Page 15

1 And I think that's where you have to go down to see who is,

2 in fact, the employer. Because you don't have a formal

3 organization, you don't have a corporation. I think we can

4 tell from this witness already they don't have any formal

5 organization at all. It's just a name that they do business

6 by, and it's the individuals doing the business. And I want

7 to know which individuals are getting the money and how much.

8 I think that that tells us who the equitable owner of this

9 business is.

10 THE COURT: Part of my problem is this with any

11 company, people can be making decisions, but that doesn't

12 make them the owners of the company. Just because somebody

13 at Ralston or Anheuser-Busch, they make decisions, they don't

14 own the company. So even though we may have some people

15 making decisions, that doesn't mean they are necessarily the

16 employers. They could be, could not be.

17 So, I mean, there could be a stipulation that you're

18 not admitting, nobody is admitting that they are, in fact you

19 challenge the fact that they are employers. But if there is

20 anyone to be classified in such a status, it would be these

21 people, then we're through with all this.

22 MR. OLIVER: It would be these people, Pastor Wills,

23 Sam Gerhardt, and Betty Sue Wills.

24 THE COURT: What about that? We have to tell the

25 jury this so we can end this, so we can have that as a fact

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1 if they determine by the nature that there's an employer/

2 employee relationship.

3 MR. STILLEY: I want to establish that the others

4 are too, the rest of them, because they operated as a group

5 making money. And I think that the testimony is going to

6 show that the money that came into this organization was

7 passed out in the form of de facto dividends to various

8 individuals.

9 THE COURT: So you don't want a stipulation?

10 MR. STILLEY: I would take a stipulation if they

11 would stipulate that all the defendants are employers. I

12 mean, that's satisfactory to me.

13 MR. OLIVER: Your Honor, his inquiry is the wrong

14 legal test for the definition of employer. An employer is

15 the organization or someone who acts in the interest of the

16 organization which is clearly defined as the hire, fire

17 people. And to use your analogy, it's the Anheuser-Busch,

18 it's not the shareholders. They can't under an FLSA case,

19 you can't get to the shareholders because they get dividends,

20 it's only the decision makers. And we're willing to -- I

21 mean, the deposition testimony is clear and we're willing to

22 agree as to who the decision makers are.

23 MR. STILLEY: Well, as you said, Judge, though, the

24 decision makers aren't necessarily liable for any wages. You

25 can get fired by your boss who has legitimate right to fire

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1 you, but you can't sue him. It's a different question where

2 you have what amounts to a de facto partnership of various

3 people that came together and began to work in the operation

4 and they divide the money.

5 THE COURT: You're saying you want all the

6 defendants, Mr. Stilley is saying only several of the

7 individuals.

8 MR. STILLEY: Right. And if I can just inquire --

9 maybe just a little more about the ownership structure and

10 then about who gets the money off this, I think that we have

11 a clear picture.

12 MR. OLIVER: Who gets the money is entirely

13 irrelevant, purely prejudicial. Who gets the money is --

14 MR. BRIGGS: It's profit information. It's outside

15 the scope of this inquiry.

16 MR. STILLEY: Well, profit information in a

17 partnership setting is very, very appropriate and very

18 relevant to this, to who the employer is.

19 MR. OLIVER: You haven't pled partnership, it's

20 outside the pleadings.

21 THE COURT: I'm not getting any clear indication

22 here. One is talking about decision making, the other is

23 ownership. I'm going to allow you some leeway.

24 MR. OLIVER: Will it be continuing then?

25 THE COURT: Continuing objection.

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1 MR. OLIVER: That it's an improper legal standard so

2 the inquiry is irrelevant. Thank you.

3 (The following proceedings continued within the

4 hearing of the jury:)

5 BY MR. STILLEY:

6 Q. Can you tell the jury who would get the assets that are

7 used by Mountain Park if that organization were dissolved?

8 A. It would go to a like ministry.

9 Q. Is that written down somewhere?

10 A. No, sir.

11 Q. Okay. And how do you know that? What's your basis of

12 personal knowledge for that?

13 A. Just that if the ministry dissolved then the assets go

14 to a like ministry.

15 Q. Did somebody tell you that?

16 A. I guess my husband and I discussed it at different

17 times. We've discussed it with our lawyers.

18 Q. Okay. Tell -- can you tell the jury how do you

19 normally refer to the organization at Mountain Park? Do you

20 just call it Mountain Park?

