Motion for Summary Judgment by Kanawha Stone containing the deposition and resume of Mark Halburn

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IN THE CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGI~,: ~
%s:.. .-()DOLORES HALBURN and~ -;S.
~ ~
MARK HALBURN, -- N
t ~Plaintiffs, ~
v.
CITY OF HURRICANE, WEST VIRGINIA,
a municipal corporation, BEN NEWHOUSE,
individually and in his capacity as City Manager
for the City of Hurricane, CLEVELAND
CONSTRUCTION, INC. dba Cleveland
Construction, Inc. Of Nevada, and KANAWHA
STONE COMPANY, INC.,
Defendants.
Civil Action No. 07-C-298
DEFENDANT, KANAWHA STONE COMPANY, INC.'S,
MOTION FOR PARTIAL SUMMARY JUDGMENT
NOW COMES the Defendant, Kanawha Stone Company, Inc. ("Kanawha Stone"), by
counsel, Patrick T. White and Huddleston Bolen LLP, and moves this Court to grant it partial
summary judgment against the Plaintiffs pursuant to Rule 56 of the West Virginia Rules of Civil
Procedure. Because the record evidence clearly indicates that the Plaintiffs' property value has
increased, there is no genuine issue of material fact concerning their claim for diminution of
property value. Consequently, this Court should grant Kanawha Stone summary judgment on
the Plaintiffs' loss of property value claim. Furthermore, because discovery concerning the
Plaintiffs' nuisance claims is ongoing, Kanawha Stone reserves its right to file a Motion for
Summary Judgment on the same at the completion of said discovery.
The Plaintiffs initiated the above-styled civil action against Kanawha Stone asserting a
private nuisance claim. The Plaintiffs claim that they were exposed to excessive light, smoke,
dust, and noise from the construction of a Wal-Mart in Putnam County. They allege that they
{C0074483I} 10f7
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suffered annoyance, inconvenience, mental anguish, diminution of their capacity to enjoy their
real estate, and diminution ofthe value oftheir real estate.
Although the Plaintiffs claim that the Defendant's activities devalued their real estate, the
record evidence in this case indicates exactly the opposite. Mark Halburn testified at his
deposition that the value of the subject property has actually increased. See deposition of Mark
Halburn at 118, a copy a/which is attached hereto as Exhibit A.
Discovery on the reasonableness of Kanawha Stone's activities is ongoing, as IS
discovery concerning the Plaintiffs' allegations of annoyance, inconvenience, mental anguish,
and diminution of their capacity to enjoy their real estate. By Agreed Order, both Plaintiffs will
undergo an independent psychological examination on September 11, 2008.
Law and Argument
Rule 56(c) of the West Virginia Rules of Civil Procedures provides, in pertinent part, as
follows:
The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.
W. Va. R. Civ. P. 56(c). In interpreting Rule 56, the Supreme Court of Appeals of West Virginia
has held that "summary judgment is proper only if, in the context of the motion and any
opposition to it, no genuine issue of material fact exists and the movant demonstrates entitlement
to judgment as a matter of law." Syl. Pt. 2, Gentry v. Mangum, 466 S.E.2d 171 (W. Va. 1995).
Furthermore, the Court has explained that "a party who moves for summary judgment has the
burden of showing that there is no genuine issue of fact and any doubt as to the existence of such
issue is resolved against the movant for such judgment." Syl. Pt. 6, Aetna Cas. & Surety Co. v.
{C0074483.1} 20f7

Federal Ins. Co. of New York, 133 S.E.2d 770 (W. Va. 1963). Nevertheless, "the party opposing
summary judgment must satisfy the burden of proof by offering more than a mere 'scintilla of
evidence,' and must produce evidence sufficient for a reasonable jury to find in a nonmoving
party's favor. " Painter v. Peavy, 451 S.E.2d 755,758-59 CW. Va. 1994).
A. The Plaintiffs' alleged nuisance injuries are not permanent in nature, but
rather temporary, and accordingly, they may not recover damages for
diminution in the value of their real estate as a matter of law.
The Plaintiffs are unable to recover diminution in property value, as a matter of law,
because their alleged nuisance is temporary in nature, as opposed to permanent. When a
nuisance is temporary in nature, a plaintiff may only recover for the cost of repairing his
property, expenses directly related to the injury, and loss of use or rent. West v. National Mines
Qm:h, 336 S.E.2d 190, 196 (W. Va. 1985). Additionally, a property owner may recover
annoyance and inconvenience caused by the temporary nuisance. Id. However, where a
nuisance is temporary, the plaintiff may not recover for loss of diminution in property value and
"evidence of the difference between the market value of the property immediately before and
immediately after it was injured is inadmissible." Ortesta v. Romano Bros., 73 S.E.2d 622, 631
CW. Va. 1952).
The Plaintiffs' assert a temporary nuisance claim because the nuisance they allege has
ceased. In State ex reI. Smith v. Kermit Lumber & Pressure Treating Co., in an attempt to
determine the proper statute of limitation period, the Supreme Court of Appeals of West Virginia
discussed the differences between a temporary and permanent nuisance claim. 488 S.E.2d 901
CW. Va. 1997). The COUli observed:
It is said that a nuisance is temporary or continuing where it is remediable,
removable, or abatable, or if abatement is reasonably and practicably possible, or,
according to some cases, where it is abatable at a reasonable cost, or by the
expenditure of labor or money, by the defendant, or by legal process at the
{C0074483, I} 30f7

instance of the injured party, against the will of the person creating it. On the
other hand, a nuisance is permanent if abatement is impracticable or impossible.
Injuries to land are incapable of repair and thus permanent in nature when things
attached to the land, such as timber, trees, soil, and buildings, are removed or
destroyed.
Kermit Lumber, 488 S.E.2d at 924 n.26. Elsewhere in the same decision, the Court noted that
the distinction between a temporary and permanent nuisance depends on "whether the nuisance
may be discontinued or abated." Id. at 924 (quoting Arcade Water District v. United States, 940
F.2d 1265 (9th Cir. 1991).). Accordingly, whether a nuisance can be terminated is
determinative of whether it is permanent or temporary in nature.
The Plaintiffs have asserted that Kanawha Stone's activities concerning the construction
of the Putnam County Wal-Mart were a nuisance. Specifically, the Plaintiffs alleged that the
Kanawha Stone's activities caused excessive noise, smoke, dust, and light. See Complaint.
Because Kanawha Stone's activities on the project are complete, it is no longer working in the
area and it is no longer doing or causing any of the activities the Plaintiffs claim were a nuisance.
Accordingly, the Plaintiffs' alleged nuisance was temporary because not only was it "remediable,
removable, or abatable," but it has actually ceased. Thus, the Plaintiffs have asserted a
temporary nuisance claim, which precludes them from recovering damages for diminution in
their property. Consequently, this Court should grant Kanawha Stone summary judgment.
B. All evidence indicates that the Plaintiffs' property increased in value, which
precludes any recovery for diminution in the value of their real estate.
The Plaintiffs cannot recover for diminution of property value because their property has
actually increased in value. Ms. Halburn and her mother purchased the subject property in 1992
for $40,000. See Deposition of Dolores Halburn at 31, a copy of which is attached hereto as
Exhibit B. Pursuant to several refinancings and presumably corresponding appraisals, the
Plaintiffs currently have a mortgage on the property for $115,000. Id. at 32. They have also
{C0074483.1} 40f7

received a purchase offer for $160,000, they did not accept. rd. at 46. Additional evidence
concerning the increase in their property value comes from local realtor, David Bledsoe. See
Depo. of M. Halburn at 107; Plaintiffs' discovery answers, the relevant portion of which is
attached hereto as Exhibit C). He told the Plaintiffs that their house is worth several hundred
thousand dollars more as commercial property. Mr. Halburn testified:
Q: What do you think the value of the house is?
* * *
A: We have been told that it's worth anywhere between, you know, 300 and
400,000 as commercial property; however, we've never had an actual
offer for commercial property.
Q: And who, who's told you this?
A: Mike Hall, Dave Bledsoe.
See Depo. ofM. Halburn at 118. Clearly, the Plaintiffs' property value has increased over time,
and it increased dramatically after the Wal-Mart was built.
The Plaintiffs have no evidence that their property decreased in value. They have
received offers on their property for far more than they paid for it and for more than they owe on
it. Further, Plaintiffs admit that the property is worth between $300,000 and $400,000 as
commercial property. They have produced absolutely no evidence indicating that their property
value has decreased. Therefore, because the evidence indicates that the Plaintiffs' property value
has increased and they have failed to produce evidence otherwise, this Court should grant
Kanawha Stone summary judgment on the Plaintiffs' diminution in property value claim.
c.
{C0074483.1}
Kanawha Stone reserves the right to file a Motion for Summary Judgment
on the Plaintiffs' nuisance claims because discovery on these claims is
ongoing.
50f7

A private nuisance cause of action is judged by the reasonable man standard. See Carter
v. Monsanto Co., 575 S.E.2d, 342 (W. Va. 2002). While Kanawha Stone believes that the
existing evidence in this case - such as the Plaintiffs blog, news reports of the Plaintiff Mark
Halburn's arrests, and the Plaintiffs' depositions - sufficiently indicates that the Halburns are not
reasonable people and that their complaints cannot be taken as those made by reasonable people,
the independent psychological examination the Plaintiffs will undergo in September should
conclusively prove their unreasonableness.
After the independent psychological examination results are received, this Defendant
reserves the right to supplement its Motion for Summary Judgment in regard to the Plaintiffs'
nuisance claims and the alleged damages arising therefrom.
Mary H. Sanders, Esquire (WVSB #3084)
Patrick T. White, Esquire (WVSB #9992)
HUDDLESTON BOLEN LLP
707 Virginia Street East, Suite 1300
P.O. Box 3786
Charleston, WV 25337
(304) 344-9869
{C0074483.1}
KANAWHA STONE COMPANY, INC.
By counsel
60f7

