GOINS, DON BUSSEY, AND HORSE APPRAISER FOR DEFENSE TESTIFY JAN. 21 DURING FINAL DAY OF TESTIMONY FOR WHITMIRE V NCHA JURY TRIAL

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1 GOINS, DON BUSSEY, AND HORSE APPRAISER FOR DEFENSE TESTIFY JAN. 21 DURING FINAL DAY OF TESTIMONY FOR WHITMIRE V NCHA JURY TRIAL CLOING ARGUMENTS AND JURY DECISION TO BE HANDED DOWN MONDAY, JAN. 24 By Glory Ann Kurtz Fort Worth, Texas - Jan. 23, 2011 Final testimony was held on Friday, Jan. 21 in the Whitmire v NCHA jury trial held in Fort Worth s 236 th District Court with NCHA lawyer Eldridge Goins, NCHA Past President Don Bussey and Jay Proost, a horse appraiser who is the Executive Director of the American Society of Equine Appraisers testifying before a jury. Before the jury came into the courtroom, Judge Lowe said that he wanted to wrap up the jury trial today and didn t want to hear anything more about furniture in the room, referring to the disparity in testimony of the two sides about what furniture was in the room when Lainie Whitmire was taken to the women s locker room during the 2004 NCHA Futurity. sometime in the future if she would be qualified to get her non-pro card back and not have a life sentence. Walker said, The document says that her nonpro status would be suspended if she didn t produce other documents? to which Goins said, It says what it says. Walker said, but you decided to let her compete (at the Futurity) and take it (whether she would keep her nonpro card) at the scheduled hearing? Goins said, You don t understand. (Don) Bussey and (Bill) Riddle decided to do nothing during the Futurity. ELDRIDGE GOINS TESTIMONY: Whitmire s attorney, James Walker, continued to question Eldridge Goins following Thursday s questioning of the NCHA lawyer. A letter from Goins to Brewster was displayed, which discussed the content of a report with Lainie fully complying with a request for additional information. Walker asked Goins if Whitmire s attorney, Clark Brewster, had asked Goins how Lainie could keep her non-pro card. Goins responded, No, he contacted me twice not about her keeping her non-pro card but at Walker asked, Is it possible that once the committee reviewed all her information, that she could prove that she was eligible to keep her non-pro card? to which Goins answered, It s not possible. An agreement had been reached where she would give up her non-pro card and Amateur card and take a six-month suspension. Where did that happen? said Walker. When the hearing was held, said Goins. She never presented any information.:

2 Were you anticipating that the hearing scheduled for Jan. 19 would be fair? asked Walker to which Goins said, It would be conducted with the rules and regulations of the association and she was given an opportunity (to provide more information) with the rules provided. There s never been an unfair hearing. But her membership was not suspended, if that s what you re asking. Walker asked Goins if he and Clark Brewster had some settlement negotiations between Jan to which Goins answered, We had some conservation. Walker said then the Jan. 19 meeting was cancelled because an agreement was reached? Goins said, People were still coming in and the committee was assembled. They had the hearing but Whitmire was not there. Walker asked Goins if there was any reason that Goins didn t provide a signature line for Clark Brewster on the proposed settlement letter, to which Goins answered, It wasn t necessary. He wanted us to get going as quickly as possible. Walker responded, Is the reason you left off the signature line was because you knew he wouldn t sign off (on the agreement)? Goins responded, That s an insulting question. That s absolutely not the reason. If there had been a problem, Brewster would have called or written. I heard nothing for a year and a half until the lawsuit. Walker said, Are you suggesting that Clark Brewster lied? to which Goins responded, I don t know. He was pleased with the agreement. Walker said, Did Lainie come back to compete in the Open with her trainer Tommy Marvin? to which Goins said, She came back and showed. Walker asked Goins whether he saw the application Lainie Whitmire filled out when she reapplied for her non-pro card after her suspension. Goins said, I saw one at some point in time. Walker said, On the second page, she answers No. 6 saying that her non-pro status had been suspended, to which Goins said, It says what it says. Walker produced a letter, saying, Is this a letter from Jeff Hooper to Lainie, to which Goins responded if that s what it says. Walker asked if he assisted Jeff Hooper in drafting the letter to which Goins said, I saw the letter before it was sent but I don t know if I assisted Mr. Hooper; more than likely I looked at it before it went out. Walker asked if the letter said that Whitmire s couldn t come back into the association as a non-pro because her non-pro status had been denied, to which Goins responded, I don t understand the question. I would have to go through all the letters it was plain and clear about her status. Walker asked, In the Amateur division of the 2004 NCHA Futurity, did you compete in the bunch right after Lainie showed? to which Goins responded, I have no idea.

