Smith v. The Abandoned Vessel

Filing 63

TRANSCRIPT re: Hearing held on 10-22-2008 before Judge David Hittner. Court Reporter/Transcriber Dye. Release of Transcript Restriction set for 2/17/2009., filed. (gdye, )

Smithv.TheAbandonedVessel

Doc.63

1 2 3 4 NATHAN SMITH, 5 6 7 8 9 10 11 12 APPEARANCES:

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION . . Plaintiff, . . VS. . . THE ABANDONED VESSEL, et. al., . . . Defendants. . ...................

Civil Action No. H-07-CV-784 Houston, Texas October 22, 2008 9:52 a.m.

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID HITTNER HEARING

13 FOR THE PLAINTIFF: 14 15 16 17 18 19 20 21 22 23 24 25
Mr. Adraon D. Greene SCHWARTZ, JUNELL, GREENBERG & OATHOUT, LLP 909 Fannin Suite 2700 Houston, Texas 77010 713.752.0017 FAX: [phone] [e-mail] FOR THE INTERVENOR: Mr. Ronald B. Walker Mr. Terry M. Carroll, Jr. WALKER, KEELING & CARROLL, LLP 210 East Constitution PO Box 108 Victoria, Texas 77902-0108 361.570.9100 FAX: [phone] [e-mail] PROCEEDINGS RECORDED BY STENOGRAPHIC MEANS, TRANSCRIPT PRODUCED FROM COMPUTER-AIDED TRANSCRIPTION

Gayle Dye, CSR, RDR, CRR - 713.250.5582
Dockets.Justia.com

1 COURT REPORTER: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
GAYLE L. DYE, CSR, RDR, CRR 515 Rusk, Room 8016 Houston, Texas 77002 713.250.5582

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1 2 3 5 6

PROCEEDINGS October 22, 2008 THE COURT: Court calls the case Civil Matter 07-784, Who represents the Plaintiff? MR. GREENE: Adraon Greene on behalf of the Plaintiff

4 Smith versus The Abandoned Vessel.
09:52:38

7 with Schwartz, Junell, Greenberg & Oathout. Mr. Schwartz is the 8 attorney of record, Judge, but he is away on another case this 9 morning. He's actually in trial.
09:52:50

10 11 12 13 14 15 17 18 missing? 19

THE COURT: So your name is Greene? MR. GREENE: Yes, Your Honor. THE COURT: All right. And for the defense? MR. WALKER: Ron Walker and Terry Carroll. MR. CARROLL: And we're actually for the intervenor, THE COURT: Well, you're the intervenor. Who's MR. CARROLL: The ship. THE COURT: Mr. Greene, who's missing? MR. GREENE: The ship is missing, Your Honor; but THE COURT: Is it an in rem action? MR. GREENE: Yes, Your Honor, it's an in rem action. THE COURT: Okay. So, in effect, these are the

09:52:58

16 Your Honor, but it's the other side.

09:53:06

20 21 23 24 25

22 there is no one representing --

09:53:14

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1 contests, right? 2 3
MR. GREENE: Correct, Your Honor. THE COURT: All right. This is a final pretrial

4 conference. I have a handle on what it is. The question is
09:53:22

5 it's a ship -- do you know if the ship's there or it's allegedly 6 there, down below? 7
MR. GREENE: We haven't done any magnetometer type

8 readings, Your Honor; but from everything that Mr. Smith has 9 discovered, we have a general idea of the vicinity that the ship
09:53:36

10 is in; and it's in Melon Lake or the reaches of the waters of 11 Melon Lake. 12 13 14 15 16 17
THE COURT: Okay. What do you -Hold it. I'll get to you in a second. What's your position? Are you entitled to this? MR. GREENE: Yes, Your Honor, we are entitled to it. THE COURT: Why? MR. GREENE: One, as the first finder, Your Honor, and

09:53:46

18 as the only person who has asserted title and possession to the 19 ship, Judge. The ship is in navigable waters.
09:53:58

20 22

THE COURT: That's a question, isn't it, as to where MR. GREENE: Yes, Your Honor. And it's our contention

21 exactly it's located? 23 that the ship is in navigable waters. Melon Lake forms 24 navigable waters because it connects with Melon Creek, the
09:54:10

25 Mission River, and Copano Bay which is a -- which empties into

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1 the Gulf of Mexico, the intercoastal highway (sic), Your Honor. 2 3
THE COURT: What's your response? MR. WALKER: Judge, the area where he says the ship is

4 located -- and there's no evidence to our -- that there is a
09:54:28

5 ship out there; I think there's a piece of wood he might have 6 found -- is on dry land. It's not in Melon Lake. And even if 7 it were in Melon Lake, it's -8
THE COURT: What do you have -- to get to it, you have

9 to go down with a -- with a submersible, you got to dig into a
09:54:48

10 muddy bottom, like, with a dredge or do you have to go up on 11 land with a front-end loader? 12
MR. WALKER: Judge, the easiest way to do it -- I was

13 there yesterday -- is to -- is to -- there is an old road that 14 goes out there. So you would get off the highway, drive down
09:55:08

15 the road, and drive to a dry piece of land, and start digging. 16 It is not in navigable waters. 17 18 19 20 22 23 25
THE COURT: How do you know it's down there? MR. WALKER: Well, he gave the coordinates. THE COURT: Yeah. MR. WALKER: So we went to the coordinates and it's -THE COURT: All right, what's your response? By the way, I'll try this case but I just want to MR. WALKER: Yes.