EXHIBIT A
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VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN,
IN THE CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGINIA
DOLORES HALBURN and
MARK HARLBURN,
plaintiffs,
vs.
CITY OF HURRICANE, WEST VIRGINIA,
a municipal corporation, BEN NEWHOUSE,
individually and in his capacity as
INDEX No.: 07-C-298
City Manager for the City of Hurricane,
Cleveland Construction, Inc., dba Cleveland
Construction, Inc. Of Nevada, and Kanawha
Stone Company, Inc.,
Defendants.
______________________________________________1
Videotaped Deposition of MARK VANCE HALBURN ,
held on July 23, 2008, at the Law Offices of Huddleston
Bolen, LLP, 707 Virginia Street, East, Suite 1300,
Charleston, West Virginia, commencing at 1:15 p.m.,
before Kathryn S. Little, Court Reporter and Notary
Public in and ~or the State of West Virginia.
JULY 23, 2008
Page 1
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN, JULY 23, 2008
Page 2
1 1
2 APPEARANCES: 2
3
3
On behalf of the Plaintiffs:
4 LAW OFFICES OF MICHAEL T. CLIFFORD
4
By: Michael T. Clifford, Esquire 5
5 By: Alexandria Solomon, Esquire 6
Suite 300 7
6 The Union Building
8
723 Kanawha Boulevard, East
7 Charleston, WV 25301 9
304-720-7660 10
8 11
9 On behalf of Kanawha Stone Company, Inc.: 12
10 HUDDLESTON BOLEN, LLP
13
11 By: Mary H. Sanders, Esquire
12 By: Patrick White, Esquire 14
13 707 Virginia Street, East Suite 1300 15
14 P.O. Box 3786 16
15 Charleston, WV 25337-3786 17
16 304-344-9869
18
17
18 19
19 -" 20
20 21
21 22
22
23
23
24 24
25 25
Page 3
1 1
2 APPEARANCES (CONTD.):
23
On behalfof City of Hunicane, 3
4 West Virginia, and Ben Newhouse: 4
PULLIN, FOWLER & FLANAGAN, PLLC
55 By: James A. Muldoon, Esquire
901 Quanier Street 6
6 Charleston, WV 25301 7
304-344-0I00
87
8 On behalfofCleveland Construction, Inc.: 9
STEPTOE & JOHNSON, PLLC 109 By: Paul A. Konstanty, Esquire
Chase Tower, Eighth Floor 11
10 P.O. Box 1588 12
Charleston, WV 25326-1588
1311 304-353-8170
12 14
ALSO PRESENT: 15
13 Dolores Jean Halbum
16Bette Damron, The Travelers Companies
14 Todd Bergstrom, summer clerk 17
15 Donald K. Garrett, Jr., videographer 18
16
1917
18 20
19 21
20
2221
22 23
23 24
24
2525
VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN
JULY 23, 2008
VIDEOGRAPHER: The videotape recording
has commenced and we are now on the record.
Today is July 23rd, 2008, and the time is
approximately 1: 15 p.m.
My name is Garrett Reporting Service,
and I'm a legal, a certified legal video
specialist with Accurate Reporting, Court
Reporting, Incorporated, whose address is 26
-- 24630 Sawmill [sic] Boulevard, Suite 401,
in Punta Gorda, Florida, ZIP code 33983.
This is the deposition of Mark
Halbum in the matter of Halbum, Dolores and
Mark, versus Kanawha Stone Company,
Incorporated. Case No. 07-C-298. Pending in
Circuit Court of Putnam County, West
Virginia.
This deposition, deposition is being
taken at Huddleston Bolen, 707 Virginia
Street East, Suite 1300, Charleston, West
Virginia. The court reporter is Kathy
Little.
Will counsel please identify yourself
Page 5
for the record stating your name, address and
whom you represent.
MR. CLIFFORD: Mike Clifford, 723
Kanawha Boulevard, East, Suite 300,
Charleston, 25301, for the plaintiffs.
MS. SOLOMON: Alexandria Solomon.
Same address as Mr. Clifford, representing
the plaintiff.
MS. SANDERS: Mary Sanders
representing Kanawha Stone.
MR. MULDOON: Jim Muldoon on behalf
of the City of Hurricane and Ben Newhouse.
MR. KONSTANTY: Paul Konstanty,
Steptoe & Johnson, on behalf of Cleveland
Construction.
VIDEOGRAPHER: The Notary public and
court reporter will stenographically record
the testimony today. And at this time will
the court reporter please swear the witness.
THEREUPON,
MARK VANCE HALBURN,
Being first duly sworn testifies as follows:
VIDEOGRAPHER: Thank you.
Counsel, you may proceed.
2 (Pages 2 to 5)
f011 b12a-1cae-4351-a011-04e1 c42b5e3c

Page 6 Page 8
1 1
2 EXAMINATION
3 BY-MS.SANDERS:
4 Q. Mr. Halburn, Mary Sanders. I
5 represent Kanawha Stone Company.
6 You've given a deposition before,
7 haven't you?
8 A. Yes.
9 Q. How many times?
lOA. I believe once or twice.
11 Q. Okay. What was the first time?
12 A. It was regarding an accident probably
13 about 15 years ago in Southern California, an
14 automobile accident.
15 Q. Were you a party to that?
16 A. Yes. I was the plaintiff.
17 Q. And what county?
18 A. I was the injured victim.
19 Los Angeles.
20 Q. Los Angeles County?
21 A. Um-hrnm.
22 Q. And what year was that?
23 A. I'm going to guess about '92 or '93.
24 It's been many years ago.
25 Q. Did that case go to trial?
Page 7
1
2 A. No, it did not.
3 Q. Was it settled?
4 A. Yes, it was.
5 Q. Who was your attorney?
6 A. Rolf Troy.
7 Q. And do you know who the attorney was
8 opposing you?
9 A. I do not.
10 Q. Do you know the name of the
11 defendant?
12 A. I don't recall. I believe the
1 3 attorney represented Reliant Insurance, but
14 it's been many years ago.
15 Q. Okay. When was the second time you
16 gave a deposition?
1 7 A. We had a house fire probably about
1 8 three or four years ago where someone set a
19 wood rack on the front porch of our home on
2 0 fire, damaged the home, and I gave a
21 deposition with Nationwide Insurance. I'm
22 not even sure if it was a deposition with a
23 formal attorney or just a formal statement
2 4 that was recorded. I don't recall counsel
25 being there now that I think about it, just
2 a claims agent.
3 Q. SO was there a lawsuit filed?
4 A. I don't think so. I don't think --
5 THE DEPONENT: Do you recall?
6 Q. Just a claim?
7 A. No, there was no lawsuit filed.
8 Q. A claim with your -- your
9 homeowner's was Nationwide?
lOA. Correct.
11 Q. And how much damage was done to your
12 home?
13 A. I would say less than 10,000. I
14 don't recall the direct amounts. The siding
15 was damaged, and because they couldn't match
16 it they had to -- they ended up re-siding,
1 7 redoing the siding on the entire home. I
18 think the claim came to less than 10,000.
19 Q. And do you know who started the
20 fire?
2 1 A. We suspect, but we've never been
22 able to prove it.
23 Q. Okay. Was there a police report
24 filed?
25 A. Yes.
Page 9
1
2 Q. With the Putnam County Sheriff's
3 Department?
4 A. No, ma'am.
5 Q. Who with?
6 A. Hurricane Police Department.
7 Q. Okay. All right. Well, just to,
8 just to remind you, and Mike's probably told
9 you also, but a deposition, the court
10 reporter takes down everything that's said,
11 all the questions, all your responses, so
12 it's important for you to respond verbally
13 rather than a nod of the head.
14 A. Right.
15 Q. If you don't understand anything I'm
16 asking, please tell me so I can rephrase my
17 question, because if you answer it, I'm going
18 to assume you understood the question. Okay?
19 A. Okay.
20 Q. If you want to take a break at any
21 time, just speak up and we can do that.
22 A. Okay.
23 Q. Give me your age, please.
24 A. 46.
25 Q. And have you only been married once?
3 (Pages 6 to 9)
f011 b12a·1 cae·4351·a011·04e1 c42b5e3c

page 10 Page 12 t
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1 1 ~
2 A. No. 2 Q. And what is that business? ~
3 Q. Twice? 3 A. They are a -- they do in-bound, ~
~
4 A. Yes. 4 well, our division of it does in-bound calls i
5 Q. And when was your first marriage? 5 for XM Radio and Gevalia Coffee. I work for •
6 A. 1995. 6 the XM portion of the building. ~
7 Q. Was that in the state of California? 7 Q. SO Sitel is a contractor to XM ~
8 A. No, it was not. 8 Radio? ~'J
9 Q. Where was it? 9 A. I believe that's how it would be r.
lOA. It was in Las Vegas, Nevada. 1 0 legally described. .~
11 Q. Okay. What was your first wife's 11 Q, And you work with advertising? i
12 name? 12 A. No, I work with in-bound customer 1fi
13 A. Her name is Joanne Morgan. 13 service setting up new accounts, activating ~
14 Q. And when were you divorced? 14 radios, minor troubleshooting. ~
15 A. On November of1997. 15 Q.IsyourofficeinHuntington? i16 Q. Did you have any children in that 16 A. The call center is in Huntington, ~
1 7 marriage? 1 7 yes. ~
18 A. She had children, I did not adopt 18 Q. Is that where you work or -- ~
19 them. I took care ofthem many times, but 19 A. That's where I work. I don't have I
20 they were not my biological children. 20 a physical office. I work in a room with ~
21 Q. Okay. You were born in California? 21 lots of cubicles. ~
22 A. So I'm told. 22 Q. Okay. And how many hours a week do :1
23 Q. Okay. Which county? 23 you do that? ~
24 A. Los Angeles. 24 A. 40 to 45 normally. I,
25 ". And "ou went to school in -- all 25 Q. Who is "our su"'ervisor over there? 11~__~~~'~~I'~~~==~~=-______~~~~~~~I'~~P~'==~~~____-4'~
Page 11 Page 13 ~
1
2 your schooling was in California?
3 A. No.
4 Q. Okay. Tell me where else besides
5 California.
6 A. Well, I have taken a Cisco class at
7 WVU Tech at the Charleston Five Point Center.
8 I started taking another class at Marshall.
9 I took a computer assembly repair class at
10 the Putnam Vo-Tech center, and recently took
11 a medical office assIstant training out at
12 Goodwill in connection with Marshall
13 University.
14 Q. Okay. Are you employed right now?
15 A. I am.
16 Q. What is your employment?
1 7 A. I -- I'm off for the summer as a
1 8 substitute teacher with Kanawha County
19 Schools, and I work for Sitel in Huntington.
20 Q. What is it?
21 A. Sitel.
22 Q. How do you spell that?
2 3 A. Sitel is spelled S-i-t-e-l.
24 Q. In Huntington?
25 A. Yes.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A. I have a number of them. Stan
Coniffis my direct. We don't work the same
hours, so I report to other people when he's
not there.
Q. And you're a substitute teacher for
Kanawha County or Putnam County?
A. Correct.
Q. Kanawha County?
A. Kanawha County, yes.
Q. How long have you been doing that?
A. I signed up in 2005. I believe it
was Mayor June.
Q. Is that the only county where you do
any teaching?
A. I recently applied at Lincoln County
and am still in the application process.
Q. SO you have a teaching -- is it a
certificate or license?
A. It's a substitute teaching permit
that renews. It just expired the end of
June. The application is in process, for
renewal is in process and should be renewed
shortly. It's about a three-year
certificate.
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4 (Pages 10 to 13)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