3 Goins was asked to step down but the judge said he wanted him available for something else before lunch at the next recess. DON BUSSEY TESTIMONY: NCHA attorney Henry Wehrmann questioned Don Bussey, who was the NCHA president in Asked where he lived, Bussey said in the northwest corner of Alabama and that he was originally from Shawnee, Okla., where he was raised at the edge of town. He went to school at Shawnee High School and then went to Oklahoma State University where he received a degree in animal husbandry. He also testified that he was in the military reserve for seven years and was called up for active duty, but only for 24 hours, during the Berlin conflict. Bussey testified that he was CEO and Chairman of the Board of the State Bank And Trust since 1978 and was in the banking business. He couldn t remember how long he had been an NCHA member, responding, a long time. He said he had served on several standing committees of the NCHA, including the finance and limited aged event show producers committee. Asked if he had been a member of the NCHA Board of Directors, Bussey said Yes, saying he was currently on the Board of Directors. Asked when he first was on the board, he said, I couldn t tell you. He testified he had also been Vice President and President Elect and was the President in was notified of the meeting in the women s locker room by Jeff Hooper. He said we needed to get the Executive Committee together if we could find everyone and have them go to the women s dressing room downstairs. Asked if he went there, Bussey responded, Yes, but when asked if he remembered who was there, he said, I don t remember if they were already in the room or just coming in Jeff and the attorney Eldridge Goins. Asked if there were discussions in the room, Bussey said, Yes, but we didn t do anything at that time. I said that we needed to talk to her attorney. Asked if he knew Whitmire before that time, Bussey said, Only by seeing her at shows; I might have showed against her. Asked if they had seats close together during the NCHA Futurity, Bussey said that sometimes the Whitmires sat in the section next to us. Wehrmann asked Bussey if he went someone to go locate Mrs. Whitmire and Clark Brewster, to which he responded, Dave Brian. Asked if he was in the room when Mrs. Whitmire arrived, Bussey said, Yes and asked if the door was locked after she arrived, Bussey said, I couldn t tell you. Asked if he was in the room when Clark Brewster arrived and how much time had elapsed, Bussey said Yes - and I m guessing minutes. He testified that in 2004, he remembered attending the Futurity and recalled that on Dec. 5, he was made aware of concerns regarding Lainie Whitmire s membership. He also said he Asked if he heard any discussion going on between Jeff Hooper, Eldridge Goins and Lainie Whitmire, Bussey said, Some and I said we needed to wait for her lawyer. Wehrmann asked if anyone had touched Lainie Whitmore

4 of told her she couldn t leave the room, to which Bussey said, No. Asked if there was a period of time where he left to look for other officers, Bussey said, No. Asked what Brewster did after he arrived, Bussey said, He and Whitmire s attorney were in discussions. Asked where he was sitting, Bussey said that he was sitting on one of the couches. Wehrmann put a slide up of a room with a couple of couches and a table in it and asked if that was similar to how the room looked. Bussey said, Yes but the coffee table wasn t that high and the couches were similar. Asked if anyone else was sitting on the couches, Bussey said, Not that I know of. I was sitting in the far corner. Asked if Whitmire was sitting on the right end of the couch, Bussey said she was leaning against the first couch. Jeff Hooper was near Eldridge Goins and Dave Brian was by the door. Wehrmann asked, At the meeting did anyone raise their voice at Whitmire? to which Bussey responded, To the best of my knowledge No. He was asked if at some point Ray Whitmire entered the room, to which Bussey said Yes, but that he didn t talk to him or Lainie. He was asked if Mr. and Mrs. Whitmire left the room when the meeting was over and if anyone prevented them from leaving, to which Bussey said they had just left and no one had prevented them from leaving. I was making a decision about Mrs. Whitmire being able to show. Asked if he had a discussion then with the remaining people about determining whether or not Whitmire would be allowed to show. Bussey said, Bill Riddle came in and stood by the mirror. I felt she should be able to show her horse because she had paid her entry fees and filed an appeal. Bussey testified that the discussion took about 10 minutes. Asked if he had seen Whitmire cry when she was in the room, Bussey said, I was to her back. Asked how long it took to find Whitmire, Bussey said not long and that he had gone back up to where they usually sit and told her that she would be able to show. She hugged my neck and thanked me and Ray shook my hand and thanked me, said Bussey. He said he later became aware of an agreement reached between the NCHA and Whitmire regarding her membership and an offer had been made. Walker showed the Jan. 19, 2005 letter written by Goins to Brewster about the agreement he said was made between the NCHA and Whitmire, asking if these were the terms approved by the Executive Committee. Bussey responded, Yes. Asked if there was any other agreement not contained in this correspondence, Bussey said, Not by me or the Executive Committee No. Asked if anyone had told him that another agreement existed that was not honored by the NCHA, Bussey said not at that time. Walker asked Bussey if he learned of the meeting (in the women s locker room) 10 minutes prior to it taking place, and Bussey answered yes,. Asked if he was aware of any notice provided Brewster or Whitmire about an upcoming meeting, Bussey said, No. Walker asked him to look at his deposition where said he had left the room for a period of time, and he had answered, Correct. When asked if he agreed that he left the room for a few minutes

