. Bogden believed the mechanic was

24 qualified?

25 A I don't want to speculate.



Page 115

1 Q So you don't know?

2 A I'm not going to speculate an answer there. When a guy

3 tells me what it is, and whether he thinks it or not, I

4 can't tell.

5 Q Now you also testified that Mr. Bogden didn't have his

6 store or stores open eight hours a day; is that correct?

7 A That's right. There was numerous occasions where that

8 was a problem.

9 Q Was that a problem after the contract or before the

10 contract?

11 A The problem was after. It was promised before.

12 Q So it was promise of future behavior that he would have

13 the store open during normal business hours?

14 A That's right.

15 Q And I may have already asked you this, and if I did I

16 apologize, did you visit each of Mr. Bogden's stores

17 before you signed the contract?

18 A No. Just -- I was at his Issaquah home where he

19 apparently was selling stuff at when we signed this. And

20 then I went and went to the Thorp facility after, shortly

21 after.

22 Q On the same day?

23 A No.

24 Q Did you go with Mr. Bogden?

25 A No.



Page 116

1 Q Who was at the Thorp facility when you arrived?

2 A Nobody.

3 Q That was within a few days of February 19th, 2007?

4 A Yes.

5 Q What did you do when you got there and found nobody?

6 A He told me it was in process and he was just ready to

7 open that place.

8 Q Okay. Did he in fact open it?

9 A I'm not sure if it was opened prior to our lawsuit or

10 not. I don't recall it being.

11 Q Mr. Leonard, I'm looking at Exhibit 4. Who drafted this

12 dealer agreement?

13 I understand it was one you used previously, but who

14 drafted it?

15 A I don't know. I think it was a Heinz 57.

16 Q From the Heinz Company?

17 A I think it was -- it came from some other agreements that

18 we had seen.

19 Q Did you have a lawyer write it?

20 A At the time, no.

21 Q So you did the compilation of this agreement into its

22 current form?

23 A Yes. I had an attorney at the time, I think, proofread

24 it.

25 Q And while we have been sitting here talking about the



Page 117

1 eight hour a day requirement that you mentioned, I have

2 been trying to find any reference to eight hours a day in

3 Exhibit 4.

4 Do you know if it's in there and I'm missing it?

5 A I think you are missing it. I don't know where it is

6 either, but I think there is some reference to it

7 somewhere.

8 Q Why don't we both take a minute and see if you can help

9 me find it, please.

10 A (Witness peruses document.)

11 Q Okay?

12 A Yeah, No. 11.

13 Q Paragraph 11. Why don't you read that to me.

14 A "Dealer must have qualified sales, parts, and service

15 personnel on site during all business hours."

16 Q Okay. All business hours, I see that. Is there a

17 definition of what all business hours is?

18 A No, but business hours would be eight hours a day. It's

19 a standard business day. And it wouldn't matter if it

20 started at eight o'clock or nine o'clock in the morning

21 or ten o'clock.

22 Q But that's the only reference you find to business hours

23 in the -- in Exhibit 4?

24 A That's what it looks like.

25 Q Now, Mr. Leonard, you are not disputing that the tractors



Page 118

1 and related Tytan equipment that you sell is farm

2 equipment, do you?

3 It is farm equipment.

4 A Some of it is.

5 Q At least the tractors are?

6 A Yeah.

7 Q All right. How about the loaders?

8 A It depends how strict you are going to use the word

9 "farm." You know, if you are talking about a weekend

10 warrior or you are talking about an actual farm.

11 Q Or perhaps something in between?

12 A I don't know the terminology of something that is in

13 between. Small property owner, or a farm, or a ranch,

14 those are the terms I know.

15 Q All right. The equipment is not used primarily for

16 moving people down the highways to get to the grocery

17 store or church or wherever?

18 A No.

19 Q All right. It's not airplanes transporting people or

20 equipment?

21 A No.

22 Q It's just for working dirt or moving things that used to

23 be attached to the dirt, is that a pretty good

24 description?

25 A I would say working the soil and stuff.



Page 119

1 Q Okay. Do you need a minute to adjust something?

2 A No, they just went dead. If I can't hear you, I will

3 talk to you about it.

4 Q All right. Let me know if you have difficulty hearing.

5 I will try to speak up a little bit more.

6 A Okay.

7 Q I see on your website that you apparently contracted with

8 a company called PSI to do some study or analysis of some

9 parts; is that correct?


11 Q When was that study conducted?

12 A A couple months ago. About three or four months ago

13 probably.

14 Q And what parts were they testing?

15 A The steering brackets.

16 Q Steering brackets?

17 A Uh-huh.

18 Q And which steering brackets were they testing?

19 A We had steering brackets on our website, and we labeled

20 them one, two, or three. One was the one that works on

21 the right-hand side when you are sitting in the seat, two

22 and three were ones that worked on the left-hand side,

23 one or the other, depending on the model axle, design of

24 the axle.

25 Q What model of tractors did those come from that were



Page 120

1 tested?

2 A 334 -- 324 and 334.

3 Q Both the 324 and 334?

4 A Uh-huh.

5 Q Do they have identical brackets on those two tractors?

6 A No.

7 Q So you had six total brackets tested?

8 A Oh, okay. I misunderstood your question. Number one

9 bracket on the right-hand side is identical on both

10 models.

11 The number two bracket is for the 324 on the

12 left-hand side.

13 And number three is the left-hand for the 334.

14 There might be some exceptions to that, but I think

15 that's 90 percent correct.

16 Q Okay. So add that up and then we have one, two, three

17 brackets that you had tested?

18 A Yes.

19 Q All right. And as to bracket number one, the one on the

20 right side, was it the original bracket that originally

21 shipped with the tractors or was it a replacement

22 bracket?

23 A All the ones checked were original brackets.

24 Q All right. Describe the characteristics of the original

25 brackets and how to differentiate them from, I guess we



Page 121

1 would call them the replacement bracket?

2 A Those brackets there is no difference.

3 Q On the number one's?

4 A On the number two's or number three's. They are

5 identical that comes with the tractor then or today.

6 Q Okay. So there have been no change in the front steering

7 brackets, either one, two, or three throughout the life

8 span of the 324 and 334?

9 A Not to my knowledge. Number three is a newer bracket and

10 a newer axle and that's all.

11 Q Okay.

12 A Newer meaning -- not newer, but new to my tractor. They

13 swapped axles.

14 Q They swapped axles?

15 A They changed to -- from a number one and number two axle

16 that uses number one and number two up to the one and

17 three.

18 Q So they simply moved the parts around on where they were

19 on the tractor?

20 A No.

21 Q No?

22 A They simply bought an axle from one manufacturer and

23 stopped buying them and bought an axle from another

24 manufacturer.

25 Q Oh, okay. Okay. But the parts are identical?



Page 122

1 A Yeah. The parts on number one are identical.

2 Q In number one parts are identical from before and after

3 the change?

4 A The number two parts are specifically for the first axle.

5 The number three part is specifically for the -- for the

6 number two axle, the later axle.

7 Q For the later axle, okay. So they changed axles

8 somewhere along the way?

9 A Right.

10 Q And the number two part stayed the same, but the number

11 three part is different? No?

12 A Number one axle -- the first axle, and we can refer to it

13 as the previous axle, or first axle, or old axle, any of

14 those terms, used number one on the right side if you are

15 sitting in the tractor seat. It uses the number two part

16 on the left.

17 Q Okay.

18 A The newer axle uses the number one part, and the number

19 three part.

20 Q Oh, okay. I told you you really have to make this simple

21 for me.

22 A That's understandable.

23 Q All right. What kind of a report did PSI provide for

24 you?

25 A PSI is a -- provides independent study. They are



Page 123

1 Precision -- I don't know what they call it, Precision

2 something or other, but they are an independent company

3 like a title company. And they tested the strength of

4 the metal.

5 Q All right. Did you take the parts out of your spare

6 parts inventory, or did you remove them from tractors to

7 take them to the lab?

8 A I took them out of our spare parts inventory.

9 Q Okay. And what kind of report did PSI give you? Was it

10 a booklet?

11 A It's a one-page -- one or two-page report.

12 Q All right. And do you have a copy of that report in your

13 possession?

14 A You were already given it, from what I understand.

15 Q Okay. We will chat about that later, but it's possible.

16 Did you have some customers request -- provide a

17 different front steering bracket for a 334 tractor?

18 A Yes.

19 Q One time or more than one time?

20 A One customer of ours broke his and he was a steelworker.

21 And he told me that he was going to build his own -- he

22 broke the steering tie rod -- he broke the tie rod is

23 what he broke. He didn't break it, bent it. And he said

24 he was going to make his own replacement.

25 I said, "Well, don't do that. Let's get the factory



Page 124

1 to build it and it will stay within warranty."

2 And as long as we do the new tie rod, let's also do

3 the two brackets. So we did the two brackets. We were

4 in about a dozen of them and he got one of them.

5 Q Where are the other 11?

6 A We gave them out to people. I don't know where or who or

7 exactly who or what got them. I didn't do a study on all

8 that, but people that seemed to be bending their tie rods

9 a lot.

10 Q You gave them out or sold them?

11 A No, sold them.

12 Q Are they all out of your inventory at this point?

13 A All the brackets are gone.

14 Q Did you install any of them for the customers, any of the

15 new brackets?

16 A A couple, yeah.

17 Q How did you determine which customers to sell those to?

18 A Oh, you know, I think somebody that called -- would call

19 up like the one guy he mentioned -- I can't think of his

20 name, not Cox but the other guy. He called up and

21 started complaining about bending the tie rods or had

22 replaced tie rods a couple times, and we would -- and if

23 they made a complaint in any way that they wanted

24 something supposedly stronger or better on the tie rods

25 we got rid of the ones we had that way.



Page 125

1 Q Do you have the option of ordering additional copies of

2 the new model tie rod and brackets?

3 A I have the -- I have some tie rods in stock. I don't

4 have brackets. I never reordered them.

5 Q Of the 12 people that you sold the new brackets to, had

6 each of those experienced a problem with the brackets or

7 tie rods?

8 A I don't know. I don't think so. That's my guess. I

9 mean, that's -- I don't think we are having -- I don't

10 think we have had any further problems merely because we

11 told them not to go through any stump filled fields

12 anymore.

13 MR. BUNDY: Anybody in a mood for a

14 quick break, or do you want to forge on?

15 MR. WAGNER: It probably depends on

16 how much longer you think you will be.

17 MR. BUNDY: Oh, certainly less than a

18 week.

19 THE WITNESS: What?

20 MR. WAGNER: Probably should take a

21 quick break then.

22 MR. BUNDY: Okay. Let's take a quick

23 break.

24 (Recess 2:19 p.m. to

25 2:27 p.m.)



Page 126

1



4

5 Q (By Mr. Bundy) Mr. Leonard, I'm handing you what's been

6 marked as Exhibit 9 to these depositions.

7 A Okay.

8 Q I will represent to you that that is a document entitled,

9 "Table 1," and it has a Bates number of tCO-000873 at the

10 bottom. And it is a summary of Tytan tractors purchased

11 and sold by tractorco.com prepared by Mr. Bogden, or

12 someone on his behalf, with information that appears to

13 indicate at the top through February 3, 2010.

14 Is that an adequate general description of that

15 document so we can identify it later?

16 A I will take your word for it.

17 Q Does it say "Table 1" at the top?

18 A Yes.

19 Q And it has that TCO number at the bottom?

20 A Yes, it does.

21 Q All right. Looking at the second column with the word

22 "Model" at the top of it, if you would, please.

23 A Uh-huh.

24 Q Are those all models of Tytan tractors?

25 A Yes. Uh-huh.



Page 127

1 Q All right. Do you recognize the serial numbers as being

2 Tytan tractor serial numbers?

3 A Oh, I couldn't tell you that.

4 Q Okay.

5 A But they look like it.

6 Q If you will look, please, at the column entitled "Sold

7 to," do you see that?