VIDEOTAPED DEPOSITION OF MARK VANCE HALBURN , JULY 23, 2008
Page 14 Page 16 *(,
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1 1 f1
a
2 Q. How long haye you worked at Sitel? 2 A. I didn't publish that. ~
3 A. Since April 21st of this year. 3 Q. I thought that was in the Putnam, ~
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4 Q. Where did you work before Sitel? 4 your web page?
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5 A. I've worked with Kanawha County 5 A. I asked the question. I didn't ~
6 Schools for several years, and then prior to 6 publish it, they did. ~
7 that I worked for WPD Channel 15 in Conway, 7 Q. Who published it? ~•
8 South Carolina. 8 A. I published the question, I did not ff
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9 Q. What year was that? 9 publish the statement. ~~~,
10 A. 1997. Or I mean 2007. My 10 Q. Okay. Why did you say that he, l
R
11 apologies. 11 that that's what it stood for? ~
&
12 Q. SO did you work for a company in 12 A. I didn't say that that's what it ~
13 South Carolina in 2007? 13 stood for.
~14 A. Yes, ma'am. 14 MR. CLIFFORD: I'm going to object ;~
15 Q. From -- so you moved away from West 15 to the question. It's not relevant and has .~
16 Virginia? 16 no basis in moving to relevant questions.
,
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17 A. I lived in a hotel. 17 Answer it ifyou can. ~
i18 Q. Okay. How long did you do that? 18 Q. Do you know why Judge Spaulding
19 A. About, about three months. 19 recused himself in this case?
I20 Q. Were you fired or what happened? 20 A. Yes. ~
21 A. I was fired over creative 21 Q. Why?
I22 differences. The job did not end up being 22 A. Because he objected to an editorial
23 what they said it would be when I went down 23 that I did that criticized him sentencing
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24 there, and things di~n't work out. 24 someone who threatened a deputy's life to
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25 Q. Was that a full-time job? 25 home confinement, and I felt that that was ~,1'
Page 15 Page 17 ~
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1 1 ~"»
2 A. It was, very. 2 much too light of a sentence for somebody
i3 Q. And what town was that in? 3 who threatened the life of a law enforcement b
4 A. The studios were in Conway. 4 officer. That person, by the way, bombed ~
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5 Q. Conway, South Carolina? 5 his home confinement and ended up going to
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~6 A. Right. The Myrtle BeachIFlorence 6 pnson. ~
7 market. 7 Q. Okay. And you objected to that in t!:-~
8 Q. I see from your answers to discovery 8 your on-line newsletter or where?
~9 that you've had a lot of different jobs. 9 A. In an editorial clearly labeled as
i10 How many jobs have you been fired from? 10 commentary.
11 A. I don't recall. 11 Q. Okay. U
12 Q. All right. Well, let me go through 12 A. I don't feel that our officers ~
~
13 some of them then. 13 should have their lives threatened. ~
14 Before I get to that, you, you know 14 Q. And Judge Eagloski also recused
I15 this case is pending in the Circuit Court of 15 himself. Do you know why? ,1
16 Putnam County? 16 A. Yes. Because Judge Eagloski lied to ,%
>:.,
17 A. Yes. 17 the Supreme Court after I filed a writ of !l'i
18 Q. Your case. 18 mandamus because he did not sit in hearing
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~19 And you realize both judges have 19 for a noise ordinance writ of mandamus. I
~20 recused themselves, both of the Putnam County 20 had been in contact with all of my ~.1
21 judges? 21 legislatures regarding a state noise .~
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22 A. Yes. 22 ordinance. One of them happens to be his
~23 Q. Why -- why did you publish your 23 sister. He then told the Supreme Court that i
24 opinion that Judge Spaulding's first initials 24 I was trying to intimidate him by talking to
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25 stand for, stood for on crack? 25 his sister when I had been speaking with her ~(f
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5 (Pages 14 to 17)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 18
1 1
2 and every other legislator for months prior 2
3 to that. It was a smokescreen on the part 3
4 ofJudge Eagloski. 4
5 Q. Okay. I'm trying to find your list 5
6 of employment. Do you recall when, when -- 6
7 well, let me ask you this: When did you 7
8 graduate from college, get your undergraduate 8
9 degree, your BA? 9
10 A. My BA was 1988. 10
11 Q. 1988. Did you have any employment 11
12 before graduating from college? 12
13 A. Yes. , 13
14 Q. What was that employment? 14
15 A. I worked in a couple of stereo 15
16 stores, a camera store, a couple of radio 16
17 stations. 17
18 Q. Okay. Your major in college was 18
19 what? 19
20 A. Communications. 20
21 Q. You gave -- you gave us a list of 21
22 all these employment you had. It looks like 22
23 this one is not dated, I don't think, when 23
24 you were a shuttle driver in San Diego? 24
25 A. Correct. 25
Page 19
1 1
2 Q. Is that your first job? 2
3 A. No. 3
4 Q. Okay. Do you know what years you 4
5 did that? 5
6 A. I started in 1997 to provide income, 6
7 because I was goiriii into the insurance 7
8 business on commission only, and I worked 8
9 there until I moved to West Virginia in the 9
10 year 2000 and I quit that job. 10
11 Q. Okay. How long did you work there? 11
12 A. From 1997 to 2000. April of 2000. 12
13 I don't recall what month I started in '97. 13
14 Q. Okay. And then you were a manager 14
15 at a Save-A-Lot supermarket in Spring Valley, 15
16 California. How long was that? 16
17 A. About a year. 17
18 Q. And you, you quit that job as well? 18
19 A. I quit that to start the insurance, 19
20 actually, yes. 20
21 Q. And your insurance work was as an 21
22 agent? 22
23 A. As an agent that owned a stake in 23
24 the book ofbusiness that I generated. 24
25 Q. Okay. Did you have a license for 25
;J.""""}"""~:"'~"''' i-;<~"oI#.O.'''''',Hi:!nM_fi? ~~~>I'/.;'''~.W-''''''-''=''-~WW)l.;:"~~,,,~~~, ~:iJ~t;.};.'>!.;;t=';i).>'.>'f~;(.I""",~:.,.",,;,N';'I~i;":''j:''''.:>i«;; ;.,;,,'$~".,>,•.,.:.,-,).).~,.,"{,.<
Pa.ge 20 y
•
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that? ~
A. Yes. iQ. What was your license? ~
A. An insurance license.
~
~
g
Q. Okay. With the state of California? ~
A. With the state of California. i
Q. Have you ever had a license to sell
:;;
~
:i
insurance in any other state? ~
"~
A. Yes. ~
.q
Q. Which other states? ~
A. West Virginia. ~
Q. Have you ever sold insurance in West j
Virginia? fj
~
A. Yes, ma'am.
~
~
Q. With any particular company?
IA. I worked for the Ramsey Agency which M
represented probably a couple dozen different ~
~
companies if not more. i.
~
Q. Okay. How long did you do that? )/
A. I don't -- I think it was about 13 I
months.
IQ. Why did you stop?
A. I wasn't making enough money. ~
Q. And it says you were a captain for
tPage 21 ~
,
IEast County Security Systems? I
A. In San Diego. 1
~
Q. In San Diego. And you had that job
~
for about a year as well? ~
A. Right, until the company folded. ~
~
Q. Then you were a remote operations ~
r,
manager for KECR Radio? :,1
~
A. I did the remote operations for •~
KFRB. I did work for KECR, it was all at ~
the same studio complex. i.
Q. Okay. And you weren't fired from ~w.
that job? i
A. I was fired from that job.
a
~
~Q. You were fired? Okay. ,
l
A. Yes. ~
Q. Is that the one you told me about
before? No, it's a different one. Why were
you fired from this job?
A. The station in the studio complex,
in our complex are located out in what could
be best described ranch country out in east
San Diego County with lots of brush. I did
that in the morning and sold insurance during
the day, and had concerns about the safety,
,..,,,>;,~.;,:~·":~;'~;>C~"~"'':''~~~;;>A>;,';;~·_''",,,W?>·,M',,,,,,,,,~,WI.>.-:..,;""-'........'<.W~y.f.:"","".~'''''''.).'''.v>'t-; .o:r.:' t&., /'~.~'"
6 (Pages 18 to 21)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 22
1
2 some of the safety situations, including
3 literally live rattlesnakes in the parking
4 lot and tall brush out in the area. And I
5 suggested that if they didn't cut down the
6 brush and do something about the rattlesnakes
7 that somebody could get hurt and the station
8 could bum down. They told me I was a
9 troublemaker, they fired me, and in 2003
10 their station burned down in a brush fire,
11 part of it.
12 Q. Okay. Had you --
13 A. I can provide photos of that, if
14 you'd like them.
15 Q. No, I don't, I don't need any
16 photos.
17 A. It was almost a textbook of what I
18 told them would happen.
19 Q. Okay. So the whole time you were
20 working there youhad a contentious
21 relationship with the management?
22 A. No.
23 Q. Just when you started making
24 complaints?
25 A. Just when I addressed some safety
Page 23
1
2 concerns.
3 Q. Okay.
4 A. I was, in fact, promoted during the
5 time I was there. So...
6 Q. Okay. And you were there for
7 approximately a year?
8 A. About two years.
9 Q. Two years. Then you went to looks
10 like substitute teaching? No. You had a
11 substitute teaching position during all that
12 time period, too --
13 A. 1--
14 Q. -- that were we just talking about?
15 A. I substitute t,mght from 1989 to
16 1997 when I started doing the insurance and
17 took, took time away from teaching to try to
18 develop a business.
19 Q. Okay. And you were, you were not
20 fired from any teaching position as a
21 substitute teacher?
22 A. No.
23 Q. Were you ever reprimanded?
24 A. No.
25 Q. Then you worked as a limousine
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Page 24
driver for Cloud Nine Shuttle in San Diego.
Did you quit or were you fired from that
job?
A. As I stated earlier, I quit to move
to West Virginia.
Q. Okay. You moved to West Virginia in
2000?
A. Correct.
Q. What year were you married to your
current wife?
A. 1998.
Q. '98. Okay. And you were married
in the state of California?
A. No.
Q. Where were you married?
A. Scott Depot, West Virginia.
Q. Okay. Then, then during the first
couple years of your marriage you lived in
California?
A. About the first year and a half.
Q. You worked as a freelance reporter
for East County Newspapers?
A. Correct.
Q. And you weren't fired from that
position?
A. No. The company was sold.
Q. Okay. Then you were a freelance
Page 25
writer for the Lawton Companies, KGTV?
A. Right. The Lawton Company is a
temporary agency that they hired all their
freelance people through. I worked for KGTV.
KGTV at Channel 10. I was paid by the temp
agency.
Q. And what kind of writing were you
doing?
A. Television news.
Q. Then you worked in sales for
Schwan's, Schwan'S, Schwan's Finer Foods?
A. Schwan's.
Q. Schwan's?
A. The ice cream people.
Q. Were you a -- you were not a
driver, were you?
A. I was a driver.
Q. You were driving?
A. Route builder. I did a lot of
different things.
Q. All right. And you worked there for
7 (Pages 22 to 25)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

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Page 26
little less than a year?
A. Correct.
Q. Why did you leave there?
A. Because I was hired to work in
Winfield and the manager refused to fire
somebody that the district manager wanted me
to replace him with, so they had me working
out of their Beckley, their Tennessee, their
Clarksburg, their various locations. They
would literally work on the road all week
long. And I got tired ofbeing away from
my wife, and we had some nephews that we
were taking care of, and I left there
because I got tired ofbeing gone all week
long.
Q. Okay. Then the Ramsey Agency, which
you've mentioned, and you left there because
you weren't making enough money?
A. Correct.
Q. Then you worked for DLI Insurance
Agency in -- no, that was before. That was
before you worked for Ramsey?
A. That was before I moved to
California.
Page 27
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Page
Route 60 in Barboursville. And when the car
was coming up behind me, I pulled off to the
right and crossed the white line, and because
I crossed the white line and because I had a
license plate frame that partially obscured
the registration ticket, he wrote me the
ticket for both of those. Had I not pulled
over, I would have been rear-ended. But
it's apparently illegal to cross the white
line.
Q. And there was no accidents involved?
A. There was no accidents. Had I not
taken the evasive action there would have
been.
Q. Okay. So you were ticketed. There
must have been an officer right there?
A. There was a trooper several cars
back.
Q. Okay. And this was a state trooper?
A. Yes.
Q. Do you recall his name?
A. I believe it was Blankenship.
Q. And did you complain to Blankenship
about the ticket or iust his superior?
Page
8 (Pages 26 to 29)
f011 b12a-1cae-4351-a011-04e1 c42b5e3c