09:55:18

21 it's my opinion it's dry land.

24 get a feel for it.
09:55:30

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1 2

THE COURT: Go on. MR. GREENE: The response, Your Honor, is what

3 Mr. Smith has given is a general location. Again, he does not 4 know for sure that the ship is at this particular area. And in
09:55:40

5 his complaint he says that the ship is in, I think, a 600-yard 6 radius of a certain area. 7
So without having a magnetometer to go in and

8 actually know the exact location of the ship, we know it's in 9 Melon Lake or the reaches of the waters of Melon Lake; and that
09:55:54

10 is our contention. 11
THE COURT: The reaches of the waters, what does that

12 mean? Is that where it used to be -- the water used to be and 13 then it receded? Or is that -- when you say within the reaches, 14 is that still underwater?
09:56:06

15

MR. GREENE: It's our contention, Your Honor, that it

16 is underwater, that the water may undulate with the tides; but 17 again, because we haven't been there with the proper equipment 18 to know the exact location of the ship, we can't say that it's 19 at this particular coordinate at this particular -09:56:20

20 21

THE COURT: How do you know it's there? MR. GREENE: Based on the research that he has done,

22 Your Honor, the satellite imaging that he's done, everything to 23 him -- to Mr. Smith indicates that the ship is here. It's in 24 this location based on the satellite images, the old maps that
09:56:36

25 he's looked at, the research that he's done. That's our best

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1 estimate as to where the ship is. 2
THE COURT: All right. You don't know where the exact

3 coordinates are that -- if you start digging tomorrow, where are 4 you going to go, on dry land or in the water?
09:56:48

5 6

MR. GREENE: In the water. THE COURT: All right. Now, what about that -- you

7 say it's -- he said he's going to -- he wants to get into the 8 water. And your position is if he goes in the water, is he 9 still out of bounds?
09:57:04

10

MR. WALKER: Our position is that Melon Lake is not

11 navigable waters. Now, the Mission River is within 600 yards, I 12 would think, and that is -- the Mission River is navigable 13 waters. So I don't -- it is possible that it's navigable water; 14 but where he wants -- where the coordinates are is on dry land.
09:57:30

15 600 yards would go out into Melon Lake which there is water, but 16 we say it's not navigable. 17
THE COURT: All right. What's your -- what's the law

18 on this as to what's a navigable, you know, waterway relative to 19 a lake as an offshoot of a stream, an offshoot of a river?
09:57:52

20

MR. GREENE: The law, Your Honor, is in Richardson

21 versus Foremost out of the Fifth Circuit which says if the 22 waters are capable of forming -- are capable of forming and 23 connecting with other waterways, a waterway that's capable of 24 supporting interstate travel, that's the definition of
09:58:08

25 navigable --

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1

THE COURT: In your estimation can you get from that

2 lake in some sort of a commercial boat or whatever and go all 3 the way out into the river? 4
09:58:20

MR. GREENE: Based on what Mr. Smith has told us, Your THE COURT: All right. But you don't know, you MR. GREENE: I have not, Judge. And Mr. Smith has

5 Honor, based on what the expert is telling us, we think we can. 6 8 7 haven't been out there? 9 been there and he says that he has navigated from the Mission

09:58:32

10 River through Melon Creek into Melon Lake to where the ship is 11 located. 12 13 lawyers? 14
MR. GREENE: No, Your Honor, we have not. THE COURT: Do they have an interest in getting out MR. GREENE: We would definitely have an interest in THE COURT: Have the lawyers been out there, your

09:58:40

15 17 19 point.

16 there to take a look? 18 doing it, Your Honor. Time has not allowed us to do it at this 20 21 22
THE COURT: Why not? MR. GREENE: Well, just scheduling. THE COURT: Have you asked the Court just to give you

09:58:48

23 -- what, it will take you half a day. Go out and take a look 24 around. You know, get in a boat and see if you can get into
09:58:56

25 that -- you know, get from the -- from the -- what is it, from

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1 the lake to the stream to the -- to the river. 2
I'm not -- don't get me wrong. I'm going to try

3 this case. It's an interesting case. But I'm saying if you 4 need access there, if they won't give it to you to look around,
09:59:12

5 then you ask me. But if you haven't asked them, the first 6 question I have is you can talk to your client until you're blue 7 in the face but how are you going to make a decision as an 8 attorney going to trial if your firm hasn't been out there and 9 taken a look around maybe with an expert of yours? 10
MR. GREENE: Well, Judge, we rely on what our client

09:59:30

11 is telling us. We believe that he's telling us that he has been 12 in a boat and gone from the Mission River up through Melon Creek 13 into Melon Lake. We have no doubts about what he says he's 14 done. Everything that he has told us so far, for the most part,
09:59:44

15 Your Honor, has been true. All of the research that he's done, 16 from what we can tell it's true and accurate. We believe him 17 when he says he has done this. 18 19 20 22 24
THE COURT: How far is that from here, Refugio County? MR. GREENE: They have a better -MR. WALKER: Judge, it's about two and half hours, two THE COURT: All right. What I'm going to say, we're Ellen, we're going to set this for trial, all

10:00:00

21 hours and forty-five minutes. It's between Victoria and Corpus. 23 going to set this case -25 right?