8 A Yes.

9 Q About the middle of the page?

10 A Uh-huh.

11 Q The -- it appears to be a list of last names of

12 customers, is that what you would take that to be?

13 A I guess so, yeah.

14 Q And some of the names on there, including Mr. Browning,

15 Mr. Conner, Mr. Stroscher, Mr. Harvey, and Mr. Cramer,

16 and Mr. Olsen are names that we have talked about earlier

17 today, and perhaps others?

18 A Okay.

19 Q Is that correct?

20 A Yes.

21 Q All right. And the date, sold dates, are those all

22 during the period that Mr. Bogden was a dealer of Tytan

23 tractors?

24 A I don't know.

25 Q All right. Well, I correct myself. It looks like a few



Page 128

1 of them are after the date of your cancellation letter;

2 is that correct?

3 A It looks like it.

4 Q Mr. Stroscher and Mr. Cramer?


6 Q The descriptions of problems or failures as it's

7 characterized in the "Type system failure" column, are

8 you familiar with the Sparks' issue or tractor, that

9 sale, that transaction?

10 A Only from looking at some picture of him running his

11 loader with a root -- a trunk of a tree in the grips.

12 Q All right. Do you have any knowledge as to whether any

13 of those failures listed for Mr. Sparks actually

14 happened?

15 A I have no idea.

16 Q All right. The Cutchins transaction, do you have any

17 knowledge as to whether the casting for the motor mount

18 failed or not?

19 A No, I don't.

20 Q The Maglietti tractor, do you have any knowledge as to

21 whether the front loader failed?

22 A No, I've got no knowledge of it.

23 Q The Thrall tractor, do you have any knowledge as to

24 whether the electric hydraulics -- hydraulic leak or

25 throttle cable were problems?



Page 129

1 A I don't.

2 Q On the Browning tractor, do you have any knowledge as to

3 whether the hydraulic pump was a problem?

4 A No, I don't.

5 Q As to the Conner, Stroscher, the second Conner, and the

6 Harvey tractors, do you have any knowledge as to whether

7 the reverse idler gear failed or was a problem?

8 A Yes.

9 Q Is that as to all four of those?

10 A I know I don't know anything about the Stroscher's other

11 than pictures.

12 Conner, I don't know why there is two Conners here.

13 I don't quite understand that, but I do know the Cramer

14 one.

15 Q And those, to the extent that you know about them, those

16 had the problem that we talked about earlier where the

17 factory had put in the wrong reverse idler gear?

18 A Yeah. Well, I know that Harvey was not an idler gear.

19 Q What was Harvey?

20 A Harvey had the same problem as Cramer did there, just a

21 shear pin in the clutch.

22 Q But how do you know that he did not have a reverse idler

23 gear problem?

24 A Because we went and picked it up and he wanted to get a

25 bigger tractor so we traded him.



Page 130

1 Q At that point had the transmission been opened up and

2 repaired?

3 A Of whose?

4 Q Mr. Harvey.

5 A I couldn't tell you.

6 Q And you have knowledge, I take it, of the clutch issue

7 with Mr. Cramer?

8 A Yeah. It was something that we also dealt with in the

9 same way, traded him into a bigger tractor.

10 Q All right. Now both Olsen and Cox are reported on

11 Exhibit 9 to have had front steering bracket issues.

12 Do you have knowledge of whether in fact those

13 occurred?

14 A Yeah. We sold Olsen parts, I guess.

15 Q Did you also sell Cox parts?

16 A I think so, yeah.

17 Q Do you know who or what RCL is?

18 A Huh-uh.

19 Q Was that a yes or a no?

20 A I don't know.

21 Q Okay. Do you have any knowledge as to whether the Cox

22 tractor had a clutch problem?

23 A I don't know anything about that.

24 Q All right. If I could ask you to please look down this

25 final column for me, "Time to first failure," and maybe



Page 131

1 we can handle it with a general question of, do you have

2 any knowledge that any of the data in that last column is

3 inaccurate?

4 A I wouldn't have a way of knowing that those -- those

5 answers.

6 Q All right. Do you recognize any of those as being

7 something that you know to be accurate?

8 A I think maybe the Cramer one I know to be accurate

9 because we took it in on a trade.

10 Q All right.

11 A The Harvey one, I don't know what the deal is there.

12 Q On the Tytan tractors, do they have a run time clock on

13 them that keeps track of how many hours they have on the

14 vehicle?

15 A It's an hour meter.

16 Q And what does that measure, the number of hours the

17 engine is running, or the number of hours the wheels are

18 turning?

19 A Engine is running.

20 Q All right. Now, Mr. Leonard, we have been talking here

21 today almost like we are a couple of farm boys and know

22 what we are talking about, but my fear is that somebody

23 else might need to read the transcript next week or next

24 month and understand it. So we have been talking a

25 little bit about a couple of parts of tractors. Let's



Page 132

1 take the easy -- what to me is the easy one first.

2 A farm boy knows what a tie rod is, right? I don't

3 know that a lawyer knows what a tie rod is. Can you

4 explain to me in some fairly abbreviated form how the

5 steering mechanism on a tractor works, and if this is any

6 different than other tractors. Help educate me briefly.

7 A A tie rod is a piece of metal like this that has a female

8 and female threaded ends, and it's tied to each wheel of

9 the tractor.

10 Q So it's a cylindrical rod usually?

11 A Just a round one, and you adjust it in and out to adjust

12 the toe of the tractor. The tractors are made to have a

13 toe in, so that's what it does. It adjusts the angles on

14 the tires.

15 Q Does it have a role in the steering of the tractor, as

16 well as the toe in?

17 A Well, that is a role in the steering.

18 Q Okay. Is it part of the mechanism that physically moves

19 the front wheels left and right if I want to turn around

20 in a circle?

21 A Yeah.

22 Q All right. So it's connected, in this case, to the power

23 steering mechanism?

24 A No.

25 Q No?



Page 133

1 A You have a --

2 Q Would it be helpful for you to draw a sketch for me on a

3 piece of paper?

4 A There we go.

5 Q Okay.

6 A (Witness drawing.)

7 Q The bullet shape object you have drawn there is a tractor

8 and the pointy end is the front?

9 A I have labeled it "tractor chassis."

10 Q All right.

11 A And I'm no artist, but this is a the axle.

12 Q And we are talking about the front axle here where you

13 are drawing?

14 A Yeah. Okay. That's the front axle. This is the front

15 of the tractor. These are your wheels here. Okay. Your

16 tie rod is a bar that goes right across here, hooks to

17 the tire, and that's called the tie rod. You can adjust

18 it out or in, whatever angle you want on those tires.

19 Q Okay. And where does the power steering mechanism

20 connect to all of this?

21 A Right. I am going to move it up in front here. It's on

22 top of the axle normally, but I will just move it up

23 on -- well, that's not a very good one. I will make

24 these tires look like they are longer.

25 Q Okay.



Page 134

1 A Need longer tires.

2 Q Okay.

3 A Okay. Then -- and these have little fixtures they hook

4 to at both ends, these tie rods.

5 Q Those are the brackets we are talking about?

6 A No. Well, these have smaller brackets, different -- not

7 what we were talking about.

8 Q Okay. Where are the brackets we were talking about?

9 A Okay. You are talking about you have coming right out of

10 here is a cylinder. Now these two tires, if you move

11 them one way or the other, they are tied together now

12 because of that tie rod.

13 Q Okay.

14 A Now this cylinder has a shaft on it here that goes in and

15 out.

16 Q Okay.

17 A And it hooks onto the tractor over here. Now these are

18 not laid out one, two, three when you look down at them

19 like this, but they are more like on top of each other.

20 Q So they are stacked up?

21 A Not exactly, but they are more that way.

22 Q Okay.

23 A So if this cylinder goes out, it will make this tire go

24 this way. Well, the tie rod is hooked to the other one

25 so it makes it go that way too.



Page 135

1 Q Okay.

2 A And if you move it this way, if you suck this thing in it

3 makes this tire go this way, and this one this way.

4 Q Okay. Now would you mark on there where the brackets are

5 that we have talked about, the front steering brackets.

6 A Okay.

7 Q Now is there another one on the other side or is the

8 hydraulic cylinder only on one side?

9 A Only on one side.

10 Q All right.

11 A I'm missing something here. There's a bracket over here

12 and I am just going to put it in here now.

13 Q All right. How about if you date and initial that for

14 me, please. Today is August 19, I believe.

15 MR. WAGNER: Don't trust him.

16 THE WITNESS: It's not an accurate

17 picture of positions.

18 Q (By Mr. Bundy) I wasn't looking for an accurate picture.

19 I just wanted to make sure that we had an idea.

20 Would you mark that for me please.

21 THE COURT REPORTER: Certainly.



24

25 Q (By Mr. Bundy) And the record should reflect that we



Page 136

1 have marked the drawing you just made of the tractor as

2 Exhibit 10.

3 A Right.

4 Q I guess we can put that with the other marked exhibits

5 here.

6 Okay. Another set of terminology we have tossed

7 around here between us is reverse idler gear. Help me

8 understand as briefly as we can, and if you need to draw

9 something we can do that too, what a reverse idler gear

10 is and how it works as part of the tractor. What does it

11 do?

12 A It's a gear that when you put a shuttle in reverse it

13 moves it in a rotating fashion. And in the case they get

14 any wrong parts, they didn't have the lubricated portion

15 that worked on that gear.

16 Q So where the gear surrounds the -- a rod of some sort?

17 A Yeah.

18 Q An axle?

19 A That's exactly right.

20 Q It should have had a lubricating device in there and it

21 did not?

22 A Yeah. Well, the reason they look the same some of them

23 these gears work differently and they don't really

24 rotate, some of them just move forward and back and stuff

25 like that. They don't move with the speed, you know, and



Page 137

1 the stuff or pressure that this one would have. And this

2 one has a bushing that's got some lubrication or rings

3 inside of it that keep it running smooth.

4 Q Okay. And that's part of the transmission, as I

5 understand it?

6 A That's right.

7 Q One of many gears and gizmos inside the transmission?

8 A That's right.

9 Q And it has something to do with operating the tractor in

10 reverse?

11 A Yeah.

12 Q All right. Is it the main drive gear for the tractor

13 moving in reverse or is it a secondary or -- well, how

14 important is the reverse idler gear?

15 A It's important to move the tractor.

16 Q All right. When it fails, does the tractor refuse to

17 move at all?

18 A Yeah.

19 Q All right.

20 A But it moves at a darn slow speed.

21 Q Okay. When it fails -- when the reverse idler gear

22 fails, can it damage other parts of the tractor?

23 A There's a housing -- there's a little small area of the

24 housing that it can damage if somebody keeps on using it

25 and stuff.



Page 138



3

4 Q Mr. Leonard, I have handed you what's been marked as

5 Exhibit 11. I will represent to you that it is a

6 two-page document dated October 22, 2008 with Bates

7 numbers ML-000126 and 127. It appears to be a

8 declaration of James B. Shillington?

9 A Yes.

10 Q Have I --

11 A It's spelled wrong. It should be S-H -- it's S-H and

12 that likes like a "B."

13 Q All right. Is this a declaration that you prepared?

14 A No.

15 Q Who prepared this?

16 A He did.

17 Q Did he or someone on his behalf type the content onto

18 this declaration?

19 A Yeah, I assume so.

20 Q Did you interview Mr. Shillington?

21 A Yeah, over the phone.

22 Q How did he come to have what appears to be your standard

23 form of declaration with the cause number and everything?