Page 30
1
2 MR. CLIFFORD: Just for the court
3 reporter's sake.
4 BY-MS.SANDERS:
5 Q. What was the story that you said was
6 fabricated to your employer?
7 A. I worked in sales and, for the
8 newspaper, and I did not identify myself as
9 a reporter. He said that I threatened to
10 put a story on the front page of the
11 newspaper, which, A, I didn't do, and, B, I
12 didn't have the right to do or the ability
13 to do or the authority to do.
14 Q. And that's what the sergeant told
15 someone at Lincoln Journal?
16 A. Correct.
17 Q. Who was the person at Lincoln
18 Journal who took that call?
19 A. Patty, I think her name was Patty,
20 pardon me, Robinson.
21 Q. Robinson?
22 A. She's the wife of the fOImer owner
23 and current publisher.
24 Q. And--
25 A. He's since sold the stake in the
Page 31
1
2 paper.
3 Q. And the Robinsons or the Lincoln
4 Journal fired you b'ecause of that phone call?
5 A. Correct.
6 Q. Because you had threatened to put
7 something in a newspaper about this, getting
8 this ticket?
9 A. Because the sergeant said that I
10 threatened.
11 Q. Threatened how?
12 A. To put something in the paper. I
13 never made the threat.
14 Q. And that was why they let you go?
15 A. That's why they let me go.
16 Q. Did you contest this with the, the
17 firing, with unemployment?
18 A. I don't recall contesting with
19 unemployment. I contested with Division of
20 Labor because they did not pay me all of the
21 commissions that were due me and still
22 haven't.
23 Q. Is that an ongoing issue that you
24 have with the Division of Labor or with the
25 Journal?
.,
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Page 32
A. It's been settled. I don't think it
was settled properly, but there's no formal
litigation or anything like that going, if
that's what you mean.
Q. Did you have an attorney representing
you?
A. No.
Q. Okay. Then you left -- then you
worked for about five months as a reporter,
photographer, columnist, for Point Pleasant
Register?
A. That was actually before the Journal.
Q. It was? Okay. And was that a
full-time job?
A. Yes.
Q. And were you fired from that job?
A. I was fired as was my editor. They
made a change in staff.
Q. I'm sorry, did you say you were
fired?
A. Yes.
Q. Okay. And do you know why?
A. They made a change in staff. They
fired -- I was one of several editorial
Page 33
people that were fired, including my editor.
Q. Was there any -- did you contest
that firing with any agency?
A. No, not that I recall. I'm sorry,
I contested the denial ofunemployment and
won. I did not contest the firing.
Q. Okay. So that was with the Division
of Unemployment?
A. Correct.
Q. Is that the only time you've had
denial ofunemployment benefits that you
contested or were there other times?
A. When I was in college, I was laid
off. Contested, because they denied my
unemployment because I was a full-time
student. I had worked full-time for several
years while I was a student, and I contested
and appealed that and won.
Q. Okay. Then it looks like you worked
for several months as a medical transport
driver for Fresh Air Transport?
A.
Q.
A.
Correct.
Were you fired from that job?
No. The company closed down its
9 (Pages 30 to 33)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 34
1
2 West Virginia division after two drivers
3 rolled a couple ofcars and killed people
4 and they lost their insurance. I was not
5 one of those drivers.
6 Q. Okay. Then you were a web site
7 consultant for Freedom Auto Sales?
8 A. Correct.
9 Q. Was that a contractual relationship?
10 A. It was just a freelance relationship.
11 I built a web site and taught them how to
12 operate it, and the job was done and over,.
13 once they learned how to do it themselves.
14 Q. SO it was about three, took three
15 months to develop a web site for them?
16 A. I don't recall how many months.
17 Q. Is that the only job you've had
18 where you developed a web site for a
19 company?
20 A. No. I worked for Jerry Summers who
21 ran for delegate in Kanawha County several
22 years ago. I helped him build a web site
23 during his campaign. And then with WPDE I
24 helped them redo their web site down in
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Page 36 ~
~
@
it
I
Q. Okay. So they had no news announcer ~
or morning show producer after that? ~,
A. They, they went to a live morning I
show when they changed the format and dumped I
the Bob and Sherry show, and they didn't ~
need a morning show producer. The newscasts ~x
were being done by Kenny Bass and they were ~
sent in by computer, and the live morning ij5
announcer that they had to do that show then ~
took over those duties. He just recently 1
le,c,t. U11 ~
Q. Was that a two year, two year job? ~
Correct. il
~: 2003 to 2005? !
A. It was late 2003, early 2005, so it iwas under two years, but I don't know the ~
exact months. ~
'~~
Q. That's a 40 hour per weekjob during ij
that time period? ~,~,
A. It ended up being close to 40 hours ~
a week. It was not a, not a full-time j'
staff position. It was considered a Ipart-time position where I worked pretty much ~
full-time hours. ~
l--1----------~--~~~~-------------------r-l--~~~~~~~------------------p-a-g-e--3-7~I
2 Q. Okay. Then you were a guest talk 2 Q. But you had no benefits? ~"",
25 South Carolina last year. 25
Page 35
3 show host for Tri-State Viewpoint? 3 A. (Shakes head.) :1
~
4 A. Correct. 4 Q. No? ~
Q. Was that on a particular program? 5 A. No. ~5
6
7
8
9
A. It was -- Jean Dean has a regular 6 Q. Okay. ~
program, and when she went on vacation she 7 A. I'm sorry. 1
invited a number of"people to work a day 8 Q. Then you worked for Cingular? ~
here and a day there, and I was one of the 9 A. Correct. ~
10 people that she had fill in for her. 10 Q. Customer service, technical support. I
11 Q. Okay. Something in Hamlin, I can't 11 And you worked out of Grayson, Kentucky? ~
12 tell what it was. 12 A. Correct. :
~
13 A. Lincoln Journal. 13 Q. SO you only worked there for about t
~~ ~: n:~07:~~:U~;~~oi:~~::~~again? ~~ f~.r~o~t~~orkedthere from May of2005 ~
16 Q. Did you work there twice? 16 to January of 2007. ~
1 7 A. No. 1 7 Q. Okay. So that's the job you took ~
18 Q. All right. Then you worked for LM 18 after the news announcer morning show? i,"
19 Communications as a public affairs director 19 A. Correct. ~
20 and news announcer and morning show producer? 20 Q. And that was also a full-time job? j
21 A. Correct. 21 A. That was a full-time job with i
22 Q. And were you fired from that job? 22 benefits. ~
23 A. I was laid off. 23 Q. And why did you leave that? j
24 Q. Why were you laid off, do you know? 24 A. I got tired of driving to Grayson. ~
25 A. They eliminated the position. 25 Q. Okay. So that job was, you would ~
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10 (Pages 34 to 37)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 38 Page
1 1
2 leave early in the morning and get back late 2 A. Correct.
3 at night? What were your hours? 3 Q. And were you fired or why did you
4 A. Roughly 2 to 11, 1 to 11 for the 4 leave that?
5 most part, occasionally 9 to 5. It was 5 A. No, I quit.
6 pretty much a swing shift job. 6 Q. A lot of these jobs the time periods
7 Q. 2 in the afternoon until 11 at 7 overlap. ~
8 night? 8 A. Right. 1
9 A. Correct. 9 Q. SO -- ~
10 Q. And you worked for PRC? I'm not lOA. I'm a busy person. ~q
11 sure what that is. Something with Direct 1112 Q. SO you've never had two full-time :;;.~
12 TV? jobs at once, have you? ~
13 A. It's a company that used to do 13 A. Not that I recall. ,I
14 customer service for Direct TV until very 14 Q. SO typically you have the variety of !15 recently they sold their Huntington division, 15 freelance and short-term -- ,J{I}
16 and I left that job to take the job in 16 A. Correct. ;
1 7 South Carolina. I quit that job. 1 7 Q. -- employment? ~
'.8 Q. Okay. And then you worked some for 18 And Putnam Live is still being ~
19 Charleston Daily Mail? 19 published? I
2 0 A. I freelanced for the Charleston Daily 2 0 A. Correct. ~
2 1 Mail. 21 Q. Do you still work for internet ~
22 Q. And that position or freelance 22 content manager for WPEE? i
23 position -- or you jll,st covered the city 23 A. No. That was the television station ~
24 council meetings, that's it? 24 in Conway. j
1_2_5____~A~.~F~or~S~0~u~t=h_-_-~L(e=s~,th=a~t'~s~it~.______________~2~5----Q~.~C~o=n~w~a~~~,o=ka~~~..____________________~!
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Q. Okay. And then they eliminated
covering?
A. They eliminated it for about a year
or so, and then recently put another
freelancer in there.
Q. Okay. Then also you were a district
manager for, I'm not sure what this is,
Dealer Specialties?
A. Correct.
Q. What did they do?
A. We did -- we took pictures of used
Page 39
cars, put them on a national web site called
GetAuto.com and created window stickers that
had the features and things on a used car
much like you have on a new car so that
salespeople and customers can look at the
sticker and find out;if it has power
steering or, you know, the sun roof is
obvious, or fingertip audio or whatever the
feature is. Very similar to what our, what
are on new cars. They fill the gap because
it's a way of providing the same information
for used car customers.
Q. Is that in West Virginia?
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Have you had any other jobs that
we've left out?
A. No.
Q. That's pretty much the list that you
gave us.
A. In college I worked various jobs.
Q. Okay. So you -- the home you live
in in Hurricane is, is that in the city
limits or is it outside?
A. It's in the city limits.
Q. It is?
Page
That home is owned by your wife and
her mother?
A. Correct.
Q. Is your wife's mother still living?
A. Yes.
Q. Does she live with you?
A. Sometimes.
Q. How much of the time does she live
with you?
THE DEPONENT: What would you say?
A. 30 percent, 50 percent. She also
rents a home in Charleston and goes between
the two.
41 i
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11 (Pages 38 to 41)
f011 b12a·1 cae·4351·a011·04e1 c42b5e3c

Page
1
2 Q. And has that been true since you've
3 been living there that she's not there all
4 the time?
5 A. No. She -- when we first got
6 married, we moved Dolores to California, she
7 lived there the entire time. She lived
8 there before Dolores and I got married.
9 They bought the home -- pardon me -- they
10 bought the home together. When we got
11 married, we movedDolores -- there was a
12 couple ofmonths before we could find Dolores
13 a job out west, so I was there and she was
14 here. We moved Dolores out there. My
15 mother-in-law and her sister lived in the
16 home, then I, we came back here and we were
17 here I'm guessing six months before they then
18 rented a home in Charleston. And since then
19 she goes, she goes back and forth between
20 the two.
21 Q. Okay.
22 A. The sister lives in Charleston full
23 time.
24 Q. It's the -- the sister is your
42
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Page 44 .~
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Q. Okay. The property, is it in a, is ~
it zoned in a commercial, commercially zoned i~
or do they have zoning in Hurricane? ~
A. They have zoning in Hurricane, and ~
I've been told by people at city hall, one I
person has told me that it's zoned ~
commercial, another person says that it's ~
zoned residential. I believe that it's, that *
it's zoned commercial. 1
Q. And ever since you've lived there ~
there's been a crane sort of garage or ;,
r~tal~~::,:.ervicc right next door? IQ. What does that business next door to ~
you do? 1
~A. Make a lot of noise and store :;,
equipment, and I believe they do some sort K
of construction work. What exactly they do I
I don't know. ~
Q. Have you ever made complaints about ~
that business? I
A. Yes. They're very rather noisy. ~
The property is extremely sloppy, lots of ~
tall weeds rusty equipment, dilapidated g
I----~--~~~~~~-----------------+~--~~~~~~~~~~~~=-----~i
Page 45 ,
25 mother-in-law's sister? 25
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Page 43
1 ~
~~;
A. Correct. 2 equipment. :~
~Q, Okay. And what is her name? 3 Q. Do you know what the name of that ,;
A. Donna Smith. 4 business is? ~
Q. She lives with your mother-in-law in 5 A. I believe it's Kanawha Valley ~
Charleston and at xour house? 6 Construction. ~
A. In Charleston'.' 7 Q. Do you recall when you made the (j
Q. Just in Charleston? 8 first complaint about that business? i)
A. During the time that we were in 9 A. Probably in 2000. iCalifornia, they both lived in the house in 10 Q. Right when you moved in? N
Hurricane. 11 A. It would have been shortly after. i
Q. All right. So since you moved in 12 Q. And the complaint was over the noise ~.':".;..
the house in the year 2000, sometime in the 13 level from the business? :;
~
year 2000? 14 A. Correct. ~
A. April of 2000. 15 Q. Is the business -- what time does it ~
Q. April of 2000. And that's been your 16 open and start making noise? I
~l
only residence since then except for 1 7 A. Sometimes as early as 5 or 6 in the l
temporary resident maybe in South Carolina? 18 morning. ~
A. Correct. I was never a resident of 19 Q. And is that true today as well? ~
South Carolina. I was -- the company had a 20 A. Today they probably start at around N
a
room for me at the Holiday Inn in Myrtle 21 7. ~
Beach on the Waccamaw River, and I lived 22 Q. And -- I
there, but I never established residency or 23 A. They weren't very noisy t o d a y . i
surrendered my West Virginia driver's license 24 Q. What time do they stop making noise? l!
or anything like that. 25 A. 5, 6, 7:00 at night. Sometimes :,
",b<.~,·j;·.J· '.'i }""",.""y,,,,,..,.{Jt'f~'I«"'W,·M'(,,.}(,.o;.<,,,,,:,M"'''''''·~'~ ·<-'''''''·'W>4-_~I~,~""'',,",,,."»>~'::'';'I,Q''''''~·~''''·•.,"I>l.·.~..~,..,.,,",.·1"""",_>~.-r.'''{i>:·",ii·''','.i'·.'~',;.t';.~A~!''''''"A ,'. ,p;,,,-v.v.,,I:i> Ni.·,-,..iY""",~,,';""''''k.t'~''~~~i;>:if..,.~~n=>'I<>~Il/·~l'''W''''''')'~ri~'''· ~':..""""""'Ai:...,;;,<~ ~.""b:i'J"~;lA~""",,..II~"'''''~
12 (Pages 42 to 45)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