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1 2

THE CASE MANAGER: Yes, sir. THE COURT: We're going to set this for trial. But

3 before we get to trial, I want the lawyers to get out there and 4 take a look around.
10:00:12

5 6

MR. WALKER: Okay. THE COURT: You work with them and just get the

7 lawyers and any witness they have out there. It may resolve 8 itself. It may or may not. It may not because, you know, we 9 all take clients as we find them. But before you go to trial, I
10:00:24

10 want the lawyers to be able to at least say they've been out 11 there and looked around. And apparently, defense has no 12 objection to giving you access. 13 14 15 16 17
Is that correct? MR. WALKER: That's correct, Your Honor. THE COURT: All right. So do it. MR. GREENE: Yes, Your Honor. THE COURT: Okay. And pass it back on to your firm

10:00:34

18 that I expect them to get out there and do it. If they want to 19 take their hydrologist or their water guy with them, take it
10:00:42

20 with them and just walk around. That's number one because, at 21 least, I want the lawyers to be able to speak from personal 22 knowledge as well as the client. 23 25
How much -- how much -- what are you suing for, MR. GREENE: Yes, Your Honor. We're suing -- I'm

24 declaratory judgment?
10:00:58

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1 sorry. 2 3 5
THE COURT: Yeah. As to what? MR. GREENE: As to, one, title, ownership, and THE COURT: We don't know it's there. There's no --

4 possession of the ship under the law of -10:01:06

6 there's no -- what do they call it in law school, erase. 7 There's no -- there's no -- nothing you can put your hands on 8 yet. So how can you talk about a boat that you don't even know 9 is there?
10:01:20

10

MR. GREENE: Well, I guess to begin with then, Judge,

11 we would begin with the salvage rights because, in order to 12 begin salvage operations to determine if something is there, we 13 need a determination that the waterway is navigable, which would 14 entitle us to salvage the ship if it is there.
10:01:34

15

THE COURT: All right. By the way, you go out there,

16 you get me some video, also. Take a video camera because I'm 17 not getting out there. There's no need to. But let's get some 18 video that both of you can go in on or if you want to hire a 19 commercial videographer to show -- you know, when you're done,
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20 show it to the other side. 21
I want to see this area. It's a non-jury case.

22 So you need to show it to the jury and get me out there somehow 23 so I know where it is and where the linkup between the lake and, 24 I guess, the stream or the lake and the river that originates
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25 from a stream, where does the -- what's the outlet of the river?

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1 Where does it go? 2 3 4
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MR. GREENE: The Mission River, Judge? THE COURT: That's correct. MR. GREENE: The Mission River goes down to Mission MR. WALKER: Aransas -MR. GREENE: -- Aransas -MR. WALKER: -- Aransas Bay. MR. GREENE: -- and into the Gulf of Mexico. THE COURT: Okay. Down the Aransas area. All right. So anyhow, that's number one. And

5 Bay which empties into Copano Bay which goes down to the Gulf -6 7 8 9 10 11 13 correct? 14
MR. GREENE: Correct, Your Honor. THE COURT: What else are you suing for? MR. GREENE: Again, Judge, once we have a

10:02:24

12 so, basically, you're suing for a declaration of rights; is that

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15 16

17 determination that the ship is there, the salvage rights; but 18 ultimately, Mr. Smith wants to be given title, possession, and 19 ownership of the ship and everything that's on it.
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20 22 23 25

THE COURT: All right. Can it be done? Can it be MR. GREENE: The -- I'm sorry, Your Honor? THE COURT: The -- what is it, the -- what you want MR. GREENE: Yes, it is, Your Honor. As an in rem

21 done here in federal court?

24 the Court to declare, is that within the Court's power?
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1 proceeding, it's very much within the Court's power. 2 3
THE COURT: All right. Now, defense, please. I mean, your position now

4 is when they get out there, you're going to look at the
10:03:08

5 coordinates and it's on dry land. 6 7 9
MR. WALKER: Yes, sir. Yes, sir. THE COURT: Mr. Greene, what happens if it is on dry MR. GREENE: Well, Judge, if it is -THE COURT: Then, you better stick around and see

8 land, then what? 10

10:03:16

11 where, for want of a better word, the tide comes in and out 12 because if you say that it comes in and out over that area, I 13 need to see it covered with water. 14
10:03:28

MR. GREENE: Well, that's what I was about to say,

15 Your Honor. If it is on dry land, then the contention would be 16 it may be on dry land on that particular day or if the land is 17 dry on that particular day, that does not mean that the land is 18 always dry. 19
THE COURT: Well, you're going to have to show me that MR. GREENE: Yes, sir. THE COURT: -- from the county records or go to the

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20 or get a historical picture from the county -21 22

23 county newspaper to see if there was ever a flood in that area 24 or -- I don't know if flood will do it. I mean, that's -10:03:50

25 rising water due to a flood probably is not -- you know, under

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1 admiralty and/or, you know, water rights is probably not 2 underwater because it recedes, unless you got a special law like 3 they just did down on the seashore that if it washes away and -4 that it then inures to the state.
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5

You're going to have to show me a little bit

6 about that, as to if you think water is on there, I need 7 something to see when water is on there aside from a hurricane, 8 I guess. 9
10:04:18

MR. GREENE: Judge, we think it's covered with water THE COURT: Okay. MR. GREENE: According to Mr. Smith, it's always THE COURT: You get that video. You get your still MR. GREENE: Yes, Your Honor. THE COURT: Because if I'm wrong and they're right,

10 right now. 11 12 14

13 covered with water. 15 camera. Get them both, okay? 16 17

10:04:24

18 kick it up to the Court of Appeals and they'll have something to 19 look at, also.
10:04:32

20 22 got? 23

All right. Yes, sir. Now, for the defense.