24 A I might have sent that to him.

25 Q How else could he have gotten it?



Page 139

1 A I don't really remember. I might have sent it to the

2 attorney and had him fax it and type it up or something

3 or whatever my notes were. I don't know.

4 Q To Mr. Shillington's attorney or to your attorney?

5 A It might have been one of my attorneys.

6 Q Did one of your attorneys, to the best of your knowledge,

7 interview Mr. Shillington?

8 A No.

9 Q Did one of your attorneys have all of these declarations

10 typed up?

11 A I don't -- I don't know the answer to that.

12 Q Did you type them?

13 A Possibly. I don't think so.

14 Q All right. Now Paragraph 3 of Mr. Shillington's

15 declaration says, "Mr. Bogden called me and started in on

16 discrediting Tytan International by saying they had

17 design problems and would not provide service."

18 When you interviewed Mr. Shillington, what

19 specifically did he say that Mr. Bogden had said to him?

20 A Pretty much exactly what's in here.

21 Q All right. And your testimony is that you took what he

22 told you, you made some contemporaneous notes that you

23 may or may not still have, and then you gave some

24 information in some form, perhaps to one of your

25 attorneys, who then had this typed up?



Page 140

1 A Yes.

2 Q Did the attorney or any staff member for that attorney to

3 the best of your knowledge speak with Mr. Shillington?

4 A No.

5 Q Mr. Shillington says here, "I was very disturbed by this

6 call."

7 Did he in October 2008 tell you when the call

8 occurred?

9 A Yeah, right after it happened. They all did.

10 Q All right. So that I understand it, did you talk to Mr.

11 Shillington right after it happened or just before he

12 signed the declaration in October of 2008 or both?

13 A I certainly talked to him both times.

14 Q Did Mr. Shillington make any changes on a draft of this

15 declaration?

16 A I don't know.

17 Q Did he make any changes on it after you sent it to him to

18 be signed?

19 A I don't know. I don't think so. I'm not sure. It might

20 have had -- his attorney may have retyped this thing.

21 It's a good possibility that -- now that I look at that

22 second line there, I don't know anything about there

23 where this second name here it says "Division of

24 WEAR-A-THON."

25 Q What business of -- what was your business relationship



Page 141

1 with Mr. Shillington?

2 A Well, he sold in Nova Scotia.

3 Q He was a dealer?

4 A Yeah.

5 Q A Tytan dealer?

6 A Yeah.

7 Q What other brands did he sell?

8 A He had just quit Jinma to take us on, and he didn't have

9 any other line.

10 Q Is Mr. Shillington or his company still a Tytan dealer?

11 A No.

12 Q When did they terminate?

13 A Oh, they just stopped buying. They were getting a lot of

14 comments on the customers that were coming in.

15 Q Did you send them a termination or cancellation letter?

16 A No.

17 Q Or e-mail?

18 A No.

19 Q Did they send you a letter or e-mail announcing that they

20 were terminating their dealership?

21 A No.

22 Q How long after the initial call from Mr. Shillington --

23 strike that.

24 Do you recall when this initial call from Mr.

25 Shillington came in?



Page 142

1 A I'm sure it was real close to within a week or so of this

2 thing. Maybe --

3 Q So in October of 2008 --

4 A Yeah.

5 Q -- was the first time that Mr. Shillington called you?

6 A On this issue?

7 Q On any of these issues.

8 A Oh, no, he had mentioned things before about it.

9 Q What had he mentioned before -- when did he say that Mr.

10 Bogden called him?

11 A I don't remember.

12 Q When you first spoke with him about Mr. Bogden's

13 contacts, what issues did he say Mr. Bogden was raising

14 at that time?

15 A Pretty much what it says right in here.

16 Q All right. What words did he use?

17 A He said there were problems with the tractor, that nobody

18 wants to buy problems and --

19 Q He said that Mr. Bogden said there were -- that nobody

20 wants to buy problems?

21 A No, he said that nobody wants to buy problems.

22 Q I'm asking you what he told you that Mr. Bogden said?

23 A Just about everything in here.

24 Q Just about everything? What in here then didn't he say?

25 A I think he discussed pretty much everything except the



Page 143

1 title is a little different. I don't remember that

2 secondary name on there.

3 Q In what specific way did he tell you that Mr. Bogden was

4 discrediting Tytan International?

5 A I think he was talking about the products being bad and

6 things such as that.

7 Q What products?

8 A And that he had problems with the idler gear and wanting

9 to know if he had, and he mentioned parts and other

10 things about our company. He just basically talked the

11 issues down that had everything to do with Tytan.

12 Q Okay. I understand your interpretation of what you were

13 told. I'm trying to focus in like a laser on what did

14 Mr. Shillington say that Mitch Bogden said.

15 I know -- I understand it had something to do with

16 design problems because that's in here, and it had

17 something to do with service because that's in here, but

18 what was it about design problems that Mr. Bogden was

19 talking to Mr. Shillington about, if you know?

20 A Well, one of them was idler gear problems.

21 Q Did Mr. Shillington specifically say he called about the

22 idler gear?

23 A Not specifically, but that was an item in the

24 conversation. He said there was failures on them and

25 wanted to know what he had.



Page 144

1 Q What were the other items in that conversation between

2 Mr. Bogden and Mr. Shillington?

3 A Oh, he told them a little bit about him.

4 Q About who?

5 A And he said he was on the internet talk forums.

6 Q Mr. Bogden said he was on the internet talk forum?

7 A I'm just repeating what's on this paper here.

8 Q I know what's on the paper. I'm trying to understand

9 what Mr. Shillington told you before you prepared this

10 piece of paper for his signature.

11 A The main thing he told me was the internet degrading of

12 the products was something that he couldn't -- they were

13 coming in to his place and they had seen the stuff on the

14 internet, and he didn't like having his money tied up in

15 things that were getting negative talk.

16 Q Okay. Negative talk. Specifically, what negative talk

17 did Mr. Bogden engage in?

18 A We went through all of that all morning here. I mean,

19 all those things were all pertinent and we have gone over

20 this and mentioned it, the declarations included.

21 Q Now I'm trying to focus in on the individual

22 declarations. I assume Mr. Shillington will be a witness

23 in this case, and I need to understand what it is he told

24 you as you prepared this declaration.

25 A Okay. I just told you.



Page 145

1 Q If the contents of this declaration is all he told you,

2 that's okay, just tell me that. But if he told you more

3 then I need to know what it is.

4 A I just told you one of the things that he said.

5 Q All right. My short-term memory obviously isn't helping

6 me here today. Could you tell me again what it was Mr.

7 Bogden said?

8 A The discrediting of the product on the internet was

9 affecting his customers and he didn't like to have

10 those -- his money tied up in products that were being

11 bashed.

12 Q Okay. That's what Mr. Shillington told you about

13 himself?

14 A That's one of the things he told.

15 Q What did he tell you Mr. Bogden said?

16 A Okay. He said that Bogden was claiming that there was an

17 idler gear problem.

18 Q Okay. Did he tell you how Mr. Bogden described the idler

19 gear problem?

20 A Just he said that he was ranting and raving about Tytan's

21 undisclosed idler gear problem.

22 Q And you don't know when this conversation between Mr.

23 Shillington and Mr. Bogden took place?

24 A It's -- all of them took place -- the first ones within a

25 couple days of each other.



Page 146

1 Q When would that have been in the calendar of events?

2 A Probably not far off of the some of these dates on here.

3 I don't know what the other dates are, but it would be

4 the earliest dates on these things.

5 Q The earliest dates of all of the declarations?

6 A Yeah. I would say it's probably the -- somewhere around

7 the 10th or 12th of October 2008.

8 Q So around the middle of October of 2008 Mr. Bogden was

9 allegedly on the telephone to Mr. Shillington for the

10 first time talking about the idler gear problems?

11 A That's right.

12 Q So it didn't happen back in January and February of 2008,

13 it happened in October of 2008, am I clearly

14 understanding?

15 A Yeah. You know, I -- if you got some of the other

16 declarations, it was when the first declarations were

17 made.

18 Q Okay.

19 A That's when most all of the conversations were happening.

20 Q Okay. We will get to them all, but I will represent to

21 you that on a glance here it appears that all of the

22 declarations are dated in the middle of October to the

23 end of October 2008.

24 A So within about a month of that time period.

25 Q So September or October of 2008 is the time that Mr.



Page 147

1 Shillington was allegedly on the telephone discussing the

2 reverse idler gear with Mr. Bogden?

3 A Right.

4 Q All right. And you have no knowledge of any such

5 conversations prior to that time?

6 A My memory isn't that accurate on the dates of these

7 things. I just know when they were signed was reasonably

8 close to when the calls were.

9 Q And this was the first calls that you had about the

10 conversation with Mr. Shillington?

11 A I'm not sure if it was the first one or not.

12 Q Now Mr. Shillington appears to be testifying here that,

13 "I have never had any idler gear or shuttle problems with

14 Tytans."

15 A Right.

16 Q To the best of your knowledge, is that true?

17 A That's true.

18 Q Do you know whether he reported that fact to Mr. Bogden?

19 A When he called, do you mean?

20 Q When Mr. Bogden and Mr. --

21 A I'm certain he did.

22 Q Do you know?

23 A I wasn't there, no.

24 Q Did he tell you he reported that to Mr. Bogden?

25 A Yeah.



Page 148

1 Q How did he say that?

2 A I'm assuming it's just like it says right here.

3 Everything in these is pretty close to quotes from the

4 people that made the comments.

5 Q Okay. We have pretty much established, haven't we, that

6 this is about a third or fourth generation document from

7 the time that you first talked to Mr. Shillington? You.

8 Took notes, passed those -- either the notes or a

9 verbal summary of the notes onto perhaps an attorney or

10 somebody in an attorney's office, who then typed up the

11 declarations, and they got faxed or sent somehow to Mr.

12 Shillington, who then reviewed it presumably, and then

13 signed it and got it back, so we have several generations

14 in there?

15 A I don't know that for sure. I can tell that you when I

16 faxed this to him it was back to me the next morning.

17 Q Okay. So you are the one who faxed it to him?

18 A Yes.

19 Q All right. Did you talk with him between the time you

20 faxed this to Mr. Shillington and the time that he faxed

21 it back to you the next morning?

22 A I couldn't remember that far back.

23 Q Mr. Shillington says here that he has made a substantial

24 investment in Tytan products.

25 Do you know how much of an investment he had made in



Page 149

1 Tytan products at that point?

2 A Oh, a couple hundred dollars -- I mean a couple hundred

3 thousand dollars -- or like two hundred thousand maybe.

4 Q So how many tractors did that represent that he had

5 purchased?

6 A Oh, I think he had anywhere from 12 to 18 of them.

7 Q Was that at any one time or was that a total?

8 A Petty much at one time.

9 Q What did Mr. Shillington tell you about his telephone

10 call from Ron Heppner?

11 A Well, Ron had got the same basic phone call how as far as

12 he told Mitch he didn't have any problems.

13 Q Okay. What did Mr. Heppner tell Mr. Shillington that Mr.

14 Bogden said to Mr. Heppner?

15 A That's too long a sentence for me. I don't get that one.

16 Q It's -- I'm just working through the chain here in the

17 declaration.

18 A I know you changed -- you said who said what to what

19 three times and I didn't quite follow you.

20 Q All right. Let's try again.

21 What did Mr. Shillington tell you that Mr. Bogden

22 said to Mr. Heppner? We will shorten it a little.

23 A He told, according to Heppner, he told Shillington that

24 he told Mitch that he hadn't had any problems like he was

25 describing, but Mitch had described all sorts of problems



Page 150

1 he had with idler gear and whatever.

2 Q Is there any dispute that at least one of the tractors

3 that Mr. Bogden purchased from your company had a problem

4 with the reverse idler gear?

5 A I assume it has. I haven't been able to see the parts

6 yet.