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there's been people that are later than that.
Q. Who have you--
A. They're usually done by sunset.
Q. Who have you complained to about
Kanawha Valley Construction?
A. The police department.
Q. Hurricane Police Department?
A. Yes, ma'am.
Q. Any other complaints?
Page 46
A. The city manager, the mayor, former
mayor.
Q. City manager and the mayor. Anybody
else?
A. Not that I recall. There was a
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Page 48 )
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""~
the name of Ed Norris. He was no longer an f,
k
employee, he retired. ~
Q. Okay. ~
A. And Ed came out with two or three ~
"J
police officers, I believe, and ironically ~
the health inspector. I don't know why she ~
was there. I think she was at city hall, ~
~
and they all just ran down there together. .~
KelTI Haden or something. I'm not sure what ~
her last name is. She still works for the ~
1
health department. ;
"Q. And that was about what year? ~
*
A. About five years ago, I believe. I t l
was right -- okay. The last municipal icity councilman that responded to a letter election was 2007, and it was right around ~
that I wrote to the Hurricane Breeze, and I 17 the 2003. So it would have been about five I
wrote back to his response, and it was 18 years ago, 2003 municipal election. &
shortly after that that the, around that time 19 Q. Okay. Have you made any complaints I~
that the wood rack was set on fire in the 2 0 to anyone about Kanawha Valley Construction
front of our house. And also it was 21 since 2003? ~
actually the day after Channel 3 did a 2 2 A. Yes. II
report about their noise that I was featured 23 Q. And to the same people or police? ~
24 on on the 11:00 news. The next morning the 24 A. To the police department. They were ~
1_2_5__~w~0~0~d~r~a~c~k~w~a~s~s~e~t.~0~n~fi=r~e~a~nd~th=e~ow~n~er~0~f~____~2~5__~a=c=tu=a=1l~y,~"th=e~pc,o~l=ic~e~-_-~th=e~cl~ity~~~o~n=e~__.______~~
Page 47 Page 49 ~
~
1 1 ~
2 the company said that I set the wood rack on 2 point had, had modified its noise ordinance ~
3 fire, but we had e-mail transcripts from AOL 3 with stated decibel levels, and they violated ~
4 that showed that I was in the home sending 4 those. I believe at the time he was a ti,
5 and receiving e-mail at the time that he 5 lieutenant, now he's a captain. Wingo cited i
6 said that I was out in the front yard. 6 them for it, and the police chief at the 1
7 Q. What is the name of the owner, or 7 time, Mark Baker, tore up the citation and 1
8 of -- 8 basically dismissed it. I didn't think a I
9 A. I think it's Dale Sweat. I'm not 9 police chief in this state had the authority ~
10 sure what his last name is. He was the one 10 to do that, but that's what, that's what ~~
11 that called -- instead of calling the fire 11 Mr., or Captain Wingo told me happened after i
12 department he called the city inspector, 12 the citation. ~
13 which we still find interesting. Most people 13 Q. That citation was issued after 2003? ~
14 call the fire department when there's a fire. 14 A. I believe so. ~,"j
15 And Dolores and I were home in the house, 15 Q. In response to your complaint that II
~16 and they pounded on our door and said, Hey, 16 followed the fire? 3
17 the front of your house is on fire. Dolores 17 A. No. The complaint was about their ~
18 had come home sick from work and I was 18 noise. It had nothing to do with the fire. i
19 upstairs sending and, sending and receiving 19 Q. Right. But you complain about the ~
20 e-mail. 20 noise again after, after the fire? I21 Q. SO the guy that owns the crane 21 A. Correct. ~
22 service is the one that called the -- 22 Q. Right. And that was -- is that the 1
23 A. He called the city -- 23 last time you had any complaints about this i24 Q. -- city inspector about the fire? 24 property next to you? ,
~25 A. The retired city inspector, a guy by 25 A. I've complained to the city numerous "
·"~·:"",/.:·~",~·"",·...,-""')..J.:·:·..·;*"",,,,u. ,I....,.:.. "", ,~W"'N.;'" "~'-;"Ot.......,. (.(·t ~~":=PN"""'-"",,~"'" fI~"<!;"'':,.,."~?W ~,><""~;':J.,' ...." ......"""'''..I·:O<'.·,;~.•1~ ",,,,,,.,~.'k;~'<IIi"",,v,...,,'.'-"" ..,M,~·,,g ',."1;' ,;',,(""'U.''''f'''=~l~~~,•."i<;"' ,..,_,..,.~),,,,,,,",u;,,. '''''''''''''(J~Uj'''''''''i''!~~~':!'.<I;:'(I1h>'-l,'J
13 (Pages 46 to 49)
f011 b12a-1 cae-4351-a011-04e1c42b5e3c

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Page 52 ~
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times, and they basically have told me they 2 down. It was before I moved here. It was i
were there first so we don't care what it 3 a slab for, at the top ofthe hill for many ~
looks like or how it, how much noise it 4 years, just a concrete slab. I
makes, they're just -- they're not going to 5 Q. What year was Nitro Electric tom I".'.
do anything about it. 6 down?
Q. And your home is maybe a football 7 A. Well, Nitro Electric was a tenant in
field away from the inte;state, I-64? 8 the buillding, and Nitro ElectricCmovedl.dout d ~
A. I'd say it's several iootball fields 9 probab y about two years ago. onso 1 ate ~
Page 50
away, but I'm not very good at distances. 10 Freightways was there when I moved there. ~
It's more than one. 11 CF went bankrupt and shut down nationwide. 1
Q. And the train tracks run fairly 12 That building was vacant for a time. The ;l
close to the interstate there? 13 Nitro Electric rented it for a while and ij
A. They run probably a mile or so away. 14 then moved across town. For what reason I ~
Q. From the interstate or from your 15 don't know. I'm, I'm assuming it was i
house? 16 because the building was sold to make room ~
A. From the interstate. 1 7 for the Wal-Mart, or the KFC construction. ~
~
Q. Is that -- how far from your house? 18 And then the building was vacant for quite J
A. How -- I don't understand your -- 19 awhile and was tom down during the time i
Q. Would you estimate, would you 20 that I was in South Carolina. Part ofit i
21 estimate the railroad tracks are from your 21 was tom down. While I was down there, I ~
22 house? 22 came up, back here for several weeks for the ;.'
23 A. A mile and a half. 23 birth of our child, and the remaining part ~
24 Q. Mile and a half? 24 of it was tom down during the time that I ~
1_2_5____~A~.~P~r~ob~a~b~l~ya=b~ou~t~a~m=il~e~a=n=d~a~h=a~I~f.~________~2~5---w~as~he=r=e=fI=0~r=th=e~b=irt~h~0~f~0=u=r=c=h=il=d~w~h=ic=h~____~1
Page 53 ~
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Page 51
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Q. Okay. And what other businesses are 2 was August 29th of2007. ~
out there before this Wal-Mart went in? 3 Q. Do you know what company tore it it
There's several other businesses located close 4 down? ~
to your property? 5 A. I do not. :1
A. The only adjacent business to our 6 Q. Did you have any complaints about, ~.~
property is the crane yard. Down the hill 7 to anyone about Nitro Electric or I
there's an office building that is, that's 8 Consolidated Freight or any of the businesses I
called the Giz building, it's named after the 9 in that area? ~
Harvey Giz family. And down the hill from lOA. No, ma'am. ~
it is a church. There used to be a truck 11 Q. Isn't there a large car dealership i
depot that then was Nitro Electric for a 12 close to your home as well? ~!
~time, and that was razed to create the room 13 A. There are four large car dealerships ~
I,
for the, now the KFC, the Arby's that's 14 close to our home. 1
15 under construction and the Taco Bell that's 15 Q. Okay. There's more commercial !
16 under construction, and those are the only 16 property surrounding you, even before ~
~17 business -- there was a hotel on the hill 17 Wal-Mart, there was more commercial property ~
18 across from our home, but it was out of 18 surrounding you than there was private homes? !
19 business before I moved to West Virginia. I 19 A. That's not true. j
20 don't know what year it went out of 20 Q. Okay. I know you have a neighbor i
2 1 business, I wasn't here. 21 uphill from you? ~
22 Q. Was that tom down, the hotel? 22 A. Well, when you, when you, when you 1
23 A. It was tom down. 23 say commercial property, are you -- I'm not ~
2 4 Q. What year was that? 2 4 understanding if you're referring to the ~
25 A. I don't recall what year it was tom 25 zoning or buildings and businesses. I~
> -"'''''''''''"..:<:0:", ", ~1""~~"~'1..,;,:;t::~,"""",I,<:O=M~":<';'!.;.i=',"." l.........~ ;.,;,k."I!.<O" (I:.~,,)'''{<J<:'''''''''.I A<:-:.;,,./",,!:n',:. .,..""v.",-;~';/'-t~.ffl""':,a"""!;jj..'>.»nJ!•...;.....,/.-<. ,,,,,,Q:.,,,Z'( ">'''':~',"""*,..,,"'i; ",j~""~;HCo'.u:....~':?"""""iI.'-"'"" '" , ' i ' W ' A • ',"",,",l(..;ui.?- ~~~!{ al>~~o,~~~rn
14 (Pages 50 to 53)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