21 I've been taking up a lot of time with Mr. Greene. What do you
MR. WALKER: Your Honor, what -- how this all started

24 was Mr. Smith went to a Google Earth, saw a shape that he
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25 thought looked like a ship. When you actually do the

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1 measurements of it, it would be more the size of an aircraft 2 carrier. I mean, it's an enormous piece. 3
What that is is a darkened area of reeds. And on

4 the edge of the reeds, it -- it is a low indentation there with
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5 a small amount of water; but it's surrounded by high ground. 6 There's salt grass and salt grass does not grow where there's 7 standing water. 8
We were out there and it lays between the Mission

9 River and Melon Lake. Melon Lake is not accessible by -10:05:30

10 Mr. Smith, his testimony was he went there by canoe. And we 11 have been out there -- our expert was -- has been out there 12 twice, and they tried to get in by a 17-foot motor boat and were 13 unable to do so, get into Melon Lake. 14
THE COURT: Did he try a canoe? MR. WALKER: He did not try a canoe. THE COURT: Sometimes it gets -- the motor can get MR. CARROLL: No, Your Honor. In this case the actual

10:05:52

15 16 18

17 tied up in some of that underbrush. 19 front edge of the boat ran flat aground. I was on the boat. It
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20 was not the motor. We had the motor out of the water at the 21 time pulling it. 22
MR. WALKER: But you know, with a kayak or whatever;

23 but it might be possible to get through this narrow little edge 24 but no any sort of commercial traffic at all. The good news now
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25 -- or maybe -- is that still in -- even though Ike did not hit

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1 us in South Texas, the tides are still off; and this is -- it is 2 as high as the owner has ever seen it right now. 3 4
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THE COURT: And? MR. WALKER: And you -- from Melon Lake you go through

5 a marshy -- a little marshy area which is called an inundation 6 area by the -- I think the US Department of Agriculture. Then, 7 you step up on dry land, walk to this area. In front of the 8 mound where the -- or the elevated area where "X" marks the 9 spot, there is a little marshy area; but you cannot get there by 10 any type of boat, air boat, anything of that sort. 11 13 14 15 16 17 18
MR. CARROLL: And Mr. Smith did not get there by even MR. WALKER: Right. MR. CARROLL: -- because his canoe ran aground -MR. WALKER: He had to walk. MR. CARROLL: -- and had to walk. THE COURT: Portaged -- portaged the canoe? MR. CARROLL: Oh, he left the canoe and walked in,

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12 his canoe. He had to stop --

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19 Your Honor. He said so. And the 600-foot circle -- the
10:07:16

20 600-foot circle he's talking about is in his complaint; however, 21 in his deposition, he actually marked the spot on the map. 22
THE COURT: By the way, it's not just the Plaintiff

23 who needs photographs and video. If you've got them, we'll look 24 at them both.
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MR. CARROLL: We've got them, Your Honor.

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1 3

MR. WALKER: We have still photos, but we'll be happy THE COURT: All right. Let's see. That gives me an

2 to work with them and get a video. 4 overview of what we're doing here. Are you suing for any
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5 monetary damages? 6 8
MR. GREENE: We're not suing for any monetary damages, THE COURT: Okay. Now, on February 22nd of this year,

7 Your Honor. 9 the Plaintiff filed an amended complaint adding a count against
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10 attorneys Killeen and Stern. You seek that Killeen and Stern is 11 not entitled to payment and fees. Have you served them? 12
MR. GREENE: They have been served, Your Honor. They

13 have not filed an answer so the next step for us would be to 14 seek a default judgment against Killeen and Stern to clean up
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15 the petition -- to clean up the pleadings. 16
THE COURT: Well, you better do that right away. But

17 you don't have to get a default judgment. At least get an entry 18 of default. 19
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MR. GREENE: Yes, Your Honor. THE COURT: An entry of default, as you know, is the

20

21 ministerial act of saying there's no answer on here and their 22 default is, but it doesn't go to a -- what is it, to a final 23 judgment if it's in need of any kind of testimony; and we can 24 consider the testimony at time of trial; but if you want to cut
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25 them off, you better do it.

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1 2

And Ellen, do we have a form, in other words? What we need to do, any time you're going with

3 default or default judgment, it's a rule of the Southern 4 District, not of anywhere else, you got to give the other side
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5 notice by regular mail -- it says by certified mail, return 6 receipt requested; but we always require regular mail, also. 7
As an old collection lawyer, I know if people

8 don't take certified mail, my next question is "Did you send it 9 at the same time?"
10:09:12

10 11 12 13 hearing." 14

"Yes." "How long ago?" "Two, three weeks ago, gave them notice of this The -- what is it, "You got your green card?" "Well, it came back, you know, would not accept And I said, "How about the regular mail?" He said, "No, hasn't come back." So I always consider that. Good enough notice.

10:09:22

15 17 18 19

16 or nobody was home or, you know, can't find it."