7 Q So if that's true, then I assume a report by Mr. Bogden

8 to Mr. Shillington or to Mr. Heppner was -- that the

9 described that problem was a true statement; is that a

10 fair statement?

11 A Well, I think it's an untrue insinuation that Tytan has

12 an idler gear problem, and that's what this whole thing

13 is about.

14 Q Did Mr. Shillington tell you that Mr. Bogden told Mr.

15 Heppner that all Tytan tractors had reverse idler gear

16 problems?

17 A That they had design failures -- that's -- the design

18 failures has been the thing that has kept coming back.

19 Q All right. I didn't feel like I got an answer to the

20 question.

21 Did Mr. Heppner tell Mr. Shillington, to your

22 knowledge, that Mr. Bogden told him that all --

23 A Heppner said Bogden had said there was design problems

24 with the tractors.

25 Q All right. Did Mr. Heppner tell Mr. Shillington that Mr.



Page 151

1 Bogden said that that design problem existed in all Tytan

2 tractors or --

3 A Same answer as I gave you before.

4 Q So I take it the answer is no?

5 A Heppner told Shillington that Bogden had told him that

6 there was design problems in the 334 idler gear.

7 Q I understand what you are saying, but that's not the

8 question I'm asking.

9 The question I'm asking is, to your knowledge, did

10 Mr. Heppner tell Mr. Shillington that all Tytan tractors

11 had design problems?

12 A That's exactly why Shillington brought it up to me

13 because of that very exact thing.

14 Q What did Mr. Shillington say to you about that very exact

15 thing?

16 A I'm saying the same thing over and over and over and over

17 here.

18 Q Okay. What I'm looking for is not your understanding of

19 what he said. I would like to have his words as close as

20 we can recapture them. We don't have a recording to look

21 at, we have your memory.

22 A I don't have an understanding. I have what Mr.

23 Shillington related to me.

24 Q Okay.

25 A What Ron Heppner had said.



Page 152

1 Q Okay.

2 A And I just told you that.

3 Q Okay. So what you have told me, is all that you know

4 about what Ron Heppner said?

5 A You are not talking sense to me. You are talking the

6 same question over and over and over, and I keep giving

7 you the same answer.

8 Q Okay. Well, we will keep working at it until we get an

9 understanding of the question on both sides of the table

10 here.

11 I need to know the exact words that Mr. Shillington

12 relayed to you that Mr. Heppner relayed to him that Mr.

13 Bogden allegedly used in describing the reverse idler

14 gear issue that he had experienced.

15 MR. WAGNER: He's not looking for your

16 understanding. He wants to know do you know the exact

17 words.

18 Q (By Mr. Bundy) If you don't know the exact words, it's

19 okay.

20 A I only know what Shillington told me. He got a phone

21 call from Ron Heppner. Ron Heppner said that Mitch had

22 told him that Tytan has idler gear problems.

23 Q Okay. So Tytan has idler gear problems. That we have

24 established as a fact that there were idler gear problems

25 with some Tytans?



Page 153

1 A There were no idler gear problems.

2 Q Wow.

3 A There was a part that was assembled in place of the idler

4 gear problem.

5 Q Was it a problem that the wrong part was included in the

6 transmission of certain Tytan tractors?

7 A The idler gear design function parts have no problems. A

8 wrong part inserted in there can cause a failure and

9 that's what we had.

10 Q When did you first discover that it was a wrong part

11 rather than some other part?

12 A I already went over that.

13 Q Okay. Refresh my memory as to when you first understood

14 that. Was it during that time that you were working --

15 A I have already testified to that.

16 Q All right. I will leave it alone because I think you are

17 right.



20


22 Exhibit 12 to these depositions. That's a declaration of

23 Darrell Haugland, I believe, at Yellowstone Tractor

24 Company in Belgrade, Montana. It appears to be on the

25 same form as the prior declaration that we talked about



Page 154

1 by Mr. Shillington. It's on one page, dated October 22,

2 2008.

3 Is that a fair description of that document?

4 A It is.

5 Q Is it true that as of October 2008 Mr. Haugland had four

6 Tytan dealerships in the state of Montana?

7 A Three. Three or four. I don't know.

8 Q What is your business relationship with Mr. -- he's a

9 dealer.

10 Mr. Haugland in Paragraph 1 here says, "I received a

11 very negative phone call from Mitch Bogden."

12 Other than the words contained elsewhere in this one

13 page of Exhibit 12, did Mr. Haugland provide any other

14 information about the specifics as to how that phone call

15 was negative?

16 A Yeah. He said Tytan's products were getting discredited

17 and the idler gear was a problem. He also told them that

18 Tytan was just using him as a guinea pig with the

19 products on untested products.

20 Q Is that what Mr. Haugland told you on the telephone?


22 Q When did you speak with Mr. Haugland on the telephone

23 about that?

24 A All of these happened in a few days. It was a very, very

25 short time period so that's when I talked to him.



Page 155

1 Q Okay. Did Mr. Haugland tell you when he had spoken with

2 Mr. Bogden?

3 A I just answered it in the last sentence.

4 Q You told me when you had spoken with Mr. Haugland. The

5 question is, when did --

6 A All of these took place within a very short time period,

7 within a week let's say.

8 Q Did Mr. Haugland specifically tell you that?

9 A He called me up right after he got a phone call from

10 Bogden, and had already talked to his other manager at

11 some little town.

12 Q After who had talked to his other manager?

13 A He had.

14 Q Mr. Bogden or Mr. Haugland?

15 A Haugland.

16 Q So Mr. Haugland had talked to his other manager, and what

17 did Mr. Haugland report about that conversation?

18 A I just said -- I just told you everything.

19 Q Okay. If that's everything Mr. Haugland said to you --

20 A Yeah, he told me that Mitch had given him a big deal that

21 he and the other dealers were all being used as a guinea

22 pig for a bunch of untested products that had all kinds

23 of design problems, and it had idler gear problems, and

24 all sorts of other discrediting comments about the

25 products.



Page 156

1 Q What did Mr. Haugland say that Mr. Bogden said about the

2 idler gear problems?

3 A I just told you what he said, that there was idler gear

4 failures.

5 Q Did Mr. Bogden tell him how many idler gear failures

6 there had been?

7 A No. He just told them they had design problems and lots

8 of failures, and just like he said, it was a very

9 disturbing phone call and that's why he called me up to

10 verify whether we had failures.

11 Q And what did you tell him about whether you had seen

12 reverse idler gear problems?

13 A Well, I'm not exactly sure. I don't know exactly the

14 time frame of when I sent him the parts to repair it, or

15 how far I was on my research on it, but I told him we

16 sure hadn't experienced much, and we were sure that it

17 was wrong parts and that what's my basic belief is. I

18 told him it was a wrong part that had been put in.

19 Q Is Mr. Haugland one of the people that you identified

20 earlier as having gotten a couple of the tractors that

21 had reverse idler gear wrong parts?

22 A Yeah.

23 Q At the time you sent Mr. Haugland the replacement reverse

24 idler gear parts, how did you explain to him the need to

25 break down one or more tractors and replace this part?



Page 157

1 A He only had, I think, two tractors and he just did it,

2 same with Randy Rich. They are qualified dealers. It

3 wasn't a big deal to them.

4 Q How did you explain to him why you were sending him these

5 parts?

6 A I already told you. It was a wrong part that had been

7 put in.

8 Q Did you do that in writing?

9 A No.

10 Q Did you do it by e-mail?

11 A No. Did it over the phone.

12 Q Did you explain to him how to put the part in correctly?

13 A I just answered that about four sentences ago. I didn't

14 need to. These are not rocket science deals. They are

15 pretty darn simple for a qualified dealer.

16 Q What did Mr. Haugland tell you that Mr. Bogden said about

17 the design -- there being -- about a design problem?

18 How did Mr. Bogden describe the design problem to --

19 the alleged design problem to Mr. Haugland?

20 A All I know is what I just told you.

21 Q Okay. How much time did you spend on the telephone with

22 Mr. Haugland when he called you about Mr. Bogden's

23 telephone call?

24 A Oh, probably about 20 minutes.

25 Q And did you make notes during that conversation?



Page 158

1 A Just enough to -- for this thing here. I just wrote down

2 what these things were that he said.

3 Q So there was a lot more that was said in that

4 conversation than what's reflected in a one-page,

5 three-paragraph declaration?

6 A Oh, there's various things. I think he told me he

7 didn't -- this thing was -- basically it's all here what

8 he said, right here.

9 Q Did he tell you that he did not believe Mr. Bogden?

10 A No, he didn't think that he knew what he was talking

11 about.

12 Q Did Mr. Haugland tell you that he didn't think Mr. Bogden

13 knew what he was talking about?

14 A No. You asked me, did he ask you -- did he tell you what

15 he thought about what Mr. Bogden was saying. And I said

16 he didn't think he knew what he was talking about.

17 Q You didn't think? Who is he? I'm trying to figure out

18 who he is here.

19 A It's not me.

20 Q All right. Did Mr. Haugland tell you that he thought

21 that Mr. Bogden didn't know what he was talking about, is

22 that your testimony?

23 A Haugland said he didn't think Mr. Bogden knew what he was

24 talking about.

25 Q Okay. It helps if we attach names. We got triple



Page 159

1 hearsay going on so we need to get the names in there so

2 we know who is speaking.

3 Mr. Haugland testifies here that Mr. Bogden

4 contacted one of the store managers. Do you know which

5 store manager that was?

6 A I only know him by face. I met him before.

7 Q Do you know his name?

8 A No.

9 Q Do you know what store he was at?

10 A I just don't know the name of that town.

11 Q What state?

12 A It's in Montana.

13 Q Is the manager still there?

14 A Yes.

15 Q Did you interview the manager?

16 A Nope.

17 Q Okay. In that 20 minutes you talked with Mr. Haugland

18 and reduced this conversation down to three paragraphs,

19 about eight sentences, what else did he tell you about

20 his conversation with Mr. Bogden?

21 A I think I told you just about everything. Tytan has no

22 service, idler gear problems, it's all right here.

23 Q Okay. I agree with you that we have a summary of

24 somebody's impressions of what was said here. I'm

25 looking for as close as we can get to Mr. Haugland's



Page 160

1 words to you.

2 A I think the closest you are going to get on any of these

3 declarations is exactly what is printed.

4 Q Okay. And you would agree with me that on every one of

5 these declarations, and we can go through each of them

6 and I know it's painful, and I hate putting you through

7 it and I sure hate putting me through it, be we can go

8 through them all and go through the same exercise, or if

9 you are telling me that there is no information that you

10 remember other than what's on these pieces of paper

11 regarding your conversations with those dealers, then we

12 may be able to cut this shorter, but I need to have that

13 clear.

14 A I'm telling you these declarations I took notes on what

15 they said, nothing more, nothing less and put it on here.

16 Q Okay.

17 A Key points of what they wanted to mention.

18 Q Did any of these declarants send you an e-mail or

19 anything else in writing that you based any of their

20 declarations on?

21 A No.

22 Q So it was entirely over the telephone with every one of

23 these people?

24 A Every one of them.

25 Q And you don't remember whether you typed up these



Page 161

1 declarations or had somebody in your place of business do

2 it?

3 A I think it was somebody at my business that did. I'm not

4 sure.

5 Q Who would have been typing something up at your business,

6 had it been somebody --

7 A I can't remember who would have done it.

8 Q Do you have more than one office person who would

9 normally type?

10 A I don't remember who it was.

11 Q Have you had a change in personnel in that department?

12 A I don't remember the details.

13 Q It's a simple question, sir. Do you have the same

14 secretary you have had for ten years?

15 A No.

16 Q Okay. Have you had changes in secretaries since October

17 of 2008?