-. Page 54
1 1
2 Q. I'm just saying you own a private 2
3 home, you have your home, next to you is a 3
4 crane service and then right down from that 4
5 would have been where Nitro Electric was, 5
6 that would have been right on route -- what 6
7 route is that that runs -- if you drive down 7
8 your road and go to Huntington? 8
9 A. Hurricane Creek Road. 9
10 Q. Hurricane Creek Road. 10
11 A. Let me try to answer your question, 11
12 if you don't mine. 12
13 Q. I'll just say put a radius, like a 13
14 mile radius around your home, aren't there 14
15 more businesses than there are homes? 15
16 A. I would say probably 40 percent of 16
17 that area would be businesses and the other 17
1.8 60 percent are vacant property now. The 18
19 Wal-Mart property was about 25 acres ofwoods 19
20 that the hotel used to sit on. 20
21 If, if you put my home in a circle 21
22 facing across the street, that was vacant 22
23 until the Wal-Mart went in and blew up the 23
24 hill and destroyed the neighborhood. On the 24
25
a shopping center built adjacent to the ~
Wal-Mart where another home was taken down I:.
for the shopping center. One was for the
Wal-Mart, one was for the shopping center.
Q. SO the home for the Wal-Mart would ~
have been directly across from your house? ~
A. No. Across from our house was the ~
hill that had the hotel pad on it. The A .~
frame that was taken down for the Wal-Mati J
and the pond were up the hill and to the ~
left. And up the hill, straight up the hill ~
was a double-wide that was taken, I think it ~
j
was a double-wide, that was taken down for ,]
the Hurricane Marketplace shopping center. i
Q. Okay. Well, you filed this i
complaint in 2007 against my client and 6.~.:'
Cleveland Construction and the city. And I ~
think your, your claims are a little bit ~
different about the city, but as far as ~
Kanawha Stone Company, can you explain to me . ;;
why, why you have sued them? ~
A. They made our life a living hell. R
ij
They blasted on a daily basis, sometimes ff
Page 56 ~
right side of our home as you're standing in 25 multiple times a day. Your, your client's ~
----~~~~~~~~~~~~~~==~~----~~--~~~~~~~~~~~~~~~~------I~
Page 55
1
2 the front yard facing forward, we have
3 residents on that side of us. In back of
4 us there's a one-lane road that separates our
5 property from acres and acres of woods. At
6 the top of that hill there's several homes
7
up there. At the bottom of the hill you
8 have the church. The Giz building. And
9 then the church has only been there for
10 several years, prior to that the building was
11 vacant for a couple of years, and you had
12 the Consolidated Freightways. On the other
13 side of Hurricane Creek Road you now have a
14 bank that's under construction. It was
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president Art King came to my home, met with
me in my living room, promised me the
blasting would be no more than the whoosh
sound of a closing door. He lied. The
home, rocked our home. It felt many times
like being in an earthquake in Southern
California, which unfortunately I have a lot
of experience of enduring that. It caused a
lot of stress, it caused a huge amount of
nOIse.
One of their blasters was not
licensed and was cited by the state for not
being licensed. I belleve it was a
57 Ii.~
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~15 vacant for, that land was vacant for many 15 subcontractor of your client, but
16 many years. You have homes back of them. 16 nevertheless. fi
1 7 On the front side of the that area you have 1 7 Your client made our life a living ~
18 the Saturn and the Chevrolet dealership. 18 hell and refused to do anything reasonable i
19 Q. Were there homes, during the 19 about it. He promised us a blasting 1
20 construction for the Wal-Mart, were there 20 schedule so that we could leave when the ~
'r;
21 homes that were taken down that were 21 blasting occurred and schedule other things ~
22 destroyed, purchased and destroyed? 22 to do then, and he never provided that. (I
23 A. There was, there was one home that 23 Q. SO your biggest complaint against I24 was destroyed and taken down for the Wal-Mart 24 Kanawha Stone is the blasting and the noise Ii
I'
25 along with a very pretty pond, and there is 25 from the blasting? ;1
,,!I;'''.M..,.~·~«l1«!h·I:~W.iLl'''''''iW'i:I! };~~~..t-::W'.W't.:.,);':;:,;. ~~c.:.~,.U·:K.·;''J.M:,~·$..:uW'.~_l.i'_.,.,..~I,~.a'.iti.tr'-';;~G.~I.t..''''im;:;4V.l:h.~I''''~:'',,:;~,~ . ;:lW'm.v...)lM1i~',).l.:l.!.,,h,~.,lIi ii1.r.v~_*,,.a;:~'41$;.;o...CCi-n..~ntt'i~u~'l':~IW:t.!.~~*' ,,~i
15 (Pages 54 to 57)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