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20 So always do it that way. That's up to you if you want to do 21 that. You're local here, correct? 22 23 24 25
MR. GREENE: Yes, Your Honor. THE COURT: Both of you-all local? MR. WALKER: We're from Victoria, Your Honor. THE COURT: Okay. So we don't need to run the other

10:09:44

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1 side back and forth. If there's anything short and ministerial 2 you need to talk about, we can always put you on a speaker 3 phone. I have hearings every morning like this at 15-minute 4 increments or whatever you need.
10:10:00

5

So you can always get in. If it's something that

6 can be handled quickly over the phone, let me know and we'll put 7 you on speaker so you don't have to run up and back. 8 10
What else you want to talk about before we get MR. GREENE: Well, Judge, I guess from our perspective

9 down to trial date and everything else?
10:10:12

11 the only other thing that we would request that the Court keep 12 in mind when issuing the trial date is the fact that our client, 13 Mr. Smith, is in Los Angeles, California. So in terms of 14 scheduling, the expert, I think, is in Dallas.
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15

THE COURT: All right. What are dates that are

16 available for you? I'm sure you came with them because this is 17 a final pretrial conference. 18 19
10:10:36

MR. GREENE: Yes, Your Honor. THE COURT: What -- how long -- first of all, let me

20 ask the Plaintiff how long do you think this case will take for 21 both sides, the whole trial, how long? 22 23 Honor. 24
THE COURT: You agree? MR. WALKER: Yes, sir. MR. GREENE: Two days, three days at the maximum, Your

10:10:44

25

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1

THE COURT: Okay. And don't forget from both sides,

2 we need proposed findings of fact and conclusions of law. But I 3 will tell you this: At the end of the trial, I always give you 4 an opportunity to redo those based upon the evidence that came
10:10:58

5 out. And then, I'll ask it on a disk, and then we'll get -- you 6 know, we'll get the opinion out as quick as we can. 7
Are there any -- again, I've not looked at the

8 file recently. Are there any Fifth Circuit cases on this -9 basically, on this area, treasures and, you know, the water
10:11:18

10 rights and all of that? Anything come close? 11
MR. GREENE: Judge, to us the 5th Circuit case that's

12 controlling in the area of navigability which, essentially, is 13 what the case boils down to from the intervenor's perspective, 14 would be Richardson versus Foremost and Sanders versus Placid.
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15 16 17 18 19 20

THE COURT: Are they in the file? MR. GREENE: They should be in the file, Your Honor. THE COURT: Okay. Do we have those on record? THE LAW CLERK: Yes, sir. THE COURT: We got them? Okay. All right. Okay. Let me just tell you how I try a non-jury

10:11:40

21 case. It moves fairly quickly really. A lot of these things -22 I'm going to go down my jury checklist but a lot of these are 23 not applicable. 24
10:12:08

All right. The only thing I need to tell you is

25 that my Court I don't require you to ask permission to approach

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1 a witness. You got free range of the courtroom. You can try 2 your case like you do in state court, if you want. You can sit 3 down and do it that way; you can stand at your place. There's a 4 podium behind the pole. You can bring that forward, whatever
10:12:24

5 you're most comfortable with. 6
If you need audio/visual -- and you probably will

7 -- just talk to Ellen and it goes up down in this area here, and 8 we can rig it up however you need it. That's all I need. I got 9 a whole list for jury trials but non-jury is a lot shorter than
10:12:42

10 that. 11 13
All right. What else you want to talk about? MR. GREENE: Well, Judge, I think the Court is aware

12 That's what you're here for. 14 of the case. The only thing I would offer to clear up for the
10:12:52

15 Court is Mr. Walker pointed out that Mr. Smith discovered this 16 case by using Google Earth; and in fact, the case is actually 17 extremely fascinating. 18
Mr. Smith found out about the case by reading --

19 literally reading a treasure book. He read the book, did some
10:13:08

20 research, used modern technology; and that's how he found this 21 ship. 22 23 there? 24
MR. GREENE: He thinks it's the Spanish Burgentine; THE COURT: What kind of a ship is supposed to be down

10:13:16

25 but again, we don't know for sure. The story is that a ship

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1 left Mexico sometime in the early 1800s, was caught in a 2 hurricane. The captain of the ship tried to outrun the 3 hurricane by going up through Copano Bay into the Mission River, 4 and ended up somewhere in either Melon Creek or the Mission
10:13:28

5 River or Melon Lake. 6
And over time, the ship eventually sank. The

7 ship eventually -- we think right now it has moved while it's 8 underground. It's constantly shifting because of the pressures 9 of the ground. And absent us actually being able to go down,
10:13:52

10 there are a lot of mysteries surrounding what type of ship it 11 is, what's on it. 12 14
THE COURT: I want the lawyers, both sides -- his What interest -- who do you represent actually, MR. WALKER: Judge, we represent the landowner. THE COURT: The landowner? MR. WALKER: Yes, sir. THE COURT: Okay. So it's a family, is it? What's MR. WALKER: It's Sorenson. It's -- and it is THE COURT: Go on. We got plenty of time. MR. WALKER: There was -- the legend is -- and there's

13 side, especially -- to get out there. 15 Mr. Carroll, Mr. Walker? 16 17 18 19
10:14:10

10:14:02

20 the name? 21 23 24 22 fascinating, if I can have 30 seconds.