18 A Yes.

19 Q All right. Who was your secretary in October of 2008?

20 A I don't know the answer to that.

21 Q Who is your secretary today?

22 A A gal named Jeri.

23 Q What's her last name?

24 A I don't remember her last name.

25 Q How long has Jeri been your secretary?



Page 162

1 A Oh, a couple months, two or three months.

2 Q Before her, who was your secretary?

3 A I don't remember the gal's name. A blonde haired gal. I

4 don't remember her name.

5 Q Do you remember anything about the one before the blonde

6 haired gal?

7 A I usually have them sitting upstairs and I don't even see

8 them every day. I give them their jobs, and it's not

9 like I'm sitting across the office with them.

10 Q Were -- was your secretary, as of October 2008, on your

11 payroll?

12 A Sure.

13 Q So you would have payroll records?

14 A Yes.

15 THE COURT REPORTER: I'm having a

16 technical issue so I need to pause for just a minute.

17 MR. BUNDY: Okay. Off the record.

18 (Pause in the proceedings.)

19

20 Q (By Mr. Bundy) Okay. We probably should go back and

21 clean up because Mr. Leonard remembered the name of his

22 current secretary; is that correct.


24 Q Why don't you go ahead and give that to us.

25 A Jeri Craig.



Page 163

1 Q Do you -- have you had any similar memory refreshment as

2 to your prior secretary, the blonde haired lady or who

3 might have been your secretary in October of 2008?

4 A I don't remember them so good.

5 Q Mr. Leonard, before we dive into these hopefully last

6 batch of documents, let's take a break and talk again

7 briefly about something we talked about a little earlier

8 today.

9 We talked about how you provided brochures, various

10 brochures to the dealers, you were available to help to

11 the extent that you could to share advice and experience

12 with the dealers.

13 And I believe you testified, if I'm not mistaken,

14 that you didn't charge any separate identifiable fee for

15 those services; is that correct?

16 A I just responded to whatever a dealer would want and most

17 of the time it was a mutual -- dealers talk all the time,

18 trade information.

19 Q I see. But when you delivered a batch of brochures to a

20 dealer --

21 A I never delivered any.

22 Q You didn't? Or you shipped them to them, you didn't

23 charge them for the cost of those brochures?

24 A If they asked for them, I gave them to them.

25 Q All right. So in terms of the cost of those that was



Page 164

1 just covered out of your general operating budget?

2 A Part of our expenses, yeah.

3 Q All right. And your source of revenue for that was the

4 sale of tractors and other farm equipment; is that

5 correct?

6 A Probably, yeah.

7 Q Was there another source of revenue for paying those

8 business expenses?

9 A No, that's pretty much it.

10 Q Pretty much it? Was there anything other than pretty

11 much it?

12 A Yeah, if I put my own money in it.

13 Q Okay. So it was either your own money, but if you got

14 money, was that not from the sale of tractors and similar

15 equipment?

16 A Well, it could be and it could not be.

17 Q All right. As a general principle, were those expenses

18 covered out of the revenues from the sale of tractors and

19 equipment?

20 A That's what I said earlier, like most of the time that

21 would be the case.

22 Q All right. So you probably didn't do it -- I'm sure you

23 didn't do it, but you could have, had you gone to the

24 extra work, figured out that out of every tractor you

25 sold for $15,000 37 cents of that went towards brochures



Page 165

1 you would supply?

2 A No, I wouldn't figure it that way at all. I did put my

3 own money into the company many different times just to

4 cover certain expenses.

5 (Exhibit Nos. 13 through 19

6 marked for identification.)

7

8 Q All right. Okay. Let's take a look at these stack of

9 exhibits in front of you, and I believe they are marked

10 sequentially from Exhibit 13 through Exhibit 19.

11 Does that accurately reflect the stack of documents

12 in your hand?

13 A I have got four of them here, Storey and Nelson and

14 Haugland and Randy Rich.

15 Q All right. Let's get them identified.

16 A Oh, there's a George here too. Oops, there's another

17 one, Luis.

18 Q Let's start with No. 13 and just get them fairly quickly

19 identified. Exhibit No. 13 is the declaration of Randy

20 Rich; is that correct?

21 A Yes.

22 Q From are Rupert, Idaho dated October 18, 2008?

23 A Correct.

24 Q And the conversation that we had just before the

25 equipment failure here, was that -- does all that apply



Page 166

1 to Mr. Rich? You interviewed him shortly before this

2 time?

3 And if there's any deviations here, I need to hear

4 what those deviations are, all right?

5 A No.

6 Q You interviewed him shortly before the time, and this

7 reflects everything you can remember of what he told you?

8 A Well, the way you are stating that, these people called

9 me and told me this stuff. So I wrote down the important

10 features of what they were talking to me about. I told

11 them I would send them a declaration and they said fine.

12 Q And you may or may not have those notes?

13 A Probably don't.

14 Q So sitting here today, do you have any memory as to your

15 conversation with Mr. Rich other than what's on this one

16 page?

17 A This is the key elements of what he talked to me about.

18 Q Do you have any memory beyond this as to what the non-key

19 elements of what he talked to you about were?

20 Do you remember that conversation with him?

21 A I remember that these are the key elements that came out

22 of the conversation that I can remember.

23 Q Sitting here today, do you remember taking the telephone

24 call from him?

25 A I just said that.



Page 167

1 Q Help me out again.

2 A I said these were the key elements of the phone call I

3 had with the guy.

4 Q Okay. And -- so you are saying that you do remember the

5 telephone call with him?

6 A I just said that.

7 Q All right. I need to make sure I understand.

8 Did he use the word "disturbing" during that

9 telephone call?

10 A Yeah, most all of them said that. Haugland used it too,

11 I think. These are the words that these guys used.

12 Q Did he say specifically that Mr. Bogden used the word

13 "junk"?

14 A That's what it says here.

15 Q Do you have any independent recollection of what he said

16 independent of this, of whether he used the word "junk"?

17 A I already told you. These are a representation of

18 exactly what I was told on the phone calls I got from

19 these guys.

20 Q All right. Do you have Mr. Rich's telephone number?

21 A Yeah, you can get it out of information too if you want

22 it. It's Randy Rich Equipment, Rupert, Idaho. Your man

23 called him.

24 Q In the third paragraph here it says "Mr. Bogden made many

25 negative comments about Mr. Leonard's character."



Page 168

1 Did Mr. Rich tell you what these negative comments

2 were?

3 A Yeah. They had to do with the fact that I would be

4 selling the company and leave everybody hanging, and that

5 this is a deal that the dealers were just being used as

6 guinea pigs for a bunch of untested products, and those

7 were the comments, same ones I mentioned before.

8 Q How long -- strike that.

9 When did Mr. Rich become a Tytan dealer?

10 A I don't remember the exact time. It was fairly early o ,

11 probably within the year when I started. I don't

12 remember. Maybe it was not two years after I started, I

13 think.

14 Q But you don't have a -- you never had a written dealer

15 agreement with Mr. Rich?

16 A No.

17 Q So was Mr. Rich not required to be open during regular

18 business hours?

19 A He was open during regular business hours. I already

20 knew that.

21 Q That wasn't my question. Was he required by you to be

22 open during regular business hours?

23 A I wouldn't have him as a dealer if he wasn't.

24 Q Other than the negative comments that we just talked

25 about, do you have any other memory of your conversation



Page 169

1 with Mr. Rich that is not reflected in Exhibit 13?

2 A Yeah, he said he sounded like he was drunk.

3 Q He said Mr. Rich sounded like he was drunk, or Mr. -- who

4 is he?

5 A It's --

6 Q We need to be careful with labels here.

7 A It's Rich said that Bogden sounded like he was drunk when

8 he called.

9 Q What did Rich, Randy Rich base that statement on, if you

10 know?

11 A It sure sounded to me like it's based on his phone call.

12 Q Did anybody besides Randy Rich say that Mr. Bogden

13 sounded drunk when he called?

14 A Yeah. I think I got it from Haugland as well.

15 Q Did he volunteer that or did you ask?

16 A They both volunteered it. I couldn't have dreamt that

17 one up.

18 Q Did Mr. Rich tell you whether he believed the information

19 he had received from Mr. Bogden?

20 A We just discussed the phone call. We just discussed

21 these issues.

22 Q Okay. So the answer is no?

23 A I didn't get into any opinions on this kind of stuff. I

24 just took down what he told me.

25 Q Let's go to Exhibit 14, the declaration of Fred Cramer.



Page 170

1 A Yes.

2 Q Dated October 17, 2008. The Bates number is ML-000130,

3 one page. Did I adequately describe that document for

4 identification, sir?

5 A Item 14?

6 Q Yes, Exhibit 14.

7 A I think that's what it is.

8 Q All right. Who is Fred Cramer?

9 A He's a customer that bought a tractor from Mitch over in

10 Baker City, Oregon.

11 Q Do you know whether the facts stated in Paragraphs 1 and

12 2 of Mr. Cramer's declaration are true?

13 A I only took down what they told me on the telephone.

14 Q So your answer is no, you don't know whether those are

15 true or not?

16 A I know what they told me on the telephone.

17 Q All right. I'm asking you, do you have any independent

18 knowledge of whether the facts stated in Paragraphs 1 and

19 2 of Fred Cramer's declaration dated October 17, 2008 are

20 true?

21 A I know that when we repaired his clutch it had a little

22 shear pin that was out, the thing that holds the clutch

23 in it, so he mentioned his clutch here and I know what

24 the problem was.

25 Q So you know he had had a clutch problem?



Page 171

1 A Yep.

2 Q That involved a shear pin?

3 A Yeah.

4 Q Do you know whether any of the other things stated in the

5 first two paragraphs of Mr. Cramer's declaration are true

6 or false?

7 A I only know what he told me.

8 Q All right. As of October 2008, was it true that Mr.

9 Bogden was involved in a lawsuit with Tytan?

10 A October? Well, you can answer that one.

11 Q So whatever the date of the -- I withdraw that question.

12 What specifically did Fred Cramer tell you about his

13 conversation with, or alleged conversation with Mr.

14 Bogden about whether Tytan would service the tractor?

15 A It's right there in No. 3 in the first sentence.

16 Q Nothing more than -- you don't remember anything more of

17 that conversation than what's here?

18 A This is what I took down when the man gave it to me.

19 Q How long were you on the telephone with Fred Cramer in

20 October 2008?

21 A Five or ten minutes.

22 Q And the only things you can remember are reflected in

23 this Exhibit 14?

24 A He also said -- made a comment about his character.

25 Q About whose character?



Page 172

1 A Bogden, he thought he was nuts.

2 Q Okay. So Mr. Cramer indicated he did not believe what

3 Mr. Bogden had allegedly told him?

4 A That's all I know. I just told you what I know.

5 Q He used the words "nuts"?

6 A That's what he used.

7 Q Anything else that you remember from your conversation

8 with Mr. Cramer?

9 A No.

10 Q Exhibit 15, please. ML-000131 is the Bates number. It

11 says it's the declaration of Robert Houglum?


13 Q Is that an adequate description so if we wind up talking

14 about that later we will know what we are talking about.

15 A Houglum, I don't know how to say it right either, I

16 guess.

17 Q I'm just wanting to make sure we have the document

18 identified correctly.

19 Is that an adequate description of the document?

20 A So that's what he told me.

21 Q Okay. Are you having difficulty hearing me, sir?

22 A No. I have that narcolepsy but one of the side effects

23 is cataplexy, and that's where your voice gets paralyzed

24 when you get emotional up or down?

25 MR. BUNDY: Okay. Do we need to take



Page 173

1 a break? I think we need to take a break.

2 THE WITNESS: Yeah, I think I better

3 take a break.


5 4:15 p.m.)