60 ~
1 2 1 1
A. The noise, the vibration -- 2 blasting occurred you put, you made mention I
Page 58 Page
3 Q. The noise -- 3 of it in your blog? ~
4 A. -- the deception, the unlicensed 4 A. Not every time but many times. I
5 blaster. 5 Q. During the time period of the ~
6 Q. Well, the unlicensed blaster was 6 blasting, that about six months there in I78 employed by a different company. But -- 7 2007, what, during that entire time period ?,'
A. It was employed by Kanawha Stone. 8 what was your employment? ~
~
9 Q. I don't think so, but we don't have 9 A. I was working for Cingular until t
10 to disagree about that now. 10 January, and then I went to work for PRe. ~
11 In terms ofKanawha Stone, your 11 I also published my web site, and then I ~
12 complaint against Kanawha Stone is the 12 work, went to work for Channel 15 in South »
13 blasting and the subsequent noise and 13 Carolina. 1
14 vibrations from the blasting? 14 Q. SO you were working for Cingular. ~
15 A. And shock waves from the blasting, 15 Was it a full-time job? ~
1
176 yes. 16 A. Yes. We already established that. ,~.',1
Q. Okay. And you recorded I guess in 17 Q. And I can't remember which ones are ~
18 your, in your blog you recorded, made a 18 full-time or not, but what were your hours ~
19 record of every time that blasts went off 19 at Cingular?
20 that you were present at home; is that 20 A. As we said earlier, it was about 2 ~
21 correct? 21 to 11, 3 to 11 the majority of the time. ~
22 A. That I was present at home, yes. 22 The first six weeks I was with the company ~
23 Q. You didn't -- 23 it was a 9 to 5 training schedule, and I :
2 4 A. Many times I left during the day 24 prefer to work in the evenings for issues of ~
1_2__5__~j~u~st~t~0~g~(e~t~0~ut~o~f~t~h~e~n~ig~lh~t~m~a~re~sl~'ru~a~t~io~n~______~2~5__~b~e~in=lg~a~bl~e~t~o~ru~n~e~rr~a~nd~s~an~d~n~ot~m~is~s~w~o~r~k~,__~;
Page 59 Page 61 1
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that your client put us in. 2 being able to run the web site and things ~
Q. Can you recall what months the 3 like that. Now that we have the baby, !
blasting, how long the blasting occurred? 4 taking him to doctors' appointments, I can do j
A. I recalled -- I'don't recall 5 that during the day and still get to work on ~
specifically. There's notes in the blog. I 6 time and not have to take off work, which ~
recall that Mr. King told me that they would 7 I've done a number of times since he was I,:,',
end it in June or July, and then another 8 born. So at PRC I also worked evenings. i
contractwas signed and they extended 9 Q. SO you were home during that, the i
farther, and then eventually I went down to 10 tirne period that blasting was going on you .~
'j
South Carolina and I'm not sure if the 11 were normally home until around 1:00 or -- :
blasting continued after I left or when it 12 A. 1 to 2:00. i
ceased exactly, but there's notes in the 13 Q. And then you would be gone until ~.l,
blog. 14 around 11 :OO?
Q. Do you recall when it started, the 15 A. Correct. And then I typically iblasting started? 16 worked, worked on Sarurdays to have a weekday ,
A. I believe it was December or January 17 off to substitute teach or do other things I
of one year, but I don't recall. I believe 18 during the week, as I do now. I have ~
maybe December, January of 2007. Again, 19 Mondays off and work, I work a Tuesday I,'.
there's notes in the blog. 20 through Saturday schedule. So on -- pardon ~
Q. SO the blasting that you're aware of 21 me -- on the weekday that I was not working !
was you think estimated time period about 22 the full-time job I would be home in the ~
seven, about six or seven months? 2 3 evenings and afternoon, late afternoon. i
A. Or longer. i,' 24 Q. How much time do you average working I
Q. And every time you were home when 25 on your web site and the blog every day? I ~
16 (Pages 58 to 61)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 62 Page 64 ~
}
1 1 ~
2 guess you work on it every day? 23 did a lot of dirt moving and grading, and j
3 A. I work on it every day several hours that was, the noise from that was very I4 a day. 4 excessive. I recall on the 4th ofJuly I ~
56 Q. During this time period when.;he 56 had g?nhe in tTohhave aMsleep S~ldYJdlon3e d j
blasting was going on, was your Wlle overnlg t at omas emona, u y r ,came ~
7 employed? 7 out, and I was on the interstate coming home ~
8 A. Yes. 8 on the 4th ofJuly, and at a quarter to 7
9 Q. Was she -- 9 in the morning Kanawha Stone's graders were ~
10 A. With the exception of her maternity 10 creating a hell of a lot of noise, just a ~
11 leave. And when she was student teaching -- 11 huge amount of noise. She called me on my I
12 THE DEPONENT: Was that during the 12 cell phone on the interstate in tears because ~
13 blasting, honey? 13 it had woken her up on a holiday morning. ~.
14 Q. If you don't remember, just say. 14 And two days after we were promised by the ~
15 A. I don't recall. 15 city council they would enforce a noise :i
16 Q. Okay. 1176 ordinance, your client was obnoxiously loud ~.ri!
1 7 A. She took some maternity leave for in making noise on a, on a national holiday. !l
1_ 8 the birth of our child. She -- he was born 18 And the graders were an ongoing I19 in August. I think .she was taken off work 19 problem. And I'm not sure exactly how much i
20 in July oflast year because of health 20 of the grading work was done by Kanawha ~
21 issues. And the previous fall, fall of, you 21 Stone and how much of it was done by your I
22 know, late fall the late part of2007 she 22 subcontractors and how much of it was done ~
23 was student teaching, and so she was at 23 -- a lot of the grading equipment had ij
24 school during the day but she was not being 24 Kanawha Stone logos on it. I don't know who ~
1_2_5_-,p,--,a_id_a.;..s_an___e_m--l-..;.pllo~)Y,--(e,-,e_._S_h_e_w__a.:.:..s_n.....o'--t_e__m.;;;Jlpr:...ll__o'--y~ed-'.__-t-_2_5__e-l__se--'w_a_s__o_n_t_ha__t--,p_lr_0.L......p1erty____a_nd_w_h_o_e_l_se_y,,-(0_U____I~
Page 63 Page 65 J.
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She was on -- you know, she did quit work
to student teach.
Q. Okay. So she quit work from --
what work did she quit to student teach?
A. I believe she quit in August,
because that's when the fall semester starts.
Q. I mean, what job did she have that
she quit so she could student teach?
A. I believe she worked for the State
Department of Education. I don't recall for
sure.
Q. Okay. So she would be gone until
she took her, until July, I guess, until
July of 2007 she would normally be away from
home most of the day until 3:00 in the
afternoon and then --
A. Well, she student taught in the fall
until about 3, and then she went to work for
BBT and worked pretty much a 9 to 5
schedule, and then was off for the maternity
leave, and then of course she was off on
holidays.
Kanawha Stone, you asked a question
earlier I'd like to go back to. They also
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hired, but the equipment from that was just
a horrible way to treat your neighbors, just
a horrible way to treat your neighbors.
Q. Do you know how many contractors
were actually working on the Wal-Mart site?
A. I do not. I don't have access to
that information. It's -- they're
privately-held companies, and that's not
public record.
Q. And you've not seen any subcontracts
or contracts with any other contractors?
A. I have seen some sub, some
subcontractors. Did I say that clearly
enough? I'm sorry.
Q. But the contracts actually to know
who was contracting with whom, you haven't
seen those?
A. I have not seen those.
Q. SO you're assuming that they were
subcontractors for Kanawha Stone?
A. Well, I was told by Art King that
some of the blasting was subcontracted and
some of the grading was subcontracted. He
didn't specifically tell me to who and how
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f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 66
1
2 much.
3 Q. Okay.
4 A. That was his, his lame excuse for
5 the blaster not being licensed.
6 Q. Your first complaint about the, all
7 the construction that was going on for the
8 Wal-Mart site, who was your first complaint
9 made to?
lOA. I never complained about the
11 construction at the Wal-Mart site. I
12 complained about the excessive noise. I
13 don't mind if people do construction, I don't
14 mind if people build. I think progress is a
15 good thing. I think disrupting your
1 6 neighbors for months and years is a very bad
1 7 thing. So I didn't complain about the
1 8 construction.
19 Q. Who did you complain to your first
20 complaint about noise?
21 A. Ben Newhouse and the police
2 2 department.
23 Q. Okay.
24 MS. SANDERS: I think we'll go off
25 the record and change tape.
Page 67
1
2 VIDEOGRAPHER: This concludes tape
3 number 1in deposition ofMark Halburn, and
4 we're off the record at 2: 14 p.m.
5 (Whereupon, break.)
6 VIDEOGRAPHER: This begins tape
7 number 2 in the deposition ofMark Halbum,
8 and the time is 2:23 p.m.
9 BY-MS.SANDERS:
10 Q. Do you know your neighbors that live
11 next door?
12 A. I'm acquainted with my neighbors. I
13 don't have a lot to do with them.
14 Q. Okay. Do you know their names?
15 A. I know there's a John Clay and a
16 Maddie Clay that live full-time next door.
1 7 They have adult children that I see visit
18 and sometimes stay there long periods of
19 time. I don't know if they move in there
2 0 or just come for vacations or whatever.
21 Q. Okay. Are there any other neighbors
22 that live around you?
23 A. John's son, who I believe is a
24 junior or a second who goes by Jay, lives in
25 a single-wide on the other side of John on I
Page 68
1
2 believe it, I believe it's his father's
3 property. He has a wife and a child. I
4 don't know their, their names.
5 Q. Okay. Are there any other neighbors
6 that you have?
7 A. There are people up the hill, but
8 they're, I don't know if! would call them
9 neighbors. There's a double-wide right above
10 Jay's property, and then in back of us
11 there's a hill, a road, and there's a
12 cluster ofhomes, and I couldn't even tell
13 you those people's names. I don't...
14 Q. None ofthese people that live in
15 your area; in your neighborhood have
16 approached you with any complaints about the
1 7 Wal-Mart building?
18 A. Yes. John, John Clay was
19 interviewed by Channel 3 complaining about
20 the noise from the Wal-Mart. And I believe
21 the thing that he complained about was he
22 called them the boom boxes in the cars.
2 3 Although I find that rather ironic because
24 John has a motorcycle that he likes to fire
2 5 up and let warm for 15 minutes to a
Page 69
1
2 half-hour in the morning that wakes our baby
3 and makes more noise than the Wal-Mart
4 traffic does on the days that he leaves it
5 sitting there for long periods of time.
6 Q. SO John Clay was on the news
7 complaining about the noise because of the
8 Wal-Mart being open and people coming to the
9 store?
lOA. Correct.
11 Q. Okay. But I'm asking do you know
12 of any of your neighbors that came,
13 approached you about the construction, during
14 the construction, before the store opened,
15 during the grading, during the blasting?
16 A. John, John and I had discussions
1 7 about it. There's a guy by the name of
18 MacDonald, I think his name is Mike, who
19 said, Look, it's horrible, but there's
2 0 nothing we can do, the city's corrupt, and,
21 you know, you can complain to them all you
22 want, they won't do anything about it. I
2 3 think Jay's wife said something to me at one
24 point. Everybody there felt it was, you
25 know, out of control, but the city of
18 (Pages 66 to 69)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page
1
2 Hurricane doesn't give a care anything about
3 its citizens, and, you know, let's it happen.
4 And the mayor told me, he says, We want the
5 Wal-Mart more than you, and you'll eventually
6 move, so, you know, deal with it.
7 Q. My question is during the
8 construction, during the time the blasting
9 was taking place and the site was being
10 graded, did any ofyour neighbors actually
11 come over to you and say that they were
12 being bothered by the blasting or the noise?
13 A. Yes.
14 Q. And that would be John Clay?
15 A. John Clay and Mr. MacDonald and
16 Sally MacDonald,. his wife.
17 Q. Where do Mike and Sally MacDonald
18 live?
19 A. They live in the double-wide on the
20 hill above Jay's double-wide. There's
21 actually, there's actually, I don't know, for
22 lack of a better term I'll just try to do a
23 quick drawing of it. I don't know if I
24 need to hold it up for the camera. But the
25 dili road that we live on goes parallel to
Page
1
2 the Wal-Mart. Our house is there, and this
3 side of the Wal-Mart is over here. Our
4 house, John's house, then there's a little
5 road that goes, intersects between John and
6 Jay's single-wide that goes up the hill, and
7 the MacDonalds live at the top of that hill.
8 Then behind us, behind our home, behind the
9 Clays, behind Jay and behind the MacDonalds
lOis the single road a:';1d there's a cluster of
11 homes up there. Arid Sally was also
12 complaining aboutthe noise and the blasting
13 and the disruption for the construction of
14 the Hurricane marketplace because that's
1 5 directly down the hill from their home. And
1 6 I have been told, though I have not seen the
1 7 contracts, that Kanawha Stone did a lot of
1 8 that work as well.
19 Q. Okay. So up the hill from you in
2 0 the area where the MacDonalds live there are
21 other homes around the MacDonalds?
22 A. There are -- that little single road
23 runs parallel to the back side of the
24 MacDonald's home, and on the other side of
2 5 that road there's two or three homes that
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Page 72
are side by side, and behind the first home
there's another single-wide. I don't know
those people's names.
Q. Okay. And you haven't talked to any
of those people about noise or any, any
inconvenience or anything about the site
construction?
A. I have briefly talked with one of
the neighbors that, our mailboxes have always
been together, they've since, they've been
moved during this process, and I would run
into him at the mailboxes and he would
complain about it. I don't know his name.
Pardon me.
Q. Have any ofyour neighbors expressed
any displeasure to you about your complaints
in your blog?
A. About my complaints in my blog, no,
they have not. They have said that it
doesn't do any good, that the city will do
what they want. John has gone to the city
council and complained about the construction
noise and the, and the traffic. I've seen
Mr. MacDonald speaking to some of the city
Page 73
2 council people and the mayor, not during the
3 public meeting but before or after. To my
4 knowledge, John and Dolores and I are the
5 only ones that have gone to the city council
6 formally during, during a meeting and
7 complained about the noise and the traffic
8 and -- I take that back. Mr. MacDonald did
9 also complain about the guardrail that was
10 put up, because when he took his boat down
11 the hill he couldn't tum the comer without
12 cutting across John Clay's yard, and that's
13 the -- I did see him say that to the city
14 council. And the last time I saw the boat,
15 there was a boat parked on the edge of Jay's
16 property. I think he just no longer brings
1 7 it up the hill, he just leaves it on his
18 neighbor's property. And that's between
19 them, I don't get involved in that.
20 Q. SO Art King, the president of
2 1 Kanawha Stone, came to your house on one,
2 2 one time to talk about the blasting?
23 A. He met with me one time. If he's
2 4 ever been to my home --
25 Q. Oh, I thought he was at your home.
19 (Pages 70 to 73)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 74
1
2 No, he--
3 A. No, ifhe's ever been to my home
4 other than that, I'm-not aware of it. He
5 met with me one time.
6 Q. Okay. Have you had any other
7 conversations with him about the work they
8 were doing other than that one time?
9 A. I had several conversations with him,
10 and then he ceased taking the calls. He
11 just ignored the problem, and, you know,
12 continued to terrorize our neighborhood.
13 Q. Didn't you call Kanawha Stone like
14 50 times a day?
15 A. No.
16 Q. What's the most that you think you
17 called them in one day?
'.8 A. Three or four times.
19 Q. That's the most in one day?
20 A. That I recall, yeah.
21 Q. Do you recall speaking to anybody
22 else in management with Kanawha Stone?
23 A. I do recall speaking to someone else
24 that I was directed to speak with. I don't
25 recall his name.
Page 75
1
2 Q. Do you know, recall what you spoke
3 about?
4 A. The noise and the blasting.
5 Q. And what did that person tell you?
6 A. Call Wal-Mart and complain. They
7 directed me to I think it's a James Davis at
8 Wal-Mart. The work had to go on. You
9 know, they say it has to happen like it's a
10 hospital or a school or an interstate. It's
11 a department store. There's not a need to
12 have a Wal-Mart. But they would, you know,
13 try to, try to make it the same urgency as
14 something that, you know, really is necessary
15 to society. But the bottom line is they
16 didn't have to sign that contract, they
17 didn't, they weren't required to do the work.
18 They chose to and they decided to make our
19 lives miserable to earn a living.
20 Q. That's, that's the way you analyze
21 it, that's the way you see it?
22 A. Yeah. They, you know -- most people
23 earn a living without disrupting their
24 neighbors, without rocking people's homes,
25 without, you know, making excessive noise on
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Page 76
the 4th ofJuly and things like that. And,
you know, Father's Day, at 6:23 on Father's
Day a year ago they were out cutting bricks
on the retaining wall. I didn't see a need
to do that at 6:23 on a Sunday morning on
Father's Day, but they were doing that at
6:23 in the morning on Sunday. And the
workers told me they worked for Kanawha
Stone.
Q. It seems like that you've written
some complaint about the Wal-Mart, the
construction, the noise, lights, almost daily?
A. It's been a problem almost daily.
Q. Okay.
A. This project that your client, you
know, was involved with has made our life a
nightmare almost daily, and the reason the
complaints were written almost daily is
because your client instead ofacting like a
good neighbor with common sense and with
common courtesy towards their neighbors chose
to make our lives miserable to make a buck.
Had your client acted in a professional and
common courtesy behavior with consideration
Page 77
and common sense, not running big graders on
the 4th of July and cutting bricks on, 6:23
on Father's Day and had someone, and I
believe they were Kanawha Stone vehicles,
shining lights. Before they blew down the
crest, they blew away a whole hillside to
bum hundreds of, maybe ifnot thousands of
trees. And by the way, your client was also
cited by the state for the amount of smoke
that that burning throughout our property --
we had to, I had to take my mother-in-law to
her home in Charleston that day because the
smoke was so bad we couldn't breathe. Had
your client not acted like idiots day in and
day out, I wouldn't have anything to complain
about.
Q. SO how much of the day do you spend
documenting and writing and making phone
calls and just working on your complaints?
A. It varies from day to day.
Sometimes a few minutes during the
construction, sometimes it would be a couple
of hours. Far less than the time that your
client had spent sending excessive noise,
20 (Pages 74 to 77)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 78
1
2 dirt, dust and smoke into our home.
3 My wife tells me that our, her
4 nephew was sitting on the front porch one
5 day and there was a blast and dirt landed in
6 our front yard.
7 Q. SO you complained to looks like
8 everybody on the city council. Would that
9 be accurate?
10 A. Yes.
11 Q. Everybody on the city council, the
12 mayor?
13 A. The former mayor.
14 Q. Chief ofpolice?
15 A. Um-hmm.
16 Q. City attorney?
17 A. I have never contacted, to my
1_ 8 knowledge, the city attorney.
19 Q. Ron Flora, never contacted?
20 A. I don't recall contacting Ron Flora.
21 There -- we call -- I have a reporter that
22 contacted Ron Flora about something. I don't
23 recall having a conversation with Mr. Flora
24 regarding this.
25 Q. Okay. And it's your opinion that
Page 79
1
2 everybody on the city council is corrupt and,
3 well, corrupt?
4 A. It's my opinion that everybody on
5 the city council is sold out to Wal-Mart and
6 is ignoring the citizens that have lived in
7
that neighborhoodfor decades, because they're
8 interested in the Wand 0 taxes and the
9 higher property taxes and the other revenue
10 from Wal-Mart, and they realize that
11 eventually we'll move. And it would not
12 surprise me if they're hoping that we move
13 sooner so that they can develop it sooner
14 and make more money off of the properties.
15 And we would like to move, but nobody wants
16 to live by a house to live across the street
17 from a Wal-Mart. Would you?
18 Q. Well, when you build in a commercial
19 zone, I don't know, you probably expect it.
20 But --
21 A. No, we didn't expect them to blow up
22 a mountain and fill in a lake to put in a
23 Wal-Mart. No reasonable person would expect
24 that stupidity.
25 Q. SO there's nobody that is employed
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Page 80
by the city that has responded to your
complaints or that you have any respect for;
is that correct?
A. No, there's people that are employed
by the city that I have respect for.
There's nobody that has dealt with the issue
of the noise in my complaints that I have
any respect for.
Q. Okay. And you've also gone above
the city to the county and made complaints
to the prosecutor, Putnam County Development
Authority, county commissions, Putnam Sewer
District, circuit judge, you've made all
those complaints as well; correct?
A. That's correct.
Q. And nobody that you've complained to
has responded in any way that is satisfactory
to you; correct?
A. No.
Q. And you've gone above the county and
complained to state government, the governor?
A. Yeah, I have contacted my state and
government officials and asked that they pass
a noise ordinance that restricts constmction
Page 81
noise so that it doesn't bother people in
their homes nearby. Constmction people have
a right to earn a living, we have a right
to peace and quiet.
Q. SO from the governor to your
delegates, to the senators, to the fire
marshals --
A. The fire marshal cited your
subcontractor for blasting without a license.
Q. Okay. Well, none of these people
have given you, responded to your complaints
or given you the relief you've asked for; is
that right?
A. That's not tme. The fire marshal
cited your person for blasting without a
license. The fire marshal was restricted by
law, he said, to do anything more because
your blasting was within levels set by the
legislature that he told me that he thought
were too excessive and should be changed, but
as a fire marshal he didn't have the
authority to do that, he had to work with
the laws that were handed to him by the
legislature.
21 (Pages 78 to 81)
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Q. So only the fire marshal is the only
government official that's given you any
relief?
Page 82
A. Correct. Mayor Edwards, whose
mayorship is in dispute, and the Supreme
Court will hear that case in September, told
us in the city council hearing a year ago
July when Dolores and I went to complain
that he would enforce the noise ordinance.
And a couple of days later on the 4th of
July while I was returning from the hospital
she was woken up at a quarter to 7 by the
graders from your company that were putting
huge amounts of noise as they dug the road
that's directly in front of our home.
MS. SOLOMON: Can we take one break
so he can tell her where the car is?
VIDEOGRAPHER: We're now going off
the record at 2:39 p.m.
(Whereupon, .break.)
VIDEOGRAPHER: Back on the record at
2:40 p.m.
BY-MS.SANDERS:
Q. SO of all the complaints you've made
Page 83
about the construction, the only complaint,
the only person who has responded in any way
to do anything you've asked would be the
state fire marshal?
A. I have not complained about the
construction, I've complained about the
excessive noise, the excessive blasting and
the shock waves and the smoke. If they did
-- there's construction going on down the
hill across the street on an Arby's right
now on a bank across the way, I don't hear
it, I don't see it unless I'm driving by it,
it doesn't bother me. Knock yourself out,
have a good time. But when you're shaking
my house, you're smoking us out, when my
wife is calling me in tears on the 4th of
July because your graders woke her up very
early in the morning, when you're shining
lights in my window --
Q. Mr. Halburn --
A. -- that's rude and obnoxious.
Q. Mr. Halburn, that doesn't answer my
question. My question is --
A. Yes, it does.
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Page 84 B
~
Q. -- of all the people that you've
complained to, city, county, state, even
Senator Byrd, Rockefeller, all the people
that you've complained to in the government,
the only person that you believe gave you
any satisfaction with making, doing something
about a complaint would be the state fire
marshal?
A. Correct.
Q. Okay. This home, do you know it
was purchased by your wife and her mother
for, what, $40,000?
A. I don't know. I wasn't married to
her then.
Q. Okay. The house is listed for sale
right now?
A. The house is not formally listed for
sale. We are working with a broker who is
working with a number, if not all, of the
neighbors. Right now he's waiting, trying to
figure out who owns that road in the back of
our home. And it's not in a formal MLS
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listing because it's being sold as commercial i
property, not as a residence because no one 11
wants to live across the street from what
your client created. And--
Q. What's the name of your broker?
A. It would be McGuire, and the
gentleman's name is Doug. I don't recall
his last name. I could give you his phone
number if you'd like to have it, but...
Q. He works for the McGuire --
A. Agency in --
Q. In Tennessee?
A. In Huntington. I believe it's on
6th Avenue and 10th.
Q. Is he the second or third or fourth
broker you've worked with?
A. I believe the fourth. We have been
22 (Pages 82 to 85)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