10:14:24

25 some history to it. There was a ship going, I think, probably

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1 from somewhere in Mexico; and it was -- and it was blown in by a 2 big storm. But all the -- until now, all the uncontroverted 3 history was it went up a creek called Burgentine Creek and it -4 Burgentine Creek was named after the type of ship because it
10:14:46

5 wrecked there. 6
And a family known as the Fagen (phonetic

7 spelling) family came down, took the ship, and built a home out 8 of it. That location is probably -- well, it's on the national 9 wildlife refuge. It's probably 40 miles from where he says it
10:15:04

10 is. So there is a legend and there is history concerning this 11 ship. But it's 40, 50 miles from where Mr. Smith says it now 12 lies. 13
THE COURT: Now, do you have -- how do you get access

14 to -- let's assume -- don't assume anything. I haven't heard
10:15:20

15 anything. Let's say, "Okay, you can go ahead and proceed." How 16 do you gain access? Do you have to go over the Sorenson's 17 property? 18 20 22 question. 23 24
MR. GREENE: That's my understanding, Judge. THE COURT: Okay, very good. So if, indeed -- if, MR. GREENE: Judge, our contention is we're going to THE COURT: You're going to go up the river. I'm

19 get in a boat, go up the Mission River to Melon Creek.
10:15:30

21 looking forward to seeing -- that's all right. Just answer the

10:15:40

25 indeed, it's as tough as you say it is to get up there with a

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1 dredge or whatever, then that might settle it right there. The 2 question is do we allow him to give it a try based upon the 3 location and the ownership? It's an interesting -- it's an 4 interesting case.
10:15:54

5 6 a trial date? 7

Do you have any other questions before we get to MR. WALKER: I guess the question kind of goes to the

8 issue of the site inspection. We would like to -- since we 9 contend it's our property, we would like to accompany them out
10:16:10

10 there, and I can show them a shortcut through the Mission River 11 to get there. 12 13
THE COURT: Do you have any problem with that? MR. GREENE: I don't have any problem with it, Your

14 Honor. I can talk to my client about it. He's very sensitive
10:16:22

15 about, you know, the location. So absent him having a problem 16 with it, Judge, we should not have a problem. 17
THE COURT: Otherwise -- otherwise, if not the lawyers

18 going out, just a representative from that side; and we'll keep 19 them out of earshot. How about that? Keep them out of earshot
10:16:38

20 and let them look around, okay? 21 22
MR. WALKER: Yes, sir. THE COURT: The lawyers don't have to go out. I don't

23 want anybody -- maybe someone from your office or whatever, 24 without the lawyers themselves. I don't want anyone interfering
10:16:46

25 with them poking around because that will be the last time

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1 they're out there before you come to trial. Then, you get a 2 resolution and either they'll be out there in force or they 3 won't be out there at all. 4
10:16:58

Now, as you see in something like this, it's all

5 or nothing. If you can work out a compromise, because who knows 6 what's down there. Of course, it took -- Fisher with the 7 Atocha, took it all the way to the US Supreme Court. So it 8 would inure to both of your sides if you can work out something. 9 If you can't, so be it. Sounds -- I'll try it. It's an 10 interesting case. 11
MR. WALKER: Okay. Our only -- we have offered them

10:17:16

12 to come out and actually do a hand auger bore. Our only request 13 is that if they take any samples that we get a split sample. 14
10:17:28

THE COURT: Sure. No problem with that? MR. GREENE: Well, I don't -- we discussed the option

15 16

17 of doing a bore, Your Honor. My client has talked with other 18 experts, and we don't know if the bore would necessarily be the 19 right thing or if doing a magnetometer would be the more
10:17:42

20 appropriate thing. 21
THE COURT: Let's put it this way: If you go -- if

22 you go with a bore, give them part of the sample. Give them -23 or give them a double sample. Do it right next door and give 24 them a sample. If you go with a magnetometer, under discovery
10:17:54

25 here in federal court, they'd be entitled to see it in any

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1 event. So under federal rules you'll have access to it. Maybe 2 right not then and there. 3
MR. GREENE: And Judge, the only other problem with

4 the bore is, as we stated in the complaint, we're talking about
10:18:06

5 a 600-yard radius so -6
THE COURT: Well, that's the concern they have. If

7 you come up on dry land, I mean, which is absolute land of 8 theirs, then let's go back and you're going to have to show me 9 some law on that; but that's where we're premature.
10:18:22

10

Basically, don't get in his way of going out

11 there and looking around. If you do a core sample, give them a 12 copy of it. If you do a -- what is it, an electronic sample and 13 you have, you know, statistics or a book on that, eventually, if 14 you're even going to refer to it, they're entitled to see what
10:18:40

15 an expert relies upon if it's something out there on the land. 16 If you have any problem working together, if you want anymore 17 parameters, give a call. You don't have to come back up. 18
All right. What are the dates that you -- that

19 you would suggest? And let us take a look at our calendar.
10:18:54

20 We'll try to work around it. What are the days or the weeks 21 that are okay for your people? 22
MR. GREENE: Judge, any week in December is okay for

23 us, of course, concerning the Christmas holidays; but absent 24 that -- November is just a very difficult month for us.
10:19:12

25

THE COURT: All right. So we'll go to December.

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1 You're on the November/December trial term. All right. 2
MR. WALKER: Judge, we have no actual trial setting.

3 We have depositions and things that can be moved around. So 4 December is pretty open for us.
10:19:26

5 6 what -7

THE COURT: Okay. I'll tell you what -- I'll tell you Elizabeth, could you get my calendar off my desk,

8 please. Actually, get my black calendar, you know, the black 9 one in my briefcase. It's black with -- used to be blue pages,
10:19:42

10 white pages. Yes, my small little calendar. 11 12 the record. 13 14
(Discussion off the record.) THE COURT: Okay. Now, we're looking at weeks in Ellen, you want to bring up the book? (Side-bar discussion off the record between the Court and THE COURT: We have criminal preferentials. (Side-bar discussion off the record between the Court and THE COURT: The problem is that we're looking for -All right. Hang on a second. We're going off

10:21:08

15 December. Let me -- let me give them -- see what we can -16 17 19 18 his staff.) 20 22 24 set.

10:21:44

21 his staff.) 23 hang on. On one week in December we've got three criminal cases 25
Ellen, you want to come give me a hand.