6

7 Q (By Mr. Bundy) We are back on the record. Mr. Leonard,

8 you obviously a few minutes ago experienced a little

9 health complication, and I think you explained part of it

10 on the record already. I don't want to get in the

11 details of it, but are you feeling well enough now to

12 proceed and are able to give accurate answers to

13 questions?

14 A Yep.

15 Q Do you fell like you understand my questions?

16 A Yep.

17 Q I trust you will let me know immediately if you were to

18 have a recurrence?

19 A Okay.

20 Q Thank you. All right. We were talking about Mr.

21 Cramer's declaration here?

22 A I thought we were on Mr. Houglum rather.

23 Q You are right. Man must be in great shape.

24 All right. We had just identified or attempted to

25 identify Exhibit No. 15, Mr. Houglum's declaration with



Page 174

1 Bates No. ML -000131.

2 Does that identify it enough to be able to know that

3 we are talking about this particular piece of paper?

4 A Yes.

5 Q All right. Who is Mr. Houglum?

6 A He was originally a customer of ours and then we hired

7 him as the in-house help, service help.

8 Q Is Mr. Houglum still an employee of Tytan?

9 A No, he's gone. He's disabled.

10 Q Was Mr. Houglum still an employee at the time of his

11 declaration October 17, 2008?

12 A I believe so.

13 Q Is Mr. Houglum currently an officer or director of Tytan

14 International, Inc.?

15 A No.

16 Q Is he currently a top level manager?

17 A He's not employed by us.

18 Q So he's not employed at all by Tytan International, Inc.

19 now?

20 A No.

21 Q And has no business relationship with Tytan


23 A No.

24 Q He's not an attorney?

25 A No.



Page 175

1 Q As of October 17, 2008, was he an officer or director of

2 Tytan International, Inc.?

3 A I'm not -- I don't remember. I might have had him -- he

4 was a bookkeeper type guy as well, and I might have put

5 him on as secretary, but I don't remember.

6 Q Was he somebody who was a controlling person of the

7 company or was that just you?

8 A No, just me.

9 Q Did you interview Mr. Houglum?

10 A Yes.

11 Q Where did that interview occur?

12 A I believe it happened at our office.

13 Q Did Mr. Houglum sit in on your interviews with any of the

14 other -- in any of the other people who signed

15 declarations?

16 A No.

17 Q Did anybody else sit in on any of those telephone

18 conferences where you interviewed or talked with other

19 dealers that led to declarations?

20 A No.

21 Q So it was just you on the one end of the phone and the

22 declarant, the ultimate declarant on the other?


24 Q There were no attorneys on the line?

25 A No.



Page 176

1 Q No secretaries on the line?

2 A No.

3 Q No one present in your office except you?

4 A Yes.

5 Q Yes? Who was present besides you?

6 A Just myself.

7 Q Just yourself, okay.


9 Q Now Mr. Houglum talks here in Paragraph 2 about negative

10 ads being run by TractorCo. Do you know what Mr. Houglum

11 was referring to there?

12 A Oh, yes. The same answer that we discussed earlier.

13 Pictures of the tractor being held up with its hood up

14 and comments like -- that wasn't a good value and that

15 sort of thing.

16 Q What untrue statements did he tell you that were being

17 told by TractorCo?

18 MR. WAGNER: Just preface, if you have

19 an independent recollection of anything outside of this

20 declaration.

21 THE WITNESS: I don't remember

22 exactly.

23 Q (By Mr. Bundy) It just refers to untrue statements here

24 in Paragraph 2, and I'm trying to determine if you have

25 any recollection of what he was referring to as untrue



Page 177

1 statements?

2 A No, I don't remember them all.

3 Q Is the address on here still Mr. Houglum's address, to

4 the best of your knowledge?

5 A Yes, I think so.

6 Q Do you happen to know his telephone number?

7 I'm not asking you to look it up, just if you happen

8 to know it off the top of your head?

9 A No, I don't know it off the top of my head.

10 Q Do you know what customers Mr. Houglum allegedly

11 interviewed about their conversations with Mr. Bogden?

12 A Oh, I'm sure it's retail customers.

13 Q What are retail customers to you?

14 A People that came in to our retail store to buy tractors.

15 Q So not just people that bought tractors at retail, but

16 people who came into the retail store?

17 A No. We only sell them to people that come into the store

18 mostly. I don't know of any other situations.

19 Q Do you have a list of names of customers that allegedly

20 reported conversations with Mr. Bogden to Mr. Houglum?

21 A I don't have it.

22 Q Do you know if Mr. Houglum kept a list of customers who

23 reported disparaging statements of any kind?

24 A Well, I'm sure he probably has some recollections.

25 Q Do you know if he kept a written list?



Page 178

1 A I don't think so. I don't know.

2 Q All right. Let's go to Exhibit 16. It's Bates No.

3 ML-00132 and 133. It's the declaration of George

4 Samojedny, S-A-M-O-J-E-D-N-Y, and is that a correct

5 description, as best we can pronounce his name, of what

6 Exhibit 16 is?

7 A Yes.

8 Q Is George still an employee of Tytan International, Inc.?

9 A No.

10 Q When did his employment end?

11 A It was about over a year ago.

12 Q To the best of your knowledge, is his address still the

13 address given on the declaration?

14 A I would assume so, yeah.

15 Q Do you happen to remember his telephone number?

16 A I don't have it.

17 Q In Paragraph 1 George makes a comment or a statement,

18 "These comments started showing on Craigs List."

19 What comments -- what exactly was on Craigs List?

20 A I can't speak for him. I'm just assuming it's all the

21 ones we have been talking about.

22 Q Did you ever check Craigs List?

23 A Yeah, that's where the pictures and things that we have

24 been discussing have been on was on Craigs List.

25 Q Okay. So I have been under the impression all day that



Page 179

1 we were talking about tractorco.com?

2 A No, there was ads on Craigs List.

3 Q What did those adds say?

4 A You know, there is pictures of them here somewhere if you

5 want to read them. I can't really recall everything it

6 said.

7 Q Did you review those ads?

8 A I did at the time.

9 Q What do you remember of the ads on Craigs List?

10 Is that where you remember the picture of the

11 tractor up in the air?

12 A I don't remember exactly which ones were where, so I

13 would have to review that.

14 Q So you don't know what George was talking about when he

15 was referring to ads on Craigs List?

16 A I don't have exact answers. I would have to look at the

17 Craigs List ads to be able to determine that.

18 Q Backing up to Exhibit 15 just a second, did Mr. Houglum

19 write those words himself?

20 A Yeah, I'm pretty sure he did. I just took notes on what

21 he had said.

22 MR. WAGNER: Are you asking him did he

23 type up this declaration?

24 MR. BUNDY: Did he select the words

25 himself, or did he write it based on his interview of Mr.



Page 180

1 Houglum?

2 THE WITNESS: This was based on the

3 interview. The words, I mean.

4 Q (By Mr. Bundy) The exact words and the order that they

5 appear on here then were selected by you on Exhibit 15?

6 A It's half and half. I mean, some of them are his exact

7 quotes, and some of them are his -- I really can't

8 recollect anything that I would have wrote on there.

9 Q So did he sit down in front of you and say, I, Robert

10 Houglum declare"?

11 A No. No. He wrote the items in one through three.

12 Q So did he say, "I have acreage in Kalama and had

13 purchased," are those his exact words or are those

14 your --

15 A To my recollection, those are as close as I know what he

16 said.

17 Q All right. In terms of typing this up, same answer as on

18 the prior exhibits that we have that -- the declaration

19 exhibits we talked about that you don't recall who typed

20 them.

21 A I don't remember exactly who typed them.

22 Q Did you give those declarations to somebody in

23 handwritten form --

24 A I don't know.

25 Q -- to type up?



Page 181

1 A I don't remember. It might have been Houglum. He also

2 did that sort of office stuff.

3 Q So he might have typed it himself?


5 Q Might he have typed all of these?

6 A Might have. I don't think -- I don't know who did it.

7 Q You don't have any recollection of handing somebody a

8 sheaf of papers and say type these up and --

9 A I don't remember.

10 Q Okay. In the middle of Paragraph 1 here George says, "Of

11 the orders I had at the time 50 percent were canceled."

12 What time is he talking about? His declaration is

13 dated October 22, 2008.

14 MR. WAGNER: We are on Exhibit 16 now?

15 MR. BUNDY: Yes. Exhibit 16. I'm

16 sorry.

17 THE WITNESS: I'm assuming it was

18 orders he had within the previous time from when these

19 first appeared to then.

20 Q (By Mr. Bundy) When is he saying they first appeared?

21 Did he tell you when they first appeared?

22 A No, but he was there when they started on Craigs List and

23 the internet -- I mean, on the internet website and so it

24 had to be between those two times.

25 Q Do you know what his closing ratio was on sales prior to



Page 182

1 that time?

2 A I don't know. He had a lot of orders written up. He

3 wasn't too bad. He had written a lot of orders.

4 Q Of the orders that he wrote before the situation

5 developed with Mr. Bogden, do you know what his closing

6 ratio was?

7 A I don't know what his closing ratio was. These are

8 orders he already had. These weren't closed items.

9 Q No, I understand. Isn't he talking here about orders

10 that were pending and not yet closed that then got

11 canceled?

12 A You have a different understanding of the way it works.

13 He had signed orders that were not pending.

14 Q So binding contracts that people --

15 A To buy.

16 Q That people backed out of?

17 A That's right.

18 Q Did you try to enforce any of those contracts?

19 A I don't -- I don't know what you are talking about --

20 what you are talking about forcing them.

21 I know Mitch sued one of his customers. I don't do

22 that kind of stuff, so I don't know what level of

23 enforcement you are talking about.

24 Q Do you have any record as to why those 50 percent

25 canceled?



Page 183

1 A I know that it's just like what he says here, there was a

2 lot of damaging things. That's all I can tell you.

3 Q How many orders did he have at that time?

4 A Oh, I think he probably had about six or seven orders,

5 big ones.

6 Q What is a big order?

7 A Oh, $100,000.

8 Q How many tractors would that be?

9 A It depends on the size. It could be six or eight or

10 somewhere in there.

11 Q So he had customers who were -- these were dealers?

12 A These were dealer customers.

13 Q All right. Do you have records today of all of the

14 orders that were allegedly canceled?

15 A Those are with the accountant.

16 Q We are going to want all that stuff.

17 All right. As of -- does Mr. -- or George, I am

18 going to shorten that, as of October 22 of 2008, George

19 is testifying here, "I have not seen one customer's 334

20 tractor show up at Tytan for repair on the idler gear

21 mentioned by tractorco.com."

22 Was that a true statement as of October 2008?

23 A Probably. All our salespeople and everybody around there

24 checked tractors in. We only had a couple. We found

25 them right away.



Page 184

1 Q All right. At some point we talked this morning you

2 discovered that four of the tractors in your inventory

3 had the reverse idler gear issue.

4 Was that before or after October of 2008?

5 A Sometime -- you would have to look at what I said there.

6 Something close to Mitch sending -- I think he might have

7 sent pictures on the idler gear, and I think we might

8 have either delved into one or found one of them at the

9 same time because we started checking them.

10 Q Did you interview George?

11 A Yes.

12 Q Is George currently an officer or director of Tytan

13 International?

14 A No.

15 Q Is he or has he ever been -- strike that.

16 Is he currently a controlling person of Tytan

17 International?

18 A No.

19 Q Has he ever been a controlling person of Tytan

20 International?

21 A No.

22 Q When you interviewed George and he told you that he had

23 heard, quote, of many untrue statements about Tytan

24 tractors, close quote, that's Paragraph 3, did George

25 tell you what those untrue statements were?



Page 185

1 A I know he told them to me but I don't know that I recall

2 them specifically. They are all along the lines of what

3 we have been going over.