Page 86
1
2 Q. Have you had anybody look at your
3 home?
4 A. We have had the brokers look at our
5 home. One of them said that they brought
6 Bob Evans, a representative from Bob Evans
7 by, and our neighbors' prices, according to
8 him, and that was a guy by the name of Dave
9 who works for Family First Realty, our
10 neighbors' prices on either side ofus and
11 around us were so high that Bob Evans walked
12 away from the table because they, you know,
13 they felt that it was too much of a land
14 investment to build a restaurant and have a
15 profitable restaurant. I don't know what my
16 neighbors are asking, it's not my business.
17 I don't ask them and they probably wouldn't
18 tell me.
19 Q. Have any ofyour neighbors sold--
20 A. Mike Hall, who was one of the
21 brokers, also told me that the neighbors'
22 prices were too high.
23 Q. Mike Call?
24 A. Mike Hall.
25 Q. Hall?
Page 87
1
2 A. H-a-l-l.
3 Q. Have any ofyour neighbors sold any
4 property since the Wal-Mart was built?
5 A. Since it was built, no. While it
6 was under construction there was a family by
7 the name of Mullins that sold a double-wide
8 at the top of the hill to make room for the
9 Hurricane Marketplace. And the, I believe
10 his last name was Fitzwater, everybody called
11 him Slim or Slick, they sold the A-frame to
12 make room for the Wal-Mart.
13 Q. Do you know what their property sold
14 for?
15 A. I believe that one was 350 and one
16 was 300, but I don't recall off the top of
17 my head.
18 Q. And it looks like you're asking 350
19 for your property?
20 A. My wife and her mother are asking
21 350.
22 Q. Okay.
23 A. Which, again, I've been told is less
24 than what our neighbors want for, want for
25 their properties. I think our, you know,
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Page 88 ~
1
~
2 I've been told and I believe that our
M
~
3 neighbors are seeing Wal-Mart and expecting ~
a4 to make a huge amount of money and, you !.
5 know. ~
~
6 Q. Now that the construction is
I7 complete, you're still complaining about the
i8 Wal-Mart being next to you; correct? t~
9 A. No. I'm complaining about the
i10 traffic that is generated by the Wal-Mart I!
11 being next to me and the lights that are,
l12 you know -- I mean, our front yard glows at ~
13 night. You look -- you know, our windows ~
14 are lit up by the lights across the way.
,1
J
15 And keep in mind our home is about !
16 100 feet from the dirt road that's the
I17 frontage road to our home. I've never
~
18 actually measured it, but I know that when I R
19 had an electric weed eater I used a 100 foot ~
20 cord and it reached out to, you know, ~'i
21 reached out to edge the edge of the lawn. 11
22 The dirt road is probably about another 15 }
23 to 20 feet, there's another 15 or 20 feet, ~
24 then you have the road that goes into the ~~
25 Wal-Mart, then their parking lot, then the ~
~
Page 89 ~
1
U,
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2 store. So to get that much noise into a ~]
3 home that far away is a substantial amount tl
~4 of excessive noise. 1
~
5 And we get woken up at 5 a.m. by ~
~
6 cars. I've had, heard women screaming at ~
7 their boyfriends or husbands or whatever in t
~
8 the parking lot at midnight. The street
I9 sweeper typically runs at between 11 and
10 midnight or 12:30 when it can certainly run
11 during the day. Delivery trucks at 4 or 5 ~
12 a.m. have woken us up, woken our baby up.
,
~
13 You know, we can't enjoy our front lawn. If Ij
14 you're sitting out in the front lawn you're,
i15 you know, inhaling fumes from traffic and ~
16 listening to all the excessive noise.
,
~
17 Q. And are you blaming Kanawha Stone ~
18 for the Wal-Mart being there? i
19 A. I'm blaming Kanawha Stone for the ~
'1
20 noise and the problems that it did and ~
~
21 helping to build something that has been ~
~
22 awful for our neighborhood and our home. g
23 Q. SO your complaints about Kanawha i
24 Stone center on the approximately six month
25 period of time when there was the blasting
.'''.... ;,;.....v~,~:.·.,.,.).,J.'·...,,~·-'-':.v,~,. ··,,::l,~''i'''''''-J:,:.·ru:hiM(.,..~..,..t~)O:,.,,;,'_ ~~t7='1.-l ...,;«;t .....-......~¥.~..x.·.r,,O:.J.'....~'~...(.
23 (Pages 86 to 89)
f011 b12a-1 cae-4351-a011-04e1 c42b5e3c

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Page 90
1
and the grading going on? 2
A. And the smoke. 3
Q. And the smoke. 4
A. And the lights. 5
Q. And that's about a six month period 6
of time? 7
A. I'd say six months to a year. 8
Q. All right. Do you have any other 9
lawsuits going on that are connected to the 10
Wal-Mart going in? 11
A. Not at this time. 12
Q. Have you had one going on, another 13
on~ 14
A. We had, I had one that went on when 15
I learned that the blaster or I received 16
tips that the blaster did not have a 1 7
license. I contacted Cleveland Construction 18
and asked them legitimate questions. When I 19
came home from work from CingulaI' that night 2 0
they had me arrested at about 1 in the 2 1
morning. And I was acquitted, and their 22
client fell apart on the witness stand. I 23
was acquitted. And we filed a lawsuit for 24
false arrest and that was recently 25
Page 91
1
dismissed, and I'm hoping to appeal that. 2
Q. It was dismissed by the court? 3
A. Yes. 4
Q. And Mike Clifford represented you on 5
that as well? 6
A. Yes. 7
Q. SO you have had that lawsuit, this 8
lawsuit. Any other lawsuits? You've had 9
several lawsuits for auto accidents; correct? 10
A. I've had -- I was in an accident 11
about two years ago that there was a 12
lawsuit. There was the one that we 13
mentioned with the prior deposition. And the 14
one a couple of years ago there was no 15
deposition. I think there's been maybe two 16
to three related to a car accident. I don't 1 7
remember exactly. 18
I was rear-ended in front of a 19
specific university about, about 15 years 20
ago, the one we talked about earlier, where 21
I was injured. My car was totaled. His 22
car was totaled as well. No, I take it 23
back. His car was totaled, mine was not. 24
Two years ago my car was totaled when 2 5
someone pulled in front of me and I
broadsided them. Ironically Captain Wingo
also did that police report, and I was found
not to be at fault. The truck pulled out
in front of traffic and stopped.
Q. Didn't you have an automobile
accident in August of2006?
A. That's the one I'm referring to.
Q. Is that case still pending?
A. No. It never went to court.
Q. And your deposition was never taken?
A. Correct. There was clearly no fault
on my part in that accident.
Q. Okay. Did you ever file a trip and
fall like falling at a mall, did you ever do
that?
A. I never fell at a mall, no.
Q. Okay. How many times have you been
arrested?
A. Twice.
Q. What was the first time for?
A. In 1989, ironically it was Halloween
day, I had purchased a shelving unit that
was missing a piece of shelf and the
retailer directed me to the store to pick,
or to the factory to pick it up. I picked
it up without incident. And I was on my
lunch break, went back to school, I was
teaching that day. I went home and they had
concocted a story about me pulling a gun on
them and robbing them and et cetera, et
cetera, et cetera over this plank, for lack
of a better term, of a shelf. I spent
about a week in jail. My -- they dropped
the robbery charges, reduced it to a
disturbing the peace, and my attorney
instructed me to plead no contest. They put
me on a year of summary probation and then
would expunge it, which they did. And to
sue the company, we did, and the company
filed bankruptcy to get out of the lawsuit
and a lot of other legal problems that it
was in, and I ended up not getting anything
out of that.
Q. What year was that?
A. The arrest was 1989, the plea was
1990, and the expungment, and it was
expunged, was either '92 or '93.
24 (Pages 90 to 93)
f011 b12a-1 cae-4351-a011-04e1c42b5e3c

Motion for Summary Judgment by Kanawha Stone containing the deposition and resume of Mark Halburn

Motion for Summary Judgment by Kanawha Stone containing the deposition and resume of Mark Halburn

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Motion for Summary Judgment by Kanawha Stone containing the deposition and resume of Mark Halburn