21 A. Mountain Park.

22 Q. Okay. Does Mountain Park refer to the church as well

23 as the boarding academy?

24 A. Mountain Park Baptist Church and the boarding academy

25 is a ministry under the church.

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1 Q. Okay. Is there a distinction between the church and

2 the academy?

3 A. What do you mean?

4 Q. Are the books for the church and the academy kept

5 separately?

6 A. No, sir, everything is under the church.

7 Q. So there's one set of books?

8 A. There's one set of books for the bookkeeping.

9 Q. Now, when -- did you remember when Jordan Blair, the

10 plaintiff in this case, came to be at Mountain Park?

11 A. Just from the application. I understand it was October

12 the 24th.

13 Q. Of what year?

14 A. 2001.

15 Q. How many other students were there at that time?

16 A. I have no idea how many students were there back in

17 October 24th, 2001.

18 Q. Can you get close on it?

19 A. I would say probably 70, 80.

20 Q. Was that boys and girls?

21 A. Yes, boys and girls.

22 Q. Were all these paid students or were there any there

23 without tuition from the parents?

24 A. We would have a few that come and could not pay the

25 full amount and we would let the parent pay just part of

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1 tuition. And then we would let some parents that had one of

2 the students there would help out sometimes with tuition.

3 Q. Okay. Using the same time frame, how many students

4 were at Palm Lane Baptist Church in Florida?

5 A. Probably about 20 girls.

6 Q. Was it girls only?

7 A. At that time, October 24th, yes, they were girls only.

8 Q. When did it change to girls and boys?

9 A. When we brought Jordan and some other boys down to the

10 ministry, we had some boys and girls there.

11 Q. So Jordan Blair was one of the first boys there?

12 A. No, sir, we had had boys there before and we took them

13 and sent them back to Mountain Park. And then we brought

14 them back down to Palm Lane.

15 Q. Now, let's find out a little bit about the formal

16 organizational structure of Palm Lane. Do you call that Palm

17 Lane?

18 A. Palm Lane Baptist Church.

19 Q. Is that a corporation?

20 A. Yes, that's a corporation.

21 Q. What is the formal corporate name?

22 A. Palm Lane Baptist Church.

23 Q. Incorporated?

24 A. Yes, sir.

25 Q. And how long has this corporation been operating?

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1 A. We started it in 1997.

2 Q. Okay.

3 A. I think we bought the property in November 1997.

4 Q. Are these students -- how is Palm Lane and Mountain

5 Park affiliated?

6 A. They are two different ministries.

7 Q. I believe you told us that there were students sent

8 back and forth?

9 A. The reason we sent them back because we were a little

10 short of workers, so we informed the workers that the boys

11 would be going back to Mountain Park so we would have enough

12 workers to take care of them.

13 Q. Who makes the decisions with regard to Palm Lane?

14 A. Brother Wills and I.

15 Q. And anybody else?

16 A. No, sir.

17 Q. Who makes the decisions with respect to Mountain Park?

18 A. Brother Wills and I and Brother Sam Gerhardt.

19 Q. Anybody else?

20 A. No, sir.

21 Q. Who manages the finances at Palm Lane?

22 A. The bookkeeping is all done at Mountain Park.

23 Q. Are all the books then kept together for Palm Lane and

24 Mountain Park?

25 A. No, sir, the banking is done in Florida.

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1 Q. But I'm not asking about the banking, but about the

2 books.

3 A. Yes, sir, the books are at Mountain Park.

4 Q. Okay. And they are all kept together; is that correct?

5 A. No, they are not together, they are separate.

6 Q. Okay. So there's two sets of books at the facility at

7 Mountain Park, correct?

8 A. Yes, sir, one for Mountain Park and one for Palm Lane.

9 Q. And who keeps those books?

10 A. Mrs. Gerhardt.

11 Q. Does she keep both sets?

12 A. Yes, sir.

13 Q. Okay. Can you tell the jury the physical location of

14 each of these facilities?

15 A. Mountain Park Baptist Church is located in Patterson,

16 Missouri. Palm Lane Baptist Church is located in Arcadia,

17 Florida.

18 Q. And would it be fair to say then that at the time that

19 Jordan Blair arrived at Mountain Park that there were about

20 100 total students in the two schools?

21 A. I said I wasn't sure, there could have been 100. I

22 said between 70 to 80.

23 Q. Okay. Now, but you also said that there were about 20

24 students at Palm Lane?