10:23:30

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1 2 4
10:23:38

THE CASE MANAGER: Yes, sir. THE COURT: Three criminal cases set. We don't know The next week, we have what, a preferential? THE CASE MANAGER: Yes, sir. THE COURT: Criminal? THE CASE MANAGER: Yes, sir. THE COURT: And the 16th, preferential. I agree, we

3 if they're going to go or not but three of them. 5 6 7 8

9 don't want to do anything the week of Christmas. That's
10:23:48

10 available. I can do -- because in January we begin the longest 11 criminal case I have, and it's going to go awhile. There's just 12 no way around that because we've been pre-trying it now for a 13 year. 14
Well, I'll just ask you: Depending upon when do

10:24:08

15 you want to get the case tried that, in effect, unless these 16 cases go away for December 2nd -17 18 minute. 19
THE CASE MANAGER: Correct. THE COURT: That's the problem. You got folks coming Or you do? MR. GREENE: Right, Your Honor. THE COURT: Okay. MR. GREENE: I think we both do, but they're in When will we know? Probably not until the last

10:24:20

20 22 23 24 25

21 in from out of town.

10:24:22

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1 Victoria and have to -2 3 4
10:24:28

MR. CARROLL: Ours can drive up. MR. WALKER: Yeah. THE COURT: Yours? MR. GREENE: Right. And once we get into the THE COURT: Well, I'm not -- no, Christmas holidays

5 7

6 Christmas holidays and New Year's, I just -8 and New Year's are two different things, okay? I have the 9 availability -- I'm going to let you decide this. You know,
10:24:42

10 you're working at it. You're pros and so forth. I can do the 11 case beginning -- for three days beginning Monday, December -12 you know, December 29th, all right, or -- or keep you on hold; 13 and we can set a tentative date, I guess, after I get back or 14 after Hoeffner or just before that, whenever we can estimate. 15 That case is going to take awhile. 16
It just depends upon how you want -- you really

10:25:12

17 want to get this thing tried because it's not that I'm not -18 you know, heck, you want -- I mean, kidding aside, my -- my 19 docket is absolutely current. These things are on here, and I'm
10:25:30

20 not sure if they're going to go away or not. Very often 21 criminal cases plead out. 22 24 availability.
I could give you a trial as early as next week,

23 all right? This is Wednesday. Go to -- next week, we got 25
How about the week after that?

10:25:44

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1 3 4
10:25:56

I'm not going to do this, by the way. I'm just MR. GREENE: Thank you, Judge. THE COURT: Yeah. No thank you for the idea of the (Side-bar discussion off the record between the Court and THE COURT: I could start you the afternoon of

2 telling you that if by some chance you want it, you can have it.

5 ability to opt out, I gather. 6 8 7 his staff.) 9 Wednesday, November 5th, and we could go the 5th, 6th, 7th; and

10:26:34

10 if we have to hold over to the 10th. Or -- or -- or keep you on 11 hold and see if any of these criminal cases go away and give you 12 as much notice as we can. 13
Otherwise, I know it's an interesting case. You

14 probably want to get it tried. So do tell them I could take you
10:26:56

15 next week; or the week after, November 5th -16 17
Right? -- we just said is available. Those are two

18 dates. Aside from that, we'll have to do the best we can, but 19 it's going to be after that big criminal case because that's
10:27:08

20 going to really lock us up. It's involving -- it's involving a 21 lawyer being accused of paying kickbacks to a number of 22 corporate executives in a big insurance company up in Hartford, 23 Connecticut, in exchange that there would be -- they'd approve 24 his personal injury settlements and then -25
MR. CARROLL: I read that one.

10:27:32

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1

THE COURT: -- and then they'd get some back allegedly

2 from the lawyer for a piece of that; and that's very, very hotly 3 disputed with the top lawyers in the city, you know, trying it. 4
10:27:50

Now, you tell me. I got one week for you. I'm

5 sorry, my case -- any time this summer -- if you had gotten in, 6 I could have put you in. This summer we were looking for 7 business. So you tell me. 8 9 10
First of all, let's go off the record. (Discussion off the record.) THE COURT: All right. What do you think? Do you

10:28:46

11 want us to wait and see if anything loosens up with a promise 12 you're not going to get overnight notice? 13 15 16 17 day. 18 19
10:29:08

MR. WALKER: Judge, if -- maybe you can pencil in the MR. CARROLL: Of December. MR. WALKER: -- of December. I think you gave that THE COURT: Right. 29th, 30th, and -MR. CARROLL: 31. THE COURT: -- and 31. MR. WALKER: Yeah. And really, I think it's more

14 29th and 30th and -10:29:02

20 21

22 realistic a two-day trial. Then, if something falls through 23 with the criminal docket, we can -- you can notify us and we can 24 see if we can work it out the first part of December.
10:29:20

25

MR. GREENE: Right, Judge. If anything comes

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1 available early on in December and you can give us some 2 notice -3 5 7 8 9
10:29:38

THE COURT: Sure. What is the 20th? That's the day (Side-bar discussion off the record between the Court and THE COURT: Starting at 10:00 on the 29th, right? THE CASE MANAGER: Yes, sir. MR. WALKER: Judge, there may be, what, a couple of MR. GREENE: Yeah. The way -- from our point, Judge,

4 -- the afternoon -- no.
10:29:26

6 the case manager.)