5 (since he had just testified that he hadn t), Bussey said, That happened in 2004; I m having a hard time remembering what happened in Walker said, you testified that Mrs. Whitmire wasn t crying or you couldn t see her. Is it true that later you apologized for what happened in the locker room. Bussey replied, I m not sure of that. Asked by NCHA lawyer, Henry Wehrmann, if one of his methods to appraise a horse was to ask the owner what it was worth, Proost responded No. He said he was the appraiser who appraised High Brow Cat, the No. 1 cutting stallion, in the divorce of Jack and Susan Waggoner, as well as the frozen semen to be used in the future. Proost said, High Brow Cat is still able to breed, but he doesn t have a long time left. I appraised the stallion at $1 million and the semen at $9 million, said Proost. Walker said, When the agreement was made to send to Mr. Brewster was it in June 2005? Bussey responded, sounds right but I can t guarantee that. When the offer was made, who made it? asked Walker, with Bussey responding I assume it was made through the two attorneys. Asked if Goins had the authority to communicate, Bussey said Yes, and when asked if he had the authority to participate, Bussey said No. APPRAISER JAY PROOST TESTIMONY: A witness for the defense was next to testify. Jay Proost testified he has been a livestock appraiser for 30 years, having done over 650 equine appraisals, with of them formally being cutting horses. But altogether I have appraised thousands of cutting horses, said Proost. He is Executive Director of the American Society of Equine Appraises and a member of the American Society of Agriculture Appraisers, specializing in livestock and equipment. He has also been hired to teach appraisal seminars and courses. He said he had worked with the Internal Revenue Service on large cases, including the largest case in the United States - the IRS v David Plummer, Classic Star and Geo Star, appraising several hundred Quarter Horses. Asked if he charged fees to the NCHA, Proost said, Yes saying he charges $200 an hour and $2,500 a day to testify, plus $1,000 day for travel expenses from Twin Falls, Idaho. He said all of his appraisal work was not related to litigation as prior to the Western Bloodstock sales, he appraised 1,000 head. He appraised between Select yearlings prior to the Western Bloodstock sales. Proost explained his methodology for appraising included 1) pedigree, 2) performance of subject animal money and points and 3) if the subject is a stallion or a mare, their production record. He said at the beginning, he looks at pedigree and performance and compares those figures with like-type animals as the basis for value. He said he ordered reports from Robin Glenn Pedigrees to do his pedigree research. Asked if he had participated

6 in NCHA events, Proost answered, Yes, I have won at weekend shows. He appraised the three horses that the Whitmires had appraised, saying that Dual Hickory Nita, that the Whitmires had paid $120,000 for was not very desirable as a mare because her offspring had not won much money. He valued the mare at $50,000 at the time of purchase based on comparables and videos. He said that the Whitmires had paid too much for the mare and although he agreed the mare had lost value since she was purchase, he claimed that the mare s loss in value came from Lainie Whitmire showing her and teaching her bad habits by continually turning her to the left. He showed videos of the mare running off to the left, saying it would be hard to sell that mare for even $5,000 as a cutting horse because of her bad habits. He did admit; however, that the mare had value as a broodmare, valuing her at $15,000 for a loss of $35,000. Asked by Wehrmann if the loss in value was due to Whitmire not being able to show in the NCHA Non-Pro, Proost responded No. Regarding Can Yall CD Freckles, Proost said he saw him limping in the video; however, he admitted that if that wasn t chronic, it wouldn t affect the horse s value. However, he said showing a sore horse is a poor practice. He valued the horse at $55,000 as of Oct. 21, 2005, with the current value being between $40,000 and $50,000 for a loss of $5,000 to $15,000 if she is reproductively sound. This is based on comparables with none of it caused by Whitmire s inability to show in NCHA competition, said Proost. Regarding Hickory Kit Rio, he valued the mare when she was purchased in 2004 as being from $25,000 to $35,000. (The Whitmire s said they had paid $35,000 for the horse). Proost said that foals of Kit Dual are not very desirable and the mare only had three runs in competition, so her worth was approximately the same - $25,000 to $35,000 and she had not gone down in value. One of Whitmire s attorneys, Michael Watson, cross examined Proost, asking him if he was a professional trainer, after which Proost responded, No. Asked if he had ever been, Proost said that he had helped amateurs and non-pros but had never been compensated for it. Asked how he received his knowledge of how cutting horses are supposed to work, Proost responded, Personal experience and because of what I was told by trainers. Asked if a horse quits a cow, is it the fault of the horse or the rider, to which Proost answered It could be both. Watson reminded him of his deposition taken in February 2008 where when he was asked the same question by James Walker and he answered, Often when a horse quits and runs off, it is the fault of the rider and most of the time it s going to be the rider. Proost said that the purchase price of Can Yall CD Freckles at $55,000 was a fair price and in 2008, it was his opinion the horse was worth $40,000 to $50,000, having lost $5 to $15,000.