4 Q Do you recall his words as he told you?

5 A I just remember there was customers from Tri Cities,

6 there was customers from Yakima, there was customers from

7 all over that told us this stuff.

8 Q Did George provide you with a written report of the

9 customers who had allegedly heard, quote, untrue

10 statements, close quote?

11 A Not a written report.

12 Q Did you take any notes other than the kinds of notes that

13 we have already discussed with regard to the other

14 declarants of your conversation with George?

15 A I just took it and put them on here.

16 Q All right. Did you ask him to identify the customers who

17 had -- who had --

18 A He did identify some of them at the time.

19 Q But you can't recall who those were?

20 A I remember two guys were from Tri Cities. I remember one

21 was from Yakima and there was another one that was

22 somewhere other -- it might have been Monroe or something

23 like that.

24 Q There are a lot of guys in those towns, so can you help

25 me with a name?



Page 186

1 A No. I only remember what I told you.

2 Q All right. In his next paragraph George goes on to say

3 that, "He's reviewed the TractorCo customer file.

4 What was in the TractorCo file?

5 A Well, I think he was -- are you asking what he saw in the

6 customer file or what there is generally?

7 Q Well, I want to know what was in the TractorCo customer

8 file that Mr. -- that George, the declarant, testifies

9 that he reviewed?

10 A He's claiming here that there was no warranty claims

11 being placed for the entire year.

12 Q What year was he talking about there?

13 A Well, I'm assuming he was talking a year prior to this.

14 Q So you are assuming he's talking about the period from

15 October 22, 2007 through October 22, 2008?

16 A Something like that.

17 Q In Paragraph 5 George testifies, "The sad fact is that

18 Tytan has not had any shuttle problems."

19 Would you agree with that characterization, that

20 it's a sad fact that Tytan had not had any shuttle

21 problems?

22 A Never had any.

23 Q Is that a sad fact?

24 A That's a real fact.

25 Q He's characterizing it here as a sad fact?



Page 187

1 A I think what he's trying to say is it's sad that we have

2 been accused of that problem because we don't have it.

3 Q Did you write that word or did George write it?

4 A It's not my wording.

5 Q Did George sit down and write this himself.

6 A No, I think -- there's a possibility this was being typed

7 at the same time as they were talking.

8 Q So there was somebody else in the room when you had this

9 conversation?

10 A It could have been me and it could have been somebody

11 else.

12 Q Who else could it have been?

13 A I don't remember exactly.

14 Q Do you remember almost exactly?

15 A No, I don't remember almost exactly.

16 Q Who would be the other possibilities who might have been

17 in the room when this conversation was taking place?

18 A I don't know. I don't want to speculate right now. I

19 don't remember that far back.

20 Q George in Paragraph 5 talks about how he historically at

21 some point in history had booked from $150,00 to $300,000

22 per month.

23 During what period did he have those kinds of sales

24 numbers?

25 A It would be from the start of his employment to current



Page 188

1 here. And I'm assuming he have was there over a year,

2 year and a half.

3 Q So through that entire time he averaged $150,000 to

4 $300,000 a month?

5 A I think sometimes in the previous period he did, yeah. I

6 don't know his exact frame of when it was, but I know it

7 was in that previous period.

8 Q Did he have one month that was that good or were all of

9 his months that --

10 A No, he had several.

11 Q Several?

12 A Several.

13 Q Several out of a year or several out of 18 months?

14 A I don't know. I just -- he had a lot of big months. I

15 just know that.

16 Q Do you have actual numbers on his sales production?

17 A Possibly.

18 Q Do you keep those kind of records on all employees?

19 A I don't know.

20 Q Who would know?

21 A We would have to look it up somehow.

22 Q Where would you look?

23 A It could be in our books. It basically would be related

24 to maybe some of his paychecks and things like that

25 because he worked on commission.



Page 189

1 Q Let's move on to Exhibit 17. It's a two-page document

2 with Bates numbers of ML-000134 and 135. It's the

3 declaration of Tim Nelson of Farm Boys Tractors.

4 Is that an adequate description of that document so

5 if we need to talk about it later we can both agree on

6 what it is?

7 A Yeah.

8 Q All right. Is it true that Mr. Nelson in Tennessee has

9 the largest Chinese tractor parts distributorship in the

10 USA?


12 Q So is he a competitor of yours?

13 A No.

14 Q What kind of Chinese tractors does he sell?

15 A He doesn't sell them. He just does parts.

16 Q Okay. Is he the one that you obtained your Tytan parts

17 from?

18 A No, reverse?

19 Q Pardon me?

20 A No, reverse of that.

21 Q Okay. He obtains his parts from you?

22 A Not directly through, but through my agents and stuff,

23 which is me?

24 Q Mr. Leonard, do you need another break?

25 A No. No.



Page 190

1 Q Is Mr. Nelson a mechanical engineer?

2 A I'm not sure of his title. He was a -- he worked for

3 Eastman Kodak Company, and he had 150 engineers

4 underneath him, but I don't know exactly what his title

5 is.

6 Q Do you know what kind of engineer he might have been?

7 A Well, I know he's an oil expert, and I know that he's a

8 mechanical expert, I just don't know which is exactly

9 what his title was.

10 Q Did Mr. Nelson personally write this declaration?

11 A I think it was dictated. Yes, I think he did do it

12 actually. I think I remember him writing it.

13 Q Did you interview him in advance of his writing this

14 declaration?

15 A No. I'm -- what I'm thinking of what happened, this one

16 I kind of remember, and is that he read me all the notes

17 off the phone and what was said, and I put it into a Word

18 deal, sent it back to him to make whatever changes and,

19 he did neighboring substantial changes.

20 Q Do you have a record of what you sent to him?

21 A No.

22 Q Have you checked your e-mails, your outgoing e-mails?

23 A I don't, no. That's about ten computers ago.

24 Q Do you still have the computer you were using at that

25 time?



Page 191

1 A No.

2 Q Did you personally type the Word document that you sent

3 to him?

4 A I'm thinking I did do it. And I don't know maybe in a

5 rough form and then he put exactly how he wanted it.

6 Q So you talked to him on the telephone, he told you the

7 things he was willing to say or able to say, you then

8 typed out a draft and e-mailed it to him?

9 A Yeah. I might have typed it out when he was talking to

10 me even though I hunt and peck I do it awful fast.

11 Q Is it possible you typed all of these declarations?

12 A It's possible.

13 Q You don't remember?

14 A I don't remember. I don't remember exactly. I remember

15 faxing it. That's all I remember.

16 Q Paragraph 4, Mr. Nelson talks about how he heard from

17 dealers who had been interested in signing up with Tytan

18 asking about the quality of the products.

19 Is that an accurate statement of what he says there?

20 A Well, I know what he said here was what he said. That's

21 all I can tell you.

22 Q Did he identify who those dealers were?

23 A But he has numerous dealers across the country.

24 Q But he never told you the names of who told him that?

25 A No, he didn't.



Page 192

1 Q Did he ever identify any of the customers that he says

2 were interested in buying 334s?

3 A No.

4 Q Did you ask him to identify either the dealers or the

5 customers?

6 A He may have given me a couple names of dealers. He may

7 have. It kind of sounds like one was in Florida and one

8 of them was somewhere else. I don't remember.

9 Q To the best of your knowledge, is Tim Nelson still with

10 Farm Boy Tractors?

11 A Yes.

12 Q Does he own that company?

13 A Yes.

14 Q Is it still located at the address on the declaration

15 here?

16 A Yes.

17 Q Do you happen to have his telephone number memorized?

18 A I don't remember but I have it.

19 Q Let's move to Exhibit 18. It's a two-page document,

20 ML-000136 through 137. It's the declaration of Luis

21 Garcia Beltran, Longview, Washington.

22 Is that an adequate description to make sure we know

23 that's exact;u the document we are talking about?

24 A Yes.

25 Q All right. Exhibit 18, Mr. Beltran, is he still an



Page 193

1 employee of Tytan International?

2 A No.

3 Q To the best of your knowledge, is his address still the

4 same as indicated on the declaration?

5 A No, his father passed away so he went home.

6 Q Where is home?

7 A Home is in Mexico.

8 Q Do you know where in Mexico?

9 A No.

10 Q Do you have a telephone number for him?

11 A No.

12 Q Do you have any means of contacting Mr. Beltran?

13 A No.

14 Q Do you know if Mr. Beltran has any relatives in the U.S.?

15 A Somewhere in Los Angeles, but I don't know where.

16 Q Do you have any means of contacting any of his relatives?

17 A I don't know them.

18 Q How long was Mr. Beltran employed by Tytan International?

19 A About maybe three years.

20 Q At any time was Mr. Beltran an officer or a director of

21 Tytan International, Inc.?

22 A No.

23 Q At any time was Mr. Beltran a controlling person of Tytan


25 A He was shop foreman.



Page 194

1 Q Do you consider that a controlling person?

2 A Controls the workers.

3 MR. BUNDY: Mr. Wagner, can we get an

4 understanding that Mr. Beltran is not a controlling

5 person for purposes of discovery?

6 MR. WAGNER: Oh, sure. Absolutely.

7 Q (By Mr. Bundy) Okay. How is Mr. Beltran's English?

8 A Good.

9 Q Did Mr. Beltran personally write this declaration?

10 A I think he just told me the same facts and we wrote it

11 for him.

12 Q Was he -- strike that.

13 Talk to me about how this meeting occurred. Did you

14 meet in your office with Mr. Beltran?

15 A Yeah, called him in.

16 Q And did you at that point interview him just like you had

17 the other witnesses?

18 A Well, I asked him more questions than the other guys just

19 offered it all. I just asked him certain questions.

20 Q What questions do you remember asking him?

21 A Oh, about the mechanic that TractorCo sent down.

22 Q Well, in Paragraph 4 here Mr. Beltran testifies that,

23 "This mechanic tried to put words in my mouth that were

24 not true.

25 Did Mr. Beltran tell you what words Mr. Charles



Page 195

1 tried to put in his mouth?

2 MR. WAGNER: Again, do you have an

3 independent recollection?

4 THE WITNESS: No, I just put what he

5 told me.

6 Q (By Mr. Bundy) So you have no information other than

7 what is contained in here about --

8 A That's right.

9 Q Okay. How long was your interview with Mr. Beltran?

10 A Oh, about 15 minutes maybe. I don't know.

11 Q Did Mr. Beltran remain in your office while this

12 declaration was being typed up?

13 A Yes.

14 Q Did you type it or did somebody else type it?

15 A I think it was him and I, and I typed. I'm not sure if I

16 had somebody in there or not, but my recollection is it

17 probably was me.

18 Q Do you remember somebody else, a third person being

19 present in the room?

20 A Could have been.

21 Q Who would that have been?

22 A It could have been Bob or it could have been that gal we

23 had working for us. I don't remember who it was at the

24 time.

25 Q Who is Bob?



Page 196

1 A Houglum.

2 Q Do you remember where you were sitting in the office?

3 A Just at my desk.

4 Q Which chair was Beltran in?

5 A He was sitting right next to me, or next to Bob.

6 Q Do you and Bob share an office?

7 A Well, when we talk about things we all sit down at the

8 same table.

9 Q Okay. Was Bob present when you interviewed Mr. Beltran?

10 A Yes.

11 Q Okay.

12 A I'm pretty sure he was.

13 Q Where was Bob sitting in the room?

14 A He would have just been right around the desk too.

15 Q Okay. How many chairs are in your office?

16 A About five, six.

17 Q Okay. Has a that changed since October of 2008?

18 A What, the number of chairs?

19 Q Yeah.

20 A No.

21 Q What did Mr. -- what did Bob Houglum contribute to the

22 conversation with Mr. Beltran?

23 MR. WAGNER: If you have an

24 independent recollection.