10 fact witnesses and a couple of expert witnesses? 11 12 there's Mr. Smith, our expert; and we're trying to get one other 13 person from the Corps of Engineers. We don't know yet. That 14 person hasn't committed to testifying or not. Certainly, they 15 are an integral part of our case. 16 17
THE COURT: Are they local? MR. GREENE: No, Your Honor. They'd be from Corpus

10:29:54

18 Christi, I think. I think the person is located in Corpus. So 19 those are the only three witnesses that I know of that standing
10:30:08

20 here today that we would be calling. 21
THE COURT: Okay. Let's do it. Let's put it there

22 tentatively. If anything comes up in your schedule or on mine 23 and if we can't -- we have to lop over. Why don't we 24 tentatively then schedule it for what, 10:00 a.m.?
10:30:22

25

THE CASE MANAGER: Yes, sir.

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1 2 3 4
10:30:30

THE COURT: November 29th. THE CASE MANAGER: No, sir. THE COURT: December 29th. And on motions in limine -- this is a non-jury

5 case. So unless it's a real screaming animal, I'm going to 6 know. I don't rely on saying, well, it's a non-jury matter. 7 I'll consider only things that are relevant but I will. So you 8 know we have a lot more flexibility on exhibits and on motions 9 in limine in a non-jury case. Also, when are the findings of 10 fact and conclusions currently due? 11 12 13 15 16 17 okay? 18
I'll give you some time on that, if you can work MR. CARROLL: With the pretrial order, Your Honor. THE COURT: Pardon me? MR. CARROLL: They're due with the pretrial order at THE COURT: The end of this month, okay. All right. Why don't we move that off, Ellen,

10:30:54

14 the end of this month.
10:31:02

19 a case out. But even though -- now that we have a tentative
10:31:12

20 trial date, there's no need to rush on that. 21 22 that off. 23 24
Right now it's what, the 31st? MR. CARROLL: I believe it's either the 30th or the Bring up the book for a moment and we'll move

10:31:22

25 31st, Your Honor. But if we're going to get that early December

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1 trial date, we're probably going to need it as soon as possible 2 anyway if we shake loose. 3
THE COURT: Right now, it's due -- all right. Let me

4 ask you this: Do you want us to remain that or you want one
10:31:34

5 extra week just to loosen up? 6 7 8 10
MR. GREENE: I think another week wouldn't hurt. MR. CARROLL: We'll be happy to -MR. WALKER: Particularly, if we're going to inspect THE COURT: All right. We're going to change that the

9 the property, another week would make sense.
10:31:46

11 joint pretrial order now is due Friday, November 7th, instead of 12 its current date. 13
MR. GREENE: And Judge, just a question in terms of

14 actually going to the site. As long as it's done before trial,
10:32:02

15 is that your only parameter? 16
THE COURT: That's correct. And also, enough time

17 because they're under the federal rules, you know, Rule 16 18 disclosures and everything else. Eventually, you're going to 19 have to exchange exhibits and all that. Did we have a date on
10:32:16

20 that, also? 21 22 23
MR. CARROLL: Pretrial order, Your Honor. THE CASE MANAGER: Yes, sir. The 31st. THE COURT: Yeah. But by agreement, if they're being

24 worked up and you want to give them a few extra days, it's no
10:32:28

25 problem. Not extending the joint pretrial order but extending

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1 all the exchanges. Just put it in writing that you've agreed 2 between the parties that notwithstanding that everything needs 3 to be done with the joint pretrial order on the -- on the 4 following items, you've given them or they've given you the
10:32:48

5 production date of a week before trial or ten days before trial, 6 all right? 7
And if anything falls through, we'll let you

8 know; but we're not going to force you on an overnight -- you 9 know, an overnight trying the case if we can get it; but the
10:33:02

10 week of Christmas we'll keep free. 11
MR. CARROLL: And Your Honor, if -- just for the sake

12 of our experts and out-of-town witnesses, if the Court's docket 13 opens up, will it be that first week in December or are there 14 several weeks?
10:33:14

15 16 17 18 19 20 22

THE COURT: You say the others are definite, Ellen? THE CASE MANAGER: Yes, sir. THE COURT: We got some big ones after that? Yeah, it would be that first week in December. MR. WALKER: Thank you. THE COURT: But again, if it's too close and your All right. If you need to get in and ask any

10:33:22

21 people already have schedules, we'll keep the 29th. 23 questions, you can always call my case manager. If you need a 24 resolution by the judge, just -- you know, just set up a phone
10:33:40

25 conference. Any morning we can fit you in.

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1 2 4
10:33:46

MR. GREENE: Thank you, Judge. THE COURT: Okay. Anything further from the MR. GREENE: Nothing further, Your Honor. THE COURT: Anything further from the defense? MR. CARROLL: No, Your Honor. THE COURT: Okay. If you work it out, please do; Okay, we'll see you. MR. WALKER: Thank you, Judge. MR. GREENE: Thank you. MR. CARROLL: Thank you. (Proceedings concluded at 10:30 a.m.) CERTIFICATE I certify that the foregoing is a correct transcript

3 Plaintiff? 5 6 7 9
10:33:52

8 otherwise, it's going to be an interesting bench trial. 10 11 12 13 14 15 16 17 18 from the record of proceedings in the above-entitled matter, to 19 the best of my ability. 20 21 By: /s/Gayl e L. D e y 22 23 24 25
Gayle L. Dye, CSR, RDR, CRR 1 1 - 1 8- 2008 Date

Gayle Dye, CSR, RDR, CRR - 713.250.5582