7 Asked by Watson if it was common to use the service of trainers when purchasing horses, and was he aware that Tommy Marvin tried the horse before the Whitmire s purchased Dual Hickory Nita, Proost responded No, but he felt Marvin and Whitmire got it wrong and they overpaid by $70,000, based on comparables. Watson said that Tom Long was the representative of the horse for Chip Hanley and he was a highly respected trainer, to which Proost responded, I wouldn t agree with that, even though he has won a substantial amount of money. Watson also asked if he checked the soundness or vet check at the time Whitmires purchased the horses, Proost said, no. Proost said that the Fair market value of a horse is a willing buyer and seller knowing the facts, without the seller having to sell. He said his opinion of the worth of Dual Hickory Nita when the Whitmires purchased her was based on her pedigree and seeing Lainie riding her in the videos. He said he had talked to Phil Rapp and other trainers who said she was a nice Amateur horse but not an Open horse. and 2-year-olds the most but once they start in training, it s not quite as important. Asked how tall each of the Whitmire horses were, Proost said he didn t know. Watson asked Proost if he was aware that the NCHA had told the Whitmires on Oct. 28, 2006, that no horse she owned in whole or part could be used in NCHA competition. Proost answered, No. My job was to value the horses. A letter was then produced from Jeff to Ray and Lainie Whitmire, which said in part that any horse owned whole or part by Lainie couldn t be shown in NCHA competition, and if that inability to show horses in NCHA-approved shows affected their value. Proost said he didn t know. Proost was then cross-examined by Wehrmann, who asked if the horses owned by Lainie were shown by other people after 2006 and Proost said, Yes. Nothing they have asked or said has changed my opinion about the decrease in value of the horses being due to the fact Lainie Whitmire could not ride them. Watson then asked him about some of the comparable horses, asking the height of several of them. Some he had just seen videos and couldn t judge height but some he had seen in person. Proost did admit that several of the comparables he had not seen in person. Asked if conformation was important, Proost said, Yes. They ll get culled and won t be trained if their conformation isn t suitable. He said conformation affects weanlings, yearlings Asked if he was aware that the horses had been transferred out of the ranch to Ray and transferred back, Proost said I think I saw the document. I know they switched ownership. Asked if he was aware that was done so they could show the horses in NCHA competition, Proost said he didn t know that. Asked if he owned a cutting horse at the present time, Proost said, No.

8 The jury was dismissed with Lindy Burch being the next witness on the schedule. The court was asked by Walker that they exclude Burch s testimony because it had nothing to do with horse values. Wehrmann said she had been president of the NCHA and an Executive Committee member and had know Goins for many years and had never known him to exceed his authority. The judge ruled that Burch could not testify. James Morris then asked the judge to allow Burch to offer proof. He said she has been involved on different committees and had extensive dealings with Eldridge Goins and she could testify that he had never made an agreement that was not authorized nor had he not told the NCHA the facts of the cases he was working on. And he never entered into negotiations without their instructions. Watson objected, saying that was hearsay and prejudice and the judge sustained (agreed). The judge then asked some specific questions that the jury had asked him. He then asked the attorneys how long they needed for closing arguments. Walker said he would like about 45 minutes, while Morris said he could get by with 30 minutes. Both lawyers agreed they would split the time allotted for their closing arguments. The judge said that court would recess for the weekend and they would expect them to be back by 10 a.m. Monday, Jan. 24.