25 THE WITNESS: I don't have a



Page 197

1 recollection.

2 Q (By Mr. Bundy) Do you have any memory of him speaking at

3 all during that interview, of Bob speaking during the

4 interview with Mr. Beltran?

5 A He might have asked him some questions, but I have no

6 recollection of what he asked him.

7 Q Do you remember the subject matters of anything he asked?

8 A Wouldn't have been anything more than what is on here.

9 Q Let's go to Exhibit 19, the declaration of Jim Storey,

10 Chimacum, Washington, a two-page document, Bates numbers

11 ML-000138 through 139, date October 28, 2008.

12 Is that an adequate enough description of the

13 document that we can identify it later?

14 A Right.

15 Q Who is Jim Storey?

16 A He was a dealer we had up in Chimacum.

17 Q Chimacum is located on the Olympic Peninsula?

18 A Yeah, it's up by Port Townsend.

19 Q In Paragraph 2, Mr. Storey says that "Mr. Bogden called

20 him twice on the telephone and proceeded to ask many

21 questions about Mark Leonard and Tytan International,

22 Inc."

23 Did Mr. Storey tell you what questions Mr. Bogden

24 asked?

25 A He went through the whole thing on the phone.



Page 198

1 Q All right. What questions did Mr. Bogden ask of Mr.

2 Storey?

3 A He was asking him more about what his background was with

4 me.

5 Q Okay. So did he ask anything besides for information

6 about his background with you?

7 A Wanted to know things if Tytan was this way or that way,

8 but I don't have the exact recollection.

9 Q Which way or which way?

10 A I said I don't have an exact recollection.

11 Q Okay. Do you have an inexact recollection?

12 A Just questions about Tytan International.

13 Q What about Tytan International was Mr. Bogden asking Mr.

14 Storey?

15 A I wasn't there. I don't know exactly everything. He

16 gave me stuff on the phone, and he was coming down the

17 next day, so I said we will just wait until you get here.

18 Q When did you prepare this declaration, was it before or

19 after he arrived the next day?

20 A He was coming down the same time period as these were

21 done.

22 Q Did you do it -- did you finish the declaration before he

23 arrived at your office?

24 A No.

25 Q After he arrived?



Page 199

1 A No, it was done when he came.

2 Q How long did you spend on the telephone with Mr. Storey?

3 A Not very long, about five minutes, ten minutes, he was

4 disturbed that he had been hearing this stuff.

5 Q When he arrived the next day, how much time did you spend

6 with Mr. Storey?

7 A A couple hours.

8 Q How much of that couple of hours was dedicated to issues

9 addressed in this two-page declaration?

10 A About 15 minutes.

11 Q In general terms, what other topics did the two of you

12 talk about during that two-hour period?

13 A Oh, he comes down and buys some things from me and we

14 talked about him getting him all the stuff he wanted.

15 Q What kind of stuff did he want?

16 A Implements.

17 Q Snowblowers? Blades?

18 A Bush hogs.

19 Q Bush hods. Anything else?

20 A Mostly those type of things, bush hogs, cutters.

21 Q Okay. Do you recall if he bought some that day?

22 A Yeah, he always buys them.

23 Q Is Mr. Storey still a Tytan dealer?

24 A No, he's retired.

25 Q He's retired. Did he retire because of anything Mr.



Page 200

1 Bogden said?

2 A No. He's just tired.

3 Q Approximately when did he retire?

4 A 50 years as a dealer.

5 Q I understand. Approximately, when did he retire?

6 A I think he retired about sixth months ago, but now he's

7 going to start buying stuff again, selling stuff again.

8 Q Okay. Did you -- strike that.

9 Did somebody else take over his business that he

10 called The Tractor Shed?

11 A He had a couple of different names and that was one of

12 them. The other one was Flying something or other. I

13 don't remember exactly what it was, but yeah, he sold his

14 company.

15 Q Is the successor company a Tytan dealer?

16 A No.

17 Q Why?

18 A This was a company he sold a long time ago, and then he

19 started over on his own and had been buying from me ever

20 since. So I didn't really deal with him around when he

21 sold his company.

22 Q Okay. Now I'm really confused, so we have to take a

23 minute to try to sort it out.

24 Mr. Storey was a Tytan dealer for approximately how

25 long?



Page 201

1 A About three or four years.

2 Q And that all happened after he had already sold his

3 business?

4 A Yeah.

5 Q Okay. So we are not concerned about what happened about

6 him selling his business. When he retired a year ago,

7 did he sell the business that was a Tytan dealership?

8 A No. No. No. That was a new business, and I don't know

9 which name is which.

10 Q Okay. Is he still operating a business at that same

11 location?

12 A Yeah.

13 Q All right. What kind of a business is that?

14 A He's just buying implements right now.

15 Q Just buying the implements?

16 A Uh-huh.

17 Q What is an implement?

18 A The things that go on the back of the tractor.

19 Q Okay. So he retired, but he's still continuing in the

20 same business, he's just not selling tractors?

21 A Right.

22 Q But he's still selling Tytan products?

23 A Some, mostly just cutters, mowers.

24 Q Do you still regard him as a Tytan dealer?

25 A Essentially, yeah.



Page 202

1 Q Did you ever have a written dealer agreement with Mr.

2 Storey?

3 A No.

4 Q Did you ever formally cancel or terminate or non-renew

5 his dealership?

6 A No.

7 Q In Paragraph 3 Mr. Storey talks about how Mr. Bogden

8 allegedly told him that Tytan had poor parts supply and

9 poor service.

10 Do you have any other recollection of what Mr.

11 Storey told you about what Mr. Bogden allegedly told him?

12 A No.

13 Q By the way, is the P.O. box indicated up here still the

14 correct address for Mr. Storey?

15 A I don't know. I think so.

16 Q Do you happen to have his physical address?

17 A No.

18 Q Could you drive to his place of business?

19 A No.

20 Q Have you ever been to his place of business?

21 A No.

22 Q Do you have his telephone number?

23 A Yes, somewhere. I have to find it.

24 Q Is Mr. Storey a mechanical engineer?

25 A I don't know. A possibility.



Page 203

1 Q Do you know what his background was before he became a

2 Tytan dealer?

3 A It's 50 years of tractor repair.

4 Q So he was a mechanic?

5 A Yes.

6 Q Mr. Storey states here that "He," referring to Mr.

7 Bogden, "also made references aimed at discrediting Mr.

8 Leonard and Tytan International."

9 What did he tell you that Mr. Bogden had said?

10 A Well, he went into the things that -- about us being

11 using dealers as a guinea pig. And let's see, what else?

12 I think he said something about parts too, if I

13 remember right. I don't remember anything else other

14 than that.

15 Q Did Mr. Storey tell you that Mr. Bogden used the word

16 "guinea pig"?

17 A It was a word like that. It was not exactly that word,

18 but it was being -- it was something very close to that.

19 Q So you can't recall exactly what Mr. Storey told you?

20 A I don't remember exactly the wording.

21 Q Can you recall exactly what Mr. Storey told you about the

22 parts supply?

23 A Yeah. He said that -- that we didn't have parts and

24 things like that.

25 Q Things like that. What else did he -- did Mr. Storey



Page 204

1 report that Mr. Bogden had said?

2 Things like that doesn't help me understand very

3 well.

4 A Right here, "Bogden told me Tytan had poor parts supply

5 and poor service."

6 Q Did Mr. Storey elaborate on what Mr. Bogden allegedly

7 toll him, or how he said it?

8 A No, mostly just there.

9 Q So this is the extent of your recollection, what we have

10 talked about plus what is on the paper here is all you

11 can recall about your conversation with Jim Storey?

12 A Right.

13 Q Did you -- did Mr. Storey talk to you about whether he

14 believed what he said Mr. Bogden had told him?

15 A He didn't. I didn't get any comment about that.

16 Q Did Mr. Storey tell you that he was retiring or ending

17 his relationship with you because of anything that Mr.

18 Bogden had told him?

19 A No. No. I found out he was going to quit about like

20 over the winter sometime. He had some health issues and

21 something and now he feels better so he's going back

22 after it.

23 MR. BUNDY: Okay. I think I may be

24 done, but I need about three or four minutes just to

25 collect my thoughts and get organized, so if I can have a



Page 205

1 few minute.

2 MR. WAGNER: Absolutely.


4 5:20 p.m.)

5

6 Q (By Mr. Bundy) Mr. Leonard, who is Tanya Topka?

7 A She's a gal that Mitch has been corresponding with at the

8 Consumer Protection Agency.

9 Q Have you had any correspondence with Ms. Topka?

10 A Yes.

11 Q What does that correspondence consist of? Is it e-mails?

12 Is it letters? Is it letters from your attorney?

13 A No, just they want me to supply certain things. They

14 wanted a drawing of those parts. They wanted samples of

15 those parts.

16 Q What do you mean by "those parts"?

17 A The steering mechanisms.

18 Q The steering brackets?

19 A Uh-huh.

20 Q And have you provided what they requested?

21 A Yep.

22 Q Have you heard whether the CPSC has made any decisions?

23 A No.

24 Q Have you spoken with Ms. Topka on the telephone?

25 A Once.



Page 206

1 Q When did you speak with her?

2 A Oh, a couple months ago.

3 Q What was the subject matter of that call?

4 A Just asking what they wanted.

5 Q Did she call you or did you call her?

6 A She might have returned the call.

7 Q Did she contact you in the first instance with a letter?

8 A Yeah.

9 Q Did you retain copies of everything you sent to the CPSC?

10 A Uh-huh.

11 Q Was that a yes or no?

12 A Yes.

13 Q Thank you. Has anyone at the CPSC told you when to

14 expect a decision?

15 A No.

16 Q Did you have anyone's assistance in helping put together

17 your response to the CPSC?

18 A No, I sent them a copy of the test results.

19 Q Did anybody else in your company assist you in putting

20 that package together?

21 A No.

22 Q So you typed up your response yourself?

23 A Yes.

24 Q And you packaged the sample parts up yourself?

25 A No.



Page 207

1 Q All right. So who assisted you with that?

2 A I don't remember. I told somebody to get certain items

3 together and ship them. I just made the label.

4 Q Did you consult with any attorney before you submitted

5 the response to the CPSC?

6 A No.

7 MR. BUNDY: I think we are through

8 unless something comes up that's unforeseen.

9 MR. WAGNER: Okay.

10 MR. BUNDY: Thank you very much.

11 MR. WAGNER: Thank you.

12

13 (Signature reserved.)

14 (Deposition concluded

15 at 5:25 p.m.)

16

17

18

19

20

21

22

23

24

25



1 STATE OF WASHINGTON ) I, CHRISTY SHEPPARD, ) ss CCR #1932, a duly

2 County of Pierce ) Certified Court Reporter in and for the

3 State of Washington residing at Buckley,

4 do hereby certify:

5

6 That the foregoing deposition of MARK A.

7 LEONARD was taken before me and completed on August 19, 2010, and thereafter was transcribed under my direction;

8 that the deposition is a full, true and complete transcript of the testimony of said witness, including

9 all questions, answers, objections, motions and exceptions;

10 That the witness, before examination, was by me

11 duly sworn to testify the truth, the whole truth, and nothing but the truth, and that the witness reserved the

12 right of signature;

13 That I am not a relative, employee, attorney or counsel of any party to this action or relative or

14 employee of any such attorney or counsel and that I am not financially interested in the said action or the

15 outcome thereof;

16 That I am herewith securely sealing the said deposition and promptly delivering the same to Attorney

17 Howard E. Bundy.

18 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal this 14th day of

19 September, 2010.

20

21

22 Christy Sheppard, CCR, RPR Certified Court Reporter in and for the

23 State of Washington, residing at Buckley.

24

25

Documents

Mark Leonard Deposition