25 A. Yes, sir.

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1 Q. So it would be fair to say there were 90 to 100

2 students altogether?

3 A. How many?

4 Q. Ninety to 100 students?

5 A. Yes, sir.

6 Q. And what's the rate of tuition at these places?

7 A. 1,200 a month.

8 Q. Both places?

9 A. Yes, sir.

10 Q. Has that changed in the past three years?

11 A. I don't believe so, no, sir.

12 Q. So can you tell the jury what your approximate average

13 annual revenue from these two schools is?

14 A. No, sir, I don't keep up with that.

15 Q. Well, if there were a hundred students, it would be

16 1,200 times 100, correct?

17 A. Yes, sir.

18 Q. And can you tell the jury how much that is?

19 A. Not right off my head, no, sir.

20 Q. Would that be 120,000?

21 A. It could be yes, sir.

22 Q. Times 12 months?

23 A. Well, 12 months.

24 Q. Well, 12 months in a year, correct?

25 A. 12 months, yes.

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1 Q. And the parents typically send the kids there all year

2 round, correct?

3 A. Most of them do. Some of them do not, but most of them

4 do.

5 Q. So is it fair to say that the revenue in 2001 was about

6 close to one and a half million dollars per year?

7 A. It could be.

8 Q. And is it true that the revenue -- is the revenue about

9 the same at this point in time?

10 A. I'm sorry?

11 Q. Is the revenue of the two schools about the same at

12 this point in time?

13 A. The same amount of money for both schools.

14 Q. Is it about the same at this point in time?

15 A. They -- each family was charged 1,200 but now Palm Lane

16 only had 20 students where Mountain Park would have 80 to 90

17 students.

18 Q. But are the student numbers still the same at both

19 facilities?

20 A. Right now?

21 Q. Correct.

22 A. No, it isn't.

23 Q. And how have they changed?

24 A. We just haven't had the call for students.

25 Q. About how many students are at Mountain Park right now?

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1 A. About 40 something.

2 Q. And how about Palm Lane?

3 A. Palm Lane has 19.

4 Q. Who owns the land that Palm Lane sits on?

5 A. The land is in my name.

6 Q. Who obtains the -- of this $1.5 million, can you tell

7 us where this money goes?

8 A. Oh, yes, sir, it goes to pay bills and build buildings,

9 pay salaries.

10 Q. Salaries?

11 A. Yes, sir.

12 Q. Who is on salary?

13 A. All of our staff.

14 Q. Can you tell us who they are?

15 A. There's myself and Brother Wills, Brother and

16 Mrs. Gerhardt, Brother Bo and Julie Gerhardt, Ms. Goodman,

17 Brother O'Brient and Ms. O'Brient, Brother Kennedy and

18 Mrs. Kennedy, Andrea Hill, Monica McCombs. Let me think a

19 minute. Sandra Herman, Robin Baldwin. Have several outside

20 staff that work just on the buildings. Mitchell, I'm not

21 sure what his last name is. Billy Fox. We have several

22 cooks that come in every day, Sue Harmon, Barbara -- I can't

23 think of her name right now. Amber "Stoflus". We have

24 Meagan O'Brient is called a junior staff.

25 Q. What is a junior staff?

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1 A. Junior staff is one that is still in school but wants

2 to be a worker, so we give her some duties and pay her a

3 little bit of money.

4 Q. Okay. How much does a junior staff worker typically

5 get?

6 MR. BRIGGS: Objection, Your Honor, may we approach?

7 (The following proceedings were held at the bench

8 and outside the hearing of the jury:)

9 THE COURT: I'll sustain the objection. You're

10 going way beyond who would be the employer. Let's stay on

11 this. You know, how much a junior person makes, please.

12 MR. STILLEY: Well, let me explain myself lest you

13 think I didn't have any reason to go there. Last I heard,

14 they were paying $300 a month, which would indicate that they

15 don't think they are required to comply with Fair Labor

16 Standards. And I'm going to ask to see if they consider

17 themselves, that they are required to pay minimum wage.

18 MR. BRIGGS: May I respond, Your Honor?

19 MR. STILLEY: If he wants to object and then the

20 Court wants to rule on that.

21 THE COURT: Wait a minute. You want to ask who --

22 MR. STILLEY: Want to ask her if they consider

23 themselves subject to the Fair Labor Standards.

24 MR. BRIGGS: Your Honor, my response is this.

25 No. 1, you ruled on this last September 23rd when we had the